2026 CO 16, 24SC16 People v. Maria Day

OCR transcription for search; preserved printed pages are authoritative

The opinion summaries are not part of the Colorado Supreme
Court's opinion. They have been prepared solely for the reader's
convenience. As such, they may not be cited or relied upon. If
there is any discrepancy between the language in the summary
and the opinion, the language in the opinion controls.

ADVANCE SHEET HEADNOTE
March 16, 2026

# 2026 CO 16

# No. 24SC16, People v. Day-Mental-Condition Evidence-Mental-Condition Examination-Competency.

The supreme court holds that a defendant must be competent before
undergoing a mental-condition examination under section 16-8-107(3)(b), C.R.S.
(2025). Accordingly, a trial court shouldn't use an incompetent defendant's failure
to cooperate with personnel during a competency evaluation as a basis to exclude
expert mental-condition evidence at trial. Because the trial court did so here, the
supreme court affirms the judgment of the court of appeals and remands the case
for a new trial on all charges for which the defendant's culpability is at issue.

The supreme court also provides guidance on how courts should apply
People v. Moore, 2021 CO 26, 485 P.3d 1088, and CRE 403 in determining the
admissibility of mental-condition evidence.

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# The Supreme Court of the State of Colorado 2 East 14th Avenue . Denver, Colorado 80203

2026 CO 16

Supreme Court Case No. 24SC16
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 20CA1717

Petitioner:
The People of the State of Colorado,

V.

Respondent:

Maria Laida Day.

Judgment Affirmed
en banc
March 16, 2026

Attorneys for Petitioner:

Philip J. Weiser, Attorney General

Frank R. Lawson, Senior Assistant Attorney General

Denver, Colorado

Attorneys for Respondent:

Megan A. Ring, Public Defender

Andrew C. Heher, Deputy Public Defender

Denver, Colorado

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JUSTICE HOOD delivered the Opinion of the Court, in which JUSTICE
GABRIEL, JUSTICE SAMOUR, and JUSTICE BERKENKOTTER joined.
CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE BOATRIGHT and JUSTICE
BLANCO dissented.

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JUSTICE HOOD delivered the Opinion of the Court.

11
Maria Laida Day hit her boyfriend with her car, causing his death. She
claimed it was nothing more than a tragic accident. The prosecution disagreed.
Based in part on her behavior immediately after the incident, they charged Day
with second degree murder and other offenses. Day's mental condition at the time
of the killing thus became a crucial issue at trial.

T2
Although Day never alleged that she was not guilty by reason of insanity
("NGRI"), she still sought to introduce expert testimony that alluded to her
previously diagnosed mental illness. More specifically, she hoped to show in part
that her failure to take certain prescribed anti-psychotic medication in the days
leading up to the killing could have affected whether she had acted knowingly,
the requisite culpable mental state for second degree murder.

T3
Section 16-8-107(3)(b), C.R.S. (2025), allows a defendant to offer such
evidence, even in the absence of a NGRI plea, but only if she first notifies the
prosecution and submits to a state-sponsored, mental-condition examination. Day
provided notice under section 16-8-107(3)(b), but a mental-condition examination
never occurred.

14
The trial court cited Day's lack of cooperation with the evaluator as the
reason no examination occurred, but Day was incompetent to proceed at the time
she failed to cooperate. Even so, the trial court refused to permit Day's psychiatric

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expert to testify at trial about her mental condition at the time of the offense. A
jury convicted Day as charged.

15
A division of the court of appeals reversed and remanded the case for a new
trial on all counts for which culpability was at issue. People v. Day, 2023 COA 115,
T 1, 544 P.3d 1242, 1244-45.

16
We now affirm the judgment of the court of appeals, albeit on slightly
different grounds. We hold that a defendant must be competent before
undergoing a mental-condition examination under section 16-8-107(3)(b).

## I. Facts and Procedural History

[7 In July 2015, Day hit her boyfriend with her car, as she pulled away after
dropping him off in front of a business in Leadville. Evidence suggested he hit his
head on a concrete barrier during the collision. She drove off. He later died at a
hospital from the resulting injuries. When police officers contacted Day after she
turned herself in, they reported that she appeared calm, nonchalant, and possibly
under the influence of drugs or alcohol. The prosecution charged Day with second
degree murder, leaving the scene of an accident, vehicular homicide, and two
crime-of-violence sentence enhancers.

18 Day decided to forgo a plea of NGRI, but she filed a notice of intent to
introduce expert testimony of her mental condition on the day of the incident
pursuant to section 16-8-107(3)(b). In November 2015, Dr. Karen Fukutaki

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conducted a sanity evaluation of Day at the Summit County jail. In her report,
Dr. Fukutaki said that "Day's denial that she has ever experienced psychotic
symptoms is in marked contrast to the overt psychotic symptoms she reportedly
has exhibited in jail and at [the Colorado Mental Health Hospital in Pueblo
('CMHHIP')]," and "raises significant questions as to whether her account of her
mental state on the day of the accident is accurate," in part because Day seemingly
has "no insight into her mental illness or the reason she has been prescribed
[medication]." Dr. Fukutaki opined that Day's failure to take her prescribed anti-
psychotic medication during the two days before the incident may have caused
some thought disorganization that impaired her judgment and problem-solving
abilities:

[Day] might have been experiencing some difficulty in her perception
of reality that might have impacted her ability to recognize the
severity of the situation and [the victim's] need for immediate medical
attention. Thought disorganization, impairment in problem-solving
ability, and anxiety might have accounted for her having left the scene
and having delayed contacting the police. It might also have
accounted for her appearing to be under the influence to the police.

19
After Day filed her notice to introduce expert mental-condition evidence,
the court ordered an inpatient examination with CMHHIP. Attempts to complete
a mental-condition examination spanned several years. The following timeline
reflects key events along the way.

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· January 2016: Defense counsel filed a notice of intent to introduce expert
testimony of Day's mental condition on the day of the incident pursuant
to section 16-8-107(2)(b).1

· February 2016: The court ordered Day to undergo a mental-condition
examination. CMHHIP was ordered to complete its report by April 29,
2016.

· May 2016: CMHHIP notified the court that, due to resource constraints,
Day hadn't been evaluated, and it requested an extension of time to
complete the examination.

· July 2016: CMHHIP once again requested an extension of time to
complete the evaluation.

· September 2016: CMHHIP informed the court that it wasn't equipped to
videotape the mental-condition examination. The court rescinded a
prior order that the mental-condition examination be recorded.

· October 2016: Day was admitted to CMHHIP to be evaluated. CMHHIP
terminated the examination process because it didn't have video-
recording capabilities. Additionally, the examiner believed that the
prosecution had failed to provide him with all the discovery materials he
needed. (In a subsequent motion, the prosecution asserted that they had
provided CMHHIP with all the materials the prosecution then had.) The
examiner felt he couldn't proceed until he reviewed additional
information. The court again issued an order directing CMHHIP to
evaluate Day without video recording the examination.

. December 21, 2016: CMHHIP reported that Day twice refused to
complete the examination. Day refused because she was under the
impression that the CMHHIP evaluator was conducting a NGRI
evaluation and she wasn't pleading NGRI. Defense counsel contacted

1 Counsel mistakenly cited section 16-8-107(2)(b), which doesn't exist, when she
presumably meant to invoke section 16-8-107(3)(b). Counsel later corrected this
mistake in a proposed order in March 2017.

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CMHHIP to alleviate confusion between Day and CMHHIP regarding
the purpose of the examination.

· December 28, 2016: The prosecution moved to preclude Day's assertion
of a "[m]ental [d]efect [d]efense" because Day hadn't cooperated with
CMHHIP to complete the mental-condition examination.

· February 9, 2017: Before the court ruled on the prosecution's motion to
exclude mental-condition evidence, CMHHIP re-attempted to evaluate
Day. The examiner asked Day, "What plea do you intend to enter?" She
replied, "Not guilty." When the examiner explained the elements of a
not guilty plea and that Day was there for a mental-condition
examination for a NGRI plea, Day exclaimed that she wasn't there for
that. The examiner reported that he "terminated the examination due to
ethical concerns" and stated his only experience with mental-condition
examinations involved NGRI pleas.

· February 10, 2017: Defense counsel asked the court to issue an order
clarifying that the examination was for introducing mental-condition
evidence not an insanity defense. Day asserted that CMHHIP's
misunderstanding of the court-ordered examination contributed to her
confusion and alleged uncooperativeness.

· February 24, 2017: The court ordered an evaluation pursuant to section
16-8-107(2)(b), a subsection that doesn't exist but which defense counsel
had mistakenly cited in the notice; presumably, the court meant to
invoke section 16-8-107(3)(b).

· March 2017: The court vacated the February 24 order and issued a new
order for an evaluation pursuant to section 16-8-107(3)(b). The court also
ordered a competency evaluation as authorized by section 16-8.5-105,
C.R.S. (2025).

· April 2017: Despite the pending court orders, Day was transferred back
to the county jail without completing the evaluations.

· July 2017: Defense counsel moved for a competency evaluation because
Day seemed to be decompensating in jail while awaiting evaluation at
CMHHIP.

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. August 2017: The court again ordered CMHHIP to obtain custody of Day
and complete a competency evaluation.

. September 2017: CMHHIP notified the court that Day hadn't been
admitted yet and requested an extension of time to file its report due to
resource constraints.

. November 2017: CMHHIP conducted a competency evaluation and
found Day competent to proceed. CMHHIP didn't conduct a mental-
condition examination.

· December 2017: The court again ordered CMHHIP to conduct a mental-
condition examination.

· January 2018: CMHHIP notified the court that it expected to submit its
report on or before April 30, 2018.

· March 2018: Defense counsel again moved to suspend proceedings due
to Day's incompetence, arguing Day's mental health had worsened while
in jail.

. April 2018: The court again ordered CMHHIP to conduct both a
competency and a mental-condition evaluation. This was at least the
fourth order for a mental-condition examination.

· June 2018: CMHHIP conducted a competency evaluation of Day and
found she met the criteria for a form of schizophrenia and was
incompetent to proceed to trial. The examiner observed Day seeming to
respond to internal stimuli and noted that Day questioned the validity of
the court order. The evaluator also indicated that he couldn't complete
the mental-condition examination because Day wasn't cooperative. The
court issued an order finding Day incompetent to proceed, and the
prosecution and defense counsel agreed that Day should be committed
to CMHHIP for inpatient restoration-to-competency treatment.

. August 2018: CMHHIP admitted Day for restoration treatment.

. October 2018 and December 2018: CMHHIP re-evaluated Day and found
her incompetent to proceed.

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· March 2019: CMHHIP re-evaluated Day and found her competent to
proceed. CMHHIP didn't conduct a mental-condition examination.

· May 2019: At defense counsel's request, and as permitted by section
16-8.5-103(3), C.R.S. (2025), a third-party psychologist conducted another
competency evaluation. The psychologist confirmed that Day was
competent to proceed. The court agreed that Day had been restored to
competency and set the trial for August 2019.

110 In the four-year period between defense counsel's notice of intent to
introduce expert mental-condition evidence and the trial date, no mental-
condition examination was ever completed.

[11 The parties prepared for the August trial, and Day expected Dr. Fukutaki to
testify. During voir dire, however, the court declared a mistrial because it couldn't
seat an impartial jury. The court reset the trial for January 2020 in a different
county.

112 Leading up to the second trial, the prosecution again moved to exclude
Dr. Fukutaki's mental-condition testimony under section 16-8-107(3)(a) -which
prohibits admission of "evidence relevant to the issue of insanity" unless the
defendant pleads NGRI-and CRE 403. The prosecution argued that allowing
Day to present mental-condition evidence without pleading NGRI would allow
her to bypass procedural requirements and consequences, such as submitting to a
sanity examination, facing a trial on the issue of sanity, and being committed to a
state facility until eligible for release if the jury finds her NGRI.

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113 At a hearing on the motion in November 2019, the trial court found that the
defense had complied with the statutory requirements of section 16-8-107(3)(b)
and asked defense counsel to provide an offer of proof and a proposed limiting
instruction so the court could make findings pursuant to the rules of evidence.
Defense counsel did so, explaining that she expected Dr. Fukutaki to testify to
Day's mental illness -a psychotic thought disorder -and that Day had reported
not taking her prescribed anti-psychotic medication for the two days before the
incident. Counsel explained that Dr. Fukutaki would also testify generally "about
psychotic thought disorders, and their impact on an individual's capacity for
complex thought organization and problem-solving cognitive functions," which
was being offered "to explain Ms. Day's post-event conduct." Defense counsel's
proposed limiting instruction explained that the evidence pertaining to Day's
mental illness was being offered to explain the role that illness played in her post-
event conduct, actions on scene, and at the hospital. The jury instruction stated
that the affirmative defense of insanity hadn't been asserted and that the defense
in this case was a factual defense. The evidence was therefore being offered, not
to show that Day was incapable of forming the culpable mental state of knowingly,
but to show that Day "was not in fact aware that her conduct was practically
certain to cause the resulting death of [the victim]."

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114 The trial court granted the prosecution's motion to exclude Dr. Fukutaki's
testimony. The court noted that, to introduce evidence of a defendant's mental
condition, the defendant must have undergone a court-ordered examination
pursuant to section 16-8-107(3)(b), but no such examination had occurred here
because of Day's noncooperation: "Accordingly, on this basis alone the Court can
deny the introduction of the defendant's mental condition."

115 Beyond this statutory concern, the trial court cited several evidentiary bases
for excluding the proffered mental-condition evidence. First, the proposed
testimony was based upon Day's self-report regarding her medication. Second,
Dr. Fukutaki's assessment was too speculative, as indicated by her statements that
Day "might not have appeared overtly psychotic ... but could have been
experiencing some thought disorganization" and "might have been experiencing
some difficulty in her perception." People v. Day, No. 15CR26, at 4 (Dist. Ct., Lake
Cnty., Dec. 18, 2019) ("December 2019 Order") (unpublished order) (omission in
original) (emphases added) (quoting Day's Offer of Proof Regarding C.R.S.
16-8-107(3)(B) Evidence, November 25, 2019). Third, Dr. Fukutaki's assessment,
and therefore her proposed testimony, conveyed issues related to Day's sanity at
the time of the offense. Fourth, even if Dr. Fukutaki's testimony appropriately
sought to explain only Day's post-event conduct, the risk was too great that a jury
would conflate evidence of Day's mental condition just after the alleged offense

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with Day's mental condition during the alleged offense. The court also
emphasized that Day was introducing mental-condition evidence related to a
mental illness and most cases regarding mental-condition evidence involved an
intellectual disability, not a mental illness. So, the court found that the proffered
testimony was "an attempt [to] present an insanity defense without entering a not
guilty plea by reason of insanity." Id.

116 The case proceeded to trial on January 27, 2020, and the jury found Day
guilty as charged. The court sentenced Day to thirty-five years in the custody of
the Department of Corrections.

117 Day appealed her conviction, challenging the trial court's refusal to admit
her expert mental-condition evidence. A division of the court of appeals
concluded that the trial court had abused its discretion in two ways by excluding
Day's proffered expert mental-condition evidence. Day, 1 24, 544 P.3d at 1248.
First, the division concluded the trial court had erred as a matter of law by
"fault[ing] Day for failing to 'cooperate' with a mental condition examination
conducted while she was incompetent." Id.

118 Second, the division concluded that the trial court had misapplied People v.
Moore, 2021 CO 26, 485 P.3d 1088, "by failing to parse the proffered evidence to
'distinguish what is probative of insanity under this exacting definition from what
is not."" Day, T 26, 544 P.3d at 1248 (quoting Moore, 1 5, 485 P.3d at 1093). The

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division ultimately concluded "that the only piece of testimony that was probative
of insanity, and thus inadmissible, was the testimony regarding Day's ability to
perceive reality or the severity of the situation. Everything else fell short of being
probative of insanity and was thus admissible." Id. at | 35, 544 P.3d at 1250. In
reaching this conclusion, the division also rejected the prosecution's argument that
the evidence was inadmissible under CRE 403, explaining that the admissibility of
mental-condition evidence is measured by its "relatedness to insanity, not its
proposed purpose." Id. at [ 36, 544 P.3d at 1250. However, the division didn't
determine whether the evidence was inadmissible under CRE 403 because it
reasoned that "any prejudice resulting from the lack of a CMHHIP evaluation can
be remedied on remand by the trial court's reordering of the proper examination
before the testimony is presented on retrial." Id. Finally, the division noted that
there are several cases that apply mental-condition evidence more broadly than
just situations involving intellectual disabilities. Id. at | 29, 544 P.3d at 1249. The
division reversed and remanded the case for a new trial on all counts for which
Day's culpability was at issue. Id. at | 41, 544 P.3d at 1251.

119 The prosecution petitioned for certiorari, and we granted their petition.2

2 We granted certiorari to review the following issues:

1\. Whether the court of appeals erred by holding that the trial court
abused its discretion in considering respondent's non-cooperation
with the court-ordered mental condition examination.

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## II. Analysis

120 We begin by identifying the controlling standards of review and relevant
principles of statutory interpretation. Next, we discuss the statutory requirements
for admitting expert testimony about a defendant's mental condition and
differentiate mental condition at the time of an alleged offense from competency
to stand trial. Then, we apply the facts of this case and examine how competency
and noncooperation affected Day's ability to introduce expert mental-condition
testimony. Finally, we discuss the evidentiary basis for admitting mental-
condition evidence under Moore and CRE 403.

### A. Standard of Review

121 We review a trial court's evidentiary ruling for an abuse of discretion.
Moore, 1 26, 485 P.3d at 1095. "A trial court abuses its discretion when its decision
is 'manifestly arbitrary, unreasonable, or unfair,' or based on a misapplication of
the law." People v. West, 2025 CO 61, 1 13, 578 P.3d 832, 835 (quoting People v. Kent,
2020 CO 85, 1 28, 476 P.3d 762, 768).

122 Here, because Day preserved the alleged error and because the trial court's
exclusion of the evidence implicates Day's ability to present a complete defense,

2\. Whether the court of appeals improperly expanded People v.
Moore, 2021 CO 26, 485 P.3d 1088, to preclude consideration of the
purpose for which mental condition evidence is offered when
evaluating the admissibility of such evidence under CRE 403.

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we will reverse unless the error was harmless beyond a reasonable doubt. Hagos v.
People, 2012 CO 63, 1 11, 288 P.3d 116, 119; People v. Johnson, 2021 CO 35, 1 17,
486 P.3d 1154, 1158 (stating that interference with a defendant's ability to present
a complete defense is a constitutional error that requires reversal if there is a
reasonable possibility that the error might have contributed to the conviction).

123 Determining whether the trial court erred requires us to interpret the
relevant statutes, and we review issues of statutory interpretation de novo. Moore,
T 25, 485 P.3d at 1095. When interpreting statutes, our primary task is to ascertain
and give effect to the legislature's intent. People v. Griego, 2018 CO 5, 1 25, 409 P.3d
338, 342. We begin with the statute's plain language, giving words and phrases
their common and ordinary meanings. Id. If the statutory language is
unambiguous, we apply it as written. Id.

## B. Mental Condition and Competency

124 Generally, defendants are prohibited from introducing evidence of insanity
unless they enter a NGRI plea. § 16-8-107(3)(a). But, regardless of whether the
defendant pleads NGRI, "evidence in the nature of expert opinion concerning the
defendant's mental condition" may be admissible as long as it's not probative of
insanity and certain conditions are met: the defendant must first give notice to the
court and the prosecution of her intent to introduce the evidence, and the
defendant must undergo a court-ordered examination pursuant to section

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16-8-106, C.R.S. (2025). § 16-8-107(3)(b). A defendant's proposed mental-condition
evidence tends to be probative of insanity if it implicates the definition of mental
disease or defect. Moore, 1 44, 485 P.3d at 1098. Mental diseases or defects are
defined as "severely abnormal mental conditions that grossly and demonstrably
impair a person's perception or understanding of reality and that are not
attributable to the voluntary ingestion of alcohol or any other psychoactive
substance." § 16-8-102(7), C.R.S. (2025).

125 Defendants are required to cooperate with personnel during court-ordered
examinations. § 16-8-106(2)(c). If a defendant doesn't cooperate, she may not
introduce expert testimony regarding her mental condition at trial. Id. A
defendant may still, however, introduce other mental-condition evidence, but the
fact of her noncooperation during the examination may be admissible to rebut any
such evidence. Id.

126 Cooperation isn't defined by statute. The word "cooperate" generally
means "to act or work with another" or to "act together or in compliance."
Cooperate, Merriam-Webster Dictionary, https://www.merriam-webster.com/
dictionary/cooperate [https://perma.cc/86F9-VFYG]. Applying this ordinary
meaning, we conclude that "cooperate" in section 16-8-106(2)(c) means that the
defendant must work with the evaluator and comply with the court order to
complete the examination.

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127 The hiccup in this case is that, at the time Day was evaluated and deemed
uncooperative, she was incompetent. For that reason, we must determine if the
court may even order a mental-condition examination of an incompetent
defendant, let alone fault her for noncooperation if it does.

128 A defendant is incompetent to proceed if, as a result of a mental or
developmental disability, the defendant lacks "sufficient present ability to consult
with the defendant's lawyer with a reasonable degree of rational understanding
in order to assist in the defense, or ... [if] the defendant does not have a rational
and factual understanding of the criminal proceedings." § 16-8.5-101(12), C.R.S.
(2025). When the issue of competency is raised, if the court has insufficient
information to make a preliminary finding or if a party objects to the court's
preliminary finding, the court must order the Department of Human Services to
evaluate the defendant and prepare a report. § 16-8.5-103(2). The statute requires
the defendant to cooperate with the competency evaluator and, if she doesn't, the
statute explains that the defendant's noncooperation may be used as evidence
against her at a competency or restoration hearing to "rebut any evidence
introduced by the defendant with regard to the defendant's competency."
§ 16-8.5-105(2). However, if the lack of cooperation is the result of a developmental
or mental disability, then the fact of noncooperation can't be introduced at those
hearings. Id.

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129 If there is reason to believe that a defendant is incompetent to proceed, the
trial court must suspend the proceedings until the competency of the defendant
has been determined. People v. Zapotocky, 869 P.2d 1234, 1237 (Colo. 1994). The
prohibition against prosecuting an incompetent defendant "attaches at the
commencement of formal criminal proceedings and continues throughout the
execution and satisfaction of the sentence." Jones v. Dist. Ct., 617 P.2d 803, 807
(Colo. 1980). So, while a defendant is incompetent, a court may only proceed with
matters that are "susceptible of fair determination prior to trial and without the
personal participation of the defendant." § 16-8.5-102(1), C.R.S. (2025).

130 Here, the trial court's order excluding the proffered expert mental-condition
testimony implicitly determined that Day's competency was irrelevant to her
noncooperation. The division disagreed, concluding that Day couldn't be faulted
for her noncooperation while she was incompetent. Day, 11 24-25, 544 P.3d at
1248.

131 We resolve that disagreement now.

## C. Application

## 1. Competency Examination

132 The trial court, in its order granting the prosecution's motion to exclude
expert mental-condition evidence, noted that Day didn't cooperate with the
CMHHIP examiner. The court referred to the June 2018 report, in which CMHHIP

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found Day incompetent and reported that the state hospital couldn't complete the
mental-condition examination because Day was not cooperative.

133 On appeal, the division concluded that the trial court had erred by faulting
Day for failing to cooperate during the June evaluation. Id. at | 25, 544 P.3d at
1248. The division reached this conclusion based on section 16-8.5-105(2), which
prohibits the use of a defendant's noncooperation in competency evaluations at
subsequent hearings if the noncooperation was the result of "a mental disability."
Because Day's noncooperation was during a competency evaluation and she has
a previously diagnosed mental illness, the division concluded that the trial court
shouldn't have faulted her for her noncooperation when determining the
admissibility of the expert mental-condition testimony. Day, 1 25, 544 P.3d at 1248.
134 Although we agree with the division that Day shouldn't be faulted for
noncooperation while incompetent, we do so for different reasons. Section
16-8.5-105(2) applies only to the admissibility of a defendant's noncooperation at
subsequent competency and restoration hearings, not all subsequent hearings in a
defendant's case. Therefore, section 16-8.5-105(2) simply doesn't govern whether
Day's noncooperation during a competency evaluation may be considered by the
trial court when determining the admissibility of expert mental-condition
testimony at trial.

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135 Still, as discussed above, one aspect of incompetence is a defendant's
inability to rationally understand the proceedings or assist in her defense because
of a mental disability. § 16-8.5-101(12). For this reason, when a defendant is
deemed incompetent, the court shouldn't proceed with matters that require the
defendant's personal participation for a fair determination of the issue.
§ 16-8.5-102(1). A mental-condition examination requires a defendant's personal
participation. And if a defendant can't meaningfully participate in her defense,
she likely can't meaningfully participate in such an examination either. An
incompetent defendant who is struggling to understand the purpose of the
mental-condition examination can't be expected to fulfill the purpose of the
examination. Because cooperating with a mental-condition examination is a key
step in a defendant's ability to present expert mental-condition evidence as part of
her defense, the examination shouldn't proceed until the defendant is competent
to proceed. See Zapotocky, 869 P.2d at 1237.

136 Here, after CMHHIP exhibited confusion about the type of examination that
had been ordered, the court entered its March 2017 order, which reiterated that
CMHHIP should conduct a mental-condition examination, not a sanity
examination. After that clarification, CMHHIP only attempted to conduct a
mental-condition examination at times when Day was deemed incompetent. But
she couldn't reasonably participate in a mental-condition examination during that

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time, so her lack of cooperation in any such examination shouldn't be used against
her to exclude expert mental-condition evidence. Her incompetence rendered any
mental-condition examination, and her cooperation (or lack thereof) with such an
examination, a nullity.

137 Day requested, and the court ordered, a mental-condition examination
multiple times before trial, but CMHHIP failed to conduct the examination while
Day was competent. When the prosecution moved to exclude Dr. Fukutaki's
mental-condition testimony, the court's April 2018 order for a mental-condition
examination remained in place. Day relied on CMHHIP to follow the order and
complete the examination. Before the trial court excluded Day's expert mental-
condition evidence, it should have enforced its order by directing CMHHIP to
examine Day while she was competent. (At this juncture, the court hardly needed
any reminders about defense counsel's continuing desire for the examination. The
issue had been front and center literally for years, and the court recognized the
need for the examination in its written ruling.) Instead, the trial court granted the
prosecution's motion in limine. It did so, at least in part, because of the
defendant's lack of cooperation in completing the mental-condition examination
in June 2018 (while incompetent), stating that "on that basis alone" it could exclude
all mental-condition evidence. December 2019 Order, at 2. We agree with the
division that, in doing so, the trial court abused its discretion.

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## 2. Admissibility of Mental-Condition Evidence Under Moore and CRE 403

138 While Day's case was on appeal, we announced our decision in Moore,
which provided guidance on how to evaluate the admissibility of mental-
condition evidence without a NGRI plea. In Moore, we concluded that "the trial
court should determine whether the proposed testimony, in whole or in part, is
probative of what the legislature has defined as insanity," and if it's probative of
insanity, it's inadmissible. 1 44, 485 P.3d at 1098.

139 Applying this framework, the division concluded that only one part of the
proffered expert mental-condition testimony-that Day's mental condition
could've prevented her from accurately perceiving reality or recognizing the
severity of the situation- was probative of insanity and thus inadmissible under
section 16-8-107(3)(b). Day, T1 25, 34, 544 P.3d at 1248, 1250. The division
concluded that the remaining proffered evidence-Day's mental condition, the
medication she was prescribed but not taking, and that she might have been
experiencing some thought disorganization-wasn't "suggestive of the type of
mental disease or defect contemplated in the insanity statute." Id. at | 33, 544 P.3d
at 1250.

140 We agree with the division that the trial court's ruling swept too broadly
when it rejected all of Dr. Fukutaki's testimony because, in doing so, the trial court
failed "to distinguish what is probative of insanity under [the statute's] exacting

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definition from what is not." Moore, 1 5, 485 P.3d at 1093; see also People v. Ray,
2025 CO 42M, 1 28, 575 P.3d 400, 419 ("While we can't fault the trial court for
failing to foresee this development, 'we generally apply the law in effect at the
time of appeal."" (quoting People v. Owens, 2024 CO 10, 1 112, 544 P.3d 1202, 1228)).
141 The division also said it was unpersuaded by the prosecution's CRE 403
argument that the probative value of Day's expert mental-condition evidence was
substantially outweighed by the risk of unfair prejudice. Day, 1 36, 544 P.3d at
1250. The division observed that it was "bound by Moore's guidance, which
measures admissibility of mental condition evidence by its relatedness to insanity,
not its proposed purpose." Id. But this statement seemingly conflated the
statutory analysis with the evidentiary analysis.

142 In Moore, we explained that section 16-8-107(3)(a)'s preclusion of "evidence
that is 'relevant to the issue of insanity,"" absent a NGRI plea, means that a
defendant may not introduce mental-condition evidence "that tends to prove or
disprove the issue of insanity-that is, evidence that is probative of what is
[statutorily] defined as insanity." Moore, 1 33, 485 P.3d at 1096 (quoting
§ 16-8-107(3)(a)); see also CRE 401 (defining evidentiary relevance). However,
"evidence that doesn't tend to prove insanity may be admitted [to support other
defenses] so long as such evidence otherwise conforms to the statutory
requirements and the rules of evidence." Moore, 1 44, 485 P.3d at 1098; see also id.

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at 1 36, 485 P.3d at 1097 (explaining that "section 16-8-107(3)(b) allows the
admission of evidence of a mental condition that doesn't constitute a 'mental
disease or defect' necessitating an NGRI plea"); People v. Vanrees, 125 P.3d 403, 408
(Colo. 2005) (noting that "there is nothing within Colorado's statutory insanity
framework indicating that our General Assembly intended to create an 'all or
nothing' insanity defense that applies in all cases where the defendant presents
evidence challenging the culpable mental state element of the crime charged").
Therefore, to determine whether a defendant's proffered evidence is probative of
insanity or some other defense, courts should consider "whether testimony
regarding a mental condition meets the definition of insanity"; courts need not
"yield to a defendant's stated purpose in seeking admission of the evidence."
Moore, 1 38, 485 P.3d at 1097.

143 That's the statutory analysis.

144 But for CRE 403 purposes, the court must consider whether the evidence,
which is otherwise admissible (meaning, it has passed the court's statutory
analysis), should nonetheless be excluded because "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." In evaluating whether
testimony should be excluded under CRE 403, the trial court must, therefore, be

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mindful of the purposes for which the testimony is offered. People v. Cooper, 2021
CO 69, 1 52, 496 P.3d 430, 441. So, for the evidentiary analysis, it matters that the
purpose of some of the mental-condition evidence was to rebut the prosecution's
argument that Day's post-event behavior proved her culpable mental state.
Because the mental-condition examination may affect the CRE 403 analysis, we
refrain from resolving that evidentiary issue now. Instead, we leave it to the trial
court to address the issue on remand after the examination occurs.

145 Moreover, we agree with the division that the exclusion of this evidence
wasn't harmless beyond a reasonable doubt. The prosecution relied heavily on
Day's post-event demeanor to prove her culpable mental state, and the trial court's
ruling denied Day the opportunity to rebut that evidence.

146 Therefore, we affirm the division's reversal of Day's conviction as to each
count for which her culpability was at issue, and we remand the case for a new
trial consistent with this opinion.

## III. Conclusion

147 We affirm the judgment of the court of appeals, albeit on slightly different
grounds, and we remand the case for further proceedings consistent with this
opinion.

CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE BOATRIGHT and JUSTICE
BLANCO, dissented.

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CHIEF JUSTICE MÁRQUEZ, joined by JUSTICE BOATRIGHT and JUSTICE
BLANCO, dissenting.

148 I agree with the majority that a court may not fault a defendant for failing
to cooperate with a mental-condition examination if the defendant is incompetent
at the time of the examination. Maj. op. 11 34-36. But I disagree with the
majority's conclusion that the trial court abused its discretion when it granted the
People's motion in limine to exclude Maria Laida Day's mental-condition
evidence.1 Under section 16-8-107(3)(b), C.R.S. (2025), "the defendant is not
permitted to introduce evidence ... concerning the defendant's mental condition
... without having undergone a court-ordered examination pursuant to section
16-8-106[, C.R.S. (2025)]." Because Day had never undergone the requisite
examination, the trial court was required by statute to exclude her proffered
mental-condition evidence.

149 The majority avoids this outcome by inexplicably shifting the burden of
ensuring that the examination takes place from the proponent of the evidence, the
defense, to the trial court. Maj. op. 1 37. Though I acknowledge that the
frustrating series of events in this case are not the fault of any one party, the

1 Since I would affirm the trial court's decision to exclude Day's mental-condition
evidence because it failed to meet the requirements of section 16-8-107(3)(b), C.R.S.
(2025), I would not reach the other evidentiary questions related to our decision in
People v. Moore, 2021 CO 26, 485 P.3d 1088, or Colorado Rule of Evidence 403.

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ultimate burden of ensuring that proffered evidence meets the statutory
requirements must lie with the proponent of the evidence, not the trial court. Here,
the defense, as the proponent of this evidence, had the obligation to ensure that
the proffered evidence met the statutory requirements of section 16-8-107(3)(b) to
be introduced at trial. At a minimum, defense counsel had an obligation to inform
the court that the requisite examination had still not taken place and to seek
enforcement of the court's previous order. Defense counsel failed to do so. I
cannot agree that the trial court abused its discretion by failing, sua sponte, to halt
the impending trial to enforce an order issued years earlier. Rather, the trial court
properly excluded the evidence on the grounds that no mental-condition
evaluation had been conducted pursuant to section 16-8-107(3)(b). People v. Day,
No. 15CR26, at 2 (Dist. Ct., Lake Cnty., Dec. 18, 2019) (unpublished order)
("December 2019 Order"). Because the court's ruling was not manifestly arbitrary,
unreasonable, unfair, or a misapplication of the law, I respectfully dissent.

## I. Section 16-8-107(3)(b) Required the Trial Court to Exclude the Evidence

150 When interpreting statutes, our goal is to discern and effectuate the
legislature's intent. See Town of Minturn v. Tucker, 2013 CO 3, 1 27, 293 P.3d 581,
590. In doing so, we "must respect the legislature's choice of language." Oakwood
Holdings, LLC v. Mortg. Invs. Enters. LLC, 2018 CO 12, 1 12, 410 P.3d 1249, 1252.

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Thus, "[i]f the statutory language is clear, we apply it as written." Dep't of
Revenue v. Agilent Techs., Inc., 2019 CO 41, 1 16, 441 P.3d 1012, 1016.

[51 In this case, the language of section 16-8-107(3)(b) is clear that the
completion of a court-ordered mental-condition examination is a mandatory
prerequisite to the introduction of expert mental-condition evidence: "[T]he
defendant is not permitted to introduce evidence in the nature of expert opinion
concerning the defendant's mental condition ... without having undergone a
court-ordered examination pursuant to section 16-8-106."

152 This language establishes a bright-line rule: If the defendant has not
undergone a court-ordered mental-condition examination, the court may not
allow expert mental-condition testimony. The statute has no exceptions or
qualifiers.

153 Under section 16-8-106(2)(c), if a defendant fails to cooperate with personnel
conducting an examination, the court must preclude defense expert testimony on
the defendant's mental condition:

If the defendant does not cooperate with psychiatrists, forensic
psychologists, and other personnel conducting the examination, the
court shall not allow the defendant to call any psychiatrist, forensic
psychologist, or other expert witness to provide evidence at the
defendant's trial concerning the defendant's mental condition . . . .

(Emphasis added.)

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154 This language is also clear. As the majority correctly reasons, however, a
defendant who is incompetent (and is thus unable to understand the proceedings
or assist in their defense) should not be faulted for failing to cooperate with a
mental-condition examination, a process that requires a defendant's personal
participation. See § 16-8.5-101(12), C.R.S. (2025); Maj. op. 11 28, 35-36. Thus, I
agree with the majority that the trial court erred in holding Day's noncooperation
against her because she was incompetent at the time of the June 2018 examination.
155 But the conclusion that the trial court erred by considering Day's
noncooperation under section 16-8-106(2)(c) does not change the fact that no
mental-condition examination took place as required by section 16-8-107(3)(b).
The latter provision forbids the defense from introducing such evidence if an
examination has not taken place-regardless of the reason. The trial court
correctly observed that no exam had taken place and that it could deny the
introduction of such evidence "on this basis alone." December 2019 Order, at 2.
The majority reasons its way around section 16-8-107(3)(b) by shifting the burden
of ensuring that the defendant's evidence met the statutory requirement to the trial
court. Maj. op. 1 37.

156 As a fundamental rule, the proponent of evidence bears the burden of
establishing all the requirements for admission of that evidence. This is true
whether those requirements are statutory, e.g., § 16-8-107(3)(b), or grounded in the

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Colorado Rules of Evidence. See People v. Harris, 43 P.3d 221, 226 (Colo. 2002)
(clarifying that Colorado's "rape shield" statute requires the defendant to show
the evidence meets the statute's requirements for admission); see also People v.
Vanderpauye, 2023 CO 42, 1 25, 530 P.3d 1214, 1222 (holding that the proponent of
hearsay evidence bears the burden of establishing a hearsay exception); People v.
Montoya, 753 P.2d 729, 733-34 (Colo. 1988) (holding that the prosecution bears the
burden of establishing the elements for admission of co-conspirator statements);
People v. Sutherland, 683 P.2d 1192, 1197 (Colo. 1984) (holding that the proponent
of real evidence bears the burden of establishing a chain of custody for such
evidence).

157 Yet here, the majority effectively holds that the burden of ensuring
compliance with section 16-8-107(3)(b) rests with the trial court. Maj. op. 1 37. The
majority's reasoning appears to be that (1) the defense met its burden simply by
notifying the court of its intent to introduce the evidence; and (2) once the trial
court issued its order for the examination to take place, the burden of ensuring the
examination took place before trial fell on the trial court. Id. Although the trial
court certainly had the authority to enforce its order, I disagree with the majority's
apparent conclusion that the trial court had an affirmative duty to enforce
compliance with its order, sua sponte, without any notification from the defense.
Id.

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158 The legislature has the power to impose such affirmative obligations on trial
courts and has done so in specific contexts. For example, section 16-8.5-116(3),
C.R.S. (2025), requires trial courts to conduct periodic reviews of incompetency
determinations. But even there, the burden is shared between the trial court,
which conducts the review, and the entity evaluating the defendant, which must
provide the court with updated reports to assist the court in its review. Id. By
contrast, the majority's holding today has no grounding in section 16-8-107(3)(b)
(or any other provision); it simply imposes the burden on the trial court to enforce,
sua sponte, an order issued years earlier, with no apparent obligation that the
defense notify the court that an examination has not taken place.

159 The majority's ruling today ignores the reality that trial courts rely on
notification from the parties to effectively and proactively enforce their orders. As
a routine example, when a trial court orders the prosecution to turn over
additional evidence under Crim. P. 16, the trial court does not have an
independent duty to ensure the prosecution turns over the evidence. Rather, the
defense (the party seeking the evidence) has an obligation to notify the court of the
prosecution's failure to comply, and the trial court then enforces its order. The
same should be true here.

160 The majority nevertheless turns this assumption on its head and holds that
the trial court abused its discretion by not taking additional action, sua sponte, to

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enforce its order mere weeks before retrial. Maj. op. 1 37. I cannot agree. The
proponent of the evidence should bear the burden of ensuring that the proffered
evidence meets the statutory requirements. If that compliance requires action by
the court, then the proponent must at least notify the court that action is required.

161 The facts here illustrate why: By the time the trial court issued the order
excluding the evidence, the case had been pending for three and a half years; Day
had undergone multiple competency evaluations that paused the proceedings; the
trial court judge who originally issued the mental-condition examination order
had been replaced by a new judge; and the case had been reset for trial following
an earlier mistrial. Cases with lengthy, complex procedural histories like this one
exemplify why trial judges must rely on the parties to bring issues to the court's
attention. To be clear, I agree with the majority that a court may not fault a
defendant who is incompetent for failing to cooperate with a mental-condition
examination. Here, however, Day had been deemed competent in March 2019,
several months before trial in January 2020. Nothing prevented defense counsel
from flagging for the trial court during this period that Day had still not undergone
a mental-condition examination as required by section 16-8-107(3)(b) and
requesting enforcement of the court's previous order for the examination.2 As the

2 As reflected in the majority's timeline of events, Day was deemed competent to
proceed in March 2019. Maj. op. 1 9. The record reflects no efforts from the

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proponent of this evidence, the defense bore that burden. The majority's holding
otherwise in this case undermines this careful balance of responsibility between
the parties and the trial court.

## II. Conclusion

162 Section 16-8-107(3)(b) plainly bars the defense from introducing mental-
condition evidence without the defendant having undergone a court-ordered
examination under section 16-8-106. Because Day had not undergone such an
examination before retrial, the trial court properly excluded the evidence on that
basis alone.

163 In sum, because I cannot agree with the majority that the trial court abused
its discretion in excluding the evidence under the circumstances of this case, I
respectfully dissent.

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