Peo v. Fletcher

23CA0341 Peo v Fletcher 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0341
Mesa County District Court No. 22CR187
Honorable Gretchen B. Larson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dwight Jay Fletcher,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI
Opinion by JUDGE WELLING
Gomez and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Zoë Kirchoff, Assistant Attorney
General Fellow, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant-Appellant, Dwight Jay Fletcher, appeals his

convictions of driving under the influence, driving under

restraint — alcohol related, possession of a controlled substance,

possession of drug paraphernalia, reckless driving, failure to

display headlamps, and lane usage violation. We affirm the

judgment of conviction.

I. Background

¶2 On December 11, 2021, police officers responded to a report

that a car had crashed into a light pole. Witnesses reported seeing

a man get out of the driver’s seat and flee the scene. Shortly after

arriving at the scene, Sergeant Steele1 and Officer David Keech

made contact with a person matching a description of the person

who fled the scene. This person was Fletcher.

¶3 Fletcher admitted to owning the car and to drinking that day.

Fletcher claimed, however, that he wasn’t driving the car when it

crashed but couldn’t provide much information about the alleged

driver. A witness told the police that she was “80% sure” that

1 The record doesn’t reveal Sergeant Steele’s first name.

1
Fletcher was the driver who had fled the scene. Fletcher was

arrested one street away from where the accident had occurred.

¶4 Fletcher was charged with two drug crimes, two alcohol-

related driving offenses, and numerous moving violations. One of

the charges was felony driving under the influence (DUI) in violation

of section 42-4-1301(1)(a), C.R.S. 2025. “[DUI] is a misdemeanor,

but it is a class 4 felony if the violation occurred after three or more

prior convictions, arising out of separate and distinct criminal

episodes, for DUI, DUI per se, or [driving while ability impaired

(DWAI)].” Id.

¶5 Ahead of trial, Fletcher filed a motion requesting a bifurcated

trial for the prior conviction element of the felony DUI charge. The

trial court denied his motion, citing case law disallowing bifurcation

when the prior convictions are an element of the charged offense.

¶6 Trial was held over four days in November 2022. At trial,

Fletcher argued that he wasn’t the driver of the car. To establish

that Fletcher had three or more previous DUI convictions, the

prosecution admitted five certified court records of DUI convictions

and a Division of Motor Vehicles (DMV) record — all belonging to a

Dwight Jay Fletcher.

2
¶7 The prosecution rested on the third day of trial and Fletcher

filed a motion for judgment of acquittal. Fletcher argued that the

prosecution had failed to meet its burden of proof, beyond a

reasonable doubt, that Fletcher had three or more previous DUI

convictions. Specifically, Fletcher argued that the prosecution

failed to admit sufficient evidence to establish an essential link

between him and the prior convictions. The trial court said it was

“an extremely close case” but denied Fletcher’s motion, finding that

self-certifying court documents and the DMV record admitted into

evidence provided sufficient evidence to establish the essential link

between Fletcher and the prior convictions.

¶8 The defense rested on the fourth day of trial, and the jury

started deliberating. After seven hours of deliberation, and a jury

question about how to proceed if they couldn’t reach a unanimous

verdict, the trial court gave the jury a modified-Allen instruction,

which is “a supplemental jury instruction designed to encourage,

but not coerce, a deadlocked jury into reaching a unanimous

verdict.” Fain v. People, 2014 CO 69, ¶ 2 (citing Allen v. People, 660

P.2d 896 (Colo. 1983)).

3
¶9 After further deliberations, the jury was dismissed late in the

evening. The jury returned after a three-day holiday weekend.

After an additional thirty minutes of deliberation, the jury found

Fletcher guilty on all counts.

II. Analysis

¶ 10 Fletcher raises three issues on appeal. First, he contends that

the prosecution failed to prove beyond a reasonable doubt that he

had three or more previous convictions, an essential element of

felony DUI. Second, he contends that the trial court coerced the

jury’s guilty verdict by giving them improper instructions. Third, he

contends that the trial court erred when it denied his motion to

bifurcate the trial. For the reasons set forth below, we reject all

three contentions and, therefore, affirm.

A. Sufficiency of Prior Conviction Evidence

¶ 11 Fletcher first contends that the prosecution didn’t present

sufficient evidence to prove, beyond a reasonable doubt, his identity

as the perpetrator of the underlying previous DUI convictions. We

disagree.

4
1. Additional Facts

¶ 12 At trial, the prosecution admitted a certified DMV record for a

“Dwight Jay Fletcher,” with a birthdate of July 1, 1965. The DMV

records custodian averred in a records affidavit that a search of

DMV records “revealed that this is the only subject with this name

and date of birth.” The DMV record also included a physical

description — based on applicant-provided information submitted

to the DMV for a driver’s license issued in 2017. The physical

description included the subject’s sex (male), height (5′11″),

weight (165 pounds), hair color (brown), and eye color (hazel).

Lastly, the DMV record listed three DUI convictions:

(1) a January 23, 2002, conviction for driving a vehicle while

under the influence of alcohol or drugs in Mesa County,

Colorado;

(2) October 17, 2002, convictions for driving under

restraint — alcohol related offense and driving a vehicle

while under the influence of alcohol or drugs in Mesa

County, Colorado; and

(3) a March 1, 2004, conviction for driving under the

influence of alcohol or drugs in Mesa County, Colorado.

5
¶ 13 The prosecution also introduced into evidence five self-

authenticating court records of DUI convictions for a “Dwight Jay

Fletcher,” with a birthdate of July 1, 1965.2 Two of the five

admitted certified court documents described offenses that occurred

in Washington state, while the remaining three detailed offenses

that occurred in Mesa County, Colorado. Among other moving

violations, the Mesa County court documents included the following

convictions:

(1) January 23, 2002, convictions for DUI and DUI per se;

(2) October 17, 2002, convictions for DUI and driving under

restraint — alcohol related offense; and

(3) March 1, 2004, convictions for DUI and DUI per se.

¶ 14 Additionally, Officer Keech identified Fletcher during his trial

testimony. Officer Keech described Fletcher as “[t]he gentleman

with the gray hair [and] gray beard sitting at the Defendant’s table[;]

his appearance has changed dramatically from 11 months ago, but

the features are still the same. It’s still Mr. Fletcher.”

2 One of the Washington state court records didn’t include a date of

birth but instead listed the subject’s age as forty-seven on
January 18, 2013. This age on that date aligns with a birthdate in
1965.

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2. Standard of Review and Applicable Law

¶ 15 We review the record de novo to determine whether the

evidence presented by the prosecution was sufficient in quantity

and quality to sustain a conviction. Clark v. People, 232 P.3d 1287,

1291 (Colo. 2010). We employ a “substantial evidence test,” id.,

where we ask if the evidence, “when viewed as a whole and in the

light most favorable to the prosecution, is substantial and sufficient

to support a conclusion by a reasonable mind that the defendant is

guilty of the charge beyond a reasonable doubt.” Id. (quoting People

v. Bennett, 515 P.2d 466, 469 (Colo. 1973)). It doesn’t matter if we

would have reached a different conclusion as the trier of fact; we

must “give the prosecution the benefit of every reasonable inference

which might be fairly drawn from the evidence.” Gorostieta v.

People, 2022 CO 41, ¶ 17 (quoting People v. Harrison, 2020 CO 57,

¶ 32); accord People v. Perez, 2016 CO 12, ¶ 25.

¶ 16 To convict a defendant of felony DUI, the prosecution must

prove, among other elements, that the defendant has “three or more

prior convictions, arising out of separate and distinct criminal

episodes, for DUI, DUI per se, or DWAI.” § 42-4-1301(1)(a).

7
[I]n order for the prosecution to prove a
defendant’s identity in such a case, the
prosecution must establish an essential link
between the prior conviction and the
defendant. This, in turn, requires the
prosecution to present some documentary
evidence combined with specific corroborating
evidence of identification connecting the
defendant to the prior felony conviction.

Gorostieta, ¶ 2.

¶ 17 Simply sharing the “same name and date of birth, without

more, will generally be insufficient” to establish this essential link

between a defendant and a prior conviction. Id. at ¶ 28. In

Gorostieta, the supreme court provided a nonexhaustive list of

acceptable corroborating evidence:

(1) evidence specifically identifying the
defendant; (2) unique identifiers such as a
driver license, prison identification number, or
social security number; (3) photographs or
fingerprints from the prior case that link that
case to the current defendant; (4) a physical
description from the prior case that can be
compared to the defendant in the present case;
(5) distinguishable features of the defendant
such as tattoos; or (6) testimony of probation
officers or others with personal knowledge
positively identifying the defendant as being
the same person who had previously been
convicted.

Id. at ¶ 27.

8
3. Application

¶ 18 In Gorostieta, the prosecution introduced evidence of the

defendant’s name and date of birth. Id. at ¶ 30. The prosecution

also admitted self-authenticating court records of the prior

convictions. Id. The court records contained a physical description

of the defendant (height, weight, eye color, hair color, and ethnicity),

which the court said the “jury would have been able to compare to

Gorostieta’s appearance at trial.” Id. Further, the prior convictions

occurred in the same county as the case being tried. Id.

¶ 19 The Gorostieta court noted that the prosecution could have

easily introduced photos, fingerprints, unique identifiers, or

witnesses with knowledge of the defendant from the previous

convictions, but it didn’t. Id. at ¶ 31. Notwithstanding this

shortcoming, the court concluded that while the evidence was

“perhaps thin, the prosecution produced sufficient documentary

evidence combined with specific corroborating evidence to establish

the requisite essential link between the prior conviction and

Gorostieta.” Id. at ¶ 32.

¶ 20 The evidence admitted against Fletcher matches the admitted

evidence in Gorostieta. Here, the prosecution introduced self-

9
authenticating court records of three prior DUI convictions, all for

an individual with the same name and date of birth as Fletcher.

The three Mesa County convictions occurred in the same county as

the present case, “which arguably made it less likely that the

defendant in the prior case was a different person.” Id. at ¶ 30.

The prosecution also introduced a DMV record that matched

Fletcher’s name and date of birth and included a physical

description which the jury could have compared to Fletcher’s

appearance at trial. Id.

¶ 21 Fletcher argues that his appearance at trial didn’t match the

description in the DMV record. Fletcher cites Officer Keech’s trial

testimony describing Fletcher as “[t]he gentleman with the gray hair

[and] gray beard,” (emphasis added), while the DMV records

identified him as having brown hair. Hair color, however, is a

changing and readily changeable characteristic. The rest of Officer

Keech’s testimony identifying Fletcher exemplifies this, noting that

Fletcher’s appearance had changed in the last eleven months, but

he was still able to identify Fletcher as the person he had arrested.

Given the testimony at trial, it was up to the jury to determine if the

discrepancy in hair color between the five-year-old DMV record and

10
Fletcher’s appearance at trial was sufficient to raise a reasonable

doubt. See Clark, 232 P.3d at 1291.

¶ 22 Additionally, the prosecution here admitted evidence beyond

the evidence that established an essential link in Gorostieta. The

DMV record here included a note from the records custodian that

this was the only record in the DMV’s system for a subject with that

name and date of birth. Further, all the sentencing dates in the

Mesa County court documents aligned with the sentencing dates of

DUI convictions in the DMV record.

¶ 23 To summarize, through the self-authenticating court records

and DMV record, we have three convictions tied to Fletcher — the

requisite number of convictions for felony DUI. When taken

together and giving the prosecution the benefit of every reasonable

inference, the jury could have reasonably inferred from this

evidence that this Fletcher is the same Fletcher who had been

convicted of three prior DUI-related offenses. Accordingly, we

conclude that the prosecution submitted sufficient and substantial

evidence to prove Fletcher was the person who committed the three

previous Colorado DUI-related convictions. See Clark, 232 P.3d at

1291.

11
B. Coerced Verdict

¶ 24 Fletcher next contends that the trial court gave the jury

improper coercive instructions after the jury expressed that it was

struggling to reach a unanimous verdict. He contends that the trial

court erred by failing to explicitly inquire into the likelihood of

progress toward a unanimous verdict upon further deliberations

before giving the jury a modified-Allen instruction. He further

contends that communications between the trial court and the

jury — including the modified-Allen instruction and

communications after the modified-Allen instruction — coerced the

jury into reaching a unanimous verdict. Fletcher argues the

coercion is evidenced by the amount of time it took the jury to reach

a unanimous verdict after returning from a holiday weekend. We

disagree.

1. Additional Facts

¶ 25 On the fourth day of trial and after seven hours of

deliberation, the jury submitted the following note to the trial

court3:

3 Deliberations began at 9:45 a.m. and the jury’s note came at

5:04 p.m.

12
We aren’t sure how to proceed. We are in
agreement on counts 7 & 8. We are however
hung on if he, Fletcher, was the driver. 11 of
the 12 believe he was the driver and think him
guilty of charges 1, 2, 3, 5, & 6. How should
we proceed?

(The one [holdout juror] is not “100%” sure he
was the driver and thinks there could have
been another person.)

¶ 26 The trial court indicated it was deciding between giving the

jury a modified-Allen instruction or releasing the jury for the

weekend, as the following day was a court holiday. Defense counsel

objected to the modified-Allen instruction, explaining:

Judge, we’re objecting to the modified[-]Allen
instruction being read to the jury. There’s a
substantial risk here of a coerced verdict. This
communication from the jury explains a lot . . .
about what’s going on. And I think that the
way that this question is phrased, there’s a
substantial risk that this one person that
doesn’t agree that the Prosecution’s met its
burden is going to feel coerced into agreeing
just to make this process move along.

So, I think that a modified[-]Allen instruction
would violate Mr. Fletcher’s right to a fair trial
and to due process under both the Colorado
and Federal Constitution[s].

¶ 27 Fletcher’s counsel didn’t object to the trial court giving the

modified-Allen instruction without first inquiring into the likelihood

of progress toward a unanimous verdict upon further deliberations.

13
Fletcher’s counsel also noted that the holiday weekend would create

three days of separation between the jury and the evidence, but the

trial court stated it wasn’t considering that detail.

¶ 28 The trial court decided to give the jury the following modified-

Allen instruction:

The [trial court] is going to suggest a few
thoughts that you should consider in your
deliberations, along with the evidence in the
case and all of the instructions previously
given. It is your duty as jurors to consult with
one another and to deliberate with a view to
reaching a verdict, if you can . . . do so without
violence to individual judgment.

Each of you must decide the case for yourself,
but do so only after an impartial consideration
of the evidence with your fellow jurors. In the
course of your deliberations, do not hesitate to
reexamine your own views and change your
opinion if convinced it is erroneous, but do not
surrender your honest conviction as to the
weight or effect of evidence solely because of
the opinion of your fellow jurors or for the
mere purpose of returning a verdict. You are
not advocates, you are [j]udges of the facts.
Your sole interest is to ascertain the truth from
the evidence in this case.

¶ 29 The trial court’s modified-Allen instruction tracked the pattern

instruction, COLJI-Crim. E:18 (2024).

14
¶ 30 After two more hours of deliberation — around 7 p.m. that

evening — the trial court notified Fletcher and the prosecution that

it wanted to check on the jury’s status:

So what I thought I would do, I don’t really
want to have the bailiff doing communications
and so I thought I would just bring, you know,
like ask how they are or something. So I
thought that I’d just ask [the bailiff] to bring
them back into court and I’m going to ask
them how they’re doing and see what they say.
Okay?

¶ 31 The prosecution said it was “okay” with that course of action.

Fletcher’s counsel didn’t make a comment, nor did he object.

¶ 32 The trial court brought the jury into the courtroom and had

the following colloquy with the jury foreperson:

THE COURT: . . . So ladies and gentlemen, I
wanted to ask how you’re doing and how you’d
like to proceed basically at this point.

THE FOREPERSON: We are in agreement on
Counts 7 and 8. We do not have 100 percent
on 1, 2, 3, 5, and 6 yet. Not sure how — if
that will change, so not sure how we proceed
with that.

THE COURT: Would you like to continue
deliberating? Okay. I’m a little concerned.

THE FOREPERSON: Okay.

THE COURT: I don’t want people to have to
state that in open court.

15
THE FOREPERSON: Okay. Sorry.

THE COURT: So what I’m going to ask you to
do is go back to the jury room and then let the
bailiff know how you want to proceed. Okay?

THE FOREPERSON: Okay.

THE COURT: Thank you.

THE FOREPERSON: What would — sorry.
What would our other options be then if we
cannot come to a decision on the other ones?

THE COURT: I would just like you to go back
to the jury room and then tell the bailiff how
you’d like to proceed.

THE FOREPERSON: Okay.

THE COURT: Okay?

¶ 33 Once the jury had been excused, Fletcher’s counsel didn’t

object to the trial court’s communications but did request a mistrial

on the following grounds:

I am requesting that a mistrial as to the counts
they can’t agree on be issued now. I think that
with the last written jury question, along with
the behavior that we saw in the courtroom,
there’s a substantial high risk for a coerced
verdict where an individual juror, I had a
general idea what direction they were . . .
pointing to. And I am very concerned that this
is leading to a coercive verdict territory, which
would violate Mr. Fletcher’s right to a fair trial
and due process under the Colorado and
Federal Constitution[s].

16
¶ 34 The trial court stated that if the jurors indicated that they

couldn’t reach a verdict that evening, it would declare a mistrial.

¶ 35 About fifteen minutes later, the bailiff notified the trial court

that the jury wished to continue deliberations on the following

Monday, following the holiday weekend. The trial court dismissed

the jury for the holiday weekend without declaring a mistrial.

¶ 36 The following Monday, the jury returned and deliberated for

thirty more minutes before informing the court that it had reached

a unanimous verdict. The jury found Fletcher guilty on all charges.

2. Standard of Review and Preservation

¶ 37 It is within a trial court’s discretion to give a jury a modified-

Allen instruction or other supplemental instruction. Allen, 660 P.2d

at 898. Accordingly, we review that decision for an abuse of

discretion. Gibbons v. People, 2014 CO 67, ¶ 12. If a defendant

fails to preserve their appellate argument about a supplemental

instruction, we review that argument for plain error. People v.

Dinapoli, 2015 COA 9, ¶ 9. “We reverse under plain error review

only if the error ‘so undermined the fundamental fairness of the

trial itself so as to cast serious doubt on the reliability of the

17
judgment of conviction.’” Hagos v. People, 2012 CO 63, ¶ 14

(citation omitted).

¶ 38 Although Fletcher objected to the court giving a modified-Allen

instruction generally, he didn’t object to the court giving a modified-

Allen instruction without first inquiring into the jury’s likelihood of

progress toward a unanimous verdict upon further deliberations —

the specific argument he advances on appeal. See Dinapoli, ¶ 10

(appellate argument that modified-Allen instruction was improper

without a mistrial advisement wasn’t preserved when the defendant

had objected to the modified-Allen instruction but didn’t specifically

object to the modified-Allen instruction without a mistrial

advisement). Accordingly, we review this contention for plain error.

¶ 39 Fletcher also didn’t object to the trial court’s additional

communications with the jury following the modified-Allen

instruction that he now contends on appeal were coercive.

Therefore, we review this contention for plain error as well.

3. Applicable Law

¶ 40 A trial court must avoid coercing a jury to reach a verdict.

People v. Schwartz, 678 P.2d 1000, 1012 (Colo. 1984). “A court

cannot sanction a verdict ‘which is reached by some members of the

18
jury sacrificing their conscientious opinions merely for the sake of

reaching an agreement.’” Id. (quoting Lowe v. People, 488 P.2d 559,

561 (Colo. 1971)). “[T]he coercive effect of a supplemental jury

instruction . . . will necessarily depend on the content of the

instruction and the context in which it is given.” Gibbons, ¶ 30.

¶ 41 If a jury signals that it is at an impasse, the trial court can

mitigate some coercive risk by giving the jury a modified-Allen

instruction. People v. Black, 2020 COA 136, ¶ 18. “Before giving a

modified-Allen instruction, the trial court should ‘determine

whether there is a likelihood of progress towards a unanimous

verdict upon further deliberations.’” Fain, ¶ 19 (quoting Schwartz,

678 P.2d at 1012). This step is crucial to minimize the possibility

that the modified-Allen instruction coerces a hopelessly deadlocked

jury into reaching a compromised verdict. Id.

¶ 42 If progress is likely and there is no impasse, the trial court can

give the jury an unqualified instruction to keep deliberating. Black,

¶ 20. If, however, the trial court finds progress is unlikely and that

the jury is at an impasse, the risk of coercion increases; still, the

risk of coercion can be mitigated by giving the jury an instruction

that includes the prophylactic language contained in a modified-

19
Allen instruction. Id. at ¶ 21. “But a modified-Allen instruction’s

prophylactics are not strong enough to sufficiently mitigate the

most powerfully coercive circumstances,” id. at ¶ 22, and “there is

‘the potential that a modified-Allen instruction will coerce a

hopelessly deadlocked jury into reaching a compromise verdict.’”

Id. (quoting Fain, ¶ 19).

¶ 43 While making an explicit inquiry into the likelihood of progress

toward a unanimous verdict upon further deliberations is best

practice before giving a modified-Allen instruction, a trial court can

sometimes determine the jury’s status without asking. See, e.g.,

Fain, ¶ 20 (a jury note stating that one juror’s viewpoint “will not

change” notified the trial court that the jury was hopelessly

deadlocked). Indeed, requiring the trial court to make the pre-

instruction inquiry even if the court understands the jury’s status

“would elevate form over substance.” Id.

4. Application

¶ 44 We first address whether the trial court reversibly erred by

failing to explicitly inquire into the status of the jury’s deliberations

before giving a modified-Allen instruction; then, we address whether

the trial court’s further communications after the modified-Allen

20
instruction were indicative of coercion. As discussed below, we

reject both contentions.

a. Inquiry into the Likelihood of Progress Toward a Unanimous
Verdict upon Further Deliberations

¶ 45 First, we perceive no error, much less plain error, with the trial

court giving the jury a modified-Allen instruction without first

inquiring into the likelihood of progress toward a unanimous verdict

upon further deliberations. The jury’s note itself provided the trial

court with a great deal of information regarding the status of the

jury’s deliberations. It told the trial court which counts the jury

had reached a unanimous verdict on, which counts it hadn’t, that

there was one holdout juror, and why that juror was holding out —

because they weren’t “‘100%’ sure” Fletcher was the driver.

¶ 46 To be sure, the note communicated that there was some sort

of impasse in the jury’s deliberations. The note specified that the

jury was “hung” on whether Fletcher was the driver, and that this

was an obstacle to a unanimous verdict on several charges. With

some level of impasse, the trial court couldn’t have given the jury an

unqualified instruction to continue deliberating. See Black, ¶ 20.

21
¶ 47 On the other end of the spectrum, the note didn’t

communicate that the jury was hopelessly deadlocked either. The

note mentioned that the holdout juror was “not ‘100%’ sure” if

Fletcher was the driver. The beyond a reasonable doubt standard,

however, doesn’t require a juror to be 100% sure. See COLJI-Crim.

E:03 (2024) (proof beyond a reasonable doubt requires “more than

proof that something is highly probable, but it does not require

proof with absolute certainty”).

¶ 48 With the beyond a reasonable doubt standard in mind, the

jury note communicated that the holdout juror wasn’t absolutely

certain regarding an element of several offenses. But it didn’t

communicate that the jury was hopelessly deadlocked like the note

in Fain, which stated that the holdout juror wouldn’t change his

view. Fain, ¶ 20. Additionally, the note came after seven hours of

deliberations, after a four-day trial. Therefore, this wasn’t a

situation of a “hopelessly deadlocked jury that [had] been

deliberating for days.” Black, ¶ 17.

¶ 49 Thus, the note itself indicated that the jury was somewhere

between “no impasse” and “hopelessly deadlocked.” Accordingly,

the trial court had enough information to conclude that the jury

22
was at an impasse. Requiring the trial court to make an inquiry

into the jury’s likelihood of progress toward a unanimous verdict

upon further deliberations would have “elevate[d] form over

substance.” Fain, ¶ 20. Thus, based on the information the jury

provided in its note, the trial court didn’t abuse its discretion by

giving the jury a modified-Allen instruction without first making an

explicit inquiry regarding the utility of further deliberations. See

Black, ¶ 18.

b. Modified-Allen Instruction and Following Jury
Communications

¶ 50 We also perceive no error in the trial court’s giving of the

modified-Allen instruction or in the comments the court made to

the jury thereafter. The context of these communications cuts

against any inference of coercion. First, the trial court didn’t give

the jury any sort of deadline on its deliberations. See People v. Cox,

2023 COA 1, ¶¶ 21-22 (placing a deadline on deliberations, or

otherwise explicitly or implicitly urging the jurors to compromise

their views for the sake of a unanimous verdict, may be coercive).

Instead, the trial court asked the jury how it wanted to proceed,

without imposing any time pressure. Nor did the trial court

23
explicitly or implicitly urge the jurors to compromise their views for

the sake of a unanimous verdict. To the contrary, the modified-

Allen instruction given shortly before the court’s comments to the

jury explicitly told the jurors not to compromise their views for the

sake of a unanimous verdict. See Dinapoli, ¶ 13 (giving an

instruction that tracks the pattern modified-Allen instruction cuts

against a finding of coercion). Simply put, none of the trial court’s

actions, whether by giving the modified-Allen instruction or in the

comments made after, give rise to an inference of coercion.

¶ 51 Fletcher argues that the jury returning on the following

Monday and reaching a unanimous verdict after only thirty minutes

of additional deliberation is indicative of a coerced verdict. See Cox,

¶ 35 (noting that the length of deliberations after the jury is given a

modified-Allen instruction can provide insight into how coercive the

instruction was). To be sure, just thirty minutes of additional

deliberation after the jurors indicated that they were still at an

impasse before being dismissed Thursday night is a short time to

reach a unanimous verdict. But this timing, standing alone, isn’t

indicative of a coerced verdict. This is particularly so where there is

nothing in what the court did or said that is indicative of coercing

24
the jury to reach a unanimous verdict. Accordingly, based on the

totality of the circumstances, we reject Fletcher’s contention that

the verdict must be set aside because it was coerced.

C. Bifurcation

¶ 52 Finally, Fletcher contends that the trial court erred when it

denied his motion to bifurcate his trial to adjudicate the prior

convictions element of felony DUI separately. We disagree.

¶ 53 Our supreme court definitively held in People v. Kembel, 2023

CO 5, ¶ 4, that a trial court doesn’t have discretion to bifurcate the

prior conviction element in a felony DUI trial.

¶ 54 Notwithstanding Kembel, Fletcher argues that the refusal to

bifurcate the trial is inconsistent with a more recent United States

Supreme Court decision in which the Court held that the “fairest”

practice is to bifurcate a trial when ruling on a sentence enhancer

involving prior convictions. Erlinger v. United States, 602 U.S. 821,

847 (2024) (citation omitted). Here, however, the prior convictions

are an element of the offense, not a sentence enhancer. See

Linnebur v. People, 2020 CO 79M, ¶ 2 (holding that for felony DUI,

the prior convictions are an element of the crime, not a sentence

enhancer), abrogated on other grounds by, People v. Crabtree, 2024

25
CO 40M, ¶¶ 32-40. Thus, Erlinger is inapplicable. Moreover, we

can’t depart from the Colorado Supreme Court’s ruling in Kembel.

See People v. Porter, 2015 CO 34, ¶ 23 (the court of appeals is

bound by decisions of the supreme court). Therefore, the trial court

properly denied Fletcher’s request to bifurcate.

III. Disposition

¶ 55 For the reasons set forth above, we affirm the judgment of

conviction.

JUDGE GOMEZ and JUDGE SULLIVAN concur.

26