Peo v. Jackson

22CA0900 Peo v Jackson 07-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0900
Pueblo County District Court No. 20CR299
Honorable Deborah R. Eyler, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rashad Jackson,

Defendant-Appellant.

JUDGMENT AFFIRMED AND ORDER REVERSED

Division VII
Opinion by JUSTICE MARTINEZ*
Pawar and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 31, 2025

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney
General, Ashley Carter, Senior Assistant Attorney General, Denver, Colorado,
for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Lisa Weisz, Deputy State
Public Defender, 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. 2024.
¶1 Defendant, Rashad Jackson, appeals the judgment of

conviction entered on a jury verdict finding him guilty of

manslaughter. He asserts three trial errors and contests the court’s

order that he pay the costs of prosecution. We affirm the judgment

of conviction and reverse the order granting the prosecution’s

motion for costs.

I. Background

¶2 The prosecution charged Jackson with second degree murder

after his wife, G.J., died from injuries that she sustained during a

domestic dispute between them.

¶3 A reasonable juror could have found, based on the evidence

introduced at trial, that Jackson had a history of hitting the victim.

In the weeks before the incident, Jackson and the victim were

evicted from their home and began residing with their two young

children in an abandoned house that lacked heating, electricity,

and running water.

¶4 Jackson told detectives that on the night in question, he and

the victim got into an argument. Jackson slapped the victim in the

face, causing her to fall backward and hit her head on a sheet-

metal radiator cover. According to Jackson, the couple continued

1
arguing and hitting one another, although they eventually stopped

because each of them were showing “symptoms of a concussion.”

They reconciled and went to bed. When Jackson woke up the next

morning, he found the victim unresponsive. After performing CPR,

Jackson concluded that she had died in her sleep.

¶5 That afternoon, neighbors’ surveillance videos showed Jackson

wheeling the victim’s body into a nearby alley on a stroller, and

later, returning to drag it into plain view so that someone would

find it. A few hours later, after nobody else had discovered the

body, Jackson called 911 himself. He was taken to the police

station, where he later admitted to striking the blow that caused the

victim to fall and hit her head.

¶6 At trial, a forensic pathologist testified that he found

significant bleeding and swelling in and around the victim’s brain

and that the cause of death was “blunt force head trauma.” While

he was not able to determine an exact time of death, he testified

that Jackson’s version of events was certainly possible.

¶7 Jackson’s defense theory was that he did not knowingly cause

the victim’s death. If anything, his actions “recklessly caused the

death of [the victim].” Defense counsel asked the jury to acquit

2
Jackson of second degree murder and instead convict him of the

crime that “he actually committed”: the lesser included offense of

manslaughter.

¶8 The jury acquitted Jackson of second degree murder and

found him guilty of manslaughter. The court sentenced him to six

years in the custody of the Department of Corrections.

¶9 Jackson raises four claims on appeal: (1) his station house

admissions were coerced, and thus, inadmissible; (2) evidence of his

prior acts of domestic violence was inadmissible; (3) the prosecutor

committed misconduct during closing argument; and (4) the court

improperly ordered costs of prosecution.

II. Jackson’s Admissions

¶ 10 Jackson first claims that the station house interrogation in

which he admitted to hitting the victim was unduly coercive, and as

such, any admissions he made were involuntary. We disagree.

A. Additional Background

¶ 11 Jackson moved to suppress his admissions before trial. The

court held a hearing on the motion and watched a complete video of

the interview.

3
¶ 12 The video began with Jackson sitting in an interview room

with his children for approximately an hour. Two detectives in

plainclothes entered the room, took the children to a different room,

and then engaged Jackson in small talk. After a few minutes, the

lead detective transitioned the conversation to Jackson’s Miranda

rights:

Hey man, we wanna talk to you about all this
nonsense going on tonight man. We wanna
make sure we don’t violate any kind of rights
or anything like that, so I just wanna go
through your constitutional rights. . . . This is
just because we’re at a police station, we’re in
an interview room, and just wanna make sure
that we’re not violating anybody’s rights or
anything like that, is that good? Right on,
man.

The lead detective read Jackson his rights, and Jackson signed the

Miranda waiver and agreed to speak with the detectives.

¶ 13 The detectives asked Jackson what happened, and he said

that the victim left in the night to get milk for one of the children

and did not return. He said that while looking for the victim the

next day, he discovered what he believed was a body in the alley

and called 911. This portion of the interview lasted approximately

an hour, and the tone was largely narrative and conversational,

4
although the detectives occasionally asked specific follow-up

questions.

¶ 14 The detectives then told Jackson that they would take a break.

One detective told Jackson that if he needed to use the restroom,

there was one across from the interview room. Jackson asked, “I

can step out?” The detective answered, “Yeah, if you need to use

the bathroom. And then we’ll get your kids, and we’ll try to finish

up here doing what we’re doing and move on.” Jackson did not get

up to use the restroom, however, until the detectives returned.

¶ 15 After the break, the detectives confronted Jackson with

surveillance video of him in the alley earlier in the day. They said,

“Now’s not the time to hold anything back, man,” and “It’s okay to

tell me the truth.” Jackson modified his initial account but

maintained that the victim did not return home and that he merely

found her body in the alley earlier in the day and moved it to a

different location using the stroller.

¶ 16 The lead detective then made three attempts to elicit the truth

from Jackson. First, the detective said,

From what we’re being told from our
investigators, this happened inside the house.
Tell us about it. The only way to try to help

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you out is to know exactly what happened. . . .
This is the only way I know how to help you is
by being able to tell the truth and being exactly
able to tell my bosses what happened to her. I
can go to bat for you man. . . . There’s nothing
in the world you can tell me right now to where
I will judge you, make you sound like a bad
person, threaten you, take your kids away and
everything, no. Because every single one of us
. . . have made mistakes before. There ain’t a
perfect human being anywhere in this world.
If something happened, which we know it did,
now is the time to tell us about it.

Jackson maintained his modified version of events.

¶ 17 Second, the detective asked Jackson whether the incident was

an accident. Jackson said, “[N]othing was intentional,” and then

told the detectives that the victim had fallen inside their house and

hit her head on the radiator cover.

¶ 18 Third, the detective said,

What you’re telling me is an accident, okay?
But I need to know the truth from you.
Because what doesn’t lie is evidence. And the
hard part about us going to bat for you is if
we’re not being told the whole entire truth and
then we go and see the evidence and it tells
something different bro, buddy? You have no
dog in the fight at that point, man. I just got
done telling you there ain’t a perfect human
being in this world. Everybody fights,
everybody gets pissed off. It’s as old as time
itself, males and females fighting,
relationships, things happen. . . . You being a

6
veteran, you being in the circumstances that
you are right now, things can happen man.
And if things happened like that, we can
understand that. What we can’t understand is
when somebody comes in here and starts
telling some stories that just aren’t matching
up with the evidence. That’s hard to
understand and it’s hard to go to bat for
somebody when we’re being told something
different than what the evidence shows.
You’re a good dude, man. Just because
something happens doesn’t mean you’re the
worst fricking person in this damn world. Not
at all man. I know cops, people can talk all
the crap they want about cops just trying to
hurt you or trying to lock you up. I don’t . . .
want to do that, man. I hate that. But what I
need from you, Rashad, straight up man to
man, human being to human being, not police
officer to citizen, . . . we need to know the
truth. That’s the only thing that sets us free,
man.

At that point, Jackson admitted that the victim fell into the radiator

cover because he slapped her. He explained in detail how they

fought, how he found her in the morning, and how he moved her

body to a location where he hoped someone else would find it.

¶ 19 The detective asked Jackson whether he was “injured” and

whether he was “okay.” Jackson became emotional about the loss

of his wife. The detective asked, “What do you think caused her to

pass away?” Jackson answered, “I think she had a concussion and

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went to sleep with a concussion and needed medical attention.”

Jackson added, for the first time in the interrogation, that they both

had concussion symptoms that night, which is why they stopped

fighting.

¶ 20 This portion of the interview lasted approximately seventy-five

minutes, and the lead detective’s tone vacillated. At times he was

friendly and sympathetic, and at other points he was more direct

and confrontational. The detective’s tone was never threatening or

disrespectful, however. By the end of the interview, the detectives

had spoken with Jackson for approximately two and a half hours,

although he had been sitting in the interview room for closer to four

hours.

¶ 21 At the conclusion of the interview, the detectives asked

Jackson for consent to take biological samples and show them the

abandoned house. He agreed to both requests. Jackson asked if he

was “going to jail,” and one detective advised him that he was under

arrest for second degree murder.

¶ 22 In a written order, the court found that Jackson’s statements

were voluntary:

8
During the interview there was no overt or
implied threat or promise. There was nothing
coercive about the interview itself. Statements
made by the Defendant during the interview
appeared to be made voluntarily and
knowingly. There was nothing about the
Defendant’s conduct before or during the
interview to suggest that his physical or
mental condition was impaired such that his
statements were not voluntary.

The court denied Jackson’s motion to suppress. In its order, the

court assumed without deciding that Jackson was in custody “once

he was in the interview room with detectives.”

¶ 23 At trial, the prosecutor introduced the video of Jackson’s

interview and referenced his admissions during closing argument.

B. Applicable Law and Standard of Review

¶ 24 The United States and Colorado Constitutions guarantee the

privilege against self-incrimination. U.S. Const. amends. V, XIV;

Colo. Const. art. II, § 18. If an individual gives incriminating

statements, the Fifth and Fourteenth Amendments require the

statements to be made voluntarily to be admitted into evidence.

People v. Sanders, 2023 CO 62, ¶ 11. To be voluntary, a statement

must be the product of an essentially free and unconstrained choice

and cannot be the product of coercive government conduct that

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actually overbore the suspect’s will. Id. at ¶ 14. “Coercive police

conduct includes not only physical abuse or threats directed

against a person, but also subtle forms of psychological coercion.”

Effland v. People, 240 P.3d 868, 877 (Colo. 2010).

¶ 25 “[D]etermining whether the safeguards established in Miranda

v. Arizona, 384 U.S. 436 (1966), apply and were followed and

determining whether a statement was voluntary are different

analyses, even though the relevant legal considerations are

intertwined.” People v. Nkongolo, 2025 CO 20, ¶ 15. To determine

whether a defendant’s statements were voluntary, we consider the

totality of the circumstances, with the help of “[a] thorough but

non-exhaustive list of factors — which overlaps with but does not

duplicate the Miranda custody determination factors.” Sanders,

¶ 14. Those factors are

(1) whether the defendant was in custody or was free to

leave and was aware of his situation;

(2) whether Miranda warnings were given prior to any

interrogation and whether the defendant understood and

waived his Miranda rights;

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(3) whether the defendant had the opportunity to confer with

counsel or anyone else prior to the interrogation;

(4) whether the challenged statement was made during the

course of an interrogation or instead was volunteered;

(5) whether any overt or implied threat or promise was

directed to the defendant;

(6) the method and style employed by the interrogator in

questioning the defendant and the length and place of

the interrogation; and

(7) the defendant’s mental and physical condition

immediately prior to and during the interrogation, as well

as his educational background, employment status, and

prior experience with law enforcement and the criminal

justice system.

Id. (quoting People v. Gennings, 808 P.2d 839, 844 (Colo. 1991)).1

1 In recent years, the Colorado Supreme Court has recited different

variations of this test, although the differences largely come down to
whether the factors are grouped thematically or broken apart.
Compare People v. Sanders, 2023 CO 62, ¶ 14, with People v.
Nkongolo, 2025 CO 20, ¶ 18. We recite the factors according to
Sanders, simply to correspond with the parties’ arguments in their
briefs.

11
¶ 26 Weighing the voluntariness factors is “not quantitative”; “we do

not simply count the number of factors on each side of the equation

and see which side has more.” Cardman v. People, 2019 CO 73,

¶ 27. We do not give the same weight to each factor, and how much

weight we give each factor depends on the circumstances involved.

Id.

¶ 27 Whether a defendant’s confession was involuntary is a mixed

question of law and fact. Sanders, ¶ 10. We defer to the trial

court’s factual findings regarding the circumstances surrounding

the confession, but we consider de novo whether those

circumstances rendered the defendant’s statements involuntary.

Nkongolo, ¶ 13. “[W]here the statements sought to be suppressed

are audio- and video-recorded, and there are no disputed facts

outside the recording controlling the issue of suppression, we are in

a similar position as the trial court to determine whether the

statements should be suppressed.” People v. Madrid, 179 P.3d

1010, 1014 (Colo. 2008). Thus, the legal effect of undisputed

controlling facts constitutes a question of law which is subject to de

novo review. Id.

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C. Application

¶ 28 First, we conclude that Jackson was in custody and was aware

of his situation. A suspect is in custody when “a reasonable person

in the suspect’s position would believe himself to be deprived of his

freedom of action to the degree associated with a formal arrest.”

People v. Davis, 2019 CO 84, ¶ 17 (quoting People v. Hankins, 201

P.3d 1215, 1218 (Colo. 2009)). Jackson was brought by police

officers into a police-dominated atmosphere after reporting a dead

body, was questioned for several hours with increasing specificity

and intensity, was confronted with inculpatory evidence, and was

never advised that he was free to terminate the encounter. See

People v. Matheny, 46 P.3d 453, 467 (Colo. 2002). Jackson

expressed surprise while confirming that he was allowed to leave

the interview room to use the restroom, suggesting that, up to that

point, he believed he was not free to leave. See id.; Effland, 240

P.3d at 876.

¶ 29 Second, the detectives advised Jackson of his Miranda rights

both verbally and in writing before asking him questions about the

case. Jackson waived his Miranda rights and agreed to talk to the

detectives. Defense counsel does not contend on appeal that

13
Jackson’s waiver was involuntary. See People v. Smiley, 2023 CO

36, ¶¶ 26-27. We are not persuaded by Jackson’s argument that

the detective’s use of the phrase “nonsense” downplayed the

significance of the Miranda warning. In context, the statement was

transitional, moving the conversation from small talk to the reason

they were there. The detective did not, at any point, suggest that

the warning was a mere formality.

¶ 30 Third, Jackson was advised of his right to confer with counsel

before the interview. He did not invoke that right. See People v.

Cisneros, 2014 COA 49, ¶ 85 (concluding that a defendant’s

statements were voluntary, in part, because “he did not ask to . . .

speak with counsel, even after he was informed orally and in

writing, through his Miranda advisement, that he had the right to

do so”). The detectives did not undermine his rights or otherwise

prevent him from conferring with counsel. Cf. Effland, 240 P.3d at

878 (“Of particular significance” in holding that the defendant’s

statements were involuntary was “the investigating officers’

continued questioning” after the defendant invoked his rights to

remain silent and confer with counsel.).

14
¶ 31 Fourth, the parties agree that Jackson made the challenged

statements during an interrogation.

¶ 32 Fifth, we conclude that the lead detective’s three attempts to

get Jackson to tell the truth did not amount to the type of threats or

promises that constitute a due process violation. See People v.

Zadran, 2013 CO 69M, ¶¶ 15-16 (concluding that the statement “I

think it would be in your best interest to talk to me,” among others,

was not coercive); see also People v. Theander, 2013 CO 15, ¶¶ 44-

46 (concluding that psychological coercion must play a “significant

role” in inducing the confession and collecting cases involving the

type of coercive conduct that overbore the defendant’s will). The

detective did not make explicit “if-then” statements linking

Jackson’s choice to tell the truth to a specific consequence. See

Cardman, ¶¶ 28-29, 32 (confession involuntary where detective said

he could put the case “in a drawer” and make it “go away” if the

defendant met the victim halfway and admitted to some

“inappropriate sexual stuff”); People v. Ramadon, 2013 CO 68,

¶¶ 23-25 (confession involuntary where detective said, among other

things, “If you don’t tell me the truth of what happened, then you’re

getting locked up”); People v. Medina, 25 P.3d 1216, 1225-26 (Colo.

15
2001) (confession involuntary where detective threatened to take

the defendant’s child away from the child’s mother if the defendant

did not cooperate).

¶ 33 Further, any implied threats or promises were overshadowed

by at least two other strategies that much more directly contributed

to Jackson’s ultimate confession. See Theander, ¶ 45 (“Even if

psychological coercion took place in this case, however, the court

must find that the coercion played a ‘significant role’ in inducing

the statements in order to exclude them.”) (citation omitted). First,

the detective asked whether the victim’s death was an accident. In

response, Jackson said, “[N]othing was intentional,” marking a

significant departure from his initial report. Second, the detective

tried to minimize Jackson’s shame about the nature of the offense

by saying, “Everybody fights, everybody gets pissed off. It’s as old

as time itself, males and females fighting, relationships, things

happen.” Jackson’s first response, after the detective’s final

entreaty, was that he was raised to believe a man had the “right” to

hit a woman.

¶ 34 We are not persuaded that the detective’s reference to

Jackson’s veteran status exploited a vulnerability. Cf. Ramadon,

16
¶¶ 24-25 (using the defendant’s fear of death if he was deported to

his home country to elicit inculpatory statements). In context, the

detective merely identified Jackson’s veteran status as an honorable

and redeeming quality.

¶ 35 Sixth, we do not perceive anything inherently coercive about

the interview’s method, style, or length — apart from the fact that it

took place at a police station. The interview involved two

plainclothes detectives interviewing Jackson in a closed-door

interrogation room. The detectives interviewed Jackson for

approximately two and a half hours while maintaining a calm and

respectful demeanor. They offered Jackson breaks, refreshments,

and time with his children at various points throughout the

evening.

¶ 36 Seventh, we are not persuaded that anything about Jackson’s

condition or background rendered the interview involuntary. At the

time of the interview, Jackson was a young adult without significant

prior experience with law enforcement. He had some college

education, military experience, and was unemployed. During the

interview, Jackson revealed that he had been diagnosed with

mental health conditions after serving in the military. The

17
detectives learned, after he confessed, that he had experienced

concussion symptoms the night before the interview. But the trial

court found that there was “nothing” about Jackson’s conduct

“before or during the interview to suggest that his physical or

mental condition was impaired such that his statements were not

voluntary.” The record supports the court’s finding. Despite his

mental health conditions and possible concussion symptoms,

Jackson answered the detectives’ questions logically and

appropriately throughout the interview. He did not appear

confused or indicate that he did not understand what he was being

asked. He was not overly emotional or otherwise unable to

participate in the interview.

¶ 37 On balance, we conclude that Jackson’s confession was not

coerced. True, Jackson was in custody and subjected to several

interrogation techniques. But Jackson was thoroughly warned of

his Miranda rights, and the detectives at no point undermined those

rights. Although some of the lead detective’s remarks, in a vacuum,

could be construed as gently implied reassurances, the statements,

in context, pale in comparison to similar cases in which appellate

18
courts have concluded that a detective’s conduct was coercive.

Thus, the court did not err by admitting Jackson’s admissions.

III. Other Act Evidence

¶ 38 Jackson next contends that the court erred by admitting

evidence that Jackson had committed prior acts of domestic

violence against the victim under CRE 404(b). Alternatively,

Jackson argues that the court’s limiting instruction was flawed. We

disagree.

A. Additional Background

¶ 39 Before trial, the prosecution filed a notice of intent to

introduce other act evidence under CRE 404(b). At a pretrial

hearing, the prosecution proffered testimony from the victim’s child

care provider and coworker, who both observed injuries on the

victim at various points before her death. The child care provider

testified that she noticed the victim had a black eye and a swollen

lip approximately five months before her death. She also testified

that once, while picking up the children from the couple’s house,

Jackson instructed his son, “[R]emember, what happens here stays

here.” The coworker testified that the victim came to work with

19
black eyes on at least seven occasions in the months leading up to

her death.

¶ 40 The People argued that the evidence was admissible under

CRE 404(b) as evidence of Jackson’s state of mind and to rebut

claims of self-defense or recent fabrication, and under section 18-6-

801.5, C.R.S. 2024. Jackson objected.

¶ 41 The court allowed the prosecution to introduce the evidence at

trial. It concluded that the evidence of ongoing domestic violence

was “logically relevant to material issues in this case” because it

“help[ed] to explain[] the responses and actions of the victim in this

matter and the Defendant’s behavior on the night of the offense.”

The evidence also “show[ed] an ongoing pattern of physical assaults

similar to what is alleged to have occurred that resulted in the

death of the victim” and was relevant to establish intent and to

disprove any claims of accident or self-defense. The court found

that the evidence’s relevance was independent of any intermediate

inference of act propensity and that “the probative value of the

proposed evidence in this matter substantially outweigh[ed] the

danger of unfair prejudice to the Defendant.”

20
¶ 42 At trial, the prosecution presented the testimony of the child

care provider and the coworker, and the court read the jury a

limiting instruction before each witness testified. The court said

that the evidence was being offered to prove Jackson’s state of mind

and to rebut any claim of self-defense or recent fabrication.

¶ 43 At the jury instruction conference, defense counsel asked the

court to strike the language, “to rebut any claim of self-defense or

recent fabrication,” from the written limiting instruction because

neither defense theory was at issue in the case. The court agreed.

The final jury instruction read: “The evidence that you heard from

[the child care provider and the coworker] was presented for the

limited purpose of showing [Jackson’s] state of mind at the time of

the offense. You may not consider it for any other purpose.”

B. Applicable Law and Standard of Review

¶ 44 Evidence of other uncharged crimes or acts 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). But such evidence may be admissible for other purposes.

CRE 404(b)(2); Rojas v. People, 2022 CO 8, ¶ 28 (“[C]ourts can

21
admit uncharged misconduct evidence for almost any non-

propensity purpose.”).

¶ 45 Under People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990), prior

act evidence is admissible if (1) the evidence relates to a material

fact, (2) the evidence is logically relevant, (3) the logical relevance is

independent of the prohibited inference that the defendant was

acting in conformity with his bad character, and (4) the probative

value of the evidence is not substantially outweighed by the danger

of unfair prejudice. Before admitting prior act evidence, the trial

court must be satisfied, by a preponderance of the evidence, that

the prior act occurred. People v. Garner, 806 P.2d 366, 373 (Colo.

1991).

¶ 46 In cases involving domestic violence, prior acts of violence may

be admitted “to show a common plan, scheme, design, identity,

modus operandi, motive, or guilty knowledge or for some other

purpose.” § 18-6-801.5(3). Indeed, given the cyclical nature of

domestic violence, the General Assembly has declared that

“evidence of any other acts of domestic violence between the

defendant and the victim” can be helpful and necessary “in some

22
situations in prosecuting crimes involving domestic violence.” § 18-

6-801.5(1), (2).

¶ 47 We review a trial court’s evidentiary rulings for an abuse of

discretion. Rojas, ¶ 16. A court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, or unfair, or based

on an erroneous understanding of the law. People v. Dominguez,

2019 COA 78, ¶ 13. Where a claim of error was preserved, we apply

the harmless error standard of reversal. Hagos v. People, 2012 CO

63, ¶ 12.

C. Application

¶ 48 Jackson first argues that the trial court erred when it found,

by a preponderance of the evidence, that the prior instances of

domestic violence occurred. The court relied on the testimony of

two witnesses who observed the victim with a black eye and who

observed the victim’s demeanor and hesitance to discuss how she

was injured. One of those witnesses testified that the victim

identified Jackson as the one who hit her. We perceive no error in

the court’s assessment that the foregoing evidence was sufficient to

establish the fact of the prior domestic violence by a preponderance

of the evidence. See Garner, 806 P.2d at 370 (“A fact is established

23
by a preponderance of the evidence when, upon consideration of all

the evidence, the existence of that fact is more probable than its

nonexistence.”).

¶ 49 We are similarly unpersuaded by Jackson’s challenge to each

prong of the court’s Spoto analysis.

¶ 50 “The first prong of the Spoto test is the easiest to satisfy.”

Yusem v. People, 210 P.3d 458, 464 (Colo. 2009). A fact is material

if it is of consequence to the determination of the action. CRE 401.

Here, the prosecution had the burden to prove that Jackson either

knowingly or recklessly caused the victim’s death. §§ 18-3-

103(1)(a), -104(1)(a), C.R.S. 2024. Jackson admits that his state of

mind was a material fact. Nevertheless, he argues that the

prosecution did not prove that he was the one who caused the

injuries, and absent any causal connection, the evidence did not

relate to his state of mind. He also argues that the prior incidents

were too remote in time to be relevant to his state of mind. Having

just rejected the argument that the prosecution did not prove

Jackson caused the injuries, we conclude that the proffered

evidence related to the material fact of Jackson’s state of mind.

And in the context of a violent domestic relationship, a few months

24
is sufficiently close in time to be relevant to Jackson’s state of mind.

See People v. Cross, 2023 COA 24, ¶ 25 (holding that instances of

domestic violence three years before the incident were admissible

because they were “substantially similar”).

¶ 51 To satisfy the second prong, the prosecution “need only show

logical relevance — that the prior act evidence has any tendency to

make the existence of the material fact more or less probable than

without the evidence.” Yusem, 210 P.3d at 464-65. Jackson’s past

episodes of violence toward the victim made it more likely that he

caused her death either knowingly or recklessly, particularly here,

where, in opening statements, Jackson’s counsel suggested that the

victim fell and hit her head by accident. See People v. Fry, 74 P.3d

360, 370-71 (Colo. App. 2002) (evidence of other acts of domestic

violence related to the defendant’s intent when he denied hitting the

victim), aff’d, 92 P.3d 970 (Colo. 2004). The specific rationale or

explanation for Jackson’s prior acts of domestic violence are not

necessary to establish relevance in a domestic violence case

involving the same victim. See Cross, ¶ 22.

¶ 52 Regarding the third prong, the evidence was logically relevant

independent of an impermissible propensity inference. See Spoto,

25
795 P.2d at 1318. “This requirement is met where there is

‘similarity’ between the charged and uncharged acts, showing a

‘specific tendency’ on the part of the defendant.” People v. McBride,

228 P.3d 216, 227 (Colo. App. 2009) (quoting Yusem, 210 P.3d at

466-67). In McBride, the defendant had a specific tendency to “act

violently against the victim when he became frustrated.” Id. Here,

the evidence showed that Jackson had a specific tendency to hit the

victim in the face and head during arguments, as demonstrated by

the testimony of two witnesses who confirmed the victim’s

consistent and repeated facial injuries in the months before her

death. That evidence made it more likely that Jackson engaged in

the same behavior on the evening in question, which in turn made

it more likely that he knowingly (or at least recklessly) caused her

death, not because of his character, but because of his specific

pattern of demonstrated behavior.

¶ 53 Further, the prior acts occurred just months before the

charged conduct and involved almost identical claims of abuse

against the same victim. See id. The fact that the incident resulted

in the victim’s death while the previous instances did not is

inapposite. True, any bad act evidence could support a propensity

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inference. But Spoto “does not demand the absence of the

inference”; it “merely requires that the proffered evidence be

logically relevant independent of that inference.” People v. Snyder,

874 P.2d 1076, 1080 (Colo. 1994).

¶ 54 Regarding the fourth prong, the probative value of the

evidence was not substantially outweighed by the danger of unfair

prejudice. See Spoto, 795 P.2d at 1318. The General Assembly

recognizes the high probative value of prior acts of domestic

violence. § 18-6-801.5(1). Here, the evidence was probative of

Jackson’s mental state, an element that the prosecution had the

burden to prove and that the defense contested at trial. And while

the evidence may have been prejudicial, it was not unfairly so. See

People v. Griffiths, 251 P.3d 462, 466-67 (Colo. App. 2010)

(“Relevant evidence is inherently prejudicial; but it is only unfair

prejudice, substantially outweighing probative value, which permits

exclusion of relevant matter under Rule 403.”) (citation omitted).

Our conclusion is bolstered by the fact that the court gave a

limiting instruction and excluded some prejudicial testimony that

did not support the prosecution’s evidential hypothesis. See People

v. Cooper, 104 P.3d 307, 309 (Colo. App. 2004) (limiting instruction

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alleviates danger of unfair prejudice); People v. Penrod, 892 P.2d

383, 385 (Colo. App. 1994) (finding no abuse of discretion where the

trial court “excised the irrelevant and most prejudicial information”

before admitting the evidence contested under CRE 403).

¶ 55 For these reasons, the trial court did not abuse its discretion

by admitting the prior act evidence.

¶ 56 Finally, Jackson challenges the court’s contemporaneous

verbal limiting instructions on two grounds. First, Jackson asserts

that the court’s statement, “So it is not necessarily offered for the

purposes of determining directly any way of the guilt or innocence

of the Defendant,” was confusing. Defense counsel did not

contemporaneously object, and counsel on appeal has cited no

authority suggesting that the court’s statement was an obvious

error. Second, Jackson asserts that the instructions were flawed

because they cited limited purposes that were not at issue in the

trial. However, any prejudice created by the verbal instructions was

cured when the court, upon objection by defense counsel, edited

the written limiting instruction to include only state of mind before

the jury deliberated.

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IV. Prosecutorial Misconduct

¶ 57 Jackson next claims that the court erred by allowing the

prosecutor to misrepresent evidence during closing argument. We

are unpersuaded.

¶ 58 “We engage in a two-step analysis when reviewing claims of

prosecutorial misconduct.” People v. Licona-Ortega, 2022 COA 27,

¶ 85. “First, we determine whether the prosecutor’s conduct was

improper based on the totality of the circumstances.” Id. “Second,

we decide whether the misconduct warrants reversal under the

applicable standard.” Id.

¶ 59 Although prosecutors have “wide latitude in the language and

style they choose to employ” during closing arguments, they may

not misstate the evidence or the law. People v. Payne, 2019 COA

167, ¶ 46. Nor may prosecutors use closing argument to mislead

the jury. Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo.

2005). Where defense counsel objected to the claimed misconduct,

we review for harmless error. Hagos, ¶ 12.

¶ 60 During closing argument, the prosecutor made the following

remarks:

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After this mutual physical altercation between
them, the Defendant indicates to detectives
that they go back to sleep . . . . The next time
he wakes up to check on her, he believes she
is not breathing. In fact, he tells the
detectives, she’s practically dead. What does
he do? He represents that he tries to check to
see if there are life signs to see if she’s
breathing, performing CPR, to no avail.

But he does say something in the interview
that I would ask you to pay particular
attention to is, while she’s not breathing, she
is still warm. At this time, he doesn’t go and
call for help, he doesn’t run out to contact
neighbors. He does nothing.

Defense counsel objected, asserting that the prosecutor misstated

the evidence. The court overruled the objection.

¶ 61 Jackson now asserts that by saying, “He does nothing,” the

prosecutor misrepresented the evidence because Jackson, in fact,

performed CPR. The prosecutor did not misrepresent the evidence.

In context, “nothing” related to Jackson’s efforts to seek help after

realizing that the victim was not breathing but was still warm. This

is clear from the prosecutor’s limiting phrase “[a]t this time.”

¶ 62 The prosecutor explicitly acknowledged Jackson’s efforts to

resuscitate the victim just moments before, undercutting Jackson’s

argument that the prosecutor misrepresented the evidence by

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omitting a critical detail. Further, the jury heard details about

Jackson’s efforts to assess the victim’s condition and perform CPR

during the interrogation video, belying any chance that the jury was

misled by the prosecutor’s argument.

V. Costs of Prosecution

¶ 63 Finally, Jackson claims that the court erred by awarding the

victim’s mother’s travel expenses as costs of prosecution. We agree.

¶ 64 After trial, the prosecution moved for $908.96 in

reimbursement costs to pay for the victim’s mother’s lodging, meals,

airfare, and airport shuttle during the trial. Jackson objected

because the victim’s mother was an observer rather than a trial

witness. The court granted the prosecution’s motion without

identifying the subsection of the costs of prosecution statute,

§ 18-1.3-701, C.R.S. 2024, under which it entered the order and

without making factual findings.

¶ 65 The costs of prosecution statute provides, “When any person

. . . is convicted of an offense, the court shall give judgment in favor

of the state of Colorado, the appropriate prosecuting attorney, or

the appropriate law enforcement agency and against the offender for

the amount of the costs of prosecution . . . .” § 18-1.3-701(1)(a).

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“‘Costs of prosecution’ under section 18-1.3-701 refers to the costs

of a formal criminal proceeding.” People v. Sinovcic, 2013 COA 38,

¶ 15. The statute sets out specific awardable costs to the

prosecution as well as a catchall provision for other “reasonable and

necessary” costs. § 18-1.3-701(2); see also Sinovcic, ¶ 16 (referring

to section 18-1.3-701(2)(j), the former location of subsection 18-1.3-

701(2)(j.5), as a “catch-all provision”).

¶ 66 Subsection (2)(e) provides that the prosecution may recover

witness fees and mileage, and for witnesses required to travel more

than fifty miles from their place of residence, additional lodging and

transportation costs. § 18-1.3-701(2)(e). Separately, subsection

(j.5), the catchall provision, provides that, “at the discretion of the

court,” the prosecution may recover “any other reasonable and

necessary costs incurred” that are “directly the result of the

successful prosecution of the defendant.” § 18-1.3-701(2)(j.5).

¶ 67 District courts have discretion whether, and in what amount,

to assess costs of prosecution. Sinovcic, ¶ 9. But whether the court

has the statutory authority to assess particular costs as costs of

prosecution is an issue of statutory interpretation that we review de

novo. Id.

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¶ 68 On appeal, Jackson asserts that we should reverse the award

because the costs of prosecution statute allows for the

reimbursement of travel expenses for subpoenaed witnesses, but

not for trial observers. § 18-1.3-701(2)(e). The People do not

contest that the victim’s mother was an observer, not a witness.

Instead, they argue that the award was appropriate under the

statute’s catchall provision.

¶ 69 The People correctly note that, under the Victim Rights Act,

the prosecution was required to inform the victim’s mother of the

availability of transportation to and from the trial. See § 24-4.1-

303(11)(f), C.R.S. 2024. But the People do not explain why a trial

observer’s lodging, meals, airfare, and airport shuttle — even if

reasonable expenses — were “necessary” costs of a “formal criminal

proceeding” under the costs of prosecution statute. § 18-1.3-

701(2)(j.5); Sinovcic, ¶ 15. Nor do they explain why such

“reasonable” costs would also be “necessary” because the

prosecution was required to inform the victim’s mother of the

availability of transportation to and from the trial. Finally, the

People do not suggest that the presence of the victim’s mother at

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trial was in any way important to the prosecution’s trial

presentation.

¶ 70 Because the costs of prosecution statute requires that

recoverable costs are both reasonable and necessary, and the

People have provided us with no basis with which to consider the

requested costs necessary, we reverse the court’s order granting the

prosecution’s motion for costs. (In reaching this conclusion, we do

not suggest that the parent of a deceased victim cannot recover

reasonable travel expenses to attend trial from a victim

compensation fund or under another statute not argued here. See,

e.g., § 18-1.3-602(3.7), C.R.S. 2024.)

VI. Disposition

¶ 71 We affirm the judgment of conviction and reverse the court’s

order granting the prosecution’s motion for costs.

JUDGE PAWAR and JUDGE LUM concur.

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