Peo v. Shockey

21CA0311 Peo v Shockey 05-28-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA0311
Arapahoe County District Court No. 17CR3039
Honorable Michael Spear, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jacob Alexander Shockey,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Yun, J. and Martinez*, J., concur

Prior Opinion Announced December 21, 2023, Reversed in 24SC117

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 28, 2026

Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, 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.

The original division in this case comprised Judge Richman, now retired, Judge
Rebecca Freyre, and Judge David Yun. For this opinion, the division has been
reconstituted with Judge Freyre, Judge Yun, and former Colorado Supreme
Court Justice Alex J. Martinez.
¶1 This case returns to us on remand from the Colorado Supreme

Court reinstating the judgment and directing us to address the

remaining issues. Defendant, Jacob Alexander Shockey, appeals

the judgment of conviction entered on a jury verdict finding him

guilty of second degree murder. We affirm.

I. Background

¶2 The relevant facts are detailed in our original opinion, People v.

Shockey, 2023 COA 121, ¶¶ 2-10 (Shockey I), rev’d, 2026 CO 10. In

Shockey I, we vacated the judgment of conviction, concluding that

the jury’s finding that Shockey did not possess, use, or threaten to

use a deadly weapon was inconsistent with its guilty verdict for

second degree murder in the absence of a complicity instruction,

thereby negating the identity element. We further held that the

inconsistency constituted structural error. The supreme court

reversed our decision and remanded the case to us. People v.

Shockey, 2026 CO 10 (Shockey II). We now address the issues left

unresolved in Shockey I.

¶3 Shockey challenges his conviction on several grounds and

alleges that the trial court erroneously (1) violated his due process

rights by permitting his conviction to stand absent a complicity

1
instruction; (2) allowed extraneous prejudicial information of

complicity in voir dire to influence the verdict without considering

information contained in juror affidavits; (3) allowed the prosecutor

to discuss complicity in voir dire over the defense’s objection; (4)

failed to admonish the jury not to consider a complicity theory once

it concluded insufficient evidence of complicity existed to warrant

an instruction; (5) admitted prior misconduct evidence in violation

of Rojas v. People, 2022 CO 8; and (6) ordered restitution based on

insufficient evidence.

II. Complicity Related Arguments

¶4 Several of Shockey’s contentions relate to complicity — a

theory on which the jury was never instructed. We begin with his

contention that the court erred by allowing the prosecution to voir

dire on complicity over his objection. We then turn to his

contention that the court should have sua sponte instructed the

jury not to consider complicity in its deliberations after ruling that

insufficient evidence supported a complicity instruction. Next, we

address his contention that the court should have vacated his

conviction based on juror affidavits indicating that the jury

2
convicted him on a complicity theory.1 Last, we address whether, in

the absence of a complicity instruction, Shockey’s conviction

violates due process.

A. Additional Facts

¶5 The State charged Shockey with first degree murder and two

crime of violence sentence enhancers. At the preliminary hearing,

the prosecution announced its intent to proceed on a complicity

theory. Before trial, the prosecution tendered its proposed jury

instructions, which did not include a complicity instruction.

Before voir dire began, the court instructed the jury as follows:

Now, in this matter there will be 14 jurors
selected to hear this matter. The jury basically
considers all of the evidence that is presented,
and then at the end of the trial will reach a
verdict with the assistance of legal instructions
that I will give towards the end of the trial.

During the course of jury selection, and even
during the course of the trial itself, some
mention may be made of the legal rules, but
essentially our system in Colorado, at least, has
developed so that the legal rules themselves are

1 Shockey also argued that the verdict was inconsistent with the

special interrogatory, the precise issue rejected by our supreme
court. Therefore, we only address whether the court erred in failing
to consider the juror affidavits.

3
not really absolutely formalized or finalized
until all of the evidence has been completed.

So . . . basically if you’re selected as a juror.
Listening to the witness testimony, viewing
exhibits that are introduced, but [you will] also
be restricted from really discussing these
amongst yourself or with any other party and
you’ll have to wait patiently until the end of the
trial for me to give you kind of a framework in
which to assess all of the evidence in this case.

(Emphasis added)

¶6 During voir dire, the prosecutor discussed complicity liability

and used a hypothetical to illustrate the concept, stating

Under Colorado law, someone can be guilty as
a complicitor and a principal. So I’m going to
give you a little bit of a scenario to maybe
explain it and then I want to talk with you
guys about what you think about complicitor.

So let’s talk about a scenario of a robbery of a
bank. So you have the getaway driver, you
have the lookout and you have the guy that
goes in with the mask and the gun. So all
three of them decide, you know what, we’re
going to rob this bank. So the driver drives the
lookout, himself, and the robber to the bank.
The lookout goes out and stands in front of the
bank to look for cops or anyone else. And then
you have the guy that goes in and robs the
bank and he’s got a gun and a mask and
points a gun at a teller and gets the money
from the bank. Now, under Colorado law, all —

4
¶7 Defense counsel objected based on his understanding that a

complicity instruction was not going to be submitted to the jury at

the close of the evidence. The court overruled the objection and

again instructed the jury:

Well, just so the jury panel is aware, frankly,
during jury questioning there’s going to be
mention made of perhaps certain concepts of
law, some examples that have occurred up to
this point, and while it might not ultimately be
applicable to the case before us, really if this is
something that the prosecution would like to
pursue, I’ll go ahead and let that continue
because I think also the Court usually looks at
it as an opportunity for jurors to kind of break
the ice, so to speak, and provide information
as well, perhaps on more pertinent issues.

¶8 The prosecutor then discussed complicity liability at length,

using the robbery hypothetical to illustrate the concept. She

explained that, under Colorado law, all three defendants in her

scenario — the lookout, the getaway driver, and the person who

actually committed the robbery — could be found equally guilty due

to complicity liability. She then asked the jurors whether they

would be comfortable holding all the hypothetical defendants

“accountable” even if some did not directly participate in the

robbery. Many jurors agreed that the “punishment” or “treatment”

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should be the same for the lookout as for the person who robbed

the bank. A few of the jurors likewise used the terms “complicity”

with “accountability” interchangeably.

[PROSECUTOR]: [U]nder Colorado law, all
three could be guilty of aggravated robbery,
even though we’re talking about the lookout,
we’re talking about the getaway driver, even
though they didn’t go into the bank and
actually rob the bank. What do you think
about that?

[PROSPECTIVE JUROR 1]: They’re all still
complicit.

[PROSECUTOR]: And you’re okay with that?

[PROSPECTIVE JUROR 1]: Yeah, I think they
all should receive the same treatment.

¶9 Addressing another juror, the prosecutor asked

[PROSECUTOR]: Does it bother you that the
person who didn’t have the gun and who
wasn’t involved in the actual robbery itself
inside the bank could be held accountable as
the person who went in and robbed the bank?

[PROSPECTIVE JUROR 2]: Yeah, because he
knew the guy went in there with a gun. He’s
complicit in the fact that he’s going to go along
with whatever happens in the bank. I would
think he would be guilty too.

¶ 10 Addressing two other jurors, the prosecutor asked

[PROSECUTOR]: [B]ack to my scenario, we
have the lookout person versus the person that

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goes in and robs with the gun, should they
both be held accountable?

[PROSPECTIVE JUROR 3]: Held accountable,
yes, but maybe not to the same amount.

[PROSPECTIVE JUROR 4]: I think everyone
should be held accountable to the same extent.
They all know what they’re getting into . . . .
So yeah, if you know that other people’s lives
are going to be put in danger, you have the
opportunity to back out and say no, I don’t
want to do that, that’s your choice but you go
ahead and go along with it. And so yes, you
should still have the same punishment as
anyone else.

¶ 11 Addressing two more jurors, she continued

[PROSECUTOR]: So you feel good about
complicity when we’re talking about all three
players in my little scenario?

[PROSPECTIVE JUROR 5]: Yes.

[PROSECUTOR]: How about you, Mr. B[] . . .
What do you think, complicity?

[PROSPECTIVE JUROR 6]: Well, I think there’s
— we touched upon it here that there might
have been some levels of complicity or
accountability depending on whether, you
know, the event went off as planned . . . . If
somebody goes off the rails, I think they’re the
one that has to be accountable for that. I
mean, there is some accountability or
complicity, whatever you want to call it, for all
of them because if you set up the — all set up
the scenario that caused this to happen, but if
somebody actually went off the rails, like I

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said, there’s some additional accountability for
that person.

¶ 12 During questioning, a few jurors expressed difficulty with the

idea of holding all three defendants “equally accountable” for the

robbery. At this point, the defense renewed its objection and asked

the court to read the elements of complicity contained in section 18-

1-603, C.R.S. 2025. The court overruled the objection, and the

prosecutor continued.

[PROSECUTOR]: Mr. M[], what do you think?

[PROSPECTIVE JUROR 7]: Maybe I’m getting
ahead of the curve here, but in terms of
complicity, there’s two aspects. One, there’s
guilty [sic] and innocence and people are
complicit as you described, then they’re guilty.
I can see a scenario where maybe the
punishment might vary depending upon
degree, but that’s a whole other conversation.
If people were — were involved in the planning
and knew something was either going to
happen or could happen, then guilty at that
point. I have no problem.

[PROSECUTOR]: Anyone feel different? Ms.
S[], what do you think?

[PROSPECTIVE JUROR 8]: You know, maybe
like he said, the person who actually pulled
the trigger may have a longer sentence or more
harsher sentence, I can get that, but honestly,
it doesn’t really matter what we think, because
if Colorado law has already determined what
that is, then you have to rule by the law. It

8
doesn’t really matter whether you think, oh,
the guy was just the getaway driver, whatever
the law says is what — I mean, that’s what I’m
getting from all of this.

¶ 13 The prosecutor also discussed witness credibility, returning to

the topic of complicity as part of that discussion. She posed

questions such as, “How do you judge the credibility of somebody

that was involved?” and “[L]et’s talk about my aggravated robbery

example. You come in, you’re here for the trial of the robber, but

we bring in the lookout guy, how are you going to judge the

credibility of somebody involved?” The prosecution went on to ask,

“Does it become harder when we’re talking about someone who is

involved in the crime in judging their credibility?”, “[D]oes it make

sense that sometimes someone who is involved knows better what

was going on than anyone else?”, and “Someone who is involved in

judging their credibility, what do you think about that?”

¶ 14 During the defense’s voir dire, counsel questioned jurors about

the right to remain silent, credibility, the reasonable doubt

standard, mental states, gang membership, and drug dealers.

Counsel also questioned jurors about complicity, providing the legal

requirements for complicity under Colorado law.

9
¶ 15 Immediately before opening statements, the court instructed

the impaneled jury that it must decide the case based on the legal

instructions provided by the court at the end of trial and not based

on legal concepts discussed during voir dire, stating:

After the evidence is completed in this case,
then I will present to you what are called
instructions of law. These will be in written
form. I am required to read it to you and then
you’ll all get a copy to take back to the jury
room, so for your own personal review and for
the jury’s review as well.

Now, there has been a lot of comment on the
law in this case, what might be or might not be
applicable, and of course during the course of a
trial, things may change a little bit. So what we
tell you today about the law . . . actually could
vary significantly from what you’re informed of
at the end of the trial itself.

So please keep in mind leeway has been
granted for the parties to discuss the law in this
case. The fact is if their discussions vary from
what I give you at the end of the trial, frankly if
my discussions vary from what I gave you at
the end of the trial, those discussions at the end
of the case will control your deliberations in this
matter.

(Emphasis added.)

¶ 16 At trial, co-defendant Parus Mayfield testified that Shockey

shot the victim. Mayfield said he did not know Shockey had a gun

10
or intended to shoot the victim, believing instead that Shockey

would simply beat up the victim as he had done weeks earlier to

collect a drug debt. A police officer testified that Shockey told him

that the victim owed Mayfield money for drugs and that Mayfield

had shot the victim. According to Shockey, as they walked down

the alley, he heard Mayfield say he was going to “lay [the victim]

down” and believed Mayfield intended to shoot the victim. The

police never recovered a gun.

¶ 17 The prosecution tendered a complicity instruction at the end

of the evidence that the court rejected. The court found that

insufficient evidence supported the instruction, explaining

Frankly, there hasn’t been a whole lot in terms
of presentation of evidence that would support
complicity in this particular matter. We’ve got
essentially two people who knew each other
and often associated with each other out there
on Colfax, in the area and kind of hanging out
that night as well, and then meeting up with
the victim in this particular matter, and then
proceeding into an alleyway, and at that
particular time the victim was shot a number
of times. And the real issue in the case is who
actually did the shooting. But in order for
complicity to be a valid, viable theory to
present to the jury, there at least needs to be
some aspect of the evidence presented that
would indicate that this should be something
appropriately considered by the jury. And as

11
noted, the jury instructions themselves do set
forth in agreement with the prosecution’s
proposed instruction. The elements that
another person committed the crime, the
defendant with the desire or the purpose or
design to aid, abet, advise, or encourage the
other person in planning or committing that
crime, aided, abetted, advised or encouraged
the other person in planning or committing
that crime. At this point there is no sort of
indication — Mr. Mayfield, of course, was on
the stand for a considerable period of time,
and at no time indicated that there was this
desire or purpose or design to aid, abet,
advise, or encourage in planning the
commission of the crime of either first-degree
or second-degree murder. The fact is that
from his testimony, if you believe it, he
indicated that he thought the worst of what
happened were they were going to beat up the
victim in this case, but obviously, of course,
when he was told to look out, he thought
maybe there might be some kind of drug
transaction going on as well, or perhaps Mr.
Shockey was going to beat up the victim on his
own so there would possibly be complicity for
assaultive behavior, but this is a step beyond
assault itself. Mr. Mayfield indicated that he
was surprised when the shooting occurred and
immediately ran off as soon as the first two
shots were fired, and then he heard a third
shot. So we got the three people walking into
the alley, and we got Mr. Mayfield’s story of
what happened. The information presented
through [the eyewitness] is a little bit
problematic in terms of what might have
occurred, but really, she did not provide any
testimony that would support some sort of
complicity instruction as well; that she

12
believed that the two people who took her
friend into the alleyway and, ultimately, shot
and killed him were in some fashion acting in
other than concert in terms of bringing him
into the alley himself. And I suppose in that
particular situation there could be an
argument made that clearly there wasn’t
complicity, but I would note that we just have
a passing reference to [the eyewitness’s] belief
that the victim was being essentially forced to
go into that alley, although the video itself does
not — multiple videos did not necessarily
support a certain conclusion of a combined
effort on the part of the defendant and Mr.
Mayfield to bring the victim into the alley to
make sure he didn’t go somewhere else. In
many respects I think the evidence is very,
very problematic about whether or not a
complicity — some kind of complicit action
occurred in this particular matter for anything
other than perhaps a drug deal, or at worst, an
assault situation such as Mr. Mayfield
described it happening earlier when he and
Mr. Shockey apparently beat up the victim at
one point. So I’m finding that complicity is
something that would completely confuse the
issues before the jury; that really there hasn’t
been a lot of information presented that would
support a complicity theory of prosecution in
this case. I’m going to sustain the objections
of the [d]efense and not give the jury
instructions related to the prosecution theory
of complicity . . . .

¶ 18 In the final instructions, the court instructed the jury:

It is my job to decide what rules of law apply to
the case. While the attorneys may comment
on some of these rules, you must follow the

13
instructions I give you. Even if you disagree
with or do not understand the reasons for
some of the rules of law, you must follow them.
No single instruction describes all the law
which must be applied: the instructions must
be considered together as a whole.

During the trial, you received all of the
evidence that you may properly consider in
deciding the case. Your decision must be
made by applying the rules of law that I give
you to the evidence presented at trial.

¶ 19 In closing argument, the prosecution asserted that Shockey

caused the victim’s death as the shooter and never specifically used

the word complicity. It did, however, reference the voir dire

discussion on credibility, urging the jury to consider the points

raised during “jury selection.” Moreover, the prosecution harkened

back to its robbery hypothetical when it asserted that Mayfield

“knew more about what happened that night, what the defendant

was going to do, than he was willing to admit,” and told the jury,

“You can believe that he was acting as a lookout . . . because he

knew what was going to happen, what the defendant was going to

do.” The defense did not object to these statements.

¶ 20 The court instructed the jury on the lesser included offense of

second degree murder as follows:

14
1. That [Shockey],

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

3. knowingly,

4. caused the death of [the victim].

¶ 21 The jury also received a crime of violence special interrogatory

that read:

Did Jacob Shockey use, or possess and
threaten the use of, a deadly weapon?

Jacob Shockey used, or possessed and
threatened the use of, a deadly weapon only if:

1. he used, or possessed and threatened the
use of, a deadly weapon,

2. during the commission of the crime or in the
immediate flight therefrom.

The prosecution has the burden to prove each
numbered condition beyond a reasonable
doubt.

After considering all the evidence, if you decide
the prosecution has met this burden, you
should mark “Yes” in the appropriate place,
and have the foreperson sign the designated
line of this Special Interrogatory.

After considering all the evidence, if you decide
the prosecution has failed to meet this burden,
you should mark “No” in the appropriate place,
and have the foreperson sign the designated
line of the verdict form.

15
¶ 22 The jury acquitted Shockey of first degree murder, convicted

him of second degree murder, and answered the special

interrogatory “No.”

¶ 23 Shockey filed a post-trial motion to vacate the verdict, arguing

that the jury’s answer to the interrogatory was both logically and

legally inconsistent with its guilty verdict. Later, he filed juror

affidavits indicating that the jurors had convicted Shockey on a

complicity theory. At the hearing, defense counsel argued that

because the jury found Shockey was not the shooter, it could have

found him guilty of murder only under a complicity theory — a

theory on which the trial court refused to instruct the jury. He

cited the affidavits as support for his argument. The prosecutor

countered that the court could not properly consider the juror

affidavits.

¶ 24 The trial court denied the motion, reasoning that jurors “kind

of operate with a theory of complicity in many situations in any

event.” The court further noted that the use of a deadly weapon is

not an element of second degree murder, meaning the verdict was

not “logically or legally inconsistent.” The court did not address the

juror affidavits.

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B. Complicity in Voir Dire

¶ 25 Shockey contends the prosecution committed misconduct by

using voir dire to indoctrinate the jury concerning complicity.

Considering the record as a whole, including the court’s repeated

instructions that legal concepts discussed by the attorneys may or

may not apply at the end of the case, we discern no misconduct.

1. Standard of Review and Applicable Law

¶ 26 The scope of voir dire is within the discretion of the trial court.

People v. Saiz, 660 P.2d 2, 4 (Colo. App. 1982). “The propriety of

questions to potential jurors on voir dire is within the discretion of

the trial court . . . .” People v. Collins, 730 P.2d 293, 300 (Colo.

1986). We review claims of prosecutorial misconduct under a two-

step process. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

First, we determine whether the conduct was improper based on the

totality of the circumstances. Id. Second, we decide whether the

misconduct warrants reversal under the applicable standard. Id.

¶ 27 We review preserved claims of prosecutorial misconduct for

harmless error. People v. Rhea, 2014 COA 60, ¶ 42. We will

reverse if there is a reasonable probability that the error contributed

17
to the defendant’s conviction. People v. Monroe, 2018 COA 110,

¶ 11, aff’d, 2020 CO 67.

¶ 28 “To receive a fair trial, the defendant must be tried by an

impartial jury.” People v. Wilson, 2013 COA 75, ¶ 12. The purpose

of voir dire, therefore, is “to allow counsel ‘to determine whether any

potential jurors possessed any beliefs that would bias them such as

to prevent [the defendant] from receiving a fair trial.’” Id. (quoting

People v. Rodriguez, 914 P.2d 230, 255 (Colo. 1996)). Indeed,

counsel may generally conduct questioning to determine a juror’s

“willingness ‘to accept the basic principles of criminal law’” and to

follow the court’s instructions. Wilson, ¶ 17 (citation omitted); see

also People v. Collins, 730 P.2d 293, 300 (Colo. 1986) (trial court

properly permitted defense counsel to ask a limited number of

questions about general legal principles surrounding self-defense to

determine whether any juror would “reject a concept of law which

was unfamiliar to them”). But “[c]ounsel may not use voir dire for

the purpose of instructing or educating the jury.” People v.

Shipman, 747 P.2d 1, 3 (Colo. App. 1987). Nor may counsel

misstate the law, present factual matters known to be inadmissible,

or instruct the jury on their theory of the case. People v. Carter,

18
2015 COA 24M-2, ¶ 71. However, absent bad faith, the

prosecution’s discussion of a concept that later ends up not being

an issue at trial does not require reversal. See People v. Estes, 2012

COA 41, ¶ 23 (“[D]uring opening statement, a prosecutor may refer

to evidence that subsequently will be adduced at trial and draw

inferences from that evidence.”); Cf., People v. Melanson, 937 P.2d

826, 836 (Colo. App. 1996) (noting that remarks in opening

statement that are later not supported by the trial evidence are

reversible only “if there has been an affirmative showing of bad faith

and manifest prejudice”).

2. Analysis

¶ 29 Viewing the prosecution’s voir dire in light of the totality of the

circumstances, we discern no misconduct for four reasons. First,

the court repeatedly instructed the jury — three times before

opening statements — that the attorneys might discuss legal

concepts, but the jury could only consider the law as the court

instructed at the conclusion of all the evidence. Additionally, the

court reminded the jury at the end of all the evidence that while the

attorneys may have commented on the rules of law, “[the jury] must

follow the instructions [the court] give[s] you.” We presume the jury

19
understood and followed these instructions. See People v. Abdulla,

2020 COA 109M, ¶ 58 (“[W]e employ the presumption that the jury

understands and applies the given instructions unless a contrary

showing is made . . . .”) Thus, we must presume that the

prosecution’s voir dire did not affect the outcome of the trial. The

jury’s response to the crime of violence interrogatory cannot affect

our analysis. As our supreme court indicated, “the jury’s answer to

the special interrogatory does not conflict with an element of second

degree murder.” Shockey II, ¶ 33. It is relevant to sentencing only.

Id. at ¶ 34.

¶ 30 Second, while the prosecution’s proposed instructions

tendered before trial did not include a complicity instruction, we

discern no bad faith on its part. The prosecution had announced

its intent to pursue a complicity theory at the preliminary hearing,

so the defense knew this theory of liability was a possibility before

trial. Moreover, the prosecution knew it would introduce Shockey’s

statement to the police in which Shockey admitted that he knew

Mayfield intended to shoot the victim as they walked the victim into

the alley — evidence that arguably supported a complicity

20
instruction. And the prosecution did offer a complicity instruction

at the end of the trial, although the court rejected it.

¶ 31 Third, the court repeatedly overruled the defense’s objections

and exercised its discretion to allow the prosecutor to question the

jury on complicity law. Given the court’s ruling, the prosecution

did not engage in misconduct by following that ruling. See People v.

Adams, 708 P.2d 813, 815 (Colo. App. 1985); see also State v.

Nowels, 941 N.W.2d 430, 437 (Minn. Ct. App. 2020) (“It is

misconduct for a prosecutor to violate an order from the district

court.”).

¶ 32 Finally, the prosecutor never mentioned complicity in closing

arguments or urged the jury to convict under that theory. Instead,

she argued that Shockey was the shooter and that the jury should

credit Mayfield’s testimony on this key point, despite his

participation in the crime.

¶ 33 Accordingly, we conclude that no misconduct occurred and

thus, that reversal is not required.

C. Limiting Instruction

¶ 34 Shockey next contends that, after the trial court declined to

give the prosecution’s complicity instruction, it should have sua

21
sponte issued a limiting instruction informing the jury that it could

not consider complicity in its deliberations. He concedes that this

argument is unpreserved and subject to plain error review. And he

agrees that a court’s decision to give a supplemental instruction is

reviewed for an abuse of discretion. People v. Dinapoli, 2015 COA 9,

¶ 9.

¶ 35 Relying on a case from the Oklahoma intermediate appellate

court, Shockey argues that a trial court has a duty to correct any

jury confusion concerning a rule of law. See Master v. State, 702

P.2d 375, 381 (Okla. Crim. App. 1985). However, he identifies no

actual evidence of jury confusion, other than the jury’s answer to

the special interrogatory, which we have explained we cannot

consider. Instead, Shockey is left to speculate that confusion

existed based on voir dire. Notably, the court rejected the

prosecution’s complicity instruction precisely out of concern that it

would confuse the jury. Moreover, defense counsel never requested

a limiting instruction, and Shockey cites no authority requiring one.

Thus, any error was not “obvious” under the plain error standard.

Accordingly, we discern no plain error.

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D. Juror Affidavits

¶ 36 Shockey next contends that the trial court should have

considered the juror affidavits he submitted in support of his post-

trial motion to vacate his conviction due to an inconsistent verdict.

For the first time on appeal, he also contends that the affidavits

demonstrate that the jury was exposed to “extraneous prejudicial

information” — specifically, complicity law discussed during voir

dire — that improperly influenced its deliberations. We are not

persuaded.

1. Standard of Review and Applicable Law

¶ 37 The applicability of CRE 606(b) is a question of law we review

de novo. Pena-Rodriguez v. People, 2015 CO 31, ¶ 8 (Pena-

Rodriguez I), rev’d on other grounds, 580 U.S. 206 (2017) (Pena-

Rodriguez II). CRE 606(b) provides that

[u]pon an inquiry into the validity of a verdict
or indictment, a juror may not testify as to any
matter or statement occurring during the
course of the jury’s deliberations or to the
effect of anything upon his or any other juror’s
mind or emotions as influencing him to assent
to or dissent from the verdict or indictment or
concerning his mental processes in connection
therewith.

23
¶ 38 And “[a] juror’s affidavit or evidence of any statement by the

juror may not be received on a matter about which the juror would

be precluded from testifying.” Id. This no-impeachment rule

“promotes full and vigorous discussion by providing jurors with

considerable assurance that after being discharged they will not be

summoned to recount their deliberations, and they will not

otherwise be harassed or annoyed by litigants seeking to challenge

the verdict.” Pena-Rodriguez II, 580 U.S. at 218.

¶ 39 CRE 606(b) provides three exceptions to this no-impeachment

rule. “A juror may testify about (1) whether extraneous prejudicial

information was improperly brought to the jurors’ attention, (2)

whether any outside influence was improperly brought to bear upon

any juror, or (3) whether there was a mistake in entering the verdict

onto the verdict form.” CRE 606(b).

2. Analysis

¶ 40 The parties do not dispute that the affidavits are subject to the

no-impeachment rule. Shockey, however, contends that the

“extraneous prejudicial information” exception applies. We

disagree. The information is not “extraneous” because it was

presented to the jury during voir dire as part of the judicial

24
proceedings. See Kendrick v. Pippin, 252 P.3d 1052, 1064 (Colo.

2011) (holding that extraneous information is legal content learned

from “outside the record” or “outside of the judicial proceeding”),

abrogated on other grounds by Bedor v. Johnson, 2013 CO 4; accord

Pena-Rodriguez I, ¶ 16. Because he offers no other applicable

exception, we reject his contention.

¶ 41 Additionally, to the extent Shockey contends the court should

have granted his post-trial motion to vacate based on inconsistent

verdicts, our supreme court has rejected that argument, and we are

bound by its decision. See People v. Gladney, 250 P.3d 762, 768

n.3 (Colo. App. 2010)

III. Uncharged Misconduct

¶ 42 Shockey contends the trial court erred by admitting uncharged

misconduct evidence based on the res gestae theory. While we

agree that res gestae is no longer a viable theory of admissibility, we

conclude that the evidence is intrinsic to the charged offense and is

therefore admissible under Rojas, ¶ 52.

A. Additional Facts

¶ 43 Before trial, Shockey requested notice of any evidence to be

admitted under CRE 404(b). The prosecution notified the defense of

25
its intent to introduce evidence that Shockey was a drug dealer,

that the victim owed him twenty dollars for drugs, and that Shockey

had previously punched the victim for failing to repay him.

¶ 44 At the motions hearing, the court ruled on the admissibility of

this evidence based on the offer of proof and the arguments of

counsel. The court excluded certain evidence, such as evidence

that Shockey had shot another person in Denver but found the

remaining evidence in the offer of proof admissible as res gestae and

invited the defense to submit additional information regarding the

issue. Defense counsel clarified that the court’s ruling permitted

the prosecution to introduce evidence “that Mr. Shockey was a drug

dealer, that this incident arose from a drug debt of [twenty dollars]

being owed from [the victim] to Mr. Shockey, and that other

witnesses claim they saw Mr. Shockey and [the other defendant]

beat up the deceased prior to this.” When the court said its ruling

also covered evidence of Shockey’s prior possession of a handgun,

defense counsel objected to any evidence linking the handgun to

four other shootings, and the court agreed that such evidence

would be excluded. Defense counsel did not submit any further

information.

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¶ 45 During voir dire and opening statements, defense counsel

referenced Shockey’s history as a drug dealer and gang member.

The prosecution, in its opening statements, also described Shockey

as a violent drug dealer with a long-standing history involving both

the victim and the co-defendant.

¶ 46 At trial, Mayfield testified that Shockey had previously sold

drugs and had beaten up the victim several weeks earlier over a

drug debt. An eyewitness testified that both Shockey and Mayfield

were intimidating individuals who terrorized the neighborhood

through fighting and threats. None of the trial testimony drew an

objection from the defense.

B. Standard of Review and Applicable Law

¶ 47 We review a trial court’s evidentiary ruling for an abuse of

discretion. People v. Miller, 2024 COA 66, ¶ 40. A court abuses its

discretion when its decision is manifestly arbitrary, unreasonable,

or unfair. Id. Preserved evidentiary errors are reviewed under the

harmless error standard. Rojas, ¶ 53. We review unpreserved

errors for plain error. See People v. Leyba, 2019 COA 144, ¶ 55,

aff’d, 2021 CO 54. Reversal under this standard requires that the

error be obvious and so undermine the fundamental fairness of the

27
trial as to cast serious doubt on the reliability of the judgment of

conviction. People v. Walker, 2022 COA 15, ¶ 28.

¶ 48 In Rojas, our supreme court abolished the res gestae doctrine

in Colorado and, in its place, adopted an intrinsic-extrinsic

framework. Rojas, ¶ 52. To determine the admissibility of

uncharged misconduct evidence, we must first determine whether

the acts are intrinsic or extrinsic to the charged offenses. Id.

“Intrinsic acts are those (1) that directly prove the charged offense

or (2) that occurred contemporaneously with the charged offense

and facilitated the commission of it.” Id. Because intrinsic acts are

not considered “other” crimes, wrongs, or acts, a trial court does

not need to conduct a CRE 404(b) analysis before admitting such

evidence. Id. Instead, the admissibility of intrinsic evidence is

evaluated under CRE 401-403 and other ordinary evidentiary

principles. Id.

¶ 49 In contrast, extrinsic evidence that suggests bad character

may be admitted only under CRE 404(b) and after a Spoto analysis.

Id.; People v. Spoto, 795 P.2d 1314, 1318-19 (Colo. 1990). But if

extrinsic evidence does not suggest bad character, CRE 404(b) does

28
not apply, and admissibility is governed by CRE 401-403 and

ordinary evidentiary principles. Id.

C. Analysis

¶ 50 To the extent the parties dispute preservation, we need not

resolve this issue because, even assuming preservation, we discern

no abuse of discretion in admitting this evidence and conclude that

it is intrinsic to the charged offense for three reasons. First,

evidence that Shockey was a drug dealer and had, weeks earlier,

beaten up the victim over a drug debt was relevant to identity. It

made it more likely that Shockey, rather than Mayfield, was the

shooter in this instance, where the victim again owed him money

for drugs.

¶ 51 Second, the evidence clarified the relationships among the

parties, was close in time to the charged offense, and established a

motive for the crime — all factors supporting the element of

identity. Notably, the court did not enter a pretrial ruling

concerning gang evidence; defense counsel first introduced that

topic during opening statements.

¶ 52 Finally, evidence that Shockey carried a gun — though not

inherently unlawful — was also relevant to establishing Shockey’s

29
identity as the shooter. Indeed, Shockey concedes in his opening

brief that the evidence “went to the central issue of identity.”

¶ 53 While we acknowledge that the evidence was inherently

prejudicial to Shockey, we conclude that its probative value was not

outweighed by the danger of unfair prejudice under CRE 403,

because the shooter’s identity was the critical issue for the jury’s

decision. “[U]nfair prejudice within the meaning of the rule still

refers only to ‘an undue tendency on the part of admissible evidence

to suggest a decision made on an improper basis’ and does not

mean prejudice that results from the legitimate probative force of

the evidence.” People v. Rath, 44 P.3d 1033, 1043 (Colo. 2002)

(citation omitted). And when we review a trial court’s ruling under

CRE 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). The jury’s conclusion that Shockey

did not use or possess the gun shows that the uncharged

misconduct was not overly prejudicial.

¶ 54 Finally, Shockey faults the court for failing to issue a limiting

instruction, claiming its absence allowed the jury to convict on an

30
improper basis. But he never requested a limiting instruction and

does not develop this argument, so we do not address it further.

See Davis v. People, 2013 CO 57, ¶ 21 (stating that a trial court

doesn’t have a “duty” to provide a cautionary instruction sua sponte

when one isn’t requested by counsel or required by statute, and

under these circumstances, the lack of a limiting instruction “does

not constitute reversible error”); People v. Simpson, 93 P.3d 551,

555 (Colo. App. 2003) (declining to consider “a bald legal

proposition presented without argument or development”). In the

end, the jury’s decision to acquit Shockey of the most serious

charge indicates “that the jurors exercised some discretion in their

deliberations and did not blindly convict the defendant based upon

[improper] inferences.” Martin v. People, 738 P.2d 789, 795-96

(Colo. 1987). Accordingly, we discern no abuse of discretion in the

admission of this evidence.

IV. Restitution

¶ 55 Shockey’s final argument is that the trial court’s restitution

order lacks sufficient evidentiary support because the prosecution

did not show that disclosing the identity or location of a provider

31
would pose a threat to the safety or welfare of the victim. We are

not persuaded.

A. Additional Facts

¶ 56 Before sentencing, the prosecution submitted a request for

restitution that included $11,302 paid by the Crime Victim’s

Compensation Board (Board). The Board’s payment summary

redacted the names of the providers.

¶ 57 At sentencing, defense counsel asked to reserve comment on

the restitution matter because counsel intended to file a written

objection. The court agreed and granted Shockey fourteen days to

file any objection.

¶ 58 When Shockey failed to file a written objection, the trial court

granted the prosecution’s request for restitution.

B. Standard of Review and Applicable Law

¶ 59 In the restitution context, we review for clear error the trial

court’s determination that the defendant proximately caused the

victim’s losses. Martinez v. People, 2024 CO 6M, ¶ 32. But when,

as here, a defendant challenges the sufficiency of the evidence

supporting the amount of restitution — that is, a challenge to the

quantum of evidence provided to the court — our review is de novo.

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See id. at ¶¶ 19-22; People v. Moss, 2022 COA 92, ¶ 11; People v.

Weeks, 2021 CO 75, ¶ 24; People v. Roddy, 2021 CO 74, ¶ 23.

¶ 60 Restitution means “any pecuniary loss suffered by a victim

[that was] . . . proximately caused by an offender’s conduct and

that can be reasonably calculated and recompensed in money.”

§ 18-1.3-602(3)(a), C.R.S. 2025. Crime victims may seek

compensation from the Board for losses resulting from criminal

conduct, including medical and hospital expenses. §§ 24-4.1-

102(1), -108, -109(1)(a), C.R.S. 2025. When the Board pays a

victim compensation claim, it is considered a “[v]ictim” under the

restitution statute. § 18-1.3-602(4)(a)(IV). Therefore, if the Board

pays a claim, the court may order the defendant to reimburse the

Board for the amount of assistance it paid. People v. Fregosi, 2024

COA 6, ¶ 43.

¶ 61 “The prosecution must prove by a preponderance of the

evidence that the defendant’s conduct proximately caused the

victim’s loss and the amount of that loss.” Id. at ¶ 44. However, for

Board claims, the restitution statute creates a rebuttable

presumption that the amount paid by the Board is a direct result of

the defendant’s criminal conduct. See § 18-1.3-603(10)(a), C.R.S.

33
2024; People v. Henry, 2018 COA 48M, ¶ 17. Specifically, section

18-1.3-603(10)(a) provides that if the Board provides aid on behalf

of a victim, “the amount of assistance provided and requested by

the crime victim compensation board is presumed to be a direct

result of the defendant’s criminal conduct and must be considered

by the court in determining the amount of restitution ordered.”

¶ 62 To trigger the rebuttable presumption, the prosecution must

establish the amount of assistance provided. People v. Martinez-

Chavez, 2020 COA 39, ¶ 20. The restitution statute prescribes two

ways of establishing this amount: (1) “[a] list of the amount of

money paid to each provider”; or (2) “[i]f the identity or location of a

provider would pose a threat to the safety or welfare of the victim,

summary data reflecting what total payments were made for” by

category. § 18-1.3-603(10)(b)(I), (II)(A)-(E).

¶ 63 The prosecution may also prove the amount of restitution

through “victim impact statements or other means.” § 18-1.3-

603(2)(a); People v. Barbre, 2018 COA 123, ¶ 40 (noting that “under

Colorado law, an award of restitution may be based solely on a

victim impact statement”). The court “shall base its order for

34
restitution” on the information presented by the prosecution. § 18-

1.3-603(2)(a).

¶ 64 Any failure to comply with these provisions bars the trial court

from awarding restitution. Barbre, ¶ 45.

C. Analysis

¶ 65 We begin by noting that Shockey does not contest the trial

court’s findings on proximate cause or the amount of restitution.

Rather, he asserts that the prosecution failed to provide sufficient

evidence to support the restitution award because (1) it relied

exclusively on the Board’s payment summary, which redacted the

identity of the victim’s treatment providers, and (2) it did not

establish that disclosing those providers would pose a threat to the

victim’s safety or welfare. The problem with Shockey’s argument is

that the trial court gave him an opportunity to challenge restitution

on this basis and he failed to avail himself of that opportunity

because he never filed a written objection. Under these

circumstances, Shockey waived any argument that the prosecution

was required to show that identifying the provider would endanger

the victim. Waiver is the intentional relinquishment of a known

right or privilege. People v. Rediger, 2018 CO 32, ¶¶ 39-40

35
(explaining that a waiver extinguishes error and appellate review).

Therefore, we affirm the court’s restitution order.

V. Disposition

¶ 66 The judgment is affirmed.

JUDGE YUN and JUSTICE MARTINEZ concur.

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