22CA0465 Peo v Simpson 04-16-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0465 El Paso County District Court No. 20CR2604 Honorable Frances Johnson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Laurence William Simpson,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE FOX Kuhn and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Laurence William Simpson, appeals his convictions
for attempted first degree murder and child abuse. We affirm.
I. Background
¶2 In the spring of 2019, Simpson, a Pennsylvania resident,
planned a summer trip to Colorado Springs with his ten-year-old
twins, C.S. and D.S. Two years earlier, Simpson had separated
from his wife and the twins’ mother, A.D. Before the vacation,
Simpson discussed his plans with A.D. and told her he intended to
fly to Colorado and rent a car for the return trip. On June 7, 2019,
Simpson and the children flew to Colorado. During the trip, he sent
A.D. regular updates.
¶3 Near the end of the trip, Simpson made “milkshakes” using ice
cream, Gatorade, and strawberries. But they tasted bad, and the
children refused to drink them. C.S. only took a sip, and D.S.
testified that he drank “one to two ounces.” At trial in 2021, the
children vaguely remembered Simpson telling them to finish the
shakes. D.S. testified that he was able to drink a bit more after
Simpson added more ice cream. C.S. was less certain that there
had been a second or “improved” shake. Ultimately, Simpson or the
children poured the shakes out.
1 ¶4 D.S. testified that Simpson then gave him and C.S. “vitamins
or pills,” but he did not know what the pills were. D.S. swallowed
one pill but spit the rest out. C.S. did not testify about the pills.
The children testified that they felt normal that evening and the
next day.
¶5 At around 2:45 a.m. on June 13, 2019, Simpson called A.D. in
“total despair.” Simpson shared that he had quit his job after
telling his boss he was terminally ill, had no money because he
spent it on the trip and had “racked up credit card debt,” and he
did not know how to get himself and the children home. A.D. then
arranged return flights, and Simpson and the children arrived after
midnight on June 14.
¶6 Later that day, Simpson — hyperventilating and in tears —
called his friend B.M. B.M. testified that Simpson said, “[H]e gave
up” and “dissolved pain medicine in the kids’ shakes.” B.M. also
recalled Simpson saying that after the children refused to drink the
shakes, Simpson grabbed the shakes and “kind of snapped to it and
got the shakes and dumped them.” B.M. later told A.D. what
Simpson had said, and A.D. called the police.
2 ¶7 A.D. took the children to get blood tests, which were negative
for drugs. Police also tested residue from the blender Simpson used
to make the shakes, which similarly yielded negative results. Test
results from red stains found on C.S.’s sweatshirt also proved
fruitless.
¶8 Simpson was charged with four counts of attempted first
degree murder (two counts per child under alternate theories) and
two counts of child abuse. § 18-3-102(1)(a), (1)(f), C.R.S. 2025 (first
degree murder); § 18-2-101(1), C.R.S. 2025 (attempt); § 18-6-
401(1)(a), (7)(b)(I), C.R.S. 2025 (child abuse). The jury convicted
him as charged.
II. Sufficiency
¶9 Simpson first argues that the prosecution introduced
insufficient evidence to support his convictions for attempted first
degree murder. We disagree.
A. Standard of Review and Applicable Law
¶ 10 We review the record de novo to determine whether the
evidence “was sufficient in both quantity and quality to sustain a
defendant’s conviction.” McCoy v. People, 2019 CO 44, ¶ 63. It is
the prosecution’s burden to establish a prima facie case of guilt. Id.
3 “We consider ‘whether the relevant evidence, both direct and
circumstantial, when viewed as a whole and in the light most
favorable to the prosecution, is substantial and sufficient to support
a conclusion by a reasonable mind that the defendant is guilty of
the charge beyond a reasonable doubt.’” Id. (citation omitted).
¶ 11 “A verdict cannot rest on guessing, speculation, conjecture, or
a mere modicum of relevant evidence.” McBride v. People, 2022 CO
30, ¶ 38. But sufficient and substantial evidence “can be either
direct or circumstantial.” People v. Daniels, 240 P.3d 409, 410
(Colo. App. 2009) (emphasis added).
¶ 12 A person commits first degree murder if, “[a]fter deliberation
and with the intent to cause the death of a person other than
himself, he causes the death of that person.” § 18-3-102(1)(a). A
person also commits first degree murder by “knowingly caus[ing]
the death of a child who has not yet attained twelve years of age
and the person committing the offense is one in a position of trust
with respect to the victim.” § 18-3-102(1)(f). For attempted first
degree murder, one must “act[] with the kind of culpability
otherwise required for the commission of first degree murder” and
“engage[] in conduct constituting a substantial step toward the
4 commission of the offense.” People v. Harmon, 2025 COA 38M, ¶ 23
(cert. granted in part Mar. 30, 2026). “A substantial step is any
conduct, whether act, omission, or possession, that is strongly
corroborative of the firmness of the actor’s purpose to complete the
commission of the offense.” Id.
B. Analysis
¶ 13 Consistent with his position at trial, Simpson emphasizes that
there was insufficient evidence that he took a substantial step
toward first degree murder because there was no forensic evidence,
and his conviction rested largely on his alleged confession to B.M.
He also contends that the evidence was insufficient to prove that he
acted with the requisite intent to cause the children’s deaths.
¶ 14 Katherine Brown, a forensic scientist for the Colorado Bureau
of Investigation, testified about the forensic evidence. As to the
blender, she explained that “there wasn’t any visible residue,” but
she tested a “pink, red tinge that kind of stained the blender.”
Although the motel owner had not washed the blender after
Simpson returned it, she had been using it to water plants. Brown
explained that this could have “affected [the] chances of finding any
controlled substances in the blender.” And she explained that it
5 can be difficult to accurately detect substances that have been
diluted in or mixed with other substances. Brown also testified that
she “would have been very shocked” if the sweatshirt stain yielded a
positive result for controlled substances given the stain’s size and
saturation. Thus, Brown’s testimony provided a plausible
explanation for why — even if there was pain medication in the
shakes — it would not be readily detectible.
¶ 15 And despite the lack of forensic evidence, there was other
evidence of Simpson’s guilt. For one, B.M. testified to Simpson’s
confession. Although B.M. initially told police that Simpson said he
was going to dissolve pain medicine in the shakes, B.M. testified
that Simpson corrected himself. See People v. Poe, 2012 COA 166,
¶ 14 (it is the jury’s role, not ours, to weigh the credibility of
witnesses).
¶ 16 Moreover, contrary to Simpson’s contention, his confession to
B.M. was not the only evidence of guilt. For example, there was
circumstantial evidence that Simpson did not plan to return from
Colorado. B.M. and A.D. testified that Simpson said he quit his job
before the trip, citing an unspecified terminal illness, and that he
spent most of his money on the trip. They also testified to
6 Simpson’s extremely distraught emotional state during and after
the trip. Additionally, Simpson booked one-way tickets to Colorado
without a clear return plan; although he told A.D. he had rented a
car to drive home, A.D.’s testimony suggested that Simpson initially
made a rental car reservation that did not include a Philadelphia
drop off.
¶ 17 The prosecution’s “one way trip” theory was further
corroborated by a letter from Simpson to A.D.’s sister, C.F., sent on
June 12, 2019, while Simpson was in Colorado. Simpson wrote,
“I will not have your sister keep my twins away from me. . . . Your
sister has broken me and destroyed our family. [C.S] and [D.S.] are
staying with me forever.” The letter then said that Simpson had
sold everything, that he was financially destitute, and that it was
“going to be a one-way trip for the three of us. . . . You have no idea
how much I’m suffering.”
¶ 18 Next, as discussed below, Simpson’s confession about putting
pain medicine in the shakes was corroborated by evidence that he
used pain medication and had twice attempted suicide (once by
overdosing on pills). See People v. Steiner, 640 P.2d 250, 252 (Colo.
App. 1981) (absent chemical testing, circumstantial evidence is
7 sufficient to prove that a substance is a particular drug). We reject
his contention that the prosecution had to establish the amount of
pain medication in the shakes or what amount could be lethal. See
People v. Krovarz, 697 P.2d 378, 381 (Colo. 1985) (Liability for
criminal attempt “rests primarily upon the actor’s purpose to cause
harmful consequences,” not whether he “engaged in the harmful
conduct or . . . achieved the harmful result.”); United States v.
Williams, 718 F. App’x 890, 893 n.2 (11th Cir. 2017) (“The
important factor in proving attempt is the defendant’s intent . . . ,
not whether the underlying crime was actually possible.”). And
Simpson provides no explanation for why he would drug his
children for a reason other than to kill them.
¶ 19 The day he left for Colorado, Simpson also sent letters or
“packets” to families at his children’s school. The letters disparaged
A.D. and publicized intimate information about their relationship.
That day, he also mailed a box of “adult paraphernalia” to C.F. Like
the evidence that Simpson spent all his money on the trip and quit
his job, this was circumstantial evidence of intent; it suggested that
he had no concern for his and the children’s financial or
reputational well-being because he did not intend for them to
8 survive. See People v. Miralda, 981 P.2d 676, 679 (Colo. App. 1999)
(“Intent may . . . be established from circumstantial evidence and
from the inferences that may reasonably be drawn from those
circumstances.”).
¶ 20 Finally, there was evidence of motive. One reason for Simpson
and A.D.’s separation was because A.D. met someone else, and the
evidence established that A.D.’s new relationship created significant
tension between Simpson and A.D. In Simpson’s letter to C.F., he
said he would not allow the children to be around A.D.’s new
partner, nor would he allow A.D. to keep the children away from
him. This was circumstantial evidence of Simpson’s intent to keep
the children from A.D. and her new partner by killing them.
¶ 21 In sum, there was evidence that Simpson was depressed,
suicidal, and angry at his ex-wife and her new partner; sold his
belongings; quit his job; spent all his money on the trip; and
“burned bridges” with people in his life. There was also evidence
that Simpson had access to pain medication, previously attempted
suicide by overdosing, and admitted to adding pain medication to
the children’s shakes. Overall, viewed in a light most favorable to
the prosecution, there was sufficient evidence for a jury to conclude
9 that Simpson, with the requisite intent, took a substantial step
toward the commission of first degree murder by giving his children
milkshakes laced with pain medication. See McCoy, ¶ 63.
III. Jury Instruction Challenges
¶ 22 Simpson next argues that the court erred by denying his
request for an abandonment instruction and that the court gave
legally inaccurate instructions on criminal attempt. We disagree
with Simpson’s first contention and conclude that his second
contention does not rise to the level of plain error.
A. Standard of Review
¶ 23 “We review de novo whether jury instructions adequately
inform the jury of the governing law.” Garcia v. People, 2023 CO 30,
¶ 9. We consider the instructions’ legal accuracy as well as whether
they are confusing or misleading. Id.
¶ 24 When a defendant does not object to jury instructions, we
review for plain error. Hoggard v. People, 2020 CO 54, ¶ 13. “[T]he
court’s failure to instruct the jury properly does not constitute plain
error if the relevant instruction, read in conjunction with other
instructions, adequately informs the jury of the law.” People v.
Miller, 113 P.3d 743, 750 (Colo. 2005).
10 ¶ 25 Similarly, when a defendant fails to request a jury instruction,
we review for plain error. People v. Jacobson, 2017 COA 92, ¶ 8.
An error is plain if it is obvious and substantial and “so
undermine[s] the fundamental fairness of the trial itself as to cast
serious doubt on the reliability of the judgment of conviction.”
Hagos v. People, 2012 CO 63, ¶ 14 (citation omitted).
B. The Abandonment Instruction
¶ 26 Simpson contends that the district court plainly erred by
failing to sua sponte instruct the jury on the affirmative defense of
abandonment. As Simpson acknowledges, he did not request an
abandonment instruction, so we review for plain error. Jacobson,
¶ 8. We conclude that the district court did not err.
¶ 27 To receive an abandonment instruction, the defendant must
present “some credible evidence,” O’Shaughnessy v. People, 2012
CO 9, ¶ 6, that he “abandon[ed] his effort to commit the crime or
otherwise prevent[ed] its commission . . . under circumstances
manifesting the complete and voluntary renunciation of his criminal
intent.” Id. at ¶ 8 (quoting § 18-2-101(3)).
¶ 28 However, “mere withdrawal — particularly when faced with
resistance by the victim — before completing the murder . . . is
11 insufficient evidence of abandonment.” Id. at ¶ 20. Similarly, the
defense is unavailable if the attempt “fails because of unanticipated
difficulties in carrying out the criminal plan at the precise time and
place intended.” People v. Gandiaga, 70 P.3d 523, 528 (Colo. App.
2002) (quoting 2 Wayne R. LaFave & Austin W. Scott, Substantive
Criminal Law § 6.3, at 53 (1986)); see also § 18-2-401(1)(a), C.R.S.
2025 (prohibiting the abandonment defense if it is “motivated in
whole or in part by” circumstances that “make[] more difficult the
consummation of the crime”). Here, there was evidence that
Simpson abandoned his attempt only after the children refused to
drink the shakes and after he tried to improve the taste.
¶ 29 Moreover, Simpson’s decision not to assert an abandonment
defense appears to have been tactical. See People v. Wade, 2024
COA 13, ¶ 16 (“When the defense makes a tactical decision not to
submit an . . . instruction, a trial court’s failure to sua sponte offer
the instruction does not constitute error, much less plain error.”).
Simpson submitted a “general denial” theory of defense, and
defense counsel’s trial strategy emphasized the lack of forensic
evidence. Simpson does not cite — nor could we identify — any
record evidence regarding a possible abandonment defense. Cf.
12 People v. Stewart, 55 P.3d 107, 119 (Colo. 2002) (omitting an
intervening cause instruction for two charges appeared to be
inadvertent where the defendant relied heavily on the theory at trial
and requested the same instruction for other charges).
¶ 30 Generally, a court does not commit obvious (i.e., plain) error
by failing to give an unrequested affirmative defense instruction.
See, e.g., People v. Lee, 30 P.3d 686, 689 (Colo. App. 2000); People
v. Gorman, 983 P.2d 92, 95 (Colo. App. 1998), aff’d on other
grounds, 19 P.3d 662 (Colo. 2000). Therefore, we conclude that the
court did not plainly err by failing to sua sponte instruct the jury on
abandonment. See Scott v. People, 2017 CO 16, ¶ 17 (holding that
errors are generally not obvious if “a division of the court of appeals
has previously rejected an argument being advanced by a
subsequent party who is asserting plain error”), abrogated on other
grounds by, Whiteaker v. People, 2024 CO 25, ¶ 25.
13 C. The Attempt Instructions
¶ 31 Simpson next challenges the jury instructions given for
attempt crimes.1
¶ 32 The challenged instructions appear to split the attempt
element into two separate elements. For example, the court gave
the following instruction for attempted first degree murder after
deliberation:
1. That the defendant,
2. in the State of Colorado, at or about the date and place charged,
3. after deliberation,
4. and with the intent to cause the death of a person other than himself,
5. engaged in conduct constituting a substantial step toward the commission of Murder in the First Degree — After Deliberation, and
6. attempted to cause the death of another person.
1 The jury was instructed on two theories of attempted first degree
murder (after deliberation and child under twelve by one in a position of trust) and two lesser included offenses (one for each theory of attempted murder).
14 (Emphasis added.) The other attempt instructions similarly
included one element requiring “conduct constituting a substantial
step toward the commission” of the offense and one element
requiring an “attempt[] to cause the death” of a person.
¶ 33 Simpson did not object to the instructions but contends on
appeal that the district court erred by including the additional
language (the emphasized element above). The State agrees that
the extra element was improper but argues that the error was not
plain. We agree with the State.
¶ 34 A division of this court has considered a similar attempted
murder instruction: “1. [T]he defendant . . . 4. attempted to,
5. engage in conduct constituting a substantial step toward the
commission of” first degree murder. People v. Villarreal, 131 P.3d
1119, 1124 (Colo. App. 2005). In finding no plain error, the division
explained that the instruction properly defined attempt as “a
substantial step toward the commission of the offense,” so “a
reasonable jury would have recognized the inherent redundancy” in
the two attempt elements. Id. at 1125.
¶ 35 Here, save for the added attempt language, the instructions
aligned with the model jury instructions and applicable statutes.
15 See COLJI-Crim. G2:01, 3-1:01, 3-1:06, 3-1:07 (2025); § 18-2-101;
§ 18-3-102(1)(a), (f); § 18-3-103, C.R.S. 2025; § 18-6-401(1)(a). The
instructions also correctly defined a substantial step as “any
conduct, whether act, omission, or possession, which is strongly
corroborative of the firmness of the actor’s purpose to complete the
commission of the offense.” § 18-2-101(1).
¶ 36 Unlike in Villareal, the instructions here did not explicitly
define attempt as a substantial step, but we do not think this
makes them distinguishable. Notwithstanding the extra element,
the instructions here were otherwise legally accurate. See Miller,
113 P.3d at 750. Moreover, if the jury found that Simpson took a
substantial step toward committing murder, it necessarily found
that he attempted murder. Therefore, the erroneous added element
did not cast doubt on his conviction. See State v. Williams, 2015 WI
75, ¶ 62 (“[W]hen an erroneous jury instruction raises the State’s
burden by adding an element not necessary for conviction, and the
jury convicts, the jury verdict will often sufficiently show that the
jury would have convicted if instructed on the proper elements.”).
¶ 37 We also reject Simpson’s argument that the instructions were
so misleading as to constitute plain error. Any confusion was likely
16 in Simpson’s favor because the jury would have believed that the
prosecution had to prove more than was required. See Hoggard,
¶¶ 30, 33 (finding no reversible error when an instruction “simply
placed an additional burden on the prosecution to prove more” than
was legally required). Accordingly, Simpson has not shown that the
error undermined the reliability of his conviction. See Hagos, ¶ 14.
IV. Evidentiary Challenges
¶ 38 Simpson next raises several evidentiary challenges, arguing
that the district court reversibly erred by admitted hearsay
evidence, evidence of his prior bad acts, and pretrial screening
evidence. We reject each of these arguments in turn.
¶ 39 We review evidentiary rulings for an abuse of discretion.
People v. Schlehuber, 2025 COA 50, ¶ 42. 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. Id. We review preserved evidentiary challenges for harmless
error and reverse if “there is a ‘reasonable probability’ that the error
contributed to the defendant’s conviction.” Id. at ¶ 45 (quoting
People v. Vanderpauye, 2023 CO 42, ¶ 66). We review unpreserved
17 evidentiary challenges for plain error and reverse only if the error
was obvious and substantial and “so undermined the fundamental
fairness of the trial itself as to cast serious doubt on the reliability
of the judgment of conviction.” Hagos, ¶ 14 (citation omitted).
B. Hearsay Evidence
¶ 40 We first consider Simpson’s argument that the district court
erred by admitting A.D.’s testimony about Simpson’s prescriptions.
The prosecutor asked if A.D. knew what medications Simpson took.
Defense counsel objected for lack of foundation, and the prosecutor
then asked whether A.D. and Simpson were on the same insurance
plan. A.D. said that Simpson was on her insurance plan in June
2019 and that the insurance company sent her monthly statements
listing his prescriptions. Defense counsel raised a hearsay
objection, which the district court overruled, finding that A.D. could
testify to her observations. A.D. then testified that Simpson
received tramadol for pain and testosterone. She also said she
believed he was prescribed oxycodone at some point.
¶ 41 We agree with Simpson that the district court abused its
discretion by admitting inadmissible hearsay but conclude that the
error was harmless. See Schlehuber, ¶ 45.
18 ¶ 42 Hearsay is “a statement other than one made by the declarant
while testifying . . . , offered in evidence to prove the truth of the
matter asserted.” CRE 801(c). A “statement” includes “an oral or
written assertion.” CRE 801(a). Hearsay is inadmissible except as
provided by the Colorado Rules of Evidence or other statutes or
rules. CRE 802. Under CRE 701, a lay witness may give testimony
in the form of opinions or inferences that are rationally based on
the witness’s perceptions. But Rule 701 is not an exception or
exemption to the rule against hearsay.2 See Taxinet Corp. v. Leon,
114 F.4th 1212, 1225 (11th Cir. 2024) (“[A] lay witness may base
opinion testimony on what [he] heard, [but] this does not mean that
lay opinion[s] may be based on hearsay.” (second alteration in
original) (citation omitted)); Stephans v. State, 262 P.3d 727, 731
(Nev. 2011) (“[A] lay witness cannot give opinion testimony based on
otherwise inadmissible hearsay.”).
¶ 43 The insurance records contained an out-of-court written
assertion that Simpson received certain prescriptions, and A.D.’s
2 Because CRE 701 parallels its federal counterpart and the rules of
evidence of many states, we may consider cases from other jurisdictions. See People v. Faussett, 2016 COA 94M, ¶ 40 n.6.
19 testimony offered that assertion for its truth. See CRE 801(a), (c);
see also Burchfield v. State, 892 So.2d 191, 198 (Miss. 2004)
(holding that a pill bottle’s medication label is hearsay when used to
prove its contents). Therefore, absent a recognized exception or
exemption, the testimony was inadmissible. See CRE 802.
¶ 44 The State argues that the insurance records were machine
generated, so they do not constitute human statements that fall
within the ambit of the hearsay rules. We disagree. Testimony
regarding a computer-generated record is not hearsay if it was
created “without human input or interpretation.” People v. N.T.B.,
2019 COA 150, ¶ 22 (emphasis added); cf. People v. Hamilton, 2019
COA 101, ¶¶ 24-26 (holding that reports were hearsay because
there was no evidence that they were created without human input
or interpretation). No evidence explained how the insurance
documents were created, so we cannot conclude that they were
solely machine generated.3 See Hamilton, ¶¶ 24-26.
3 The business records exception under CRE 803(6) also did not
apply because there was insufficient foundation to support admission on that basis. See Curry v. Brewer, 2025 COA 28, ¶ 50.
20 ¶ 45 However, given the ample other evidence that Simpson had
access to pain medication, A.D.’s inadmissible testimony was
harmless. See People v. Caldwell, 43 P.3d 663, 668 (Colo. App.
2001) (“[I]f the evidence is merely cumulative and does not
substantially influence the verdict or affect the fairness of the trial
proceedings, any error in its admission is harmless.”).
¶ 46 First, B.M. testified that Simpson confessed to putting pain
medication in the children’s shakes. Second, B.M., C.F., and A.D.
testified about Simpson’s previous suicide attempt via overdose.
Therefore, it was essentially undisputed that Simpson had access to
(or knew how to access) medication that could cause death or
overdose. We cannot say A.D.’s inadmissible testimony about
Simpson’s prescriptions for such medications “substantially
influence[d] the verdict or affect[ed] the fairness of the trial
proceedings.” Id.
C. Evidence of Prior Bad Acts
¶ 47 Simpson next argues that the district court improperly
admitted evidence of his extrinsic bad acts without determining
admissibility under CRE 404(b). He also argues that the evidence
21 was inadmissible under CRE 403. He did not object to the
challenged evidence, so we review for plain error.4 Hagos, ¶ 14.
¶ 48 Rule 404(b) provides that “[e]vidence of any other crime,
wrong, or act 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” but may be admissible for purposes
such as “proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident.” See
Rojas v. People, 2022 CO 8, ¶ 26. The rules of evidence allow
courts to “admit uncharged misconduct evidence for almost any
non-propensity purpose.” Id. at ¶ 28.
¶ 49 To be admissible, “[s]uch evidence must be (1) logically
relevant (2) to a material fact (3) independent of the prohibited
inference of the defendant’s bad character, and (4) the probative
value of the evidence must not be substantially outweighed by the
risk of unfair prejudice.” Id. at ¶ 27. To determine whether
4 We reject Simpson’s contention that the “issue is preserved by
operation of CRE 404(b)(3),” which outlines the prosecution’s notice requirements. We are unaware of any authority altering a defendant’s duty to preserve arguments for appeal based on the prosecution’s duty to disclose certain evidence before trial.
22 evidence was unduly prejudicial under Rule 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).
¶ 50 Simpson first argues that testimony about his prior suicide
attempts was improper character evidence. But “evidence of a
person’s suicidal disposition is not character evidence.” State v.
Buelow, 951 N.W.2d 879, 889 (Iowa 2020); see also State v. Stanley,
2001-NMSC-037, ¶ 22 (“Suicidal dispositions typically stem from
mental illness, not from a person’s ‘bad character’ or trait of
character.”). Thus, Rule 404(b) does not apply to Simpson’s suicide
attempts. See Rojas, ¶ 43.
¶ 51 We also reject Simpson’s argument that the evidence’s
“probative value [was] substantially outweighed by the danger of
unfair prejudice.” CRE 403. “Evidence is only unfairly prejudicial if
it has an undue tendency to suggest a decision on an improper
basis such as sympathy, hatred, contempt, retribution, or horror.”
People v. Raehal, 2017 COA 18, ¶ 16. The suicide attempts helped
explain Simpson’s mental health challenges and provided a
plausible explanation for the inner turmoil that led him to consider
23 killing his children. The overdose also established method and
opportunity. See Rojas, ¶ 28. Moreover, because the suicide
attempts were not described at length or in detail, it is unlikely that
they could have engendered strong negative emotions in the jury.
See Raehal, ¶ 16.
¶ 52 Next, Simpson challenges A.D.’s testimony that, on the day of
Simpson’s second suicide attempt, he wrote notes in lipstick on
mirrors in the family home and put family photos on the dining
table. A.D. described his behavior as “creepy” and “eerie.” Even if
this is character evidence, there is no indication that it was offered
for a propensity purpose. Rather, as with the suicide attempts, it
contextualized Simpson’s devolving mental health. And for similar
reasons, it was not unduly prejudicial under Rule 403.
¶ 53 Simpson also challenges C.F.’s testimony about the box
Simpson mailed to her the day he left for Colorado. C.F. testified
that the box contained “adult paraphernalia” without elaborating on
its contents. Again, even assuming this is character evidence, it
does not appear to have been offered to prove that Simpson acted in
accordance with any character trait. See Rojas, ¶ 27. Rather, it
was probative of his mental state before the trip, and it supported
24 the prosecution’s theory that Simpson was planning to kill himself
and his children and had nothing to lose by burning bridges with
people in his life. Nor was the evidence inadmissible under Rule
403. C.F. briefly mentioned the box and did not specifically
describe its contents, so the prejudicial risk was minimal.
¶ 54 Next, Simpson challenges evidence about the letters or
“packets” he sent to families whose children attended school with
C.S. and D.S. A.D. testified that she spoke to a detective about the
letters. She explained that the letters disparaged A.D. and
discussed her “being awful,” her new romantic partner, and A.D.
and Simpson’s open relationship before they separated. A detective
testified that he responded to a report regarding the letters, which
he described as “harassing in nature.”
¶ 55 As with the other challenged evidence, the letters had a
relevant, nonpropensity purpose; they offered context for Simpson’s
mental state before the trip and supported the prosecution’s theory
that he believed he had nothing to lose by harming his family’s
25 reputation.5 Rojas, ¶¶ 27, 28. Finally, the letters’ probative value
was not “substantially outweighed by the risk of unfair prejudice.”
Id. at ¶ 27; CRE 403. They were not admitted into evidence, and
the trial testimony only discussed their general content.
¶ 56 The final piece of evidence that Simpson challenges under
Rule 404(b) is a forensic interview of C.S., in which the interviewer
asked questions to determine whether C.S. had been sexually
abused. It is unclear if all or part of the video of the interview was
played for the jury.6 But C.S. said she had not experienced
inappropriate sexual contact, and the interviewer’s questions did
not suggest concerns about Simpson. Therefore, the evidence did
not implicate Simpson’s character and was not unfairly prejudicial
because the questions did not discuss him. See Rojas, ¶¶ 27-28.
¶ 57 In sum, we conclude that the challenged evidence was
admissible under Rules 404(b) and 403. Finally, because Simpson
did not timely object to the challenged evidence, the district court
5 Although Simpson’s brief contends that he was convicted of
harassment based on the letters, evidence of the conviction and charges was not presented to the jury in this case. 6 The record does not reflect a request to redact parts of C.S.’s
interview.
26 did not plainly err by failing to analyze it under People v. Spoto, 795
P.2d 1314 (Colo. 1990). See Rojas, ¶ 52 (requiring a Spoto analysis
“if extrinsic evidence suggests bad character”); People v. Thompson,
950 P.2d 608, 614 (Colo. App. 1997) (holding that district court’s
failure to sua sponte conduct a Spoto analysis of unchallenged
evidence was not plain error).
D. Pretrial Screening Evidence
¶ 58 Simpson’s last evidentiary contention concerns testimony
about the process involved in prosecuting his case.
¶ 59 During cross-examination of Detective John Monaghan,
defense counsel elicited testimony that Monaghan met with the
office of the district attorney (DA) in February 2020. Monaghan
then confirmed that no charges were filed in February, and he did
not draft an arrest warrant until May 2020. On redirect, the
prosecutor asked about the meeting with the DA’s office, and
Monaghan answered the following question affirmatively: “[A]fter
that meeting, did you provide all of the materials from the case for
the [DA’s] office to review to make a decision about whether or not
to file the case?” He elaborated,
27 We had the meeting, which is depending on the case and the circumstances, part of the . . . process at times in our unit. And . . . part of that process is if we were to have those meetings we then formally file the entirety of the case, documentation and everything that we have, over to the DA’s office to review and then make a recommendation from there. In the event that during that discussion the details are not covered as thoroughly as maybe they would be seen in reading the case.
Finally, Monaghan agreed that the case was filed “after [a] thorough
review by the Special Victim’s Unit at the [DA’s] office.”
¶ 60 Generally, information about charging decisions is
inadmissible because it “may imply that, because of a pretrial
screening process, only guilty parties are charged with crimes and
thus the defendant must be guilty.” People v. Mendenhall, 2015
COA 107M, ¶ 62. This evidence may suggest “that additional
evidence supporting guilt exists that is unknown to the jury,” or it
may reveal a witness’s personal opinions as to the defendant’s guilt.
Id. However, a prosecutor can elicit information about charging
decisions when defense counsel opens the door to such evidence.
See id. at ¶¶ 64, 67; People v. Davis, 312 P.3d 193, 196-97 (Colo.
App. 2010), aff’d, 2013 CO 57. For example, in Mendenhall, ¶¶ 55-
56, 64, 67, a division of this court held that the defense opened the
28 door to questions about a DA investigator’s process when defense
counsel’s opening statement emphasized that charges were not
brought until 2010 for conduct reported in 2008.
¶ 61 We agree with the State that Simpson opened the door to the
challenged line of inquiry by suggesting that the case against him
was weak because it took several months to make a charging
decision. The challenged part of the redirect examination was
clearly a response to the testimony defense counsel had elicited; the
redirect testimony helped explain why a thorough factual
investigation takes time and can delay charging decisions.
¶ 62 Additionally, Monaghan’s testimony did not suggest that any
unadmitted evidence supported Simpson’s guilt, nor did it express
an opinion regarding Simpson’s guilt. See id. at ¶ 62; see also
People v. Garcia, 2023 COA 58, ¶¶ 52, 58-59 (no plain error when a
prosecutor said charges cannot be brought absent “a good faith
belief that we can prove the charge” because the statement did not
suggest that unadmitted evidence supported the defendant’s guilt).
Under these circumstances, there was no error, much less plain
error; defense counsel opened the door to the prosecutor’s
29 questions, and the testimony did not pose a risk of suggesting guilt
based on unadmitted evidence or Monaghan’s personal opinion.
V. Cumulative Error
¶ 63 Finally, we reject Simpson’s argument that cumulative error
requires reversal. Cumulative error does not require reversal
“unless the cumulative effect of the errors shows that a defendant’s
right to a fair trial was substantially prejudiced.” Mendenhall, ¶ 82.
¶ 64 We have agreed with Simpson on two contentions of error but
held that one error was not plain and the other was harmless.
Specifically, as to the erroneous attempt instructions, we concluded
that the error likely raised the prosecution’s burden of proof,
rendering it not plain. And we held that the inadmissible hearsay
evidence was cumulative of other unchallenged evidence, rendering
the error harmless. Under these circumstances, we discern no
cumulative error that substantially prejudiced Simpson’s right to a
fair trial.
VI. Disposition
¶ 65 The judgment of conviction is affirmed.
JUDGE KUHN and JUDGE SULLIVAN concur.