23CA0802 Peo v Whitt 07-16-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0802 Fremont County District Court No. 15CR224 Honorable Gilbert A. Martinez, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Steven Todd Whitt,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE SCHUTZ Lipinsky and Yun, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 16, 2026
Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Radhika M. Kattula, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff- Appellee
Megan A. Ring, Colorado State Public Defender, Daniel J. Sequeira, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Steven Todd Whitt, appeals his convictions of
attempted second degree murder and several counts of assault
arguing that the trial court erred by permitting the testimony of
three medical professionals who treated Debra Robertson, the
victim in this case; admitting a written summary of Robertson’s
narrative of the events giving rise to the charges; and admitting
evidence that Whitt had previously strangled Robertson.
¶2 We affirm the judgment of conviction.
I. Background
¶3 A jury could have reasonably found the following facts from
the evidence introduced at trial.
¶4 Whitt was married to Robertson. The couple was financially
struggling. In June 2015, Whitt, Robertson, and Robertson’s
daughter (Whitt’s stepdaughter) went for a walk near their house.
The couple had been arguing throughout the day, and they
continued to argue when they returned home from the walk.
Robertson eventually went into their yard to work alone in her
garden, and Whitt worked on a rock retaining wall nearby.
¶5 While working, Robertson felt “a big hit” on the back of her
head. She looked up to see Whitt standing over her, holding a large
1 rock over his head. Whitt told Robertson, “[Y]ou’re going to die
today.” Robertson tried to move away, but Whitt tackled her and
held her to the ground. He then put his hands over her nose and
mouth and held her down. As Robertson struggled, Whitt grabbed
another rock and hit her with it on the top-left side of her head.
Robertson temporarily lost her vision at this point.
¶6 Robertson attempted to reason with Whitt, but he responded
by pinching her nose and putting his hand over her mouth.
Robertson testified that Whitt told her to: “Just stop. Just stop.
Just die already.” She lost consciousness.
¶7 Sometime later, Robertson regained consciousness and
attempted to reach the house. Whitt, who was wearing gloves this
time, pushed her down and again placed his hands over her mouth
and nose. Whitt then took off his shirt and placed it over her
mouth and nose, and Robertson again lost consciousness.
¶8 After regaining consciousness, Robertson was able to make it
to her car and drove to the hospital. There she was treated by
Rebecca Parsons-Gerstel, RN, a trauma nurse, and Dr. Scott
Geiger, an emergency room physician, both of whom testified at
trial.
2 ¶9 The prosecution charged Whitt with one count of attempted
second degree murder, one count of second degree assault, and two
counts of first degree assault.
¶ 10 Whitt’s first trial resulted in a mistrial before opening
statements due to an insufficient number of potential jurors after
the prosecutor referred to inadmissible evidence. The trial was
rescheduled and completed six months later. The jury at the
second trial convicted Whitt on all counts. Whitt appealed his
conviction, and a division of this court determined that the trial
court admitted improper evidence and vacated Whitt’s convictions
and remanded for a third trial. See People v. Whitt, (Colo. App. No.
17CA1297, June 9, 2022) (not published pursuant to C.A.R. 35(e))
(Whitt I).
¶ 11 At both the second and third trials, Robertson’s three treating
medical professionals testified: Parsons-Gerstel; Geiger; and Dr.
Steven Whitmarsh, Robertson’s personal physician (collectively, the
experts). The prosecution endorsed all the experts as witnesses
when the case was initially filed in 2015, and then again shortly
before the first trial began in February 2016.
3 ¶ 12 The experts also appeared on the prosecution’s witness lists
filed before the second trial — in May 2016 and again in March
2017. Each expert testified extensively at the second trial.
¶ 13 At a motions hearing prior to the third trial, counsel and the
court had the following exchange concerning the experts:
[Prosecutor]: The same endorsements from the original trial still stand.
[Defense counsel]: So is it then the same expert? Is that who you —
[Prosecutor]: Yeah, I just have to double — yes. I just have to double check on some things.
[Defense counsel]: Sure. So Judge, if the same individual — I would agree. I think the endorsement from 2015 technically would serve as notice.
At the hearing, the court directed both sides to file new witness lists
and ordered them to update their expert disclosures with any new
information that postdated the second trial. All the experts
appeared on the prosecution’s January 2023 witness list.
¶ 14 Before the third trial started, Whitt’s counsel asserted that the
prosecution had not provided the new expert disclosures, including
updated curricula vitae (CVs) and endorsements that updated the
experts’ fields of expertise. But Whitt’s counsel acknowledged that
4 the experts had all testified at the second trial and she had read the
transcripts of their testimony. The prosecutor represented that, at
the third trial, each expert’s testimony would be substantially
similar to their testimony during the second trial; she had tried to
secure updated CVs from the experts; and they had not timely
responded. The court permitted the experts to testify on the
assumption that their testimony and opinions at the third trial
would be basically the same as at the second trial, and because
Whitt’s counsel had adequate notice of their qualifications and
anticipated opinions.
¶ 15 At the conclusion of trial, the jury convicted Whitt on all
counts. Whitt appeals his convictions.
II. Discussion
¶ 16 Whitt raises multiple arguments on appeal, three of which
stem from the experts’ testimony: (1) the trial court abused its
discretion by permitting the experts to testify notwithstanding the
prosecution’s inadequate expert disclosures; (2) the experts testified
beyond the scope of their expertise; and (3) Parsons-Gerstel’s
written summary improperly bolstered Robertson’s testimony.
Whitt also argues that the trial court improperly admitted CRE
5 404(b) evidence. And finally, he argues that the cumulative effect of
the trial court’s errors requires reversal.
¶ 17 We address each of his contentions in turn.
A. Whitt Was Not Prejudiced by the Lack of Supplemental Disclosures
1. Standard of Review
¶ 18 “We review a trial court’s evidentiary rulings for an abuse of
discretion.” People v. Vanderpauye, 2021 COA 121, ¶ 16 (quoting
Campbell v. People, 2019 CO 66, ¶ 21), aff’d, 2023 CO 42. “A court
abuses its discretion when its decision is manifestly arbitrary,
unreasonable, or unfair, or if it misapplies the law.” Id. By
contrast, we review de novo a trial court’s conclusions of law.
Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). This includes a
trial court’s interpretation of the rules of criminal procedure. People
v. Bueno, 2018 CO 4, ¶ 18.
¶ 19 Rule 16(I)(a)(1)(III) of the Colorado Rules of Criminal Procedure
defines the prosecution’s disclosure obligations for expert
witnesses:
(1) The prosecuting attorney shall make available to the defense the following material and information which is within the
6 possession or control of the prosecuting attorney. . . concerning the pending case:
....
(III) Any reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons . . . .
2. Disclosures
¶ 20 Whitt argues that the prosecution did not properly disclose the
opinions and qualifications of the three experts. Specifically, he
argues that the disclosures the prosecution eventually provided for
the experts — including summaries of their testimony and updated
CVs — were both late and inadequate, in part because the
testimony summaries did not include the “causation testimony”
that he argues they provided at trial.
¶ 21 On the morning of the third trial, Whitt argued that the
prosecution had failed to comply with the court’s expert disclosure
order because the prosecution had not provided updated CVs and
reports for the experts by the deadline the court had set. The trial
court determined that because the experts had all testified before,
and the prosecution represented that their testimony would be the
same as at the second trial, Whitt had sufficient notice of the
7 experts, their qualifications, and the substance of their testimony.
The court therefore denied Whitt’s motion.
¶ 22 The trial court’s conclusion regarding the adequacy of the
2015 disclosures was supported by the prior admission of Whitt’s
counsel. Recall that the prosecutor represented that the experts
would provide the same testimony at the third trial that they had
presented at the second trial. And in response to that
representation, Whitt’s counsel stated: “I would agree. I think the
endorsement from 2015 technically would serve as notice.” This
admission was critical because counsel acknowledged that she had
adequate notice of the experts that Whitt now challenges, along
with copies of their prior testimony.
¶ 23 Whitt argues that he needed updated disclosures so he could
address any changes in the experts’ opinions since the second trial.
But his trial counsel admitted she received and reviewed transcripts
of the experts’ 2015 testimony, and — aside from limited causation
issues separately addressed infra Part II.B — Whitt fails to identify
any material differences between the experts’ testimony at the third
trial versus the second trial.
8 ¶ 24 Similarly, Whitt argues that he needed the experts’ updated
CVs so he could challenge their qualifications. He notes that “one
of the experts’ qualifications did lapse in the last couple of years.”
But that expert — Whitmarsh — simply testified he was no longer a
member of the American Academy of Family Physicians (AAFP), a
voluntary professional organization that does not certify physicians.
But Whitmarsh also testified that he remained board certified in
family practice. Whitt fails to explain how he was prejudiced by not
knowing in advance of trial that Whitmarsh was no longer a
member of the AAFP.
¶ 25 Whitt also had the opportunity to examine all the experts
about their qualifications but chose not to. And he failed to identify
on appeal any material changes in the experts’ qualifications
between the second and third trials. Thus, he has failed to
demonstrate any prejudice resulting from the prosecution’s failure
to make the court-ordered disclosures.
¶ 26 Part of the purpose of expert disclosures in criminal cases is to
permit the defense to prepare for the experts’ cross-examination.
Crim. P. 16(I)(d)(3) (“The intent of [expert disclosures] is to allow the
defense sufficient meaningful information to conduct effective cross-
9 examination under CRE 705.”). Based on defense counsel’s
acknowledgment that she had read the transcripts of the experts’
testimony at the second trial, the trial court determined that Whitt
was able to adequately prepare a complete cross-examination of all
three experts.
¶ 27 Relatedly, while Whitt’s appellate briefs spend a good deal of
time addressing the purpose of expert disclosures and potential
sanctions for the failure to provide such disclosures, Whitt does not
identify any specific opinions that the experts provided at the third
trial that were not disclosed through the experts’ testimony at the
second trial.1 And in his reply brief, Whitt acknowledges that “[t]he
crux of the question here is not notice of the experts’ testimony, but
of the experts’ qualifications and the ability to challenge those
qualifications on the stand.”
¶ 28 True, as Whitt notes, the prosecution failed to provide the
defense with updated expert CVs and summaries by the Friday
1 At oral argument, Whitt’s counsel argued that Parsons-Gerstel
testified about consistency in a manner that was not described at the second trial, and that Geiger addressed concussions that were not addressed at the second trial. But these contentions were not raised in the opening or reply briefs, so we do not discuss them further.
10 before trial, as the court had ordered. The prosecutor represented
that she had requested updated CVs from the experts but that she
had not heard back from them. Importantly, neither in the trial
court nor on appeal did Whitt explain how the prosecution’s failure
to provide the updated CVs and endorsements materially prejudiced
his trial counsel’s ability to prepare for the third trial or to cross-
examine the experts at that trial. Again, he argues general
principles concerning a defendant’s due process right to notice of
the evidence against him and right to present a defense and
confront witnesses. But he fails to explain how the absence of
updated CVs or endorsements compromised any of those rights.
¶ 29 Whitt also takes issue with the trial court’s allegedly improper
reliance on the law of the case doctrine to excuse the prosecution’s
failure to provide the updated disclosures. In the absence of
demonstrated prejudice, we need not further parse the trial court’s
rationale for allowing such testimony.
¶ 30 We perceive no abuse of discretion or prejudice based on the
trial court’s determination that Whitt had adequate notice of the
experts’ testimony and qualifications.
11 3. Sanctions
¶ 31 Whitt also argues that the trial court abused its discretion by
not imposing sanctions against the prosecution for its failure to
comply with the court’s expert disclosure order. A trial court has
broad discretion when choosing whether to impose sanctions
against a party. Nagy v. Dist. Ct., 762 P.2d 158, 160 (Colo. 1988).
Discovery sanctions are intended to remedy prejudice and deter
future misconduct. See People v. Lee, 18 P.3d 192, 196-97 (Colo.
2001) (Remedies for discovery violations serve “the dual purposes of
protecting the integrity of the truth-finding process and deterring
discovery-related misconduct,” and, in the absence of willful
misconduct, “the goal must be to cure any prejudice resulting from
the violation.”).
¶ 32 Although the prosecution did not follow the trial court’s order
regarding disclosing the experts’ updated CVs and endorsements,
the trial court nevertheless determined that the prosecution’s
failures were not sanctionable because Whitt still had sufficient
notice of all relevant aspects of the experts’ anticipated testimony
and their qualifications to provide such testimony.
12 ¶ 33 The trial court’s findings are supported by the record. As
previously explained, the experts testified extensively at the second
trial and, before the third trial, Whitt’s counsel read the transcripts
of that testimony, including testimony about the experts’ experience
and qualifications to provide their respective opinions.
¶ 34 Therefore, we cannot say that the trial court abused its
discretion by declining to impose sanctions against the prosecution
for its failure to comply with the court’s discovery order.
B. The Experts Did Not Testify Outside Their Expertise or Improperly Bolster Robertson’s Testimony
¶ 35 Whitt contends that the trial court abused its discretion by
permitting the experts to testify outside the scope of their expertise.
Relatedly, he argues that some of the experts’ testimony improperly
bolstered Robertson’s testimony.
¶ 36 The People respond that the experts’ respective testimony was
within the scope of their expertise and did not rise to the level of
improper bolstering. We agree with the People.
1. Standard of Review and Applicable Law
¶ 37 The determination of whether an expert’s testimony has
exceeded their approved scope of expertise is within the trial court’s
13 discretion. People v. Watson, 53 P.3d 707, 711 (Colo. App. 2001).
CRE 702 governs the admissibility of expert testimony, and under
its “broad scope,” experts may testify as to their knowledge, skill,
experience, training, or education, and a trial court can admit such
testimony “if the witness can offer ‘appreciable’ assistance on a
subject beyond the understanding of an ‘untrained layman.’”
People in Interest of Strodtman, 293 P.3d 123, 129-30 (Colo. App.
2011) (quoting People v. Williams, 790 P.2d 796, 798 (Colo. 1990));
CRE 702.
¶ 38 While experts may opine upon an ultimate issue, they may not
usurp the jury’s factfinding role. People v. Rector, 248 P.3d 1196,
1203 (Colo. 2011). When examining whether an expert’s testimony
has gone so far as to usurp the jury’s role, we look at a number of
factors, including, but not limited to, whether: (1) the testimony was
clarified on cross-examination; (2) the trial court properly instructed
the jury on the law and that it could accept or reject the expert’s
opinion; and (3) the expert testified that the defendant committed or
likely committed the charged crime. Id.; People v. McMinn, 2013
COA 94, ¶ 51.
14 ¶ 39 We review preserved nonconstitutional errors for harmless
error. People v. Baker, 2021 CO 29, ¶ 38; Crim. P. 52(a). “Under
this standard, we reverse only if the error affected the substantial
rights of the parties.” Baker, ¶ 38.
¶ 40 We review unpreserved errors for plain error. Garcia v. People,
2019 CO 64, ¶ 3. An error is plain if it is “both obvious and
substantial.” Id. (quoting People v. Miller, 113 P.3d 743, 750 (Colo.
2005)). For a plain error to require reversal, the error must have
“so undermined 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, ¶ 18 (quoting Wilson v. People, 743
P.2d 415, 420 (Colo. 1987)).
¶ 41 In general, to preserve an issue for appeal, a defendant must
“raise[] an issue sufficiently to give the trial court an opportunity to
rule on the claim.” People v. Margerum, 2018 COA 52, ¶ 17, aff’d
on other grounds, 2019 CO 100. An objection is sufficient to
preserve an issue for appeal when it draws the court’s attention to
the asserted error. People v. McFee, 2016 COA 97, ¶ 31. If the
court rules on a claim and makes findings of fact and conclusions
of law, the claim is sufficiently preserved for appeal. Id.
15 2. Preservation
¶ 42 We must first consider whether Whitt’s objections to the
experts’ opinions were preserved. Whitt argues in his opening brief
that he objected to the scope and admissibility of the experts’
testimony at the second trial, and that these objections were
sufficient to preserve the same issues at the third trial. Whitt is
mistaken.
¶ 43 “Generally, objections made during a case that resulted in a
mistrial do not preserve objections at a subsequent retrial.” People
v. Melara, 2025 COA 48, ¶ 83 (citing United States v. Palmer, 122
F.3d 215, 221 (5th Cir. 1997)). This rule is especially apt when, as
here, the second (or in this case, third) trial is held before a different
judge than the one who presided at the previous trial. See id.
(citing United States v. Mann, 590 F.2d 361, 371 (1st Cir. 1978)).
¶ 44 During the third trial, Whitt objected that Geiger’s testimony
exceeded the scope of his expertise on the grounds that Geiger was
not an expert in “causation.” The court heard argument and
overruled the objection. Therefore, Whitt preserved his objection to
Geiger’s testimony, and we review that contention for harmless
error. See Baker, ¶ 38. However, Whitt does not point us to similar
16 objections at the third trial regarding the scope of either
Whitmarsh’s or Parsons-Gerstel’s testimony, and upon reviewing
the transcripts, we discern no such objections. Thus, we review
Whitt’s unpreserved contentions regarding Whitmarsh’s and
Parsons-Gerstel’s testimony for plain error. See Garcia, ¶ 3; Melara,
¶ 83.
3. Analysis
¶ 45 The trial court qualified Geiger as an expert in emergency
medicine. Whitt argues that Geiger improperly opined that it
appeared Robertson was struck in the head at least twice because
there were “two separate, distinct injuries.” Specifically, on direct
examination, Geiger testified about photos of Robertson’s injuries:
[Prosecutor:] I’m going to hand you what’s been — let me back up a little bit here. The abrasions that we looked at with the — on the back of the head. The two cuts on the back of the head. Were those consistent with somebody being hit with a rock?
[Defense counsel]: Objection, Judge. Doctor Geiger is not an expert in injury causation.
THE COURT: Objection is overruled.
[Geiger]: It would appear that she clearly got hit with something.
[Prosecutor:] Twice at least?
17 [Geiger:] I would say yeah, those look like two separate, distinct injuries.
¶ 46 Given Geiger’s accepted expertise in emergency medicine, we
conclude that the trial court did not err by permitting him to testify
that Robertson had two distinct head injuries. And, contrary to
Whitt’s contention, this testimony was not an opinion on the cause
of Robertson’s injuries.
¶ 47 Whitt also complains that Geiger described the head wounds
as “blows” and opined that Robertson’s injuries constituted “serious
bodily injury.” We perceive no error. See People v. Martinez, 608
P.2d 359, 360-61 (Colo. App. 1979) (the trial court did not err by
allowing an expert witness to testify “that the victim’s injuries
amounted to serious bodily injury in the language of the statutes”);
see also § 18-1-901(3)(p), C.R.S. 2025 (defining serious bodily
injury). And we fail to see, and Whitt does not explain, how the use
of the term “blow” amounts to an opinion on the causation of
Robertson’s injuries.
¶ 48 Moreover, Whitt had an opportunity to cross-examine Geiger
and clarify his testimony about Robertson’s head injuries. And the
trial court instructed the jury at the close of the trial that it was
18 “not bound by the testimony of witnesses who have testified as
experts” as part of a thorough instruction about expert witness
testimony. Finally, at no point did Geiger testify that Whitt
committed the charged crimes, that he thought it likely that Whitt
had committed them, or that he knew what might have caused
Robertson’s head injuries. See Rector, 248 P.3d at 1203; McMinn,
¶ 51.
¶ 49 Whitt also argues that Geiger testified that concussions
“always met the definition of [serious bodily injury].” The testimony
in the record unfolded as follows:
[Defense counsel:] Again, we know that you’ve testified previously in this case, right?
[Geiger:] Yes.
[Defense counsel:] In your prior sworn testimony you did state that concussion, to you, always meets the definition of serious bodily injury.
[Geiger:] I would put it in the category of serious bodily injury. Yes.
[Defense counsel:] Even though not all concussions are the same, right?
[Geiger:] Correct.
19 [Defense counsel:] Even though not all concussions do, in fact, cause long term impairment.
[Geiger]: Correct.
[Defense counsel:] If you see a concussion, you are saying [serious bodily injury].
[Geiger:] Typically, yes.
¶ 50 Because Whitt’s previous counsel elicited Geiger’s “concussion
equals serious bodily injury” testimony at the second trial, and
Whitt’s counsel chose to discuss the same testimony during her
cross-examination of Geiger at the third trial, we conclude any error
was invited. See People v. Gingles, 2014 COA 163, ¶ 21 (“Under the
‘invited error’ doctrine, a defendant may not complain on appeal of
an error he ‘invited or injected’ into the case, and so ‘must abide the
consequences of his . . . acts.’” (quoting People v. Chavez, 2012 COA
61, ¶ 50)).
¶ 51 Next, Whitt argues that Parsons-Gerstel’s testimony was
improper because she opined on an ultimate issue and improperly
¶ 52 Because this contention is unpreserved, we review it for plain
error. The trial court qualified Parsons-Gerstel as an expert in
forensic nursing. She provided fact testimony about Robertson’s
20 injuries and demeanor, and the court permitted her to answer a
jury question about whether her role as a victim’s advocate clouded
her judgment.
¶ 53 Whitt notes correctly that bolstering testimony is generally
improper. See People v. Renfro, 117 P.3d 43, 46 (Colo. App. 2004).
Specifically, “[b]olstering testimony is improper when it relates to
the witness’s truthfulness on a specific occasion.” Id. However,
Parsons-Gerstel did not testify about Robertson’s truthfulness; she
testified that Robertson’s injuries were consistent with
“strangulation” and “suffocation,” and that Robertson “present[ed]
as a person who had been through a traumatic event.”
¶ 54 Simply providing testimony that is consistent with another
witness’s testimony is not bolstering. And even testifying that a
victim’s testimony is consistent with certain evidence is not
inherently improper bolstering. People v. West, 2019 COA 131,
¶¶ 37, 39-43 (detective’s testimony that the timing of certain text
messages was “consistent with” and “did not conflict with” another
witness’s testimony did not amount to improper bolstering).
21 ¶ 55 Whitt also argues that Parsons-Gerstel’s answer to a jury
question constituted improper bolstering. The jury’s question and
Parsons-Gerstel’s testimony follows:
[THE COURT:] Question, does being an advocate for victims cloud your judgement about their recollection of the assault?
[Parsons-Gerstel:] So I am an advocate for my patients, but I don’t cue them to tell me things. When I did that job — and as we all should — we go in unbiased. We want the patient’s history as it actually happened, as they remember it. We are not there to change the story, to make it the way we want it to be. We go in unbiased, because that’s what we are hearing from our patients. I will always, as a nurse, advocate for my patient, no matter what role I am in, but that doesn’t make me change the facts of what’s presented to me.
¶ 56 Whitt’s argument seems to be based on the idea that Parsons-
Gerstel was improperly bolstering her own credibility by stating that
nurse examiners “go in unbiased” — and, by extension, improperly
bolstered Robertson’s testimony regarding the narrative of the
incident and the severity of the injuries. However, improper
bolstering only occurs when an expert implies that another witness
is telling the truth. People v. Cooper, 2021 CO 69, ¶ 95.
22 ¶ 57 Parsons-Gerstel testified as to how she approached her work
with trauma patients. She did not mention Robertson, say that she
thought Robertson was truthful, or testify that trauma victims were
usually truthful. Rather, Parsons-Gerstel’s answer to the jury’s
question focused on her individual perspective when working with
trauma patients.
¶ 58 Returning to the Rector and McMinn factors, neither Geiger nor
Parsons-Gerstel usurped the jury’s role. See Rector, 248 P.3d at
1203; McMinn, ¶ 51. Whitt had an opportunity to cross-examine
both experts. And before deliberations began, the trial court
instructed the jury about the expert opinions it had heard during
trial: “You are not bound by the testimony of a witness who has
testified as an expert; the credibility of an expert’s testimony is to be
considered as that of any other witness. You may believe all of an
expert witness’s testimony, part of it, or none of it.” Lastly, neither
Geiger nor Parsons-Gerstel testified that Whitt was likely to have
committed the assault against Robertson or actually did so.
¶ 59 Finally, Whitt’s argument regarding Whitmarsh’s testimony is
undeveloped. Aside from his general objection to the late disclosure
of Whitmarsh’s testimony, Whitt does not point to any portion of his
23 testimony that he found problematic or explain how any portion of
Whitmarsh’s testimony at the third trial unfairly prejudiced him.
We cannot address an argument that has not been made.
Accordingly, we do not address the matter further. See People v.
Liggett, 2021 COA 51, ¶ 53 (“[A]ppellate courts do not address
undeveloped arguments.” (citing Antolovich v. Brown Grp. Retail,
Inc., 183 P.3d 582, 604 (Colo. App. 2007))), aff’d, 2023 CO 22.
¶ 60 Based on these facts, we perceive no error, much less plain
error, in the trial court’s admission of the experts’ testimony.
C. Parsons-Gerstel’s Summary Was Not Cumulative
¶ 61 Whitt also argues that the trial court abused its discretion by
admitting a summary of Robertson’s injuries that Parsons-Gerstel
wrote the day after she treated Robertson. Whitt argues that the
summary was “cumulative” and improperly bolstered Robertson’s
testimony. We disagree with both arguments.
¶ 62 “The fact that evidence is cumulative does not, by itself, render
the evidence inadmissible. Instead, admission of cumulative
evidence amounts to an abuse of discretion only if it is manifestly
arbitrary, unreasonable, or unfair under the circumstances.”
People v. Morrison, 985 P.2d 1, 6 (Colo. App. 1999), aff’d, 19 P.3d
24 668 (Colo. 2000). Thus, simply because the summary might have
repeated things Robertson said in her testimony does not render the
summary inadmissible.
¶ 63 Moreover, Parsons-Gerstel’s written summary — made the day
after she treated Robertson — does not indicate that Robertson’s
testimony was truthful. And the narrative’s consistency with
Robertson’s testimony does not make it improper. See West, ¶¶ 37,
43.
¶ 64 We perceive no abuse of discretion in the trial court’s
admission of Parsons-Gerstel’s treatment summary.
D. Prior Strangulation Testimony
¶ 65 At the third trial, the court allowed the prosecution to
introduce Robertson’s testimony concerning a 2013 incident in
which Whitt attempted to strangle her after he and Robertson
argued about finances.
¶ 66 Whitt argues that the trial court erred by permitting
Robertson’s testimony because it involved improper CRE 404(b)
evidence. Relatedly, Whitt argues that the prosecution failed to
provide advance notice of its intent to rely on the 2013 incident as
required by CRE 404(b)(3). The rule provides that, in criminal
25 cases, the prosecution must “provide reasonable notice of [evidence
of other acts] that the prosecutor intends to offer at trial, so that the
defendant has a fair opportunity to meet it”; “articulate in the notice
the permitted purpose for which the prosecutor intends to offer the
evidence and the reasoning that supports the purpose”; and “do so
in writing before trial — or in any form during trial if the court, for
good cause, excuses lack of pretrial notice.” CRE 404(b)(3)(A)-(C).
¶ 67 The People contend that the trial court did not abuse its
discretion by permitting Robertson’s testimony about the 2013
incident because it was relevant to Whitt’s intent when he assaulted
Robertson two years later. In addition, the People note that, before
the second trial, the prosecution alerted the defense that it intended
to rely on CRE 404(b) evidence by filing a notice referencing the
2013 incident.
¶ 68 As previously noted, we review a trial court’s evidentiary
rulings for an abuse of discretion. Campbell, ¶ 21.
2. Robertson’s Testimony
¶ 69 The People acknowledge that, on remand after Whitt I, Whitt
filed a renewed request that the prosecution provide notice of the
26 CRE 404(b) evidence that it intended to rely on at the third trial.
And the People also acknowledge that the prosecutor stated that
she had no excuse for failing to provide a new notice in connection
with the third trial.2 Nonetheless, the trial court permitted the
prosecution to argue that the evidence of the 2013 incident should
be admitted and that the absence of notice was not prejudicial to
Whitt because the defense had notice that the 2013 incident was
part of the prior act evidence that the prosecution intended to rely
on. Thus, the trial court concluded that there was no prejudice
associated with the failure to update the disclosure.
¶ 70 On appeal, Whitt does not allege any facts to illustrate how the
absence of a new notice concerning the 2013 incident prejudiced
2 The supreme court adopted CRE 404(b)(3) in 2021, with an
effective date of July 1, 2021. See Rojas v. People, 2022 CO 8, ¶ 26 n.5. CRE 404(b)(3) applies to cases filed on or after July 1, 2021. See Rule Change 2021(03), Colorado Rules of Evidence (Amended and Adopted by the Court En Banc, Mar. 19, 2021), https://perma.cc/S9DV-NEPT. Because this case was filed in 2015, CRE 404(b)(3) does not apply. The People noted this timing issue in their answer brief, and Whitt did not contest its inapplicability in his reply brief. See People v. Bondsteel, 2015 COA 165, ¶ 61 (“An appellant’s failure to respond in the reply brief to an argument made in the answer brief may be taken as a concession.”), aff’d, 2019 CO 26, overruled on other grounds by, Garcia v. People, 2022 CO 6.
27 him. Thus, we discern no error in the trial court’s conclusion that
Whitt was not prejudiced by the absence of a new notice.
¶ 71 Turning to the substance of Whitt’s contention, we begin by
noting that CRE 404(b)(1) prohibits “[e]vidence of any other crime,
wrong, or act” from being admitted into evidence “to prove a
person’s character in order to show that on a particular occasion
the person acted in conformity with the character.” However, CRE
404(b)(2) permits evidence that goes toward “proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.”
¶ 72 To determine whether evidence is admissible under CRE
404(b), courts apply the four-part test from People v. Spoto: (1) the
evidence must relate to a material fact; (2) the evidence must be
logically relevant; (3) the relevance of the evidence must not be
based on the prohibited inference — that is, the defendant had a
bad character and acted in conformity with it; and (4) the probative
value of the evidence must not be substantially outweighed by the
danger of unfair prejudice against the defendant. 795 P.2d 1314,
1318 (Colo. 1990).
28 ¶ 73 Whitt argues that the court abused its discretion when
considering the third and fourth Spoto factors. He asserts that the
only purpose for admitting the 2013 incident was to portray Whitt
“as a bad man acting in accordance with that character.” We
disagree.
¶ 74 Before ruling on the admissibility of the 2013 incident, the
trial court heard Robertson’s testimony outside the presence of the
jury and concluded that she could testify about the 2013 incident
for the limited purpose of demonstrating Whitt’s intent at the time
of the 2015 assault.
¶ 75 And before Robertson testified, the trial court instructed the
jury as follows:
Ladies and gentlemen of the jury, the evidence you will hear of an alleged act by [Whitt] against Debra Robertson prior to the date of June 29, 2015 is admitted for a limited purpose, namely whether [Whitt] had intent to cause bodily injury, and whether [Whitt] had intended to cause serious bodily injury to Debra Robertson on June 29, 2015. You may not consider it for any other reason.
¶ 76 Robertson’s testimony about the incident was limited. The
entire line of questioning is captured below:
[Prosecutor:] So you go to grab his shoulder.
29 [Robertson:] Yes. And just intending to grab his shoulder to get his attention and I came down harder than expected. Like I slapped his shoulder. And he spun around off the love seat and I went running back down the hall to get away from him. He caught me in the hall.
[Prosecutor:] I mean when you say you slapped him, was it hard enough to leave a mark or anything?
[Robertson:] No.
[Prosecutor:] So you run down the hall, then what happens?
[Robertson:] He caught me in the hall and he strangled me until I was passed out enough that I slid to the floor, and he continued to strangle me on the floor.
[Prosecutor:] What was he doing to strangle you?
[Robertson:] He had his hands around my neck.
[Prosecutor:] Did you lose consciousness completely?
[Robertson:] I’m not certain. If I did it was momentarily.
[Prosecutor:] Were there injuries you observed from this?
[Robertson:] Yeah. I had some bruising on my neck and a lot of bruising on my arms and wrists from him also holding me down and hitting me later into that fight.
30 [Prosecutor:] Did you report this?
[Prosecutor:] What time period did this happen in?
[Robertson]: Roughly around winter 2013. The end of 2013 or very beginning of 2014.
¶ 77 Following this testimony, the trial court instructed the jurors
again:
Ladies and gentlemen of the jury, the evidence you have heard concerning an alleged act by [Whitt] against [Robertson] prior to the date of June 29, 2015 was admitted for a limited purpose, namely whether [Whitt] had intent to cause bodily injury, and whether [Whitt] had intent to cause serious bodily injury to [Robertson] on June 29, 2015. You may not consider it for any other reason. You will get a written instruction which says this as well.
¶ 78 We disagree with Whitt that the third Spoto prong is not met.
The third prong of the Spoto test “does not demand the absence of
the inference”; it “merely requires that the proffered evidence be
logically relevant independent of that inference.” People v. Snyder,
874 P.2d 1076, 1080 (Colo. 1994). The prior and charged acts are
sufficiently similar because they both involved Whitt attempting to
kill Robertson (by strangulation in the prior incident and by assault
and suffocation in the charged incident) following an argument over
31 financial matters. And the incidents were separated by only two
years and involved the same parties. Given these similarities,
evidence of the prior assault was logically relevant not because of
Whitt’s generally “bad” character, but because it demonstrated his
intent to strangle Robertson in reaction to their argument about
finances. See People v. Torres, 141 P.3d 931, 934 (Colo. App. 2006)
(“Evidence of a prior act of domestic violence is relevant to show the
defendant’s intent to harm the victim . . . .”); People v. Morales,
2012 COA 2, ¶ 31 (holding that the third Spoto prong is satisfied
“where there is ‘similarity’ between the charged and uncharged acts,
showing a ‘specific tendency’ on the defendant’s part” (citation
omitted)); see also § 18-6-801.5(1), C.R.S. 2025 (evidence of similar
prior acts of domestic violence “can be helpful and is necessary in
some situations in prosecuting crimes involving domestic violence”).
¶ 79 Regarding the fourth Spoto prong, a trial court has substantial
discretion to determine whether the prejudicial value of prior bad
act evidence outweighs its probative value. People v. Willner, 879
P.2d 19, 27 (Colo. 1994). Because this prong favors admissibility,
we must afford the evidence “the maximum probative value”
attributable by a reasonable fact finder and “the minimum unfair
32 prejudice” to be reasonably expected. Yusem v. People, 210 P.3d
458, 467 (Colo. 2009). The prior act evidence was relevant to
Whitt’s intent. And the risk of unfair prejudice was mitigated by the
limiting instruction. Accordingly, the record and case law
supported the trial court’s decision to admit the evidence for the
limited purpose of proving Whitt’s intent. See Torres, 141 P.3d at
934; see also People v. Cross, 2023 COA 24, ¶¶ 17-18 (the court did
not abuse its discretion by admitting testimony regarding previous
incidents of domestic violence for the limited purpose of motive,
which, like intent, is one of the exceptions under CRE 404(b)(2)).
¶ 80 Given the narrow scope of Robertson’s testimony, and
especially in light of the two limiting instructions that the court
gave contemporaneously with her testimony, we perceive no abuse
of discretion in the trial court’s decision to admit evidence of the
3. Compliance with Court of Appeals Mandate
¶ 81 Whitt also argues that, in Whitt I, the division ordered the trial
court to make specific findings regarding the admissibility of CRE
404(b) evidence. Whitt argues that the trial court erred by waiting
to address the issue until the morning of the first day of trial.
33 ¶ 82 It is true that trial courts must comply with an appellate
court’s mandate. See Powell v. Hart, 854 P.2d 1266, 1267 (Colo.
1993); People v. Powell, 917 P.2d 298, 299 (Colo. App. 1995).
However, the trial court complied with that mandate, albeit at the
last minute.
¶ 83 As discussed above, before the third trial started, Robertson
testified about the 2013 incident at a hearing outside the presence
of the jury. The trial court then determined from her testimony that
the 2013 incident was admissible for the narrow purpose noted in
the limiting instruction.
¶ 84 Simply because the trial court made these findings in a
manner and timeline that Whitt disagrees with does not obviate the
fact that the trial court made specific CRE 404(b) findings about
Robertson’s testimony concerning the 2013 incident. These
findings complied with the mandate. Thus, we discern no error.
E. No Cumulative Error
¶ 85 Finally, Whitt urges us to reverse the judgment based on the
cumulative impact of multiple errors. The cumulative error doctrine
requires multiple errors by the trial court. See People v. Serna-
Lopez, 2023 COA 21, ¶ 47 (“The doctrine of cumulative error is
34 based on the notion that multiple errors, in isolation, may be
viewed as harmless, but the synergistic effect of the multiple errors
may be so prejudicial that they deprive a defendant of a fair trial.”).
¶ 86 As discussed above, we do not discern any errors, much less
multiple errors. Accordingly, cumulative error does not apply.
III. Disposition
¶ 87 The judgment of conviction is affirmed.
JUDGE LIPINSKY and JUDGE YUN concur.