Peo v. Rafaela-Ramirez

23CA1752 Peo v Rafaela-Ramirez 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1752
Adams County District Court No. 21CR3805
Honorable Jeffrey Smith, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dante Alberto Rafaela-Ramirez,

Defendant-Appellant.

JUDGMENT AFFIRMED AND CASE
REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE HARRIS
Johnson and Schock, JJ., concur

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

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Andrea R. Gammell, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 After defendant, Dante Alberto Rafaela-Ramirez, assaulted his

long-time partner, M.C., the prosecution charged him with second

degree kidnapping, sexual assault, unlawful sexual contact, and

third degree assault.

¶2 At trial, M.C. testified that, on the night of the incident, she and

Rafaela-Ramirez, who were in the process of ending their

relationship, had an argument, and she left the house. She said

that he dragged her back inside, forced her into a bedroom, and

sexually assaulted her, including vaginally penetrating her. A

sexual assault examination revealed bruising on M.C. but did not

yield any DNA evidence linking Rafaela-Ramirez to the assault.

¶3 The jury acquitted Rafaela-Ramirez of sexual assault but

convicted him of the remaining charges.

¶4 On appeal, Rafaela-Ramirez argues that the trial court erred by

using the 2022 model reasonable doubt instruction, denying his

motion for a mistrial after certain evidence was introduced, and

issuing an inaccurate mittimus.

¶5 We affirm the judgment and remand for correction of the

mittimus.

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I. Jury Instruction on Reasonable Doubt

¶6 Before 2022, the Colorado model jury instruction defined

reasonable doubt as follows:

Reasonable doubt means a doubt based upon
reason and common sense which arises from a
fair and rational consideration of all of the
evidence, or the lack of evidence, in the case.
It is a doubt which is not a vague, speculative
or imaginary doubt, but such a doubt as
would cause reasonable people to hesitate to
act in matters of importance to themselves.

COLJI-Crim. E:03 (2021).

¶7 In 2022, the model instruction was substantially revised:

Every person charged with a crime is
presumed innocent. This presumption of
innocence remains with the defendant
throughout the trial and should be given effect
by you unless, after considering all the
evidence, you are convinced that the defendant
is guilty beyond a reasonable doubt.

The burden of proof in this case is upon the
prosecution. The prosecution must prove to
the satisfaction of the jury beyond a
reasonable doubt the existence of each and
every element necessary to constitute the
crime charged. This burden requires more
than proof that something is highly probable,
but it does not require proof with absolute
certainty.

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of the

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defendant’s guilt, then the prosecution has
proven the crime charged beyond a reasonable
doubt. But if you think there is a real
possibility that the defendant is not guilty,
then the prosecution has failed to prove the
crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide
the prosecution has proven each of the
elements of a crime charged beyond a
reasonable doubt, you should find the
defendant guilty of that crime.

After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements of a crime charged
beyond a reasonable doubt, you should find
the defendant not guilty of that crime.

COLJI-Crim. E:03 (2022).

¶8 The trial court denied Rafaela-Ramirez’s requests that it give the

2021 instruction and instead instructed the jury on reasonable

doubt using the 2022 model instruction.

¶9 Rafaela-Ramirez contends that the 2022 instruction

impermissibly lowered the prosecution’s burden of proof, undercut

the presumption of innocence, and shifted the burden of proof to

him. We disagree.

A. Standard of Review

¶ 10 The trial court must properly instruct the jury on the reasonable

doubt standard. Tibbels v. People, 2022 CO 1, ¶ 25. Whether the

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court’s instruction lowered the prosecution’s burden of proof is a

question of law that we review de novo. Id. at ¶ 22. “An instruction

that lowers the prosecution’s burden of proof below reasonable

doubt constitutes structural error and requires automatic reversal.”

Johnson v. People, 2019 CO 17, ¶ 8.

B. Analysis

¶ 11 While this appeal was pending, two divisions of this court

considered similar challenges to the 2022 model reasonable doubt

instruction. See People v. Melara, 2025 COA 48, ¶¶ 22-23; People v.

Schlehuber, 2025 COA 50, ¶¶ 16-17. Both divisions concluded that

the 2022 instruction did not lower the prosecution’s burden of proof

below the reasonable doubt standard. Melara, ¶ 24; Schlehuber,

¶ 20. We agree with those cases, and adopt the divisions’ reasoning

to resolve Rafaela-Ramirez’s arguments as follows:

• The 2022 model instruction’s omission of the specific language

directing the jury that it may consider “the lack of evidence”

does not lower the prosecution’s burden of proof because the

instructions as a whole inform the jury that “if the prosecution

fails to present sufficient evidence of guilt, it will not have met

its burden.” Schlehuber, ¶¶ 19, 22; see Melara, ¶ 24.

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• Though Colorado courts previously approved the “hesitate to

act” phrase, Rafaela-Ramirez does not explain why the deletion

of that phrase lowers the prosecution’s burden of proof. We

agree with the Schlehuber division that the omission of the

phrase clarifies the reasonable doubt standard by

discouraging courts from using analogies to explain it. See

Schlehuber, ¶ 27.

• Defining proof beyond a reasonable doubt as proof that leaves

jurors “firmly convinced” of the defendant’s guilt and

reasonable doubt as “a real possibility that the defendant is

not guilty” does not lower the prosecution’s burden of proof.

COLJI-Crim. E:03 (2022). “The phrase ‘firmly convinced’

correctly connotes a standard of ‘near certitude,’” Schlehuber,

¶ 31 (quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)),

while the phrase “real possibility” correctly requires the

prosecution to dispel any legitimate possibility the defendant

is not guilty, “not just a serious or substantial one,” id. at

¶ 32.

• Considering the reasonable doubt instruction as a whole, we

perceive no cumulative error because there is not a reasonable

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likelihood that the instruction would “allow a conviction based

on a standard lower than beyond a reasonable doubt.” Id. at

¶ 13 (quoting Tibbels, ¶ 36).

¶ 12 Accordingly, we discern no error in the court’s decision to give

the 2022 model instruction.

II. Denial of the Request for a Mistrial

¶ 13 During the police investigation, M.C. showed a victim’s advocate

and a police officer several text messages that she had received

from Rafaela-Ramirez, all of which were in Spanish. One of the text

messages — as translated by the victim’s advocate — said, “Thank

you for everything and for real I’m sorry about last night I don’t

know what happened. I feel sorry.” The officer included the

content of the translated apology text message in a report provided

to Rafaela-Ramirez.

¶ 14 On the first day of trial, defense counsel challenged the

admissibility of the apology text, asserting that the text message

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itself had not been turned over,1 the translated text message as

documented in the officer’s report would constitute hearsay, and

the message might have been mistranslated. Though the court was

not convinced that, if offered through M.C., the text message was

hearsay, the prosecution ultimately agreed not to introduce or elicit

testimony about the apology text.

¶ 15 Nonetheless, over defense counsel’s objection, the officer testified

during her direct examination that while she was at M.C.’s home,

Rafaela-Ramirez “had sent [M.C.] a text stating he was sorry about

the prior night.”

¶ 16 Immediately after this statement, the prosecutor asked to

approach the bench and explained that she now recalled the

prosecution’s agreement not to introduce the apology text, and she

suggested that the court strike the officer’s reference to the text.

Defense counsel, on the other hand, requested a mistrial.

1 The text message had actually been produced to the defense

shortly before trial. In an initial disclosure, part of the text message
was cut off, but, at defense counsel’s request, the prosecutor later
emailed photographs of three texts, including the apology text.
Defense counsel confirmed that she received the email, but she
acknowledged that she failed to open the attachments containing
the text messages.

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¶ 17 The court did not see “what purpose a mistrial . . . would serve”

because the apology text message existed, it had been disclosed to

the defense, and it would be admissible at a retrial. As an

alternative remedy, the court suggested that the defense could

recall M.C. to question her about the text, but defense counsel

rejected that proposal. She told the court that if it was “not inclined

to grant a mistrial,” she concurred in the prosecution’s proposal to

strike the offending testimony. Thereafter, the court gave the jury

the following instruction: “You are instructed to disregard the

witness’s last answer about a text message. It cannot be considered

for any purpose.” At defense counsel’s request, the court reiterated

its admonition in the final jury instructions as follows: “If I told you

not to consider a particular statement that was made during the

trial, you must not consider it in your deliberations. Any

statements stricken from the record cannot be considered for any

purpose.”

¶ 18 Rafaela-Ramirez contends that the trial court erred by denying

his motion for a mistrial because the curative instruction was

insufficient to remedy the prejudicial effect of the officer’s

testimony. We disagree.

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A. Standard of Review and Applicable Law

¶ 19 Because the trial court is in a better position to evaluate any

adverse effects of improper testimony on a jury, it has broad

discretion to determine whether a mistrial is warranted. People v.

Williams, 2012 COA 165, ¶ 13. Accordingly, we review the trial

court’s denial of a motion for a mistrial under a deferential abuse of

discretion standard. People v. Owens, 2024 CO 10, ¶ 125. A court

abuses its discretion only if its decision is manifestly arbitrary,

unreasonable, or unfair. People v. Miller, 2024 COA 66, ¶ 40.

¶ 20 “Generally, an error in the admission of evidence may be cured

by withdrawing the evidence from the jury’s consideration and

instructing the jury to disregard it.” Vigil v. People, 731 P.2d 713,

716 (Colo. 1987). Absent evidence to the contrary, we presume that

the jury understands and will follow a trial court’s curative

instructions. Owens, ¶ 128 (citing Bloom v. People, 185 P.3d 797,

805 (Colo. 2008)). Thus, a mistrial, “the most drastic of remedies,”

should be granted only “where the prejudice to the accused is too

substantial to be remedied by other means,” including a curative

instruction. People v. Abbott, 690 P.2d 1263, 1269 (Colo. 1984);

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People v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009), aff’d sub nom.,

People v. Simon, 266 P.3d 1099 (Colo. 2011).

B. Analysis

¶ 21 The crux of Rafaela-Ramirez’s argument is that the apology text

was essentially a confession to the charges, and, as such, its

introduction created such extreme prejudice that the curative

instruction was necessarily ineffective. We reject that argument for

several reasons.

¶ 22 First, we do not construe the text message as a confession to a

crime. Rafaela-Ramirez’s statement that he was “sorry about the

prior night” did not admit any fact necessary to prove any of the

charges. See Jones v. People, 360 P.2d 686, 690 (Colo. 1961) (“A

confession is an acknowledgment in express words, by the accused

in a criminal case, of the truth of the guilty fact charged or of some

essential part of it.” (quoting Bruner v. People, 156 P.2d 111, 117

(Colo. 1945))).

¶ 23 At most, the text message implied only that Rafaela-Ramirez had

done something wrong or regrettable. See People v. Salas, 2017

COA 63, ¶ 15 (mistrial was not warranted by witness’s

“ambiguous[]” statement that the defendant was involved in “court

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proceedings on an alcohol problem”). But at trial, that much was

not seriously disputed. Two of M.C. and Rafaela-Ramirez’s teenage

children testified, unchallenged, that on the night of the incident,

when M.C. tried to leave the house, Rafaela-Ramirez dragged her

back inside by her hair and pushed her into the bedroom, while she

begged him to stop. The defense’s theory was not that the children

had lied or misinterpreted the situation; it was that the children’s

testimony was mostly irrelevant because they had not “see[n] what

happened in th[e] bedroom,” so they could not corroborate M.C.’s

testimony about the actual contested charges — the sexual assault

and unlawful sexual contact counts. On this record, we cannot say

that the text message was “so prejudicial that, but for its exposure,

the jury might not have found the defendant guilty” of any charge.

People v. Anderson, 183 P.3d 649, 652 (Colo. App. 2007).

¶ 24 Second, because the text fell short of a confession to a crime, it

was not so prejudicial as to overcome the presumption that the jury

was able to follow the court’s instruction to disregard the officer’s

testimony about it. See Qwest Servs. Corp. v. Blood, 252 P.3d 1071,

1091 (Colo. 2011) (“The circumstances are . . . rare where we . . .

will depart from the presumption that a jury follows a court’s

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curative instructions.”); People v. Pernell, 2014 COA 157, ¶ 44

(concluding that the trial court did not err by denying the

defendant’s request for a mistrial after a witness testified that the

defendant “confessed” to the crime because “a jury is presumed to

have followed a curative instruction to disregard improper

testimony or statements”), aff’d on other grounds, 2018 CO 13.

¶ 25 Third, as the trial court noted, and as Rafaela-Ramirez

acknowledges on appeal, the text message would likely be

admissible at a retrial. Under these circumstances, we share the

trial court’s skepticism that a mistrial would serve any legitimate

purpose. See Doumbouya v. Cnty. Ct., 224 P.3d 425, 430 (Colo.

App. 2009) (collecting cases finding no manifest necessity for

mistrial following exposure to likely admissible evidence); State v.

Seefeldt, 2003 WI 47, ¶¶ 40-41 (court abused its discretion by

granting a mistrial based on counsel’s introduction of evidence in

violation of a pretrial order when the evidence was otherwise “likely

admissible”).

¶ 26 Rafaela-Ramirez’s concession about the text’s admissibility also

undercuts his general prejudice argument. If the text is admissible

notwithstanding its prejudicial effect, then its prejudicial effect

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cannot necessitate a mistrial. Rafaela-Ramirez counters that at a

retrial where the text would be admitted, counsel would at least

have sufficient notice to contest its translation. But that argument

is unpersuasive too because a possible mistranslation was already a

basis for excluding the text message at trial. Yet, when the court

offered counsel the opportunity to cross-examine M.C. about the

message, counsel declined and opted for the curative instruction

instead.

¶ 27 For these reasons, we conclude that the trial court properly

exercised its broad discretion in denying the request for a mistrial.

III. Correction of the Mittimus

¶ 28 The mittimus incorrectly states that Rafaela-Ramirez’s

convictions were the result of guilty pleas. The parties agree, and

we concur, that the mittimus must be corrected to reflect that

Rafaela-Ramirez was convicted on jury verdicts. See People v.

Wood, 2019 CO 7, ¶¶ 39-40 (clerical errors in the mittimus should

be corrected pursuant to Crim. P. 36 “to ensure that judgments and

sentences are documented accurately”). Accordingly, we remand

the case to the district court for correction of the mittimus.

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IV. Disposition

¶ 29 The judgment is affirmed. The case is remanded to the trial

court for correction of the mittimus.

JUDGE JOHNSON and JUDGE SCHOCK concur.

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