Peo v. Sugg

23CA0333 Peo v Sugg 05-14-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0333
Arapahoe County District Court No. 20CR164
Honorable Eric White, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Gregory Shad Sugg,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE MEIRINK
J. Jones and Lum, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 14, 2026

Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey A. Wermer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Gregory Shad Sugg, appeals the trial court’s

judgment of conviction entered on a jury verdict finding him guilty

of child abuse (serious bodily injury). We affirm.

I. Background

¶2 Sugg and his fiancee, L.D., lived together with their infant son,

J.D. A few months after J.D.’s birth, L.D. returned to work after

taking maternity leave, and Sugg became J.D.’s primary caretaker.

¶3 In January 2020, when J.D. was about five months old, Sugg

and L.D. took him to the pediatrician because he was vomiting and

crying like he was in pain. The pediatrician sent them to the

hospital for a stomach ultrasound. J.D.’s stomach was fine, but

doctors noticed that the soft spot on his head was bulging, so they

conducted an MRI, which revealed that J.D. had hemorrhaging in

his brain. Doctors also conducted a CT scan, which revealed that

J.D. had numerous retinal hemorrhages in both eyes.

¶4 Doctors conducted additional tests and considered and

rejected bleeding disorders, cancer, sepsis, and metabolic genetic

disorders as the cause of the bleeding. They also rejected the

theory that a short fall L.D. had while holding J.D. a few weeks

prior was the cause of the bleeding because the type of brain injury

1
J.D. had was the result of severe trauma — like from “a motor

vehicle accident” or “falling out of a window.” J.D.’s treating

physicians ultimately diagnosed J.D. with abusive head trauma

(AHT).1

¶5 Three days after J.D.’s hospitalization, Sugg participated in a

voluntary interview with a police officer. Sugg told the officer that,

the day after Christmas, as L.D. was going to pull J.D. out of his

swing, she tripped on the swing’s leg and fell and hit her knees and

shins on the hardwood floor while holding J.D. Sugg was uncertain

if J.D.’s head “hit the Pack n’ Play or possibly went down to the

floor or [whether] just that jerking motion in general” affected J.D.

But he confirmed that the doctors said, “It couldn’t have been that

1 “Abusive Head Trauma” (AHT) replaced the term “Shaken Baby

Syndrome” (SBS) in the medical community because “the etiology of
the injury is multifactorial (shaking, shaking and impact, impact,
etc.),” and AHT was “the current best and inclusive term.” Arabinda
Kumar Choudhary et al., Consensus Statement on Abusive Head
Trauma in Infants and Young Children, 48 Pediatric Radiology 1048,
1048 (2018). The relevant case law in Colorado predates the use of
the term AHT and still refers to SBS or “Shaken-Impact Syndrome.”
See, e.g., People v. Rector, 248 P.3d 1196, 1198 (Colo. 2011); People
v. Martinez, 74 P.3d 316, 324 (Colo. 2003). At trial and on appeal,
the People primarily refer to AHT or “non-accidental trauma,” while
Sugg’s counsel refers to SBS and SBS/AHT. To avoid confusion, we
will use “SBS/AHT” unless referring to a specific instance in the
record when “AHT” or “SBS” was used.

2
[incident,] it had to be sooner.” After the officer probed him about

J.D.’s injury, Sugg said that he rocked J.D. “[m]aybe too long or too

hard, I don’t know. But I – it wasn’t intentional” and that J.D. went

to sleep after Sugg rocked him. However, after he fell asleep, J.D.

started to throw up and it “kept gettin’ worse.” At that point, he

and L.D. took J.D. to see a doctor. Sugg told the officers that he

was “blaming [the injuries] on the fall” and was “[s]till kinda holdin’

on hope until [the hospital visit in January 2020] that it was

somethin’ else,” because he “truly didn’t believe [he] had hurt [J.D.]”

¶6 The People charged Sugg with child abuse resulting in serious

bodily injury under section 18-6-401(1)(a) and (7)(a)(III), C.R.S.

2025, a class 3 felony. Sugg’s defense was that the medical team

that treated J.D. erred by rushing to diagnose him with SBS/AHT,

which Sugg contends has unreliable scientific underpinnings. In so

doing, the team prematurely ruled out other causes, including that

J.D. had macrocephaly, which could have put him at risk of

receiving similar injuries without trauma. A jury found Sugg guilty,

and the court sentenced him to twenty-four years in the custody of

the Department of Corrections.

3
II. Analysis

¶7 Sugg contends that the trial court erred by (1) declining to

hold an evidentiary hearing under People v. Shreck, 22 P.3d 68

(Colo. 2001), and denying his motion to exclude SBS/AHT evidence

as the cause of J.D.’s injuries; (2) admitting the neighbors’

testimony as prior acts evidence; and (3) refusing to provide a

remedy when L.D. revealed new evidence after closing arguments.

Addressing each contention in turn, we disagree.

A. The Trial Court Didn’t Err by Declining to Hold a Shreck
Hearing and Admitting Evidence of SBS/AHT

¶8 Sugg argues that the SBS/AHT evidence was unreliable, not

helpful to the jury, and had minimal probative value that was

substantially outweighed by the danger of unfair prejudice. Sugg

also argues that a Shreck hearing was necessary because SBS/AHT

is based on flawed science and lacks reliability. We disagree.

1. Additional Applicable Facts

¶9 The prosecution sought to introduce expert testimony from

several physicians who treated J.D., examined his medical records,

or both. Anticipating that these experts would testify that J.D. was

injured as a result of SBS/AHT and that his injuries could only

4
have been caused by child abuse — specifically Sugg shaking

J.D. — Sugg moved to exclude the use of terminology like “shaken

baby” or “abusive head trauma,” “any testimony that states or

implies that the ‘triad’ (retinal hemorrhage, subdural hematoma,

and hypoxic/ischemic injury or encephalopathy) is in any manner

diagnostic of abuse[,] and testimony that suggests shaking was the

possible cause of injuries in this case.” Sugg also asserted that the

scientific principles underlying SBS/AHT are unreliable and that

the proffered expert testimony wouldn’t be useful to the jury. In the

alternative, Sugg asked the court to conduct a Shreck hearing.

¶ 10 In response, the prosecution argued that the scientific

principles of AHT are reliable, relevant, and supported by a

“Consensus Statement” published by the journal Pediatric

Radiology in 2018 and later endorsed in 2021 by seventeen

pediatric professional societies worldwide. See Arabinda Kumar

Choudhary et al., Consensus Statement on Abusive Head Trauma in

Infants and Young Children, 48 Pediatric Radiology 1048, 1048

(2018). The prosecution also countered that, because a team of

physicians treated J.D. and provided a multidisciplinary diagnosis,

each physician’s testimony would assist the jury based on their

5
respective areas of expertise and help the jury determine the

potential source of J.D.’s injuries.

¶ 11 The court denied the motion and concluded that a Shreck

hearing was unnecessary. It found that (1) the prosecution’s

proposed experts were all medical doctors; (2) Sugg didn’t challenge

their qualifications; (3) the scientific principles underlying the

experts’ proposed testimony were reliable; (4) SBS/AHT had been

recognized as a valid scientific diagnosis in People v. Martinez, 74

P.3d 316, 323 (Colo. 2003), and People v. Rector, 248 P.3d 1196,

1202 (Colo. 2011);2 (5) the testimony would be helpful to the jury;

and (6) the testimony’s probative value wasn’t substantially

outweighed by the danger of unfair prejudice under CRE 403.

¶ 12 Several doctors testified for the prosecution at trial, including

Dr. Michael Puente, a pediatric ophthalmologist; Dr. Laura Fenton,

2 Although the trial court’s characterization of the cases doesn’t

impact our analysis, we would nevertheless like to clarify that in
Martinez, 74 P.3d at 323, the supreme court held that “the scientific
principles of shaken-impact syndrome and subdural hematomas
resulting from extreme accidents are reasonably reliable.” But in
Rector, the supreme court noted that “[t]he parties debate[d]
whether Martinez [wa]s dispositive of whether [SBS] testimony is
admissible under CRE 702” and concluded that, “[b]ecause [SBS]
was not ultimately at issue in this case,” it “decline[d] to address
the issue.” 248 P.3d at 1202 n.8.

6
a pediatric radiologist; and Dr. Corbett Wilkinson, a pediatric

neurosurgeon. These doctors all testified that they had treated J.D.

at the hospital and had reviewed his medical records and test

results. Although he didn’t treat J.D., Dr. Andrew Sirotnak, an

expert in child abuse pediatrics, also testified and stated that he

had reviewed J.D.’s medical file, which included test results,

reports, and imaging.

¶ 13 The doctors explained their respective fields of expertise to the

jury, what certain medical terms meant, and how they looked at

different aspects of J.D.’s injuries. First, Dr. Puente described the

extent of J.D.’s eye injuries and testified that he saw “bleeding in

multiple layers of the retina,” and that the “hemorrhaging extending

far out into the periphery of both eyes” indicated to him “that [J.D.]

was likely to have suffered a severe injury or insult to his brain or

to his eyes.”

¶ 14 Next, Dr. Fenton testified that she reviewed the CT scans and

MRI images of J.D.’s brain to assess the extent of his brain

hemorrhaging (both subarachnoid and subdural). She explained

that a subarachnoid hemorrhage referred to bleeding in the space

between the brain and the membrane covering it, while a subdural

7
hemorrhage is bleeding occurring closer to the skull. Dr. Fenton

testified that J.D. had a “bridging vein injury” because one of the

veins “bridging the outer part of [J.D.’s] skull and brain” bleeds.

She clarified that a bridging vein injury can only be caused by

severe trauma. In contrast, she explained that “if the hemorrhage

was primarily in the subarachnoid space, we would have a

completely different discussion of the causes because there, [with a]

subarachnoid hemorrhage alone we think about a vascular or

vessel injury, like an aneurysm.” Because J.D. had both subdural

and subarachnoid hemorrhaging (instead of only subarachnoid), Dr.

Fenton ruled out an aneurysm and opined that the injury was

caused by trauma.

¶ 15 Dr. Wilkinson testified that J.D.’s CT scan showed “a normal-

looking brain,” but that there was “cerebrospinal fluid

subarachnoid spaces around the brain” and “additional fluid in a

subdural space.” He also testified that J.D.’s “soft spot was

bulging, meaning there was some pressure” on J.D.’s brain. When

asked what his chief concerns are when he sees J.D.’s types of

injuries in a child, Dr. Wilkinson replied that “the subdural

8
hematoma and retinal hemorrhages are two of the things that you

can see in abusive head injury.”

¶ 16 Doctors Puente, Fenton, and Wilkinson testified that they were

experts in their specific fields but clarified that they worked

together to make a multidisciplinary diagnosis of AHT. Dr. Sirotnak

explained his role as an expert in child abuse pediatrics and put a

finer point on the multidisciplinary diagnosis approach the hospital

uses:

When we have an injured child, we access the
appropriate services like trauma surgery,
neurosurgery. We have medicine in the cases
of brain injuries or physical injuries, and a lot
of physical therapists that help us help a
family understand an injury but also provide a
treatment plan for a family.

....

[W]e all work together as a group or a team in
the hospital, particularly when you have a
critically ill kid or an injured kid[,] to put
together the best treatment plan and to make
recommendations for care for that child and
family.

So in [AHT], depending on the presentation of
the brain injury, we’re going to be looking at
the things that can present as a brain injury or
bleeding in the brain.

9
Dr. Sirotnak further explained that, when making an AHT

diagnosis, the doctors

look[] at a list or possibilities of diagnoses and
not just anchoring to one thing. So when I
see, for example, I saw a rash in a patient that
had a fever and maybe had some diarrhea but
also was on some pretty complicated
medicines, so I’m working with a nurse who’s
seen this kind of reaction — skin reaction from
this medicine. I’m not just going to say, oh, I
think that’s an infection. I have to think
broadly to other things. So in abusive head
trauma, depending on the presentation of a
brain injury, we’re going to be looking at things
that can present as a brain injury or bleeding
in the brain. Depending on the type of child
that’s coming in to us with a presentation, we
may have a list that’s short or may have a list
that’s long.

¶ 17 Sugg’s counsel objected to the experts’ use of the phrase

“abusive head trauma,” but the court overruled the objections. The

prosecution’s experts also rejected the claim by Sugg’s expert that

the diagnosing team made a “knee-jerk reaction” and misdiagnosed

J.D., and that there were no other plausible diagnoses for J.D.’s

injuries other than AHT.

¶ 18 Sugg presented expert testimony by Dr. Robert Rothfeder

contesting the prosecution’s theory that J.D.’s injuries could only

have been caused by trauma. Dr. Rothfeder didn’t treat J.D. but

10
reviewed his care files. He testified that J.D. had macrocephaly —

specifically, he had a head circumference that was in the ninety-

ninth percentile, meaning “99 percent of all children born at term

would have a smaller head” — and that he had “rarely seen that

sort of head size, particularly with the fact that it’s so

disproportionate to his length and weight.” Dr. Rothfeder explained

that J.D.’s head size meant that he had a lot of space that was

occupied by fluid. Because there was so much space between

J.D.’s brain and skull, the bridging veins could elongate and stretch

and were at risk of tearing or leaking with little to no trauma. With

respect to retinal bleeding, he testified that

retinal hemorrhages occur in the absence of
trauma and they occur . . . with trauma when
the brain has been involved, and the
mechanism is when the pressure inside the
head exceeds the pressure in the veins that
drain the eye, there’s no way for the blood to
get back to the heart, and it can leak out
through the small vessels in the eye and
produce retinal hemorrhages.

Dr. Rothfeder also testified that he doubted whether violent shaking

of a child could cause subdural hemorrhaging and that he didn’t

believe that J.D.’s injuries were consistent with SBS/AHT.

11
2. Applicable Law and Standard of Review

¶ 19 CRE 702 governs the admissibility of scientific evidence and

expert testimony. See Shreck, 22 P.3d at 77; CRE 702 (“If scientific,

technical, or other specialized knowledge will assist the trier of fact

to understand the evidence or to determine a fact in issue, a

witness qualified as an expert by knowledge, skill, experience,

training, or education, may testify thereto in the form of an opinion

or otherwise.”). When determining the admissibility of scientific

evidence, a trial court’s inquiry should be “broad in nature” and

flexible, with the goal of assessing whether the evidence is relevant

and reliable. Shreck, 22 P.3d at 77. In making this determination,

a trial court should assess whether (1) the scientific principles

underlying the expert’s testimony are reliable; (2) the expert is

qualified to give an opinion on the subject; (3) the testimony will be

helpful to the jury; and (4) the probative value of the testimony is

substantially outweighed by the danger of unfair prejudice. See id.

at 77-79; see also Rector, 248 P.3d at 1200.

¶ 20 When a party requests a Shreck analysis, the court may, in its

discretion, determine whether an evidentiary hearing would be

helpful. Rector, 248 P.3d at 1201. However, the court isn’t

12
required to conduct a Shreck hearing if it has sufficient information

to make specific findings under CRE 403 and CRE 702 about the

four factors listed above. Id.

¶ 21 To be admissible, the prosecution “need not prove that the

expert is undisputably correct,” only that “the method employed by

the expert in reaching the conclusion is scientifically sound and

that the opinion is based on facts which sufficiently satisfy Rule

702’s reliability requirements.” People v. Ramirez, 155 P.3d 371,

378 (Colo. 2007) (quoting Gallegos v. Swift & Co., 237 F.R.D. 633,

639 (D. Colo. 2006)). “Concerns about conflicting theories or the

reliability of scientific principles go to the weight of the evidence,

not its admissibility.” People v. Campbell, 2018 COA 5, ¶ 42. Such

concerns “are adequately addressed by vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the

burden of proof.” Id. (quoting Est. of Ford v. Eicher, 250 P.3d 262,

269 (Colo. 2011)).

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

discretion.” Id. at ¶ 38. The trial court abuses its discretion when

its ruling is “manifestly arbitrary, unreasonable, or unfair, or when

[it] misapplies or misconstrues the law.” Fisher v. People, 2020 CO

13
70, ¶ 13. We review a preserved claim of Shreck error for

nonconstitutional harmless error. People v. Wilson, 2013 COA 75,

¶ 24. An error is harmless if it didn’t substantially influence the

verdict or impair the trial’s fairness. Id.

3. Analysis

a. The Court Didn’t Abuse Its Discretion by Deciding a Shreck
Hearing Was Unnecessary

¶ 23 The trial court acted within its discretion by not holding a

Shreck hearing. The prosecution’s proposed experts were all

licensed doctors who treated J.D. and reviewed his medical file.

They were qualified to give opinions on J.D.’s treatment, his medical

test results and records, and his diagnosis based on their

professional training and experience, which included eliminating

possible disorders and non-trauma-based injury. Their testimony

concerned complex medical issues beyond the understanding of a

layperson and therefore assisted the jury’s understanding of J.D.’s

injuries and diagnosis.

¶ 24 The doctors’ expected testimony was based on a reasonably

reliable method of diagnosing SBS/AHT. Specifically, SBS/AHT is a

diagnosis made by a multidisciplinary team of doctors and other

14
professionals after considering the facts and circumstances of the

injuries. The experts would likely testify that they conducted

several tests to eliminate the possibility that J.D. had any

preconditions, genetic defects, or possible disorders that could

account for his injuries being nontraumatic in origin. They would

further explain that, while no single injury was diagnostic of

SBS/AHT, the compilation of injuries, including brain and retinal

bleeding, led to the diagnosis.

¶ 25 The experts’ diagnostic method had wide peer acceptance, as

indicated in the Consensus Statement, which was globally endorsed

and explained why the scientific methodology wasn’t flawed. See

Ramirez, 155 P.3d at 378 (recognizing that admissible evidence

need not be undisputedly correct: rather, the method employed by

the expert to reach the conclusion need only be scientifically

sound). Moreover, although the scientific principles of SBS/AHT

were not in dispute like they are here, in Martinez, the supreme

court noted that “[i]n applying Shreck, we assume . . . that the

scientific principles of shaken-impact syndrome and subdural

hematomas resulting from extreme accidents are reasonably

reliable.” 74 P.3d at 323.

15
¶ 26 Finally, the evidence’s probative value was not substantially

outweighed by any danger of unfair prejudice, particularly where

Sugg could object to the experts’ testimony at trial, would have the

opportunity to cross-examine the experts, and could present his

own competing expert testimony.

¶ 27 Because the court already had sufficient information to make

specific findings under CRE 403 and CRE 702 about the reasonable

reliability of the scientific principles involved, a Shreck hearing was

unnecessary. See Rector, 248 P.3d at 1201 (if a trial court has

sufficient information to make findings on the reliability of the

scientific principles involved, the experts’ qualifications to testify to

such matters, the helpfulness of the information to the jury, and

any potential prejudice, it need not conduct an evidentiary hearing).

b. Admitting Evidence of SBS/AHT

¶ 28 Next, Sugg contends that the trial court erred by admitting

evidence supporting an SBS/AHT diagnosis because SBS/AHT

lacks scientific reliability and “is one of the most controversial

medical theories today.” He offers several articles, studies, and case

law from other jurisdictions questioning SBS/AHT as a “default

diagnosis.”

16
¶ 29 Sugg’s assertion is misplaced. He asserts that SBS/AHT is

itself an unreliable medical diagnosis, but that argument goes to

the weight of the evidence rather than its admissibility. And such

concerns are adequately addressed by “vigorous cross-examination,

presentation of contrary evidence, and careful instruction on the

burden of proof.” Campbell, ¶ 42 (quoting Est. of Ford, 250 P.2d at

269). Sugg’s attorney cross-examined the prosecution’s experts and

provided contrary testimony through an expert explaining that

J.D.’s injuries were likely the result of a pre-existing condition that

put him at risk for the injuries he suffered. Determining the

persuasiveness of competing expert opinions and evaluating the

reliability of underlying scientific principles are quintessential

functions of the jury. People v. Baker, 2021 CO 29, ¶ 34; see also

Scott v. People, 444 P.2d 388, 393 (Colo. 1968) (“The weight to be

accorded opinion evidence given by experts is a question solely for

the jury.”).

¶ 30 Here, the jury found the weight of the prosecution’s evidence

more compelling and such a finding was independent from whether

the evidence was admissible. Because Sugg’s argument focuses on

the former and not the latter, for several reasons, we can’t say that

17
the court erred by admitting expert testimony that otherwise met

the admissibility standards under CRE 702 and CRE 403.

¶ 31 First, as mentioned, the prosecution’s proposed experts were

licensed doctors who had personally treated J.D. or reviewed his

medical files in depth and were in a unique position to describe

J.D.’s medical diagnosis, testing, and the contribution of symptoms

that informed their ultimate conclusions.

¶ 32 Second, contrary to what Sugg asserts, SBS/AHT wasn’t a

“default diagnosis”; rather, the prosecution’s experts testified that

they conducted several tests to eliminate the possibility that J.D.

had any preconditions, genetic defects, or disorders that could

explain his injuries as resulting from a nontraumatic event. This

diagnostic method has wide peer acceptance, as indicated in the

Consensus Statement, which was globally endorsed.

¶ 33 Third, the diagnosis and underlying medical findings involved

complex neurological and pediatric considerations beyond the

understanding of a layperson, and the testimony assisted the jury

in understanding both the nature of J.D.’s injuries and how they

may have been caused by trauma.

18
¶ 34 Finally, the testimony’s probative value wasn’t substantially

outweighed by any danger of unfair prejudice. Sugg’s counsel

challenged the experts’ testimony at trial by lodging several

objections, vigorously cross-examining the prosecution’s experts,

presenting a competing expert witness, and advancing alternative

medical explanations for J.D.’s condition.

B. The Trial Court Didn’t Err by
Admitting the Neighbors’ Testimony

¶ 35 Sugg argues that the court should have excluded the

neighbors’ testimony because it wasn’t logically relevant, was

prejudicial, and had minimal probative value. We disagree.

1. Additional Applicable Facts

¶ 36 L.D. and Sugg lived in a duplex, and Brenda Patterson and her

daughter, Crystal Walker, lived together in the unit below. The

prosecution notified the court that it intended to introduce other

acts evidence through Patterson’s and Walker’s testimony and their

written statements to police to prove Sugg’s intent, motive, and lack

of accident. Sugg’s counsel objected, arguing that Patterson and

Walker had insufficient knowledge to provide evidence concerning

Sugg’s behavior.

19
¶ 37 The trial court held a hearing to determine the admissibility

and scope of the proposed testimony. Walker and Patterson each

testified that they (1) didn’t know Sugg or L.D. well; (2) could hear

Sugg and L.D. through the ceiling dividing their units; and (3) knew

the layout of Sugg and L.D.’s apartment because it was directly

above their own, and they had previously toured it before Sugg and

L.D. moved into the unit. Both Patterson and Walker testified that

their assumptions about what happened were based on inferences

from what they heard through the ceiling.

¶ 38 Walker testified that she frequently heard Sugg playing video

games, which were very loud, and that she would hear J.D. cry.

Sugg would “tr[y] to quiet the baby and go back to his game.” When

asked how she was able to tell that Sugg was yelling at the baby

and not at the game, Walker explained that she could hear the baby

crying in the back room and that she would hear Sugg’s footsteps

moving toward the back room and his voice got louder when he

yelled at J.D. Walker testified that she heard Sugg tell J.D. “to quit

being such a pussy and be quiet.” Patterson similarly testified that

she could hear Sugg playing video games and heard Sugg say, “Just

calm down you little girl,” or “Calm down, little pussy” to J.D.

20
Additionally, Patterson testified that one time before or after

Christmas, she heard J.D. screaming for a long time “and then all

of a sudden, it just went dead silent. It was kind of eerily silent.”

¶ 39 The prosecution asked the court to consider Walker’s and

Patterson’s written statements as well as their testimony in its

analysis. The court conducted an admissibility analysis under

People v. Spoto, 795 P.2d 1314 (Colo. 1990), and found that the

evidence (1) was relevant to Sugg’s intent and lack of mistake when

interacting with J.D.; (2) showed Sugg’s “escalating pattern of

conduct towards J.D.”; and (3) wasn’t unduly prejudicial. Although

the court ruled that some of the evidence — like testimony that

Walker conducted a wellness check — was not admissible, the court

allowed most of Walker’s and Patterson’s testimony under CRE

404(b).

¶ 40 Before Walker and Patterson testified, the court gave the jury

the following limiting instruction:

Ladies and gentlemen, the evidence you are
about to hear is being presented for the
following limited purposes only: As to whether
Mr. Sugg had the intent to commit the crime
charged, whether Mr. Sugg had motive to
commit the crime charged, or as to a lack of

21
mistake with regards to the crime charged.
You may not consider it for any other purpose.

Sugg’s counsel objected when the evidence went beyond what

Walker and Patterson had heard, and the court sustained the

objections. It also told the jurors that they couldn’t consider

stricken testimony and reminded the witnesses that they could only

testify to what they had heard.

2. Applicable Law and Standard of Review

¶ 41 Admission of prior acts evidence is restricted under the rules

of evidence because of its potential to unfairly prejudice the

defendant. Perez v. People, 2015 CO 45, ¶ 24. To that end, CRE

404(b) prohibits the admission of such evidence if offered to prove a

person’s character and to show that the person acted in conformity

with that character trait on a particular occasion, which is “often

described as the defendant’s propensity to commit a particular

crime.” Masters v. People, 58 P.3d 979, 995 (Colo. 2002). But such

evidence may be admissible if it’s admitted for purposes

independent of an inference of bad character, such as to show

“motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake, or lack of accident.” CRE 404(b)(2).

22
¶ 42 To determine admissibility under CRE 404(b), the court must

analyze the prior bad acts evidence under the Spoto test. See

People v. Ramirez, 18 P.3d 822, 828 (Colo. App. 2000). Under this

test, a trial court must find that the evidence (1) “relates to a

material fact”; (2) is “logically relevant”; (3) has such relevance

“independent of the intermediate inference, prohibited by CRE

404(b), that the defendant has a bad character” and acted in

conformity therewith; and (4) satisfies CRE 403 by having probative

value that is not “substantially outweighed by the danger of unfair

prejudice.” Spoto, 795 P.2d at 1318.

¶ 43 Trial courts have substantial discretion in deciding whether to

admit evidence of prior acts. Perez, ¶ 22. We review the trial

court’s ruling for an abuse of discretion. Id. Because this claim is

preserved, if we conclude that the court abused its discretion, we

must reverse Sugg’s conviction unless the error was harmless,

meaning that there is no reasonable probability that the error

“contributed to [Sugg’s] conviction.” People v. Roman, 2017 CO 70,

¶ 13.

23
3. Analysis

¶ 44 The trial court didn’t abuse its discretion by admitting

Walker’s and Patterson’s testimony for two reasons. First, the court

conducted a pretrial hearing to determine the admissibility and

scope of the proposed evidence, which it analyzed under the Spoto

framework. It then went on to make detailed findings, all of which

have record support, that the neighbors’ accounts of what they

heard were probative of Sugg’s state of mind when interacting with

J.D., relevant to the circumstances that could explain why Sugg

may have injured J.D., and relevant to whether J.D.’s injuries could

plausibly have resulted from any mistake. The court also

concluded that the testimony helped explain the temporal context

surrounding J.D.’s injuries.

¶ 45 Likewise, Walker’s and Patterson’s testimony that J.D. fell

silent after Sugg rose and intervened bore directly on permissible

noncharacter considerations permitted under Spoto, because the

testimony helped prove intent, motive, and absence of mistake. See

CRE 404(b); Spoto, 795 P.2d at 1318. From their testimony, a

reasonable juror could infer that J.D. had been crying and that

Sugg acted with the purpose of silencing him, thereby supporting

24
the theory that his conduct was intentional and that J.D.’s injuries

weren’t accidental.

¶ 46 Second, the court implemented evidentiary safeguards. It

limited the scope of admissible testimony to only what Walker and

Patterson heard from L.D. and Sugg’s apartment. It also concluded

that any potential for unfair prejudice could be mitigated through a

proper limiting instruction, which it read to the jury before Walker

testified and again when Patterson testified. The court instructed

the jury that it could consider the evidence only for the limited

purposes of determining intent, motive, or lack of mistake with

regards to the crime charged, “and no other purpose.”

¶ 47 The record demonstrates that the court carefully enforced

these limitations during trial. When defense counsel objected to

testimony that exceeded the permitted scope, the court sustained

those objections, and it later repeated the same limiting language in

its final jury instructions. The safeguards implemented by the

court ensured that the jury considered the evidence only for its

legitimate, nonpropensity purposes and minimized the risk that the

testimony would be used to draw an improper character inference.

25
¶ 48 Separately, any concern regarding unfair prejudice was

diminished by the limited role that Walker’s and Patterson’s

testimony played at trial. Their testimony constituted only a brief

portion of the proceedings, and the prosecution didn’t rely

extensively on their statements as cornerstones of its case-in-chief,

instead presenting substantial expert testimony to establish its

theory.

¶ 49 Considering the trial court’s pretrial Spoto analysis, its

enforcement limiting the scope of the trial testimony, and its

repeated limiting instructions to the jury, admitting Walker’s and

Patterson’s testimony wasn’t an abuse of discretion.

C. The Trial Court Didn’t Err by Refusing to Reopen Evidence
After the Jury Started Deliberating

¶ 50 Sugg argues that the trial court erred by refusing to provide a

remedy when L.D. revealed new evidence after closing arguments.

We disagree.

1. Additional Applicable Facts

¶ 51 The jury received the case late on a Friday afternoon and

resumed deliberations the following Tuesday morning. That

morning, Sugg’s counsel moved to reopen evidence because (1) L.D.

26
had seen and photographed a tablet in J.D.’s hospital room

indicating that the child abuse protection team had already

diagnosed J.D. with child abuse before running diagnostic tests;

(2) although L.D. had previously declined to release her prenatal

records, which indicated that J.D. had an oversized skull, she now

wanted to release them to see if they would help Sugg’s defense;

and (3) L.D. realized after she finished testifying that she incorrectly

said that J.D. could not hold his head up during the span of time in

question. Alternatively, Sugg’s counsel moved for a mistrial.

¶ 52 The prosecution objected, arguing that (1) Sugg already knew

about the information on the tablet and that, at his counsel’s

request, the child abuse care team’s assessment had been redacted

from Sugg’s police interview; (2) the information in the prenatal

records was “[c]ompletely speculative”; and (3) whether J.D. could

hold his head up was irrelevant to whether Sugg knowingly or

recklessly caused J.D.’s injury.

¶ 53 The court denied Sugg’s motions, ruling that (1) the medical

team’s alleged “knee-jerk” diagnosis was “already before the jury

and [that the court didn’t] see anything new” about the photograph

of the tablet that would change that; (2) L.D.’s opinion about Sugg’s

27
innocence or guilt was irrelevant; and (3) J.D.’s ability to hold his

head up could be considered new evidence, but Sugg failed to

provide any legal argument that would permit the court to reopen

evidence after the jury had started deliberating. The court didn’t

see a basis for declaring a mistrial and instructed Sugg that he

could file a motion for a new trial based on newly discovered

evidence if he was convicted.

¶ 54 The jury found Sugg guilty, and he subsequently filed a

motion for a new trial under Crim. P. 33 raising the same three

arguments, along with the argument that Walker’s and Patterson’s

testimony was erroneously admitted under CRE 404(b). The court

denied the motion, finding that (1) L.D.’s “observations about the

timing of the prosecution experts’ opinions (which observations

were actually known to [Sugg] prior to trial) ha[d] little to no

relevance to the legal issues under the case”; (2) Sugg’s expert had

already testified that J.D.’s injury was not because of SBS/AHT but

because of J.D.’s pre-existing medical condition, and the jury had

rejected that conclusion; and (3) whether J.D. could hold his head

up “did not appear to be a lynchpin fact” for the prosecution’s case

and likely wouldn’t result in an acquittal.

28
2. Interrupting Jury Deliberations

a. Standard of Review and Applicable Law

¶ 55 The Due Process Clauses of the United States Constitution

and the Colorado Constitution guarantee every criminal defendant

the right to a fair trial. U.S. Const. amends. V, XIV; Colo. Const.

art. II, §§ 16, 25; Howard-Walker v. People, 2019 CO 69, ¶ 23. This

right includes the right to a trial before an impartial judge, People v.

Hagos, 250 P.3d 596, 611 (Colo. App. 2009), and the right to an

impartial finder of fact, Morrison v. People, 19 P.3d 668, 672 (Colo.

2000). The Colorado Supreme Court has held that trial courts are

permitted to reopen cases and allow parties to admit additional

evidence “whenever the ends of justice can be advanced thereby.”

People v. Hall, 2021 CO 71M, ¶ 24 (quoting Plummer v. Struby-

Estabrooke Mercantile Co., 47 P. 294, 295 (Colo. 1896)).

¶ 56 We review a trial court’s decision to deny a defendant’s request

to reopen the evidence in a trial for an abuse of discretion. People

v. Martin, 2014 COA 112, ¶ 31.

b. Analysis

¶ 57 The trial court didn’t abuse its discretion by declining to

reopen the evidence. As the trial court correctly observed, Sugg’s

29
counsel failed to cite any authority permitting the interruption of

jury deliberations under the circumstances presented. First, the

information Sugg sought to introduce from the tablet wasn’t newly

discovered. While L.D. gave the photograph to the defense after the

close of evidence, Sugg acknowledged the information on the tablet

during his police interview and suggested that the doctors rule out

L.D.’s fall as a potential source of J.D.’s injuries. Sugg’s attorney

asked to have the discussion concerning the tablet redacted from

his interview, and it was. Likewise, Sugg’s counsel chose not to

question L.D. about the tablet during cross-examination. Counsel

having made those strategic decisions, Sugg could not later seek to

reopen the evidence during jury deliberations merely because

counsel subsequently regretted them. The trial court therefore

acted within its discretion by concluding that the proffered

information didn’t constitute new evidence warranting the

extraordinary step of interrupting deliberations.

¶ 58 Additionally, L.D.’s willingness to sign a release permitting

access to her prenatal medical records didn’t require the court to

halt deliberations and reopen the case. L.D. had previously

declined to waive her medical privilege during trial, and a party’s

30
change of heart after the close of evidence does not, by itself,

constitute grounds for reopening the case. See Farrar v. People,

208 P.3d 702, 706-07 (Colo. 2009); see also Blass v. People, 247 P.

177, 178 (Colo. 1926) (the defendant is not entitled to a new trial

simply because a witness has recanted). Allowing parties to revisit

privilege decisions once the jury has begun deliberating would

undermine the finality of trial proceedings and strain judicial

resources.

¶ 59 Sugg argues that the prenatal records, which revealed J.D.’s

large head circumference, were essential for the jury to evaluate the

strength of his defense — that J.D.’s macrocephaly made him

susceptible to his injuries. We aren’t persuaded. Sugg’s counsel

didn’t develop the argument that the introduction of these records

would have aided in the defense. Even if counsel had developed the

argument, the jury had already heard testimony from Drs.

Rothfeder and Wilkinson that J.D. had a large head circumference

and that his head size may have predisposed him to injury, so

L.D.’s prenatal records contained evidence that the jury was already

considering.

31
¶ 60 Finally, L.D.’s claimed realization that she had incorrectly

testified that J.D. couldn’t hold his head up didn’t justify the

extraordinary step of interrupting jury deliberations. A witness’s

later belief that a statement may have been inaccurate, standing

alone, is insufficient to warrant reopening the record. See Farrar,

208 P.3d at 707 (“[A] demonstration of false or mistaken testimony

can entitle a defendant to a new trial only if the newly discovered

evidence would also probably result in an acquittal.”). Contrary to

Sugg’s assertion, the prosecution didn’t rely on J.D.’s inability to

hold his head up during closing. Instead, the prosecution grounded

its argument primarily in the expert testimony of the treating

physicians and Dr. Rothfeder. At most, the record reflects a brief

reference to the issue during closing, amounting to three sentences

within a much broader presentation. Given the weight of the

medical testimony supporting the jury’s verdict, it’s unlikely that

this evidence would have produced an acquittal.

¶ 61 Accordingly, the court didn’t err by declining to interrupt the

jury’s deliberations to take additional evidence.

32
3. Motion for Mistrial

¶ 62 Sugg argues that the trial court erred by denying his motion

for a mistrial. We disagree.

a. Standard of Review and Applicable Law

¶ 63 We review a trial court’s denial of a motion for a mistrial for an

abuse of discretion. People v. Van Meter, 2018 COA 13, ¶ 9. “A

mistrial is a drastic remedy warranted only where ‘the prejudice to

the accused is too substantial to be remedied by other means.’”

People v. Dominguez-Castor, 2020 COA 1, ¶ 95 (quoting People v.

Collins, 730 P.2d 293, 303 (Colo. 1986)).

b. Analysis

¶ 64 The trial court didn’t abuse its discretion by denying Sugg’s

motion for a mistrial. First, as discussed above, the information

contained in the tablet was not newly discovered. Sugg and his

counsel were aware of it, yet counsel chose to omit the evidence

contained in the tablet. Sugg cannot recharacterize information as

newly discovered when it was already in his knowledge and control

but was strategically excluded from counsel’s evidentiary

presentation.

33
¶ 65 Similarly, L.D.’s later decision to waive her medical privilege

and permit access to her medical records didn’t require a mistrial.

Sugg requested the records before trial, and L.D. initially declined

to waive the privilege. Her subsequent change of position —

particularly after the close of the evidence — reflects only a change

of opinion, not the discovery of material evidence previously

unavailable despite due diligence. Such post hoc developments do

not justify a mistrial.

¶ 66 Finally, L.D.’s post-trial realization that she mistakenly

testified that J.D. couldn’t hold his head up did not, without more,

justify declaring a mistrial. The record further reflects that the

prosecution didn’t rely on the challenged testimony as a substantive

component of its case: It made up a small portion of L.D.’s overall

testimony and was referenced only briefly during closing

arguments.

¶ 67 None of these circumstances indicate that Sugg was deprived

of a fair trial requiring the court to declare a mistrial; the court

therefore acted within its discretion by denying the motion.

34
4. The Motion for a New Trial

¶ 68 Sugg argues that the trial court erred by denying his motion

for a new trial. We disagree.

a. Standard of Review and Applicable Law

¶ 69 Motions for a new trial based on newly discovered evidence are

regarded with disfavor. See Farrar, 208 P.3d at 706. Accordingly,

we review a trial court’s decision to grant or deny a motion for a

new trial for an abuse of discretion. People v. Bueno, 2018 CO 4,

¶ 19.

¶ 70 To succeed on his motion for a new trial, Sugg was required to

show that (1) the new evidence was discovered after the trial; (2) he

and his counsel were diligent in their efforts to discover the

evidence prior to and during trial; (3) the newly discovered evidence

was material and not merely cumulative or impeaching; and (4) on

retrial, the newly discovered evidence would probably produce an

acquittal. People v. Gutierrez, 622 P.2d 547, 559-60 (Colo. 1981).

b. Analysis

¶ 71 The trial court didn’t abuse its discretion by denying Sugg’s

motion because none of the proffered information qualifies as newly

discovered evidence.

35
¶ 72 First, as already mentioned, the information contained on the

tablet wasn’t discovered after trial. Evidence can’t be considered

newly discovered when the defendant was aware of the information

prior to trial but simply failed to introduce it. Cf. Farrar, 208 P.3d

at 706 (“[W]e have consistently made clear that evidence will be

considered newly discovered for purposes of a motion for new trial

only if it was both unknown to the defendant and his counsel in

time to be meaningfully confronted at trial and unknowable through

the exercise of due diligence.”). Because the information was within

Sugg’s knowledge and available to the defense, the first Gutierrez

element isn’t satisfied.

¶ 73 Second, L.D.’s decision after trial to waive her medical privilege

and release her prenatal records doesn’t qualify as newly discovered

evidence. The existence of the records was known before trial;

indeed, Sugg attempted to obtain them. L.D.’s prior refusal to

waive her privilege doesn’t convert the records into newly discovered

evidence and doesn’t meet the standard for the first Gutierrez

element.

¶ 74 Third, L.D.’s claimed post-trial realization that portions of her

testimony were incorrect likewise didn’t constitute newly discovered

36
evidence. She didn’t learn any new facts after trial; rather, she just

claimed that her testimony was incorrect. Because the underlying

information wasn’t new information and, if allowed, would have

amounted to impeachment of L.D.’s prior testimony, the first and

third Gutierrez elements aren’t met.

¶ 75 Accordingly, the trial court acted within its discretion by

denying Sugg’s motion for a new trial.

III. Disposition

¶ 76 The judgment is affirmed.

JUDGE J. JONES and JUDGE LUM concur.

37