Peo v. Landrock

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21CA1914 Peo v Landrock 03-27-25

COLORADO COURT OF APPEALS


Court of Appeals No. 21CA1914
City and County of Denver District Court No. 19CR6076
Honorable Edward D. Bronfin, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sean Landrock,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division IV
                          Opinion by JUDGE GROVE
                         Harris and Pawar, JJ., concur

                 NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
                        Announced March 27, 2025


Philip J. Weiser, Attorney General, Paul Koehler, Senior Counsel, Denver,
Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, James S. Hardy, Lead Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Sean Landrock, appeals his judgment of conviction

 entered upon a jury verdict finding him guilty of second degree

 murder and three counts of misdemeanor child abuse –

 knowing/reckless, no injury. We affirm.

                           I.   Background

¶2    The jury could have reasonably found the following facts from

 the evidence introduced at trial.

¶3    Landrock and the victim lived together with the victim’s three

 sons, aged five, four, and one. Their relationship was difficult due

 in part to the victim’s depression and unhealthy coping

 mechanisms, which included suicidal ideation and self-harm.

¶4    On the day of the victim’s death, her five-year-old son was

 found screaming outside of their apartment that his mom was dead.

 When officers arrived, the child told them Landrock had shot his

 mother. They found the victim dead on her apartment floor with

 her one-year-old son alive near her. She had been killed by a single

 shot to the chest, but she also had a stab wound in her upper right

 chest; a shallow, six-inch cut on her neck; cuts on her forearm;

 bruises on one of her arms and under her right eye; and several

 lateral scars on her forearm and thighs. A shotgun lay four feet


                                     1
 from her left foot and six feet from her left hand, and her bloody

 handprints and footprints were spread around the apartment’s

 living room.

¶5    The prosecution charged Landrock with first degree murder,

 three counts of child abuse, and one count of tampering with

 physical evidence.

¶6    At trial, Landrock claimed the victim committed suicide. He

 presented evidence that he had left her on the day of the shooting

 because he could not take her self-destructive behavior anymore

 and asserted that she shot herself because of his departure. In

 support of this theory, a defense expert opined that suicide could

 not be ruled out because the shotgun’s muzzle had been in contact

 with the victim’s body when it fired.

¶7    In contrast, the prosecution, in support of its theory that

 Landrock was the shooter, presented forensic evidence suggesting

 that the shotgun was several feet away from the victim when it fired

 and that it had been wiped down afterward, along with testimony

 from the victim’s son and individuals with whom he interacted

 shortly after the shooting. The prosecution also offered testimony

 describing the couple’s turbulent relationship, including a


                                   2
 neighbor’s description of an altercation that she overheard the night

 before the victim’s death.

¶8    A jury found Landrock guilty of second degree murder and

 three counts of misdemeanor child abuse. On appeal, Landrock

 contends that the district court reversibly erred when it (1) admitted

 certain expert testimony from the prosecution while excluding other

 expert testimony from the defense; (2) failed to suppress statements

 made by Landrock to police after he had invoked his Fifth

 Amendment rights; (3) improperly admitted other acts evidence and

 hearsay evidence; and (4) failed to instruct the jury that

 manslaughter ― aiding suicide is a lesser included offense of first

 degree murder. He also contends that the cumulative effect of these

 alleged errors deprived him of a fair trial.

                         II.   Expert Testimony

¶9    Landrock contends the court reversibly erred by denying his

 request for an evidentiary hearing on the admissibility of testimony

 from two prosecution experts while also placing limitations on a

 similar defense expert. We are not persuaded.




                                     3
              A.    Standard of Review and Applicable Law

¶ 10   We review a district court’s ruling on the admissibility of

  expert testimony and its decision whether to hold an evidentiary

  hearing for an abuse of discretion. Kutzly v. People,
2019 CO 55,

  ¶ 8
; People v. Rector,
248 P.3d 1196, 1201
(Colo. 2011). A trial

  court abuses its discretion only when its ruling is manifestly

  arbitrary, unreasonable, or unfair. King v. People,
785 P.2d 596,

  603
(Colo. 1990).

¶ 11   The standard for evaluating the admissibility of expert

  testimony in Colorado is outlined in People v. Shreck,
22 P.3d 68
(Colo. 2001). Under Shreck, a court may hold an evidentiary

  hearing to make specific findings under CRE 403 and CRE 702

  about the reliability of the scientific principles involved, the expert’s

  qualifications to testify to such matters, the usefulness of the

  evidence to the jury, and its potential prejudice. But a court is not

  required to hold a hearing provided it has before it sufficient

  information to make those findings. People v. Whitman,
205 P.3d

  371, 383
(Colo. App. 2007); People v. McAfee,
104 P.3d 226, 229
(Colo. App. 2004). This discretion comports with the court’s need to

  “avoid unnecessary ‘reliability’ proceedings in ordinary cases where


                                      4
  the reliability of an expert’s methods is properly taken for granted,

  and to require appropriate proceedings in the less usual or more

  complex cases where cause for questioning the expert’s reliability

  arises.” Kumho Tire Co. v. Carmichael,
526 U.S. 137, 152
(1999);

  Ruibal v. People,
2018 CO 93, ¶ 13
.

¶ 12   The focus of a Rule 702 inquiry is whether the scientific

  evidence proffered is both reliable and relevant. In determining

  whether the evidence is reliable, a trial court should consider

  (1) whether the scientific principles on which the witness’s opinions

  are based are reasonably reliable and (2) whether the witness is

  qualified to opine on such matters. Shreck,
22 P.3d at 77
.

                        B.     Prosecution Experts

                          1.    Additional Facts

¶ 13   Before trial, the prosecution endorsed as expert witnesses two

  forensic scientists who worked in the field of firearm and toolmark

  identification at the Denver Police Department Crime Laboratory.

¶ 14   The first expert, Nathan Von Rentzell, examined the shotgun

  for functionality and to assess the possibility of an accidental

  discharge. Among other things, he performed a “shock test” in




                                     5
  which he struck the gun with a mallet from multiple directions to

  see if it would fire without the trigger being pulled.

¶ 15   The prosecution’s other firearms expert, Zachary Kotas,

  conducted testing intended to show how far the muzzle of the

  shotgun was from the victim when it was fired.

¶ 16   In a pretrial motion, Landrock asserted that Von Rentzell’s

  and Kotas’s conclusions were “subjective, based on faulty scientific

  principles, and [were] not repeatable and testable” and that the

  court should thus hold a Shreck hearing before allowing either

  witness to testify. The prosecution maintained that a hearing was

  unnecessary, arguing that Von Rentzell’s methodology produced

  reliable results — at least for the limited purpose of determining

  whether the shotgun was prone to accidental discharges — and

  pointed out that Kotas’s testing followed a well-defined methodology

  that has been in use in one form or another since 1858.

¶ 17   The district court denied Landrock’s motion for a Shreck

  hearing, ruling that Von Rentzell’s “shock test” did not present a

  “unique or novel evidentiary issue” and that Kotas’s anticipated

  testimony was of the type that is regularly admitted in similar




                                     6
  contexts under CRE 702.1 Because the defense had not presented

  any new studies or data calling into question the scientific validity

  of the methods used by the prosecution’s experts — which were

  outlined in the its response to Landrock’s motion — the court found

  that there was no reason to hold a Shreck hearing.

                               2.    Analysis

¶ 18   A court is not limited to specific factors when considering the

  reliability of expert testimony but may make a flexible inquiry

  tailored to the facts before it. Shreck,
22 P.3d at 78
(citing Kumho

  Tire,
526 U.S. at 150
). “If a party fails to state a specific challenge

  pursuant to Shreck, a trial court may determine that the request

  does not warrant a Shreck analysis.” Rector,
248 P.3d at 1201
.

  Moreover, “[d]epending upon the extent to which the reliability of

  the . . . principles at issue has already been determined or is not




  1 We acknowledge that the district court did not directly address the

  substance of Kotas’s anticipated testimony and appeared to focus
  instead on the general admissibility of ballistics evidence and
  defense counsel’s failure to present any new studies or other
  information casting doubt on the reliability of the methodology. The
  court’s lack of specificity does not hamper our analysis, however,
  because its main point — that the defense had not presented any
  nonspeculative reason to question the reliability of the widely
  recognized testing methodology that Kotas used — still stands.

                                      7
  disputed at all, . . . further evidence of their reliability may not be

  required.” People v. Shannon,
2024 COA 41
, ¶ 29 (citation omitted).

¶ 19   Landrock’s opening brief offers little support for his argument

  regarding the reliability of Von Rentzell’s shock test, as it merely

  asserts that the court failed to “make specific findings about the

  reliability of either prosecution expert’s proposed testimony.” We

  question whether this argument is adequately developed, see People

  v. Leverton,
2017 COA 34, ¶ 65
, but even if it is, we conclude that

  the court’s findings were adequate. As the court observed, it was

  debatable whether expert analysis would even be required to

  determine “whether the shotgun in this case would misfire,” but

  regardless, the defense did little more than speculate that Von

  Rentzell’s approach was an unreliable method for resolving that

  question. Accordingly, because the defense did not provide any

  substantive reason to question the reliability of Von Rentzell’s

  testing, the district court did not abuse its discretion when it

  determined that the general concerns raised did not warrant a

  Shreck hearing because those concerns went to the weight of Von




                                      8
  Rentzell’s testimony and not its admissibility.2 See Shreck,
22 P.3d

  at 78
(Concerns about an expert’s certainty can be resolved “by

  [v]igorous cross-examination, presentation of contrary evidence,

  and careful instruction on the burden of proof,” not by excluding

  the expert’s testimony.) (citation omitted); Est. of Ford v. Eicher,
250

  P.3d 262, 269
(Colo. 2011) (testing error rates and the reliability of

  testing methods are proper topics for cross-examination); Schultz v.

  Wells,
13 P.3d 846, 853
(Colo. App. 2000) (explaining that the fact

  that an expert cannot be certain about an opinion only affects its

  weight, not its admissibility).

¶ 20   Kotas’s testing methods were deemed reliable on similar

  grounds. As the prosecution pointed out in its response to

  Landrock’s Shreck motion, Kotas applied “the modified Griess test,”

  which tests “for the presence of nitrate powder” and has been used


  2 Even if the district court erred by declining to hold an evidentiary

  hearing on Von Rentzell’s proposed testimony, we fail to see how
  that decision could have prejudiced Landrock. No one claimed that
  the shotgun went off accidentally. To the contrary, the prosecution
  asserted that Landrock intentionally or knowingly shot the victim,
  and Landrock maintained that the victim pulled the trigger herself.
  Under these circumstances, Von Rentzell’s opinion about the
  likelihood of an accidental discharge could not have affected
  Landrock’s substantial rights, and thus, any error was harmless.
  See Yusem v. People,
210 P.3d 458, 469
(Colo. 2009).

                                     9
  in one form or another for more than 150 years. There is nothing

  novel about using chemical testing to estimate the range at which a

  firearm was discharged. See, e.g., State v. Brown,
115 Ohio St. 3d

  55
,
2007-Ohio-4837
,
873 N.E.2d 858, at ¶ 25
(2007) (“Based on a

  chemical test known as the Griess test, Jones found ‘numerous

  nitrates’ around the entrance site and determined that the muzzle-

  to-target distance was one to two feet.”); see also Susan L. Thomas,

  Annotation, Admissibility, in Homicide Prosecution, of Evidence as to

  Tests Made to Ascertain Distance from Gun to Victim when Gun Was

  Fired,
11 A.L.R.5th 497
(1993). Thus, in the absence of any new

  evidence that the protocol Kotas followed was faulty, see People v.

  Genrich,
2019 COA 132M
, ¶ 31, the court appropriately exercised

  its discretion in concluding that an evidentiary hearing was not

  required, see Shreck,
22 P.3d at 76-78
(mentioning the court may

  consider the existence of specialized literature dealing with a

  technique and whether such evidence has been offered in previous

  cases to support or dispute the method at issue).

¶ 21   We are not persuaded otherwise by Jorgenson v. People,
482

  P.2d 962, 964
(Colo. 1971), in which our supreme court excluded

  the results of a distance determination test because “the conditions


                                    10
  [under which the testing was performed] were not substantially

  similar” to the conditions in which the shooting occurred.3 The

  testing in Jorgenson was unreliable because the expert used

  different ammunition than the “cartridges [that] were in the gun the

  night of the killing,” and the cloth employed in test had a “different

  composition” than the victim’s clothing.
Id.
In addition, the shirt

  that the victim wore was not tested for gunshot residue until six

  months after the shooting, and the expert “could not testify as to

  whether this time difference would affect the fact that he found no

  nitrites on the shirt.”
Id.
¶ 22   Kotas’s testing protocols were not similarly flawed. As he

  explained at trial, he conducted his testing using the alleged

  murder weapon, the same type of ammunition, and swatches of the

  victim’s clothing. He used the samples to compare the gunpowder

  residue and particle patterns left on the swatches to the pattern on




  3 The People argue that Jorgenson v. People,
482 P.2d 962
(Colo.

  1971), “no longer provides the standard for admitting distance-
  determination evidence” because it was decided before the Colorado
  Rules of Evidence were adopted. We need not address this
  contention because we conclude that Jorgenson is distinguishable
  from the facts before us in this case.

                                    11
  the victim’s clothing.4 Thus, because Kotas accounted for and

  avoided the methodological shortcomings that resulted in the

  exclusion of the distance determination in Jorgenson, the district

  court did not err in determining that a Shreck hearing was not

  required.

                          C.    Defense Expert

¶ 23   Landrock challenges several rulings relating to his defense

  expert, contending that the district court erred by (1) denying

  defense counsel pretrial access to the shotgun to take

  measurements and make a mold of its muzzle and (2) denying his

  in-trial request to make a clay mold of the shotgun’s muzzle for use

  as a demonstrative exhibit.

                          1.    Additional Facts

¶ 24   Three weeks before trial, Landrock submitted a motion

  requesting that the court provide defense counsel with fifteen




  4 Kotas conceded at trial that he did not know how the shotgun was

  angled relative to the victim when it fired but said that detail would
  not affect the deposit of gunshot residue. In other words, according
  to Kotas, the angle at which the shotgun was fired was not relevant
  to his distance determination. See Jorgenson,
482 P.2d at 964
(noting that the expert “did not fire the test shot at angles to
  determine whether this was relevant”).

                                    12
  minutes of unsupervised, private access to the shotgun in order to,

  as the district court described it, “photograph and measure the

  shotgun, as well as to apply a foreign substance to a portion of the

  shotgun which they assert (without further explanation) is critical

  to their defense strategy.” Landrock offered to take any precautions

  the court or prosecution felt necessary to preserve the integrity of

  the weapon, which at the time was under the control of the Denver

  Police Department.

¶ 25   The court mostly denied the motion, ruling it did not have the

  authority to order “ex parte examinations and handling of evidence”

  in police custody.5 It therefore declined to order unsupervised

  access to the shotgun but nevertheless directed the prosecution to

  make it available for photographs and measurements under its

  ordinary protocols. The court later modified its order to allow the

  defense team to photograph a person of similar height to the victim

  while she was pointing the shotgun at her own chest to support its


  5 The Colorado Supreme Court recently reaffirmed that, because

  there is no common law right of discovery in criminal cases,
  “district courts have ‘no freestanding authority to grant criminal
  discovery beyond what is authorized by the Constitution, the rules,
  or by statute.’” In re People v. Silva-Jaquez,
2025 CO 11, ¶ 19
(citation omitted).

                                    13
  case that the victim could have committed suicide. It flatly denied,

  however, the defense’s request to “apply a foreign substance to a

  portion of the shotgun” because the request “fail[ed] to establish the

  relevancy or reasonableness requirement” of Crim. P. 16(I)(d)(1).

¶ 26   During trial, the defense asked the court to allow its expert,

  Michael Arnall, a forensic pathologist, to make a clay mold of the

  shotgun muzzle in front of the jury as a demonstrative exhibit. The

  intent was to demonstrate that the shape of the gun’s muzzle

  matched the shape of the victim’s gunshot wound. The prosecution

  objected to this request, arguing that the defense’s expert

  disclosures had not suggested that Arnall intended to “perform[]

  testing or [use] clays or anything on any type of item” during his

  testimony. The court denied the request for two reasons. First, it

  found the defense had failed to make “any presentation . . . of the

  reliability or reproducibility of . . . clay molds of the muzzle of a

  shotgun [or] showing that that is a generally, scientifically accepted

  [methodology], especially when this [witness] is [a physician], not a

  firearms expert.” Second, the court found that in the absence of

  any showing that a clay mold would “reliably and accurately reflect[]

  the shape” of the shotgun muzzle, there was “potential for


                                      14
  significant prejudice with little relevance when we have the firearm

  itself.” Thus, since Arnall’s claim — that the gun’s muzzle matched

  the shape of the victim’s wound — could be illustrated using

  already admitted photographic evidence and the shotgun itself, the

  incremental probative value of the proposed demonstration was

  miniscule.

                          2.        Applicable Law

¶ 27   CRE 702 and 403 govern the admission of expert testimony.

  While CRE 702 focuses on the reliability and relevance of the

  proposed testimony, CRE 403 provides that evidence may be

  excluded if “its probative value is substantially outweighed by the

  danger of unfair prejudice, confusion of the issues, or misleading

  the jury, or by considerations of undue delay, waste of time, or

  needless presentation of cumulative evidence.”

                               3.      Analysis

¶ 28   Landrock’s argument that the court erred when it denied his

  request for unsupervised access to the shotgun is insufficiently

  developed to allow for appellate review. His opening brief includes a

  single sentence asserting that the court had “no legal or practical

  underpinning” for its ruling. This statement not only overlooks the


                                       15
  district court’s detailed written order but also includes no

  substantive argument. We therefore decline to address his

  contention. See People v. Rios,
2020 COA 2
, ¶ 7 n.1 (“[W]e will not

  consider a bald legal proposition presented without argument or

  development.”).

¶ 29   We discern no error in the district court’s denial of Landrock’s

  mid-trial request to create a clay mold of the shotgun’s tip for use

  as a demonstrative exhibit. The district court found that Landrock

  presented no evidence demonstrating the reliability and

  repeatability of the proposed, undisclosed technique; questioned

  whether Arnall’s background as a physician would qualify him to

  conduct the test; and concluded, in any event, that Arnall would be

  able to convey virtually identical information to the jurors by

  showing them the shotgun itself and the photographs of the victim’s

  wound. We agree with the district court that these findings formed

  a proper basis for denying Landrock’s request.

                        III.   Motion to Suppress

¶ 30   Landrock contends the court erred when denying his motion

  to suppress portions of his video interrogation. We disagree.




                                    16
                           A.    Additional Facts

¶ 31   On the night of the shooting, Landrock was taken to the police

  department for questioning. His interrogation was videotaped and

  is included in the appellate record.

¶ 32   At the start of the interrogation, the detective advised

  Landrock of his Miranda rights and ensured he knew that he was

  speaking to her voluntarily and could stop the interview at any

  time. The two then began discussing the nature of Landrock’s

  relationship with the victim and her children, as well as his

  activities before the shooting.

¶ 33   Landrock moved to suppress portions of his interrogation,

  arguing that he had invoked his Fifth Amendment rights when he

  said, “I’m damn near done talking about this shit, man. There ain’t

  nothing more to fucking say,” and, about five minutes later, “This

  line of questioning is over.” The detective continued her

  questioning after each of these statements but ceased when

  Landrock later said, “I need a fucking lawyer to convince somebody

  that I didn’t do this shit.”

¶ 34   The court denied Landrock’s motion, finding that the first two

  statements did not unambiguously invoke his right to silence. See


                                     17
  People v. Arroya,
988 P.2d 1124, 1129-30
(Colo. 1999). It reasoned

  that “I’m damn near done talking” was a “qualification saying, I’m

  just about done with this.” It found the rest of his sentence, “There

  ain’t nothing more to fucking say,” was partly related to his grief

  about the victim’s death and his personal experience with the foster

  care system, both of which had been discussed just before. The

  court also noted that Landrock reengaged with the detective after

  the first exchange. After about five minutes, Landrock stated, “This

  line of questioning is over,” which the court found only related to

  the topics that had just been discussed, as opposed to an

  objectively unequivocal wish to stop talking altogether. It therefore

  denied his motion to suppress.

              B.   Standard of Review and Applicable Law

¶ 35   Whether the district court erred by failing to suppress

  evidence presents a mixed question of fact and law. People v.

  Kutlak,
2016 CO 1, ¶ 13
. Ordinarily, we defer to the district court’s

  factual findings that are supported by the record but review the

  district court’s legal conclusions de novo.
Id.
But when, as here,

  “the statements sought to be suppressed are audio- and video-

  recorded, and there are no disputed facts outside the recording


                                    18
  controlling the issue of suppression, we are in a similar position as

  the trial court to determine whether the statements should be

  suppressed.”
Id.
(quoting People v. Madrid,
179 P.3d 1010, 1014
(Colo. 2008)). Thus, we may undertake an independent review of

  the audio or video recording to determine whether the statements

  were properly suppressed in light of the controlling law.

¶ 36   Before undergoing a custodial interrogation, a suspect must

  be advised of his Miranda rights, which include the Fifth

  Amendment right to remain silent in the face of questioning, as well

  as the right to counsel. Arroya,
988 P.2d at 1130
. A suspect may

  cut off questioning at any time by invoking either right.
Id.
¶ 37   To invoke his right to silence, “a suspect must clearly

  articulate the desire to remain silent so that a reasonable police

  officer in the circumstances would understand the suspect’s words

  and conduct to mean that the suspect is asserting [his] Miranda

  right to cut off questioning.”
Id. at 1129-30
. Still, the suspect need

  not use special or ritualistic phrases, or “speak with the

  discrimination of an Oxford don.”
Id.
at 1132 (quoting Davis v.

  United States,
512 U.S. 452, 459
(1994)). Because suspects might

  have “only limited skills for verbalizing their wishes in a custodial


                                    19
  setting, a court must give ‘a broad, rather than a narrow,

  interpretation’ to requests to cut off questioning.”
Id.
(citation

  omitted).

¶ 38   After a suspect invokes the right to remain silent, the police

  must scrupulously honor the assertion of that right. Id. at 1134;

  see Michigan v. Mosley,
423 U.S. 96, 103-04
(1975).

                               C.   Analysis

¶ 39   After reviewing the videotaped interrogation, we conclude that

  the disputed statements were not an unambiguous invocation of

  Landrock’s right to remain silent. Landrock’s assertion that he was

  “near done” was not the same as saying that he was done.

  (Emphasis added.) And that is particularly true when his statement

  is considered together with his next sentence — “There ain’t nothing

  more to fucking say,” which could be reasonably interpreted as an

  expression of grief rather than a request to cease the

  interrogation — and his prompt reengagement with the interviewing

  officer. Likewise, Landrock’s reference to “this line of questioning”

  could reasonably be interpreted as a request to move on from a

  particular topic that he did not want to discuss further. (Emphasis

  added.)


                                     20
¶ 40   Accordingly based on our review of the videotaped

  interrogation, we agree with the district court that Landrock’s

  statements were “expressions of annoyance, anger, frustration and

  outrage that he was being charged or suspected” rather than a clear

  and unambiguous invocation of his right to remain silent.

                            IV.     Evidentiary Issues

¶ 41   Landrock contends the court erred when it admitted other act

  evidence under CRE 404(b) and related statements under CRE 807.

  He also asserts the court erroneously admitted evidence under the

  now-defunct res gestae doctrine. We perceive no error.

              A.   Standard of Review and Applicable Law

¶ 42   Courts have considerable discretion in determining the

  admissibility of evidence, including application of the residual

  hearsay exception, People v. McFee,
2016 COA 97, ¶ 16
, and prior

  acts evidence, Bondsteel v. People,
2019 CO 26, ¶ 45
. A court

  abuses its discretion only if its decision is “arbitrary, unreasonable,

  or unfair.” People v. James,
117 P.3d 91, 94
(Colo. App. 2004).

                       B.         The Victim’s Black Eye

¶ 43   We first address the district court’s admission of evidence that

  Landrock gave the victim a black eye a few days before the shooting.


                                         21
                           1.    Additional Facts

¶ 44   The victim visited family in South Dakota nine days before her

  death. According to trial testimony from the victim’s mother, the

  victim had a black eye during this visit and told them Landrock had

  accidentally elbowed her.6 Later, however, in an emotional

  confession, the victim told her sister that the black eye was not

  caused by an accident. While she was on her way back to Denver,

  she messaged her sister, “[Re]member, don’t say anything to anyone

  or I’ll be in danger.”

¶ 45   The prosecution argued that evidence of the victim’s black eye

  was admissible under CRE 404(b) to show Landrock’s intent and

  motive, and it asserted that the victim’s statements (on which the

  mother’s and sister’s accounts were partially based) were

  admissible under CRE 807, the residual hearsay exception.

¶ 46   The court agreed and admitted the evidence.

                                2.   Hearsay

¶ 47   Hearsay is an out-of-court statement admitted for the truth of

  the matter asserted. People v. Thompson,
2017 COA 56, ¶ 101
.



  6 The prosecution’s motion to admit the victim’s statements alleged

  that the victim said that the black eye was the result of a fall.

                                     22
  Hearsay statements are generally inadmissible unless they fall

  within an exception.
Id.
¶ 48   Under the residual exception to the hearsay rule, the

  proponent must establish by a preponderance of the evidence that

  the statement is supported by “circumstantial guarantees of

  trustworthiness.” CRE 807; see Vasquez v. People,
173 P.3d 1099,

  1106
(Colo. 2007). In considering the trustworthiness of a

  statement, courts should examine the nature and character of the

  statement, the relationship of the parties, the probable motivation

  of the declarant in making the statement, and the circumstances

  under which the statement was made. People v. Jensen,
55 P.3d

  135, 139
(Colo. App. 2001) (citing People v. Fuller,
788 P.2d 741,

  744
(Colo. 1990) (analyzing admissibility under CRE 804(b)(5), CRE

  807’s predecessor).

¶ 49   The exception for residual hearsay allows a hearsay statement

  to be admitted if it has “circumstantial guarantees of

  trustworthiness” and satisfies CRE 807’s three-part test: The

  statement is offered as evidence of a material fact; the statement is

  more probative on the point for which it is offered than any other




                                    23
  available evidence; and admission of the statement will serve the

  purpose of the rules and the interests of justice. CRE 807.

¶ 50   In evaluating a statement’s trustworthiness, the district court

  examines the nature and character of the statement, the

  relationship of the parties, the probable motivation of the declarant

  in making the statement, and the circumstances under which the

  statement was made. McFee, ¶ 19.

¶ 51   We discern no abuse of discretion in the district court’s

  application of CRE 807’s three-part test. First, the victim’s

  statements were relevant to establish Landrock’s potential motive.

  See McFee, ¶ 23 (“In a homicide trial, evidence of prior threats,

  mistreatment, or malice by the defendant toward the victim is

  admissible to show the defendant’s motive and culpable mental

  state.” (quoting Jensen,
55 P.3d at 140
)). Second, because the

  victim was deceased and there was no evidence that anyone else

  was aware of the cause of her black eye, her statements were more

  probative on the point for which they were offered than any other

  evidence which the prosecution could procure through reasonable

  efforts. Third, admission of the statements served the rules and

  interests of justice because, as the district court found, they were


                                    24
  relevant to Landrock’s motive and culpable mental state. And

  finally, the statements possessed circumstantial guarantees of

  trustworthiness. As in McFee, ¶¶ 18-26, the statements were made

  to a close family member, under circumstances that were not self-

  serving, and in a manner that appeared to be sincere. Therefore,

  any contradictions in the testimony, including a statement by the

  victim’s son that there was no violence in the home, were questions

  properly left to the jury.

                               3.   CRE 404(b)

¶ 52   “Evidence of any other crime, wrong, or act is not admissible

  to prove a person’s character in order to show that on a particular

  occasion the person acted in conformity with the character.” CRE

  404(b)(1). It may, however, “be admissible for another purpose”

  including “proving motive, opportunity, intent, preparation, plan,

  knowledge, [or] identity.” CRE 404(b)(2).

¶ 53   To be admissible under CRE 404(b), evidence of other acts

  must (1) relate to a material fact of consequence in determining the

  action; (2) be logically relevant; (3) have logical relevance

  independent of the prohibited intermediate inference that the

  defendant was acting in conformity with his bad character; and


                                     25
  (4) have probative value that is not substantially outweighed by the

  danger of unfair prejudice. Bondsteel, ¶ 50 (citing People v. Spoto,
795 P.2d 1314
(Colo. 1990)).

¶ 54   The district court found that the evidence related to the

  victim’s black eye shed light on the “nature of the relationship

  [between her and Landrock] in the August 2019 time frame.”

  Regarding Spoto’s third prong, the court explained that the recent

  act of violence, and the similar circumstances surrounding both

  incidents, was logically relevant independent of the prohibited

  propensity inference because both incidents were close in time and

  “involve[d] the same victim” and “acts of violence toward the victim.”

¶ 55   Landrock maintains that the only relevance of the testimony

  about the black eye rested on propensity — specifically, that

  Landrock’s past abuse of the victim made it more likely that he shot

  her. But the victim’s claim that Landrock had recently perpetrated

  domestic violence against her went to motive, particularly for the

  purpose of proving Landrock’s motive to kill the victim. See 1

  Edward J. Imwinkelried, Uncharged Misconduct Evidence § 4:19,

  Westlaw (database updated Dec. 2024) (Uncharged acts of domestic

  violence may be admitted “on a noncharacter motive theory; the


                                    26
  uncharged acts evidence hostility toward the victim, and in turn

  that hostility may be the motive for the charged act of domestic

  violence.”). As the prosecution pointed out in its motion requesting

  to admit the statements, evidence of a recent incident of domestic

  violence perpetrated by Landrock made it more likely that he had

  malice toward the victim and thus acted after deliberation and with

  the intent to kill her. See People v. Curtis,
657 P.2d 990, 992
(Colo.

  App. 1982) (“[T]he prior attack by the defendant on the victim is

  admissible as evidence of intent in that it is probative of malice and

  ill toward the victim.”), aff’d,
681 P.2d 504
(Colo. 1984). This

  theory — that Landrock intentionally killed the victim because he

  had malice toward her — was bolstered by the victim’s statement to

  her sister that she feared what would happen if her sister revealed

  that the black eye was the result of an assault, rather than an

  accident.

¶ 56   Nor do we perceive a substantial risk of unfair prejudice

  arising from the admission of the victim’s statements, a conclusion

  that finds support in the fact that the jury acquitted Landrock of

  the first degree murder charge. While the evidence may have been

  damaging to Landrock’s defense, it did not inject considerations


                                    27
  extraneous to the merits of the case because it evidenced

  Landrock’s attitude toward the victim. See People v. Gibbens,
905

  P.2d 604, 608
(Colo. 1995) (“[U]ndue prejudice can result from the

  tendency of proffered evidence ‘to adversely affect the objecting

  party’s position by injecting considerations extraneous to the merits

  of the lawsuit, such as the jury’s bias, sympathy, anger or shock.’”)

  (citation omitted). Accordingly, the district court did not abuse its

  discretion by declining to exclude the evidence under CRE 403.

                     4.   The Neighbor’s Testimony

¶ 57   At trial, a neighbor of Landrock and the victim testified that

  the night before the shooting, she heard a man and a woman

  arguing on their balcony, and the woman said, “Get away from me.”

  The court admitted this testimony as res gestae evidence. On

  appeal, Landrock points out that the res gestae doctrine has been

  abolished in Colorado and argues that the neighbor’s testimony was

  not admissible under CRE 404(b) or any other evidentiary theory.

  We disagree.

              a.   Standard of Review and Applicable Law

¶ 58   In Rojas v. People,
2022 CO 8
, our supreme court abolished

  the res gestae doctrine. In its place, the supreme court adopted an


                                    28
  intrinsic-extrinsic framework to determine whether the admission of

  uncharged misconduct evidence must be analyzed under Rule

  404(b).

             Intrinsic acts are those (1) that directly prove
             the charged offense or (2) that occurred
             contemporaneously with the charged offense
             and facilitated the commission of it. Evidence
             of acts that are intrinsic to the charged offense
             are exempt from Rule 404(b) because they are
             not “other” crimes, wrongs, or acts.
             Accordingly, courts should evaluate the
             admissibility of intrinsic evidence under [CRE]
             401-403. If extrinsic evidence suggests bad
             character (and thus a propensity to commit
             the charged offense), it is admissible only as
             provided by Rule 404(b) and after a Spoto
             analysis. Conversely, if extrinsic evidence does
             not suggest bad character, Rule 404(b) does
             not apply and admissibility is governed by
             Rules 401-403.


  Id. at ¶ 52.

                              b.   Analysis

¶ 59   Landrock asserts that the neighbor’s testimony was

  inadmissible under CRE 404(b) because it failed each prong of the

  Spoto test. He alleges the testimony is irrelevant because the

  neighbor could not identify the participants in the supposed fight,

  she did not understand what the participants were saying because



                                    29
  she did not understand much English, and the event happened

  many hours before the shooting. Furthermore, its admissibility

  served no other purpose besides showing propensity, and the

  danger of unfair prejudicial substantially outweighed its probative

  value.

¶ 60   The People respond that “what the neighbor heard was

  admissible under simple relevancy principles.” In other words, we

  understand them to be asserting that the neighbor’s testimony was

  intrinsic under the Rojas framework because it directly proved the

  charged offense. We agree with that characterization. Evidence

  that Landrock and the victim were arguing, and perhaps came close

  to a physical altercation, close in time to the shooting tended to

  directly prove the charged offense. See Jensen,
55 P.3d at 140
.

¶ 61   In any event, nothing about the argument as described by the

  neighbor suggested bad character. Indeed, the words spoken were

  “not conduct, d[id] not amount to a crime, and d[id] not reveal prior

  bad acts.” People v. Greenlee,
200 P.3d 363, 368
(Colo. 2009)

  (footnote omitted), abrogated on other grounds by Rojas, ¶35.

  Therefore, even if the neighbor’s testimony could be considered

  extrinsic evidence, CRE 404(b) did not apply. See Rojas, ¶ 52 (“[I]f


                                    30
  extrinsic evidence does not suggest bad character, Rule 404(b) does

  not apply and admissibility is governed by Rules 401-403.”).

              V.    Manslaughter ― Aiding Suicide Charge

¶ 62   Landrock asserts that the district court reversibly erred by

  rejecting his tendered jury instruction on manslaughter ― aiding

  suicide as a lesser-included offense of first-degree murder.7 This is

  because, he argues, manslaughter ― aiding suicide involves the

  same elements as first degree murder but differs only in having a

  lesser degree of culpability and a less serious injury to the public

  interest. We are not persuaded.

              A.   Standard of Review and Applicable Law

¶ 63   We review issues of statutory interpretation de novo. McCoy v.

  People,
2019 CO 44, ¶ 37
.

¶ 64   We review jury instructions as a whole to determine whether

  the jury was adequately informed of the applicable law. People v.

  Bondurant,
2012 COA 50, ¶ 66
. If the jury is adequately instructed

  on the law, we will not disturb a district court’s ruling concerning a

  jury instruction absent a showing of an abuse of discretion.
Id.
at



  7 The court offered to instruct the jury on manslaughter ― aiding

  suicide as a lesser non-included offense, but the defense declined.

                                    31
  ¶ 67; see also People v. Chavez,
190 P.3d 760, 769
(Colo. App.

  2007) (“It is within the sound discretion of the district court to

  determine whether additional jury instructions which properly state

  the law should be submitted.”). A trial court abuses its discretion

  when its ruling is manifestly arbitrary, unreasonable, or unfair or

  when it misapplies the law. People v. Johnson,
2021 CO 35, ¶ 16
.

¶ 65   A person commits first degree murder if, “[a]fter deliberation

  and with the intent to cause the death of a person other than

  himself, he causes the death of that person or of another person.”

  § 18-3-102(1)(a), C.R.S. 2024. One way that a person can commit

  manslaughter is by “intentionally caus[ing] or aid[ing] another

  person to commit suicide.” § 18-3-104(1)(b), C.R.S. 2024.

¶ 66   Section 18-1-408(1)(a), C.R.S. 2024, prohibits multiple

  convictions for more than one offense if “[o]ne offense is included in

  the other, as defined in subsection (5) of this section.” An offense is

  a lesser included offense of another offense if the elements of the

  lesser offense are a subset of the elements of the greater offense,

  such that the lesser offense contains only elements that are also

  included in the elements of the greater offense. Reyna-Abarca v.

  People,
2017 CO 15, ¶ 64
. If there is at least one way to commit the


                                     32
  greater offense in a manner that necessarily establishes all the

  elements of the lesser offense, the lesser offense is included in the

  greater offense. Whiteaker v. People,
2024 CO 25
, ¶18. However, a

  lesser charged offense can differ from a greater charged offense

  “only in the respect that a less serious injury or risk of injury to the

  same person, property, or public interest or a lesser kind of

  culpability suffices to establish its commission.” § 18-1-408(5)(c).

                               B.    Analysis

¶ 67   In denying Landrock’s request to instruct the jury that

  manslaughter ― aiding suicide was a lesser included offense of first

  degree murder, the court noted that the former required proof of an

  additional element — suicide — which is not an element first degree

  murder.

¶ 68   We agree with this conclusion. “Suicide” is not defined by the

  manslaughter statute, but, as a division of this court has already

  recognized, it requires “the killing of oneself,” and there is “a

  distinction between killing oneself and being killed by another.”

  People v. Gordon,
32 P.3d 575, 579
(Colo. App. 2001) (quoting

  People v. Kevorkian,
527 N.W.2d 714
, 740 n.71 (Mich. 1994).

  Landrock even seems to concede this point when he argues that


                                     33
  first degree murder and manslaughter ― aiding suicide have “no

  substantive distinctions . . . other than the victim’s participation.”

  (Emphasis added.)

¶ 69   We are also unpersuaded that manslaughter ― aiding suicide

  is included within first degree murder under section 18-1-408(5)(c).

  That provision applies if the former offense “involves a less serious

  injury or risk of injury ‘to the same person, property, or public

  interest,’ a lesser kind of culpability, or both.” Pellegrin v. People,
2023 CO 37
, ¶ 38 (quoting § 18-1-408(5)(c)). Regardless of the

  “public interest,” the injury associated with both offenses — the

  victim’s death — is the same. Thus, section 18-1-408(5)(c) does not

  apply.

¶ 70   Because manslaughter — aiding suicide requires a jury to find

  an additional, separate element (suicide) that is not an element of

  first degree murder, and because it does not involve a less serious

  injury “to the same person,” § 18-1-408(5)(c), the court did not

  abuse its discretion by rejecting Landrock’s proposed lesser

  included offense instruction.




                                     34
                            VI.     Cumulative Error

¶ 71       We have determined that the district court did not commit any

  errors, and thus Landrock’s claim of cumulative error necessarily

  fails.

                                  VII. Disposition

¶ 72       We affirm the district court’s judgment.

           JUDGE HARRIS and JUDGE PAWAR concur.




                                        35