The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 18, 2024
2024COA7
No. 21CA1676, People v. Mitchell — Constitutional Law — Fourteenth Amendment — Equal Protection — Selective Prosecution
A division of the court of appeals considers whether
codefendants charged with the same offense are necessarily
similarly situated for purposes of a selective prosecution claim.
Informed by how federal courts have addressed selective
prosecution claims, the division concludes that sharing a charge
does not, by itself, make codefendants similarly situated. Rather,
the People may make different prosecutorial decisions with respect
to codefendants who share a charge based on their different
conduct.
The division next addresses whether the district court erred by
denying the defendant’s motion for a reverse transfer to juvenile court or by excluding certain evidence. The division concludes that
the district court did not err and, accordingly, affirms the judgment. COLORADO COURT OF APPEALS 2024COA7
Court of Appeals No. 21CA1676 Arapahoe County District Court No. 19CR1443 Honorable Ben L. Leutwyler III, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Demarea Deshawn Mitchell,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE YUN Freyre and Richman*, JJ., concur
Announced January 18, 2023
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2023. ¶1 Demarea Deshawn Mitchell and three codefendants, all
juveniles, conspired to rob the victim at gunpoint. During the
attempted robbery, the victim was shot and killed. The People
initially charged the four youths with felony murder based on their
participation in the attempted robbery, prosecuting all four as
adults. But after two of the codefendants, neither of whom is
Black, agreed to cooperate with law enforcement, the People refiled
their cases into juvenile court.
¶2 Mitchell, who is Black, argues that, by continuing to prosecute
him as an adult while treating the two non-Black codefendants as
juveniles, the People engaged in selective prosecution based on
race. He argues that the four codefendants were similarly situated
at the outset of the case because the People filed the same charges
against all of them. But, informed by how federal courts have
addressed selective prosecution claims, we conclude that sharing a
charge does not, by itself, make codefendants similarly situated for
purposes of a selective prosecution claim. Rather, the People may
make different prosecutorial decisions with respect to codefendants
who share a charge based on their different conduct.
1 ¶3 We further conclude that the district court did not err by
denying Mitchell’s motion for a reverse transfer to juvenile court or
by excluding certain evidence. We therefore affirm the judgment of
conviction entered on jury verdicts finding Mitchell guilty of first
degree felony murder, attempted aggravated robbery, and
conspiracy to commit aggravated robbery.
I. Background
¶4 The following evidence was presented at trial. In the spring of
2019, when high school students K.G. and J.S. were dating, K.G.
came up with the idea of robbing the victim, another student, for
vaping products. The victim was best friends with J.S.’s ex-
boyfriend, and K.G. did not like him for that reason. J.S. agreed to
the plan and arranged to meet up with the victim, ostensibly to buy
the vaping products from him.
¶5 On May 8, 2019, K.G. called his friend D.S., told him about
the planned robbery, and asked to borrow a stolen gun D.S. had in
his possession. D.S. agreed to the plan, and when K.G. picked him
up in J.S.’s car, D.S. brought the loaded gun. The two then called
Mitchell and asked “if he wanted to hang out for a little.” Mitchell
agreed to hang out, and they picked him up as well. K.G. told
2 Mitchell about the plan to rob the victim, and Mitchell agreed to the
plan.
¶6 K.G., D.S., and Mitchell discussed how they would conduct
the robbery. They decided that, when they met up with the victim
as J.S. had arranged, “they were going to roll down the window [of
the car] and just drive away with [the vaping products]; but if that
didn’t, like, work, then they had the gun to, like, pop out.”
¶7 K.G., D.S., and Mitchell picked up J.S. from work that
evening, and the four of them drove to the victim’s house. K.G. was
driving, J.S. was in the front passenger seat, and D.S. and Mitchell
were in the back with the gun either on the seat between them or
on the floor. When they arrived at the victim’s house, the four
again discussed the planned robbery and agreed that, if they
“couldn’t just take the stuff and drive off,” then “somebody was
going to get out the gun and scare” the victim.
¶8 J.S. texted the victim that she was there. The victim came
outside, walked up to the car, spoke to J.S. through the window,
and asked to see the money before showing her the vaping
products. Mitchell picked up the gun, and he and K.G. got out of
the car. Mitchell walked up to the victim, “grabbed him[,] and put
3 the gun to him.” The victim resisted and wrestled Mitchell to the
ground. K.G. ran toward them. Then, as they struggled, Mitchell
shot the victim in the chest.
¶9 The victim screamed and ran back into his house. K.G. and
Mitchell got back into the car, and the four of them drove away.
K.G. asked Mitchell where he shot the victim, and Mitchell replied,
“I don’t know, somewhere in the stomach.” They talked about what
to do with the gun, and Mitchell offered to dispose of it. The next
day, Mitchell attempted to sell it to another person.
¶ 10 In the hospital before he died, the victim told a police officer
that “Kenny” (that is, K.G.) shot him.
II. Procedural History
¶ 11 Although K.G., J.S., D.S., and Mitchell were all juveniles at the
time of the shooting, the People charged all four as adults with first
conspiracy to commit aggravated robbery. But several months
later, the People refiled J.S.’s and D.S.’s cases into juvenile court,
where — in exchange for “full proffers in cooperation with law
enforcement” — J.S. and D.S. each pleaded guilty to one count of
aggravated robbery and were subsequently sentenced to two years
4 in the custody of the Division of Youth Services (DYS). Nothing in
the record indicates that a similar plea offer was extended to K.G. or
Mitchell.
¶ 12 J.S. is Hispanic, D.S. is white, and K.G. and Mitchell are both
Black.
¶ 13 Mitchell moved to “reverse transfer” his case to juvenile court
under section 19-2.5-801(4), C.R.S. 2023. After a hearing, the
district court denied the motion.
¶ 14 Mitchell then filed a motion to dismiss for selective
prosecution and a request for discovery, arguing that the disparate
treatment between himself and the two non-Black defendants, J.S.
and D.S., rose “to the level of a selective prosecution based on race.”
He argued that “Black people are disproportionately represented
and experience disparate treatment” in the American criminal
justice system generally and the Eighteenth Judicial District of
Colorado specifically, and that the People’s decision to prosecute
him as an adult while refiling J.S.’s and D.S.’s cases into juvenile
court exemplified this unequal treatment. He noted, however, that
no state agency currently publishes the statistical information he
would need to determine whether Black youths are
5 disproportionately “direct filed” — that is, prosecuted as adults — in
the Eighteenth Judicial District. Accordingly, he asked the court to
order discovery of (1) all emails regarding plea negotiations between
the prosecution and the lawyers for J.S. and D.S.; (2) any statistical
data regarding charging decisions for direct-file-eligible juveniles;
(3) any notes from meetings or staffing decisions in direct-file-
eligible cases, including his own; (4) a list of all cases in which
juveniles were direct file eligible and the race of those juveniles; and
(5) the outcome of each case in which juveniles were direct file
eligible.
¶ 15 The court denied the motion. Mitchell proceeded to trial, and
the jury found him guilty as charged. The court imposed the
mandatory sentence for felony murder of life in the custody of the
Department of Corrections (DOC) with the possibility of parole after
forty years.
¶ 16 Mitchell now appeals.
III. Analysis
¶ 17 Mitchell contends that the district court erred by (1) denying
his motion to dismiss for selective prosecution and request for
discovery; (2) denying his motion for a reverse transfer to juvenile
6 court; and (3) excluding certain evidence at trial. We address each
contention in turn.
A. Selective Prosecution
¶ 18 Mitchell contends that the district court erred by finding that
he failed to make the threshold showing of selective prosecution
necessary to obtain discovery. We disagree.
1. Standard of Review and Governing Law
¶ 19 We review the district court’s denial of discovery on a selective
prosecution claim for an abuse of discretion. See People v. Butler,
224 P.3d 380, 384 (Colo. App. 2009). A court abuses its discretion
“if it misconstrues or misapplies the law or otherwise reaches a
manifestly arbitrary, unreasonable, or unfair result.” People v.
Johnson, 2019 COA 159, ¶ 10, aff’d, 2021 CO 35.
¶ 20 The decision to prosecute is within the exclusive province of
the district attorney. Colo. Const. art. VI, § 13. A prosecutor has
“wide discretion in determining who to prosecute for criminal
activity and on what charge.” Butler, 224 P.3d at 383 (quoting
People v. Kurz, 847 P.2d 194, 196 (Colo. App. 1992)). But a
prosecutor’s discretion to bring charges is constrained by the Equal
Protection Clause of the Fourteenth Amendment. United States v.
7 Armstrong, 517 U.S. 456, 464 (1996); People v. Gallegos, 226 P.3d
1112, 1118 (Colo. App. 2009). “Equal protection of the laws
guarantees that persons who are similarly situated will receive like
treatment by the law.” Harris v. Ark, 810 P.2d 226, 229 (Colo.
1991).
¶ 21 “Selective prosecution is a claim that the prosecutor has
brought a criminal charge for a forbidden reason, such as race or
religion, that violates equal protection.” Butler, 224 P.3d at 384
n.1. The defendant has the burden of establishing that “the
selective prosecution had a discriminatory effect and was motivated
by a discriminatory purpose.” Kurz, 847 P.2d at 197. To obtain
discovery on a selective prosecution claim, the defendant must
provide some credible evidence tending to show the existence of
both discriminatory effect and discriminatory intent. People v.
Valencia-Alvarez, 101 P.3d 1112, 1116 (Colo. App. 2004); see also
Butler, 224 P.3d at 384. “The some credible evidence standard for
obtaining discovery on a claim of selective . . . prosecution is
‘rigorous.’” Butler, 224 P.3d at 384 (quoting Armstrong, 517 U.S. at
468).
8 ¶ 22 “To establish a discriminatory effect [on the basis of race], the
claimant must show that similarly situated individuals of a different
race were not prosecuted.” Armstrong, 517 U.S. at 465. “The
threshold question in any equal protection challenge is whether the
persons allegedly subject to disparate treatment are in fact similarly
situated.” People v. Black, 915 P.2d 1257, 1260 (Colo. 1996).
“[S]haring a charge alone does not make defendants ‘similarly
situated’ for purposes of a selective prosecution claim.” In re United
States, 397 F.3d 274, 285 (5th Cir. 2005). Rather, “defendants are
similarly situated when their circumstances present no
distinguishable legitimate prosecutorial factors that might justify
making different prosecutorial decisions with respect to them.”
United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005)
(quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)).
¶ 23 “The fact that some people escaped prosecution under a
statute is not a denial of equal protection unless the prosecutor’s
selective enforcement of the statute was intentional or purposeful.”
People in Interest of T.B., 2016 COA 151M, ¶ 67, aff’d, 2019 CO 53.
Discriminatory purpose “implies more than intent as volition or
intent as awareness of consequences. It implies that the
9 decisionmaker . . . selected or reaffirmed a particular course of
action at least in part ‘because of,’ not merely ‘in spite of,’ its
adverse effects upon an identifiable group.” McCleskey v. Kemp,
481 U.S. 279, 298 (1987) (quoting Pers. Adm’r v. Feeney, 442 U.S.
256, 279 (1979)). Discriminatory purpose can be shown by either
direct or circumstantial evidence. Deberry, 430 F.3d at 1299.
Generally, to prevail under the Equal Protection Clause, a
defendant “must prove that the decisionmakers in his case acted
with discriminatory purpose.” McCleskey, 481 U.S. at 292. But in
“certain limited contexts,” courts have “accepted statistics as proof
of intent to discriminate.” Id. at 293. In Yick Wo v. Hopkins,
118 U.S. 356 (1886), for example, where all but one of the white
applicants received permits to operate laundries but none of the
Chinese applicants did, the “statistical pattern of discriminatory
impact demonstrated a constitutional violation.” McCleskey,
481 U.S. at 293 n.12.
2. Discussion
¶ 24 Mitchell argues that the four juvenile codefendants were
“similarly situated at the outset of the case” because all were
charged with felony murder based on their equal participation in
10 the attempted robbery. Relying on the felony murder statute,
Mitchell suggests that it does not matter who shot the victim
because liability arises from the participation in, and the intent to
commit, the predicate felony — attempted robbery.
¶ 25 But the district court found that, regardless of the charges
filed, Mitchell was not similarly situated to J.S. and D.S. because
the evidence “support[ed] a finding that Mr. Mitchell is the
participant who actually shot and killed” the victim. Although the
court found that “[c]onsideration of that fact alone is sufficient to
find that [Mitchell] is not similarly situated to the [other] individuals
who drove to the scene,” it further noted that Mitchell was not
similarly situated to J.S. and D.S. because the latter two chose to
cooperate with law enforcement and “participated in proffers with
the district attorney which included acknowledgment of their
respective roles in the crime.” Accordingly, the court found that
Mitchell “ha[d] not met his burden to show a discriminatory effect in
the continued prosecution of him as an adult.”
¶ 26 The district court properly went beyond the charges the four
juveniles shared and considered each participant’s involvement in
the crime to determine whether they were similarly situated. Apart
11 from the victim’s statement that “Kenny” (that is, K.G.) shot him,
the bulk of the evidence supported a finding that Mitchell fired the
shot that killed the victim. Further, the evidence suggested the
victim may have named K.G. because he knew and could identify
him, while he did not know Mitchell. Under these facts, the
evidence that Mitchell was the likely shooter was a “legitimate
prosecutorial factor[]” on which the prosecution could permissibly
base its decision to treat Mitchell differently than J.S. and D.S.
Deberry, 430 F.3d at 1301 (quoting Olvis, 97 F.3d at 744); see, e.g.,
Keene v. Mitchell, 525 F.3d 461, 465 (6th Cir. 2008) (concluding
that the defendant, who “was the triggerman in four out of the five
aggravated murders,” was not similarly situated to a codefendant
who “was not the triggerman for any of the murders”); In re United
States, 397 F.3d at 284 (concluding that the driver of a truck in
which nineteen migrants died was not similarly situated to other
participants in the smuggling conspiracy because only he, as the
driver, could have heeded the victims’ screams, stopped the truck,
and prevented their deaths); United States v. Cook, 949 F.2d 289,
291-92 (10th Cir. 1991) (concluding that the defendant — a
“‘major,’ ‘high ranking’ cocaine trafficker” — was not similarly
12 situated to a codefendant whose “participation was limited to
throwing the cocaine out the car window when [the defendant]
handed it to her and ordered her to do so”).
¶ 27 Further, as the district court noted, the decision by J.S. and
D.S. to cooperate with law enforcement was another legitimate
factor for prosecutorial decision-making. In the district court
proceeding, the People asserted, and Mitchell did not dispute, that
“both co-conspirators who resolved their cases via plea bargains
offered full proffers in cooperation with law enforcement in advance
of any plea bargain being offered.” See, e.g., United States v. Darif,
446 F.3d 701, 708 (7th Cir. 2006) (concluding that the defendant
was not similarly situated to codefendants who “agreed to accept
immunity in exchange for testimony against” him); United States v.
Alanis, 265 F.3d 576, 585 (7th Cir. 2001) (noting that “it is
axiomatic that an individual who decides not to cooperate with the
government is not similarly situated to one who does cooperate,”
but acknowledging that, if the “bigger picture showed that in all
similar cases the non-Mexican suspects were given an opportunity
to cooperate to the exclusion of those of Mexican descent, obviously
the issue might well be different”).
13 ¶ 28 We thus conclude that the district court did not abuse its
discretion by finding that Mitchell was not similarly situated to J.S.
and D.S. and that he therefore had not demonstrated
discriminatory effect.
¶ 29 To obtain discovery on a selective prosecution claim, a
defendant must provide some credible evidence of both
discriminatory effect and discriminatory purpose. Valencia-Alvarez,
101 P.3d at 1116; Armstrong, 517 U.S. at 468. Because Mitchell
has not demonstrated discriminatory effect, we do not address
whether his statistical evidence meets the some credible evidence
threshold for demonstrating discriminatory purpose.
B. Reverse-Transfer Hearing
¶ 30 Mitchell contends that the district court erred by denying his
motion for a reverse transfer to juvenile court because it misapplied
two of the statutory factors it was required to consider: “the
maturity of the juvenile” and “[t]he likelihood of the juvenile’s
rehabilitation.” § 19-2.5-801(4)(b)(IV), (VII). We disagree.
¶ 31 We review issues of statutory interpretation and application de
novo. People v. Johnson, 2016 CO 69, ¶ 9; People v. Barnett, 2020
14 COA 167, ¶ 10. In doing so, “we give words and phrases their plain
and ordinary meaning, read them in context, and construe them
according to the rules of grammar and common usage.” People v.
Brown, 2019 CO 50, ¶ 16. But we review the district court’s factual
findings for clear error and defer to those findings if they are
supported by the record. M.D.C./Wood, Inc. v. Mortimer, 866 P.2d
1380, 1383 (Colo. 1994).
¶ 32 A juvenile charged by direct filing in district court may move
for a reverse transfer to juvenile court. § 19-2.5-801(4)(a); Johnson,
¶ 10. Upon receipt of the motion, the court must set a
reverse-transfer hearing with the preliminary hearing.
§ 19-2.5-801(4)(a). “In determining whether the juvenile and the
community would be better served by” the case proceeding in the
adult criminal system or the juvenile system, the court “shall
consider” eleven factors:
(I) The seriousness of the alleged offense and whether the protection of the community requires response or consequence beyond that afforded by [the juvenile system];
(II) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
15 (III) Whether the alleged offense was against persons or property, greater weight being given to offenses against persons;
(IV) The age of the juvenile and the maturity of the juvenile, as determined by considerations of the juvenile’s home, environment, emotional attitude, and pattern of living;
(V) The juvenile’s record and previous history in prior court-related matters;
(VI) The juvenile’s current and past mental health status, as evidenced by relevant mental health or psychological assessments or screenings that are made available to both the district attorney and defense counsel;
(VII) The likelihood of the juvenile’s rehabilitation by use of the sentencing options available in the juvenile courts and district courts;
(VIII) The interest of the community in the imposition of a punishment commensurate with the gravity of the offense;
(IX) The impact of the offense on the victim;
(X) Whether the juvenile was previously committed to the department of human services following an adjudication for a delinquent act that constitutes a felony; and
(XI) Whether the juvenile used, or possessed and threatened the use of, a deadly weapon in the commission of the delinquent act.
§ 19-2.5-801(4)(b).
16 2. Maturity
¶ 33 At the reverse-transfer hearing, the defense presented an
expert in adolescent psychology who testified that, during her work
with Mitchell, she administered an assessment called the Risk-
Sophistication-Treatment Inventory (RSTI). She testified that “the
RSTI was developed in an attempt to provide courts with
information . . . about dangerousness, sophistication, and . . .
treatment amenability, as it relates to juveniles who are . . .
involved in the juvenile justice system.” She further testified that
Mitchell’s “scores were in . . . the high range for sophistication and
maturity.”
¶ 34 In its oral ruling on Mitchell’s reverse-transfer motion, the
district court discussed all eleven statutory factors and the evidence
relevant to each. As to the fourth factor, “[t]he age of the juvenile
and the maturity of the juvenile, as determined by considerations of
the juvenile’s home, environment, emotional attitude, and pattern of
living,” § 19-2.5-801(4)(b)(IV), the court made the following findings:
Mitchell was one month shy of his seventeenth birthday at
the time of the offense;
17 Mitchell experienced trauma during his childhood,
including domestic violence, child abuse, homelessness,
multiple changes of school, and the violent loss of several
men close to him;
the juvenile brain is not fully developed, particularly with
regard to the high-level executive functioning involved in
decision-making, reasoning, impulse control, and empathy;
Mitchell “scored high in maturity and sophistication during
his . . . testing and evaluation” by the adolescent psychology
expert;
youth services center staff “viewed [Mitchell] as a leader,
someone who could be counted on to help control other
juveniles at the center, someone who could lead by
example”; and
Mitchell’s RSTI evaluation scores and leadership at the
youth services center suggested that he was amenable to
change and treatment, but also “suggest[ed] that [he]
possessed both maturity and sophistication at the time of
the offense and was not merely the victim of an adolescent
brain” or “peer pressure.”
18 ¶ 35 Mitchell acknowledges that “the RSTI maturity score was
relevant evidence” that the district court could properly consider in
ruling on his motion for reverse transfer, but he argues that the
court reversibly erred by allowing the RSTI to “outweigh[]” the
evidence regarding the environment in which he grew up. The
reverse-transfer statute, however, provides only that the court
“shall consider” the eleven factors. It is left for the court to
determine how to weigh the evidence presented regarding each
factor. Further, there is no indication in the record that the court
viewed the RSTI as “outweigh[ing]” other relevant evidence. Rather,
the court found that Mitchell’s high scores in maturity and
sophistication, combined with his demonstrated leadership at the
youth services center, suggested both an amenability to change and
treatment and a greater degree of responsibility for his actions at
the time of the offense.
¶ 36 These findings are grounded in the evidence. We thus discern
no error in the court’s application of the fourth factor.
3. Likelihood of Rehabilitation
¶ 37 The adolescent psychology expert testified that Mitchell was at
a “crossroads” where he “could go one way or the other” — that is,
19 he had “the potential to get some treatment and address his mental
health concerns and learn some skills to live a prosocial life,” but he
could also “go the other way and . . . become a more sophisticated
criminal.” She testified that Mitchell’s treatment needs were “pretty
high” and that “complex trauma and the level of mental health
symptoms that he has are difficult to treat and can take a lot of
time to treat.” She testified that there was “substantial room for
rehabilitation . . . with the right services,” but that a “lifetime of
trauma” could not be dealt with “overnight.”
¶ 38 The assessment services coordinator for DYS testified about
the “treatment modalities . . . DYS use[s] in its facilities.” The
coordinator also testified that the recidivism rate (defined as
commission of class 1 misdemeanors and felonies) among juvenile
offenders coming out of DYS programs was “approximately 55
percent” over a three-year period.
¶ 39 As to the seventh statutory factor, “[t]he likelihood of the
juvenile’s rehabilitation by use of the sentencing options available
in the juvenile courts and district courts,” § 19-2.5-801(4)(b)(VII),
the district court made the following findings:
20 the adolescent psychology expert expressed “concerns
about [Mitchell] going to [DOC] and being surrounded by
negative influences”;
Mitchell’s treatment needs were “high” and could “take a
long time” to address;
DYS “likely provides greater services [than DOC] to
people in its programs, but it has very little time in which
to provide those services given that it loses jurisdiction
over its clients at the age of 21”;
the court was “discouraged and disappointed in the
recidivism rate of 55 percent with [DYS]”; and
in light of all of the evidence, the court had “insufficient
confidence in the ability of the sentencing options
available in the juvenile courts to ensure [Mitchell’s]
rehabilitation.”
¶ 40 Mitchell argues that the court reversibly erred by
“requir[ing] . . . a demonstration that the DYS options would
‘ensure’ [his] rehabilitation.” He argues that the seventh statutory
factor does not require that the sentencing options available in
juvenile court “ensure” a juvenile’s rehabilitation, and that the
21 court’s misinterpretation of the statute “impos[ed] an
insurmountable burden.”
¶ 41 We agree with Mitchell that the statute does not require the
court to find that a juvenile’s rehabilitation is “ensured” before
transferring the case to juvenile court — rather, it requires the
court only to consider “[t]he likelihood of the juvenile’s
rehabilitation.” § 19-2.5-801(4)(b)(VII). But the record shows that
the district court properly considered the likelihood of Mitchell’s
rehabilitation by use of the sentencing options available in the
juvenile courts and district courts. The court considered the
adolescent psychology expert’s concerns about the negative
influences Mitchell would encounter in DOC, the treatment
opportunities available through DYS, the evidence that Mitchell had
significant treatment needs, and the recidivism evidence. In short,
the district court undertook the analysis required by the seventh
statutory factor, despite its ill-chosen use of the word “ensure.”
¶ 42 Further, section 19-2.5-801(4)(b) directs the court to consider
the likelihood of rehabilitation as one of eleven factors in
determining whether to order a reverse transfer to juvenile court.
The statute leaves the determination of how to weigh the factors to
22 the court’s discretion. Thus, a court could properly determine that,
where the alleged offense was serious (first factor), violent (second
factor), committed against a person (third factor), the cause of the
victim’s death (ninth factor), and committed with a deadly weapon
(eleventh factor), the juvenile and the community would be better
served by the case proceeding in the juvenile system only if the
likelihood of rehabilitation were very high.
¶ 43 We thus discern no error in the court’s application of the
seventh factor.
C. Evidentiary Ruling
¶ 44 Finally, Mitchell contends that the district court erred by
excluding evidence that K.G. had previously robbed the victim. We
disagree.
1. Standard of Review
¶ 45 A district court has substantial discretion in ruling on the
admissibility of evidence. People v. Beilke, 232 P.3d 146, 149 (Colo.
App. 2009). We will not disturb the court’s decision absent a
showing that it was manifestly arbitrary, unreasonable, or unfair.
Id.
23 2. Additional Background
¶ 46 The defense sought to present evidence at trial that K.G. had
previously robbed or attempted to rob the victim for either vaping
products or shoes. Defense counsel argued that the evidence
(1) was “consistent with [the] theory of defense that Mr. Mitchell
was a late-joiner to this group, not part of the plan, and that [K.G.]
had in fact done this before”; and (2) went to “lack of mistake by
[the victim] in identifying [K.G.] as the shooter because this ha[d]
happened previously.” The prosecutor objected, arguing that the
evidence was irrelevant because an alleged prior instance of
violence by K.G. against the victim had “nothing to do with whether
or not [Mitchell] played a part in the second instance of violence.”
The prosecutor also argued that, to the extent the defense was
claiming that “because [K.G.] perpetrated some violence on [the
victim] before, he must have been the sole perpetrator of violence
here,” this constituted improper character evidence under CRE
404(b).
¶ 47 The district court initially sustained the objection, but then it
asked what evidence the defense had regarding a prior robbery, so
that it could conduct a full analysis pursuant to People v. Spoto,
24 795 P.2d 1314 (Colo. 1990). Defense counsel responded that J.S.
had told the police “that the reason that they did this is because
[K.G.] had done this previously.” The court and defense counsel
then questioned J.S. outside the presence of the jury. J.S. said she
was aware of a prior robbery but did not know whether K.G. had
been involved in it or not. Based on J.S.’s responses, the court
found that it could not determine by a preponderance of the
evidence that any prior robbery of the victim by K.G. had occurred.
Accordingly, the court did not permit the defense to inquire further
into the issue.
3. Law and Discussion
¶ 48 Evidence is relevant if it has “any tendency to make the
existence of any fact that is of consequence to the determination of
the action more probable or less probable than it would be without
the evidence.” CRE 401. Only relevant evidence is admissible.
CRE 402.
¶ 49 We agree with the People that evidence of a prior robbery by
K.G. against the victim was not relevant. See People v. Eppens,
979 P.2d 14, 22 (Colo. 1999) (we may affirm the district court’s
ruling on any ground supported by the record). Because it was
25 uncontested that K.G. and the victim knew each other, evidence of
a prior robbery did not make it more likely that the victim
accurately identified “Kenny” as the shooter.1 Likewise, evidence
that K.G. had previously robbed the victim did not make it less
likely that Mitchell participated in the plan to rob the victim on
May 8, 2019. See United States v. Farrington, 58 F. App’x 919, 925
(3d Cir. 2003) (concluding that evidence that a codefendant
“committed other frauds without [the defendant’s] help does not
render it less likely that he received [the defendant’s] cooperation
here”).
¶ 50 Further, even assuming that evidence of the prior robbery
could be considered relevant, the court’s exclusion of the evidence
because the defense failed to make the threshold showing under
CRE 404(b) did not constitute an abuse of discretion. Under CRE
404(b)(2), evidence of other acts may be admissible for a non-
propensity purpose. The district court is tasked with analyzing the
1 As the People acknowledge, the prior robbery could have been
relevant if there were evidence that the victim learned K.G.’s name and recognized him because of it. But the defense proffered no such evidence, and the testimony indicated that the victim otherwise knew K.G.
26 evidence before it may be admitted, including a determination by a
preponderance of the evidence that the other act occurred and that
the person alleged committed it. See People v. Garner, 806 P.2d
366, 372 (Colo. 1991). Here, although the court and defense
counsel questioned J.S. regarding the alleged prior robbery, J.S.
disavowed any knowledge of K.G.’s involvement. The record thus
supports the court’s finding that it could not determine by a
preponderance of the evidence that K.G. had previously robbed the
victim.
¶ 51 We thus discern no abuse of discretion.
IV. Disposition
¶ 52 The judgment is affirmed.
JUDGE FREYRE and JUDGE RICHMAN concur.