Peo v. Simpson

22CA0465 Peo v Simpson 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0465
El Paso County District Court No. 20CR2604
Honorable Frances Johnson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Laurence William Simpson,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE FOX
Kuhn and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced April 16, 2026

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

Megan A. Ring, Colorado State Public Defender, Emily Hessler, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Laurence William Simpson, appeals his convictions

for attempted first degree murder and child abuse. We affirm.

I. Background

¶2 In the spring of 2019, Simpson, a Pennsylvania resident,

planned a summer trip to Colorado Springs with his ten-year-old

twins, C.S. and D.S. Two years earlier, Simpson had separated

from his wife and the twins’ mother, A.D. Before the vacation,

Simpson discussed his plans with A.D. and told her he intended to

fly to Colorado and rent a car for the return trip. On June 7, 2019,

Simpson and the children flew to Colorado. During the trip, he sent

A.D. regular updates.

¶3 Near the end of the trip, Simpson made “milkshakes” using ice

cream, Gatorade, and strawberries. But they tasted bad, and the

children refused to drink them. C.S. only took a sip, and D.S.

testified that he drank “one to two ounces.” At trial in 2021, the

children vaguely remembered Simpson telling them to finish the

shakes. D.S. testified that he was able to drink a bit more after

Simpson added more ice cream. C.S. was less certain that there

had been a second or “improved” shake. Ultimately, Simpson or the

children poured the shakes out.

1
¶4 D.S. testified that Simpson then gave him and C.S. “vitamins

or pills,” but he did not know what the pills were. D.S. swallowed

one pill but spit the rest out. C.S. did not testify about the pills.

The children testified that they felt normal that evening and the

next day.

¶5 At around 2:45 a.m. on June 13, 2019, Simpson called A.D. in

“total despair.” Simpson shared that he had quit his job after

telling his boss he was terminally ill, had no money because he

spent it on the trip and had “racked up credit card debt,” and he

did not know how to get himself and the children home. A.D. then

arranged return flights, and Simpson and the children arrived after

midnight on June 14.

¶6 Later that day, Simpson — hyperventilating and in tears —

called his friend B.M. B.M. testified that Simpson said, “[H]e gave

up” and “dissolved pain medicine in the kids’ shakes.” B.M. also

recalled Simpson saying that after the children refused to drink the

shakes, Simpson grabbed the shakes and “kind of snapped to it and

got the shakes and dumped them.” B.M. later told A.D. what

Simpson had said, and A.D. called the police.

2
¶7 A.D. took the children to get blood tests, which were negative

for drugs. Police also tested residue from the blender Simpson used

to make the shakes, which similarly yielded negative results. Test

results from red stains found on C.S.’s sweatshirt also proved

fruitless.

¶8 Simpson was charged with four counts of attempted first

degree murder (two counts per child under alternate theories) and

two counts of child abuse. § 18-3-102(1)(a), (1)(f), C.R.S. 2025 (first

degree murder); § 18-2-101(1), C.R.S. 2025 (attempt); § 18-6-

401(1)(a), (7)(b)(I), C.R.S. 2025 (child abuse). The jury convicted

him as charged.

II. Sufficiency

¶9 Simpson first argues that the prosecution introduced

insufficient evidence to support his convictions for attempted first

degree murder. We disagree.

A. Standard of Review and Applicable Law

¶ 10 We review the record de novo to determine whether the

evidence “was sufficient in both quantity and quality to sustain a

defendant’s conviction.” McCoy v. People, 2019 CO 44, ¶ 63. It is

the prosecution’s burden to establish a prima facie case of guilt. Id.

3
“We consider ‘whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt.’” Id. (citation omitted).

¶ 11 “A verdict cannot rest on guessing, speculation, conjecture, or

a mere modicum of relevant evidence.” McBride v. People, 2022 CO

30, ¶ 38. But sufficient and substantial evidence “can be either

direct or circumstantial.” People v. Daniels, 240 P.3d 409, 410

(Colo. App. 2009) (emphasis added).

¶ 12 A person commits first degree murder if, “[a]fter deliberation

and with the intent to cause the death of a person other than

himself, he causes the death of that person.” § 18-3-102(1)(a). A

person also commits first degree murder by “knowingly caus[ing]

the death of a child who has not yet attained twelve years of age

and the person committing the offense is one in a position of trust

with respect to the victim.” § 18-3-102(1)(f). For attempted first

degree murder, one must “act[] with the kind of culpability

otherwise required for the commission of first degree murder” and

“engage[] in conduct constituting a substantial step toward the

4
commission of the offense.” People v. Harmon, 2025 COA 38M, ¶ 23

(cert. granted in part Mar. 30, 2026). “A substantial step is any

conduct, whether act, omission, or possession, that is strongly

corroborative of the firmness of the actor’s purpose to complete the

commission of the offense.” Id.

B. Analysis

¶ 13 Consistent with his position at trial, Simpson emphasizes that

there was insufficient evidence that he took a substantial step

toward first degree murder because there was no forensic evidence,

and his conviction rested largely on his alleged confession to B.M.

He also contends that the evidence was insufficient to prove that he

acted with the requisite intent to cause the children’s deaths.

¶ 14 Katherine Brown, a forensic scientist for the Colorado Bureau

of Investigation, testified about the forensic evidence. As to the

blender, she explained that “there wasn’t any visible residue,” but

she tested a “pink, red tinge that kind of stained the blender.”

Although the motel owner had not washed the blender after

Simpson returned it, she had been using it to water plants. Brown

explained that this could have “affected [the] chances of finding any

controlled substances in the blender.” And she explained that it

5
can be difficult to accurately detect substances that have been

diluted in or mixed with other substances. Brown also testified that

she “would have been very shocked” if the sweatshirt stain yielded a

positive result for controlled substances given the stain’s size and

saturation. Thus, Brown’s testimony provided a plausible

explanation for why — even if there was pain medication in the

shakes — it would not be readily detectible.

¶ 15 And despite the lack of forensic evidence, there was other

evidence of Simpson’s guilt. For one, B.M. testified to Simpson’s

confession. Although B.M. initially told police that Simpson said he

was going to dissolve pain medicine in the shakes, B.M. testified

that Simpson corrected himself. See People v. Poe, 2012 COA 166,

¶ 14 (it is the jury’s role, not ours, to weigh the credibility of

witnesses).

¶ 16 Moreover, contrary to Simpson’s contention, his confession to

B.M. was not the only evidence of guilt. For example, there was

circumstantial evidence that Simpson did not plan to return from

Colorado. B.M. and A.D. testified that Simpson said he quit his job

before the trip, citing an unspecified terminal illness, and that he

spent most of his money on the trip. They also testified to

6
Simpson’s extremely distraught emotional state during and after

the trip. Additionally, Simpson booked one-way tickets to Colorado

without a clear return plan; although he told A.D. he had rented a

car to drive home, A.D.’s testimony suggested that Simpson initially

made a rental car reservation that did not include a Philadelphia

drop off.

¶ 17 The prosecution’s “one way trip” theory was further

corroborated by a letter from Simpson to A.D.’s sister, C.F., sent on

June 12, 2019, while Simpson was in Colorado. Simpson wrote,

“I will not have your sister keep my twins away from me. . . . Your

sister has broken me and destroyed our family. [C.S] and [D.S.] are

staying with me forever.” The letter then said that Simpson had

sold everything, that he was financially destitute, and that it was

“going to be a one-way trip for the three of us. . . . You have no idea

how much I’m suffering.”

¶ 18 Next, as discussed below, Simpson’s confession about putting

pain medicine in the shakes was corroborated by evidence that he

used pain medication and had twice attempted suicide (once by

overdosing on pills). See People v. Steiner, 640 P.2d 250, 252 (Colo.

App. 1981) (absent chemical testing, circumstantial evidence is

7
sufficient to prove that a substance is a particular drug). We reject

his contention that the prosecution had to establish the amount of

pain medication in the shakes or what amount could be lethal. See

People v. Krovarz, 697 P.2d 378, 381 (Colo. 1985) (Liability for

criminal attempt “rests primarily upon the actor’s purpose to cause

harmful consequences,” not whether he “engaged in the harmful

conduct or . . . achieved the harmful result.”); United States v.

Williams, 718 F. App’x 890, 893 n.2 (11th Cir. 2017) (“The

important factor in proving attempt is the defendant’s intent . . . ,

not whether the underlying crime was actually possible.”). And

Simpson provides no explanation for why he would drug his

children for a reason other than to kill them.

¶ 19 The day he left for Colorado, Simpson also sent letters or

“packets” to families at his children’s school. The letters disparaged

A.D. and publicized intimate information about their relationship.

That day, he also mailed a box of “adult paraphernalia” to C.F. Like

the evidence that Simpson spent all his money on the trip and quit

his job, this was circumstantial evidence of intent; it suggested that

he had no concern for his and the children’s financial or

reputational well-being because he did not intend for them to

8
survive. See People v. Miralda, 981 P.2d 676, 679 (Colo. App. 1999)

(“Intent may . . . be established from circumstantial evidence and

from the inferences that may reasonably be drawn from those

circumstances.”).

¶ 20 Finally, there was evidence of motive. One reason for Simpson

and A.D.’s separation was because A.D. met someone else, and the

evidence established that A.D.’s new relationship created significant

tension between Simpson and A.D. In Simpson’s letter to C.F., he

said he would not allow the children to be around A.D.’s new

partner, nor would he allow A.D. to keep the children away from

him. This was circumstantial evidence of Simpson’s intent to keep

the children from A.D. and her new partner by killing them.

¶ 21 In sum, there was evidence that Simpson was depressed,

suicidal, and angry at his ex-wife and her new partner; sold his

belongings; quit his job; spent all his money on the trip; and

“burned bridges” with people in his life. There was also evidence

that Simpson had access to pain medication, previously attempted

suicide by overdosing, and admitted to adding pain medication to

the children’s shakes. Overall, viewed in a light most favorable to

the prosecution, there was sufficient evidence for a jury to conclude

9
that Simpson, with the requisite intent, took a substantial step

toward the commission of first degree murder by giving his children

milkshakes laced with pain medication. See McCoy, ¶ 63.

III. Jury Instruction Challenges

¶ 22 Simpson next argues that the court erred by denying his

request for an abandonment instruction and that the court gave

legally inaccurate instructions on criminal attempt. We disagree

with Simpson’s first contention and conclude that his second

contention does not rise to the level of plain error.

A. Standard of Review

¶ 23 “We review de novo whether jury instructions adequately

inform the jury of the governing law.” Garcia v. People, 2023 CO 30,

¶ 9. We consider the instructions’ legal accuracy as well as whether

they are confusing or misleading. Id.

¶ 24 When a defendant does not object to jury instructions, we

review for plain error. Hoggard v. People, 2020 CO 54, ¶ 13. “[T]he

court’s failure to instruct the jury properly does not constitute plain

error if the relevant instruction, read in conjunction with other

instructions, adequately informs the jury of the law.” People v.

Miller, 113 P.3d 743, 750 (Colo. 2005).

10
¶ 25 Similarly, when a defendant fails to request a jury instruction,

we review for plain error. People v. Jacobson, 2017 COA 92, ¶ 8.

An error is plain if it is obvious and substantial and “so

undermine[s] the fundamental fairness of the trial itself as to cast

serious doubt on the reliability of the judgment of conviction.”

Hagos v. People, 2012 CO 63, ¶ 14 (citation omitted).

B. The Abandonment Instruction

¶ 26 Simpson contends that the district court plainly erred by

failing to sua sponte instruct the jury on the affirmative defense of

abandonment. As Simpson acknowledges, he did not request an

abandonment instruction, so we review for plain error. Jacobson,

¶ 8. We conclude that the district court did not err.

¶ 27 To receive an abandonment instruction, the defendant must

present “some credible evidence,” O’Shaughnessy v. People, 2012

CO 9, ¶ 6, that he “abandon[ed] his effort to commit the crime or

otherwise prevent[ed] its commission . . . under circumstances

manifesting the complete and voluntary renunciation of his criminal

intent.” Id. at ¶ 8 (quoting § 18-2-101(3)).

¶ 28 However, “mere withdrawal — particularly when faced with

resistance by the victim — before completing the murder . . . is

11
insufficient evidence of abandonment.” Id. at ¶ 20. Similarly, the

defense is unavailable if the attempt “fails because of unanticipated

difficulties in carrying out the criminal plan at the precise time and

place intended.” People v. Gandiaga, 70 P.3d 523, 528 (Colo. App.

2002) (quoting 2 Wayne R. LaFave & Austin W. Scott, Substantive

Criminal Law § 6.3, at 53 (1986)); see also § 18-2-401(1)(a), C.R.S.

2025 (prohibiting the abandonment defense if it is “motivated in

whole or in part by” circumstances that “make[] more difficult the

consummation of the crime”). Here, there was evidence that

Simpson abandoned his attempt only after the children refused to

drink the shakes and after he tried to improve the taste.

¶ 29 Moreover, Simpson’s decision not to assert an abandonment

defense appears to have been tactical. See People v. Wade, 2024

COA 13, ¶ 16 (“When the defense makes a tactical decision not to

submit an . . . instruction, a trial court’s failure to sua sponte offer

the instruction does not constitute error, much less plain error.”).

Simpson submitted a “general denial” theory of defense, and

defense counsel’s trial strategy emphasized the lack of forensic

evidence. Simpson does not cite — nor could we identify — any

record evidence regarding a possible abandonment defense. Cf.

12
People v. Stewart, 55 P.3d 107, 119 (Colo. 2002) (omitting an

intervening cause instruction for two charges appeared to be

inadvertent where the defendant relied heavily on the theory at trial

and requested the same instruction for other charges).

¶ 30 Generally, a court does not commit obvious (i.e., plain) error

by failing to give an unrequested affirmative defense instruction.

See, e.g., People v. Lee, 30 P.3d 686, 689 (Colo. App. 2000); People

v. Gorman, 983 P.2d 92, 95 (Colo. App. 1998), aff’d on other

grounds, 19 P.3d 662 (Colo. 2000). Therefore, we conclude that the

court did not plainly err by failing to sua sponte instruct the jury on

abandonment. See Scott v. People, 2017 CO 16, ¶ 17 (holding that

errors are generally not obvious if “a division of the court of appeals

has previously rejected an argument being advanced by a

subsequent party who is asserting plain error”), abrogated on other

grounds by, Whiteaker v. People, 2024 CO 25, ¶ 25.

13
C. The Attempt Instructions

¶ 31 Simpson next challenges the jury instructions given for

attempt crimes.1

¶ 32 The challenged instructions appear to split the attempt

element into two separate elements. For example, the court gave

the following instruction for attempted first degree murder after

deliberation:

1. That the defendant,

2. in the State of Colorado, at or about the
date and place charged,

3. after deliberation,

4. and with the intent to cause the death of a
person other than himself,

5. engaged in conduct constituting a
substantial step toward the commission of
Murder in the First Degree — After
Deliberation, and

6. attempted to cause the death of another
person.

1 The jury was instructed on two theories of attempted first degree

murder (after deliberation and child under twelve by one in a
position of trust) and two lesser included offenses (one for each
theory of attempted murder).

14
(Emphasis added.) The other attempt instructions similarly

included one element requiring “conduct constituting a substantial

step toward the commission” of the offense and one element

requiring an “attempt[] to cause the death” of a person.

¶ 33 Simpson did not object to the instructions but contends on

appeal that the district court erred by including the additional

language (the emphasized element above). The State agrees that

the extra element was improper but argues that the error was not

plain. We agree with the State.

¶ 34 A division of this court has considered a similar attempted

murder instruction: “1. [T]he defendant . . . 4. attempted to,

5. engage in conduct constituting a substantial step toward the

commission of” first degree murder. People v. Villarreal, 131 P.3d

1119, 1124 (Colo. App. 2005). In finding no plain error, the division

explained that the instruction properly defined attempt as “a

substantial step toward the commission of the offense,” so “a

reasonable jury would have recognized the inherent redundancy” in

the two attempt elements. Id. at 1125.

¶ 35 Here, save for the added attempt language, the instructions

aligned with the model jury instructions and applicable statutes.

15
See COLJI-Crim. G2:01, 3-1:01, 3-1:06, 3-1:07 (2025); § 18-2-101;

§ 18-3-102(1)(a), (f); § 18-3-103, C.R.S. 2025; § 18-6-401(1)(a). The

instructions also correctly defined a substantial step as “any

conduct, whether act, omission, or possession, which is strongly

corroborative of the firmness of the actor’s purpose to complete the

commission of the offense.” § 18-2-101(1).

¶ 36 Unlike in Villareal, the instructions here did not explicitly

define attempt as a substantial step, but we do not think this

makes them distinguishable. Notwithstanding the extra element,

the instructions here were otherwise legally accurate. See Miller,

113 P.3d at 750. Moreover, if the jury found that Simpson took a

substantial step toward committing murder, it necessarily found

that he attempted murder. Therefore, the erroneous added element

did not cast doubt on his conviction. See State v. Williams, 2015 WI

75, ¶ 62 (“[W]hen an erroneous jury instruction raises the State’s

burden by adding an element not necessary for conviction, and the

jury convicts, the jury verdict will often sufficiently show that the

jury would have convicted if instructed on the proper elements.”).

¶ 37 We also reject Simpson’s argument that the instructions were

so misleading as to constitute plain error. Any confusion was likely

16
in Simpson’s favor because the jury would have believed that the

prosecution had to prove more than was required. See Hoggard,

¶¶ 30, 33 (finding no reversible error when an instruction “simply

placed an additional burden on the prosecution to prove more” than

was legally required). Accordingly, Simpson has not shown that the

error undermined the reliability of his conviction. See Hagos, ¶ 14.

IV. Evidentiary Challenges

¶ 38 Simpson next raises several evidentiary challenges, arguing

that the district court reversibly erred by admitted hearsay

evidence, evidence of his prior bad acts, and pretrial screening

evidence. We reject each of these arguments in turn.

A. Standard of Review

¶ 39 We review evidentiary rulings for an abuse of discretion.

People v. Schlehuber, 2025 COA 50, ¶ 42. A district court abuses

its discretion when its ruling is manifestly arbitrary, unreasonable,

or unfair or when it is based on an incorrect understanding of the

law. Id. We review preserved evidentiary challenges for harmless

error and reverse if “there is a ‘reasonable probability’ that the error

contributed to the defendant’s conviction.” Id. at ¶ 45 (quoting

People v. Vanderpauye, 2023 CO 42, ¶ 66). We review unpreserved

17
evidentiary challenges for plain error and reverse only if the error

was obvious and substantial and “so undermined the fundamental

fairness of the trial itself as to cast serious doubt on the reliability

of the judgment of conviction.” Hagos, ¶ 14 (citation omitted).

B. Hearsay Evidence

¶ 40 We first consider Simpson’s argument that the district court

erred by admitting A.D.’s testimony about Simpson’s prescriptions.

The prosecutor asked if A.D. knew what medications Simpson took.

Defense counsel objected for lack of foundation, and the prosecutor

then asked whether A.D. and Simpson were on the same insurance

plan. A.D. said that Simpson was on her insurance plan in June

2019 and that the insurance company sent her monthly statements

listing his prescriptions. Defense counsel raised a hearsay

objection, which the district court overruled, finding that A.D. could

testify to her observations. A.D. then testified that Simpson

received tramadol for pain and testosterone. She also said she

believed he was prescribed oxycodone at some point.

¶ 41 We agree with Simpson that the district court abused its

discretion by admitting inadmissible hearsay but conclude that the

error was harmless. See Schlehuber, ¶ 45.

18
¶ 42 Hearsay is “a statement other than one made by the declarant

while testifying . . . , offered in evidence to prove the truth of the

matter asserted.” CRE 801(c). A “statement” includes “an oral or

written assertion.” CRE 801(a). Hearsay is inadmissible except as

provided by the Colorado Rules of Evidence or other statutes or

rules. CRE 802. Under CRE 701, a lay witness may give testimony

in the form of opinions or inferences that are rationally based on

the witness’s perceptions. But Rule 701 is not an exception or

exemption to the rule against hearsay.2 See Taxinet Corp. v. Leon,

114 F.4th 1212, 1225 (11th Cir. 2024) (“[A] lay witness may base

opinion testimony on what [he] heard, [but] this does not mean that

lay opinion[s] may be based on hearsay.” (second alteration in

original) (citation omitted)); Stephans v. State, 262 P.3d 727, 731

(Nev. 2011) (“[A] lay witness cannot give opinion testimony based on

otherwise inadmissible hearsay.”).

¶ 43 The insurance records contained an out-of-court written

assertion that Simpson received certain prescriptions, and A.D.’s

2 Because CRE 701 parallels its federal counterpart and the rules of

evidence of many states, we may consider cases from other
jurisdictions. See People v. Faussett, 2016 COA 94M, ¶ 40 n.6.

19
testimony offered that assertion for its truth. See CRE 801(a), (c);

see also Burchfield v. State, 892 So.2d 191, 198 (Miss. 2004)

(holding that a pill bottle’s medication label is hearsay when used to

prove its contents). Therefore, absent a recognized exception or

exemption, the testimony was inadmissible. See CRE 802.

¶ 44 The State argues that the insurance records were machine

generated, so they do not constitute human statements that fall

within the ambit of the hearsay rules. We disagree. Testimony

regarding a computer-generated record is not hearsay if it was

created “without human input or interpretation.” People v. N.T.B.,

2019 COA 150, ¶ 22 (emphasis added); cf. People v. Hamilton, 2019

COA 101, ¶¶ 24-26 (holding that reports were hearsay because

there was no evidence that they were created without human input

or interpretation). No evidence explained how the insurance

documents were created, so we cannot conclude that they were

solely machine generated.3 See Hamilton, ¶¶ 24-26.

3 The business records exception under CRE 803(6) also did not

apply because there was insufficient foundation to support
admission on that basis. See Curry v. Brewer, 2025 COA 28, ¶ 50.

20
¶ 45 However, given the ample other evidence that Simpson had

access to pain medication, A.D.’s inadmissible testimony was

harmless. See People v. Caldwell, 43 P.3d 663, 668 (Colo. App.

2001) (“[I]f the evidence is merely cumulative and does not

substantially influence the verdict or affect the fairness of the trial

proceedings, any error in its admission is harmless.”).

¶ 46 First, B.M. testified that Simpson confessed to putting pain

medication in the children’s shakes. Second, B.M., C.F., and A.D.

testified about Simpson’s previous suicide attempt via overdose.

Therefore, it was essentially undisputed that Simpson had access to

(or knew how to access) medication that could cause death or

overdose. We cannot say A.D.’s inadmissible testimony about

Simpson’s prescriptions for such medications “substantially

influence[d] the verdict or affect[ed] the fairness of the trial

proceedings.” Id.

C. Evidence of Prior Bad Acts

¶ 47 Simpson next argues that the district court improperly

admitted evidence of his extrinsic bad acts without determining

admissibility under CRE 404(b). He also argues that the evidence

21
was inadmissible under CRE 403. He did not object to the

challenged evidence, so we review for plain error.4 Hagos, ¶ 14.

¶ 48 Rule 404(b) provides that “[e]vidence of any other crime,

wrong, or act is not admissible to prove a person’s character in

order to show that on a particular occasion the person acted in

conformity with the character” but may be admissible for purposes

such as “proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or lack of accident.” See

Rojas v. People, 2022 CO 8, ¶ 26. The rules of evidence allow

courts to “admit uncharged misconduct evidence for almost any

non-propensity purpose.” Id. at ¶ 28.

¶ 49 To be admissible, “[s]uch evidence must be (1) logically

relevant (2) to a material fact (3) independent of the prohibited

inference of the defendant’s bad character, and (4) the probative

value of the evidence must not be substantially outweighed by the

risk of unfair prejudice.” Id. at ¶ 27. To determine whether

4 We reject Simpson’s contention that the “issue is preserved by

operation of CRE 404(b)(3),” which outlines the prosecution’s notice
requirements. We are unaware of any authority altering a
defendant’s duty to preserve arguments for appeal based on the
prosecution’s duty to disclose certain evidence before trial.

22
evidence was unduly prejudicial under Rule 403, “we assume the

maximum probative value that a reasonable fact finder might give

the evidence and the minimum unfair prejudice to be reasonably

expected.” People v. Clark, 2015 COA 44, ¶ 18 (citation omitted).

¶ 50 Simpson first argues that testimony about his prior suicide

attempts was improper character evidence. But “evidence of a

person’s suicidal disposition is not character evidence.” State v.

Buelow, 951 N.W.2d 879, 889 (Iowa 2020); see also State v. Stanley,

2001-NMSC-037, ¶ 22 (“Suicidal dispositions typically stem from

mental illness, not from a person’s ‘bad character’ or trait of

character.”). Thus, Rule 404(b) does not apply to Simpson’s suicide

attempts. See Rojas, ¶ 43.

¶ 51 We also reject Simpson’s argument that the evidence’s

“probative value [was] substantially outweighed by the danger of

unfair prejudice.” CRE 403. “Evidence is only unfairly prejudicial if

it has an undue tendency to suggest a decision on an improper

basis such as sympathy, hatred, contempt, retribution, or horror.”

People v. Raehal, 2017 COA 18, ¶ 16. The suicide attempts helped

explain Simpson’s mental health challenges and provided a

plausible explanation for the inner turmoil that led him to consider

23
killing his children. The overdose also established method and

opportunity. See Rojas, ¶ 28. Moreover, because the suicide

attempts were not described at length or in detail, it is unlikely that

they could have engendered strong negative emotions in the jury.

See Raehal, ¶ 16.

¶ 52 Next, Simpson challenges A.D.’s testimony that, on the day of

Simpson’s second suicide attempt, he wrote notes in lipstick on

mirrors in the family home and put family photos on the dining

table. A.D. described his behavior as “creepy” and “eerie.” Even if

this is character evidence, there is no indication that it was offered

for a propensity purpose. Rather, as with the suicide attempts, it

contextualized Simpson’s devolving mental health. And for similar

reasons, it was not unduly prejudicial under Rule 403.

¶ 53 Simpson also challenges C.F.’s testimony about the box

Simpson mailed to her the day he left for Colorado. C.F. testified

that the box contained “adult paraphernalia” without elaborating on

its contents. Again, even assuming this is character evidence, it

does not appear to have been offered to prove that Simpson acted in

accordance with any character trait. See Rojas, ¶ 27. Rather, it

was probative of his mental state before the trip, and it supported

24
the prosecution’s theory that Simpson was planning to kill himself

and his children and had nothing to lose by burning bridges with

people in his life. Nor was the evidence inadmissible under Rule

403. C.F. briefly mentioned the box and did not specifically

describe its contents, so the prejudicial risk was minimal.

¶ 54 Next, Simpson challenges evidence about the letters or

“packets” he sent to families whose children attended school with

C.S. and D.S. A.D. testified that she spoke to a detective about the

letters. She explained that the letters disparaged A.D. and

discussed her “being awful,” her new romantic partner, and A.D.

and Simpson’s open relationship before they separated. A detective

testified that he responded to a report regarding the letters, which

he described as “harassing in nature.”

¶ 55 As with the other challenged evidence, the letters had a

relevant, nonpropensity purpose; they offered context for Simpson’s

mental state before the trip and supported the prosecution’s theory

that he believed he had nothing to lose by harming his family’s

25
reputation.5 Rojas, ¶¶ 27, 28. Finally, the letters’ probative value

was not “substantially outweighed by the risk of unfair prejudice.”

Id. at ¶ 27; CRE 403. They were not admitted into evidence, and

the trial testimony only discussed their general content.

¶ 56 The final piece of evidence that Simpson challenges under

Rule 404(b) is a forensic interview of C.S., in which the interviewer

asked questions to determine whether C.S. had been sexually

abused. It is unclear if all or part of the video of the interview was

played for the jury.6 But C.S. said she had not experienced

inappropriate sexual contact, and the interviewer’s questions did

not suggest concerns about Simpson. Therefore, the evidence did

not implicate Simpson’s character and was not unfairly prejudicial

because the questions did not discuss him. See Rojas, ¶¶ 27-28.

¶ 57 In sum, we conclude that the challenged evidence was

admissible under Rules 404(b) and 403. Finally, because Simpson

did not timely object to the challenged evidence, the district court

5 Although Simpson’s brief contends that he was convicted of

harassment based on the letters, evidence of the conviction and
charges was not presented to the jury in this case.
6 The record does not reflect a request to redact parts of C.S.’s

interview.

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did not plainly err by failing to analyze it under People v. Spoto, 795

P.2d 1314 (Colo. 1990). See Rojas, ¶ 52 (requiring a Spoto analysis

“if extrinsic evidence suggests bad character”); People v. Thompson,

950 P.2d 608, 614 (Colo. App. 1997) (holding that district court’s

failure to sua sponte conduct a Spoto analysis of unchallenged

evidence was not plain error).

D. Pretrial Screening Evidence

¶ 58 Simpson’s last evidentiary contention concerns testimony

about the process involved in prosecuting his case.

¶ 59 During cross-examination of Detective John Monaghan,

defense counsel elicited testimony that Monaghan met with the

office of the district attorney (DA) in February 2020. Monaghan

then confirmed that no charges were filed in February, and he did

not draft an arrest warrant until May 2020. On redirect, the

prosecutor asked about the meeting with the DA’s office, and

Monaghan answered the following question affirmatively: “[A]fter

that meeting, did you provide all of the materials from the case for

the [DA’s] office to review to make a decision about whether or not

to file the case?” He elaborated,

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We had the meeting, which is depending on
the case and the circumstances, part of the
. . . process at times in our unit. And . . . part
of that process is if we were to have those
meetings we then formally file the entirety of
the case, documentation and everything that
we have, over to the DA’s office to review and
then make a recommendation from there. In
the event that during that discussion the
details are not covered as thoroughly as maybe
they would be seen in reading the case.

Finally, Monaghan agreed that the case was filed “after [a] thorough

review by the Special Victim’s Unit at the [DA’s] office.”

¶ 60 Generally, information about charging decisions is

inadmissible because it “may imply that, because of a pretrial

screening process, only guilty parties are charged with crimes and

thus the defendant must be guilty.” People v. Mendenhall, 2015

COA 107M, ¶ 62. This evidence may suggest “that additional

evidence supporting guilt exists that is unknown to the jury,” or it

may reveal a witness’s personal opinions as to the defendant’s guilt.

Id. However, a prosecutor can elicit information about charging

decisions when defense counsel opens the door to such evidence.

See id. at ¶¶ 64, 67; People v. Davis, 312 P.3d 193, 196-97 (Colo.

App. 2010), aff’d, 2013 CO 57. For example, in Mendenhall, ¶¶ 55-

56, 64, 67, a division of this court held that the defense opened the

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door to questions about a DA investigator’s process when defense

counsel’s opening statement emphasized that charges were not

brought until 2010 for conduct reported in 2008.

¶ 61 We agree with the State that Simpson opened the door to the

challenged line of inquiry by suggesting that the case against him

was weak because it took several months to make a charging

decision. The challenged part of the redirect examination was

clearly a response to the testimony defense counsel had elicited; the

redirect testimony helped explain why a thorough factual

investigation takes time and can delay charging decisions.

¶ 62 Additionally, Monaghan’s testimony did not suggest that any

unadmitted evidence supported Simpson’s guilt, nor did it express

an opinion regarding Simpson’s guilt. See id. at ¶ 62; see also

People v. Garcia, 2023 COA 58, ¶¶ 52, 58-59 (no plain error when a

prosecutor said charges cannot be brought absent “a good faith

belief that we can prove the charge” because the statement did not

suggest that unadmitted evidence supported the defendant’s guilt).

Under these circumstances, there was no error, much less plain

error; defense counsel opened the door to the prosecutor’s

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questions, and the testimony did not pose a risk of suggesting guilt

based on unadmitted evidence or Monaghan’s personal opinion.

V. Cumulative Error

¶ 63 Finally, we reject Simpson’s argument that cumulative error

requires reversal. Cumulative error does not require reversal

“unless the cumulative effect of the errors shows that a defendant’s

right to a fair trial was substantially prejudiced.” Mendenhall, ¶ 82.

¶ 64 We have agreed with Simpson on two contentions of error but

held that one error was not plain and the other was harmless.

Specifically, as to the erroneous attempt instructions, we concluded

that the error likely raised the prosecution’s burden of proof,

rendering it not plain. And we held that the inadmissible hearsay

evidence was cumulative of other unchallenged evidence, rendering

the error harmless. Under these circumstances, we discern no

cumulative error that substantially prejudiced Simpson’s right to a

fair trial.

VI. Disposition

¶ 65 The judgment of conviction is affirmed.

JUDGE KUHN and JUDGE SULLIVAN concur.

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