People v. Schlehuber

     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
                                                                 May 15, 2025

                                

No. 23CA1576, People v. Schlehuber — Criminal Law — Model
Jury Instructions — Presumption of Innocence, Burden of
Proof, and Reasonable Doubt

     Addressing four challenges to the 2022 Colorado model jury

instruction on reasonable doubt, a division of the court of appeals

concludes that the instruction does not unconstitutionally lower the

burden of proof, violate the presumption of innocence, or shift the

burden of proof to the defendant. More specifically, a district court

does not err by (1) failing to instruct the jury that reasonable doubt

may arise from “the lack of evidence”; (2) omitting the phrase

“hesitate to act” from the reasonable doubt definition; (3) defining

proof beyond a reasonable doubt as proof that leaves the jury

“firmly convinced” of the defendant’s guilt; and (4) instructing the

jury that the prosecution has failed to meet its burden if the jury

thinks “there is a real possibility” that the defendant is not guilty.
COLORADO COURT OF APPEALS                                        

Court of Appeals No. 23CA1576
Mesa County District Court No. 22CR165
Honorable Jeremy L. Chaffin, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kyle R. Schlehuber,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                   Division V
                          Opinion by JUDGE SCHOCK
                       Lipinsky and Sullivan, JJ., concur

                           Announced May 15, 2025


Philip J. Weiser, Attorney General, Carmen Moraleda, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Dilyn K. Myers, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Kyle R. Schlehuber, appeals his conviction for

 driving while ability impaired (DWAI) (fourth or subsequent offense).

 He argues that the district court erred by (1) giving the model jury

 instruction on reasonable doubt then in effect and (2) admitting a

 record of his prior conviction without redaction. We affirm.

¶2    In doing so, we hold that the 2022 Colorado model criminal

 jury instruction on reasonable doubt does not unconstitutionally

 lower the prosecution’s burden of proof, violate the presumption of

 innocence, or shift the burden of proof to the defendant.

                           I.    Background

¶3    While parked at a gas station, Schlehuber was approached by

 police because his truck matched the description of a truck that

 had reportedly driven through a fence. The first officer to approach

 did not smell a strong odor of alcohol on Schlehuber. But the next

 officer to arrive did. According to the second officer, Schlehuber’s

 breath smelled of alcohol, his eyes were glassy, and his speech was

 slurred. Schlehuber told the officer he had drunk four beers.

¶4    The officer arrested Schlehuber and asked if he would be

 willing to perform roadside sobriety tests. After initially declining,

 Schlehuber agreed, failing all three tests he was given. The officer


                                    1
 then drove Schlehuber to a hospital to take a blood test. On the

 way, Schlehuber told the officer he took several prescription

 medications that made the effect of alcohol “three times worse.”

¶5    Once at the hospital, Schlehuber began making marks on the

 blood test consent form, ostensibly to indicate what other

 substances were in his system. The officer told him not to write on

 the form and gave him a piece of scratch paper to write on instead.

 Schlehuber wrote “fuck” on the signature line of the consent form,

 which the officer interpreted as a refusal to cooperate with testing.

 As a result, Schlehuber’s blood alcohol content was never tested.

¶6    Schlehuber was charged with felony driving under the

 influence (DUI) (fourth or subsequent offense), based on three prior

 DUI convictions. A jury found him guilty of the lesser included

 offense of felony DWAI (fourth or subsequent offense).

                  II.   Reasonable Doubt Instruction

¶7    Schlehuber contends that the district court reversibly erred by

 giving the 2022 Colorado model criminal jury instruction on

 reasonable doubt. He asserts that the instruction lowered the

 prosecution’s burden of proof, undercut the presumption of

 innocence, and shifted the burden of proof to him. We disagree.


                                   2
                      A.    Additional Background

¶8    Before 2022, the Colorado model criminal jury instruction

 defined reasonable doubt as follows:

            Reasonable doubt means a doubt based upon
            reason and common sense which arises from a
            fair and rational consideration of all of the
            evidence, or the lack of evidence, in the case.
            It is a doubt which is not a vague, speculative
            or imaginary doubt, but such a doubt as
            would cause reasonable people to hesitate to
            act in matters of importance to themselves.

 COLJI-Crim. E:03 (2021).1 That instruction has been approved by

 Colorado courts. See People v. Alvarado-Juarez, 

 (Colo. App. 2010); People v. Robb, 

 (Colo. App. 2009); see also Tibbels v. People, 

 (urging courts to adhere to “long-established pattern instructions”).

¶9    In 2022, the model instruction concerning the presumption of

 innocence, burden of proof, and reasonable doubt was substantially

 revised to read, in its entirety, as follows:

            Every person charged with a crime is
            presumed innocent. This presumption of

 1 The 2021 model instruction also included a paragraph concerning

 the presumption of innocence that is nearly identical to the first
 paragraph of the 2022 model instruction and a final paragraph that
 is similar to the final two paragraphs of the 2022 instruction.
 Compare COLJI-Crim. E:03 (2021) with COLJI-Crim. E:03 (2022).

                                     3
         innocence remains with the defendant
         throughout the trial and should be given effect
         by you unless, after considering all the
         evidence, you are convinced that the defendant
         is guilty beyond a reasonable doubt.

         The burden of proof in this case is upon the
         prosecution. The prosecution must prove to
         the satisfaction of the jury beyond a
         reasonable doubt the existence of each and
         every element necessary to constitute the
         crime charged. This burden requires more
         than proof that something is highly probable,
         but it does not require proof with absolute
         certainty.

         Proof beyond a reasonable doubt is proof that
         leaves you firmly convinced of the defendant’s
         guilt. If you are firmly convinced of the
         defendant’s guilt, then the prosecution has
         proven the crime charged beyond a reasonable
         doubt. But if you think there is a real
         possibility that the defendant is not guilty,
         then the prosecution has failed to prove the
         crime charged beyond a reasonable doubt.

         After considering all the evidence, if you decide
         the prosecution has proven each of the
         elements of a crime charged beyond a
         reasonable doubt, you should find the
         defendant guilty of that crime.

         After considering all the evidence, if you decide
         the prosecution has failed to prove any one or
         more of the elements of a crime charged
         beyond a reasonable doubt, you should find
         the defendant not guilty of that crime.

COLJI-Crim. E:03 (2022).


                                 4
¶ 10   The district court in this case gave the 2022 version of the

  instruction verbatim (except that it substituted Schlehuber’s name

  for “the defendant”). Schlehuber objected, noting that the new

  model instruction had not been approved by any court. He argued

  that it lowered the reasonable doubt standard, undermined the

  presumption of innocence, and shifted the burden of proof to the

  defense. More specifically, he took issue with the “firmly convinced”

  and “real possibility” phrases, contending that these phrases could

  cause confusion and set the bar for reasonable doubt too high.

  Schlehuber proposed a different instruction based on model jury

  instructions from other states or, alternatively, requested that the

  court use the prior version of the Colorado model instruction.

¶ 11   The district court denied Schlehuber’s request. It explained

  that the pertinent language in the 2022 model instruction had been

  approved by federal courts and quoted with approval by Justice

  Ginsburg in her partial concurrence in Victor v. Nebraska, 

 (1994) (Ginsburg, J., concurring in part and concurring in the

  judgment). The court also concluded that the 2022 model

  instruction “presents the concept of reasonable doubt . . . in a more

  succinct and understandable fashion” than the prior version.


                                    5
              B.    Applicable Law and Standard of Review

¶ 12   The United States Constitution “protects the accused against

  conviction except upon proof beyond a reasonable doubt of every

  fact necessary to constitute the crime with which he is charged.” In

  re Winship, 

 (1970). The reasonable doubt

  standard gives “concrete substance” to the presumption of

  innocence afforded all defendants. Tibbels, ¶ 24 (quoting Winship,

  

); see also Perez v. People, 

 (“The

  presumption of innocence . . . is a basic component of a fair

  trial . . . .” (quoting Estelle v. Williams, 

 (1976))).

¶ 13   The district court must properly instruct the jury on the

  reasonable doubt standard. Tibbels, ¶ 25. Although the court has

  some flexibility in how it defines reasonable doubt, an instruction

  that lowers the prosecution’s burden of proof below the reasonable

  doubt standard is structural error requiring automatic reversal. Id.

  at ¶¶ 22, 25. To determine whether an instruction impermissibly

  lowered the burden of proof, we apply a “functional test, asking

  whether there is a reasonable likelihood that the jury understood

  [the] contested instruction, in the context of the instructions as a




                                      6
  whole and the trial record, to allow a conviction based on a

  standard lower than beyond a reasonable doubt.” Id. at ¶ 36.

¶ 14   Model jury instructions are “intended as guidelines and should

  be considered by trial courts.” People v. Morales, 

; see also Galvan v. People, 

 (noting that

  model instructions “serve as beacon lights to guide trial courts”).

  But they are not binding and they are not the law. Krueger v. Ary,

  

 (Colo. 2009); People v. Randolph, 

,

  ¶ 22 (cert. granted Sept. 25, 2023). Nor does adherence to a model

  instruction provide a “safe harbor that insulates instructional error

  from reversal.” Garcia v. People, 

. Instead, we

  review such an instruction as we would any other. See id. at ¶ 23.

¶ 15   We review de novo whether a jury instruction impermissibly

  lowered the prosecution’s burden of proof. Tibbels, ¶ 22. But as

  long as the instructions properly inform the jury of the law, the

  district court has broad discretion to determine their form and

  style. McDonald v. People, 

, ¶ 54. Thus, if the

  instructions as a whole correctly inform the jury of the

  prosecution’s burden of proof beyond a reasonable doubt, there is

  no due process violation. Johnson v. People, 

.


                                    7
                                C.   Analysis

¶ 16   Schlehuber challenges four aspects of the 2022 model jury

  instruction, as given by the district court: (1) its failure to direct the

  jury that it could consider the “lack of evidence”; (2) its omission of

  the “hesitate to act” phrase that was in the previous model

  instruction; (3) its equating reasonable doubt with “a real possibility

  that the defendant is not guilty”; and (4) its use of the phrase

  “firmly convinced” to define proof beyond a reasonable doubt.

¶ 17   He argues that these errors, individually and collectively,

  unconstitutionally lowered the prosecution’s burden of proof to

  something less than beyond a reasonable doubt. Although

  Schlehuber did not raise his first two arguments in the district

  court, we consider all four claims of error because if they lowered

  the burden of proof, they would amount to structural error. See

  Tibbels, ¶ 22; Stackhouse v. People, 

, ¶ 10 n.3 (noting

  that even forfeited structural error requires automatic reversal).

                           1.    Lack of Evidence

¶ 18   The previous version of the model jury instruction provided

  that reasonable doubt could arise from “consideration of all of the

  evidence, or the lack of evidence, in the case.” COLJI-Crim. E:03


                                      8
  (2021) (emphasis added). The 2022 model instruction removed this

  sentence and, with it, any reference to the “lack of evidence.”

  COLJI-Crim. E:03 (2022).2 Like the previous version, the 2022

  instruction continues to provide that the defendant is presumed

  innocent “unless, after considering all the evidence, you are

  convinced that the defendant is guilty beyond a reasonable doubt.”

  Id.; see also COLJI-Crim. E:03 (2021). Schlehuber maintains that

  the omission of the “lack of evidence” language undermined the

  reasonable doubt standard by diminishing the significance of

  “holes” in the prosecution’s case and shifting the burden to the

  defense to identify evidence establishing a reasonable doubt.

¶ 19   In an opinion issued today, another division of this court has

  rejected this argument. See People v. Melara, 

.

  The Melara division concluded that a district court “should inform

  the jury, as part of the reasonable doubt instruction, that it may

  consider the lack of evidence in the case.” 

 But despite that



  2 In 2023, the Model Criminal Jury Instructions Committee, without

  explanation, reinserted the reference to the “lack of evidence” into
  the definition of reasonable doubt by adding a new sentence that
  reads, “A reasonable doubt can be based on the evidence presented
  or the lack of evidence presented.” COLJI-Crim. E:03 (2023).

                                    9
  admonition, the division held that the omission of that phrase did

  not impermissibly lower the prosecution’s burden of proof in that

  case. 

 We agree with Melara that the omission of this phrase

  from the reasonable doubt instruction is not structural error.

¶ 20   But in doing so, we depart from Melara in one respect.

  Although we agree with Melara that it might be better for a district

  court to instruct the jury that it may consider the lack of evidence,

  we disagree with Melara’s direction that a court “should” do so — at

  least to the extent that direction implies any legal deficiency in an

  instruction without such language. Id. at ¶ 28. To the contrary, we

  hold expressly that a court does not err by omitting that language.3

¶ 21   As the Melara division recognizes, “the absence of an express

  instruction to consider the lack of evidence is not tantamount to a

  prohibition on doing so.” Id. at ¶ 32. And as other courts have



  3 At least six federal courts of appeals have held that a court does

  not err by omitting an explicit reference to the lack of evidence from
  a jury instruction defining reasonable doubt. See United States v.
  Petty, 

 (10th Cir. 2017); United States v.
  Jacques, 

 (11th Cir. 2008); United States v.
  Rogers, 

 (8th Cir. 1996); Leecan v. Lopes, 

 (2d Cir. 1990); United States v. Baskin, 

 (D.C. Cir. 1989); Rault v. Louisiana, 

 (5th Cir.
  1985). We are not aware of any case that has held to the contrary.

                                    10
  pointed out in upholding instructions that do not refer to the lack of

  evidence, the concept of reasonable doubt inherently invites jurors

  to consider what evidence is missing. See United States v. Rogers,

  

 (8th Cir. 1996) (“That a lack of evidence may

  cause one to have a reasonable doubt is self-evident.”); see also

  United States v. Petty, 

 (10th Cir. 2017).

¶ 22   We also agree with the People that this conclusion is bolstered

  by reading the instruction as a whole, which informs the jury that

  (1) the prosecution bears the burden of proof; (2) Schlehuber is

  presumed innocent unless the prosecution meets its burden; and

  (3) in making that determination, the jury must consider “all the

  evidence.” Necessarily, that means that if the prosecution fails to

  present sufficient evidence of guilt, it will not have met its burden.

  See Petty, 

; see also Rault v. Louisiana, 

 (5th Cir. 1985) (“These instructions necessarily conveyed

  the concept that a reasonable doubt would arise in the absence of

  evidence sufficient to show guilt beyond a reasonable doubt.”).

¶ 23   Indeed, although the prior version of the model instruction

  referred to “the lack of evidence” in defining reasonable doubt, other

  portions of the instruction did not. Instead, like the 2022 model


                                    11
  instruction, the prior version directed the jury to determine whether

  the defendant was guilty beyond a reasonable doubt “after

  considering all the evidence.” COLJI-Crim. E:03 (2021). And it

  instructed the jury that it should find the defendant guilty or not

  guilty based on whether it did or did not find “from the evidence”

  that the prosecution had proved each element of the crime beyond a

  reasonable doubt. Id.; see also Robb, 

.

¶ 24   Schlehuber points out that both the United States Supreme

  Court and divisions of this court have approved reasonable doubt

  instructions that refer expressly to consideration of the “lack of

  evidence.” See Johnson v. Louisiana, 

 (1972),

  abrogated on other grounds by Ramos v. Louisiana, 

  (2020); Robb, 

. But that does not mean the

  converse is true — that it is error not to include that phrase. And a

  district court “is not obligated to give any jury instruction submitted

  by the defendant simply because it correctly states the law.” People

  v. Sanders, 

, ¶ 35, aff’d on other grounds, 

.

¶ 25   Thus, we stop short of Melara’s direction about what district

  courts “should” do going forward. A district court’s obligation is to

  correctly inform the jury of the prosecution’s burden of proof


                                    12
  beyond a reasonable doubt. See Tibbels, ¶ 25. And on that issue,

  we converge with Melara: the omission of the “lack of evidence”

  language did not unconstitutionally lower the prosecution’s burden

  of proof below the reasonable doubt standard because there is no

  reasonable likelihood the jury understood it to do so. Melara, ¶ 32.

                          2.    Hesitate to Act

¶ 26   The United States Supreme Court and Colorado courts have

  upheld — over challenges from criminal defendants — jury

  instructions that define reasonable doubt as a doubt that would

  cause a reasonable person to “hesitate to act.” See Victor, 

; Alvarado-Juarez, 

; Robb, 

.

¶ 27   But that formulation of reasonable doubt has not come

  without criticism. Most notably, in her partial concurrence in

  Victor, Justice Ginsburg called the “hesitation to act” analogy

  “misplaced” because many of the most important decisions people

  make in their lives come with a “very heavy element of uncertainty”

  and are “unlike the decisions jurors ought to make in criminal

  cases.” 

 (Ginsburg, J., concurring in part and

  concurring in the judgment) (citation omitted). That criticism, in

  part, is what prompted the Model Criminal Jury Instructions


                                    13
  Committee to remove the “hesitate to act” phrase from the model

  jury instruction. See COLJI-Crim. E:03 cmt. 1 (2024).

¶ 28   Schlehuber now argues that the removal of this oft challenged

  language improperly lowered the burden of proof. But other than

  pointing out that courts have previously approved this language, he

  does not say why it is error not to include it. And we do not see why

  it would be, so long as the instruction otherwise correctly defines

  the reasonable doubt standard. See United States v. O’Brien, 

 (1st Cir. 1992) (rejecting argument that a court “must

  use the ‘hesitate to act’ language when defining reasonable doubt”);

  United States v. Velasquez, 

 (9th Cir. 1992)

  (noting that while cases have approved of the “hesitate to act”

  language, “failure to use that language does not necessarily

  constitute reversible error”). To reiterate the point we make above,

  just because a proposed instruction is a correct statement of the

  law does not mean the instruction must be given or that it is the

  only correct way to articulate the applicable law. Sanders, ¶ 35.

               3.   Firmly Convinced and Real Possibility

¶ 29   Schlehuber next turns from what the instruction did not say

  about the reasonable doubt standard to what it did say. He argues


                                    14
  that the instruction erroneously defined (1) reasonable doubt as a

  “real possibility that Mr. Schlehuber is not guilty” and (2) proof

  beyond a reasonable doubt as proof that leaves you “firmly

  convinced” of the defendant’s guilt. Because these two challenged

  phrases are two sides of the same coin, we address them together.

¶ 30   To start, this juxtaposition — between believing there is a “real

  possibility” the defendant is not guilty, on one hand, and being

  “firmly convinced” of the defendant’s guilt, on the other — has been

  consistently approved by federal courts as an accurate expression

  of the reasonable doubt standard. See, e.g., Petty, 

; United States v. Williams, 

 (5th Cir.

  1994); United States v. Taylor, 

 (D.C. Cir.

  1993); see also Victor, 

 (Ginsburg, J., concurring

  in part and concurring in the judgment) (endorsing a similar

  definition as “surpass[ing] others . . . in stating the reasonable




                                    15
  doubt standard succinctly and comprehensibly”).4 So has the

  “firmly convinced” language alone. See Harris v. Bowersox, 

 (8th Cir. 1999); United States v. Brand, 

 (1st Cir. 1996). And in Melara, the division approved of

  both phrases as “an accurate statement of the law.” Melara, ¶ 30.

¶ 31   We agree with this weight of authority. The phrase “firmly

  convinced” correctly connotes a standard of “near certitude,”

  Jackson v. Virginia, 

 (1979) — one that is higher

  than “highly probable” but stops short of absolute certainty. See

  People v. Camarigg, 

, ¶ 49 (noting distinction

  between “proof beyond a reasonable doubt and proof beyond all

  doubt”). And the phrase “real possibility” correctly directs the jury

  not to acquit the defendant simply because it can conceive of some

  fanciful possibility that the defendant is not guilty. Williams, 

; see also Victor, 

 (approving of instruction


  4 Schlehuber cites two federal cases that disapproved of the “real

  possibility” language in a reasonable doubt jury instruction, neither
  of which held that the inclusion of that phrase was reversible error.
  See United States v. Porter, 

 (4th Cir. 1987);
  United States v. McBride, 

 (2d Cir. 1986). Both
  cases predated Justice Ginsburg’s concurrence in Victor v.
  Nebraska endorsing such an instruction. See 

 (1994)
  (Ginsburg, J., concurring in part and concurring in the judgment).

                                    16
  that a reasonable doubt is “not a mere possible doubt” because

  everything “is open to some possible or imaginary doubt”).

¶ 32   Relying on a Hawaii case, Schlehuber contends that “firmly

  convinced” is more akin to the lesser standard of clear and

  convincing evidence than to proof beyond a reasonable doubt. See

  State v. Perez, 

 (Haw. Ct. App. 1998), aff’d in

  part and rev’d in part on other grounds, 

 (Haw. 1999).

  We disagree. Clear and convincing evidence is “evidence that is

  highly probable and free from serious or substantial doubt.”

  Destination Maternity v. Burren, 

 (citation omitted).

  The model instruction used in this case says that proof beyond a

  reasonable doubt “requires more than proof that something is

  highly probable.” COLJI-Crim. E:03 (2022) (emphasis added). And

  it requires the prosecution to dispel any “real possibility” the

  defendant is not guilty, not just a serious or substantial one. 

¶ 33   We also reject Schlehuber’s argument that the two challenged

  phrases are “contradictory” or “create two different standards.”

  Rather, the phrases work together to give the jury a complete

  picture of the reasonable doubt standard. The first — “firmly

  convinced” — describes what it means to have no reasonable doubt.


                                    17
  The second — “real possibility” — contrasts that with what it means

  to have a reasonable doubt. In other words, the jury could either be

  “firmly convinced” of Schlehuber’s guilt (and find him guilty) or

  “think there is a real possibility” that Schlehuber was not guilty

  (and find him not guilty). Both things could not be true.

¶ 34   Nor does equating reasonable doubt with a “real possibility”

  shift the burden to the defendant to establish that real possibility.

  Nothing in that phrase suggests that the defendant must be “the

  source of the ‘real possibility.’” Taylor, 

. To the

  contrary, the district court repeatedly instructed the jury that the

  prosecution bears the burden of proving each element of the crime

  beyond a reasonable doubt. The “real possibility” language simply

  explained the threshold the prosecution must overcome to do so.

                         4.    Cumulative Effect

¶ 35   Finally, Schlehuber contends that even if none of the putative

  errors he identifies individually lowered or shifted the burden of

  proof or undercut his presumption of innocence, their cumulative

  effect was to do so. We disagree. Considering the instruction in its

  entirety and “in the context of the instructions as a whole and the

  trial record,” we conclude that there is no reasonable likelihood that


                                    18
  a jury would understand the 2022 model jury instruction, as given

  by the district court in this case, “to allow a conviction based on a

  standard lower than beyond a reasonable doubt.” Tibbels, ¶ 36.

                     III.   Record of Prior Conviction

¶ 36   Schlehuber next argues 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. He

  asserts that this information was irrelevant and unduly prejudicial

  and should have been excluded under CRE 403 and CRE 404(b).5

  Although we agree that certain portions of the record should not

  have been admitted, we conclude that any error was harmless.

                       A.    Additional Background

¶ 37   To prove Schlehuber had three or more prior qualifying

  convictions, the prosecution introduced certified records of a 2013




  5 Schlehuber cites the constitutional right to a fair trial by an

  impartial jury. See Howard-Walker v. People, 

.
  But he does not develop any constitutional argument, so we decline
  to address one. See People v. Leverton, 

. Not
  every evidentiary error rises to the level of constitutional error. See
  People v. Dominguez-Castor, 

; see also Yusem v.
  People, 

, 469 n.16 (Colo. 2009) (“Erroneous admission
  of CRE 404(b) evidence is not error of constitutional dimension.”).

                                     19
  Nebraska conviction and two Colorado convictions in 2020 and

  2021. Only the Nebraska conviction record is at issue on appeal.

¶ 38   The fourteen-page record of the Nebraska conviction included:

         • a criminal complaint charging Schlehuber with DUI

            (second offense), driving during suspension, and failure

            to yield the right-of-way;

         • a plea of not guilty;

         • a court order indicating that Schlehuber pleaded guilty to

            DUI (second offense) and was sentenced to probation;

         • an order of probation indicating the terms of the

            probation, including license revocation, attendance at

            Alcoholics Anonymous meetings, outpatient treatment,

            and alcohol abstention;

         • an affidavit of probation violation and motion for

            revocation;

         • a memorandum from the probation office alleging several

            probation violations, including a new charge of driving

            under revocation, failing to disclose pending sentences in

            another county, failing to comply with court orders

            (resulting in an active arrest warrant), failing to attend

                                    20
            Alcoholics Anonymous meetings, and failing to complete

            outpatient treatment;

          • a memorandum from the prosecutor indicating an intent

            to file the probation violation and seek a warrant; and

          • an order revoking Schlehuber’s probation and sentencing

            him to jail for thirty days.

¶ 39   Schlehuber objected to the admission of the Nebraska record.

  Initially, he asserted that the entire document was irrelevant

  because it did not indicate the existence of a conviction. When the

  court ruled there was a sufficient foundation to show the record

  was more likely than not a judgment of conviction, Schlehuber

  turned his focus to portions of the record that went beyond the

  conviction. He argued that much of the record was irrelevant and

  inadmissible under CRE 403 because it “list[ed] literally everything

  else that ha[d] happened in the case,” including everything he had

  been charged with. He specifically objected to the portion of the

  record that mentioned his probation violation and revocation.

¶ 40   The district court overruled the objection and admitted the

  record in its entirety. Given Schlehuber’s suggestion that the

  record did not clearly establish a conviction, the court concluded

                                    21
  that the jury should be entitled to review the entire document “to

  determine whether or not there is in fact a prior qualifying

  conviction.” It ruled that the probation violation was relevant to

  that question because probation necessarily suggests there has

  been a conviction. The court also concluded that a limiting

  instruction would adequately address any danger of unfair

  prejudice by directing the jury that it could consider the record only

  for determining whether or not there was a prior qualifying offense.

¶ 41   The district court then gave the jury the following limiting

  instruction:

             [Y]ou’re about to hear evidence regarding Mr.
             Schlehuber’s alleged prior convictions. You
             may only consider this evidence to decide
             whether the prosecution has proved beyond a
             reasonable doubt that Mr. Schlehuber has
             three or more prior qualifying convictions. You
             may not consider this evidence for any other
             purpose.

  The court gave a similar limiting instruction after Schlehuber

  testified about the prior convictions and at the end of trial.

                 B.   Standard of Review and Applicable Law

¶ 42   The district court has broad discretion to determine the

  admissibility of evidence based on its relevance, probative value,



                                     22
  and prejudicial impact. People v. Elmarr, 

. We

  review evidentiary rulings for an abuse of discretion. People v.

  Owens, 

, ¶ 105. A district court abuses its discretion

  when its ruling is manifestly arbitrary, unreasonable, or unfair or

  when it is based on an incorrect understanding of the law. 

¶ 43   Evidence is relevant if it has “any tendency to make the

  existence of any fact that is of consequence to the determination of

  the action more probable or less probable than it would be without

  the evidence.” CRE 401. Irrelevant evidence is inadmissible. CRE

  402. Relevant evidence may be excluded if its probative value is

  substantially outweighed by the danger of unfair prejudice. CRE

  403. In reviewing whether evidence should have been excluded

  under CRE 403, we afford the evidence its maximum reasonable

  probative value and the minimum unfair prejudice that might

  reasonably be expected. People v. Acosta, 

.

¶ 44   Evidence of other crimes or acts is not admissible “to prove a

  person’s character in order to show that on a particular occasion

  the person acted in conformity with the character.” CRE 404(b)(1).

  But such evidence is admissible for “almost any non-propensity

  purpose.” Rojas v. People, 

; see also CRE 404(b)(2).


                                   23
  Thus, evidence of extrinsic acts that are suggestive of bad character

  is admissible if it is (1) logically relevant (2) to a material fact

  (3) independent of the prohibited inference of the defendant’s bad

  character, and (4) its probative value is not substantially

  outweighed by the risk of unfair prejudice. Rojas, ¶¶ 27, 52.

¶ 45   When an evidentiary objection is preserved, we review the

  erroneous admission of evidence for harmless error. People v.

  Hines, 

, ¶ 40. Under this standard, we will reverse if

  there is a “reasonable probability” that the error contributed to the

  defendant’s conviction. People v. Vanderpauye, 

, ¶ 66.

¶ 46   We review unpreserved evidentiary claims for plain error,

  meaning we will reverse only if the error was “obvious, substantial,

  and ‘so undermined the fundamental fairness of the trial itself as to

  cast serious doubt on the reliability of the judgment of conviction.’”

  People v. Snelling, 

, ¶ 33 (citation omitted).

                                C.    CRE 403

¶ 47   The record of the Nebraska conviction itself was relevant and

  admissible to prove the fact of Schlehuber’s prior DUI conviction —

  an element of the charged offense — and Schlehuber does not

  contend otherwise. See People v. Kembel, 

. But


                                       24
  that does not mean the entire fourteen-page record should have

  been admitted wholesale. See Carter v. People, 

  (noting that if an admissible recording “contains evidence of

  uncharged crimes or otherwise inadmissible evidence, it must of

  course be redacted before being admitted into evidence”); Martin v.

  People, 

 (Colo. 1987) (holding that where the

  defendant’s confinement was relevant but the nature of his offense

  was not, the district court “should have admitted the mittimus with

  the prejudicial information excised”). It is the portions of the record

  that go beyond the fact of Schlehuber’s conviction that are at issue.

¶ 48   Given Schlehuber’s argument that the proffered exhibit did not

  show a qualifying conviction, we agree with the district court that

  certain portions of the exhibit beyond the record of conviction itself

  were at least minimally relevant. For example, the criminal

  complaint showed Schlehuber was charged with DUI; the order of

  probation identified the charge for which probation was imposed as

  DUI; the affidavit of probation violation stated that Schlehuber was

  found guilty of DUI; and the probation violation allegations and

  revocation order both identified the charge as DUI. All this evidence

  made it more probable that Schlehuber had in fact been convicted


                                    25
  of DUI in that case. See People v. Morales, 

 (“The

  prosecution is generally entitled to prove the elements of its case

  against a defendant by evidence of its own choice . . . .”).

¶ 49   We note that Schlehuber was incorrect in arguing that the

  exhibit did not include the record of conviction. The court order in

  the exhibit stated that Schlehuber had pleaded guilty to DUI, was

  found guilty of DUI, and was sentenced to probation as a result.

  This direct evidence of the prior conviction reduces the “‘marginal’

  or ‘incremental’ probative value” of the other portions of the exhibit.

  People v. Williams, 

. But to the extent

  Schlehuber’s initial objection caused the court to overstate the

  significance of these other documents, Schlehuber invited any such

  error by asserting that the record did not otherwise show a

  conviction. See People v. Rediger, 

 (“The doctrine

  of invited error prevents a party from complaining on appeal of an

  error that he or she has invited or injected into the case . . . .”).

¶ 50   Nevertheless, we agree with Schlehuber that certain portions

  of the record were not relevant. Among other things, those portions

  included other (non-DUI) charges that had been dismissed, multiple

  alleged probation violations, a subsequent charge of driving under


                                      26
  revocation, a reference to pending sentences in another county and

  an active arrest warrant, a reference to probation violations in

  another case, and a probation officer’s comment that Schlehuber

  “has received multiple opportunities to engage in rehabilitative

  efforts” but “continues to demonstrate an inability to appropriately

  adopt a more conventional lifestyle and avoid legal conflicts.” None

  of this evidence made it more or less probable that Schlehuber had

  been convicted of DUI in the Nebraska case. See CRE 401.

¶ 51   Moreover, even if this evidence had some minimal probative

  value, any such value was substantially outweighed by the danger

  of unfair prejudice. CRE 403. Together, this evidence showed a

  pattern of Schlehuber’s failure to comply with the law and, in

  particular, his struggles with alcohol. Cf. People v. Hamilton, 

 (“Evidence of a prior criminal conviction is generally

  inadmissible because of its highly prejudicial effect.”). In a case

  that turned on whether Schlehuber was under the influence of or

  impaired by alcohol, the risk that the jury might improperly take

  into account his prior alcohol-related issues was high. Thus, even

  giving the evidence its maximum reasonable probative value and its




                                    27
  minimum reasonable unfairly prejudicial effect, the district court

  abused its discretion by admitting the record in its entirety.

¶ 52   We nonetheless conclude that this error was harmless for

  three reasons. First, the jury properly heard evidence that

  Schlehuber had three prior DUI convictions — including

  Schlehuber’s testimony that he “pleaded guilty [to each] because

  [he] did it.” Those convictions themselves informed the jury that

  Schlehuber had a history of alcohol-related convictions that was at

  least as prejudicial as the acts described in the Nebraska record.

  See People v. Carian, 

 (holding that prior drug

  offense “likely had minimal impact on the jury” when the jury was

  already informed that the defendant had issues related to drugs).

  Notably, the prosecution never mentioned any information

  contained in the Nebraska record other than the DUI conviction.

¶ 53   Second, while the Nebraska record concerned Schlehuber’s

  conduct in 2013 and 2014, Schlehuber’s other two DUI convictions

  were from 2020 and 2021. These more recent convictions were

  more indicative of his continued criminal conduct and problems

  with alcohol at the time of the charged offense than his probation

  violations and non-alcohol-related offenses nearly a decade earlier.


                                    28
¶ 54   Third, the district court instructed the jury — both

  immediately after the Nebraska record was admitted and in its final

  instructions — 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. See

  id. at ¶ 45 (holding that error in admission of prior offense was

  harmless where the court’s limiting instruction “mitigated any

  potential prejudice that may have flowed from the admission of the

  challenged evidence”). Although we do not go so far as to conclude

  that such an instruction alone will always make the erroneous

  admission of such evidence harmless, we generally presume that a

  jury follows the district court’s instructions. Id.; see also Kembel,

  ¶ 49 (noting that the potential prejudice to a defendant “can be

  largely neutralized through limiting jury instructions”).

¶ 55   Thus, although we agree with Schlehuber that the Nebraska

  record contained extraneous information that should have been

  redacted or otherwise excluded, we conclude that there is no

  reasonable probability that the admission of that information

  contributed to Schlehuber’s conviction. See Vanderpauye, ¶ 66.




                                    29
                             D.   CRE 404(b)

¶ 56   Schlehuber also contends that the admission of the Nebraska

  record violated CRE 404(b) because it contained extrinsic evidence

  of other acts. He did not object on this ground in the district court.

  Rather, his counsel cited only “relevance, [CRE] 403, hearsay, and

  . . . lack of foundation.” Given these stated bases for the objection,

  counsel’s reference to “everything that Mr. Schlehuber was charged

  with” was not sufficiently specific to alert the district court to a CRE

  404(b) issue. See People v. Ujaama, 

. We

  therefore review this contention for plain error. Id. at ¶ 38.

¶ 57   Much of the CRE 404(b) analysis dovetails with the analysis

  above. To the extent the Nebraska record was offered to prove the

  fact of Schlehuber’s prior DUI conviction, it was intrinsic to the

  charged offense, and its relevance was independent of any inference

  about Schlehuber’s character. See Rojas, ¶¶ 27, 52. To the extent

  the record included evidence of other acts beyond the prior DUI




                                     30
  conviction, that evidence was extrinsic and was not “logically

  relevant . . . to [any] material fact.” Id. at ¶¶ 27, 52.6

¶ 58   But even assuming the admission of such evidence was

  obvious error under CRE 404(b), it does not constitute plain error

  for the reasons above. Because there is no reasonable probability

  that the improperly admitted evidence contributed to Schlehuber’s

  conviction, it did not undermine the fundamental fairness of the

  trial or cast serious doubt on the reliability of the conviction. See

  Hagos v. People, 

 (“[T]he error must impair the

  reliability of the judgment of conviction to a greater degree [under

  plain error] than under harmless error to warrant reversal.”).

                              IV.   Disposition

¶ 59   The judgment is affirmed.

       JUDGE LIPINSKY and JUDGE SULLIVAN concur.




  6 We reject the People’s attempt to avoid CRE 404(b) by arguing that

  the other acts referenced in the Nebraska record were intrinsic to
  the Nebraska DUI. The question is whether the acts are intrinsic or
  extrinsic to the charged offense. Rojas v. People, 

.

                                      31