Peo v. Ramirez-Pantoja

23CA1043 Peo v Ramirez-Pantoja 12-24-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1043
El Paso County District Court No. 22CR3220
Honorable William B. Bain, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jonathan Ramirez-Pantoja,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE GOMEZ
Welling and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 24, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Daniel J. Sequeira, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Jonathan Ramirez-Pantoja, appeals the judgment

of conviction entered after a jury found him guilty of felony

menacing and prohibited use of a weapon (reckless or negligent

discharge). He contends that (1) the prosecution failed to present

sufficient evidence to disprove his claim of self-defense, (2) the trial

court reversibly erred by instructing the jury on exceptions to self-

defense, (3) the trial court erred by denying his motion to suppress

portions of officers’ body camera footage, (4) the trial court erred by

denying his motion to suppress the victim’s identification of him,

and (5) the cumulative effect of these errors requires reversal.

¶2 We disagree with Ramirez-Pantoja’s first contention. We agree

with his second contention, however, and accordingly reverse the

judgment and remand the case for a new trial. We also address the

third and fourth contentions as they are likely to arise on remand.

Because of our disposition, we don’t address the cumulative error

contention.

I. Background

¶3 This case arises from a confrontation between Ramirez-Pantoja

and the alleged victim, William Hooper.

1
¶4 Late one night, Ramirez-Pantoja was walking down a drainage

culvert next to Hooper’s apartment building. Armed with a

flashlight, a knife, pepper spray, and his unleashed dog, Hooper

went down to confront Ramirez-Pantoja. Hooper told Ramirez-

Pantoja that he was trespassing and needed to leave. Ramirez-

Pantoja turned around and started backing up while holding his

hands in the air.

¶5 All the while, Hooper’s dog was barking at Ramirez-Pantoja,

and Hooper continued to follow Ramirez-Pantoja back toward the

street, telling him to leave. Once in the street, Hooper continued to

tell Ramirez-Pantoja to leave. Ramirez-Pantoja then pulled out a

gun and fired a few shots in the air, including one in the direction

of Hooper’s dog that had followed him into the street. Neither

Hooper nor his dog were injured. Hooper returned to his apartment

and called 911.

¶6 After initially leaving the scene, Ramirez-Pantoja was found,

arrested, and charged with felony menacing and prohibited use of a

weapon. His theory of defense at trial was that he reasonably acted

in self-defense based on a belief that Hooper was using or about to

2
use unlawful physical force against him. The jury rejected that

defense and found him guilty as charged.

II. Sufficiency of the Evidence

¶7 Ramirez-Pantoja contends that the prosecution presented

insufficient evidence to support his convictions — specifically, to

disprove his assertion of self-defense. We disagree.

A. Relevant Legal Principles

¶8 We review claims challenging the sufficiency of evidence

de novo, determining whether the evidence presented was sufficient

in both quantity and quality to support the defendant’s conviction.

McCoy v. People, 2019 CO 44, ¶ 63. In doing so, we assess whether

the evidence, viewed in the light most favorable to the prosecution,

supports a reasonable conclusion that the defendant is guilty

beyond a reasonable doubt. People v. Wright, 2021 COA 106, ¶ 29.

¶9 However, “we ‘may not serve as a thirteenth juror’ by

considering whether we ‘might have reached a different conclusion

than the jury.’” Thomas v. People, 2021 CO 84, ¶ 10 (quoting

People v. Harrison, 2020 CO 57, ¶ 33). Thus, we will disturb the

verdict only if, despite drawing every reasonable inference in favor

of the prosecution, the record is unsubstantial and insufficient to

3
support a guilty verdict beyond a reasonable doubt. Clark v. People,

232 P.3d 1287, 1291-92 (Colo. 2010).

¶ 10 Again, the two charges Ramirez-Pantoja was convicted of in

this case were felony menacing and prohibited use of a weapon. As

relevant here, a person commits felony menacing “if, by any threat

or physical action, [they] knowingly place[] or attempt[] to place

another person in fear of imminent serious bodily injury . . . by the

use of a firearm.” § 18-3-206, C.R.S. 2025. And, as relevant here,

a person commits prohibited use of a weapon if they “[r]ecklessly or

with criminal negligence . . . discharge[] a firearm. § 18-12-

106(1)(b), C.R.S. 2025.

¶ 11 Self-defense in defense of a person is governed by section

18-1-704(1), C.R.S. 2025, which provides, as relevant here, that “a

person is justified in using physical force upon another” to defend

themself from what they “reasonably believe[] to be the use or

imminent use of unlawful physical force by that other person” and

“may use a degree of force which [they] reasonably believe[] to be

necessary for that purpose.” § 18-1-704(1). Self-defense thus

requires both that (1) the defendant used physical force to defend

themself from what they reasonably believed to be the use or

4
imminent use of unlawful physical force by another person and

(2) the defendant used a degree of force that they reasonably

believed to be necessary for that purpose. People v. Mosely, 2021

CO 41, ¶ 18. A jury may reject a claim of self-defense if it finds that

either of these two requirements is not satisfied or if it finds that an

exception to self-defense applies. See id.

¶ 12 When a defendant properly raises self-defense with respect to

an offense requiring intentional or knowing conduct, self-defense is

an affirmative defense, meaning that it becomes an additional

element of the charged offense that the prosecution must disprove

beyond a reasonable doubt. Roberts v. People, 2017 CO 76, ¶ 22;

People v. Gray, 2025 COA 23, ¶ 25. But when a defendant raises

self-defense with respect to an offense requiring reckless or

criminally negligent conduct, self-defense is not an affirmative

defense; instead, it is a traverse that negates the required mental

state because acting recklessly or criminally negligently is

inconsistent with acting justifiably in self-defense. People v.

Pickering, 276 P.3d 553, 556 (Colo. 2011); People v. Luna, 2020

COA 123M, ¶¶ 10-11; see also § 18-1-501(3), (8), C.R.S. 2025

5
(defining “[c]riminal negligence” and “[r]ecklessly”); § 18-1-704(1)

(establishing the requirements for self-defense).1

B. Application

¶ 13 We conclude that the prosecution presented sufficient

evidence to disprove Ramirez-Pantoja’s assertion of self-defense,

even setting aside the exceptions to self-defense on which the jury

was instructed. In particular, the following evidence, viewed in the

light most favorable to the prosecution, supports the jury’s rejection

of self-defense:

• Hooper testified and surveillance video showed that

Ramirez-Pantoja fired a gun in the air a few times,

including once in the direction of Hooper’s dog.

1 The People assert that the sufficiency of the evidence challenge

“can apply only as to the felony menacing conviction (to which self-
defense was an affirmative defense) and not to the prohibited use of
a weapon conviction (to which self-defense was a traverse).” We
needn’t decide this issue because even if Ramirez-Pantoja properly
challenges the prohibited use of a weapon conviction, we conclude
that the prosecution presented sufficient evidence to support his
conviction on that charge.

6
• The video shows that Hooper turned and started running

away after Ramirez-Pantoja fired one of the shots, but

Ramirez-Pantoja continued to fire at least one more shot.

• Hooper testified that Ramirez-Pantoja turned toward him

while firing the last shot and said, “I’m going to fucking

kill you, bro.”

¶ 14 Even if we were to assume, based on the evidence Ramirez-

Pantoja cites, that he reasonably feared Hooper was using or about

to use unlawful physical force against him, the evidence supports a

finding that he used an unreasonable degree of force in response by

shooting a gun a few times, shooting toward Hooper’s dog,

continuing to shoot even after Hooper ran away, and threatening to

kill Hooper when he fired his last shot. See Mosely, ¶ 18.

Accordingly, the evidence was sufficient to support the jury’s

rejection of Ramirez-Pantoja’s claim of self-defense.

III. Self-Defense Jury Instructions

¶ 15 Ramirez-Pantoja also contends that the trial court reversibly

erred by (1) instructing the jury on the provocation exception to

self-defense for the felony menacing charge and (2) instructing the

7
jury on the provocation and initial aggressor exceptions to self-

defense for the prohibited use of a weapon charge.

¶ 16 The People concede that it was erroneous for the trial court to

instruct the jury on these exceptions to self-defense. Accordingly,

we review only the harmfulness of the error. We conclude that the

court’s error in instructing the jury on the provocation exception

was not harmless and, therefore, we reverse both of Ramirez-

Pantoja’s convictions. Based on this disposition, we don’t address

Ramirez-Pantoja’s contention about the initial aggressor exception.

A. Additional Facts

¶ 17 Over the defense’s objection, the trial court instructed the jury

on the provocation exception to self-defense.

¶ 18 As to the felony menacing charge, the self-defense instruction

given to the jury included the following language:

The defendant was legally authorized to use
physical force upon another person without
first retreating if:

1. he used that physical force in order to
defend himself from what he reasonably
believed to be the use or imminent use of
unlawful physical force by that other
person, and

8
2. he used a degree of force which he
reasonably believed to be necessary for
that purpose, and

3. he did not, with intent to cause bodily
injury or death to another person, provoke
the use of unlawful physical force by that
other person.

The prosecution has the burden to prove,
beyond a reasonable doubt, that the
defendant’s conduct was not legally authorized
by this defense. In order to meet this burden of
proof, the prosecution must disprove, beyond a
reasonable doubt, at least one of the above
numbered conditions.

(Emphases added.)

¶ 19 As to the prohibited use of a weapon charge, the self-defense

instruction included the following language:

[A] person is not justified in using physical
force if . . . [,] with intent to cause bodily injury
or death to another person, he provokes the
use of unlawful physical force by that other
person . . . .

¶ 20 In closing argument, as the prosecutor was outlining the

evidence in support of the felony menacing charge, he repeatedly

argued that Ramirez-Pantoja had been trespassing when walking

along the culvert. Soon thereafter, the prosecutor turned to the

self-defense instruction for felony menacing, pointed out that the

prosecution only had to disprove one of the three listed conditions,

9
and went through those conditions. As to the third condition — the

provocation exception — he argued that “the defendant’s actions did

provoke Mr. Hooper to come down and ask him to leave.”

B. Relevant Legal Principles

¶ 21 A trial court has a duty to correctly instruct the jury on all

matters of law for which there is sufficient evidence to support

giving instructions. People v. Knapp, 2020 COA 107, ¶ 20.

However, a court shouldn’t instruct the jury “on abstract principles

of law unrelated to the issues in controversy, nor . . . on doctrines

or principles which are based upon fanciful interpretations of the

facts unsupported by the record.” Castillo v. People, 2018 CO 62,

¶ 34 (alteration in original) (quoting People v. Alexander, 663 P.2d

1024, 1032 (Colo. 1983)). Thus, a trial court must determine

whether there is sufficient evidence to warrant a jury instruction as

to a defense and any exceptions to that defense. Id.

¶ 22 Under the provocation exception to self-defense, a defendant is

“not justified in using physical force” against another person if the

defendant, “[w]ith intent to cause bodily injury or death to another

person, . . . provokes the use of unlawful physical force by that

other person.” § 18-1-704(3)(a).

10
¶ 23 When a court instructs the jury on an exception to self-

defense, that exception must be “supported by some evidence.”

Galvan v. People, 2020 CO 82, ¶ 25. Accordingly, a provocation

instruction should be given only if there is evidence that (1) self-

defense is at issue in the case, (2) the victim made an initial attack

on the defendant, and (3) the defendant’s conduct or words were

intended to cause the victim to make the attack and provide a

pretext for injuring the victim. Knapp, ¶ 23; see also People v. Silva,

987 P.2d 909, 914 (Colo. App. 1999) (“In order to warrant the giving

of [a provocation] instruction, the prosecution has the burden of

establishing that the defendant intended to harm the victim and

that he or she intended the provocation to goad the victim into

attacking him or her as a pretext for injuring or killing the victim.”).

¶ 24 We review de novo whether there was sufficient evidence to

support an instruction. Castillo, ¶ 32; Knapp, ¶ 21. “In doing so,

we view the evidence in the light most favorable to giving the

instruction.” Knapp, ¶ 21.

¶ 25 We review preserved nonconstitutional trial errors — like the

giving of an erroneous jury instruction — for harmless error.

Castillo, ¶ 56. Under this standard, reversal is required if the error

11
affected the parties’ substantial rights, meaning “the error

‘substantially influenced the verdict or affected the fairness of the

trial proceedings.’” Hagos v. People, 2012 CO 63, ¶ 12 (quoting

Tevlin v. People, 715 P.2d 338, 342 (Colo. 1986)).

C. Application

¶ 26 Because the People concede that it was error for the trial court

to instruct the jury on the provocation exception to self-defense, we

don’t address whether there was sufficient evidence to support such

an instruction. Instead, we presume that neither the evidence of an

alleged trespass nor any of the other evidence at trial was sufficient

to support such an instruction.

¶ 27 We conclude that the instructional error was not harmless as

to either the felony menacing charge or the prohibited use of a

weapon charge because we cannot say that the error in giving the

instructions didn’t substantially influence both verdicts or affect the

fairness of the trial proceedings.

¶ 28 Our supreme court has warned that “superfluous instructions

limiting self-defense may be prejudicial.” Castillo, ¶ 61. For

instance, “there can be prejudice from unsupported instructions

because the jury is likely to try to fit facts into an erroneously given

12
instruction.” Id. The supreme court has further warned that

“errors regarding jury instructions can be ‘exacerbated by the

prosecution’s misleading comments during its closing argument.’”

Id. at ¶ 60 (quoting People v. Garcia, 28 P.3d 340, 346 (Colo. 2001)).

¶ 29 Such is the case here. The error in instructing the jury on the

provocation exception was exacerbated by the prosecutor’s repeated

references in closing argument to Ramirez-Pantoja’s alleged

trespassing, followed shortly thereafter by an argument that the

provocation exception applied because Ramirez-Pantoja’s actions

“did provoke Mr. Hooper to come down and ask him to leave.”

Given the repeated references to trespassing and the fact that there

was no evidence of any other statements or conduct by Ramirez-

Pantoja that may have led Hooper to “come down and ask him to

leave,” the prosecutor’s argument essentially asked the jury to find

that Ramirez-Pantoja had trespassed and thereby provoked Hooper

to confront him within the meaning of the provocation exception.

And “[t]his [argument] may have had the effect of focusing the jury

on the erroneous portion of the self-defense instruction.” People v.

Toler, 9 P.3d 341, 354 (Colo. 2000).

13
¶ 30 Both self-defense instructions required the jury to reject

Ramirez-Pantoja’s claim of self-defense if the provocation exception

applied. As the prosecutor pointed out in his closing argument, the

self-defense instruction for the felony menacing charge provided

that “[i]n order to meet [its] burden of proof, the prosecution must

disprove, beyond a reasonable doubt, at least one of the [three]

numbered conditions.” Two of those conditions related to the two

requirements necessary to justify an act of self-defense. See

Mosely, ¶ 18. The third related to the provocation exception,

requiring the jury to reject Ramirez-Pantoja’s claim of self-defense if

the prosecution disproved that he “did not, with intent to cause

bodily injury or death to another person, provoke the use of

unlawful physical force by that other person.” In other words, the

instruction obligated the jury to reject the claim of self-defense,

regardless of whether the two requirements to justify self-defense

were satisfied, if the prosecution proved that, with intent to cause

bodily injury or death to Hooper, Ramirez-Pantoja provoked

Hooper’s use of unlawful physical force. And the prosecutor’s

argument suggested that the jury do just that, based solely on

Ramirez-Pantoja’s alleged act of trespassing.

14
¶ 31 Similarly, the self-defense instruction for the prohibited use of

a weapon charge provided that Ramirez-Pantoja wasn’t justified in

using physical force if, “with intent to cause bodily injury or death

to another person, he provoke[d] the use of unlawful physical force

by that other person.” Thus, again, regardless of whether the two

requirements to justify self-defense were satisfied, the instruction

obligated the jury to reject Ramirez-Pantoja’s claim of self-defense

if, with intent to cause bodily injury or death to Hooper, he

provoked Hooper’s use of unlawful physical force through his

trespass.

¶ 32 Therefore, as to both claims, we don’t know which basis the

jury used to reject Ramirez-Pantoja’s assertion of self-defense —

whether the jury found that one or both of the requirements to

justify self-defense wasn’t satisfied or whether the jury found that

Ramirez-Pantoja’s alleged trespassing had provoked Hooper to use

unlawful physical force. Given that the latter finding would be

improper, as the People concede, we cannot conclude that the error

was harmless, particularly given that the prosecutor’s closing

argument exacerbated the erroneous provocation instructions. And

we reject the People’s argument that the error is rendered harmless

15
simply because, under the instructions, the provocation exception

would apply only if Ramirez-Pantoja provoked that use of unlawful

physical force with the intent to cause bodily injury or death. Based

on the evidence presented at trial — including, in particular, the

evidence that Ramirez-Pantoja was carrying a gun and that he

would eventually come to shoot that gun a few times and tell

Hooper, “I’m going to fucking kill you, bro” — if the jury found that

Ramirez-Pantoja provoked Hooper by committing trespass, it

further could have found that Ramirez-Pantoja did so with an intent

to cause Hooper bodily injury or death.

¶ 33 Accordingly, we reverse the judgment of conviction on both

charges, and we remand the case for a new trial on those charges.

IV. Suppression of Body Camera Footage

¶ 34 Because it is likely to arise on remand, we next consider

Ramirez-Pantoja’s contention that the trial court erred by denying

his motion to suppress portions of the officers’ body camera footage.

Specifically, he argues that some of his statements shown in the

footage should’ve been excluded because they were obtained in

violation of his rights under Miranda v. Arizona, 384 U.S. 436, 478-

79 (1966), and that other parts of the footage should’ve been

16
excluded as either irrelevant, overly prejudicial, or improper

character evidence. We disagree with both arguments.

A. Additional Facts

¶ 35 At the start of trial, defense counsel moved to suppress

portions of the body camera footage the prosecution intended to use

at trial. After hearing argument from both sides and viewing the

challenged footage, the trial court ruled that portions of the footage

could be admitted at trial.

¶ 36 Ramirez-Pantoja points to three particular parts of the footage

that he claims should have been excluded.

(1) The “flight clip” depicts officers approaching two

individuals from a distance. As the officers tell the

individuals to stay where they are and get on their knees,

one of them turns and starts to run away.

(2) The “arrest clip,” taken about a half hour after Hooper’s

911 call, depicts officers approaching Ramirez-Pantoja

and taking him into custody. Ramirez-Pantoja is yelling,

cursing, and repeatedly using the “n-word” at officers as

they walk up to him and arrest him. He also repeatedly

17
insists he was walking to “court” or to the “corner store”

and asks what he did wrong.

(3) The “transport clip,” taken about two hours after the 911

call, depicts an officer driving Ramirez-Pantoja to the

police station after his arrest. Ramirez-Pantoja is

repeatedly asking the officer why he was arrested,

arguing that his arrest is improper, and talking about the

crime of menacing he’s been told he was arrested for. He

again uses the “n-word” several times.

B. Standard of Review

¶ 37 Trial courts have considerable discretion in ruling on the

admissibility of evidence, and we won’t disturb such rulings absent

an abuse of discretion. People v. Brown, 2022 COA 19, ¶ 57. A

court abuses its discretion when its ruling is manifestly arbitrary,

unreasonable or unfair or reflects an erroneous understanding or

application of the law. Id.

¶ 38 But when a trial court’s evidentiary ruling concerns an

allegation that evidence was obtained in violation of a criminal

defendant’s constitutional rights, it presents a mixed question of

law and fact. See People v. Thompson, 2021 CO 15, ¶ 15. We defer

18
to the trial court’s factual findings if they are supported by the

record, but we review the constitutional implications of those facts

de novo. People v. Sanders, 2023 CO 62, ¶ 10.

C. Miranda Challenge

¶ 39 The United States and Colorado Constitutions both guarantee

individuals the privilege against self-incrimination. U.S. Const.

amend. V; Colo. Const. art. II, § 18; Sanders, ¶ 11. To safeguard

this privilege, statements procured by custodial interrogation are

generally inadmissible unless officers precede their interrogation

with certain warnings. People v. Davis, 2019 CO 84, ¶ 16.

However, these warnings are required “only ‘when a suspect is

subject to both custody and interrogation.’” Id. (quoting Effland v.

People, 240 P.3d 868, 873 (Colo. 2010)).

¶ 40 In this context, “‘[i]nterrogation’ refers to express questioning

by a police officer as well as to ‘words or actions . . . that the officer

“should know are reasonably likely to elicit an incriminating

response from the suspect.”’” People v. Gonzales, 987 P.2d 239,

241 (Colo. 1999) (second alteration in original) (quoting People v.

Trujillo, 784 P.2d 788, 790 (Colo. 1990)). In determining whether a

suspect has been subjected to interrogation, we consider the totality

19
of the circumstances, focusing on “whether the officer reasonably

should have known that [their] words or actions would cause the

suspect to perceive that [they were] being interrogated, and whether

those words or actions, like express questioning, could compel the

defendant to overcome [their] desire to remain silent.” People v.

Madrid, 179 P.3d 1010, 1014 (Colo. 2008).

¶ 41 Ramirez-Pantoja raises a Miranda challenge with respect to

the arrest clip. He asserts that his statements in that clip were

made while he was subjected to custodial interrogation and before

he was given Miranda warnings.

¶ 42 We disagree with Ramirez-Pantoja’s assertion that he was

subjected to interrogation at the time he made the statements in

the arrest clip. The clip shows officers taking Ramirez-Pantoja into

custody and one officer in particular getting him into a police car.

The officer asks very few questions and makes very few statements

likely to elicit a response at all, let alone an incriminating response.

Those few questions and statements are along the lines of asking

Ramirez-Pantoja — who is repeatedly talking, cursing, and asking

what he did wrong — if he “want[s] to hear why this is happening,”

explaining that Ramirez-Pantoja matched the description of the

20
suspect in a shooting in the area and ran off when he was first

approached, and asking Ramirez-Pantoja if he thought that was

“suspicious.” Ramirez-Pantoja answers only that he “want[s] to

hear” why he is being detained and that the conduct is suspicious

“to an extent.” Notably, the officer doesn’t ask him what he’d been

doing that night, whether he’d shot a gun, or even why he’d run

from officers when initially approached.

¶ 43 Because Ramirez-Pantoja wasn’t subject to custodial

interrogation, Miranda doesn’t apply to the statements in the arrest

clip. Accordingly, the trial court didn’t err by declining to exclude

the statements on Miranda grounds.

D. Other Evidentiary Challenges

¶ 44 The Colorado Rules of Evidence favor the admissibility of

relevant evidence unless it is prohibited by the constitution, a

statute, or a rule. People v. Hood, 2024 COA 27, ¶ 19; CRE 402. In

criminal cases, evidence is relevant if the evidence makes it more or

less probable that the charged criminal act occurred, the defendant

committed the act, or the defendant acted with the necessary

criminal intent. People v. Clark, 2015 COA 44, ¶ 17; CRE 401. Yet

even relevant evidence “may be excluded if its probative value is

21
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.” CRE 403.

¶ 45 Moreover, under CRE 404(b), evidence of other acts committed

by the defendant is admissible only in limited circumstances where

it relates to a material fact, is logically relevant, has a logical

relevance independent of the prohibited intermediate inference that

the defendant has a bad character and committed the crime

charged in conformity with that bad character, and has a probative

value that is not substantially outweighed by the danger of unfair

prejudice. People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990);

People v. Vasquez, 2022 COA 100, ¶ 75. However, these limitations

don’t apply if the evidence is intrinsic — that is, it is part of the

charged offense, is offered as direct evidence of the charged offense,

or was performed contemporaneously with the charged offense and

facilitated the commission of that offense. Rojas v. People, 2022 CO

8, ¶¶ 44-45.

22
¶ 46 We conclude that the trial court acted within its discretion in

overruling Ramirez-Pantoja’s objections and admitting the three

challenged video clips into evidence.

¶ 47 As to the flight clip, Ramirez-Pantoja argues only that it has

“limited probative value.” But it was within the trial court’s

discretion to conclude that the clip is relevant because it indicates

that someone — later identified as Ramirez-Pantoja — was near the

area of the incident and fled when approached by officers. Evidence

of flight may be relevant to show consciousness of guilt. See People

v. Gee, 2015 COA 151, ¶ 26.

¶ 48 As to the arrest clip, Ramirez-Pantoja argues that it is

irrelevant and overly prejudicial. But it was within the trial court’s

discretion to conclude that this clip, taken about thirty minutes

after Hooper’s 911 call, is relevant to show “the demeanor of the

defendant” not long after the charged offenses, as it is “probative

. . . of his state of mind from earlier in the evening during his

interaction with Mr. Hooper.” Likewise, it was within the court’s

discretion to conclude that the danger of unfair prejudice is not “all

that great,” particularly when compared to the probative value of

the evidence.

23
¶ 49 As to the transport clip, Ramirez-Pantoja argues that it is

irrelevant, is overly prejudicial, and constitutes improper character

evidence. But, again, it was within the trial court’s discretion to

conclude that the clip is relevant because Ramirez-Pantoja’s

statements roughly two hours after the 911 call about what he was

being charged with and about the crime of menacing “are generally

probative of [his] state of mind from earlier in the evening.” It was

also within the court’s discretion to conclude that any danger of

unfair prejudice doesn’t “substantially outweigh[] the probative

value of the statements.” Notably, the court admitted the first part

of the transport clip but excluded the part after the five-minute

mark due to concerns about unfair prejudice at the point when

Ramirez-Pantoja “becomes especially belligerent with the police

officer.” Likewise, it was within the court’s discretion to conclude

that the statements in the transport clip don’t constitute character

evidence subject to CRE 404(b) “since the discussion is about what

[Ramirez-Pantoja] has been . . . arrested for” and, thus, is intrinsic

to the charged offenses. See Rojas, ¶¶ 44-45.

¶ 50 Finally, to the extent that Ramirez-Pantoja expresses concern

about any prejudice resulting from his use of the “n-word” in the

24
clips, defense counsel could have requested redaction of those slurs

and is free to do so on remand.

V. Suppression of Hooper’s Identification

¶ 51 We also consider, as another issue likely to arise on remand,

Ramirez-Pantoja’s contention that the trial court erred by denying

his motion to suppress Hooper’s out-of-court identification and

subsequent in-court identification as impermissibly suggestive. We

aren’t persuaded.

A. Additional Facts

¶ 52 When Hooper called 911 after the incident, he described the

shooter as a Hispanic male, about twenty years old, with short dark

hair and minimal facial hair, and about five-foot-five or five-foot-six

inches tall and 120 pounds. He also reported that the shooter was

wearing a black t-shirt, light-colored plaid shorts, and white tennis

shoes.

¶ 53 When officers found Ramirez-Pantoja, they determined that he

matched Hooper’s physical description. But when officers detained

Ramirez-Pantoja, he was wearing orange shorts with a stripe on the

side, not plaid shorts.

25
¶ 54 About an hour and twenty minutes after officers arrived on the

scene, once Ramirez-Pantoja had been identified as a possible

suspect and Hooper had indicated that he thought he could identify

the shooter, officers conducted a showup. Beforehand, an officer

read Hooper a department-issued advisement that warns witnesses

against making an illegitimate identification.

¶ 55 An officer then drove Hooper to the area where Ramirez-

Pantoja had been detained. Hooper rode in the back of a police car

as it drove past Ramirez-Pantoja with the windows rolled up.

Ramirez-Pantoja stood handcuffed next to a police car with multiple

officers standing nearby. It was still nighttime, and the only

sources of light were streetlights and headlights from officers’ cars.

¶ 56 After the showup, Hooper said he was one hundred percent

sure that Ramirez-Pantoja was the shooter.

¶ 57 Before trial, Ramirez-Pantoja moved to suppress Hooper’s out-

of-court identification and exclude any later in-court identification

on the grounds that the initial identification was impermissibly

suggestive and unreliable. After a hearing, the trial court denied

the motion, reasoning that while the officers did “things that are

impermissibl[y] suggestive,” “the test is whether there is a

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substantial likelihood of irreparable misidentification based on the

totality of the circumstances and here, I don’t find such a

substantial likelihood.” The court particularly relied on the “pretty

detailed description of the suspect, the matching of the description

to the defendant, and the reporting party saying he’s not pretty

certain, he’s 100% certain that’s the guy.”

B. Relevant Legal Principles

¶ 58 We review the constitutionality of a pretrial identification

procedure as a mixed question of law and fact. People v. Singley,

2015 COA 78M, ¶ 9. We defer to the court’s findings of fact, but we

may give different weight to those facts and reach different legal

conclusions. People v. Theus-Roberts, 2015 COA 32, ¶ 7.

¶ 59 A defendant’s right to due process is violated if an out-of-court

identification is so impermissibly suggestive and unreliable as to

“give rise to a very substantial likelihood of irreparable

misidentification.” Bernal v. People, 44 P.3d 184, 191 (Colo. 2002)

(quoting Simmons v. United States, 390 U.S. 377, 384 (1968)).

¶ 60 One-on-one show-up identifications, like the one in this case,

“are not per se violative of due process, although the procedure is

viewed with disfavor because of its strong potential for unnecessary

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suggestiveness.” People v. Jaquez, 2018 COA 76, ¶ 51 (quoting

Theus-Roberts, ¶ 8). “Suggestive confrontations are disapproved

because they increase the likelihood of misidentification, and

unnecessarily suggestive ones are condemned for the further reason

that the increased chance of misidentification is gratuitous.” Neil v.

Biggers, 409 U.S. 188, 198 (1972).

¶ 61 Courts engage in a two-part analysis to determine whether an

out-of-court identification violates a defendant’s right to due

process. Id. First, the defendant must prove that the identification

was impermissibly suggestive. Id. If the defendant doesn’t meet

this burden, then the inquiry ends there and the identification is

admissible. Id.; People v. Shanks, 2019 COA 160, ¶ 45.

¶ 62 If, however, the defense satisfies its burden, then, under the

second step of the analysis, the burden shifts to the prosecution to

establish that, “despite the improper suggestiveness, the

identification was nevertheless reliable under the ‘totality of the

circumstances.’” Bernal, 44 P.3d at 191 (quoting Manson v.

Brathwaite, 432 U.S. 98, 114 (1977)). This step includes a

consideration of the following factors: (1) the witness’s opportunity

to view the criminal at the time of the crime; (2) the witness’s degree

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of attention; (3) the accuracy of the witness’s prior description of the

criminal; (4) the witness’s level of certainty; and (5) the length of

time between the crime and the identification. People v. McCants,

2021 COA 138, ¶ 17.

C. Application

¶ 63 We conclude that the trial court didn’t err by denying Ramirez-

Pantoja’s motion to suppress Hooper’s out-of-court identification

and exclude any later in-court identification because, even if the

showup was impermissibly suggestive, it was nevertheless reliable.

¶ 64 Considering the relevant factors, Hooper’s identification of

Ramirez-Pantoja at the showup was reliable based on the following

facts:

• Hooper was in close proximity with the shooter for

several minutes and had ample opportunity to view him

during their confrontation, despite it being dark outside.

• During their interaction, Hooper’s attention was focused

on the shooter and getting him to leave the property.

Indeed, the amount of detail in the description he

provided to officers demonstrates that he sufficiently

observed and was focused on the shooter.

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• The detailed physical description Hooper he gave officers

matched Ramirez-Pantoja, even though the shorts

Hooper described were slightly different than those

Ramirez-Pantoja was wearing.

• Hooper said he was one hundred percent certain that

Ramirez-Pantoja was the shooter.

• The showup occurred about an hour and a half after the

incident.

See id.

¶ 65 Accordingly, Hooper’s out-of-court identification of Ramirez-

Pantoja at the showup was reliable under the totality of the

circumstances, and the trial court didn’t err by declining to

suppress it. Likewise, the trial court didn’t err by declining to

suppress Hooper’s later in-court identification.

VI. Disposition

¶ 66 The judgment is reversed, and the case is remanded for a new

trial.

JUDGE WELLING and JUDGE SULLIVAN concur.

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