21CA0311 Peo v Shockey 05-28-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 21CA0311 Arapahoe County District Court No. 17CR3039 Honorable Michael Spear, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jacob Alexander Shockey,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE FREYRE Yun, J. and Martinez*, J., concur
Prior Opinion Announced December 21, 2023, Reversed in 24SC117
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026
Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025.
The original division in this case comprised Judge Richman, now retired, Judge Rebecca Freyre, and Judge David Yun. For this opinion, the division has been reconstituted with Judge Freyre, Judge Yun, and former Colorado Supreme Court Justice Alex J. Martinez. ¶1 This case returns to us on remand from the Colorado Supreme
Court reinstating the judgment and directing us to address the
remaining issues. Defendant, Jacob Alexander Shockey, appeals
the judgment of conviction entered on a jury verdict finding him
guilty of second degree murder. We affirm.
I. Background
¶2 The relevant facts are detailed in our original opinion, People v.
Shockey, 2023 COA 121, ¶¶ 2-10 (Shockey I), rev’d, 2026 CO 10. In
Shockey I, we vacated the judgment of conviction, concluding that
the jury’s finding that Shockey did not possess, use, or threaten to
use a deadly weapon was inconsistent with its guilty verdict for
second degree murder in the absence of a complicity instruction,
thereby negating the identity element. We further held that the
inconsistency constituted structural error. The supreme court
reversed our decision and remanded the case to us. People v.
Shockey, 2026 CO 10 (Shockey II). We now address the issues left
unresolved in Shockey I.
¶3 Shockey challenges his conviction on several grounds and
alleges that the trial court erroneously (1) violated his due process
rights by permitting his conviction to stand absent a complicity
1 instruction; (2) allowed extraneous prejudicial information of
complicity in voir dire to influence the verdict without considering
information contained in juror affidavits; (3) allowed the prosecutor
to discuss complicity in voir dire over the defense’s objection; (4)
failed to admonish the jury not to consider a complicity theory once
it concluded insufficient evidence of complicity existed to warrant
an instruction; (5) admitted prior misconduct evidence in violation
of Rojas v. People, 2022 CO 8; and (6) ordered restitution based on
insufficient evidence.
II. Complicity Related Arguments
¶4 Several of Shockey’s contentions relate to complicity — a
theory on which the jury was never instructed. We begin with his
contention that the court erred by allowing the prosecution to voir
dire on complicity over his objection. We then turn to his
contention that the court should have sua sponte instructed the
jury not to consider complicity in its deliberations after ruling that
insufficient evidence supported a complicity instruction. Next, we
address his contention that the court should have vacated his
conviction based on juror affidavits indicating that the jury
2 convicted him on a complicity theory.1 Last, we address whether, in
the absence of a complicity instruction, Shockey’s conviction
violates due process.
A. Additional Facts
¶5 The State charged Shockey with first degree murder and two
crime of violence sentence enhancers. At the preliminary hearing,
the prosecution announced its intent to proceed on a complicity
theory. Before trial, the prosecution tendered its proposed jury
instructions, which did not include a complicity instruction.
Before voir dire began, the court instructed the jury as follows:
Now, in this matter there will be 14 jurors selected to hear this matter. The jury basically considers all of the evidence that is presented, and then at the end of the trial will reach a verdict with the assistance of legal instructions that I will give towards the end of the trial.
During the course of jury selection, and even during the course of the trial itself, some mention may be made of the legal rules, but essentially our system in Colorado, at least, has developed so that the legal rules themselves are
1 Shockey also argued that the verdict was inconsistent with the
special interrogatory, the precise issue rejected by our supreme court. Therefore, we only address whether the court erred in failing to consider the juror affidavits.
3 not really absolutely formalized or finalized until all of the evidence has been completed.
So . . . basically if you’re selected as a juror. Listening to the witness testimony, viewing exhibits that are introduced, but [you will] also be restricted from really discussing these amongst yourself or with any other party and you’ll have to wait patiently until the end of the trial for me to give you kind of a framework in which to assess all of the evidence in this case.
(Emphasis added)
¶6 During voir dire, the prosecutor discussed complicity liability
and used a hypothetical to illustrate the concept, stating
Under Colorado law, someone can be guilty as a complicitor and a principal. So I’m going to give you a little bit of a scenario to maybe explain it and then I want to talk with you guys about what you think about complicitor.
So let’s talk about a scenario of a robbery of a bank. So you have the getaway driver, you have the lookout and you have the guy that goes in with the mask and the gun. So all three of them decide, you know what, we’re going to rob this bank. So the driver drives the lookout, himself, and the robber to the bank. The lookout goes out and stands in front of the bank to look for cops or anyone else. And then you have the guy that goes in and robs the bank and he’s got a gun and a mask and points a gun at a teller and gets the money from the bank. Now, under Colorado law, all —
4 ¶7 Defense counsel objected based on his understanding that a
complicity instruction was not going to be submitted to the jury at
the close of the evidence. The court overruled the objection and
again instructed the jury:
Well, just so the jury panel is aware, frankly, during jury questioning there’s going to be mention made of perhaps certain concepts of law, some examples that have occurred up to this point, and while it might not ultimately be applicable to the case before us, really if this is something that the prosecution would like to pursue, I’ll go ahead and let that continue because I think also the Court usually looks at it as an opportunity for jurors to kind of break the ice, so to speak, and provide information as well, perhaps on more pertinent issues.
¶8 The prosecutor then discussed complicity liability at length,
using the robbery hypothetical to illustrate the concept. She
explained that, under Colorado law, all three defendants in her
scenario — the lookout, the getaway driver, and the person who
actually committed the robbery — could be found equally guilty due
to complicity liability. She then asked the jurors whether they
would be comfortable holding all the hypothetical defendants
“accountable” even if some did not directly participate in the
robbery. Many jurors agreed that the “punishment” or “treatment”
5 should be the same for the lookout as for the person who robbed
the bank. A few of the jurors likewise used the terms “complicity”
with “accountability” interchangeably.
[PROSECUTOR]: [U]nder Colorado law, all three could be guilty of aggravated robbery, even though we’re talking about the lookout, we’re talking about the getaway driver, even though they didn’t go into the bank and actually rob the bank. What do you think about that?
[PROSPECTIVE JUROR 1]: They’re all still complicit.
[PROSECUTOR]: And you’re okay with that?
[PROSPECTIVE JUROR 1]: Yeah, I think they all should receive the same treatment.
¶9 Addressing another juror, the prosecutor asked
[PROSECUTOR]: Does it bother you that the person who didn’t have the gun and who wasn’t involved in the actual robbery itself inside the bank could be held accountable as the person who went in and robbed the bank?
[PROSPECTIVE JUROR 2]: Yeah, because he knew the guy went in there with a gun. He’s complicit in the fact that he’s going to go along with whatever happens in the bank. I would think he would be guilty too.
¶ 10 Addressing two other jurors, the prosecutor asked
[PROSECUTOR]: [B]ack to my scenario, we have the lookout person versus the person that
6 goes in and robs with the gun, should they both be held accountable?
[PROSPECTIVE JUROR 3]: Held accountable, yes, but maybe not to the same amount.
[PROSPECTIVE JUROR 4]: I think everyone should be held accountable to the same extent. They all know what they’re getting into . . . . So yeah, if you know that other people’s lives are going to be put in danger, you have the opportunity to back out and say no, I don’t want to do that, that’s your choice but you go ahead and go along with it. And so yes, you should still have the same punishment as anyone else.
¶ 11 Addressing two more jurors, she continued
[PROSECUTOR]: So you feel good about complicity when we’re talking about all three players in my little scenario?
[PROSPECTIVE JUROR 5]: Yes.
[PROSECUTOR]: How about you, Mr. B[] . . . What do you think, complicity?
[PROSPECTIVE JUROR 6]: Well, I think there’s — we touched upon it here that there might have been some levels of complicity or accountability depending on whether, you know, the event went off as planned . . . . If somebody goes off the rails, I think they’re the one that has to be accountable for that. I mean, there is some accountability or complicity, whatever you want to call it, for all of them because if you set up the — all set up the scenario that caused this to happen, but if somebody actually went off the rails, like I
7 said, there’s some additional accountability for that person.
¶ 12 During questioning, a few jurors expressed difficulty with the
idea of holding all three defendants “equally accountable” for the
robbery. At this point, the defense renewed its objection and asked
the court to read the elements of complicity contained in section 18-
1-603, C.R.S. 2025. The court overruled the objection, and the
prosecutor continued.
[PROSECUTOR]: Mr. M[], what do you think?
[PROSPECTIVE JUROR 7]: Maybe I’m getting ahead of the curve here, but in terms of complicity, there’s two aspects. One, there’s guilty [sic] and innocence and people are complicit as you described, then they’re guilty. I can see a scenario where maybe the punishment might vary depending upon degree, but that’s a whole other conversation. If people were — were involved in the planning and knew something was either going to happen or could happen, then guilty at that point. I have no problem.
[PROSECUTOR]: Anyone feel different? Ms. S[], what do you think?
[PROSPECTIVE JUROR 8]: You know, maybe like he said, the person who actually pulled the trigger may have a longer sentence or more harsher sentence, I can get that, but honestly, it doesn’t really matter what we think, because if Colorado law has already determined what that is, then you have to rule by the law. It
8 doesn’t really matter whether you think, oh, the guy was just the getaway driver, whatever the law says is what — I mean, that’s what I’m getting from all of this.
¶ 13 The prosecutor also discussed witness credibility, returning to
the topic of complicity as part of that discussion. She posed
questions such as, “How do you judge the credibility of somebody
that was involved?” and “[L]et’s talk about my aggravated robbery
example. You come in, you’re here for the trial of the robber, but
we bring in the lookout guy, how are you going to judge the
credibility of somebody involved?” The prosecution went on to ask,
“Does it become harder when we’re talking about someone who is
involved in the crime in judging their credibility?”, “[D]oes it make
sense that sometimes someone who is involved knows better what
was going on than anyone else?”, and “Someone who is involved in
judging their credibility, what do you think about that?”
¶ 14 During the defense’s voir dire, counsel questioned jurors about
the right to remain silent, credibility, the reasonable doubt
standard, mental states, gang membership, and drug dealers.
Counsel also questioned jurors about complicity, providing the legal
requirements for complicity under Colorado law.
9 ¶ 15 Immediately before opening statements, the court instructed
the impaneled jury that it must decide the case based on the legal
instructions provided by the court at the end of trial and not based
on legal concepts discussed during voir dire, stating:
After the evidence is completed in this case, then I will present to you what are called instructions of law. These will be in written form. I am required to read it to you and then you’ll all get a copy to take back to the jury room, so for your own personal review and for the jury’s review as well.
Now, there has been a lot of comment on the law in this case, what might be or might not be applicable, and of course during the course of a trial, things may change a little bit. So what we tell you today about the law . . . actually could vary significantly from what you’re informed of at the end of the trial itself.
So please keep in mind leeway has been granted for the parties to discuss the law in this case. The fact is if their discussions vary from what I give you at the end of the trial, frankly if my discussions vary from what I gave you at the end of the trial, those discussions at the end of the case will control your deliberations in this matter.
(Emphasis added.)
¶ 16 At trial, co-defendant Parus Mayfield testified that Shockey
shot the victim. Mayfield said he did not know Shockey had a gun
10 or intended to shoot the victim, believing instead that Shockey
would simply beat up the victim as he had done weeks earlier to
collect a drug debt. A police officer testified that Shockey told him
that the victim owed Mayfield money for drugs and that Mayfield
had shot the victim. According to Shockey, as they walked down
the alley, he heard Mayfield say he was going to “lay [the victim]
down” and believed Mayfield intended to shoot the victim. The
police never recovered a gun.
¶ 17 The prosecution tendered a complicity instruction at the end
of the evidence that the court rejected. The court found that
insufficient evidence supported the instruction, explaining
Frankly, there hasn’t been a whole lot in terms of presentation of evidence that would support complicity in this particular matter. We’ve got essentially two people who knew each other and often associated with each other out there on Colfax, in the area and kind of hanging out that night as well, and then meeting up with the victim in this particular matter, and then proceeding into an alleyway, and at that particular time the victim was shot a number of times. And the real issue in the case is who actually did the shooting. But in order for complicity to be a valid, viable theory to present to the jury, there at least needs to be some aspect of the evidence presented that would indicate that this should be something appropriately considered by the jury. And as
11 noted, the jury instructions themselves do set forth in agreement with the prosecution’s proposed instruction. The elements that another person committed the crime, the defendant with the desire or the purpose or design to aid, abet, advise, or encourage the other person in planning or committing that crime, aided, abetted, advised or encouraged the other person in planning or committing that crime. At this point there is no sort of indication — Mr. Mayfield, of course, was on the stand for a considerable period of time, and at no time indicated that there was this desire or purpose or design to aid, abet, advise, or encourage in planning the commission of the crime of either first-degree or second-degree murder. The fact is that from his testimony, if you believe it, he indicated that he thought the worst of what happened were they were going to beat up the victim in this case, but obviously, of course, when he was told to look out, he thought maybe there might be some kind of drug transaction going on as well, or perhaps Mr. Shockey was going to beat up the victim on his own so there would possibly be complicity for assaultive behavior, but this is a step beyond assault itself. Mr. Mayfield indicated that he was surprised when the shooting occurred and immediately ran off as soon as the first two shots were fired, and then he heard a third shot. So we got the three people walking into the alley, and we got Mr. Mayfield’s story of what happened. The information presented through [the eyewitness] is a little bit problematic in terms of what might have occurred, but really, she did not provide any testimony that would support some sort of complicity instruction as well; that she
12 believed that the two people who took her friend into the alleyway and, ultimately, shot and killed him were in some fashion acting in other than concert in terms of bringing him into the alley himself. And I suppose in that particular situation there could be an argument made that clearly there wasn’t complicity, but I would note that we just have a passing reference to [the eyewitness’s] belief that the victim was being essentially forced to go into that alley, although the video itself does not — multiple videos did not necessarily support a certain conclusion of a combined effort on the part of the defendant and Mr. Mayfield to bring the victim into the alley to make sure he didn’t go somewhere else. In many respects I think the evidence is very, very problematic about whether or not a complicity — some kind of complicit action occurred in this particular matter for anything other than perhaps a drug deal, or at worst, an assault situation such as Mr. Mayfield described it happening earlier when he and Mr. Shockey apparently beat up the victim at one point. So I’m finding that complicity is something that would completely confuse the issues before the jury; that really there hasn’t been a lot of information presented that would support a complicity theory of prosecution in this case. I’m going to sustain the objections of the [d]efense and not give the jury instructions related to the prosecution theory of complicity . . . .
¶ 18 In the final instructions, the court instructed the jury:
It is my job to decide what rules of law apply to the case. While the attorneys may comment on some of these rules, you must follow the
13 instructions I give you. Even if you disagree with or do not understand the reasons for some of the rules of law, you must follow them. No single instruction describes all the law which must be applied: the instructions must be considered together as a whole.
During the trial, you received all of the evidence that you may properly consider in deciding the case. Your decision must be made by applying the rules of law that I give you to the evidence presented at trial.
¶ 19 In closing argument, the prosecution asserted that Shockey
caused the victim’s death as the shooter and never specifically used
the word complicity. It did, however, reference the voir dire
discussion on credibility, urging the jury to consider the points
raised during “jury selection.” Moreover, the prosecution harkened
back to its robbery hypothetical when it asserted that Mayfield
“knew more about what happened that night, what the defendant
was going to do, than he was willing to admit,” and told the jury,
“You can believe that he was acting as a lookout . . . because he
knew what was going to happen, what the defendant was going to
do.” The defense did not object to these statements.
¶ 20 The court instructed the jury on the lesser included offense of
second degree murder as follows:
14 1. That [Shockey],
2. in the State of Colorado, at or about the date and place charged,
3. knowingly,
4. caused the death of [the victim].
¶ 21 The jury also received a crime of violence special interrogatory
that read:
Did Jacob Shockey use, or possess and threaten the use of, a deadly weapon?
Jacob Shockey used, or possessed and threatened the use of, a deadly weapon only if:
1. he used, or possessed and threatened the use of, a deadly weapon,
2. during the commission of the crime or in the immediate flight therefrom.
The prosecution has the burden to prove each numbered condition beyond a reasonable doubt.
After considering all the evidence, if you decide the prosecution has met this burden, you should mark “Yes” in the appropriate place, and have the foreperson sign the designated line of this Special Interrogatory.
After considering all the evidence, if you decide the prosecution has failed to meet this burden, you should mark “No” in the appropriate place, and have the foreperson sign the designated line of the verdict form.
15 ¶ 22 The jury acquitted Shockey of first degree murder, convicted
him of second degree murder, and answered the special
interrogatory “No.”
¶ 23 Shockey filed a post-trial motion to vacate the verdict, arguing
that the jury’s answer to the interrogatory was both logically and
legally inconsistent with its guilty verdict. Later, he filed juror
affidavits indicating that the jurors had convicted Shockey on a
complicity theory. At the hearing, defense counsel argued that
because the jury found Shockey was not the shooter, it could have
found him guilty of murder only under a complicity theory — a
theory on which the trial court refused to instruct the jury. He
cited the affidavits as support for his argument. The prosecutor
countered that the court could not properly consider the juror
affidavits.
¶ 24 The trial court denied the motion, reasoning that jurors “kind
of operate with a theory of complicity in many situations in any
event.” The court further noted that the use of a deadly weapon is
not an element of second degree murder, meaning the verdict was
not “logically or legally inconsistent.” The court did not address the
juror affidavits.
16 B. Complicity in Voir Dire
¶ 25 Shockey contends the prosecution committed misconduct by
using voir dire to indoctrinate the jury concerning complicity.
Considering the record as a whole, including the court’s repeated
instructions that legal concepts discussed by the attorneys may or
may not apply at the end of the case, we discern no misconduct.
1. Standard of Review and Applicable Law
¶ 26 The scope of voir dire is within the discretion of the trial court.
People v. Saiz, 660 P.2d 2, 4 (Colo. App. 1982). “The propriety of
questions to potential jurors on voir dire is within the discretion of
the trial court . . . .” People v. Collins, 730 P.2d 293, 300 (Colo.
1986). We review claims of prosecutorial misconduct under a two-
step process. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).
First, we determine whether the conduct was improper based on the
totality of the circumstances. Id. Second, we decide whether the
misconduct warrants reversal under the applicable standard. Id.
¶ 27 We review preserved claims of prosecutorial misconduct for
harmless error. People v. Rhea, 2014 COA 60, ¶ 42. We will
reverse if there is a reasonable probability that the error contributed
17 to the defendant’s conviction. People v. Monroe, 2018 COA 110,
¶ 11, aff’d, 2020 CO 67.
¶ 28 “To receive a fair trial, the defendant must be tried by an
impartial jury.” People v. Wilson, 2013 COA 75, ¶ 12. The purpose
of voir dire, therefore, is “to allow counsel ‘to determine whether any
potential jurors possessed any beliefs that would bias them such as
to prevent [the defendant] from receiving a fair trial.’” Id. (quoting
People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996)). Indeed,
counsel may generally conduct questioning to determine a juror’s
“willingness ‘to accept the basic principles of criminal law’” and to
follow the court’s instructions. Wilson, ¶ 17 (citation omitted); see
also People v. Collins, 730 P.2d 293, 300 (Colo. 1986) (trial court
properly permitted defense counsel to ask a limited number of
questions about general legal principles surrounding self-defense to
determine whether any juror would “reject a concept of law which
was unfamiliar to them”). But “[c]ounsel may not use voir dire for
the purpose of instructing or educating the jury.” People v.
Shipman, 747 P.2d 1, 3 (Colo. App. 1987). Nor may counsel
misstate the law, present factual matters known to be inadmissible,
or instruct the jury on their theory of the case. People v. Carter,
18 2015 COA 24M-2, ¶ 71. However, absent bad faith, the
prosecution’s discussion of a concept that later ends up not being
an issue at trial does not require reversal. See People v. Estes, 2012
COA 41, ¶ 23 (“[D]uring opening statement, a prosecutor may refer
to evidence that subsequently will be adduced at trial and draw
inferences from that evidence.”); Cf., People v. Melanson, 937 P.2d
826, 836 (Colo. App. 1996) (noting that remarks in opening
statement that are later not supported by the trial evidence are
reversible only “if there has been an affirmative showing of bad faith
and manifest prejudice”).
2. Analysis
¶ 29 Viewing the prosecution’s voir dire in light of the totality of the
circumstances, we discern no misconduct for four reasons. First,
the court repeatedly instructed the jury — three times before
opening statements — that the attorneys might discuss legal
concepts, but the jury could only consider the law as the court
instructed at the conclusion of all the evidence. Additionally, the
court reminded the jury at the end of all the evidence that while the
attorneys may have commented on the rules of law, “[the jury] must
follow the instructions [the court] give[s] you.” We presume the jury
19 understood and followed these instructions. See People v. Abdulla,
2020 COA 109M, ¶ 58 (“[W]e employ the presumption that the jury
understands and applies the given instructions unless a contrary
showing is made . . . .”) Thus, we must presume that the
prosecution’s voir dire did not affect the outcome of the trial. The
jury’s response to the crime of violence interrogatory cannot affect
our analysis. As our supreme court indicated, “the jury’s answer to
the special interrogatory does not conflict with an element of second
degree murder.” Shockey II, ¶ 33. It is relevant to sentencing only.
Id. at ¶ 34.
¶ 30 Second, while the prosecution’s proposed instructions
tendered before trial did not include a complicity instruction, we
discern no bad faith on its part. The prosecution had announced
its intent to pursue a complicity theory at the preliminary hearing,
so the defense knew this theory of liability was a possibility before
trial. Moreover, the prosecution knew it would introduce Shockey’s
statement to the police in which Shockey admitted that he knew
Mayfield intended to shoot the victim as they walked the victim into
the alley — evidence that arguably supported a complicity
20 instruction. And the prosecution did offer a complicity instruction
at the end of the trial, although the court rejected it.
¶ 31 Third, the court repeatedly overruled the defense’s objections
and exercised its discretion to allow the prosecutor to question the
jury on complicity law. Given the court’s ruling, the prosecution
did not engage in misconduct by following that ruling. See People v.
Adams, 708 P.2d 813, 815 (Colo. App. 1985); see also State v.
Nowels, 941 N.W.2d 430, 437 (Minn. Ct. App. 2020) (“It is
misconduct for a prosecutor to violate an order from the district
court.”).
¶ 32 Finally, the prosecutor never mentioned complicity in closing
arguments or urged the jury to convict under that theory. Instead,
she argued that Shockey was the shooter and that the jury should
credit Mayfield’s testimony on this key point, despite his
participation in the crime.
¶ 33 Accordingly, we conclude that no misconduct occurred and
thus, that reversal is not required.
C. Limiting Instruction
¶ 34 Shockey next contends that, after the trial court declined to
give the prosecution’s complicity instruction, it should have sua
21 sponte issued a limiting instruction informing the jury that it could
not consider complicity in its deliberations. He concedes that this
argument is unpreserved and subject to plain error review. And he
agrees that a court’s decision to give a supplemental instruction is
reviewed for an abuse of discretion. People v. Dinapoli, 2015 COA 9,
¶ 9.
¶ 35 Relying on a case from the Oklahoma intermediate appellate
court, Shockey argues that a trial court has a duty to correct any
jury confusion concerning a rule of law. See Master v. State, 702
P.2d 375, 381 (Okla. Crim. App. 1985). However, he identifies no
actual evidence of jury confusion, other than the jury’s answer to
the special interrogatory, which we have explained we cannot
consider. Instead, Shockey is left to speculate that confusion
existed based on voir dire. Notably, the court rejected the
prosecution’s complicity instruction precisely out of concern that it
would confuse the jury. Moreover, defense counsel never requested
a limiting instruction, and Shockey cites no authority requiring one.
Thus, any error was not “obvious” under the plain error standard.
Accordingly, we discern no plain error.
22 D. Juror Affidavits
¶ 36 Shockey next contends that the trial court should have
considered the juror affidavits he submitted in support of his post-
trial motion to vacate his conviction due to an inconsistent verdict.
For the first time on appeal, he also contends that the affidavits
demonstrate that the jury was exposed to “extraneous prejudicial
information” — specifically, complicity law discussed during voir
dire — that improperly influenced its deliberations. We are not
persuaded.
¶ 37 The applicability of CRE 606(b) is a question of law we review
de novo. Pena-Rodriguez v. People, 2015 CO 31, ¶ 8 (Pena-
Rodriguez I), rev’d on other grounds, 580 U.S. 206 (2017) (Pena-
Rodriguez II). CRE 606(b) provides that
[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.
23 ¶ 38 And “[a] juror’s affidavit or evidence of any statement by the
juror may not be received on a matter about which the juror would
be precluded from testifying.” Id. This no-impeachment rule
“promotes full and vigorous discussion by providing jurors with
considerable assurance that after being discharged they will not be
summoned to recount their deliberations, and they will not
otherwise be harassed or annoyed by litigants seeking to challenge
the verdict.” Pena-Rodriguez II, 580 U.S. at 218.
¶ 39 CRE 606(b) provides three exceptions to this no-impeachment
rule. “A juror may testify about (1) whether extraneous prejudicial
information was improperly brought to the jurors’ attention, (2)
whether any outside influence was improperly brought to bear upon
any juror, or (3) whether there was a mistake in entering the verdict
onto the verdict form.” CRE 606(b).
¶ 40 The parties do not dispute that the affidavits are subject to the
no-impeachment rule. Shockey, however, contends that the
“extraneous prejudicial information” exception applies. We
disagree. The information is not “extraneous” because it was
presented to the jury during voir dire as part of the judicial
24 proceedings. See Kendrick v. Pippin, 252 P.3d 1052, 1064 (Colo.
2011) (holding that extraneous information is legal content learned
from “outside the record” or “outside of the judicial proceeding”),
abrogated on other grounds by Bedor v. Johnson, 2013 CO 4; accord
Pena-Rodriguez I, ¶ 16. Because he offers no other applicable
exception, we reject his contention.
¶ 41 Additionally, to the extent Shockey contends the court should
have granted his post-trial motion to vacate based on inconsistent
verdicts, our supreme court has rejected that argument, and we are
bound by its decision. See People v. Gladney, 250 P.3d 762, 768
n.3 (Colo. App. 2010)
III. Uncharged Misconduct
¶ 42 Shockey contends the trial court erred by admitting uncharged
misconduct evidence based on the res gestae theory. While we
agree that res gestae is no longer a viable theory of admissibility, we
conclude that the evidence is intrinsic to the charged offense and is
therefore admissible under Rojas, ¶ 52.
¶ 43 Before trial, Shockey requested notice of any evidence to be
admitted under CRE 404(b). The prosecution notified the defense of
25 its intent to introduce evidence that Shockey was a drug dealer,
that the victim owed him twenty dollars for drugs, and that Shockey
had previously punched the victim for failing to repay him.
¶ 44 At the motions hearing, the court ruled on the admissibility of
this evidence based on the offer of proof and the arguments of
counsel. The court excluded certain evidence, such as evidence
that Shockey had shot another person in Denver but found the
remaining evidence in the offer of proof admissible as res gestae and
invited the defense to submit additional information regarding the
issue. Defense counsel clarified that the court’s ruling permitted
the prosecution to introduce evidence “that Mr. Shockey was a drug
dealer, that this incident arose from a drug debt of [twenty dollars]
being owed from [the victim] to Mr. Shockey, and that other
witnesses claim they saw Mr. Shockey and [the other defendant]
beat up the deceased prior to this.” When the court said its ruling
also covered evidence of Shockey’s prior possession of a handgun,
defense counsel objected to any evidence linking the handgun to
four other shootings, and the court agreed that such evidence
would be excluded. Defense counsel did not submit any further
information.
26 ¶ 45 During voir dire and opening statements, defense counsel
referenced Shockey’s history as a drug dealer and gang member.
The prosecution, in its opening statements, also described Shockey
as a violent drug dealer with a long-standing history involving both
the victim and the co-defendant.
¶ 46 At trial, Mayfield testified that Shockey had previously sold
drugs and had beaten up the victim several weeks earlier over a
drug debt. An eyewitness testified that both Shockey and Mayfield
were intimidating individuals who terrorized the neighborhood
through fighting and threats. None of the trial testimony drew an
objection from the defense.
B. Standard of Review and Applicable Law
¶ 47 We review a trial court’s evidentiary ruling for an abuse of
discretion. People v. Miller, 2024 COA 66, ¶ 40. A court abuses its
discretion when its decision is manifestly arbitrary, unreasonable,
or unfair. Id. Preserved evidentiary errors are reviewed under the
harmless error standard. Rojas, ¶ 53. We review unpreserved
errors for plain error. See People v. Leyba, 2019 COA 144, ¶ 55,
aff’d, 2021 CO 54. Reversal under this standard requires that the
error be obvious and so undermine the fundamental fairness of the
27 trial as to cast serious doubt on the reliability of the judgment of
conviction. People v. Walker, 2022 COA 15, ¶ 28.
¶ 48 In Rojas, our supreme court abolished the res gestae doctrine
in Colorado and, in its place, adopted an intrinsic-extrinsic
framework. Rojas, ¶ 52. To determine the admissibility of
uncharged misconduct evidence, we must first determine whether
the acts are intrinsic or extrinsic to the charged offenses. Id.
“Intrinsic acts are those (1) that directly prove the charged offense
or (2) that occurred contemporaneously with the charged offense
and facilitated the commission of it.” Id. Because intrinsic acts are
not considered “other” crimes, wrongs, or acts, a trial court does
not need to conduct a CRE 404(b) analysis before admitting such
evidence. Id. Instead, the admissibility of intrinsic evidence is
evaluated under CRE 401-403 and other ordinary evidentiary
principles. Id.
¶ 49 In contrast, extrinsic evidence that suggests bad character
may be admitted only under CRE 404(b) and after a Spoto analysis.
Id.; People v. Spoto, 795 P.2d 1314, 1318-19 (Colo. 1990). But if
extrinsic evidence does not suggest bad character, CRE 404(b) does
28 not apply, and admissibility is governed by CRE 401-403 and
ordinary evidentiary principles. Id.
C. Analysis
¶ 50 To the extent the parties dispute preservation, we need not
resolve this issue because, even assuming preservation, we discern
no abuse of discretion in admitting this evidence and conclude that
it is intrinsic to the charged offense for three reasons. First,
evidence that Shockey was a drug dealer and had, weeks earlier,
beaten up the victim over a drug debt was relevant to identity. It
made it more likely that Shockey, rather than Mayfield, was the
shooter in this instance, where the victim again owed him money
for drugs.
¶ 51 Second, the evidence clarified the relationships among the
parties, was close in time to the charged offense, and established a
motive for the crime — all factors supporting the element of
identity. Notably, the court did not enter a pretrial ruling
concerning gang evidence; defense counsel first introduced that
topic during opening statements.
¶ 52 Finally, evidence that Shockey carried a gun — though not
inherently unlawful — was also relevant to establishing Shockey’s
29 identity as the shooter. Indeed, Shockey concedes in his opening
brief that the evidence “went to the central issue of identity.”
¶ 53 While we acknowledge that the evidence was inherently
prejudicial to Shockey, we conclude that its probative value was not
outweighed by the danger of unfair prejudice under CRE 403,
because the shooter’s identity was the critical issue for the jury’s
decision. “[U]nfair prejudice within the meaning of the rule still
refers only to ‘an undue tendency on the part of admissible evidence
to suggest a decision made on an improper basis’ and does not
mean prejudice that results from the legitimate probative force of
the evidence.” People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002)
(citation omitted). And when we review a trial court’s ruling under
CRE 403, “we assume the maximum probative value that a
reasonable fact finder might give the evidence and the minimum
unfair prejudice to be reasonably expected.” People v. Clark, 2015
COA 44, ¶ 18 (citation omitted). The jury’s conclusion that Shockey
did not use or possess the gun shows that the uncharged
misconduct was not overly prejudicial.
¶ 54 Finally, Shockey faults the court for failing to issue a limiting
instruction, claiming its absence allowed the jury to convict on an
30 improper basis. But he never requested a limiting instruction and
does not develop this argument, so we do not address it further.
See Davis v. People, 2013 CO 57, ¶ 21 (stating that a trial court
doesn’t have a “duty” to provide a cautionary instruction sua sponte
when one isn’t requested by counsel or required by statute, and
under these circumstances, the lack of a limiting instruction “does
not constitute reversible error”); People v. Simpson, 93 P.3d 551,
555 (Colo. App. 2003) (declining to consider “a bald legal
proposition presented without argument or development”). In the
end, the jury’s decision to acquit Shockey of the most serious
charge indicates “that the jurors exercised some discretion in their
deliberations and did not blindly convict the defendant based upon
[improper] inferences.” Martin v. People, 738 P.2d 789, 795-96
(Colo. 1987). Accordingly, we discern no abuse of discretion in the
admission of this evidence.
IV. Restitution
¶ 55 Shockey’s final argument is that the trial court’s restitution
order lacks sufficient evidentiary support because the prosecution
did not show that disclosing the identity or location of a provider
31 would pose a threat to the safety or welfare of the victim. We are
not persuaded.
¶ 56 Before sentencing, the prosecution submitted a request for
restitution that included $11,302 paid by the Crime Victim’s
Compensation Board (Board). The Board’s payment summary
redacted the names of the providers.
¶ 57 At sentencing, defense counsel asked to reserve comment on
the restitution matter because counsel intended to file a written
objection. The court agreed and granted Shockey fourteen days to
file any objection.
¶ 58 When Shockey failed to file a written objection, the trial court
granted the prosecution’s request for restitution.
¶ 59 In the restitution context, we review for clear error the trial
court’s determination that the defendant proximately caused the
victim’s losses. Martinez v. People, 2024 CO 6M, ¶ 32. But when,
as here, a defendant challenges the sufficiency of the evidence
supporting the amount of restitution — that is, a challenge to the
quantum of evidence provided to the court — our review is de novo.
32 See id. at ¶¶ 19-22; People v. Moss, 2022 COA 92, ¶ 11; People v.
Weeks, 2021 CO 75, ¶ 24; People v. Roddy, 2021 CO 74, ¶ 23.
¶ 60 Restitution means “any pecuniary loss suffered by a victim
[that was] . . . proximately caused by an offender’s conduct and
that can be reasonably calculated and recompensed in money.”
§ 18-1.3-602(3)(a), C.R.S. 2025. Crime victims may seek
compensation from the Board for losses resulting from criminal
conduct, including medical and hospital expenses. §§ 24-4.1-
102(1), -108, -109(1)(a), C.R.S. 2025. When the Board pays a
victim compensation claim, it is considered a “[v]ictim” under the
restitution statute. § 18-1.3-602(4)(a)(IV). Therefore, if the Board
pays a claim, the court may order the defendant to reimburse the
Board for the amount of assistance it paid. People v. Fregosi, 2024
COA 6, ¶ 43.
¶ 61 “The prosecution must prove by a preponderance of the
evidence that the defendant’s conduct proximately caused the
victim’s loss and the amount of that loss.” Id. at ¶ 44. However, for
Board claims, the restitution statute creates a rebuttable
presumption that the amount paid by the Board is a direct result of
the defendant’s criminal conduct. See § 18-1.3-603(10)(a), C.R.S.
33 2024; People v. Henry, 2018 COA 48M, ¶ 17. Specifically, section
18-1.3-603(10)(a) provides that if the Board provides aid on behalf
of a victim, “the amount of assistance provided and requested by
the crime victim compensation board is presumed to be a direct
result of the defendant’s criminal conduct and must be considered
by the court in determining the amount of restitution ordered.”
¶ 62 To trigger the rebuttable presumption, the prosecution must
establish the amount of assistance provided. People v. Martinez-
Chavez, 2020 COA 39, ¶ 20. The restitution statute prescribes two
ways of establishing this amount: (1) “[a] list of the amount of
money paid to each provider”; or (2) “[i]f the identity or location of a
provider would pose a threat to the safety or welfare of the victim,
summary data reflecting what total payments were made for” by
category. § 18-1.3-603(10)(b)(I), (II)(A)-(E).
¶ 63 The prosecution may also prove the amount of restitution
through “victim impact statements or other means.” § 18-1.3-
603(2)(a); People v. Barbre, 2018 COA 123, ¶ 40 (noting that “under
Colorado law, an award of restitution may be based solely on a
victim impact statement”). The court “shall base its order for
34 restitution” on the information presented by the prosecution. § 18-
1.3-603(2)(a).
¶ 64 Any failure to comply with these provisions bars the trial court
from awarding restitution. Barbre, ¶ 45.
¶ 65 We begin by noting that Shockey does not contest the trial
court’s findings on proximate cause or the amount of restitution.
Rather, he asserts that the prosecution failed to provide sufficient
evidence to support the restitution award because (1) it relied
exclusively on the Board’s payment summary, which redacted the
identity of the victim’s treatment providers, and (2) it did not
establish that disclosing those providers would pose a threat to the
victim’s safety or welfare. The problem with Shockey’s argument is
that the trial court gave him an opportunity to challenge restitution
on this basis and he failed to avail himself of that opportunity
because he never filed a written objection. Under these
circumstances, Shockey waived any argument that the prosecution
was required to show that identifying the provider would endanger
the victim. Waiver is the intentional relinquishment of a known
right or privilege. People v. Rediger, 2018 CO 32, ¶¶ 39-40
35 (explaining that a waiver extinguishes error and appellate review).
Therefore, we affirm the court’s restitution order.
V. Disposition
¶ 66 The judgment is affirmed.
JUDGE YUN and JUSTICE MARTINEZ concur.