People v. Schlehuber.
2025 COA 50. No. 23CA1576. Model Jury Instructions—Presumption of Innocence—Burden of Proof—Reasonable Doubt—CRE 403—CRE 404(b).
May 15, 2025
Schlehuber was charged with felony driving under the influence (DUI) (fourth or subsequent offense), based on three prior DUI convictions. The district court gave the jury the 2022 version of the model jury instruction on reasonable doubt (2022 instruction), then in effect. A jury found him guilty of the lesser included offense of felony driving while ability impaired (fourth or subsequent offense).
On appeal, Schlehuber argued that the district court erred by giving the 2022 instruction because it lowered the prosecution’s burden of proof, undercut the presumption of innocence, and shifted the burden of proof to him. Schlehuber maintained that the 2022 instruction was deficient in that it (1) failed to direct the jury that it could consider the “lack of evidence”; (2) omitted the “hesitate to act” phrase that was in the previous model instruction; (3) equated reasonable doubt with “a real possibility that the defendant is not guilty”; and (4) used the phrase “firmly convinced” to define proof beyond a reasonable doubt. In People v. Melara, 2025 COA 48, ¶ 24, another court of appeals division rejected the first argument, and that division expressly held that a court does not err by omitting the “lack of evidence” language. Second, other than pointing out that courts have previously approved the “hesitate to act” language, Schlehuber did not articulate why it is error not to include it. Nor would it be error if the instruction otherwise correctly defined the reasonable doubt standard. Lastly, the expressions of believing there is a “real possibility” the defendant is not guilty and being “firmly convinced” of the defendant’s guilt have been consistently approved by federal courts as accurately expressing the reasonable doubt standard. Therefore, the court held that the 2022 instruction does not unconstitutionally lower the prosecution’s burden of proof, violate the presumption of innocence, or shift the burden of proof to the defendant. Accordingly, the court also rejected Schlehuber’s argument that even if none of the alleged errors he identified individually lowered or shifted the burden of proof or undercut his presumption of innocence, their cumulative effect did so.
Schlehuber also contended that the district court reversibly erred by admitting portions of the record of one of his prior convictions that referred to other criminal charges and probation violations because this information was irrelevant and unduly prejudicial under CRE 403 and 404(b). To prove Schlehuber had three or more prior qualifying convictions, the prosecution introduced, as relevant here, certified records of a 2013 Nebraska conviction that included multiple documents. Certain portions of the record were not relevant, such as other non-DUI charges that had been dismissed, multiple alleged probation violations, a subsequent charge of driving under revocation, and a reference to pending sentences in another county and an active arrest warrant. And this evidence was substantially outweighed by the danger of unfair prejudice, so the district court abused its discretion by admitting the record in its entirety. But the error was nevertheless harmless because (1) the jury properly heard evidence that Schlehuber had three prior DUI convictions, (2) Schlehuber’s more recent convictions were indicative of his continued criminal conduct and problems with alcohol at the time of the charged offense, and (3) the district court instructed the jury twice that it could only consider the evidence to decide whether the prosecution had proved beyond a reasonable doubt that Schlehuber had three or more prior qualifying convictions. Further, even assuming that the admission of some evidence was obvious error under CRE 404(b), it did not constitute plain error because there is no reasonable probability that the improperly admitted evidence contributed to Schlehuber’s conviction, and it did not undermine the fundamental fairness of the trial or cast serious doubt on the reliability of the conviction.
The judgment was affirmed.