Peo v. Xia

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22CA1401 Peo v Xia 11-20-2025

COLORADO COURT OF APPEALS


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


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Xinan Xia,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

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

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


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

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

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

                           I.   Background

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

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

 received an anonymous tip that employees at the spa were

 performing sex acts for payment. The police investigation

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

 reviews spas and massage parlors that offer sexual services.

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

 undercover officer who posed as a massage customer. The officer

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

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

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

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

 indicated that she did.

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

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

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

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


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

 and detained J.F. and J.X.

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

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

 massage rooms and on several towels. Later testing confirmed that

 the stains were semen. The police also found bank statements

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

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

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

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

 records also showed that many customers would pay twice,

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

 second payment was often fifty percent or more than the initial

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

 health information, or signed consent and liability waivers.

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

 involvement in prostitution and that any sexual activity had

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

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

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


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

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

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

 years of probation.

                             II.   Analysis

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

 nonparty, to make a blanket assertion of her Fifth Amendment

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

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

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

 We address each contention in turn.

       A.   The Blanket Assertion of Fifth Amendment Privilege

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

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

 Fifth Amendment right to remain silent. We disagree.

                       1.   Additional Background

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

 prosecutors were unwilling to grant her immunity. On the morning

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

 parties offered proposed questions so that the court could


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

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

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

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

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

          [XIA’S COUNSEL]: Exactly.

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

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

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

[THE PROSECUTOR]: Yes.

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

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

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

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

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

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


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

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

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

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




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

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

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

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

  counsel advised her of her Fifth Amendment rights. That afternoon

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

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

  court confirmed that neither the prosecutor nor the defense was

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

                             2.    Preservation

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

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

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

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


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

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

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

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

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

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

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

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

  counsel made no objections to her invocation of the Fifth

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

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

  Amendment privilege or that a blanket prohibition on her testifying

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

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

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

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

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

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

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

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

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

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


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

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

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

              3.    Standard of Review and Applicable Law

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

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

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

  nonconstitutional, that were not preserved by objection for plain

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

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

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

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

  trial. Scott v. People,
2017 CO 16, ¶ 16
(quoting People v. Pollard,
2013 COA 31M
, ¶ 40); see People v. Crabtree,
2024 CO 40M
, ¶ 72.

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

  fundamental fairness of the proceeding as to cast serious doubt on

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

  1006
(Colo. 2003); see Hagos, ¶ 14.

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

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


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

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

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

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

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

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

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

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

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

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

  his or her Fifth Amendment privilege.’”
Id.
(quoting People v. Coit,
50 P.3d 936, 938
(Colo. App. 2002)).

                 4.    The Trial Court Did Not Plainly Err

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

  testifying about matters that would not be subject to her Fifth

  Amendment privilege, such as exculpatory statements that no

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

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

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

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


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

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

  blanket assertion of her [Fifth] Amendment right without ever

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

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

  Austin and repeated often by the Colorado Supreme Court. See

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

  standing alone disregards other relevant principles, such as the

  inherent concerns about undue prejudice resulting from a party

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

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

  prohibition against asking a witness about invoking the privilege is

  to prevent the jury from drawing a negative inference about the

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

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

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

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

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

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

  knows that the witness will claim his privilege against self-


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

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

  questions which it knows the witness will refuse to answer because

  of a valid claim to a privilege not to testify.”
Id.
¶ 18   It’s true that during the pendency of this appeal, the supreme

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

  to question a nonparty alternate suspect who intends to invoke the

  Fifth Amendment privilege and that such a witness cannot assert a

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

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

  defense counsel asking a defense witness questions counsel knew

  the witness would refuse because of the Fifth Amendment privilege.

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

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

  finding that there was a nonspeculative connection or nexus

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

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

  53, ¶ 23
.

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

  prosecution calling a witness who intends to invoke the Fifth


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

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

  stand, and the court prohibited her from testifying after it

  determined that the parties’ anticipated questions would implicate

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

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

  intends to invoke the Fifth Amendment.”).

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

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

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

  claim that the court prohibited him from questioning a witness that

  he never sought to call. See People v. Geisick,
2016 COA 113, ¶ 16
(“When a party specifically removes issues from a trial court’s

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

  review them on appeal.”).

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

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

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

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

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


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

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

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

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

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

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

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

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

  not obvious. See Scott, ¶ 16.

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

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

                 B.    The Request for a Jury Instruction

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

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

  Amendment privilege and was refusing to testify. We again

  disagree.

                         1.    Standard of Review

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

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

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


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

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

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

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

  22M
, ¶ 14.

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

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

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

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

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

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

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

  on whether the court should provide a jury instruction about a

  nonparty witness’s invocation of the Fifth Amendment privilege.

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

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

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

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

  summarized,



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

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

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

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

  a party witness, McGillis draws its nonparty witness rule directly

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

  well-settled differences between civil and criminal cases. See

  McGillis, ¶ 27.

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

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

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

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

  would have been the instruction that she had invoked her Fifth

  Amendment privilege. Instructing the jury in this manner would

  constitute a credibility attack on a potential witness who has not

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



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

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

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

  evidence for the sole purpose of impeaching the credibility of a

  person who is not a witness for the prosecution. See Hall v. People,
35 P. 44
, 44 (Colo. 1893). Xia’s request was an attempt to

  accomplish the same impermissible purpose.

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

  invocation of her Fifth Amendment rights was not manifestly

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

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

                     C.   The Recorded Statements

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

  process and to present a defense when it prohibited the

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

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




                                    17
  introduction of the recorded statements because, while hearsay,

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

                             1.   Preservation

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

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

  People assert that he presents his argument — that the statements

  were admissible given their indicia of reliability or

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

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

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

  hearsay exception argument is not.

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

  colloquy:

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

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

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

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

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

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

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

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

  statements were hearsay, counsel only argued why they were

  useful, not that they were nonetheless admissible because they

  were reliable and trustworthy. Thus, this contention is

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

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

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

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

  omitted))).

                 2.   Standard of Review and Applicable Law

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

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




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

  unfair, or if it misapplies the law.”
Id.
¶ 34   “[O]nly errors that specifically and directly offend a defendant’s

  constitutional rights are ‘constitutional’ in nature.” Wend v. People,
235 P.3d 1089, 1097
(Colo. 2010). We review an evidentiary ruling

  for constitutional harmless error only when, under the

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

  defendant from meaningfully testing evidence central to

  establishing his guilt.” Krutsinger v. People,
219 P.3d 1054, 1062
(Colo. 2009).3 However, we review an evidentiary error that does

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

  significant prosecution evidence” for nonconstitutional harmless

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

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

¶ 35   An otherwise inadmissible hearsay statement

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

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

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

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

  CRE 807.

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

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

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

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

  argues that his constitutional right to present a defense trumps the

  rules of evidence.

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

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

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


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

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

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

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

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

  evidence or to produce inadmissible hearsay.”
Id.
¶ 38   Xia relies on Chambers v. Mississippi,
410 U.S. 284, 302
(1973), in support of his constitutional argument. But that reliance

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

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

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

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

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

  unlike the Mississippi evidentiary rules at issue in Chambers,

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

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

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

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

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

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


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  was denied “a trial in accord with traditional and fundamental

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

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

  admitted the recorded statements as trustworthy under a hearsay

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

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

  Rule 807 contains multiple requirements that must be satisfied

  before a court can admit otherwise inadmissible hearsay, many of

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

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

  than any other evidence which the proponent can procure through

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

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

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

  This is particularly true for two witnesses whose testimony the trial

  court hadn’t even heard.

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

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

  statements.




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                           III.    Disposition

¶ 41   The judgment is affirmed.

       JUDGE J. JONES and JUDGE MOULTRIE concur.




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