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Full Opinion
The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
April 10, 2025
2025COA38
No. 21CA1443, Peo v Harmon — Constitutional Law — Sixth
Amendment — Confrontation Clause; Evidence — Hearsay
Exceptions — Declarant Unavailable — Former Testimony
As a matter of first impression, a division of the court of
appeals addresses whether a prosecutor may introduce evidence in
a criminal trial of a deceased witness’s testimony from a civil trial
under the unavailable declarant exception to the hearsay bar.
Because the defendant’s counsel was fully motivated to
vigorously cross-examine the deceased declarant at the civil trial
and had ample opportunities to do so, the division concludes that
the trial court properly admitted the testimony and therefore did
not violate the defendant’s confrontation rights.
COLORADO COURT OF APPEALS 2025COA38
Court of Appeals No. 21CA1443
Delta County District Court No. 19CR17
Honorable Steven L. Schultz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William Henry Harmon,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division VI
Opinion by JUDGE SCHUTZ
Welling and Kuhn, JJ., concur
Announced April 10, 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, Emily Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, William Henry Harmon, appeals the judgment of
conviction entered on a jury verdict finding him guilty of attempted
first degree murder and two counts of stalking. We affirm the
judgment.
¶2 The resolution of Harmon’s claims requires us to address the
novel issue of whether a prosecutor may introduce into evidence in
a criminal trial a deceased witness’s testimony that was given at a
prior civil trial. Because Harmon’s counsel was fully motivated to
vigorously cross-examine the witness at the prior civil trial and had
ample opportunities to do so, we conclude that the trial court did
not violate Harmon’s confrontation rights or the hearsay rule by
admitting the testimony at the criminal trial.
I. Background and Procedural History
¶3 The jury heard the following evidence that supports the
verdicts.
¶4 Paul and Anna Hershberger1 owned and operated Hershberger
Construction, LLC (Hershberger). The company specialized in
constructing steel buildings. In September 2014, Hershberger and
1 Due to their shared last name, we refer to Paul and Anna by their
first names to avoid confusion. We mean no disrespect in doing so.
1
Harmon entered into a contract to erect such a building on
Harmon’s property. When they signed the agreement, Harmon was
unsure where he wanted to place the building, so they agreed to
store it at Hershberger’s headquarters, which was directly across
the street from Paul and Anna’s residence.
¶5 In 2015, the parties’ relationship deteriorated due to Harmon’s
uncertainty about when and where he wanted to place the building
and delays in completing the project. Lyle Wingard, a former
Hershberger employee and Paul’s son-in-law, testified that, in
August 2015, during a phone conversation about the building’s
location, Harmon told Wingard that he would shoot Paul and stated
that “Paul is still being nice to me; he doesn’t believe that I’m going
to kill him.” Wingard informed Paul of Harmon’s threat. Anna and
Paul were unnerved by the threat and took various safety measures,
including installing security cameras and creating an escape plan
from their home in the event Harmon showed up at their residence.
¶6 In response to the threat, Paul sent Harmon a letter in which
he terminated the contract. The letter banned Harmon from the
Hershberger property and gave him until the end of 2015 to engage
a third party to remove the building. The letter included a check
2
with a partial refund of the contract price. This, however, wasn’t
the end of the parties’ involvement with each other.
A. The Civil Litigation and Subsequent Interactions
¶7 Throughout 2016, the parties remained locked in a dispute
over the termination of the contract. After the parties were not able
to reach an agreement, in 2017, Harmon sued Hershberger for
breach of contract, requesting that the civil court rescind the
contract and award him the entire amount that he had paid for the
building. Hershberger counterclaimed for damages and lost profits,
and defended the breach of contract claim on the basis that
Harmon’s death threat against Paul had rendered Hershberger’s
performance of the contract impossible.
¶8 Judge Steven L. Schultz presided over the civil case and set
the matter for a two-day bench trial in July 2018. Paul testified on
both days about the contract and the nature of the threat.
Harmon’s counsel examined Paul extensively about various aspects
of the parties’ interactions. Harmon also testified during the civil
trial and conceded that he had threatened to shoot Paul and
confirmed making that threat in his subsequent conversation with
Wingard.
3
¶9 In November 2018, the civil court issued a written ruling
finding that Harmon’s threat did not excuse Hershberger’s
performance under the contract, particularly in view of the parties’
subsequent discussions. The court ultimately found both parties at
fault for nonperformance. It ordered Hershberger to refund a
portion of the purchase price and ordered Harmon to remove the
steel building from Hershberger’s property within sixty days.
¶ 10 Harmon was apparently unable to move on despite the civil
court’s resolution of the case. Throughout December 2018,
Harmon engaged in a series of actions that alarmed Paul and Anna,
including parking in their driveway on at least six different
occasions. On one occasion, Harmon showed up at their home
twice on the same day but did not try to contact them directly.
They reported the incidents to the police.
¶ 11 In late December 2018, Anna noticed Harmon following their
vehicle as they travelled to church. At the criminal trial, Harmon
admitted following Paul and Anna to church on multiple occasions,
purportedly because he had questions about their honesty and
wanted more information about their beliefs. He stated that he
remained a few blocks behind them after they left the house and sat
4
in the church parking lot and observed them while they were in
church. Harmon testified that he did not intend to scare or bother
Paul and Anna, and that he intentionally stayed away from them.
B. The Arrest, Criminal Trial, and Conviction
¶ 12 In January 2019, things came to a head after Anna saw
Harmon in their driveway and called the police. Shortly after the
call, law enforcement stopped Harmon as he drove away from the
property. He appeared intoxicated.
¶ 13 Deputy Wade Carney testified that, after he informed Harmon
that the stop was in relation to a possible harassment claim,
Harmon admitted that he had threatened to shoot Paul and
“everybody knows that.” Harmon was arrested on suspicion of
driving under the influence of alcohol after failing roadside tests.
¶ 14 The police seized Harmon’s vehicle shortly after his arrest and
recovered bullets, zip ties, and two loaded guns, one of which was
hidden within an empty six-pack container. The police also found a
note in Harmon’s home that read in part:
Told me he was going to Africa for month.
I told him that I had a buyer for site and could
make [$]45,000 would rather have building
will get started soon
5
No schedule
(1) Told him put the building up!!
(2) Give me my money back
(3) Or I will shoot you
¶ 15 Based on this investigation, Harmon was eventually charged
with multiple criminal offenses2 including, as relevant here,
attempted first degree murder, stalking (credible threat), and
stalking (serious emotional distress).
¶ 16 The criminal case was assigned to Judge Schultz. The People
filed a “notice” asking Judge Schultz to consider recusing based on
his involvement in the prior civil case, but they did not file a recusal
motion or request that he recuse himself from the case. Defense
counsel joined the notice but did not make any argument in
support of recusal. Neither party submitted any affidavits in
support of the notice. Judge Schultz declined to recuse himself.
¶ 17 In 2020, Paul died in an unrelated motorcycle accident.
Because Paul was unavailable to testify at the criminal trial, the
People moved to admit portions of the transcript of Paul’s testimony
2 Harmon was charged with seven counts, including driving under
the influence of alcohol, but he only challenges the attempted first
degree murder and stalking (credible threat) convictions.
6
at the civil case concerning Harmon’s threat. The trial court
admitted the testimony over defense counsel’s objection after
finding that, during the civil trial, Harmon’s counsel had an
opportunity and similar motive to cross-examine Paul about
Harmon’s threat.
¶ 18 After a six-day trial, the jury convicted Harmon on each of the
submitted counts, including attempted first degree murder and the
two stalking charges. The trial court sentenced Harmon to ten
years in community corrections.
II. Issues on Appeal
¶ 19 Harmon argues on appeal that the evidence was insufficient to
convict him of either attempted first degree murder or stalking
(credible threat). Next, he argues that the trial court erred by
admitting Paul’s testimony from the civil trial, and relatedly that the
court erred by allowing the jury to hear portions of Paul’s testimony
read from the official transcript rather than the audio recording of
that testimony. Harmon also argues that the trial judge erred by
failing to recuse himself from presiding over the criminal case.
Finally, he argues the court erred by failing to give an instruction
7
for the lesser nonincluded offense of harassment. We address and
reject each of Harmon’s contentions in turn.
A. Sufficiency of the Evidence Claims
¶ 20 Harmon begins by challenging the sufficiency of the evidence
for the attempted first degree murder and stalking (credible threat)
convictions.
1. Standard of Review
¶ 21 We review the record de novo to determine whether the
evidence was sufficient both in quantity and quality to sustain a
conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010).
¶ 22 To determine whether the prosecution presented sufficient
evidence, we consider “whether the relevant evidence, both direct
and circumstantial, 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)). In a jury trial, the jury
“decides difficult questions about the weight it determines to give
conflicting evidence.” Id. at 1293. Appellate courts do not sit as a
8
thirteenth juror to second-guess the jury’s weighing of the evidence.
See id.
2. Attempted First Degree Murder
a. Applicable Law
¶ 23 A person commits first degree murder if, “[a]fter deliberation
and with the intent to cause the death of a person other than
himself, he causes the death of that person.” § 18-3-102(1)(a),
C.R.S. 2024. A person commits attempted first degree murder if,
acting with the kind of culpability otherwise required for the
commission of first degree murder, he engages in conduct
constituting a substantial step toward the commission of the
offense. People v. Caldwell, 43 P.3d 663, 672 (Colo. App. 2001). A
substantial step is any conduct, whether act, omission, or
possession, that is strongly corroborative of the firmness of the
actor’s purpose to complete the commission of the offense. People
v. Lehnert, 163 P.3d 1111, 1113 (Colo. 2007).
¶ 24 The question of what constitutes a substantial step cannot be
resolved by a mechanical rule or litmus test; rather, the analysis
turns on whether the defendant’s conduct “strongly corroborates a
sufficiently firm intent on his part to commit the specific crime he is
9
charged with attempting.” Id. at 1115. A behavior, including, but
not limited to, scouting the place contemplated for the commission
of the offense, searching out the potential victim, or possessing
materials designed for an unlawful purpose may be considered in
evaluating the firmness of a defendant’s criminal purpose. Id.
b. Application
¶ 25 Harmon contends that the prosecution failed to show that he
took a substantial step toward completing first degree murder. He
argues that, because the court had ordered him to remove the
building from Hershberger’s property within sixty days, he had a
legitimate purpose to be at Paul and Anna’s property; he routinely
carried a gun; he did not display a weapon to anyone on the day he
was arrested; and he was driving away from the property when the
police stopped him. Thus, he argues, the facts do not support the
conclusion that he intended to murder Paul. The People counter
that this and other evidence must be viewed in the light most
favorable to the verdict, and that when so viewed, it is sufficient to
support the verdict. We agree with the People.
¶ 26 Viewing the evidence and the reasonable inferences arising
therefrom in the light most favorable to the verdict, as we must, we
10
conclude there is adequate evidence to support the jury’s finding
that Harmon’s conduct went beyond mere preparation and
constituted a substantial step toward committing first degree
murder. Indeed, Harmon told Wingard that he would shoot Paul
and told Deputy Carney that he had threatened to shoot Paul.
Harmon’s handwritten note confirms this intention. Moreover, the
jury heard evidence that, before departing from his home that day,
Harmon had told his wife that he was going to kill the person who
had taken money from him.3 And his subsequent actions
supported the conclusion that he intended to make good on his
threat to shoot Paul.
¶ 27 Although Harmon may have routinely carried a weapon, the
jury could also have found that his possession of guns on the day in
question was anything but routine. He brought a loaded handgun
to the property of the man he had repeatedly followed, confronted,
and threatened to shoot. He concealed the handgun by taping it
3 During her examination, Harmon’s wife denied saying that
Harmon made these statements to her. But the investigating officer
who spoke to Harmon’s wife later testified that she reported these
statements, and the jury was therefore permitted to consider the
statements as substantive evidence. See § 16-10-201, C.R.S. 2024.
11
inside an empty six-pack container. The jury could reasonably
have concluded that the hidden handgun or the concealed shotgun
and ammunition were part of a plan to murder Paul.
¶ 28 Based on this evidence, we conclude that a reasonable juror
could have determined that Harmon had taken a substantial step
toward murdering Paul. Thus, we reject Harmon’s contention that
the evidence was insufficient to support his attempted first degree
murder conviction.
3. Stalking
¶ 29 Harmon also challenges the sufficiency of the evidence related
to his conviction for stalking (credible threat). See § 18-3-602(1)(a),
C.R.S. 2024.
a. Applicable Law
¶ 30 To establish stalking (credible threat), the prosecution must
prove beyond a reasonable doubt that the defendant directly, or
indirectly through another person, and knowingly made a credible
threat to a person and, “in connection with the threat,” repeatedly
followed, approached, contacted, or placed under surveillance that
person, a member of that person’s immediate family, or someone
with whom that person has or has had a continuing relationship.
12
Id. “Conduct ‘in connection with’ a credible threat means acts that
further, advance, promote, or have a continuity of purpose, and
may occur before, during, or after the credible threat.” § 18-3-
602(2)(a).
¶ 31 The supreme court has interpreted the phrase “in connection
with” to mean that the act “must further, promote, or advance the
credible threat.” People v. Baer, 973 P.2d 1225, 1230 (Colo. 1999).
Whether an act is “in connection with” a “credible threat” is a
question properly left to the jury based on the content and context
of the threat and subsequent conduct. Id.
b. Application
¶ 32 Harmon contends that, because he only made one credible
threat against Paul — back in 2015 — his conduct almost four
years later could not be deemed to be “in connection with” the 2015
threat.
¶ 33 The People argue that there was a reasonable factual basis to
find Harmon guilty of stalking because, under the totality of the
circumstances, the jury could reasonably have concluded that his
actions were to further his undisputed 2015 credible threat. We
agree.
13
¶ 34 During the 2018 civil trial, Harmon told a court deputy at the
courthouse — within earshot of Anna — that he may be returning
after the lunch break in handcuffs. After the trial, he repeatedly
followed Paul and Anna. Harmon told his wife that he was going to
kill the person who took money from him. And when he was
arrested, Harmon told police officers that he had threatened to
shoot Paul and that he was at Paul and Anna’s home looking for an
opportunity to make good on his threat.
¶ 35 On this evidence, a reasonable juror could conclude that
Harmon’s conduct in late 2018 and January 2019 was in
connection with his 2015 credible threat to shoot Paul. Cf. People
v. Suazo, 87 P.3d 124, 126-27 (Colo. App. 2003) (concluding that a
defendant contacting the victim numerous times in person and by
telephone repeatedly asking to see her was conduct connected to a
prior threat to kill the victim if she did not see him). Thus, we
conclude that there was sufficient evidence to support Harmon’s
conviction for stalking (credible threat).
14
B. Admitting Paul’s Testimony
1. Additional Facts
¶ 36 Before the criminal trial, the prosecution disclosed that, in
view of Paul’s death, it intended to introduce into evidence portions
of Paul’s testimony given during the civil trial. More specifically, the
People endorsed approximately twenty-five pages of Paul’s
testimony in which Paul addressed Harmon’s threat and his efforts
to resolve the contract dispute.
¶ 37 Harmon argued that Paul’s testimony from the civil trial was
hearsay, and that it should not be admitted because Harmon’s
counsel at the civil trial did not have an adequate opportunity or
similar motive to develop Paul’s testimony. See CRE 804(b)(1).
¶ 38 In a thorough written order, the court concluded that Paul’s
testimony at the civil trial was admissible. It reasoned that Paul’s
civil testimony was “testimonial”4 and therefore subject to the
Confrontation Clause, but that the Confrontation Clause was not
violated because Harmon’s counsel thoroughly examined Paul. The
4 Neither party challenges the criminal court’s conclusion that
Paul’s testimony was “testimonial” for purposes of the
Confrontation Clause, and we therefore do not address it further.
15
court also concluded that Harmon’s counsel at the civil trial had an
adequate opportunity and motive to cross-examine Paul, and
therefore the testimony was admissible under Rule 804(b)(1).
¶ 39 After the court ruled that Paul’s civil testimony was
admissible, Harmon filed a motion to admit the FTR5 audio
recording of Paul’s testimony in lieu of reading the certified
transcript. The trial court denied the motion, and at trial the court
reporter read approximately twenty-five transcript pages of Paul’s
testimony to the jury.
¶ 40 On appeal, Harmon argues that his convictions should be
reversed because the trial court (1) violated his right to
confrontation under the United States and Colorado Constitutions;
(2) improperly applied CRE 804(1); and (3) improperly had the
reporter read the transcript, rather than playing the FTR recording
of Paul’s testimony. We address each contention in turn.
2. Standard of Review and Applicable Law
¶ 41 We review a trial court’s evidentiary rulings for an abuse of
discretion. Campbell v. People, 2019 CO 66, ¶ 21. “A trial court
5 The initials FTR refer to “For the Record,” the audio-recording
system used in district court proceedings.
16
necessarily abuses its discretion if its ruling is based on an
erroneous view of the law.” People v. Vanderpauye, 2021 COA 121,
¶ 32 (citing People v. Voth, 2013 CO 61, ¶ 15), aff’d, 2023 CO 42.
So if, as in this case, the court’s ruling depends on its interpretation
of a statute or rule, we review that interpretation de novo. People v.
Salas, 2017 COA 63, ¶ 30. Whether a trial court’s ruling violates a
defendant’s constitutional rights presents a question of law that we
also review de novo. People v. McFee, 2016 COA 97, ¶ 28.
a. Confrontation Clause
¶ 42 The United States and Colorado Constitutions guarantee
criminal defendants the right to confront witnesses called to testify
against them. People v. Reynolds-Wynn, 2024 COA 33, ¶ 23. The
Confrontation Clause of the United States Constitution provides
that a defendant shall be entitled to “be confronted with the
witnesses against him.” U.S. Const. amend. VI. Similarly, though
not identically, the Colorado Constitution provides that “[i]n [a]
criminal prosecution[] the accused shall have the right to . . . meet
the witnesses against him face to face.” Colo. Const. art. II, § 16.
¶ 43 A defendant’s right of confrontation “is primarily secured
through cross-examination.” Margerum v. People, 2019 CO 100,
17
¶ 10. “Cross-examination allows a party to interrogate a witness’s
‘perceptions and memory’ and is also ‘the principal means by which
the believability of a witness and the truth of his testimony are
tested.’” Id. (quoting Davis v. Alaska, 415 U.S. 308, 316 (1974)).
b. Hearsay
¶ 44 Hearsay is a “statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). Hearsay is not
admissible unless it fits into an applicable exception. See CRE 802-
804.
3. Application
a. Constitutional Challenges
¶ 45 In his pretrial motions challenging the admissibility of Paul’s
civil trial testimony, Harmon cited the Confrontation Clauses of the
United States and Colorado Constitutions. But all of the arguments
and related case law he submitted were based on the Confrontation
Clause found in the Fourteenth Amendment to the United States
Constitution. Indeed, he cited the Colorado confrontation clause
only in the final paragraph of his original motion and supplement
thereto.
18
¶ 46 On appeal, however, Harmon urges us to interpret and apply
Colorado’s confrontation clause in a manner that affords a
defendant broader protections than those afforded by the
Fourteenth Amendment’s Confrontation Clause. We reject this
effort for procedural and substantive reasons.
¶ 47 From a procedural perspective, by failing to develop the
argument below, Harmon deprived the prosecution and the trial
court of the opportunity to address the issue, which, in turn,
deprives us of the benefit of the trial court’s reasoned resolution.
Because of these inherent deficiencies, we generally do not address
constitutional arguments raised for the first time on appeal.
Martinez v. People, 244 P.3d 135, 139 (Colo. 2010).
¶ 48 But regardless of whether Harmon preserved his state
confrontation clause argument, it fails on the merits. Harmon
concedes that under Crawford v. Washington, 541 U.S. 36, 53-54
(2004), the use of prior testimony by a non-testifying witness is
generally admissible in a criminal trial if the witness is unavailable
and the accused had an opportunity to cross-examine the witness
when the statement was made. But Harmon points to the Colorado
Supreme Court’s decision in People v. Fry, in which the court
19
suggested that a non-testifying, unavailable witness’s testimony is
admissible only if the defendant had an “adequate prior
opportunity” to cross-examine the witness at the prior hearing. 92
P.3d 970, 976 (Colo. 2004) (emphasis added). And the court in Fry
found that the opportunity to cross-examine the witness in the
prior proceeding was not adequate to permit the testimony’s
admission at the subsequent trial. Id. at 981.
¶ 49 But Fry arose in a procedural context far different from that in
this case. In Fry, the People sought to introduce at a criminal trial
the testimony of an unavailable witness that was given at the
preliminary hearing held in the case. In rejecting the admissibility
of that testimony, the supreme court noted that a preliminary
hearing merely requires the People to show probable cause that the
charged offense has been committed and that a criminal defendant
often has strategic reasons not to fully cross-examine a witness in
that context.
¶ 50 As the supreme court noted, “A preliminary hearing is limited
to matters necessary to a determination of probable cause. The
rights of the defendant are therefore curtailed: evidentiary and
procedural rules are relaxed, and the rights to cross-examine
20
witnesses and to introduce evidence are limited to the question of
probable cause.” Id. at 977 (citations omitted). Thus, the court
concluded that the preliminary hearing testimony was not
admissible because the defendant lacked an adequate incentive and
opportunity to fully and robustly cross-examine the witness during
the preliminary hearing. Id. (At a preliminary hearing, the court
“may not engage in credibility determinations unless the testimony
is incredible as a matter of law.”).
¶ 51 In contrast, Paul’s testimony was given at a civil trial on the
merits. As discussed more fully infra Part II.B.3.b, Harmon had
both a strong motive and ample opportunity to fully examine Paul
at the civil trial. Thus, to the extent Fry permits the conclusion
that the Colorado confrontation clause requires a qualitative
analysis of the defendant’s opportunity for cross-examination, we
conclude that the condition was satisfied in this case.
¶ 52 Moreover, in opinions subsequent to Fry, the Colorado
Supreme Court has made clear that the requirements of Colorado’s
confrontation clause are not materially different from Crawford’s
test. See Nicholls v. People, 2017 CO 71, ¶ 31. There the court
stated:
21
[W]e have long interpreted Colorado’s
Confrontation Clause as commensurate with
the federal Confrontation Clause. See, e.g.,
Compan[ v. People], 121 P.3d [876,] 885-86
[(Colo. 2005)] (rejecting the petitioner’s
argument that the state Confrontation Clause
protects broader rights than the federal
Confrontation Clause); Blecha[ v. People], 962
P.2d [931,] 941 [(Colo. 1998)] (explaining that
Dement adopted the Roberts test[6] “[i]n an
effort to maintain consistency between
Colorado law and federal law”); [People v.]
Dement, 661 P.2d [675,] 680-81 [(Colo. 1983)].
Our holding today maintains the consistency
between state and federal law on this issue.
¶ 53 The supreme court’s decisions in instances in which the
prosecution sought to introduce prior testimony from a criminal
suppression hearing or a prior criminal trial bear this out. In these
circumstances, the supreme court has reasoned that prior
testimony is admissible if the defendant had a meaningful
opportunity to cross-examine the unavailable witness about the
pertinent testimony. See, e.g., People v. Madonna, 651 P.2d 378,
385 n.8 (Colo. 1982) (finding the requirements of CRE 804(b)(1)
were satisfied when the deceased witness was questioned about the
relevant events in an earlier suppression hearing in the same case).
6 The Roberts test comes from Ohio v. Roberts, 448 U.S. 56 (1980).
22
¶ 54 For these reasons, we conclude that the trial court did not
violate Harmon’s confrontation rights under either the United
States or Colorado Constitutions.
b. Admissibility Under CRE 804(b)(1)
¶ 55 In addition to his arguments under the Confrontation Clauses,
Harmon contends that the trial court erred by admitting Paul’s
prior testimony under Rule 804(b)(1), which provides as follows:
The following are not excluded by the hearsay
rule if the declarant is unavailable as a
witness:
(1) Former Testimony. Testimony given as a
witness at another hearing of the same or a
different proceeding, or in a deposition taken
in compliance with law in the course of the
same or another proceeding, if the party
against whom the testimony is now offered, or,
in a civil action or proceeding, a predecessor in
interest, had an opportunity and similar
motive to develop the testimony by direct,
cross, or redirect examination.
CRE 804(b)(1).
¶ 56 Unlike some of the uncertainties associated with Colorado’s
confrontation clause jurisprudence, Rule 804(b)(1) unequivocally
requires the court to make a qualitative analysis of the prior
opportunity to examine an unavailable declarant. Thus, the
controlling inquiry is whether Harmon’s counsel in the civil trial
23
had “an opportunity and similar motive to develop [Paul’s]
testimony by direct, cross, or redirect examination.” Id.
¶ 57 Harmon notes that no criminal charges had been filed before
the civil trial and that the issues in the civil trial were
fundamentally different than those presented in the criminal case.
Thus, Harmon argues, his counsel had little motive to fully cross-
examine Paul — particularly with respect to the issues most
relevant to the criminal charges — and the trial court erred by
finding that “the same issues were addressed in the prior
proceeding.”
¶ 58 The People counter that the criminal court properly admitted
Paul’s testimony because Harmon’s counsel in the civil trial had
substantial motivation to fully examine Paul about the threat.
¶ 59 As previously noted, the criminal court thoroughly analyzed
these arguments and concluded that Harmon’s counsel in the civil
trial “not only had the motive to cross-examine [Paul] as to [the
threat], but he actually did so.” Indeed, the criminal court found
that both Harmon’s and Hershberger’s counsel spent considerable
time examining Paul about the threat and arguing about its
meaning and impact. As the criminal court observed, “The reason
24
for that focus was simple — the threat itself and [Paul and Anna’s]
reaction to it were central issues in the civil action.” These findings
are supported by the record.
¶ 60 In the face of these findings, Harmon relies on the legal
distinctions between a civil case and a criminal case. Harmon
emphasizes the differences between the “preponderance of the
evidence” civil burden of proof and the criminal “beyond a
reasonable doubt” standard. He also points to differences in the
consequences: monetary or related remedial relief in the civil
context versus potential incarceration in the criminal context.
While not expressly urging us to adopt a per se rule, Harmon seems
to be suggesting that we should hold that testimony from a prior
civil case can never be admitted in a criminal case under Rule
804(b)(1). But Harmon cites no authority, and we are aware of
none, adopting such a broad rule.
¶ 61 In Harmon’s defense, and as both parties concede, no reported
Colorado case has addressed whether prior civil testimony can be
used at a subsequent criminal case. But we are persuaded that
prior civil trial testimony may — in appropriate circumstances — be
admitted in a criminal case under Rule 804(b)(1).
25
¶ 62 In reaching this conclusion, we rely on principles established
by the supreme court concerning when prior testimony provided in
a criminal case may be used in a subsequent criminal trial. As
previously noted, the supreme court has held that prior testimony
from a preliminary hearing is not admissible in the subsequent
criminal trial. Fry, 92 P.3d at 977-78. This rule flows from the
limited opportunity or motive for robust cross-examination and the
relaxation of procedural and evidentiary rules at a preliminary
hearing versus a criminal trial. Id.
¶ 63 In contrast to Fry’s outcome, the supreme court held in
Madonna that a deceased declarant’s prior testimony at a
suppression hearing was admissible at the subsequent criminal
trial. 651 P.2d at 385 n.8. The court reasoned that the rationale
for
precluding preliminary hearing testimony to be
introduced at trial if the witness is
unavailable[] is based upon the limited
purposes of a preliminary hearing as a
screening device for unwarranted charges.
Considering the broader purpose of
suppression hearings which involve questions
of credibility and fact-finding, we see no reason
to extend [that] rationale . . . to this factual
setting. This is especially true where, as here,
the witness was extensively cross-examined at
26
the suppression hearing on the very matters
for which the evidence is offered at trial. See
also CRE 804(b)(1) . . . , which would also
allow admission of this testimony.
Id.
¶ 64 Synthesizing these cases, the supreme court has counseled
that Rule 804(b)(1) permits the use of prior sworn testimony when
there are sufficient opportunities and motivation to fully develop the
prior testimony that is being offered at the criminal trial. Thus, the
focus should not be solely on the type of case in which the proffered
testimony was provided, but rather on whether, during the prior
proceeding, the opponent of the testimony had a full, fair, and
motivated opportunity to examine the unavailable declarant about
the material aspects of the proffered testimony.
¶ 65 As the Second Circuit Court of Appeals has observed,
The proper approach, therefore, in assessing
similarity of motive under [Fed. R. Evid.]
804(b)(1) must consider whether the party
resisting the offered testimony at a pending
proceeding had at a prior proceeding an
interest of substantially similar intensity to
prove (or disprove) the same side of a
substantially similar issue. The nature of the
two proceedings — both what is at stake and
the applicable burden of proof — and, to a
lesser extent, the cross-examination at the
prior proceeding — both what was undertaken
27
and what was available but forgone — will be
relevant though not conclusive on the ultimate
issue of similarity of motive.
United States v. DiNapoli, 8 F.3d 909, 914-15 (2d Cir. 1993)
(applying FRE 804(b)(1) and excluding use of grand jury testimony
in a later criminal trial); see Galindo v. Valley View Ass’n, 2017
COA 78, ¶ 11 n.6 (“We consider persuasive case law applying the
federal counterpart to [a Colorado rule] because the federal rule and
the state rule are virtually identical.”). Numerous federal courts
have applied similar principles while upholding the admission of
prior civil testimony in a subsequent criminal trial. See, e.g., United
States v. Vartanian, 245 F.3d 609, 613-14 (6th Cir. 2001) (applying
Fed. R. Evid. 804(b)(1) and concluding decedent witness’s testimony
in prior civil action was admissible in defendant’s criminal trial);
United States v. McClellan, 868 F.2d 210, 214-15 (7th Cir. 1989)
(same).
¶ 66 In applying DiNapoli, the Eighth Circuit recently identified
various factors that a court may consider in evaluating the similar
motive factor in Fed. R. Evid. 804(b)(1):
The question of similarity is inherently factual,
and thus not conducive to general rules. A
court may consider, among other factors, the
28
purpose of the prior proceeding; the nature of
the prior proceeding; any differences in the
burdens of proof; the information known to the
examining party at the time of the prior
testimony; the motive of the examining party to
avoid disclosing such information; the scope of
examination undertaken and forgone, and
whether the prior testimony contradicts the
evidence introduced at trial.
United States v. Euring, 112 F.4th 545, 552-53 (8th Cir. 2024)
(citations omitted). We agree that these factors provide a useful
analytical framework for assessing the “opportunity and similar
motive” issues under CRE 804(b)(1). But we also emphasize that
the factors are not exclusive and, most importantly, that they must
be applied in a manner that does not lose sight of the central and
controlling inquiry: whether the opponent of the testimony had a
full, fair, and motivated opportunity to examine the unavailable
declarant about the material aspects of the proffered testimony.
¶ 67 The criminal court did not have the benefit of the Euring
decision when it ruled on the admissibility of Paul’s civil testimony.
But the court intuitively relied on many of the factors identified in
Euring, such as the nature and purpose of the prior proceeding, the
scope of Paul’s examination by Harmon’s counsel, the importance of
the testimony to the outcome of the civil proceeding, and the
29
corresponding motivation that Harmon’s counsel had to fully
explore Paul’s testimony concerning the 2015 death threat. Indeed,
the court found that the threat itself was a central issue at the civil
trial and therefore concluded that “Harmon’s civil trial lawyer had
the same motive to cross-examine [Paul] in the [civil] dispute as his
criminal attorney would have had in the case with respect to the
areas that the People have endorsed.”
¶ 68 Moreover, Harmon does not dispute that he threatened to
shoot Paul. Nor does Harmon dispute that his threat was based on
Paul’s alleged breach of the very contract at issue in the civil
litigation. And he does not dispute that, after the civil court entered
its divided judgment, he remained so upset that he began to
repeatedly follow Paul and Anna, culminating with him parking in
their driveway while possessing two guns, one of which was
deceptively hidden inside a six-pack container. Given Harmon’s
actions before and during the civil trial, it begs credulity to suggest
that his counsel was not substantially motivated to fully plumb
Paul’s testimony about the 2015 death threat.
¶ 69 For these reasons, we conclude that the criminal court did not
err by admitting Paul’s civil testimony.
30
c. Transcript Versus FTR Recording
¶ 70 Next, Harmon contends that the criminal court erred by
declining his request to introduce the FTR recording of Paul’s
testimony at the civil trial, rather than the court reporter’s official
transcript. We are not persuaded.
¶ 71 Harmon begins by suggesting that the trial court should have
allowed the jury to hear the FTR recording of Paul’s testimony
because the recording was the “best evidence” of the testimony and
would have aided the jury’s assessment of Paul’s demeanor and
credibility. See CRE 1002 (“To prove the content of a writing,
recording, or photograph, the original writing, recording, or
photograph is required,” subject to exceptions not applicable here.).
But Harmon also acknowledges that the supreme court has held, in
analogous circumstances, that both a transcript and a recording of
the same event are originals entitled to equal dignity. See Banks v.
People, 696 P.2d 293, 297-98 (Colo. 1985) (analyzing a transcript
and recording of a statement made to law enforcement).
¶ 72 Thus, Harmon is left to argue that the trial court abused its
discretion by not introducing the FTR recordings because the
31
recordings better replicated the circumstances of Harmon’s live
testimony. We disagree.
¶ 73 The official record of trial court proceedings is the certified
transcript. “Copies of electronic recordings of proceedings shall not
be used as the official record for purposes of appeal, motions or
other court proceedings. Only certified transcripts by reporters or
authorized transcribers pursuant to this [Chief Justice Directive]
shall be used as the official records of court proceedings.”
Chief Justice Directive 05-03, Management Plan for Court
Reporting and Recording Services, p. 7 (amended July 2023).
¶ 74 This directive is based on numerous practical considerations.
The FTR system was designed for the convenience of the courts, not
as a means of creating an official audio record of trial court
proceedings. Moreover, while usually reliable, FTR recordings are
not foolproof given the limitations of technology; human differences
in terms of enunciation, projection, and use of microphones; and
occasional operational errors in starting the FTR system.
¶ 75 Moreover, we are not persuaded by Harmon’s argument that
an FTR recording necessarily allows a fact finder to better assess a
witness’s credibility than does a transcript. It is true that an audio
32
recording may permit the fact finder to hear the speaker’s tone of
voice, but when heard in isolation from facial and body expressions,
tone of voice can create a misleading rather than informative
impression.
¶ 76 In any event, Harmon cites no legal authority permitting,
much less requiring, the use of FTR recordings in lieu of the
certified record. In the absence of such authority, we cannot
conclude that the criminal court abused its discretion by admitting
the official transcript of Paul’s testimony rather than the FTR
recordings.
C. The Trial Court’s Failure to Recuse
¶ 77 Harmon contends that Judge Schultz reversibly erred by
failing to recuse himself from the criminal case. We disagree.
1. Additional Facts
¶ 78 Upon learning that Judge Schultz was presiding over the
criminal case, the prosecution filed a notice that defense counsel
later joined, requesting that Judge Schultz consider whether
recusal was appropriate because he had presided over the civil case
and the same conduct would be at issue in the criminal case.
33
¶ 79 Judge Schultz entered a written order declining to recuse
himself. In the order, he reasoned,
Ultimately, the only allegation in the People’s
submission supporting their request for
disqualification is the claim that “the conduct
and actions in [the civil] case is likely to be
extensively discussed in testimony in the case
at bar.” . . .
The Court has no idea what that statement
means or how such testimony would warrant
recusal in this case. Given the lack of any
legal authority or factual explanation for the
request, the People’s notice regarding recusal
is DENIED without prejudice.
¶ 80 At a subsequent bond hearing, without first filing a motion for
recusal, defense counsel requested a hearing to address the recusal
issue. Judge Schultz did not set a hearing at that time but noted
that if there was a basis for recusal beyond what was raised in the
People’s earlier notice, counsel could file a motion and supporting
affidavits.
¶ 81 Judge Schultz then denied the oral request in a written order
and directed any party seeking recusal “to file a written motion
supported by factual affidavits as required by the governing rules
and law” and stated that if the court “receives that filing, it will
determine if an evidentiary hearing is warranted.” No party filed a
34
recusal motion or supporting affidavits, and the case proceeded to
trial.
2. Standard of Review and Applicable Law
¶ 82 We review de novo whether a trial court judge’s recusal was
required. People v. Garcia, 2024 CO 41M, ¶ 20. The Fourteenth
Amendment’s Due Process Clause mandates recusal when the
objective “probability of actual bias . . . is too high to be
constitutionally tolerable.” Sanders v. People, 2024 CO 33, ¶ 29
(quoting Rippo v. Baker, 580 U.S. 285, 287 (2017)); see also § 16-6-
201(1)(b), (c), C.R.S. 2024 (a judge will be disqualified to hear a case
if the charged offense is alleged to have been committed against the
judge’s person or property or they are in any way prejudiced with
respect to the case, parties, or counsel).
¶ 83 In a criminal matter, a party seeking the substitution of a
judge must file a verified motion within fourteen days of the case’s
assignment, together with supporting affidavits of at least two
credible individuals who are not related to the defendant. Crim. P.
21(b)(1). Any judge who is aware of a circumstance in which they
would be disqualified shall, on their own motion, disqualify
themselves. Id.
35
¶ 84 A party seeking disqualification must allege concrete facts;
“conclusory statements, conjecture, and innuendo do not suffice.”
Black v. Black, 2020 COA 64M, ¶ 117 (quoting Zoline v. Telluride
Lodge Ass’n, 732 P.2d 635, 639 (Colo. 1987)). “Disqualification for
an appearance of impropriety must be distinguished from
disqualification for actual bias. While the former may be waived,
the latter may not.” Rea v. Corr. Corp. of Am., 2012 COA 11, ¶ 22
(citing People in Interest of A.G., 262 P.3d 646, 650 (Colo. 2011));
see also Garcia, ¶ 27 (“[T]his court has recognized that ‘litigants
may waive disqualification when the disqualification is not for
reasons of actual bias or prejudice.’” (quoting A.G., 262 P.3d at
650)).
3. Application
¶ 85 Harmon contends that Judge Schultz reversibly erred by
failing to recuse himself because he was actually biased against
Harmon, or, at a minimum, the appearance of bias was great
enough that recusal was necessary.
¶ 86 The actual bias, Harmon continues, is that Judge Schultz may
have witnessed some of the criminal conduct the prosecution
alleged and that the judge generated some of Paul’s testimony by
36
asking him follow-up questions. Therefore, Harmon argues, Judge
Schultz functionally operated as an “advocate who generated
evidence relied upon by the prosecution,” and therefore he was
required to recuse.
¶ 87 Harmon also argues that Judge Schultz may have been
present during the 2018 incident Anna described in which Harmon
commented to a courthouse deputy that he may return after lunch
in handcuffs. If Judge Schultz was privy to the comment that
Harmon made to the deputy, Harmon argues, he could have been a
material witness at the criminal trial.
¶ 88 Finally, Harmon argued that, because Judge Schultz made
factual findings and issued the order in the civil case requiring
Harmon to remove the building from the Hershberger’s property,
the jury may have given his findings in the civil case undue weight.
¶ 89 The People respond that Harmon waived any recusal argument
by failing to comply with the requirements of Crim. P. 21(b), and
that even if Harmon had filed a procedurally compliant motion, it
would have failed on the merits. We agree that Harmon waived any
appearance of impropriety argument, and that his argument
asserting that Judge Schultz had an actual bias fails on the merits.
37
¶ 90 As noted, a party waives the right to assert an appearance of
bias if they do not raise the issue in the trial court. Garcia, ¶ 27;
Rea, ¶ 22. Harmon failed to file a motion or other pleading
asserting that Judge Schultz’s presiding over this case created an
appearance of bias. Thus, Harmon waived his right to make any
appearance of bias argument on appeal, and we do not address it
further.
¶ 91 In contrast, Harmon’s claim of actual bias cannot be waived,
so we address the merits of the contention.
¶ 92 We perceive nothing to support Harmon’s contention that
Judge Schultz was actually biased against him. Despite multiple
opportunities to file a motion for recusal, Harmon failed to do so.
Thus, we lack specific facts to indicate that Judge Schultz was
actually biased. Moreover, the objective facts do not warrant such a
conclusion.
¶ 93 Prior involvement in a case does not automatically require a
judge to recuse themselves. People in Interest of S.G., 91 P.3d 443,
447 (Colo. App. 2004). Nor does the record suggest that Judge
Schultz had a bent of mind that prevented him from treating
Harmon fairly in the criminal trial. Brewster v. Dist. Ct., 811 P.2d
38
812, 813-14 (Colo. 1991) (“Recusal is intended to prevent a party
from being forced to litigate before a judge with a bent of mind.”).
Thus, we perceive no factual basis to support Harmon’s conclusory
appellate assertion that Judge Schultz was actually biased against
him. See Sanders, ¶ 50 (“Only when a judge was actually biased
will we question the reliability of the proceeding’s result. In other
words, while both an appearance of impropriety and actual bias are
grounds for recusal from a case, only when the judge was actually
biased will we question the result.” (quoting People in Interest of
A.P., 2022 CO 24, ¶ 29)).
¶ 94 Given the absence of apparent bias, we discern no error in
Judge Schultz’s decision not to recuse himself from this case.
D. Lesser Nonincluded Instruction
¶ 95 Finally, Harmon contends that the trial court erred by refusing
his counsel’s request that the court instruct the jury on
harassment, a lesser nonincluded offense to the stalking charges.
We discern no error.
1. Standard of Review and Applicable Law
¶ 96 A trial court must accurately instruct the jury concerning the
controlling law. Riley v. People, 266 P.3d 1089, 1092 (Colo. 2011).
39
We review a trial court’s jury instructions, as a whole, de novo to
determine whether the court met this obligation. Id. If the trial
court’s instructions accurately describe the applicable law, we
generally review the court’s decision whether to give a particular
instruction for an abuse of discretion. People v. Paglione, 2014 COA
54, ¶ 45. A trial court abuses its discretion if its decision is
manifestly arbitrary, unreasonable, or unfair, or if it misconstrues
or misapplies the law. People v. Vigil, 2024 COA 72, ¶ 19.
¶ 97 A lesser nonincluded offense is an offense that is subject to
less severe punishment than, and that contains at least one
element that is not part of, the charged offense. People v. Naranjo,
2017 CO 87, ¶ 15. “[A] criminal defendant is entitled to have the
jury presented with the option to convict him of a lesser non-
included offense, so long as a rational evidentiary basis exists to
simultaneously acquit him of the charged offense and convict him
of the lesser offense.” Id.
¶ 98 Harassment is a lesser nonincluded offense of stalking.
Pellegrin v. People, 2023 CO 37, ¶¶ 36-47. To support a guilty
verdict on a harassment charge, the prosecution must prove beyond
a reasonable doubt that the defendant acted “with intent to harass,
40
annoy, or alarm another person” and “[f]ollow[ed] a person in or
about a public place.” § 18-9-111(1)(c), C.R.S. 2024 (emphasis
added).
2. Application
¶ 99 Harmon contends that there was sufficient evidence to support
an instruction on harassment, rather than stalking, because he
admitted that he followed Paul and Anna to church — a public
location — purportedly to learn more about their faith. Harmon
specifically testified in the criminal trial that he “wasn’t trying to
scare them or anything” and “I didn’t get up on their bumper . . . I
didn’t want to bother them.”
¶ 100 Harmon is correct that the act of following Paul and Anna to
church satisfies the first element of a harassment charge. Harmon
also testified, however, that he had no desire to scare them and
actively tried to stay out of their view. This explanation was
consistent with Harmon’s purported desire to obtain more
information about their beliefs. But it is inconsistent with the
mental state element of harassment, which requires proof that
Harmon’s actions were made “with intent to harass, annoy, or
alarm another person.” § 18-9-111(1).
41
¶ 101 Contrary to Harmon’s argument on appeal, we see no rational
basis by which the jury could have concluded that he followed Paul
and Anna to church, while trying to remain unseen, solely in an
effort to determine their faith, but that he took such action with an
intent to harass, annoy, or alarm them.
¶ 102 Therefore, even if the jury believed Harmon’s purported
explanation for why he followed Paul and Anna to church, there
was no rational basis for the jury to convict him of harassment.
See Naranjo, ¶ 19 (“[A] defendant is not entitled to an instruction on
a lesser non-included offense that contradicts the defendant’s
sworn testimony at trial.”). Accordingly, the trial court did not err
by declining to instruct the jury on the lesser nonincluded offense
of harassment.
III. Disposition
¶ 103 The judgment is affirmed.
JUDGE WELLING and JUDGE KUHN concur.
42
Case Information
- Court
- Colo. Ct. App.
- Decision Date
- April 10, 2025
- Status
- Precedential