Peo v. Condon

22CA2249 Peo v Condon 11-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2249
Arapahoe County District Court No. 19CR251
Honorable Shay K. Whitaker, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Andrew Joseph Condon,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE HAWTHORNE*
Fox and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 6, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Chelsea E. Mowrer, 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. 2025.
¶1 Defendant, Andrew Joseph Condon, appeals the judgment of

conviction entered on a jury verdict finding him guilty of second

degree murder, tampering with a deceased human body, aggravated

motor vehicle theft, a crime of violence (sentence enhancer),

burglary, assault, and menacing. He contends that the district

court erred by (1) admitting the victim’s hearsay statements into

evidence; (2) denying his motion to sever; (3) admitting evidence of

prior acts without conducting the proper analysis; and (4) failing to

properly instruct the jury. He also contends that the prosecutor

committed misconduct and that the alleged errors cumulatively

deprived him of a fair trial. We affirm.

I. Background

¶2 Condon and the female victim had been in an on-again, off-

again relationship for approximately two years. In December 2018,

the couple was expected to arrive at the victim’s parents’ house to

celebrate the holidays with her family, but they never arrived. After

several days without hearing from the victim, the victim’s parents

contacted her apartment manager to inquire whether her car was at

the apartment complex. The victim’s car was not there.

1
¶3 On December 26, the victim’s parents accessed her banking

account and noticed that two withdrawals had been made from the

account at gas stations in Texas on December 24 and 25

respectively. Over the next several days, the victim’s parents

reported the missing victim and her stolen car to the Aurora Police

Department.

¶4 Texas law enforcement officers later discovered Condon in the

victim’s car with her debit card in his possession. When

interviewed, Condon denied knowing what had happened to the

victim or where she was located.

¶5 In January, a motorist found the victim’s body inside a plastic

storage bin hidden under a tree at an abandoned rest stop in

Colorado. The body was wrapped in duct tape and plastic bags,

and law enforcement found Condon’s fingerprints on the wrappings.

At trial, a forensic pathologist testified that the victim died of

strangulation and had a fractured hyoid bone in her throat.

¶6 The prosecution charged Condon with (1) first degree murder,

§ 18-3-102, C.R.S. 2018; (2) tampering with a deceased human

body, § 18-8-610.5, C.R.S. 2018; (3) aggravated motor vehicle theft,

§ 18-4-409(2), (3)(a), C.R.S. 2018; (4) a crime of violence (sentence

2
enhancer), § 18-1.3-406(2)(a)(I)(B), C.R.S. 2025; (5) first degree

burglary, § 18-4-202(1), C.R.S. 2025; (6) second degree assault,

§ 18-3-203(1)(i), C.R.S. 2025; and (7) menacing, § 18-3-206(1),

C.R.S. 2018.

¶7 Condon did not testify at trial, but his counsel effectively

conceded that he caused the victim’s death by arguing that

Condon’s actions were merely reckless or negligent.

¶8 After trial, the jury acquitted Condon of first degree murder,

but it convicted him of the lesser included offense of second degree

murder, § 18-3-103(1), C.R.S. 2018, and the remaining offenses as

charged. The district court sentenced Condon to seventy-one years

in the Department of Corrections’ custody with five years of

mandatory parole.

II. Admission of the Victim’s Out-of-Court Statements

¶9 Condon contends that the district court erred by admitting

into evidence the victim’s testimonial hearsay statements. We

disagree.

A. Additional Background

¶ 10 The prosecution provided pretrial notice of its intent to

introduce statements the victim made to police on November 3,

3
2018, and December 8, 2018, under CRE 807 and the forfeiture by

wrongdoing doctrine. The court held an evidentiary hearing and

heard testimony from Officers Henderson and Starz. The court also

reviewed the officers’ body worn camera footage, which captured

their interviews with the victim on those dates.

¶ 11 Incident 1: November 3, 2018. Officer Henderson responded to

an early morning dispatch call about an unknown disturbance at a

nearby Safeway. On arrival, he found the victim sitting outside the

store. During their conversation, the victim relayed the following:

• She and her boyfriend, whom she identified as “Lester

Gulley,” had been in an on-again, off-again relationship

for approximately two years, but they broke up earlier

that morning after arguing for most of the previous

night.1

• The victim asked “Lester” to leave her apartment that

morning, but he initially refused and only left after the

victim pretended to call 911.

1 Officer Henderson later learned that “Lester Gulley” was one of

several aliases Condon used and was not the perpetrator’s true
name.

4
• While the victim was placing personal belongings in her

car, “Lester” reappeared. Despite her pleas to leave her

alone, “Lester” followed the victim as she ran through a

parking lot and entered Safeway seeking to “get away

from him.”

• The victim and “Lester” had an unhealthy relationship

and were “always fighting.” In the last couple of weeks,

“Lester” had grabbed her neck, dug his nails into her,

and given her a black eye.

• The victim asked Henderson questions about the process

of filing a restraining order or some other action to

protect herself, stating, “I have kids and I don’t want

them to be around [this].”

• The victim was concerned with “Lester” learning that she

had talked with police because, following prior incidents,

he had threatened her and said she knew “what[] [was]

going to happen” if she were to call the police and that he

“kn[e]w people who ha[d] guns.”

¶ 12 During Officer Henderson’s interview with the victim, she

pulled down her shirt to show him “marks from someone’s

5
fingernails” and bruising on her neck and collarbone. He observed

that the victim was “agitated and scared,” explaining that her

reaction appeared similar to his observations of other victims of

violence. Following the interview, he gave the victim a ride back to

her apartment where he “observed other elements of a crime with

damaged property.” At that point, Officer Henderson issued a

warrant for “Lester Gulley’s” arrest.

¶ 13 Incident 2: December 8, 2018. Officers Henderson and Starz

responded to a dispatch call concerning domestic violence and

strangulation. On arrival, the officers began to interview the 911

caller:

• The victim recognized Officer Henderson as the

responding officer during the incident on November 3.

• She identified the perpetrator as Andrew Condon. An

officer sought to clarify whether the call that day

concerned the same male as the incident on November 3,

and she confirmed that it did. She used Condon’s alias

during the previous incident because he did not want her

to tell people his real name because “[he’d] rather die

than go back to prison.”

6
• The victim displayed scratches on her back, bruising on

her neck and collarbone, and red marks in one of her

eyes. Her voice was scratchy, which she stated was not

normal.

• The victim explained that after an argument concerning

finances turned violent, Condon forced her backwards

onto her couch, mounted her, and wrapped his hands

around her neck restricting her ability to breathe or talk.

She did not lose consciousness, but she recalled her

vision went dark as Condon strangled her. She

demanded that Condon get off, but he replied by

requiring the victim to “say please” and “do whatever [he]

sa[id].”

• She said a similar event occurred “a couple weeks ago”

when Condon grabbed the front of her throat.

• The victim said that after Condon released his grip, she

retreated to her bedroom closet and called 911. She kept

her phone concealed and pretended she was calling her

father to prevent Condon from knowing she was

contacting police.

7
• She told the officers that there was an active warrant for

Condon’s arrest, but she could not provide any details.

She did not indicate whether Condon was aware of the

existing warrant.

¶ 14 After the parties presented evidence, the court concluded that

(1) the victim’s statements to police bore sufficient guarantees of

trustworthiness to be admissible under CRE 807, and (2) the

prosecution established by a preponderance of the evidence that the

statements were admissible under the forfeiture by wrongdoing

doctrine.

¶ 15 Although the court noted that further argument would be

needed to sort through the victim’s various statements, it

determined that the statements were generally admissible under

CRE 807. In finding that the victim’s statements bore sufficient

guarantees of trustworthiness, the court emphasized that during

the November 3 incident, the victim spoke to police after a store

employee called law enforcement, and the interaction made clear

that the victim was not seeking action by the police but, rather, was

concerned about her personal safety. Concerning the second

incident on December 8 the court conceded that the victim knew

8
Officer Henderson from the first encounter, but that they did not

have any real relationship outside of their interaction a month

earlier. And the court noted again that the victim did not appear to

be requesting specific action by the police but rather was motivated

by “getting safety or getting [a] protection order in place and how to

go about doing that.”

¶ 16 In concluding that the statements were admissible under the

forfeiture by wrongdoing doctrine, the court found that (1) the

victim was unavailable; (2) Condon’s conduct brought about the

victim’s unavailability; and (3) Condon acted with the intent to

deprive the criminal justice system of evidence. The court

highlighted Condon’s threats to the victim should she call 911 and

the victim’s efforts to conceal Condon’s identity and prevent him

from knowing she had spoken with police.

B. Hearsay

¶ 17 Condon contends that the district court erred by applying the

incorrect legal standard when it admitted the victim’s statements

under CRE 807. We disagree.

9
1. Standard of Review and Applicable Law

¶ 18 Trial courts have broad discretion to determine the

admissibility of evidence, including the application of the residual

hearsay exception. People v. McFee, 2016 COA 97, ¶ 17. Thus,

while we review a court’s application of hearsay law de novo, People

v. Martinez, 2024 COA 34, ¶ 54, we review its evidentiary rulings for

an abuse of discretion, People v. Whitman, 205 P.3d 371, 381 (Colo.

App. 2007). A trial court abuses its discretion when its decision is

manifestly arbitrary, unreasonable, or unfair or when it applies an

incorrect legal standard. People v. Allgier, 2018 COA 122, ¶ 43.

¶ 19 Hearsay is defined as “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). Hearsay is

not admissible unless an exception is provided by rule or statute.

CRE 802.

¶ 20 The residual hearsay rule in CRE 807 is one such exception.

Statements that are not covered by an exception established in CRE

803 and 804 are admissible under CRE 807 when the statement

has “equivalent circumstantial guarantees of trustworthiness,” and

a court finds that

10
(A) the statement is offered as evidence of a
material fact; (B) the statement is more
probative on the point for which it is offered
than any other evidence which the proponent
can procure through reasonable efforts; and
(C) the general purposes of these rules and the
interests of justice will best be served by
admission of the statement into evidence.

CRE 807; McFee, ¶ 18 (quoting CRE 807).

¶ 21 To determine the trustworthiness of challenged statements,

“courts should examine the nature and character of the statement,

the relationship of the parties, the probable motivation of the

declarant in making the statement, and the circumstances under

which the statement was made.” People v Brown, 2014 COA

155M-2, ¶ 20 (quoting People v. Jensen, 55 P.3d 135, 139 (Colo.

App. 2001)). The evidence’s proponent must establish the

statements’ trustworthiness by a preponderance of the evidence.

Id.

2. The Victim’s Out-of-Court Statements were Admissible Under
CRE 807

¶ 22 Condon contends that the district court erred by admitting the

victim’s statements under CRE 807 because it applied the incorrect

legal standard. We discern no basis to reverse.

11
¶ 23 Condon argues, and we agree, that the court’s findings

concerning CRE 807 focused exclusively on whether the statements

bore sufficient guarantees of trustworthiness but did not include

analysis regarding whether (1) the statements were offered as

evidence of a material fact; (2) the statements were more probative

on the matter for which they were offered than any other evidence

which the proponent could procure through reasonable efforts; and

(3) the general purposes of these rules and the interests of justice

were best be served by admitting the statements into evidence. See

CRE 807; McFee, ¶ 18. However, reviewing courts may nevertheless

analyze “the admissibility of hearsay statements under [the residual

hearsay exception] in cases in which trial courts failed to make

on-the-record findings, or based their rulings on other grounds.”

People v. Fuller, 788 P.2d 741, 745 (Colo. 1990). In conducting the

analysis, we conclude that the victim’s statements were admissible

under CRE 807.

¶ 24 We first agree with the court’s conclusion that the victim’s

statements bore sufficient guarantees of trustworthiness. Because

the statements were made (1) to police officers whom the victim did

not know; (2) out of a motivation to ensure her safety rather than to

12
bring about criminal charges against Condon; and (3) while the

victim was in an excited state and so closely removed from the

confrontation, we are satisfied that her statements exhibited a

sufficient indicia of reliability to satisfy CRE 807’s requirements.

See Brown, ¶ 20; Vasquez v. People, 173 P.3d 1099, 1106 (Colo.

2007).

¶ 25 We further conclude that the victim’s statements satisfy the

remaining prerequisites under CRE 807. See McFee, ¶ 18.

¶ 26 As to materiality, the victim’s statements concerning her and

Condon’s relationship and the domestic violence that permeated it

was relevant to a material fact at issue in Condon’s trial. See id. At

a trial in which Condon was charged with strangling and killing the

victim, evidence that he had previously assaulted the victim in a

similar manner provides important context to the jury concerning

the escalating cycle of domestic violence in the couple’s relationship

and Condon’s motive and culpable mental state. See Jensen, 55

P.3d at 140 (“In a homicide trial, evidence of prior threats,

mistreatment, or malice by the defendant toward the victim is

admissible to show the defendant’s motive and culpable mental

state.”).

13
¶ 27 Regarding necessity, because the prior altercations between

Condon and the victim occurred in private without any known

witnesses, and the victim is now deceased, the victim’s statements

about Condon’s prior conduct were more probative than any other

evidence the prosecution could have procured to that end. See

McFee, ¶ 18.

¶ 28 Finally, concerning the interests of justice, we conclude that

the interests of justice were best served by admitting the victim’s

statements into evidence. See id. Because the victim was deceased

at the time of trial and no other witnesses were able to provide

similarly intimate accounts of the couple’s relationship or the cycle

of Condon’s abuse, admitting the victim’s statements ensured that

the complete facts surrounding the incidents were available to the

jury. See Jensen, 55 P.3d at 140 (“[T]he interests of justice are also

promoted by having the complete facts surrounding an incident

available to the jury.”).

¶ 29 Thus, while the court’s findings did not fully articulate its

basis for admitting the evidence under CRE 807, we conclude that

the victim’s statements to police on November 3 and December 8

were admissible under the rule and that the court did not abuse its

14
discretion. See People v. Quintana, 882 P.2d 1366, 1375 (Colo.

1994); Whitman, 205 P.3d at 381.

C. Confrontation Rights

¶ 30 Condon contends that the district court erred and violated his

Sixth Amendment right to confrontation by admitting the victim’s

testimonial statements into evidence. We disagree.

1. Standard of Review and Applicable Law

¶ 31 “We review de novo a defendant’s claim that the trial court

violated his Confrontation Clause rights, applying the constitutional

harmless error standard to any error.” People v. Johnson, 2019

COA 159, ¶ 49, aff’d, 2021 CO 35.

¶ 32 Pursuant to the Sixth Amendment of the United States

Constitution, “admitting testimonial hearsay at trial, absent the

unavailability of the declarant and a prior opportunity for

cross-examination by the defendant, violates the defendant’s” right

to confrontation. Vasquez, 173 P.3d at 1103. But a criminal

defendant can lose his right to confrontation under the forfeiture by

wrongdoing doctrine. Id.

¶ 33 Under the doctrine, a defendant forfeits his right to confront a

witness at a proceeding in which the witness’s statements are

15
otherwise admissible if “(1) the witness is unavailable; (2) the

defendant was involved in, or responsible for, procuring the

unavailability of the witness; and (3) the defendant acted with the

intent to deprive the criminal justice system of evidence.” Id.

at 1104. Critically, “preventing the witness’s testimony does not

have to be the defendant’s sole motivation, but need be only one

reason for the defendant’s actions.” Id. at 1104-05. The doctrine

applies only when each element is proven by a preponderance of the

evidence. Id. at 1101.

2. Condon Forfeited his Confrontation Rights

¶ 34 Condon contends that the district court erred by determining

that he forfeited his Sixth Amendment right to confrontation under

the forfeiture by wrongdoing doctrine. He argues that the

prosecution failed to establish by a preponderance of the evidence

that he procured the victim’s unavailability with the intent to

deprive the criminal justice system of evidence. We disagree.

¶ 35 At the pretrial evidentiary hearing, the court determined that

Condon acted, at least in part, with the intent to deprive the

criminal justice system of evidence. In so concluding, the court

emphasized the threats that Condon had levied against the victim if

16
she were to contact law enforcement — namely, his threat that the

victim knew “what[] [was] going to happen” if she were to call the

police, that he “kn[e]w people who ha[d] guns,” and that he made

the victim refer to him with an alias because “[he’d] rather die than

go back to prison.” The court also cited the victim’s threat to call

911 during the incident on November 3 and then her attempt to

conceal her call to 911 on December 8 as further circumstantial

evidence that Condon’s conduct was motivated, at least in part, by

the requisite intent.

¶ 36 The court acknowledged that the evidence was not such that

Condon clearly said, “I understand that you called the police on this

particular date and talked to them. And because of this, this is

what is happening.” It explained that when “looking at all the

pieces of the puzzle” — Condon’s threats to the victim, his use of an

alias, and the victim’s expressed fears about contacting police —

the court was satisfied that the prosecution had met its burden of

proof.

¶ 37 We agree and similarly conclude that the prosecution met its

burden to prove by a preponderance of the evidence that Condon, at

least in part, acted with the requisite intent to deprive the criminal

17
justice system of evidence. See Vasquez, 173 P.3d at 1101. Also,

our review of the record supports the court’s factual findings, and

we will not disturb them. See People v. Jackson, 2018 COA 79, ¶ 44

(“[T]he trial court, as fact finder, was in the best position to weigh

the credibility of the witnesses and evidence presented, and we

defer to its findings because the record supports them.”), aff’d on

other grounds, 2020 CO 75. Thus, we perceive no error.

III. Condon’s Motion to Sever

¶ 38 Condon contends that the district court erred by denying his

motion to sever charges brought by the prosecution into two

separate trials. We disagree.

A. Additional Background

¶ 39 Based on evidence that Condon had murdered the victim,

dumped her body, and stolen her car and debit card between

December 21 and 24, 2018, the prosecution charged Condon with

first degree murder, tampering with a deceased human body,

aggravated motor vehicle theft, and a crime of violence (sentence

enhancer) (counts 1–4). The prosecution later amended its

complaint to include charges stemming from a prior strangulation

18
incident that occurred on December 8, adding charges of burglary,

assault, and menacing (counts 5–7).

¶ 40 Condon moved to sever counts 5–7, arguing that the two sets

of charges involved separate and distinct criminal episodes. The

prosecution responded by arguing that (1) both incidents involved

the same victim; (2) the assault on December 8 and the victim’s

murder both occurred in the victim’s apartment within two weeks of

one another; (3) the basis of the separate charges resulted from

similar conduct; and (4) the charges were based on conduct that

would be cross-admissible if the counts were severed, as each case

would require many of the same facts and testimony from several of

the same witnesses.

¶ 41 The court denied Condon’s motion to sever, finding that (1) the

two sets of charges were of a similar character; (2) they were

connected by a common scheme or plan; and (3) the evidence used

to prosecute the charges arising from the December 8 incident

would be admissible at Condon’s murder trial under Rule 404(b).

B. Applicable Law and Standard of Review

¶ 42 Crim. P. 8(a)(2) permits the permissive joinder of two or more

offenses in the same indictment if they are (1) “of the same or

19
similar character”; (2) “based on two or more acts or transactions

connected together”; or (3) based on two or more acts or

transactions “constituting parts of a common scheme or plan.”

Buell v. People, 2019 CO 27, ¶ 18 (quoting Crim. P. 8(a)(2)).

¶ 43 A defendant may be granted relief from joinder if “it appears

that a defendant or the prosecution is prejudiced by a joinder of

offenses.” Crim. P. 14. “[A] defendant may demonstrate prejudice

by showing, among other things, that ‘consolidation caused actual

prejudice and that the jury was not able to separate the facts and

legal principles applicable to each case.’” Buell, ¶ 31 (quoting

People v. Gross, 39 P.3d 1279, 1282 (Colo. App. 2001)). Prejudice is

generally not established when the evidence of each incident would

have been admissible in separate trials. Id.

¶ 44 We review a trial court’s decision to deny a motion to sever for

an abuse of discretion. Bondsteel v. People, 2019 CO 26, ¶ 32. A

trial court abuses its discretion where its decision is manifestly

arbitrary, unreasonable, or unfair or when it applies an incorrect

legal standard. Allgier, ¶ 43.

20
C. The District Court Did Not Abuse its Discretion by Denying
Condon’s Motion to Sever

¶ 45 Condon contends that the district court abused its discretion

by denying his motion to sever because the two sets of charges do

not satisfy a basis for permissible joinder under Crim. P. 8(a)(2).

Alternatively, he argues that even if joinder was permissible under

Crim. P. 8(a)(2), he was prejudiced by the joinder of charges and

thus was entitled to relief under Crim. P. 14. We disagree.

¶ 46 We agree with the court’s conclusion that the charges related

to Condon’s conduct on December 8 are of the same or similar

character as those based on Condon’s murder of the victim. In

assessing whether two cases are of a “same or similar character,”

courts should “consider[] factors such as the elements of the

offenses at issue, the temporal proximity of the underlying acts, the

likelihood that the evidence will overlap, the physical location of the

acts, the modus operandi of the crimes, and the identity of the

victims.” Bondsteel, ¶ 38.

¶ 47 The charges from the December 8 incident and the victim’s

eventual murder (1) involved similar conduct, including

strangulation and the theft or destruction of the victim’s property;

21
(2) were part of a related and escalating cycle of domestic violence

between Condon and the victim; and (3) were alleged to have

occurred at the victim’s apartment within a three-week period.

Against this backdrop, the charges stemming from the two

incidents satisfy Crim. P. 8(a)(2)’s requirements. See Buell, ¶ 23

(finding that the requirements of permissive joinder were satisfied

when the defendant stole from two retail stores in the same city

within two and a half months of one another by hiding the

merchandise in his clothing).

¶ 48 We also conclude that Condon is not entitled to relief from the

joinder of his charges under Crim. P. 14. First, as the court

observed, even if it had severed the charges, evidence of Condon’s

conduct on December 8 would likely have been admissible at the

trial for his murder of the victim. See § 18-6-801.5(1), C.R.S. 2025

(evidence of similar transactions of domestic violence is necessary

in some situations to prosecute such crimes); Buell, ¶ 31 (prejudice

is generally not established when evidence of each incident would

be admissible in separate trials).

¶ 49 Moreover, the record contains no evidence that the jury was

unable to separate the facts and legal principles applicable to each

22
case. See id. The jury was properly instructed that “the law

applicable to each count should be considered separately,

uninfluenced by your decision as to any other count.” And unless

there is evidence to the contrary, we presume the jury followed the

court’s instructions. People v. Cousins, 181 P.3d 365, 374 (Colo.

App. 2007). We conclude that the court did not abuse its discretion

by denying Condon’s motion to sever counts 1–4 from counts 5–7.

See Allgier, ¶ 43.

IV. Evidence of Prior Acts

¶ 50 Condon contends that the district court erred by admitting

evidence of Condon’s prior acts without conducting the appropriate

analysis under CRE 404(b). We are not convinced.

A. Additional Background

¶ 51 Before trial, the prosecution filed notice of its intent to

introduce the following evidence of similar transactions to show

Condon’s motive, malice towards the victim, intent, knowledge, and

lack of mistake:

• Incident 1: Approximately October 1, 2018 – November 3,

2018. When Officer Henderson interviewed the victim

outside of Safeway on November 3, the victim stated that

23
Condon had grabbed her neck, dug his nails into her,

and given her a black eye in the last couple of weeks.

• Incident 2: Approximately October 1, 2018 – November 3,

2018. When Officers Henderson and Starz responded to

the victim’s apartment on December 8, the victim stated

that Condon grabbed the front of her throat “a couple

weeks ago.”

¶ 52 Condon argued that the evidence was inadmissible because

“the probative value of the proposed 404(b) evidence [was]

substantially outweighed by the danger of unfair prejudice to Mr.

Condon.”

¶ 53 The court disagreed and determined that the proffered

evidence was admissible under CRE 404(b). It concluded that

(1) the proffered evidence was related to a material fact because it

evidenced Condon’s motive, malice toward the victim, intent, and

knowledge; (2) the evidence was logically relevant to the material

facts for which it was admitted; (3) the evidence was logically

independent from the prohibited inference that the defendant had a

bad character; and (4) the evidence’s probative value outweighed

the danger of unfair prejudice.

24
B. Standard of Review and Applicable Law

¶ 54 We review a trial court’s decision to admit or exclude other

acts evidence under CRE 404(b) for an abuse of discretion. People

v. Jones, 2013 CO 59, ¶ 11. A trial court has substantial discretion

when deciding whether to admit other acts evidence, and we will

disturb its decision only if it was manifestly arbitrary,

unreasonable, or unfair. Id.

¶ 55 Other acts evidence is excluded by Rule 404(b)(1) when its

only logical relevance depends on the inferences that (1) a

defendant’s prior misconduct shows his or her bad character; and

(2) the defendant, due to that bad character, thus engaged in the

wrongful conduct at issue. People v. Shores, 2016 COA 129, ¶ 33

(citing People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990)). But such

evidence is not necessarily barred if it is offered for another

purpose, such as to show motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident. CRE

404(b)(2); Masters v. People, 58 P.3d 979, 995 (Colo. 2002).

¶ 56 The admissibility of other acts evidence under Rule 404(b) is

governed by Spoto, 795 P.2d at 1318. The Spoto analysis requires

the court to determine that (1) the evidence relates to a material

25
fact; (2) the evidence is logically relevant; (3) the logical relevance is

independent of the intermediate inference that the defendant was

acting in conformity with his bad character; and (4) the evidence’s

probative value is not substantially outweighed by the danger of

unfair prejudice. Spoto, 795 P.2d at 1318.

¶ 57 The General Assembly has found that “domestic violence is

frequently cyclical in nature, involves patterns of abuse, and can

consist of harm with escalating levels of seriousness” and has

expressly recognized “that evidence of similar transactions can be

helpful and is necessary in some situations in prosecuting crimes

involving domestic violence.” § 18-6-801.5(1). So a prosecutor may

proffer such evidence “to show a common plan, scheme, design,

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

other purpose.” § 18-6-801.5(3).

C. The District Court Did Not Abuse Its Discretion by Admitting
Evidence of Condon’s Prior Conduct

¶ 58 Condon contends that the district court erred by admitting

evidence of Condon’s prior conduct without first performing the

required Spoto analysis. He argues that the court failed to make

adequate findings concerning how the proffered evidence

26
“established motive, malice toward the victim, intent, [and]

knowledge” because the findings the court made were conclusory

and failed to “explain[] how the other act evidence related to any of

the charges or how the other act evidence [was not] simply [used for

the purpose of] propensity.” Based on our record review, we

conclude that the court made specific findings as to each Spoto

factor, and we reject Condon’s contention.

¶ 59 Regarding the first Spoto factor, the court explained that

evidence relating to prior acts of domestic violence carried out by

Condon against the victim was relevant to show Condon’s “motive

and malice toward the victim as well as proving the defendant’s

intent and knowledge,” particularly because instances of domestic

violence “all typically look very similar in nature [and usually

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involve] similar set[s] of actions, reactions[,] and patterns.”2 See

Spoto, 795 P.2d at 1318.

¶ 60 In analyzing the second Spoto factor, the court concluded that

evidence of Condon’s prior instances of domestic violence against

the victim was logically relevant to Condon’s motive, malice toward

the victim, intent, and knowledge. See id. The court cited the

proffered evidence’s relevance to “the escalation of the alleged

violence between each of these incidents [that] ultimately

culminat[ed] in the allegations . . . in this particular case.” The

court also explained that the evidence was particularly probative in

light of the prior incidents being so closely temporally related to the

victim’s murder.

¶ 61 Regarding the third Spoto factor, the court observed that it is

generally difficult to articulate how prior acts evidence is

2 Condon contends that the court failed to conduct any Spoto

analysis concerning whether the evidence was admissible to show
lack of mistake. But during the evidentiary hearing, the court
agreed with Condon that such a basis for admission is better
assessed “once we see where we are at in trial” and deferred
judgment to that end. Thus, the court did not identify Condon’s
lack of mistake as a relevant basis for admission at the time it
conducted its Spoto analysis during the evidentiary hearing, and,
therefore, it was not required to make findings to that end.

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“independent of the prohibited inference that the defendant has a

bad character,” especially in instances such as here when “you are

dealing with other potential uncharged criminal acts.” But the

court found that the logical relevance of the prosecution’s proffered

evidence was in fact independent of that inference. It explained

that the evidence was being produced not “for the purpose of just

simply demonstrating that the defendant has a bad character . . .

[b]ut rather for the purposes set forth as the court previously

discussed.”

¶ 62 Finally, the court concluded by finding that the proffered

evidence satisfied the fourth Spoto factor — namely, the court found

that “the probative value of this evidence d[id] in fact outweigh the

danger of unfair prejudice.” See id. While it observed that the

“evidence [wa]s [clearly] prejudicial,” the court noted that “we don’t

usually have a situation where someone announces their intent”

when they perform a particular act, so it “is often something that

has to be discerned from the circumstances and is often

circumstantial in nature.” Because the incidents were carried out

so closely together, and because the evidence provided the jury with

important context into the escalation of domestic violence between

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Condon and the victim, the court concluded that admitting the

evidence was not precluded by unfair prejudice.

¶ 63 In the end, the record reflects that the court appropriately

analyzed the proffered evidence under CRE 404(b) and Spoto. Thus,

we conclude that it did not abuse its discretion by permitting the

jury to hear evidence of Condon’s prior acts of domestic violence

against the victim. See Spoto, 795 P.2d at 1318; Jones, ¶ 11.

V. Heat of Passion Jury Instruction

¶ 64 Condon contends that the district court erred by failing to

include an interrogatory concerning heat of passion provocation in

its jury instructions for second degree murder. We perceive no

error.

A. Additional Background

¶ 65 At trial, Condon tendered a proposed interrogatory concerning

heat of passion provocation for second degree murder. As a basis

for the tendered interrogatory, Condon’s counsel cited two text

messages that Condon had sent to a friend in the twenty-four hours

leading to the victim’s murder. The first message, sent on

December 20 at 9:20 p.m., said, “Girl I let her brother box my face

for my respect . . . . [S]he’s an evil person she don’t deserve me

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period.” The second message, sent at 10:49 a.m. the following

morning, said that “[the victim’s] brothers jumped me I need rev

[sic].” Condon’s counsel argued that the text messages amounted

to sufficient evidence that Condon strangled the victim following “a

serious and highly provoking act.”

¶ 66 But the prosecutor explained that the victim called out sick

from work at approximately 7:00 a.m. on December 21, so she was

still alive when Condon sent the first message. The prosecutor

argued that (1) the evidence did not show that Condon experienced

a “sudden and provoking heat of passion,” and (2) Condon, in the

approximately eleven hours between the first message and the

victim calling out from work, had sufficient time to temper any

heated passion that resulted from his alleged altercation with the

victim’s brothers.

¶ 67 The court denied Condon’s tendered interrogatory, finding that

the trial evidence did not support the conclusion that Condon

experienced a sudden and provoked heat of passion. It explained

that the provoking act was seemingly performed by the victim’s

brother, not the intended victim, and that Condon had an adequate

opportunity to reflect considering he had time to send a series of

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text messages to his friend about the altercation. The court also

observed that Condon’s message — specifically, his statement, “I

need rev [sic]” — reflects a premeditated action that has yet to

occur, not a sudden provocation “that takes place within seconds of

the act.”

B. Applicable Law and Standard of Review

¶ 68 “Trial courts have a duty to instruct the jury on all matters of

law applicable to the case.” Roberts v. People, 2017 CO 76, ¶ 18.

When considering whether a defendant is entitled to a requested

instruction, we view the evidence in the light most favorable to

giving the instruction. People v. Tardif, 2017 COA 136, ¶ 22. A

defendant is entitled to an instruction on a particular affirmative

defense when he raises some credible evidence to support it —

regardless of how incredible, unreasonable, improbable, or slight it

may be. Cassels v. People, 92 P.3d 951, 955 (Colo. 2004).

¶ 69 “We review jury instructions de novo to determine whether

they accurately inform the jury of the governing law.” McDonald v.

People, 2021 CO 64, ¶ 54 (quoting Hoggard v. People, 2020 CO 54,

¶ 12). And we review a trial court’s decision to give or not to give a

particular jury instruction for an abuse of discretion. Id. A court

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abuses its discretion when its decision is manifestly arbitrary,

unreasonable, or unfair or when it applies an incorrect legal

standard. Allgier, ¶ 43.

C. Condon Was Not Entitled to a Heat of Passion Interrogatory

¶ 70 Condon argues that the trial record contains some credible

evidence to justify including the heat of passion interrogatory in the

jury instruction regarding the lesser included offense of second

degree murder. We disagree.

¶ 71 Second degree murder is a class 2 felony, unless a defendant

proves that his conduct was performed upon a sudden heat of

passion. § 18-3-103(3)(b), C.R.S. 2018. To receive a heat of

passion provocation instruction, the defendant must present some

credible evidence that (1) the offense was performed upon a sudden

heat of passion; (2) the offense was caused by a serious and highly

provoking act of the victim; (3) the provoking act was sufficient to

excite an irresistible passion in a reasonable person; and (4) an

insufficient amount of time passed between the provocation and the

offense for the voice of reason and humanity to be heard. Id.;

Tardif, ¶ 22. “All four elements must find support in the evidence

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before a defendant is entitled to submit the provocation issue to a

jury.” People v. Villarreal, 131 P.3d 1119, 1128 (Colo. App. 2005).

¶ 72 We conclude that the trial evidence was insufficient to entitle

Condon to a heat of passion provocation instruction for two

reasons. See Tardif, ¶ 22.

¶ 73 First, Condon’s messages clearly allege that the provoking act

was performed by the victim’s two brothers, not the intended victim.

See id. Condon argues that the evidence suggests “the beating was

at her behest or because of Condon’s behavior toward her,” but the

record does not support his argument. Condon’s message explicitly

said, “I let her brother box my face,” not “[the victim] let her brother

box [Condon’s] face.” Second, the time that elapsed between

Condon sending the first message and the victim calling out from

work the following morning indicates that Condon did not strangle

the victim in “a sudden heat of passion,” nor that “an insufficient

amount of time passed for the voice of reason and humanity to be

heard.” Id. So the court did not abuse its discretion by denying

Condon’s tendered interrogatory. See McDonald, ¶ 54.

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VI. Prosecutorial Misconduct

¶ 74 Condon contends that the prosecutor committed misconduct

by misstating the evidence during closing argument. We disagree.

A. Additional Background

¶ 75 At trial, the prosecution offered expert testimony regarding

strangulation. A forensic pathologist testified that when enough

pressure is applied to an individual’s neck, they “will typically go

unresponsive within seconds.” Once unresponsive, so long as

pressure is continually applied, “that individual will pass into

what’s called the point of no return.” That means that “once the

pressure is released from the neck, that person . . . would need

some sort of medical intervention in order to be resuscitated.” The

pathologist conceded that one cannot say for certain how long

pressure need be applied for the average person to reach the point

of no return, but he estimated it could take “five, [thirty], [or sixty]

seconds” of continuous pressure after the individual becomes

unresponsive.

¶ 76 During closing argument, the prosecutor explained that on

December 8, the victim estimated that Condon strangled her for

approximately twenty seconds but that she did not recall becoming

35
unresponsive. The prosecutor then recounted the pathologist’s

testimony, arguing that it can take “somewhere between [thirty]

seconds to a minute for a person to reach the point of no return.”

Condon’s counsel objected that the prosecutor’s argument was a

“[m]isstatement of the evidence.” The court permitted the

prosecutor to continue but advised “the jury to rely on their

collective memory during deliberations regarding the testimony

presented.”

¶ 77 The prosecutor concluded by arguing that, if the victim did not

become unresponsive after twenty seconds of strangulation, “let’s

say [it is] [thirty] seconds . . . until she goes unconscious. [And]

[a]nother thirty seconds to a minute until she reaches the point of

no return . . . . That’s at least a minute and [thirty seconds] with

his hands wrapped around her throat.” The prosecutor

supplemented her argument with a PowerPoint slide.

B. Standard of Review and Applicable Law

¶ 78 We engage in a two-step analysis when reviewing prosecutorial

misconduct claims. Wend v. People, 235 P.3d 1089, 1096 (Colo.

2010). First, we examine whether the prosecutor’s conduct was

improper based on the totality of the circumstances. Id. If

36
improper, we determine whether that conduct warrants reversal

according to the proper standard of review. Id.

¶ 79 A prosecutor may comment on the evidence admitted and the

reasonable inferences that can be drawn therefrom. People v.

McMinn, 2013 COA 94, ¶ 61. But a prosecutor may not misstate or

misinterpret the law or refer to facts not in evidence. Id. at ¶ 62.

Arguments delivered in the heat of trial are not always perfectly

scripted, so we grant prosecutors the benefit of the doubt when

their remarks are ambiguous or simply inartful. Id. at ¶ 60. When

reviewing whether a prosecutor committed misconduct during

closing argument, we also give prosecutors wide latitude in the

language and style they employ and in replying to opposing

counsel’s argument. Id.

C. The Prosecutor’s Statements During Closing Argument Were
Not Misconduct

¶ 80 Condon next contends that the prosecutor repeatedly

misstated the pathologist’s testimony regarding the time required to

strangle someone to the point of no return. He argues that the

pathologist testified one could become unconscious within seconds

of pressure being applied to the neck but that he could not give an

37
estimate of the time it takes to strangle someone to the point of no

return. Based on this testimony, Condon argues that “the

prosecutor’s thirty- to sixty-second timeframe was wrong and a

misstatement of the evidence.” We are not convinced.

¶ 81 Granted, the pathologist’s testimony did not provide a precise

time estimate for one to reach the point of no return after becoming

unresponsive. But in the end, he testified that it could take

anywhere from “five, [thirty], [or sixty] seconds” to reach the point of

no return. Thus, considering the pathologist’s testimony and the

victim’s statement about the altercation on December 8, the

prosecutor reasonably inferred that if (1) the victim became

unresponsive after thirty seconds of Condon applying pressure to

her neck, and (2) it took another thirty to sixty seconds of pressure

for the victim to reach the point of no return, then Condon may

have strangled the victim for a total of sixty to ninety seconds on

the morning that she died.

¶ 82 So we conclude that the prosecutor’s theory constituted a

reasonable inference based on the trial evidence. See Domingo-

Gomez v. People, 125 P.3d 1043, 1049 (Colo. 2005) (“The prosecutor

should not intentionally misstate the evidence or mislead the jury

38
as to the inferences it may draw.” (quoting A.B.A. Standards for

Crim. Just.: Prosecution Function & Defense Function § 3-5.8(a)

(3d ed. 1993))) And based on the totality of the circumstances, we

perceive no misconduct. See Wend, 235 P.3d at 1096.

VII. Cumulative Error

¶ 83 Finally, Condon argues that reversal is warranted under the

cumulative error doctrine. To reverse based on cumulative error,

we “must identify multiple errors that collectively prejudice the

substantial rights of the defendant, even if any single error does

not.” Howard-Walker v. People, 2019 CO 69, ¶ 25.

¶ 84 We need not conduct a cumulative error analysis because we

have concluded that the district court did not err. See People v.

Conyac, 2014 COA 8M, ¶ 152 (“The doctrine of cumulative error

requires that numerous errors be committed, not merely alleged.”).

VIII. Disposition

¶ 85 We affirm the judgment of conviction.

JUDGE FOX and JUDGE MEIRINK concur.

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