People v. Cohen

     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
                                                              March 21, 2019

                                2019COA38

No. 15CA0982, People v. Cohen — Evidence — Admissibility —
Opening the Door Doctrine — Hearsay — Relevancy and Its
Limits; Constitutional Law — Sixth Amendment —
Confrontation Clause

     A division of the court of appeals addresses the limits of the

“opening the door” doctrine — a fairness-related trial doctrine via

which one party may introduce otherwise inadmissible evidence

after the other party first “opens the door” to it. The division holds

that this doctrine is limited; any otherwise inadmissible evidence

introduced after one party opens the door must be confined to

preventing any unfair prejudice or misleading impression that

might otherwise result. The division also holds that certain

statements introduced in defendant’s trial went far beyond anything

allowed by the opening the door doctrine; were inadmissible on

hearsay, relevance, and undue prejudice grounds; and violated her
Sixth Amendment rights under the Confrontation Clause. Because

the error in allowing this evidence was not harmless beyond a

reasonable doubt (or harmless), the division reverses defendant’s

convictions and remands for a new trial.
COLORADO COURT OF APPEALS                                         2019COA38


Court of Appeals No. 15CA0982
Boulder County District Court No. 14CR437
Honorable Andrew Hartman, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Emily Elizabeth Cohen,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division V
                         Opinion by JUDGE J. JONES
                         Terry and Grove, JJ., concur

                          Announced March 21, 2019


Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Emily Elizabeth Cohen, a formerly licensed

 Colorado lawyer, appeals the judgment of conviction entered on jury

 verdicts finding her guilty of thirteen counts of theft. Among the

 issues we address is whether defendant opened the door to

 extensive evidence of the investigations the Colorado Office of

 Attorney Regulation Counsel (OARC) conducted on her, and the

 results of those investigations. We conclude that while some

 evidence of the fact of and basis for the investigations could come

 in, much of the evidence about the investigations, and OARC’s

 findings, shouldn’t have. In so concluding, we reject the People’s

 argument that defendant opened the door to all of the admitted

 evidence, and discuss the limits of the opening the door doctrine.

 In the end, we hold that the district court erred in admitting three

 OARC complaints against defendant, and that the error wasn’t

 harmless. We therefore reverse the judgment of conviction and

 remand the case for a new trial.

                           I.   Background

¶2    Defendant practiced law in Boulder, specializing in

 immigration law. The People charged her with fifty-four counts of

 theft, each relating to her alleged mishandling of client funds. More


                                    1
 specifically, the People alleged that defendant took cash payments

 up front and then didn’t do the work she had agreed to do, became

 difficult or impossible to contact, and didn’t provide her clients with

 refunds.

¶3    The People ultimately tried defendant on twenty-one of the

 charges. The prosecution called over a dozen witnesses, including

 several of defendant’s former clients, many of whom testified as to

 their payments, defendant’s failure to perform services, and their

 difficulty getting in touch with her.

¶4    But a significant portion of the eleven-day trial focused on

 defendant’s ethical obligations under the Colorado Rules of

 Professional Conduct (RPC) and her failure to comply with those

 obligations. For example, the prosecution presented evidence that

 defendant spent client payments before earning them and often

 deposited as yet unearned payments into her personal accounts

 rather than into her attorney trust (COLTAF) account. 1 OARC




 1 A COLTAF account is a type of trust account an attorney may use
 for all fees not yet earned (among other things). See Colo. RPC
 1.15B. “COLTAF” stands for Colorado Lawyer Trust Account
 Foundation.

                                    2
 employees testified concerning attorneys’ ethical obligations under

 the RPC and that defendant had been under investigation since

 2012 for possible ethical violations. The court admitted into

 evidence letters that defendant had received from OARC informing

 her of the investigation. Over defense counsel’s objections, the

 court also admitted three of the complaints that OARC had filed

 against her. And the district court allowed another attorney to

 testify at some length about her concerns that defendant hadn’t

 behaved honestly and ethically in a variety of ways, none of which

 related to the handling of client funds.

¶5    The district court instructed the jury on the elements of theft

 and gave an instruction containing language from one of the Rules

 of Professional Conduct relating to the handling of client funds.

 That instruction (Instruction 11) quoted Colo. RPC 1.15A: “A lawyer

 shall hold property of clients or third persons that is in the lawyer’s

 possession in connection with a representation separate from the

 lawyer’s own property. Funds shall be kept in trust accounts[.]” It

 also included other language, not directly quoting the RPC,

 explaining that client funds are not the attorney’s property until the




                                    3
 attorney earns them by “provid[ing] some benefit or service in

 exchange for the fee . . . .”

¶6    After some deliberation, the jurors asked the court whether

 they could use the OARC RPC charging decisions to inform their

 decision-making; whether the OARC’s standard for verifying the

 receipt of money by an attorney was the standard they should

 apply; whether failure to deposit client funds into a COLTAF

 account before earning fees constitutes “intent to permanently

 deprive” (one of the elements of theft); and whether earning fees at a

 later time can undo a prior COLTAF violation. The jurors also

 indicated that they were deadlocked on at least one charge.

 Perhaps without consulting defense counsel (the record isn’t clear

 whether the attorneys were even in the room; defendant claims they

 weren’t), and without defendant present, the court responded to the

 jurors’ questions noted above by merely telling them they had all

 the evidence they were to consider, they should follow the

 instructions, and these were issues for them to decide. The court

 (also apparently without consulting counsel and outside counsel’s




                                   4
 and defendant’s presence) also read the jurors a modified Allen

 instruction. 2

¶7    The jury continued deliberating and returned guilty verdicts

 on thirteen counts. It hung on one and acquitted on the remaining

 seven.

                            II.   Discussion

¶8    Defendant contends the district court erred by (1) admitting

 the OARC complaints; (2) including the instruction about an

 attorney’s ethical obligations vis-a-vis earning fees and handling

 client funds; (3) allowing another immigration attorney to respond

 at length to a juror’s question about defendant’s “red flags”; (4)

 responding to jurors’ questions without consulting with her counsel

 and outside her and her counsel’s presence; and (5) giving the jury

 a modified Allen instruction without consulting her counsel and

 outside her and her counsel’s presence. We agree with defendant

 that reversal is required based on the court’s erroneous admission




 2 A modified Allen instruction is a supplemental jury instruction
 that the court may provide when the jury indicates that it can’t
 come to unanimous agreement. In essence, it urges jurors to do so
 without sacrificing their independent judgment. Gibbons v. People,
 

, ¶ 1.

                                    5
  of the OARC complaints. We also address the jury instruction issue

  because it’s likely to arise again on remand.

                         A.   OARC Complaints

¶9     First, defendant contends that the district court erred by

  admitting the three OARC complaints into evidence. She argues

  that the complaints were inadmissible for a number of reasons. We

  conclude that while certain facts pertaining to the complaints had

  some relevance to the charges, the complaints themselves are

  replete with inadmissible hearsay. We also conclude that allowing

  all this hearsay into evidence violated defendant’s Sixth Amendment

  right to confrontation, and that, on the whole, the danger of unfair

  prejudice, confusion of the issues, and misleading the jury

  substantially outweighed the complaints’ limited probative value.

  Because the error in admitting the totality of these complaints

  wasn’t harmless, we must reverse defendant’s convictions.

                        1.    Standard of Review

¶ 10   Ordinarily, we review a district court’s evidentiary rulings for

  an abuse of discretion. Dunlap v. People, 

, 1097

  (Colo. 2007); People v. Clark, 

, ¶ 14. But to the extent

  such rulings impact a defendant’s rights under the Confrontation


                                    6
  Clause, we review challenges to them de novo. Bernal v. People, 

, 198 (Colo. 2002).

¶ 11   The People concede that defendant preserved hearsay,

  Confrontation Clause, and relevance/undue prejudice objections to

  the complaints. So if we conclude that the court erred in applying

  the Colorado Rules of Evidence, we must then reverse unless the

  People show that the error was harmless, meaning that there is no

  reasonable possibility that it contributed to defendant’s convictions.

  Pernell v. People, 

, ¶ 22; see James v. People, 

, ¶ 18. If we conclude that the court violated defendant’s

  constitutional right of confrontation, we must reverse unless the

  People show that the error was harmless beyond a reasonable

  doubt. Nicholls v. People, 

, ¶ 17; Hagos v. People, 

, ¶ 11. 3



  3 The supreme court has recently articulated the tests for
  determining harmlessness beyond a reasonable doubt and
  harmlessness in identical terms: whether there is a reasonable
  possibility that the error contributed to the conviction. E.g., Zoll v.
  People, 

, ¶ 18 (citing Hagos v. People, 

, ¶ 11)
  (harmless beyond a reasonable doubt); Pernell v. People, 

, ¶ 22 (harmless). With all due respect, given that the
  prosecution has the burden under either standard, that can’t be
  right. As a matter of logic, and as the court recognized in Hagos,

                                     7
                           2.   Applicable Law

¶ 12   Hearsay — a statement by one other than the declarant while

  testifying that is offered to prove the truth of the matter asserted —

  is generally inadmissible. CRE 801(c); CRE 802; People v. Phillips,

  

, ¶ 61. Such statements are “presumptively

  unreliable.” Blecha v. People, 

, 937 (Colo. 1998). But

  a statement isn’t hearsay if it’s offered for a purpose other than to

  prove the truth of the matter asserted — for example, to show its

  effect on the listener. People v. Robinson, 

, 1151

  (Colo. App. 2009). In such circumstances, the statement may be

  admissible.

¶ 13   The Confrontation Clause says that in “all criminal

  prosecutions, the accused shall enjoy the right . . . to be confronted

  with the witnesses against him.” U.S. Const. amend. VI. The

  United States Supreme Court has held that this clause bars out-of-

  court testimonial statements unless the declarant is available to be




  ¶ 12, reversal must be more difficult to obtain under the harmless
  error standard than under the harmless beyond a reasonable doubt
  standard. Perhaps the supreme court should resolve this
  conundrum.

                                     8
  cross-examined or the defendant had a prior opportunity to cross-

  examine the declarant. Crawford v. Washington, 

, 53-

  54 (2004). Generally, a statement is testimonial if its primary

  purpose is to establish or prove past events potentially relevant to a

  later trial. Davis v. Washington, 

, 822 (2006); see also

  

.

¶ 14   Even apart from hearsay and Confrontation Clause

  limitations, evidence must, of course, be relevant — that is, it must

  have some tendency to make the existence of a fact of consequence

  more or less probable. CRE 401; CRE 402. But even if evidence is

  relevant, the court must still exclude it if the danger of unfair

  prejudice, confusion of the issues, or misleading the jury

  substantially outweighs that evidence’s probative value. CRE 403.

                           3.   The Complaints

¶ 15   OARC filed its first complaint against defendant in February

  2011. That complaint alleged that defendant had failed to disclose

  information on her application to the Colorado bar, including her

  maiden name, certain employment history, and past due debts; that

  she had practiced law without a license; that she had testified




                                     9
  falsely that she was licensed in Texas; and that she had filed false

  affidavits with the Denver County Court.

¶ 16   During defendant’s trial in this case, the prosecutor sought to

  admit a copy of this complaint. Defense counsel objected based on

  relevance, hearsay, and confrontation. The court admitted the

  complaint over these objections but didn’t say why.

¶ 17   OARC filed two more complaints against defendant in 2013

  and 2014, respectively. These complaints included information

  similar to the criminal allegations against defendant (that she had

  kept clients’ money despite doing little or no work on their cases),

  but discussed former clients not named in the criminal charges for

  which she was on trial. 4 In total, the second and third complaints

  alleged seventy-eight RPC violations. But in addition to the

  information that tracked allegations in this case, the OARC

  complaints contained other negative allegations against defendant,




  4 The People had charged defendant with theft in relation to three of
  the clients mentioned in these complaints. But before trial, they
  had dismissed two of those charges without prejudice. So only one
  of the allegations in the complaints involved the specific conduct for
  which defendant was on trial at the time.

                                    10
  including that she had incorrectly advised clients on how to qualify

  for certain visas.

¶ 18   Defense counsel objected to the admission of the second and

  third complaints on grounds of prejudice, relevance, CRE 404(b),

  and confrontation. The prosecutor responded that the complaints

  were relevant because they addressed “exactly the same kind of

  client handling issues” as those in the criminal case, and because

  they showed defendant’s mental state. The court then admitted the

  complaints because they “put the defendant on notice of her

  obligations, and that definitely impacts the intent element in the

  pending complaint.”

                              4.   Analysis

                              a.   Hearsay

¶ 19   The complaints are replete with OARC’s and defendant’s

  former clients’ assertions of unethical conduct; many of the

  assertions don’t have any bearing on whether defendant committed

  theft. To be sure, the fact that OARC had informed defendant of

  her ethical obligations concerning handling of client funds bore

  somewhat on defendant’s knowledge and intent, but the lengthy

  complaints went far beyond those issues. Indeed, the first


                                   11
  complaint didn’t bear on those issues at all. And contrary to the

  People’s assertion, the prosecution used the complaints for the

  truth of the matters asserted therein. For example, during cross-

  examination, the prosecutor asked defendant to confirm aspects of

  the first complaint (primarily relating to her honesty) and asked

  whether she agreed that “this is what [OARC] concluded after their

  investigation . . . .” During rebuttal closing, the prosecutor argued

  that the complaints showed that defendant had “committed

  perjury” before another judge and had in fact been untruthful on

  several occasions. The prosecutor also argued, by clear implication,

  that because the allegations in the latter two complaints were

  similar to those in this case, the jury could see there was truth in

  the criminal charges.

¶ 20   We aren’t persuaded by the People’s contention that the

  complaints weren’t hearsay because they were admitted to show

  defendant’s intent. The first complaint had nothing to do with

  mishandling client funds. It’s true that defendant’s receipt of the

  second and third OARC complaints put her on notice of her ethical

  obligations, and therefore cast some light on her intent. But the

  complaints themselves weren’t necessary to make that point and, as


                                    12
  discussed, weren’t actually used to make it. By the time the

  prosecutor moved to admit each complaint, the jury had already

  heard testimony from OARC attorneys and defendant herself about

  the fact and bases of the investigations and establishing that

  defendant had received the complaints. So admitting the actual

  complaints added nothing of relevance to the prosecution’s theory

  that defendant knew she was mishandling client funds.

¶ 21   Nor are we persuaded by the People’s argument that the OARC

  complaints were admissible because defense counsel opened the

  door to them during opening statements. Otherwise inadmissible

  evidence can become admissible if the defendant first “opens the

  door” to it. See Golob v. People, 

, 1012 (Colo. 2008)

  (“When a party opens the door to otherwise inadmissible evidence,

  his opponent may then inquire into the previously barred matter.”).

¶ 22   Defense counsel had implied during opening that the OARC

  investigations began because of “an inflammatory letter” sent by

  defendant’s child’s father and that the investigator was biased

  against her. And so, the People say, the complaints could come in.

  We aren’t persuaded.




                                   13
¶ 23   The concept of “opening the door” isn’t unlimited. It

  “represents an effort by courts to prevent one party in a criminal

  trial from gaining and maintaining an unfair advantage by the

  selective presentation of facts that, without being elaborated or

  placed in context, create an incorrect or misleading impression.”

  

inadmissible rebuttal evidence “is permitted ‘only

  to the extent necessary to remove any unfair prejudice which might

  otherwise have ensued from the original evidence.’” United States v.

  Martinez, 

, 702 (7th Cir. 1993) (quoting United States

  v. Winston, 

, 1240 (D.C. Cir. 1971)); accord, e.g.,

  State v. Groce, 

, 1277 (Vt. 2014); see generally

  1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence

  § 1:12, at 70-75 (4th ed. 2013) (discussing the necessary “fit”

  between the initial proof and the proposed counterproof). The

  opening the door doctrine, therefore, can be used only to prevent

  prejudice; it can’t be used as an excuse to inject prejudice into the

  case. United States v. Johnson, 

, 1376 (7th Cir.

  1974); United States v. Beno, 

, 588-89 (2d Cir. 1963);

  State v. Batchelor, 

, 740 (Vt. 1977) (the doctrine isn’t a

  tool for “prosecutorial ‘over-kill’”); see Mueller & Kirkpatrick, § 1:12,


                                     14
  at 73 (the doctrine is “supposed to prevent prejudice (not to

  introduce or exacerbate it)”). And in like vein, it doesn’t “give an

  opponent unbridled license to introduce otherwise inadmissible

  evidence into the trial, nor does it justify receipt of rebuttal evidence

  merely because it is in the same category of excludable evidence as

  the evidence previously offered.” 

.

  “Where the rebuttal evidence does not directly contradict the

  evidence previously received, or goes beyond the necessity of

  removing prejudice in the interest of fairness,” it shouldn’t be

  admitted. Id.; accord United States v. Jett, 

, 271 (7th

  Cir. 2018) (and noting that “[t]he gist of the doctrine is

  proportionality and fairness”); see Mueller & Kirkpatrick, § 1:12, at

  75 (“The question in each case is not whether initial proof shares

  some common quality with proof offered in response. Rather, it is

  whether the latter answers the former, and whether it does so in a

  reasonable way without sacrifice of other important values.”).

¶ 24   This limited purpose is evident in the supreme court’s

  reasoning in People v. Tenorio, 

, 

(1979).

  In that case, during cross-examination, defense counsel asked an

  officer if he had drawn his gun when he approached the defendant.


                                     15
  The officer said “yes.” On redirect, the prosecutor asked the officer

  why he had drawn his gun, and the officer explained that the

  defendant was reported to have a weapon. The court had

  previously ruled this information inadmissible. The supreme court

  held that even though the information was otherwise inadmissible,

  the defense had opened the door to the topic by asking if the officer

  had drawn his gun. 

590 P.2d at 958. This is because

  the prosecutor “had a right to explain or rebut any adverse

  inferences which might have resulted” from that question. 

590 P.2d at 958.

¶ 25   Similarly, in People v. Davis, 

(Colo. App. 2010),

  aff’d on other grounds, 

, defense counsel asserted

  during his opening statement that a prosecution witness only

  provided helpful information to the police officer after her interview

  had become confrontational (suggesting that she had been coerced

  into changing her story). 

A division of this court held

  that this opened the door to the officer’s response to the




                                    16
  prosecutor’s question why the officer began questioning the witness

  in a more confrontational manner. 

¶ 26   These cases tell us, consistent with the out-of-state authority

  cited above, that when one party injects a particular issue into a

  case, the opposing party may introduce otherwise inadmissible

  evidence only to the extent necessary to “rebut any adverse

  inferences which might have resulted,” Tenorio, 197 Colo. at 

, or to correct “an incorrect or misleading

  impression.” 

.

¶ 27   In this case, the prosecutor actually discussed the OARC

  investigations before defense counsel did. But in light of the

  purpose of the “opening the door” rule, we’ll assume that the

  defense’s implicit characterization of the investigations as grounded

  in bias opened the door to further evidence on the matter.

¶ 28   Evidence that the complaints existed and evidence of why they

  were filed was admissible to rebut the implication that OARC had a




  5 See also People v. Pernell, 

, ¶ 37 (upholding the
  admission of a victim’s (prior consistent) hearsay statements to
  rehabilitate her credibility after the defense claimed that she had
  fabricated her allegations), aff’d on other grounds, 

.

                                    17
  vendetta against defendant. See id.; Tenorio, 197 Colo. at 

. (And for reasons discussed above, limited testimony

  about the complaints was admissible to show defendant’s

  knowledge and intent.) Even so, the fact that defense counsel

  mentioned the OARC investigations and the investigator’s supposed

  bias didn’t give the prosecution carte blanche to introduce any and

  all evidence related to the investigations, including the entire

  complaints themselves, which contained a great deal of additional

  irrelevant and prejudicial information as well as OARC’s

  conclusions that defendant had acted unethically. Nor did it give

  the prosecutor license to argue that the allegations in the

  complaints — many of which had nothing to do with client funds —

  were true. And we note that the court didn’t do anything to limit

  the jury’s consideration of the complaints to the issues of bias,

  knowledge, and intent.

¶ 29   In sum, we conclude that the complaints were, in very large

  part, inadmissible hearsay. It follows that the court erred in

  admitting the complaints, or at least in admitting them in their

  entirety.




                                    18
                       b.   Confrontation Clause

¶ 30   A statement is testimonial for Confrontation Clause purposes

  if it was made under circumstances that would lead an objective

  witness to believe that the statement would be available for use at a

  later trial. United States v. Summers, 

, 1301-02 (10th

  Cir. 2005); Compan v. People, 

, 880 (Colo. 2005),

  overruled on other grounds by Nicholls v. People, 

.

¶ 31   The hearsay statements in the complaints by witnesses were

  testimonial. The declarants volunteered information to OARC

  knowing that their statements could be used to support an

  investigation of — and possible sanctions against — defendant.

  And they could have anticipated that a criminal investigation and

  criminal charges would result. See 

; People

  v. Cevallos-Acosta, 

, 129 (Colo. App. 2005) (the

  declarant’s intent should be considered when determining whether

  a statement is testimonial). The People don’t argue otherwise.

¶ 32   Only one of the declarants testified at trial. Defendant

  therefore didn’t have an opportunity to question most of them about

  statements in the complaints. As a result, admitting the complaints




                                   19
  in their entirety violated defendant’s constitutional right to

  confrontation.

                     c.   Danger of Unfair Prejudice

¶ 33   We also conclude that, even if we assume portions of the

  complaints had some relevance, that relevance was substantially

  outweighed by the danger of unfair prejudice. As discussed,

  admitting the complaints themselves wasn’t necessary to show

  defendant’s knowledge and intent or to rebut any implication of

  bias. And they contained a great deal of information about

  unrelated alleged ethical violations. Perhaps more importantly, the

  complaints added to the impression, clearly conveyed by the

  prosecution, that the case was about whether defendant had

  practiced law in accordance with her ethical obligations. Those

  ethical obligations, however, didn’t set the standard for criminal

  culpability. As discussed below, the complaints, and much of the

  other evidence, actually confused the jurors; they didn’t know

  whether a breach of ethical obligations established elements of the

  theft charges. Though we must assume the maximum probative

  value and minimum unfair prejudice of the evidence, see People v.

  Rath, 

, 1043 (Colo. 2002), the balance in this case


                                    20
  clearly weighs against the admissibility of the complaints (again, at

  least in their entirety).

                              d.   Harmlessness

¶ 34   Having determined that the district court erred, we must

  consider whether the People have shown that the error was

  harmless beyond a reasonable doubt. They haven’t. 6

¶ 35   No doubt, there was sufficient admissible evidence that would

  support the guilty verdicts. But the prosecution spent a

  considerable amount of time, both during the evidentiary part of the

  trial and in closing, using the OARC complaints to demonstrate that

  defendant routinely lied and violated ethical rules. That evidence

  and argument painted defendant as dishonest and unethical.

  Indeed, the first complaint, which didn’t have anything to do with

  alleged mismanagement of clients’ money, established only that

  OARC believed defendant had lied repeatedly in unrelated matters.

¶ 36   The jurors asked a number of questions indicating that the

  OARC evidence deeply impacted their view of the case; they seemed




  6Nor have the People shown that the nonconstitutional error was
  harmless.

                                     21
  to think that the ethical standards equated to some of the elements

  of theft. The trial’s focus on the ethical violations no doubt led to

  their confusion about how to apply the law and reach a verdict.

¶ 37   True, the jury acquitted defendant of some charges. But,

  contrary to the People’s suggestion, that doesn’t preclude the

  existence of a reasonable possibility that the inadmissible evidence

  influenced the jury’s guilty verdicts. And we conclude that there is

  such a possibility. We must therefore reverse the judgment.

                          B.    Jury Instructions

¶ 38   We address defendant’s contention regarding the instruction

  on handling client funds because the issue whether such an

  instruction is appropriate is likely to arise in the event of a retrial.

¶ 39   As noted, in addition to the instructions defining the elements

  of theft, the court gave the jury an instruction — Instruction 11 —

  quoting provisions of the RPC and defining when an attorney

  “earns” the money her clients pay her. The court provided no

  explanation of how the jury was to apply that instruction. And the

  jury indicated it didn’t understand how to apply it: the jurors

  submitted a question to the court asking whether failure to deposit

  client funds into a COLTAF account established the intent element


                                      22
  of theft. In response, the court merely referred the jury back to the

  instructions.

¶ 40   A court must accurately instruct the jury on the law relevant

  to each issue presented, but it must not give an instruction that

  misstates the law or “unduly emphasizes some part of the

  evidence.” People v. Ellsworth, 

, 1116 (Colo. App.

  2000). If the court gives the jury an instruction that contains

  technical information separate from the elements of the crimes at

  issue, the court should explain the instruction so that the jury can

  understand what it means and how to apply it. See Pueblo Bank &

  Tr. Co. v. McMartin, 

, 549, 

, 761

  (1972) (it was reversible error to include language of a highly

  technical statute in the jury instructions without sufficient

  explanation how the jury could properly interpret its meaning and

  apply it). And, when a jury asks a question, an additional

  instruction is appropriate unless

            (i) the jury may be adequately informed by
            directing [its] attention to some portion of the
            original instructions; (ii) the request concerns
            matters not in evidence or questions which do
            not pertain to the law of the case; or (iii) the
            request would call upon the judge to express



                                      23
             an opinion upon factual matters that the jury
             should determine.

  Leonardo v. People, 

, 1255 (Colo. 1986).

¶ 41   The language of Instruction 11 wasn’t objectionable. The

  instruction accurately stated Colorado’s ethical rules on how an

  attorney should handle client funds. And it could have helped the

  jurors understand the elements “without authorization” and

  “intent” in the context of the case. But the instruction was, at best,

  incomplete: the district court didn’t tell the jurors how to use the

  instruction and what its limits were. In not doing so, the court

  erred.

¶ 42   The jury’s confusion about how to apply Instruction 11 was

  evident. Even after hearing all the instructions and deliberating, we

  know that at least one juror was unclear on how a violation of

  attorney ethical rules would impact the determination of

  defendant’s guilt. At that point, the district court had another

  opportunity to tell the jury how it could consider defendant’s failure

  to deposit client funds into her COLTAF account. The court should

  have done so.




                                    24
¶ 43   On remand, in the event of a new trial, any instruction along

  these lines must be accompanied by an explanation of how it bears

  on the issues that the jury must resolve and must make clear that

  violations of ethical rules don’t, by themselves, prove any of the

  elements of theft.

                            III.   Conclusion

¶ 44   We reverse the judgment and remand the case for a new trial.

  In the event of a new trial, the court should maintain a tight rein on

  what evidence is introduced and how the jury is instructed so that

  the trial doesn’t again devolve into largely an extended inquiry into

  defendant’s compliance with her ethical obligations.

       JUDGE TERRY and JUDGE GROVE concur.




                                    25