Peo v. Xia

22CA1401 Peo v Xia 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1401
El Paso County District Court No. 20CR6926
Honorable Erin Sokol, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Xinan Xia,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE KUHN
J. Jones and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 20, 2025

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrew C. Heher, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Xinan Xia, appeals his convictions for pimping, two

counts of keeping a place of prostitution, and pandering. We affirm.

I. Background

¶2 Xia owned the Rose Spa, where he employed two women, J.F.

and J.X., his girlfriend. The Colorado Springs Police Department

received an anonymous tip that employees at the spa were

performing sex acts for payment. The police investigation

discovered an entry for the Rose Spa on a website that lists and

reviews spas and massage parlors that offer sexual services.

¶3 The police then conducted a sting operation using a male

undercover officer who posed as a massage customer. The officer

arranged for a thirty-minute massage with an employee; paid $35;

and received a back, buttocks, and leg massage. The employee

then asked the officer to turn over, and after he did so, he inquired

if she did “extras,” implying a sexual service. The employee

indicated that she did.

¶4 The officer then made a masturbatory motion and asked how

much the “extras” would cost. The employee held up five fingers.

The officer confirmed that she meant $50, to which she agreed. The

officer reconfirmed the price and then used a bust word to signal

1
his team via the wire he was wearing. The police entered the spa

and detained J.F. and J.X.

¶5 The police then searched the spa and Xia’s apartment across

the street. Using a blacklight, they found stains on the walls of the

massage rooms and on several towels. Later testing confirmed that

the stains were semen. The police also found bank statements

showing that Xia had been paying for an advertising account on the

sexual services website for over a year. And they found a sticky

note with a password for an account on the website and evidence

that Xia had repeatedly accessed the site on his phone. Bank

records also showed that many customers would pay twice,

typically separated by thirty minutes, during a single visit. The

second payment was often fifty percent or more than the initial

payment. The police did not find any standard intake forms, client

health information, or signed consent and liability waivers.

¶6 The police spoke with J.X. and J.F., and both denied any

involvement in prostitution and that any sexual activity had

occurred at the spa. Xia was charged with pimping in violation of

section 18-7-206, C.R.S. 2025, two counts of keeping a place of

prostitution in violation of section 18-7-204, C.R.S. 2025, and one

2
count of pandering in violation of section 18-7-203(1)(b), C.R.S.

2025. J.X. and J.F. were identified as victims. After a trial, the

jury convicted Xia on all counts, and the court sentenced him to six

years of probation.

II. Analysis

¶7 Xia contends that the trial court erred by (1) permitting J.X., a

nonparty, to make a blanket assertion of her Fifth Amendment

right; (2) refusing to instruct the jury that it could draw inferences

from J.X.’s assertion of her Fifth Amendment right; and

(3) prohibiting the introduction of statements made by J.X. and J.F.

We address each contention in turn.

A. The Blanket Assertion of Fifth Amendment Privilege

¶8 Xia contends that the trial court violated his right to present a

defense by ruling that J.X. could make a blanket assertion of her

Fifth Amendment right to remain silent. We disagree.

1. Additional Background

¶9 At trial, the prosecution sought to call J.X to testify; however,

prosecutors were unwilling to grant her immunity. On the morning

before the second day of trial, the court held a conference, and the

parties offered proposed questions so that the court could

3
determine whether they would implicate J.X.’s Fifth Amendment

rights. Counsel and the court engaged in the following exchange:

[XIA’S COUNSEL]: . . . I would certainly
anticipate in asking her everything about the
operation. If she says the same thing she told
the police long ago, it would be in a way good
for me because she told the police there w[ere]
no sexual things going on there. But, you
know, she’s going to be asked very specifically
about every single thing, the records, ledgers,
receipts, what’s going on, what’s not going on.
So frankly, I hope that she’s going to say
there’s no sex going on.

Obviously, I don’t know -- I don’t have the
access to be able to speak to her recently. I’m
sure [J.X.’s counsel] would not be very happy if
I try to go talk to her right now and find out
what her current story is.

THE COURT: So your cross-examination would
be about sex happening, all the ledgers.
You’re trying to hold her responsible for
whatever may have happened if there was
anything untoward?

[XIA’S COUNSEL]: Exactly.

THE COURT: In other words, she would be
implicated in the pimping charge that’s being
brought against Mr. Xia at this time.

[XIA’S COUNSEL]: Potentially. I’m hoping
she’s going to say there was no pimping, . . . or
no sex going on. But -- I mean she’s going to
be asked about that very specific subject. I
guess time will tell what her answer will be if
we get to that.

4
THE COURT: So it’s your position that she
could get on the stand. You could ask her
benign questions. [Xia’s counsel] could
cross-examine her, and then she could plead
the Fifth.

[THE PROSECUTOR]: Yes.

THE COURT: Okay. All right. [J.X.’s counsel],
have you heard enough?

[J.X.’S COUNSEL]: Yes there’s no such thing
as a benign question in a criminal case.

THE COURT: Exactly. So every one of the
questions that’s asked of her given the opening
and the theories that I’ve heard through the
jury selection process as well as the motions
that I heard so far -- I mean, she could be, in
my opinion, charged with all of the things that
Mr. Xia [was] charged with as well as
conspiracy and other types of claims. I mean,
that seems incredibly evident to me today.

Do you disagree? I’m assuming that’s why the
People are not offering immunity.

[THE PROSECUTOR]: She’s been consistent.
We have not heard anything different from her,
otherwise we would have discovered it to the
[d]efense. She’s been consistent with the
account she gave the police, which is that she
was there working. I mean, . . . for all we
know, she’s a victim. And that’s what we
believe is that she’s a victim in this case. We
can’t prove that part because she never said
she was coerced or anything like that into this.

But I think that the fact that . . . she was being
walked back and forth every day, and he was

5
the only one with a car, the bank account --
and by “he” I mean Mr. Xia for the record. I
think that points to culpability for him. He
was in charge. He was the business owner.
He has the [sexual services website app] on his
phone. He had the pictures for escorts on his
phone. We don’t have anything like that
against her.

THE COURT: I understand that’s your theory
of the [p]rosecution. But the [d]efense has
already articulated that they will try to pin
everything on her to the extent that they’re
able to do that if the jury were to believe that
something untoward had been happening or
illegal had been happening at the Rose Day
Spa. So by asking those questions, aren’t you
implicating her Fifth Amendment right?

[THE PROSECUTOR]: Well, I think . . . that’s a
question for the Court. My opinion is that we
are not. . . .

[J.X.’S COUNSEL]: Judge, I think any little
piece of evidence or any answer from the
witness stand could compromise her Fifth
Amendment right in terms of a complicitor
theory, or conspiracy. Conspiracy is little
more difficult because I have to prove the
agreement by the complicitor. It sounds like
she’s familiar with the receipts of the business,
so it could easily spill over. I don’t think they
get to have it both ways. If they want the
testimony, then they have to give immunity. If
there’s no immunity, I’m likely to advise her
not to testify. It’s her decision, not mine, so I’ll
give her the advisement.

6
¶ 10 The court then ruled that, under People v. Dikeman, 555 P.2d

519, 520 (Colo. 1976), overruled by, Rios-Vargas v. People, 2023 CO

35, ¶ 3, if J.X. exercised her Fifth Amendment right to remain

silent, then she could not be called testify.1 Subsequently, J.X.’s

counsel advised her of her Fifth Amendment rights. That afternoon

her counsel informed the court that J.X. wanted to exercise her

right to remain silent and not testify. Based on that assertion, the

court confirmed that neither the prosecutor nor the defense was

going to call J.X. as a witness. J.X. did not testify at trial.

2. Preservation

¶ 11 The People contest whether Xia preserved this issue and, in

doing so, argue that Xia’s attorney failed to (1) object to J.X.’s Fifth

Amendment invocation; (2) object to the court’s ruling that this

invocation covers all of her testimony; and (3) include a precise

1 In footnote 2 in his opening brief, Xia addresses the supreme

court’s opinion overruling People v. Dikeman, 555 P.2d 519 (Colo.
1976). Xia asserts that he “is moving for a remand for the purpose
pursuing a Crim. P. 35(c)(1) motion to vacate the conviction given
this substantial change in the law that directly underscores the
violation of Mr. Xia’s constitutional rights, the prejudice to Mr. Xia
and the eradication of a fair trial.” But an application for a limited
remand must be sought in this court by motion, C.A.R. 27(a)(1),
and no such motion was ever received. Accordingly, we take no
action on footnote 2.

7
statement of preservation in the opening brief. In reply, Xia

argues — without a citation to the record — that his “[o]pening

[b]rief explicitly and in detail recounts the circumstances of the

errors and how and why they are preserved.” Our review of the

record reveals that, while the parties discussed J.X.’s possible

testimony and her invocation of her Fifth Amendment rights, Xia’s

counsel made no objections to her invocation of the Fifth

Amendment. Further, Xia’s counsel did not object to the trial

court’s ruling that her testimony would be subject to the Fifth

Amendment privilege or that a blanket prohibition on her testifying

was necessary. To the contrary, when the court asked defense

counsel, “And you’re not asking to call her as well?” counsel

responded that Dikeman “also covers the [d]efense.”

¶ 12 “To preserve an issue for appellate review, a party must make

a timely objection on the record, and that objection must be

‘specific enough to draw the trial court’s attention to the asserted

error.’” Forgette v. People, 2023 CO 4, ¶ 21 (citation omitted)

(quoting People v. Tallent, 2021 CO 68, ¶ 12). “[M]erely calling an

issue or fact to the court’s attention, without asking for any relief, is

insufficient to preserve an issue for review.” Id. at ¶ 23. Xia’s

8
counsel didn’t object or ask for any relief regarding this issue,

instead agreeing with the court’s reading of the case supporting its

ruling. Thus, this issue is unpreserved. See id. at ¶ 21.

3. Standard of Review and Applicable Law

¶ 13 We review de novo a claim that the government violated the

defendant’s constitutional right to present a defense. Rios-Vargas,

¶ 19. And we review all errors, “constitutional and

nonconstitutional, that were not preserved by objection for plain

error.” Hagos v. People, 2012 CO 63, ¶ 14. An error is plain if it is

“obvious and substantial.” Id. For an error to be obvious, it “must

[have] contravene[d] (1) a clear statutory command; (2) a

well-settled legal principle; or (3) Colorado case law” at the time of

trial. Scott v. People, 2017 CO 16, ¶ 16 (quoting People v. Pollard,

2013 COA 31M, ¶ 40); see People v. Crabtree, 2024 CO 40M, ¶ 72.

We reverse under plain error only if the error “so undermined the

fundamental fairness of the proceeding as to cast serious doubt on

the reliability of the judgment.” People v. Sepulveda, 65 P.3d 1002,

1006 (Colo. 2003); see Hagos, ¶ 14.

¶ 14 “The Fifth Amendment to the U.S. Constitution provides

protections against compulsory self-incrimination . . . .” Deleon v.

9
People, 2019 CO 85, ¶ 17. This privilege applies to nondefendant

witnesses “who are not required to answer questions ‘where the

answers might incriminate [them] in future criminal proceedings.’”

Rios-Vargas, ¶ 24 (quoting People v. Ruch, 2016 CO 35, ¶ 20).

¶ 15 “On the other hand, ‘[t]he right to offer the testimony of

witnesses, and to compel their attendance, if necessary, is in plain

terms the right to present a defense.’” People v. Smith, 275 P.3d

715, 720 (Colo. App. 2011) (quoting Washington v. Texas, 388 U.S.

14, 19 (1967)). But “[t]he right to present a defense is not absolute,

. . . and it ‘does not include the right to compel a witness to waive

his or her Fifth Amendment privilege.’” Id. (quoting People v. Coit,

50 P.3d 936, 938 (Colo. App. 2002)).

4. The Trial Court Did Not Plainly Err

¶ 16 Xia argues that the trial court erred by prohibiting J.X. from

testifying about matters that would not be subject to her Fifth

Amendment privilege, such as exculpatory statements that no

prostitution, pimping, or sexual services occurred at the Rose Spa.

In doing so, he relies on the supreme court’s observation in People

v. Austin that “[i]t is well settled that the privilege against

self-incrimination may not be asserted in advance of the questions

10
actually propounded,” 412 P.2d 425, 427 (Colo. 1966), and argues

that “[t]he court erred when it permitted and relied upon [J.X.’s]

blanket assertion of her [Fifth] Amendment right without ever

having her take the stand and posing relevant questions to her.”

¶ 17 Xia correctly sets forth this “basic proposition” espoused in

Austin and repeated often by the Colorado Supreme Court. See

Ruch, ¶ 23; Rios-Vargas, ¶ 25. But his reliance on this principle

standing alone disregards other relevant principles, such as the

inherent concerns about undue prejudice resulting from a party

highlighting a witness’s invocation of the Fifth Amendment. See

People v. Banks, 2012 COA 157, ¶ 20 (“One policy behind the

prohibition against asking a witness about invoking the privilege is

to prevent the jury from drawing a negative inference about the

witness’s character or credibility.”), aff’d in part, rev’d in part sub

nom., People v. Tate, 2015 CO 42, ¶ 20. And he doesn’t explain why

the trial court should have relied on Austin rather than Dikeman, a

more recent case. After all, the court in Dikeman noted that “[f]or

many years, it has been the rule of law in Colorado that the

prosecution may not call a witness to testify before the jury if it

knows that the witness will claim his privilege against self-

11
incrimination.” 555 P.2d at 520. And the court extended that

principle, holding that “the defense may not ask a defense witness

questions which it knows the witness will refuse to answer because

of a valid claim to a privilege not to testify.” Id.

¶ 18 It’s true that during the pendency of this appeal, the supreme

court decided Rios-Vargas, which held that a defendant is entitled

to question a nonparty alternate suspect who intends to invoke the

Fifth Amendment privilege and that such a witness cannot assert a

blanket privilege under the Fifth Amendment. Rios-Vargas, ¶ 44.

In so holding, the court overruled Dikeman’s longstanding bar to a

defense counsel asking a defense witness questions counsel knew

the witness would refuse because of the Fifth Amendment privilege.

Id. at ¶¶ 44-49. But as Xia admits, J.X. was not an alternate

suspect. And in any case, the court was not asked to make a

finding that there was a nonspeculative connection or nexus

between J.X. and the crime charged, a required prerequisite to

admit alternate suspect evidence. See People v. Elmarr, 2015 CO

53, ¶ 23.

¶ 19 Regardless, the supreme court affirmed its prohibition on the

prosecution calling a witness who intends to invoke the Fifth

12
Amendment. See Rios-Vargas, ¶ 44. And that is the scenario that

occurred here. At trial, the prosecutor sought to call J.X. to the

stand, and the court prohibited her from testifying after it

determined that the parties’ anticipated questions would implicate

her Fifth Amendment rights. In doing so, the trial court did not err.

See id. (“[W]e affirm that the prosecution may not call a witness who

intends to invoke the Fifth Amendment.”).

¶ 20 To the extent that Xia argues that the court’s ruling implicated

his right to call J.X. as a witness in his defense, his attorney

explicitly declined to call J.X. as a witness at trial. He cannot now

claim that the court prohibited him from questioning a witness that

he never sought to call. See People v. Geisick, 2016 COA 113, ¶ 16

(“When a party specifically removes issues from a trial court’s

consideration, the party has waived those issues and we may not

review them on appeal.”).

¶ 21 Even if the trial court’s blanket prohibition against J.X.

testifying would be in error under Rios-Vargas today, any such error

was not plain when the trial court made it. As Xia acknowledges,

relief under the plain error rule is only available “if the error is plain

at the time it is made.” Crabtree, ¶ 72. But that is not the case

13
here. At the time of trial, Dikeman was controlling precedent, and

the trial court was obligated to follow it. See Scott, ¶ 17. Dikeman

prohibited a defendant from “call[ing] a witness, when it is known

that the witness will claim a valid privilege not to testify, for the

purpose of impressing upon the jury the fact of the claim of

privilege.” Dikeman, 555 P.2d at 521. The trial court’s ruling didn’t

contravene a clear statutory command, a well-settled legal principle,

or Colorado case at the time it was made. Therefore, the error was

not obvious. See Scott, ¶ 16.

¶ 22 Thus, the trial court did not plainly err by prohibiting the

prosecution or Xia, to the extent it even did so, from calling J.X.

B. The Request for a Jury Instruction

¶ 23 Xia next contends that the trial court erred by failing to give a

judicial notice jury instruction that J.X. had asserted her Fifth

Amendment privilege and was refusing to testify. We again

disagree.

1. Standard of Review

¶ 24 We review de novo “whether the [jury] instructions accurately

informed the jury of the governing law.” People v. DeGreat, 2018

CO 83, ¶ 15. However, we review a trial court’s decision to give a

14
particular jury instruction for an abuse of discretion. People v.

Manyik, 2016 COA 42, ¶ 65. The court abuses its discretion when

its ruling is “manifestly arbitrary, unreasonable, or unfair, or if it

misconstrues or misapplies the law.” People v. Quillen, 2023 COA

22M, ¶ 14.

2. The Trial Court Did Not Abuse Its Discretion
by Denying Xia’s Proposed Jury Instruction

¶ 25 On the third day of Xia’s jury trial, his attorney requested that

the court instruct the jury that J.X. “took the Fifth, and is refusing

to testify.” The trial court gave counsel a day to find legal support

for his request, and the next day, he renewed his request, relying on

Chambers v. Mississippi, 410 U.S. 284 (1973).

¶ 26 Xia argues that we should look to the civil context for guidance

on whether the court should provide a jury instruction about a

nonparty witness’s invocation of the Fifth Amendment privilege.

See McGillis Inv. Co., LLP v. First Interstate Fin. Utah LLC, 2015 COA

116, ¶ 36. But it is well-settled law that we treat jury instructions

about a witness’s invocation of the Fifth Amendment differently in

civil and criminal cases. As a division of this court has

summarized,

15
It is reversible error in a criminal case to
instruct a jury that it may draw an inference of
guilt from a defendant’s failure to testify about
facts relevant to his case. . . . However, “the
Fifth Amendment does not forbid adverse
inferences against parties to civil actions when
they refuse to testify in response to probative
evidence offered against them.”

Asplin v. Mueller, 687 P.2d 1329, 1331 (Colo. App. 1984) (citation

omitted) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)).

While it’s true that Asplin and Baxter contemplate the testimony of

a party witness, McGillis draws its nonparty witness rule directly

from Asplin’s party witness rule without in any way questioning the

well-settled differences between civil and criminal cases. See

McGillis, ¶ 27.

¶ 27 Additionally, because Xia’s counsel did not call — or seek to

call — J.X. to testify, she was not a nonparty witness, or indeed a

witness at all. Without having seen her testify, the jury had no

exposure to J.X. The only information they would receive about her

would have been the instruction that she had invoked her Fifth

Amendment privilege. Instructing the jury in this manner would

constitute a credibility attack on a potential witness who has not

even testified. See Banks, ¶ 20 (“One policy behind the prohibition

16
against asking a witness about invoking the privilege is to prevent

the jury from drawing a negative inference about the witness’s

character or credibility.”). And a defendant cannot introduce

evidence for the sole purpose of impeaching the credibility of a

person who is not a witness for the prosecution. See Hall v. People,

35 P. 44, 44 (Colo. 1893). Xia’s request was an attempt to

accomplish the same impermissible purpose.

¶ 28 Thus, the trial court’s refusal to instruct the jury about J.X.’s

invocation of her Fifth Amendment rights was not manifestly

arbitrary, unreasonable, unfair, or a misapplication of the law. As a

result, it was not an abuse of discretion. See Quillen, ¶ 14.

C. The Recorded Statements

¶ 29 Lastly, Xia argues that the trial court violated his right to due

process and to present a defense when it prohibited the

introduction of J.X.’s and J.F.’s recorded statements to the jury. In

doing so, he also argues that the court should have allowed the

17
introduction of the recorded statements because, while hearsay,

they bore indicia of reliability and trustworthiness.2 We disagree.

1. Preservation

¶ 30 The People agree that Xia preserved the issue insofar as his

counsel sought to introduce the statements at trial. However, the

People assert that he presents his argument — that the statements

were admissible given their indicia of reliability or

trustworthiness — for the first time on appeal. We agree with the

People. Xia’s attorney made the substance of his constitutional

argument to the trial court, so that argument is preserved. But his

hearsay exception argument is not.

¶ 31 During trial, the court and the parties engaged in the following

colloquy:

[XIA’S COUNSEL]: . . . In lieu of [the defense’s
proposed Fifth Amendment instruction], I
guess I would ask to allow [J.X.’s] complete,
unredacted statement -- which, of course,
would be hearsay. I understand. But I would
argue it’s exculpatory. And, frankly, what
she’s saying is there was no sex, no pimping or
prostitution, or anything of that nature. It also

2 Xia’s briefing doesn’t invoke CRE 807, the residual exception to

the hearsay rule that allows for the introduction of evidence that
has “circumstantial guarantees of trustworthiness.” Regardless,
this is the evidentiary exception on which his argument relies.

18
helps put into light and clarify some of the
evidence yesterday about her possibly being a
victim. And basically I think her statement
would show she’s not a victim. So I am
requesting that.

The same thing with as far as the other
witness, [J.F.]

¶ 32 Our review of the record reveals that Xia’s counsel did not

raise his reliability argument or invoke CRE 807 — either in name

or in substance — in the trial court. While acknowledging that the

statements were hearsay, counsel only argued why they were

useful, not that they were nonetheless admissible because they

were reliable and trustworthy. Thus, this contention is

unpreserved. See Phillips v. People, 2019 CO 72, ¶ 12 (“To preserve

a claim for review on appeal, the party claiming error must have

supplied the right ground for the request.” (quoting Novak v.

Craven, 195 P.3d 1115, 1120 (Colo. App. 2008) (alteration

omitted))).

2. Standard of Review and Applicable Law

¶ 33 “We review all evidentiary rulings for an abuse of discretion.”

People v. Abad, 2021 COA 6, ¶ 8. “A trial court abuses its

19
discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair, or if it misapplies the law.” Id.

¶ 34 “[O]nly errors that specifically and directly offend a defendant’s

constitutional rights are ‘constitutional’ in nature.” Wend v. People,

235 P.3d 1089, 1097 (Colo. 2010). We review an evidentiary ruling

for constitutional harmless error only when, under the

circumstances of the case at hand, it “effectively barred the

defendant from meaningfully testing evidence central to

establishing his guilt.” Krutsinger v. People, 219 P.3d 1054, 1062

(Colo. 2009).3 However, we review an evidentiary error that does

not deny a defendant “virtually his only means of effectively testing

significant prosecution evidence” for nonconstitutional harmless

error. Id. at 1062-63. Additionally, we review Xia’s unpreserved

indicia of reliability argument for plain error. See Hagos, ¶ 14.

¶ 35 An otherwise inadmissible hearsay statement

having equivalent circumstantial guarantees of
trustworthiness, is not excluded by the

3 Xia argues that Krutsinger v. People, 219 P.3d 1054 (Colo. 2009),

was wrongly decided and that we should not follow it. But
Krutsinger considered the United States Supreme Court Supreme
Court precedent on which Xia relies, and all of the cases he cites
predated Krutsinger. Under these circumstances, we decline to
second-guess that decision.

20
hearsay rule, if the court determines that
(A) the statement is offered as evidence of a
material fact; (B) the statement is more
probative on the point for which it is offered
than any other evidence which the proponent
can procure through reasonable efforts; and
(C) the general purposes of these rules and the
interests of justice will best be served by
admission of the statement into evidence.
However, a statement may not be admitted
under this exception unless the proponent of it
makes known to the adverse party sufficiently
in advance of the trial or hearing to provide the
adverse party with a fair opportunity to
prepare to meet it, the proponent’s intention to
offer the statement and the particulars of it,
including the name and address of the
declarant.

CRE 807.

3. The Trial Court Did Not Err By
Rejecting the Recorded Statements

¶ 36 Xia admits that the evidence he sought to introduce —

recordings of J.X.’s and J.F.’s statements to the police that no

prostitution was occurring at the Rose Spa — is hearsay. But he

argues that his constitutional right to present a defense trumps the

rules of evidence.

¶ 37 It’s true that “[f]ew rights are more fundamental than the right

of the accused to put before the jury evidence that might influence

the determination of guilt.” People v. Scearce, 87 P.3d 228, 233

21
(Colo. App. 2003). “However, the right to present a defense is not

absolute. Ordinarily, it requires only that the accused be permitted

to introduce all relevant and admissible evidence.” Id. (citations

omitted). “Thus, the right to present a defense does not guarantee a

defendant a right to question witnesses in violation of the rules of

evidence or to produce inadmissible hearsay.” Id.

¶ 38 Xia relies on Chambers v. Mississippi, 410 U.S. 284, 302

(1973), in support of his constitutional argument. But that reliance

is misplaced. In that case, the United States Supreme Court

concluded that “the exclusion of [a piece of] critical evidence,

coupled with the State’s refusal to permit [the defendant] to

cross-examine [a witness], denied him a trial in accord with

traditional and fundamental standards of due process.” Id. But

unlike the Mississippi evidentiary rules at issue in Chambers,

Colorado’s Rule 807 does provide a pathway for the admission of

reliable but otherwise hearsay evidence. Xia’s counsel just never

asked the court to apply that rule or any other hearsay exception.

See CRE 803, 804. And unlike the defendant in Chambers, Xia’s

attorney never attempted to call and question J.X. or J.F. as

witnesses on Xia’s behalf. So we can’t say on this record that Xia

22
was denied “a trial in accord with traditional and fundamental

standards of due process.” Chambers, 410 U.S. at 302.

¶ 39 Lastly, Xia argues that the court should have sua sponte

admitted the recorded statements as trustworthy under a hearsay

exception his counsel didn’t raise. But Xia doesn’t explain on

appeal why the error should have been obvious to the trial court.

Rule 807 contains multiple requirements that must be satisfied

before a court can admit otherwise inadmissible hearsay, many of

which are inherently factual. For example, the rule requires that

“the statement is more probative on the point for which it is offered

than any other evidence which the proponent can procure through

reasonable efforts.” CRE 807. Xia doesn’t explain on appeal how

this requirement is satisfied, and he doesn’t explain why the trial

court should have divined that fact without the benefit of argument.

This is particularly true for two witnesses whose testimony the trial

court hadn’t even heard.

¶ 40 On this record, then, we perceive no abuse of discretion or

plain error in the trial court’s exclusion of J.X.’s and J.F.’s recorded

statements.

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III. Disposition

¶ 41 The judgment is affirmed.

JUDGE J. JONES and JUDGE MOULTRIE concur.

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