Peo v. McCaughin

22CA0230 Peo v McCaughin 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0230
Arapahoe County District Court No. 19CR1368
Honorable Elizabeth Weishaupl, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Joseph Dean McCaughin,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE SULLIVAN
Tow and Yun, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 10, 2025

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

Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Joseph Dean McCaughin, appeals the judgment of

conviction entered on a jury verdict finding him guilty of first degree

extreme indifference murder. We reverse and remand for a new

trial.

I. Background

¶2 McCaughin shot and killed the victim, R.R., at a park during a

confrontation among McCaughin, R.R., and two of R.R.’s friends.

The prosecution’s theory of the case was that McCaughin shot R.R.

out of jealousy because R.R. was dating his former girlfriend.

McCaughin asserted he acted in self-defense, claiming that he

feared R.R. and his friends wanted to “jump” him.

¶3 According to McCaughin, one of R.R.’s friends brandished a

knife while R.R. made a quick movement toward his waistband as if

to reach for a gun. Seeing this, McCaughin fired his pistol multiple

times in R.R.’s direction, killing him. Families with children were

nearby in the park within McCaughin’s general line of fire. No gun

was found on R.R.

¶4 At trial, McCaughin testified in his own defense. He said he

went to a donut shop the day before the shooting where he

1
encountered R.R. and his friends, one of whom threatened him by

saying, “We’ll be seeing you again.”

¶5 McCaughin also testified that R.R. sent him threatening videos

later that night from McCaughin’s former girlfriend’s Snapchat

account.1 In McCaughin’s telling, R.R. can be seen in the videos,

alongside McCaughin’s former girlfriend, “cussing and threatening”

McCaughin. McCaughin testified that R.R. threatened him in one of

the videos by saying, “When I catch you, what’s up, fuck you, when

I see you, it’s smoke.” The prosecutor objected on hearsay grounds,

arguing that McCaughin was offering R.R.’s comment for the truth

of the matter asserted. Defense counsel countered that R.R.’s

comment wasn’t being offered for its truth but rather for its effect

on McCaughin as the listener — specifically, how McCaughin felt

threatened.

¶6 The district court sustained the prosecutor’s objection,

concluding that McCaughin was offering R.R.’s comment for its

1 Snapchat is a mobile application that allows cell phone users to

send photos and videos to their friends or contacts. People in
Interest of R.C., 2016 COA 166, ¶ 3 n.1. Typically, once the photo
or video is sent to another person and viewed, it automatically
deletes within a few seconds. Id.

2
truth and that it therefore constituted inadmissible hearsay. As a

result, the court struck McCaughin’s previous answer and

instructed the jury to disregard it. The court ruled that it would

allow McCaughin to testify about the feelings the videos evoked so

long as he stayed away from the specifics of R.R.’s comment.

¶7 A short time later, however, defense counsel attempted to elicit

testimony from McCaughin that he felt concerned that R.R. might

try to hurt him “[b]ecause of the videos that were sent.” The

prosecutor renewed his objection, arguing that McCaughin’s “only

basis for being scared is based on hearsay,” so he couldn’t testify to

the feelings that the hearsay evoked. The court sustained the

objection, struck McCaughin’s response, and again instructed the

jury to disregard his answer.

¶8 As relevant to this appeal, and consistent with its prior

hearsay rulings, the court sustained two other objections by the

prosecutor. First, defense counsel asked McCaughin, “And you

were also concerned that he might have a gun based on kind of

what had happened the night before?” When McCaughin answered

“yes,” the prosecution objected on the same grounds as before. The

court sustained the objection. Second, the prosecution objected

3
again when McCaughin testified that he shot R.R., in part, because

of the “threats [R.R.] made the night before.” Once again, the court

struck McCaughin’s response about the “threats the night before”

and instructed the jury to disregard his answer.

¶9 Later the same day, outside the jury’s presence but before

McCaughin’s testimony had concluded, defense counsel made an

offer of proof regarding McCaughin’s excluded testimony. He

explained that McCaughin would have testified that he

(1) interpreted R.R.’s use of “smoke” as a reference to a gun or

“gunplay” and (2) believed, based on the comment, that R.R.

possessed a gun while at the park the following day.

¶ 10 McCaughin also testified that one of R.R.’s friends called him

names while at the park, causing him to feel threatened. During

the prosecutor’s cross-examination of McCaughin, McCaughin

conceded that name-calling alone isn’t sufficient to justify deadly

physical force in self-defense. McCaughin also admitted that R.R.

hadn’t explicitly threatened to shoot him in the moments just before

McCaughin fired his pistol. Although the prosecutor asked

McCaughin about the alleged Snapchat videos, he didn’t allow

4
McCaughin to relay what R.R. had said or how McCaughin

interpreted R.R.’s comment.

¶ 11 In closing argument, the prosecutor emphasized that the court

had excluded evidence of the Snapchat videos, so they couldn’t be

considered when assessing McCaughin’s claim of self-defense. The

following remarks are illustrative:

• “[O]ne of the biggest deceits of all is when he tells you

that Snapchats were sent to him that evening. . . . But

more importantly, these Snapchats did not come into

evidence. . . . [Y]ou don’t know what was in the

Snapchats. . . . [Y]ou can’t assess if his scaredness is a

result of something reasonable.”

• “When the [d]efense stands up here and asks you, ‘Well,

remember the Snapchats,’ they are asking you to

speculate because there is zero evidence of what these

Snapchats were . . . . There’s a reason certain evidence

does not come into trial, and this is not something you

should consider.”

• “He wasn’t scared. He has shown that he wasn’t scared

because he was going toe-to-toe with [R.R].”

5
• “[T]here are no actual verbal threats said. . . . [R.R.]

doesn’t once say, ‘I’m gonna come kick your ass.’ [R.R.]

doesn’t once say, ‘I’m gonna pull a gun.’”

¶ 12 The jury found McCaughin guilty of first degree extreme

indifference murder and second degree murder, but it acquitted him

of attempted first degree murder. The court merged the second

degree murder conviction into the first degree murder conviction

and sentenced McCaughin to life in prison without the possibility of

parole.

II. Discussion

¶ 13 McCaughin raises several contentions on appeal, including

that the district court erred by excluding McCaughin’s testimony

regarding R.R.’s threatening comment in one of the Snapchat videos

and the feelings the videos evoked. Because our resolution of this

issue is dispositive, we need not reach McCaughin’s remaining

contentions.

A. Standard of Review and Applicable Law

¶ 14 We review a district court’s evidentiary rulings for an abuse of

discretion. People v. Meils, 2019 COA 180, ¶ 11. A court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

6
unfair, or based on an erroneous understanding or application of

the law. People v. Scott, 2021 COA 71, ¶ 23.

¶ 15 Because McCaughin preserved his evidentiary challenge, we

review any error in the court’s ruling for nonconstitutional harmless

error. Hagos v. People, 2012 CO 63, ¶ 12. Under this standard, we

will reverse only if a reasonable probability exists that the court’s

error contributed to the defendant’s conviction. People v. Roman,

2017 CO 70, ¶ 13.

¶ 16 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). Absent an

exception, hearsay is generally inadmissible. CRE 802. But if an

out-of-court statement isn’t offered for its truth, the statement is

admissible as nonhearsay evidence so long as the statement is

relevant. People v. Van Meter, 2018 COA 13, ¶ 64. An out-of-court

statement offered solely to show its effect on the listener, for

example, isn’t hearsay. People v. Knapp, 2020 COA 107, ¶ 36. The

proponent’s purpose for offering the statement, not the details

reflected in the statement, determines whether the statement is

7
hearsay. People v. Robinson, 226 P.3d 1145, 1152 (Colo. App.

2009).

B. Analysis

¶ 17 We conclude that the district court erred by excluding

McCaughin’s testimony regarding R.R.’s comment in one of the

Snapchat videos and the feelings the videos evoked. We further

conclude that a reasonable probability exists that the court’s error

contributed to McCaughin’s conviction.

1. The Error

¶ 18 Defense counsel argued that he was offering R.R.’s comment

not for its truth — that R.R. actually threatened McCaughin or

intended to harm him — but rather for its effect on McCaughin. In

particular, defense counsel said that McCaughin would testify that

he (1) interpreted “smoke” to mean “gun” or “gunplay” based on

others’ past references to “smoke”; (2) reasonably believed that R.R.

had a gun; and (3) felt threatened by R.R.’s comment.

¶ 19 We agree with McCaughin that R.R.’s comment wasn’t offered

for its truth because its relevance didn’t turn on whether the

comment was true or not. Rather, R.R.’s uttering of the comment

and the apprehension of danger it produced in McCaughin are what

8
mattered. As a result, R.R.’s comment was admissible as

nonhearsay to show its effect on McCaughin as the listener. See

Robinson, 226 P.3d at 1152; see also Knapp, ¶ 37 (declarant’s out-

of-court statement calling the defendant a “wife beater” was

admissible as nonhearsay to show its enraging effect on the

defendant); People v. Flores, 539 P.2d 1236, 1237 (Colo. 1975)

(reversing conviction where evidence regarding decedent’s prior acts

of violence should have been admitted as nonhearsay “in support of

the defendant’s self-defense theory to establish his fear of the

decedent”).

¶ 20 The People argue otherwise, asserting that McCaughin’s “only

interest” in admitting the comment was for its truth — namely, that

R.R. “in fact threatened” McCaughin. But well-settled law backed

up defense counsel’s stated nonhearsay purpose. Indeed, in self-

defense cases, a threatening statement communicated by the

person killed or assaulted isn’t hearsay “[i]f offered to show the

defendant’s reasonable apprehension of danger.” 2 Kenneth S.

Broun et al., McCormick on Evidence § 249, Westlaw (Robert P.

Mosteller ed., 9th ed. database updated Feb. 2025); see also Flores,

539 P.2d at 1237; Hirsch v. State, 697 N.E.2d 37, 40-41 (Ind. 1998)

9
(victim’s statement that he refused to stop fighting was admissible

as nonhearsay to show the defendant’s reasonable apprehension of

death or great bodily harm); State v. Hendrix, 699 S.W.2d 779, 781

(Mo. Ct. App. 1985) (“[W]here self-defense is an issue, evidence of

communicated and uncommunicated threats made by the victim of

an assault or murder are admissible in evidence to explain the

conduct and apprehension of the defendant . . . .”).

¶ 21 To the extent the prosecution harbored concerns that the jury

might misuse the evidence for an improper purpose, its remedy was

to seek an appropriate limiting instruction, not wholesale exclusion

of the evidence. See Robinson, 226 P.3d at 1153 (citing CRE 105).

¶ 22 Accordingly, we conclude that the district court abused its

discretion by sustaining the prosecution’s hearsay objections.

2. The Remedy

¶ 23 Having concluded that the court erred, we must determine

whether the error requires reversal. Based on the record and

briefing before us, we aren’t persuaded that the People have proved

that the court’s error was harmless. See James v. People, 2018 CO

72, ¶ 19. On the contrary, two central themes pressed by the

prosecution were that (1) McCaughin unreasonably believed, or

10
didn’t believe, that R.R. had a gun; and (2) based on the admitted

evidence, McCaughin’s asserted fear of R.R. was unsubstantiated

and not credible.

¶ 24 While cross-examining McCaughin, for example, the

prosecutor emphasized that “something more” than mere name-

calling is necessary to justify self-defense. McCaughin agreed, but

by that point the court had already prohibited him from mentioning

what “more” existed: R.R.’s threatening comment. The prosecutor

also succeeded in getting McCaughin to admit that, at the time of

the shooting, R.R. hadn’t verbalized, “I’m going to shoot you.”

Without the added context of R.R.’s threatening comment from one

day earlier, this testimony significantly strengthened the

prosecution’s position that McCaughin acted unreasonably by

shooting R.R. See Castillo v. People, 2018 CO 62, ¶ 38 (the

“touchstone of self-defense” is the defendant’s reasonable belief that

defensive force is necessary).

¶ 25 The prosecution continued its themes in closing argument,

again leveraging the excluded evidence to argue that McCaughin

acted unreasonably. The prosecutor repeatedly emphasized, among

other things, that the Snapchat videos hadn’t been admitted into

11
evidence, that the jury couldn’t consider the Snapchat videos when

evaluating the reasonableness of McCaughin’s actions, that

McCaughin wasn’t scared of R.R., and that no evidence suggested

that R.R. had said “‘I’m gonna pull a gun” or had otherwise verbally

threatened McCaughin.

¶ 26 Given the prosecution’s heavy reliance on the absence of R.R.’s

threatening comment, we conclude that a reasonable probability

exists that the court’s erroneous hearsay rulings contributed to

McCaughin’s conviction. See Roman, ¶ 13.

¶ 27 In arguing that the error was harmless, the People contend

that McCaughin was still able to testify that he generally felt

threatened by (1) the Snapchat videos and (2) the conduct of R.R.

and his friends during the events leading up to the shooting. We

aren’t so sure. On three separate occasions, McCaughin attempted

to explain, without using R.R.’s exact words, how he felt concerned

and threatened based on the events that occurred the night before

the shooting. The prosecutor objected each time. The court

sustained the objections and, in two instances, explicitly struck

McCaughin’s responses and instructed the jury to disregard his

12
answers. We presume that the jury followed the court’s

instructions. People v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009).

¶ 28 In addition, the court’s hearsay rulings effectively precluded

the jury from hearing any evidence about R.R.’s specific “smoke”

comment and why McCaughin interpreted it as a threat with a gun.

Without the concrete details of R.R.’s threatening comment, the jury

couldn’t fully assess the reasonableness of McCaughin’s belief that

R.R. had a gun and posed an imminent danger that justified the

use of deadly physical force. See § 18-1-704(2), C.R.S. 2024; People

v. Schnorenberg, 2025 CO 43, ¶¶ 54-55 (erroneous exclusion of the

defendant’s testimony regarding his securities lawyer’s advice

wasn’t harmless because, although the defendant could testify in

“general terms” about the advice, what his lawyer “actually told

him” was central to his defense that he lacked the required mental

state). At minimum, the jury may well have viewed McCaughin’s

defensive actions through a different lens — and found them

reasonable — had it been fully apprised of R.R.’s threat from the

day before. See People v. Degrave, 2023 IL App (1st) 192479, ¶ 56

(“The reasonableness of the defendant’s actions vis-à-vis the alleged

victim might be cast in a different light if the defendant knew of the

13
victim’s proclivity toward violence.”). And because reasonableness

is the “touchstone” of self-defense, Castillo, ¶ 38, we can’t say that

the court’s error in excluding R.R.’s threatening comment was

harmless.

¶ 29 The People also argue that the court’s error in truncating

McCaughin’s self-defense claim was rendered harmless because the

jury found him guilty of first degree extreme indifference murder.

To support this argument, the People rely on the supreme court’s

statement in People v. Pickering, 276 P.3d 553, 556 (Colo. 2011),

that acts committed with extreme indifference “are ‘totally

inconsistent’ with self-defense.” Id. (citation omitted). But the

Pickering court made clear that a defendant may assert self-defense

as an element-negating traverse in cases involving extreme

indifference crimes. Id. Given this, a court’s error in curtailing a

defendant’s self-defense claim isn’t insulated from reversal simply

14
because the jury found the defendant guilty of an extreme

indifference crime.2

¶ 30 Accordingly, because the court abused its discretion by

excluding evidence of R.R.’s comment and its error wasn’t harmless,

we reverse the judgment of conviction and remand the case for a

new trial. We need not address McCaughin’s remaining contentions

since they may not arise on remand. See People v. Cook, 197 P.3d

269, 277 (Colo. App. 2008).

III. Disposition

¶ 31 McCaughin’s conviction for first degree extreme indifference

murder is reversed, and the case is remanded for a new trial.

JUDGE TOW and JUDGE YUN concur.

2 Although our analysis focuses on the court’s error in truncating

McCaughin’s self-defense claim as it pertains to the first degree
extreme indifference murder charge, we note that the court’s error
also isn’t harmless as it relates to the second degree murder charge.
See People v. Pickering, 276 P.3d 553, 555 (Colo. 2011) (self-defense
is an affirmative defense to second degree murder).

15