23CA1656 Peo v Widmann 08-27-2026 COLORADO COURT OF APPEALS
Court of Appeals No. 23CA1656 Jefferson County District Court No. 22CR2747 Honorable Lily W. Oeffler, Judge
The People of the State of Colorado, Plaintiff-Appellee, v. Mark Robert Widmann, Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE DUNN
J. Jones and Fox, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced August 27, 2026
Philip J. Weiser, Attorney General, Caitlin E. Grant, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Kelly A. Corcoran, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 After a trial at which he represented himself, a jury found Mark Robert Widmann guilty of internet exploitation of a child. On appeal, Widmann primarily raises concerns about his competency to proceed and the validity of his waiver of the right to counsel. He also argues that the district court erred by failing to dismiss the case based on outrageous government conduct and permitting the prosecutor to commit misconduct in closing argument. We affirm.
I. Background
¶2 One fall afternoon, a woman called 911 to report that a man — later identified as Widmann — had attempted to touch “kids” in a park and had made inappropriate statements to them.
¶3 A sheriff’s deputy responded to the call and spoke with Widmann. Widmann denied any inappropriate behavior or statements. The deputy obtained Widmann’s phone number and date of birth and allowed Widmann to leave.
¶4 Not long after, an investigator posing as “Maddie,” a fourteen- year-old girl, began texting Widmann. Widmann’s sexually explicit responses to “Maddie” ultimately led to his arrest, and the prosecution charged him with one count of internet exploitation of a child.
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¶5 The district court appointed counsel to represent Widmann. Within a few weeks, defense counsel moved to suspend the proceedings and asked the court to find Widmann incompetent to proceed. The next day, Widmann filed a motion asking to remove defense counsel and to be allowed to proceed pro se.
¶6 The court stayed the proceedings, ordered a competency evaluation, and deferred Widmann’s request to proceed pro se.
¶7 Dr. Dana L. Formon evaluated Widmann for competency. After interviewing Widmann and reviewing several earlier competency evaluations, Dr. Formon concluded that Widmann was competent to proceed.1
¶8 At the next hearing, the court adopted the competency report. Defense counsel neither objected to the competency report nor requested another competency evaluation. The court then addressed Widmann’s motion to proceed pro se. After advising Widmann about his right to counsel and the risks of proceeding pro se, the court granted his request to proceed pro se.
1 Dr. Formon reviewed five competency reports performed in
connection with other cases. Four concluded that Widmann was competent to proceed; one did not.
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¶9 At trial, Widmann defended on the theory that the police entrapped him and that he was innocent. The jury convicted Widmann as charged. The court sentenced Widmann to six years to life in prison.
II. Competency
¶ 10 Widmann contends that reversal is required because (1) Dr. Formon’s competency report was statutorily deficient and therefore the court violated his due process rights by proceeding to trial; (2) the district court erred by failing to suspend the proceedings and sua sponte order another competency evaluation; and (3) Widmann did not validly waive his right to counsel. We disagree with all three contentions.
A. Competency Report
¶ 11 A competency evaluation and report, as relevant here, “must include” (1) a diagnosis and prognosis of the defendant’s mental or developmental disability; (2) an opinion as to whether the defendant suffers from a mental or developmental disability; and (3) an opinion as to whether the defendant is competent to proceed. § 16-
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8.5-105(5)(c)-(e), C.R.S. 2022;2 see People v. Presson, 2013 COA 120M, ¶¶ 10-11.
¶ 12 Despite Widmann’s arguments to the contrary, the competency report complied with the statute. First, though Dr. Formon found Widmann displayed “no overt signs of serious mental illness” or “clinically significant delusion,” Dr. Formon diagnosed Widmann with an unspecified personality disorder and included Widmann’s prognosis.
¶ 13 Next, the competency report ended with the two statutorily required opinions:
It is my opinion that [Widmann] is not currently suffering from a mental or developmental disability that prevents him from having sufficient present ability to consult with his attorney with a reasonable degree of rational understanding to assist in his defense, or prevents him from having a rational and factual understanding of the criminal proceedings. It is therefore also my opinion that [Widmann] is currently competent to proceed to adjudication.
2 Because section 16-8.5-105, C.R.S. 2022, has since been
amended, we consider and apply the version of the statute in effect at the time of the underlying events. See People v. Gallegos, 2025 CO 41M, ¶ 6 n.2; Ch. 119, sec. 5, § 16-8.5-105, 2023 Colo. Sess. Laws 442; Chs. 372, 490, secs. 4, 22, 2024 Colo. Sess. Laws at 2502-06, 3408; Ch. 357, sec.4, 2025 Colo. Sess. Laws at 1923; Ch. 142, sec.1, 2026 Colo. Sess. Laws at 684-91.
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(Emphasis added.) Because the competency evaluation plainly satisfied the statute, we reject Widmann’s claim that the competency report failed to include an opinion on “whether Widmann suffered from a mental disability or a developmental disability” or was otherwise statutorily deficient.
¶ 14 To the extent Widmann says that Presson requires a different result, we disagree. In Presson, the defendant refused to meet with the evaluator. Presson, ¶ 5. Thus, the evaluator “was unable to render an opinion” about the defendant’s competency. Id. at ¶ 11. Under those circumstances, the Presson division concluded that the evaluation report was “statutorily deficient.” Id. at ¶ 8. That’s entirely different from what happened here.3
¶ 15 And to the extent Widmann faults the evaluator for not comparing “the characteristics” of an unspecified personality disorder with the statutory definitions of “mental disability” or
3 Widmann also adds that the evidence that he “was not competent
at trial or sentencing was strong.” But he doesn’t explain how that assertion ties to whether the competency report complied with section 16-8.5-105. We therefore don’t address this conclusory assertion. See People v. Liggett, 2021 COA 51, ¶ 53, aff’d, 2023 CO 22.
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“developmental disability,” he points to nothing in the statute requiring such a comparison.4 Because we are unaware of any such requirement, we cannot conclude that the evaluation is statutorily deficient because the examiner failed to explain why a specific diagnosis isn’t a “mental disability” or “developmental disability.”
¶ 16 For all these reasons, we disagree with Widmann that the competency report “was statutorily deficient” and that the court “lacked authority to proceed and violated” his due process rights.
B. Suspension of Proceedings and Second Competency Evaluation
¶ 17 Due process and Colorado statutes prohibit trying a defendant who is incompetent to proceed. People v. Zimmer, 2021 COA 40, ¶ 17; see §§ 16-8.5-101 to -123, C.R.S. 2022. A defendant’s competency to proceed may be raised by either party, § 16-8.5- 102(2)(b), C.R.S. 2022, or on the court’s own motion if the court has
4 In support of this assertion, Widmann cites “§§ 16-8.5-105(10),
(15), C.R.S.” We assume he meant to cite to section 16-8.5-101(10), (15), C.R.S. 2022, which defines the terms “[d]evelopmental disability” and “mental disability.”
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“reason to believe that the defendant is incompetent to proceed,” § 16-8.5-102(2)(a).
¶ 18 We review a district court’s competency determination for an abuse of discretion. People v. Rodriguez, 2022 COA 98, ¶ 12. A court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair or when it applies an incorrect legal standard. Id.
¶ 19 Widmann now contends that the district court erred by “fail[ing] to pursue further inquiry on [his] competency” because his “statements and behavior” indicated that he was not competent to proceed.
¶ 20 The first problem with this argument is that it largely focuses on statements and behavior made by Widmann before the competency evaluation. For example, Widmann argues that the court should have sua sponte questioned his competency based on various statements he made about the usefulness of defense attorneys, his beliefs about the legal system and police conduct, his view on the possible sentence, and his defense theories. But in the competency report, Dr. Formon observed that Widmann
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• discussed his beliefs about the judicial process and interpretations of case law and statutes that “may not have been wholly accurate, but were also not inherently bizarre, extraordinary, or disjointed”; • held “negative” views of “law enforcement and the country” but “seemed free of psychotic or delusional influence”; • knew why he had been detained, described the allegations against him, and acknowledged that he faced an “indefinite” sentence if found guilty; • understood the basic roles of the judge, attorneys, and jury; • expressed a “poor opinion of lawyers” and a preference for self-representation; • preferred a legal strategy that appeared “overly optimistic and inflexible” but had reasons for his approach that “did not appear based in illogical or bizarre beliefs”; • was able to weigh information and “argue points reasonably” that he believed to be true;
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• said that his current detainment was illegal but “these beliefs did not appear to rise to the level of a clinically significant delusion”; and • “showed the ability to talk in a logical and linear manner, and made cogent arguments related to his own case, spoke intelligently, and was easily understood.”
¶ 21 While Widmann now asserts there was reason to “doubt” the competency report, we note that defense counsel neither objected to the report nor requested a second evaluation. We cannot conclude that the district court erred by accepting the statutorily compliant report and not ordering a second evaluation based on the statements and conduct that Dr. Formon considered.
¶ 22 Widmann also argues that his conduct at pretrial hearings and trial should have raised concerns about his competency. But Widmann again seemingly targets the chosen theory of defense and his beliefs about the justice system and society. And again, Dr. Formon expressly considered the theory of defense and Widmann’s beliefs about the justice system. In fact, Dr. Formon concluded that Widmann “made cogent arguments related to his own case” and that his theory of defense “did not appear based in illogical or
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bizarre beliefs.” Widmann doesn’t explain what changed between the evaluation and trial that should have triggered a reevaluation of his competency. And, indeed, his trial statements are consistent with those he made before the competency evaluation.
¶ 23 Widmann also argues that his decision to admit the 911 call and his trial testimony should have prompted the district court to sua sponte order another competency evaluation. Though undoubtedly ill-advised, Widmann’s decision to admit the 911 call was not inconsistent with his defense theory that he was entrapped. Widmann’s trial testimony was also largely consistent with the views he had expressed before the competency evaluation. His beliefs and theory of defense were considered during the competency evaluation. Widmann again doesn’t point to any significant changes that occurred after the competency evaluation that would have caused the court to question his competency.5
5 Widmann also points to language in an offense-specific evaluation
performed after the trial, but argues only that he was incompetent at the time of trial. Because Widmann doesn’t explain how anything that occurred after trial would have affected his trial competency (or would have alerted the district court to a competency concern at trial), we don’t consider the post-trial evaluation.
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¶ 24 We therefore can’t conclude that the court abused its discretion by failing to sua sponte suspend the proceedings and order a second competency evaluation.
C. Waiver of the Right to Counsel
¶ 25 Finally, relying primarily on the same arguments we have already rejected, Widmann contends that “the record does not support the district court’s conclusion that [he] validly waived his constitutional right to counsel.” Again, we aren’t persuaded.
¶ 26 A defendant’s waiver of counsel is effective only if (1) the defendant is competent to waive the right; and (2) the waiver is made voluntarily, knowingly, and intelligently. People v. Lavadie, 2021 CO 42, ¶ 26. The determination of whether a defendant voluntarily, knowingly, and intelligently waived the right to counsel is accomplished by examining the totality of the circumstances in the entire record. People v. Arguello, 772 P.2d 87, 96 (Colo. 1989).
¶ 27 Whether a defendant effectively waived the right to counsel, and therefore can exercise the right to self-representation, is a mixed question of fact and law. Lavadie, ¶ 22. We accept the district court’s factual findings if they are supported by competent
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evidence in the record, but we analyze de novo the facts’ legal significance. Id.
¶ 28 Widmann first argues that he didn’t knowingly and intelligently waive his right to counsel because (1) “the competency report was statutorily deficient”; (2) his “behavior and statements disclosed an irrational view of the proceedings”; and (3) he lacked insight into his mental health. These arguments go to whether Widmann was competent to waive counsel. And for the reasons already explained, we conclude that the district court didn’t abuse its discretion by accepting the competency report when it granted Widmann’s motion to waive counsel and proceed pro se.
¶ 29 Widmann also argues that he did not knowingly and intelligently waive his right to counsel because “the record does not support that [he] understood the nature of the charges or the statutory offense at issue,” and he “didn’t understand the risks of proceeding pro se.” But Dr. Formon plainly noted that Widmann knew that he had been charged with a “felony-four sex charge,” he described the allegations against him, and he acknowledged that he faced a four- to twelve-year “indefinite” sentence if found guilty. And over the course of the proceedings, the court advised Widmann
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multiple times about his rights, the risks of proceeding pro se, the option to have advisory counsel, the charge against him, and the possible sentence. On at least seven occasions, Widmann acknowledged his right to have either a lawyer or advisory counsel, said he understood the proceedings, and reiterated his desire to represent himself.
¶ 30 We conclude that the district court did not violate Widmann’s right to counsel by accepting Widmann’s waiver of the right to counsel and honoring his persistent desire to represent himself.
III. Outrageous Government Conduct
¶ 31 We next reject Widmann’s claim that the district court erred by failing to rule on his supposed outrageous government conduct defense.
¶ 32 While representing himself, Widmann moved to dismiss his case for a variety of reasons, raising, among other arguments, the “legality of arrest”; “entrapment”; “discovery”; “selective and vindictive prosecution”; “Miranda violations”; “illegal stop”; “illegal search and seizure”; and “altering/tampering with evidence.” In all these motions, however, he never argued that the case should be dismissed for outrageous government conduct.
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¶ 33 After holding numerous evidentiary hearings on Widmann’s motions and affording Widmann ample opportunity to argue his motions, the court mostly denied them. The court did, however, allow Widmann to present an entrapment defense at trial.
¶ 34 As we understand Widmann’s argument, he now faults the district court for not construing his filings and arguments as raising an outrageous government conduct defense and then dismissing the case. He does this by stringing together phrases from his various motions along with some statements at a motions hearing.
¶ 35 It’s not disputed that Widmann failed to expressly raise an outrageous government conduct defense. And while a district court must construe pro se pleadings liberally, that requirement “does not include inventing arguments not made by the pro se party.” Minshall v. Johnston, 2018 COA 44, ¶ 21.
¶ 36 Outrageous government conduct is “conduct that violates fundamental fairness and is shocking to the universal sense of justice.” People v. Medina, 51 P.3d 1006, 1011 (Colo. App. 2001), aff’d sub nom. Mata-Medina v. People, 71 P.3d 973 (Colo. 2003).
¶ 37 We are simply not persuaded that the district court erred by failing to construe Widmann’s motions together to conclude that his
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various claims of illegal arrest and police deception presented an outrageous government conduct claim. After all, police are allowed to use ruses and deception. See People v. Zamora, 940 P.2d 939, 942 (Colo. App. 1996) (“[T]he limited use of ruses is supported by the overwhelming weight of authority.”); People v. Vega, 870 P.2d 549, 553-54 (Colo. App. 1993) (concluding no outrageous government conduct when police used “artifice and deception”), aff’d, 893 P.2d 107 (Colo. 1995). And claims of illegal search, illegal arrest, false reporting, and entrapment are common defenses. They do not on their face suggest the type of “vanishingly rare” conduct that would alert the district court to an outrageous government conduct defense. People v. Burlingame, 2019 COA 17, ¶ 12.
¶ 38 The district court did an admirable job in considering and ruling on the numerous issues Widmann raised. We cannot conclude that it erred — let alone plainly so — by failing to
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collectively construe Widmann’s various motions to raise a defense that was never presented.6 IV. Prosecutorial Misconduct
¶ 39 During trial, Widmann played the 911 call for the jury. But neither party subpoenaed the 911 caller, and the caller didn’t testify at trial.
¶ 40 Still, in rebuttal closing, the prosecutor commented on the 911 caller, arguing that the jury should “look at the credibility of the [caller]” and “consider the fact that [the caller] didn’t want to be involved in this case” and “ha[d] such little stake in this case that she didn’t even need to be here.”
¶ 41 Widmann didn’t object to the argument but now argues that it was improper.
¶ 42 We use a two-step analysis to review prosecutorial misconduct claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First, we evaluate whether the prosecutor’s conduct was improper under
6 Because Widmann didn’t raise an outrageous government conduct
claim, the district court didn’t address it. We thus reject Widmann’s assertion that the district court “concluded the outrageous government conduct defense was subsumed by the entrapment defense.”
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the totality of the circumstances. Id. If it was, we then consider whether the misconduct warrants reversal under the appropriate reversal standard. Id.
¶ 43 We review unpreserved prosecutorial misconduct claims for plain error. People v. Licona-Ortega, 2022 COA 27, ¶ 88. We will not reverse under that standard unless the error 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, ¶ 14 (citation omitted). Prosecutorial misconduct in closing argument “rarely constitutes plain error.” Liggett v. People, 135 P.3d 725, 735 (Colo. 2006).
¶ 44 While we agree that the prosecutor’s comments about the 911 caller lacked record support, we cannot conclude that the comments “cast serious doubt on the reliability of the judgment of conviction.” Hagos, ¶14 (citation omitted). That’s because Widmann faced no charges related to the 911 call or his alleged conduct in the park. Nothing the 911 caller said related to the crime charged — internet exploitation of a child. Even Widmann doesn’t explain how the brief comments about the 911 caller cast serious doubt on his internet exploitation of a child conviction. And
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given Widmann’s sexually explicit messages to “Maddie,” including his repeated requests that she send photos of her intimate parts to him, the evidence of that crime was overwhelming. See § 18-3- 405.4(1), C.R.S. 2025 (listing the elements of the crime of internet sexual exploitation of a child).
¶ 45 Because we conclude that any prejudice from the prosecutor’s brief improper comments about the 911 caller was insignificant, we reject Widmann’s request to reverse his conviction based on that argument.
V. Disposition
¶ 46 The judgment is affirmed.
JUDGE J. JONES and JUDGE FOX concur.