Because there was no named victim, a man convicted of robbery in El Paso County will receive a new trial, the Court of Appeals decided on Thursday.

According to court records, Carlos Christopher Calderon reportedly entered a Sears in September 2016 and attempted to shoplift two bicycle accessories by hiding them in a coat. A loss prevention officer watched the maneuver over a security camera and asked the assistant store manager for help in stopping Calderon. The two workers ran out of the store after Calderon, confronting him just outside the doors.

Calderon allegedly turned around and both employees saw he had a knife in a sheath. He did not remove it, nor did he point it. Calderon then stepped toward them, tossed one of the accessories and walked away, ending the pursuit. Police later encountered Calderon, finding the knife and a bike light valued under $50.

A jury subsequently convicted him of robbery, aggravated robbery, menacing and theft. Colorado law defines robbery as the act of taking something of value from a person, while aggravated robbery involves the possession of a deadly weapon. The trial court judge, calling it a “very stiff sentence for what actually happened,” gave Calderon the minimum 10 years in prison for aggravated robbery.

On appeal, Calderon argued that the jury potentially delivered a non-unanimous verdict on his convictions for robbery and aggravated robbery. Originally, prosecutors named both the assistant manager and loss prevention officer as the robbery victims, and only the officer as the aggravated robbery victim. However, when the judge provided the jury with instructions, there was no reference to a victim for either charge.

The verdict form for the jury similarly had no victim named, even though the menacing charges referenced both employees individually.

“During opening statements, the prosecutor argued that Calderon was guilty of robbery and aggravated robbery without naming a specific victim, whereas the prosecutor made it clear that different victims were charged for each count of menacing,” wrote Judge Jaclyn Casey Brown for the three-member appeals panel.

The appellate judges found it possible that individual jurors believed Calderon was guilty of robbing one employee or the other, leading to a violation of the longstanding principle of jury unanimity. The panel reversed Calderon’s robbery convictions and ordered a new trial.

While the judges did not find the prosecutor in the Fourth Judicial District had committed misconduct that affected the trial, they issued a general warning over attorneys' use of analogies to illustrate the legal concept of reasonable doubt to prospective jurors.

During jury selection, the unnamed prosecutor called attention to the American and Colorado flags in the courtroom, saying there was no doubt they were the emblems of the country and the state. 

“[I]t also makes sense with where we are in a courtroom, that they’re in the United States of America in the State of Colorado, right?” the prosecutor continued.

Calderon contended on appeal that the effect of this analogy was to lower the burden of proof for his conviction. Brown, in the appellate panel’s Dec. 17 opinion, cited a list of cases in which the Court of Appeals was asked to determine the propriety of an analogy at trial.

“This collection of cases instructs us in two ways,” she wrote. “First, trial courts and prosecutors must avoid quantifying or trivializing the burden of proof by using puzzle analogies, referring to iconic images, or likening the highest burden of proof that we recognize — beyond a reasonable doubt — to ordinary, daily decision-making.”

Second, context was key. The appellate panel concluded the El Paso County prosecutor’s flag analogy did not obviously lower the burden of proof. However, Brown noted a lack of a clear standard for how to treat analogies.

Such a directive may be forthcoming. This summer, the Colorado Supreme Court agreed to hear a case in which an Adams County district judge illustrated reasonable doubt to jurors by comparing it to homebuyer discovering a crack in the foundation of a house. A separate Court of Appeals panel decided 2-1 that the analogy did not merit a reversal of the conviction.

The justices in October also announced their review of another case out of Adams County in which the prosecution committed multiple errors, including the illustration of reasonable doubt by asking a potential juror if she could identify the United States flag for $1 million. 

Colorado is not alone in grappling with how to handle prosecutors’ use of imagery in their attempts to explain reasonable doubt to juries. Bryn Kirvin, a deputy district attorney in San Diego, observed that “well-intentioned prosecutors occasionally employ oversimplified diagrams and puzzles in an attempt to ‘explain’ the reasonable doubt standard to juries.”

She added that while it is exciting to craft a creative argument for jurors, “a prosecutor is well advised to not get too creative with the reasonable doubt standard.”

The case is People v. Calderon.

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