Peo v. O'Brien

• Court: Colorado Court of Appeals
• Decided: September 18, 2025
• Docket: 24CA0287
• Status: Unpublished

Opinion

24CA0287 Peo v O’Brien 09-18-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0287 Arapahoe County District Court No. 16CR1924 Honorable Darren L. Vahle, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Reed Boone O’Brien,

Defendant-Appellant.

ORDER AFFIRMED

Division IV Opinion by JUDGE HARRIS Johnson and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025

Philip J. Weiser, Attorney General, Lisa K. Michaels, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Reed Boone O’Brien, Pro Se ¶1 Defendant, Reed Boone O’Brien, appeals the district court’s

order denying his Crim. P. 33 motion. We affirm.

I. Background

¶2 This appeal arises from events that occurred almost ten years

ago. In July 2016, O’Brien and the victim, Ross Cohen, attended a

family party in a community clubhouse. Afterward, O’Brien and

Cohen had a physical altercation in the clubhouse parking lot (the

physical altercation). O’Brien’s sister, Leah, witnessed the physical

altercation.

¶3 Once O’Brien and Cohen separated, Cohen drove to a nearby

townhome, a residence O’Brien shared with his grandmother, to

drop off some party items. O’Brien followed Cohen to the townhome

on foot, where he retrieved a shovel and told Cohen to leave. Cohen

drove back to the clubhouse and was sitting inside when O’Brien

returned and threatened him with the shovel (the menacing

altercation). See § 18-3-206, C.R.S. 2025 (“A person commits the

crime of menacing if, by any threat or physical action, he or she

knowingly places or attempts to place another person in fear of

imminent serious bodily injury.”). O’Brien’s mother, Regina,

witnessed the menacing altercation.

1 ¶4 The prosecution charged O’Brien with one count of felony

menacing based on the menacing altercation. O’Brien represented

himself at trial, during which Cohen, Leah, and Regina testified.

O’Brien’s theories of defense were that his conduct was (1) justified

by self-defense and (2) excused by temporary insanity, caused by

drunkenness and a self-diagnosed concussion. The jury rejected

those theories and found O’Brien guilty. The district court

sentenced O’Brien to a two-year term of probation, which he

completed in 2019.

¶5 In the meantime, O’Brien filed a notice of appeal in this court.

But he later moved to dismiss the appeal, and this court granted

the motion.

¶6 Then, in 2024, nearly seven years after his conviction, O’Brien

filed a pro se motion for a new trial under Crim. P. 33, asserting

that his conviction should be set aside based on newly discovered

evidence that (1) in 2020, he was diagnosed with attention-

deficit/hyperactivity disorder (ADHD); and (2) between 2020 and

2022, Regina testified in civil proceedings, and the court found

some of her testimony not credible. He also argued that the district

court improperly excluded voicemail evidence at his trial.

2 ¶7 The district court denied the motion as untimely. It further

concluded that even if the motion had been timely, the newly

discovered evidence claims did not merit a new trial.

¶8 O’Brien appeals the denial of his motion.

II. Discussion

A. Standard of Review and Applicable Law

¶9 Motions for a new trial based on newly discovered evidence are

regarded with disfavor. See Farrar v. People, 208 P.3d 702, 706

(Colo. 2009). We will not overturn denials of such motions unless

the defendant shows a clear abuse of the district court’s discretion.

People v. Roark, 643 P.2d 756, 765 (Colo. 1982).

¶ 10 To succeed on a motion for a new trial based on newly

discovered evidence, a defendant must file the motion “as soon after

entry of judgment as the facts supporting it become known.” Crim.

P. 33(c). The defendant also has the burden of proving that a new

trial is warranted under a four-part test. See People v. Bueno, 2013

COA 151, ¶ 24, aff’d, 2018 CO 4. He must show that (1) the

evidence was discovered after the trial; (2) he was diligent in his

efforts to discover the evidence prior to and during trial; (3) the

newly discovered evidence is material and not merely cumulative or

3 impeaching (the materiality prong); and (4) on retrial, the newly

discovered evidence would probably produce an acquittal (the

outcome prong). People v. Gutierrez, 622 P.2d 547, 559-60 (Colo.

1981).

¶ 11 To satisfy the materiality prong of the test, newly discovered

evidence “must be of sufficient consequence for reasons other than

its ability to impeach, or cast doubt upon, the evidence already

presented at trial.” Farrar, 208 P.3d at 706-07. (Emphasis added.)

To satisfy the outcome prong, newly discovered evidence “must be

consequential in the sense of being affirmatively probative of the

defendant’s innocence.” Id. at 707; see People v. Genrich, 2025 COA

49M, ¶ 27.

B. Timeliness

¶ 12 We first conclude that O’Brien’s evidentiary claim concerning

exclusion of the voicemail is untimely. A Crim. P. 33 motion based

on any ground “other than on the ground of newly discovered

evidence shall be filed within 14 days after verdict.” Because

O’Brien raised his excluded evidence claim more than six years

after the verdict, the district court properly denied this claim as

untimely. To the extent O’Brien raised any additional non-newly-

4 discovered-evidence claims in his motion, including any claim

concerning the right to use force in defense of property, those were

properly denied for the same reason.

¶ 13 The parties disagree about how a court should apply the

timeliness standard of a Crim. P. 33 motion based on newly

discovered evidence. We recognize that the facts alleged to support

O’Brien’s newly discovered evidence claims became known to him

(1) more than three years and (2) more than eighteen months,

respectively, before he filed his motion — time periods that the

district court found to exceed the rule’s limitation. We need not

decide whether this determination constitutes an abuse of the

court’s discretion, however, because we conclude that O’Brien failed

to allege facts showing that the evidence meets the materiality and

outcome prongs for newly discovered evidence to warrant a new

trial.

C. ADHD Diagnosis

¶ 14 O’Brien claims that his ADHD diagnosis constitutes newly

discovered evidence because the diagnosis makes it less likely that

the physical altercation ended the way Cohen and Leah described it

at trial — that a passing driver yelled at O’Brien to release Cohen

5 from a chokehold, and O’Brien complied. (O’Brien says that

because he has ADHD, he would not have complied with the

driver’s verbal direction.) According to O’Brien, if Cohen and Leah’s

credibility had been undermined on this point, the jury might have

also disbelieved their testimony that O’Brien started the physical

altercation, which, in O’Brien’s view, would have bolstered his self-

defense claim.

¶ 15 O’Brien’s ADHD diagnosis does not meet the materiality or

outcome prongs for newly discovered evidence.

¶ 16 As O’Brien acknowledges in his brief on appeal, the relevance

of the ADHD diagnosis “has to do with discrediting essential

[prosecution] witnesses . . . and bolstering the [d]efendant’s own

credibility.” That is just another way of saying that the ADHD

diagnosis would impeach or cast doubt on certain testimony

presented at trial. But as noted, to be material, the newly

discovered evidence must serve a purpose beyond impeachment.

See Farrar, 208 P.3d at 706-07.

¶ 17 Moreover, evidence that O’Brien has ADHD would not have

changed the outcome of the trial. Even assuming the diagnosis was

relevant to who initiated the physical altercation, there was virtually

6 no evidence that O’Brien acted in self-defense during the menacing

altercation. “Self-defense is an affirmative defense to the crime of

felony menacing if the defendant (1) threatened force upon another

person to defend against the use or imminent use of unlawful

physical force, and (2) reasonably believed the degree of force

threatened was necessary for that purpose.” People v. Bachofer,

192 P.3d 454, 463 (Colo. App. 2008); see also § 18-1-704(1), C.R.S.

2025. Thus, O’Brien could have acted in self-defense only if he

reasonably believed that he had to brandish the shovel to defend

himself from Cohen’s use or imminent use of unlawful physical

force against him.

¶ 18 But at trial, O’Brien testified that after he wielded the shovel at

the townhouse, Cohen left and returned to the clubhouse. Rather

than remaining at the townhouse, O’Brien admitted that he took

the shovel and “chase[d]” after Cohen to the clubhouse. According

to the undisputed testimony, when O’Brien entered the clubhouse,

Cohen was next to one of the guests having a conversation. The

guest testified that when O’Brien appeared, he already had the

shovel “cocked like . . . a baseball ba[t]” as though he was about “to

take a swing at somebody.” There was no evidence that Cohen

7 reinitiated a physical confrontation with O’Brien in the clubhouse

before O’Brien brandished the shovel. Rather, O’Brien said that he

was “fuming” when he ran into the clubhouse with the shovel,

intending to “drive [Cohen] out” because Cohen had assaulted him

several minutes earlier during the physical altercation in the

parking lot.

¶ 19 Given this testimony, we agree with the district court that the

ADHD diagnosis is not affirmatively probative of O’Brien’s

innocence, see Farrar, 208 P.3d at 707, and its admission is not

likely to bring about an acquittal if presented at another trial, see

Genrich, ¶ 26; see also People v. Poindexter, 2013 COA 93, ¶¶ 51-52

(evidence that merely impeached a witness’s credibility and was not

of such consequence to probably produce an acquittal did not

warrant a new trial). Because the alleged newly discovered evidence

does not meet the legal standard for evidence warranting a new

trial, we conclude that the district court acted within its discretion

in denying this claim.

D. Regina’s Credibility

¶ 20 At trial, Regina testified about O’Brien’s behavior during the

party and his conduct when he returned to the clubhouse with a

8 shovel. Four other witnesses testified similarly about those events.

O’Brien asserts that he could have challenged Regina’s credibility

with newly discovered evidence showing that she (1) was motivated

to give false testimony by a dispute over his grandmother’s care and

property and (2) gave testimony deemed to be not credible in a 2022

probate proceeding.

¶ 21 Like O’Brien’s ADHD diagnosis, this evidence would serve only

to impeach a witness’s testimony and is not probative of O’Brien’s

innocence. Therefore, it is not enough to warrant a new trial. See

Farrar, 208 P.3d at 706-07. We conclude that the district court

acted within its discretion in denying this claim too.

III. Disposition

¶ 22 The order is affirmed.

JUDGE JOHNSON and JUDGE SCHOCK concur.