Peo v. Nero

22CA1055 Peo v Nero 08-22-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1055

City and County of Denver District Court No. 20CR5702

Honorable Brian R. Whitney, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ramon K. Nero,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE SULLIVAN

Fox and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 22, 2024

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Kimberly Alderman Penix, Alternate Defense Counsel, Chelsey Bradley,

Alternate Defense Counsel, Fort Collins, Colorado, for Defendant-Appellant

1

¶ 1 Defendant, Ramon K. Nero, appeals the judgment of conviction

entered on jury verdicts finding him guilty of several charges arising

from his robbery of a convenience store. We affirm.

I. Background

¶ 2 According to the People, Nero entered a Circle K convenience

store in Denver in September 2020, demanded all the money in the

cashier’s drawer, and then stabbed the cashier with a machete,

resulting in life-threatening injuries. A surveillance camera

partially captured the incident, showing a struggle between the

cashier and a masked man wielding a machete.

¶ 3 Nero was arrested two days later for an unrelated incident in

Aurora and later charged in this case. During his Aurora arrest,

law enforcement officers confiscated a machete found on Nero’s

person that had identifying markers similar to the machete used in

the Circle K robbery.

¶ 4 While incarcerated and awaiting trial, Nero sent two letters to

his ex-girlfriend. In the first letter, Nero stated that he was facing

sixteen to forty-eight years in prison for “that robbery” “in Denver”

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and that she drove him to the robbery. In the second letter, Nero

asked her to provide him with an alibi for the night of the robbery.

¶ 5 At trial, the district court heard testimony from, as relevant

here, Nero’s ex-girlfriend who received the two letters; Edward

Lopez, an Aurora police officer who took Nero into custody for the

unrelated offense; and Brian Mudloff, a Denver Police Department

detective who investigated the Circle K robbery.

¶ 6 The jury found Nero guilty of assault in the first degree,

assault in the second degree, and aggravated robbery.

¶ 7 Nero now appeals. He challenges the district court’s decisions

admitting evidence of (1) the machete found on his person and his

Aurora arrest and (2) the two letters he sent to his ex-girlfriend

while incarcerated. We address each contention in turn.

II. Analysis

A. Machete and Aurora Arrest

¶ 8 We first address Nero’s contention that the district court erred

by admitting irrelevant and unfairly prejudicial evidence regarding

the machete found on his person and his Aurora arrest.

3

¶ 9 We review the district court’s evidentiary rulings for an abuse

of discretion. People v. Allgier, 2018 COA 122, ¶ 30. A court

abuses its discretion when its ruling is manifestly arbitrary,

unreasonable, or unfair, or when its ruling is based on an

erroneous understanding or application of the law. Id. at ¶ 43.

¶ 10 To determine whether evidence is relevant, a court must

determine if (1) the proffered evidence relates to a fact that is of

consequence to the determination of the action; (2) the evidence

makes the existence of a consequential fact more probable or less

probable than it would be without the evidence; and (3) the

probative value of the evidence is substantially outweighed by the

danger of unfair prejudice. People v. Carlson, 712 P.2d 1018, 1021-

22 (Colo. 1986) (quoting CRE 401 and 403).

¶ 11 Because the balance required by Carlson and Rule 403 favors

admission, we afford the evidence the maximum probative value

attributable by a reasonable fact finder and the minimum unfair

prejudice to be reasonably expected. Allgier, ¶ 31. Evidence isn’t

unfairly prejudicial under Rule 403 simply because it damages the

defendant’s case. People v. Kembel, 2023 CO 5, ¶ 53; see also

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People v. Dist. Ct., 785 P.2d 141, 147 (Colo. 1990) (“All effective

evidence is prejudicial in the sense of being damaging or

detrimental to the party against whom it is offered.”).

¶ 12 The prosecution moved to admit the details of Nero’s Aurora

arrest and the machete that Nero was carrying in a sheath on his

belt when taken into custody, alleging that the machete bore a

resemblance to the weapon used in the robbery and was therefore

probative of identity. The district court ruled that the evidence was

relevant to identification and medical testimony regarding the

wounds suffered by the cashier. The court stated that it wasn’t

admitting the contested evidence as either CRE 404(b) or res gestae

evidence, rendering a limiting instruction unnecessary.

¶ 13 We discern no abuse of discretion in the district court’s

decision admitting the contested evidence. As to the first Carlson

factor, the machete recovered from Nero, as the alleged weapon

used in the robbery, related to a fact of consequence — specifically,

identity (which Nero acknowledges is an element of each charge he

faced). That is, if the prosecution could connect the machete

recovered from Nero to the machete used in the Circle K robbery, it

5

would undoubtedly support an inference by the jury that Nero

committed the robbery and assaulted the cashier. See, e.g., People

v. Garcia, 784 P.2d 823, 826 (Colo. App. 1989) (“Evidence that

defendant may have possessed an instrument which could have

been used in the commission of the crime is admissible, provided a

proper foundation is laid.”).

¶ 14 Evidence regarding the machete also satisfied the second

Carlson factor because it made Nero’s identity as the assailant, a

consequential fact, more probable than it would be without the

evidence. During trial, Officer Lopez identified the machete in

question as the one he recovered from Nero during his unrelated

arrest in Aurora. Circle K’s security footage showed the assailant

wielding what appeared to be a machete, and Officer Lopez testified

that encountering people carrying machetes was “pretty rare.” He

explained that he hadn’t previously encountered the specific model

or type of machete that was recovered from Nero.

¶ 15 Detective Mudloff similarly testified that he had never seen the

brand of machete recovered from Nero used in a robbery and that

he rarely sees machetes used in robberies. He also testified that

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both the machete recovered from Nero and the one used in the

Circle K robbery were “very angular” and both bore the brand name

on the blade just above the handle. The officers’ testimony

regarding the distinctiveness of machetes and linking Nero’s specific

machete with the machete used in the Circle K robbery permitted

the jury to infer that Nero was the assailant. See, e.g., People v.

Penno, 534 P.2d 795, 796 (Colo. 1975) (“The jury could view the

pistol introduced into evidence and compare it to the description of

the weapon given by the eyewitnesses.”).

¶ 16 We aren’t persuaded otherwise by Nero’s reliance on Kaufman

v. People, 202 P.3d 542 (Colo. 2009). In Kaufman, our supreme

court determined that the defendant’s possession of other weapons

unrelated to the victims’ stabbings wasn’t relevant independent of

the impermissible “bad character” inference that is prohibited by

Rule 404(b). See id. at 555 (“None of [the knives] is significantly

similar to the knife actually used in the altercation.”). But unlike

the other weapons in Kaufman, the machete found on Nero was

distinctive and bore similar features to the machete shown in the

video of the robbery. Kaufman is therefore distinguishable.

7

¶ 17 Evidence regarding the machete also satisfied the third

Carlson factor and Rule 403. Affording the evidence its maximum

probative value and assuming the minimum unfair prejudice to be

reasonably expected, as we must, the machete itself was highly

probative. It bore distinctive characteristics that allowed the jury to

connect Nero to the machete used in the Circle K robbery. While

Nero points to the lack of forensic testing establishing a scientific

link between the machete and the Circle K robbery, the absence of

conclusive test results goes to the evidence’s weight, not its

admissibility. See People v. Hogan, 114 P.3d 42, 51 (Colo. App.

2004) (defects in the procedure for identifying a weapon outside the

courtroom go to weight, not admissibility).

¶ 18 We therefore conclude that the district court didn’t abuse its

discretion by admitting the machete into evidence.

¶ 19 Most of Nero’s argument regarding the irrelevancy of his arrest

in Aurora is combined with his argument regarding the machete

and not separately developed. To the extent that Nero separately

challenges the relevancy of the officers’ testimony regarding his

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Aurora arrest that resulted in the machete’s seizure, we perceive no

abuse of discretion by the district court.

1

¶ 20 Officer Lopez testified that he collected the machete when he

“took [Nero] into custody.” No detail was provided on direct

examination regarding why Officer Lopez took Nero into custody.

Defense counsel then cross-examined Officer Lopez regarding the

Aurora Police Department’s training on whether “there’s awareness

that African Americans are disproportionately stopped by cops.”

The following day, the prosecution requested that Detective Mudloff

be allowed to testify to clarify that Nero wasn’t “stopped and frisked

for no reason or something like that.” The district court agreed,

and Detective Mudloff testified that Nero was carrying the machete

when he was arrested for “an unrelated incident” in Aurora.

1

We disagree with the People’s argument that Nero didn’t object to

the admissibility of his Aurora arrest. The record reflects that Nero

contested, at the May 21, 2021 hearing, the “probative value of the

fact that he was arrested with a knife.” See Rael v. People, 2017 CO

67, ¶ 17 (“We do not require that parties use ‘talismanic language’

to preserve an argument for appeal.” (quoting People v. Melendez,

102 P.3d 315, 322 (Colo. 2004)).

9

¶ 21 We conclude that the district court acted within its broad

discretion when admitting the officers’ testimony regarding Nero’s

unrelated arrest in Aurora. Their brief testimony provided context

for how the prosecution obtained the machete after officers found it

on Nero’s person. See People v. Penn, 2016 CO 32, ¶ 32 (“[I]n some

circumstances, police officers may testify about the reasons they

took certain investigative steps, even where this testimony touches

upon prohibited subjects.”). Neither officer provided details

regarding the reason for Nero’s unrelated arrest.

2

Moreover, by

cross-examining Officer Lopez regarding whether “there’s awareness

that African Americans are disproportionately stopped by cops” in

Aurora, Nero’s counsel opened the door to Detective Mudloff’s

clarifying testimony about the circumstances of the Aurora Police

Department’s initial contact with Nero. See, e.g., Venalonzo v.

People, 2017 CO 9, ¶ 44.

2

Nero doesn’t challenge the admission of evidence regarding his

Aurora arrest under CRE 404(b).

10

¶ 22 Accordingly, we conclude the district court didn’t abuse its

discretion by admitting the officers’ testimony about Nero’s

unrelated arrest in Aurora.

B. Admission of the Letters

¶ 23 Nero next argues that the district court erred by admitting two

letters that he wrote to his ex-girlfriend while incarcerated and

awaiting trial. Specifically, he contends that (1) the first letter was

irrelevant and unfairly prejudicial and (2) admitting the second

letter violated Rule 404(b).

¶ 24 As before, we review the district court’s evidentiary rulings for

an abuse of discretion, Allgier, ¶ 30, and find none.

1. The First Letter

¶ 25 Nero’s first letter to his ex-girlfriend stated that he’s “facing 16

to 48 years in Denver from you driving me to that robbery so my

next move is to have Krista or my mom tell the D.A. what I know

about you helping me to do the robbery and how to find out

through 7-11.” Nero threatened to incriminate his ex-girlfriend

unless she “d[id] what I ask[ed].” Nero’s ex-girlfriend testified at

trial that Nero sent the letter and that it matched his handwriting.

11

¶ 26 Because the letter satisfies each of the Carlson factors, we

conclude that the district court acted within its discretion when

admitting the letter. First, the letter relates to a fact of

consequence, namely Nero’s identity as the Circle K assailant. Nero

admits in the letter that he committed “that robbery” “in Denver”

and suggests that further evidence could be available “through 7-

11.” While we acknowledge that the letter mentions a “7-11”

convenience store rather than a Circle K, the strength of the

connection between the letter and the actual robbery goes to its

weight, not its admissibility. See Mitchell v. People, 476 P.2d 1000,

1004 (Colo. 1970).

¶ 27 Second, the letter possessed logical relevance — it made the

existence of a consequential fact more probable than it would be

without the evidence — because it constituted an admission by

Nero that he committed a robbery. In particular, Nero’s admissions

that he committed “that robbery” “in Denver” and that evidence was

available through a convenience store both showed his

consciousness of guilt and tended to connect him to the charged

crimes. See, e.g., People v. Crespi, 155 P.3d 570, 575 (Colo. App.

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2006) (jury could infer from the defendant’s letter that she was

involved in manufacturing methamphetamine, even though it “did

not specify an exact time or place and did not make explicit

reference to controlled substances”).

¶ 28 Finally, we perceive no unfair prejudice caused by the letter’s

admission. We recognize that the letter contained threats and

vulgarity directed at Nero’s ex-girlfriend. But when we presume the

letter’s maximum probative value and the minimum unfair

prejudice to be reasonably expected, we can’t say that the district

court abused its discretion by overruling Nero’s objection,

particularly here where Nero’s admission in the letter directly

refuted his core defense of misidentification. See People v.

Robinson, 713 P.2d 1333, 1336 (Colo. App. 1985) (“The probative

value of defendant’s statement is apparent because it relates to the

ultimate issue in the case.”); see also Kembel, ¶ 53 (“[T]he fact that

evidence is prejudicial doesn’t render it inadmissible;

only unfairly prejudicial evidence is inadmissible.”).

¶ 29 Accordingly, the district court didn’t abuse its discretion by

admitting the first letter over Nero’s relevancy objection.

13

2. The Second Letter

¶ 30 We next address Nero’s contention that the district court

violated Rule 404(b) by admitting the second letter.

¶ 31 Nero wrote to his ex-girlfriend in the second letter that he was

“sorry for the way I came at you in my last letter” and that “I’m

taking [a] chance here contacting you.” Nero stated that “[y]ou can

write me back in a different name” and “all I want to know is can

you help me I need a[n] alibi in Denver so I can beat the case[.]”

The district court provided a limiting instruction to the jury, stating

the letter was “being presented to show consciousness of guilt only.

You may not consider [the letter] for any other purpose whatsoever

but for that purpose alone.” As with the first letter, Nero’s ex-

girlfriend testified that Nero sent the letter and that it was in his

handwriting.

¶ 32 The admissibility of other acts evidence is governed by

Colorado Rule of Evidence 404(b). Rule 404(b) prohibits the use of

“evidence of other crimes, wrongs, or acts . . . to prove the character

of a person in order to show that the person acted in conformity”

with his character. CRE 404(b)(1). But such “evidence may be

14

admissible for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence

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

¶ 33 However, not all uncharged misconduct evidence triggers Rule

404(b). Rojas v. People, 2022 CO 8, ¶ 52. The district court must

first determine if the evidence is intrinsic or extrinsic to the charged

offense. 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. Evidence

of acts that are intrinsic to the charged offense is exempt from Rule

404(b) because it isn’t “other” crimes, wrongs, or acts, although

such evidence must still satisfy Rules 401-403. Id. If the acts are

extrinsic and implicate the defendant’s bad character, the evidence

is admissible only as provided by Rule 404(b) after an analysis

under People v. Spoto, 795 P.2d 1314 (Colo. 1990). Rojas, ¶ 52.

¶ 34 To be admissible under Spoto, the evidence must (1) relate to a

material fact; (2) be logically relevant; (3) have logical relevance

independent of the inference that the defendant has a bad character

and committed the charged crime in conformity with such

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character; and (4) have a probative value that isn’t substantially

outweighed by the danger of unfair prejudice. Spoto, 795 P.2d at

1318.

¶ 35 At the outset, we conclude that Nero’s authoring of the second

letter constitutes an extrinsic act because the letter didn’t directly

prove that he committed the charged crimes. See Rojas, ¶ 52. Nero

also didn’t write the letter contemporaneously with the charged

offenses, nor did it facilitate their commission. Id.

¶ 36 Next, we will assume without deciding that Nero’s act of

requesting a false alibi from his ex-girlfriend “suggest[s] bad

character” within the meaning of Rule 404(b). Id. (“[I]f extrinsic

evidence does not suggest bad character, Rule 404(b) does not

apply and admissibility is governed by Rules 401-403.”). Neither

party addresses this issue but rather assumes that Rule 404(b)

applies. We therefore proceed under the same assumption.

¶ 37 Turning to Spoto, we discern no abuse of discretion in the

district court’s decision admitting the second letter. First, the

second letter, which showed Nero’s consciousness of guilt, related

to a material fact — whether Nero committed the criminal acts at

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the Circle K as alleged. See, e.g., People v. Acosta, 2014 COA 82,

¶ 59 (evidence showing consciousness of guilt is “relevant because

it tend[s] to prove [that the] defendant committed the charged act”).

¶ 38 Second, by asking his ex-girlfriend to provide him with a false

alibi, Nero’s second letter was logically relevant because it had a

tendency to make the existence of a material fact — that he

committed the criminal acts as alleged — more probable than it

would be without the letter. A juror reading the letter could

reasonably infer Nero’s guilt from his expressed desire to conceal

his role in the robbery. See id.; People v. Curtis, 2014 COA 100,

¶ 52 (defendant’s concealment of “the stillborn baby’s body tend[ed]

to evince consciousness of guilt”).

¶ 39 Third, the letter possessed logical relevance independent of the

intermediate inference that Nero had a bad character and acted in

conformity with his bad character. See Spoto, 795 P.2d at 1318.

Regardless of whether the jury might have believed that Nero

possessed bad character due to his attempted witness tampering, or

acted in conformity with such character, the letter was logically

relevant because it tended to show his consciousness of guilt,

17

allowing the jury to draw the inference that Nero was the assailant

in the Circle K robbery. See Acosta, ¶ 59; People v. Medina, 51 P.3d

1006, 1013 (Colo. App. 2001) (evidence was admissible under Rule

404(b) to show consciousness of guilt because it showed

defendant’s “knowledge of the crime as well as his attempt to

conceal his role in the victim’s death”), aff’d, 71 P.3d 973 (Colo.

2003). Moreover, the district court mitigated any danger of the jury

making a prohibited inference by instructing the jurors that the

second letter couldn’t be considered for any purpose other than

showing Nero’s consciousness of guilt. Absent evidence to the

contrary, we presume that the jury heeded the court’s limiting

instruction. People v. Rowe, 2012 COA 90, ¶ 46.

¶ 40 Finally, the second letter’s probative value wasn’t substantially

outweighed by the danger of unfair prejudice. Id. Although the

letter was unfavorable to Nero, it was highly probative because it

revealed his attempt to conceal his role in the robbery. See, e.g.,

People v. Baca, 852 P.2d 1302, 1308-09 (Colo. App. 1992) (“The

evidence concerning defendant’s flight . . . was relevant to his

consciousness of guilt, and its probative value was not substantially

18

outweighed by the danger of unfair prejudice.”). Further, the letter

wasn’t “unfairly prejudicial” since it didn’t lead the jury to render its

decision on an improper basis. See Rowe, ¶ 45. Rather, the district

court instructed the jury that it could consider the letter only to

show Nero’s consciousness of guilt.

¶ 41 Accordingly, the district court didn’t abuse its discretion by

admitting the second letter.

III. Disposition

¶ 42 We affirm the judgment.

JUDGE FOX and JUDGE GROVE concur.