People v. Demarea Deshawn Mitchell

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 18, 2024

2024COA7

No. 21CA1676, People v. Mitchell — Constitutional Law —
Fourteenth Amendment — Equal Protection — Selective
Prosecution

A division of the court of appeals considers whether

codefendants charged with the same offense are necessarily

similarly situated for purposes of a selective prosecution claim.

Informed by how federal courts have addressed selective

prosecution claims, the division concludes that sharing a charge

does not, by itself, make codefendants similarly situated. Rather,

the People may make different prosecutorial decisions with respect

to codefendants who share a charge based on their different

conduct.

The division next addresses whether the district court erred by

denying the defendant’s motion for a reverse transfer to juvenile
court or by excluding certain evidence. The division concludes that

the district court did not err and, accordingly, affirms the judgment.
COLORADO COURT OF APPEALS 2024COA7

Court of Appeals No. 21CA1676
Arapahoe County District Court No. 19CR1443
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Demarea Deshawn Mitchell,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE YUN
Freyre and Richman*, JJ., concur

Announced January 18, 2023

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

Patrick R. Henson, Alternate Defense Counsel, 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. 2023.
¶1 Demarea Deshawn Mitchell and three codefendants, all

juveniles, conspired to rob the victim at gunpoint. During the

attempted robbery, the victim was shot and killed. The People

initially charged the four youths with felony murder based on their

participation in the attempted robbery, prosecuting all four as

adults. But after two of the codefendants, neither of whom is

Black, agreed to cooperate with law enforcement, the People refiled

their cases into juvenile court.

¶2 Mitchell, who is Black, argues that, by continuing to prosecute

him as an adult while treating the two non-Black codefendants as

juveniles, the People engaged in selective prosecution based on

race. He argues that the four codefendants were similarly situated

at the outset of the case because the People filed the same charges

against all of them. But, informed by how federal courts have

addressed selective prosecution claims, we conclude that sharing a

charge does not, by itself, make codefendants similarly situated for

purposes of a selective prosecution claim. Rather, the People may

make different prosecutorial decisions with respect to codefendants

who share a charge based on their different conduct.

1
¶3 We further conclude that the district court did not err by

denying Mitchell’s motion for a reverse transfer to juvenile court or

by excluding certain evidence. We therefore affirm the judgment of

conviction entered on jury verdicts finding Mitchell guilty of first

degree felony murder, attempted aggravated robbery, and

conspiracy to commit aggravated robbery.

I. Background

¶4 The following evidence was presented at trial. In the spring of

2019, when high school students K.G. and J.S. were dating, K.G.

came up with the idea of robbing the victim, another student, for

vaping products. The victim was best friends with J.S.’s ex-

boyfriend, and K.G. did not like him for that reason. J.S. agreed to

the plan and arranged to meet up with the victim, ostensibly to buy

the vaping products from him.

¶5 On May 8, 2019, K.G. called his friend D.S., told him about

the planned robbery, and asked to borrow a stolen gun D.S. had in

his possession. D.S. agreed to the plan, and when K.G. picked him

up in J.S.’s car, D.S. brought the loaded gun. The two then called

Mitchell and asked “if he wanted to hang out for a little.” Mitchell

agreed to hang out, and they picked him up as well. K.G. told

2
Mitchell about the plan to rob the victim, and Mitchell agreed to the

plan.

¶6 K.G., D.S., and Mitchell discussed how they would conduct

the robbery. They decided that, when they met up with the victim

as J.S. had arranged, “they were going to roll down the window [of

the car] and just drive away with [the vaping products]; but if that

didn’t, like, work, then they had the gun to, like, pop out.”

¶7 K.G., D.S., and Mitchell picked up J.S. from work that

evening, and the four of them drove to the victim’s house. K.G. was

driving, J.S. was in the front passenger seat, and D.S. and Mitchell

were in the back with the gun either on the seat between them or

on the floor. When they arrived at the victim’s house, the four

again discussed the planned robbery and agreed that, if they

“couldn’t just take the stuff and drive off,” then “somebody was

going to get out the gun and scare” the victim.

¶8 J.S. texted the victim that she was there. The victim came

outside, walked up to the car, spoke to J.S. through the window,

and asked to see the money before showing her the vaping

products. Mitchell picked up the gun, and he and K.G. got out of

the car. Mitchell walked up to the victim, “grabbed him[,] and put

3
the gun to him.” The victim resisted and wrestled Mitchell to the

ground. K.G. ran toward them. Then, as they struggled, Mitchell

shot the victim in the chest.

¶9 The victim screamed and ran back into his house. K.G. and

Mitchell got back into the car, and the four of them drove away.

K.G. asked Mitchell where he shot the victim, and Mitchell replied,

“I don’t know, somewhere in the stomach.” They talked about what

to do with the gun, and Mitchell offered to dispose of it. The next

day, Mitchell attempted to sell it to another person.

¶ 10 In the hospital before he died, the victim told a police officer

that “Kenny” (that is, K.G.) shot him.

II. Procedural History

¶ 11 Although K.G., J.S., D.S., and Mitchell were all juveniles at the

time of the shooting, the People charged all four as adults with first

degree felony murder, attempted aggravated robbery, and

conspiracy to commit aggravated robbery. But several months

later, the People refiled J.S.’s and D.S.’s cases into juvenile court,

where — in exchange for “full proffers in cooperation with law

enforcement” — J.S. and D.S. each pleaded guilty to one count of

aggravated robbery and were subsequently sentenced to two years

4
in the custody of the Division of Youth Services (DYS). Nothing in

the record indicates that a similar plea offer was extended to K.G. or

Mitchell.

¶ 12 J.S. is Hispanic, D.S. is white, and K.G. and Mitchell are both

Black.

¶ 13 Mitchell moved to “reverse transfer” his case to juvenile court

under section 19-2.5-801(4), C.R.S. 2023. After a hearing, the

district court denied the motion.

¶ 14 Mitchell then filed a motion to dismiss for selective

prosecution and a request for discovery, arguing that the disparate

treatment between himself and the two non-Black defendants, J.S.

and D.S., rose “to the level of a selective prosecution based on race.”

He argued that “Black people are disproportionately represented

and experience disparate treatment” in the American criminal

justice system generally and the Eighteenth Judicial District of

Colorado specifically, and that the People’s decision to prosecute

him as an adult while refiling J.S.’s and D.S.’s cases into juvenile

court exemplified this unequal treatment. He noted, however, that

no state agency currently publishes the statistical information he

would need to determine whether Black youths are

5
disproportionately “direct filed” — that is, prosecuted as adults — in

the Eighteenth Judicial District. Accordingly, he asked the court to

order discovery of (1) all emails regarding plea negotiations between

the prosecution and the lawyers for J.S. and D.S.; (2) any statistical

data regarding charging decisions for direct-file-eligible juveniles;

(3) any notes from meetings or staffing decisions in direct-file-

eligible cases, including his own; (4) a list of all cases in which

juveniles were direct file eligible and the race of those juveniles; and

(5) the outcome of each case in which juveniles were direct file

eligible.

¶ 15 The court denied the motion. Mitchell proceeded to trial, and

the jury found him guilty as charged. The court imposed the

mandatory sentence for felony murder of life in the custody of the

Department of Corrections (DOC) with the possibility of parole after

forty years.

¶ 16 Mitchell now appeals.

III. Analysis

¶ 17 Mitchell contends that the district court erred by (1) denying

his motion to dismiss for selective prosecution and request for

discovery; (2) denying his motion for a reverse transfer to juvenile

6
court; and (3) excluding certain evidence at trial. We address each

contention in turn.

A. Selective Prosecution

¶ 18 Mitchell contends that the district court erred by finding that

he failed to make the threshold showing of selective prosecution

necessary to obtain discovery. We disagree.

1. Standard of Review and Governing Law

¶ 19 We review the district court’s denial of discovery on a selective

prosecution claim for an abuse of discretion. See People v. Butler,

224 P.3d 380, 384 (Colo. App. 2009). A court abuses its discretion

“if it misconstrues or misapplies the law or otherwise reaches a

manifestly arbitrary, unreasonable, or unfair result.” People v.

Johnson, 2019 COA 159, ¶ 10, aff’d, 2021 CO 35.

¶ 20 The decision to prosecute is within the exclusive province of

the district attorney. Colo. Const. art. VI, § 13. A prosecutor has

“wide discretion in determining who to prosecute for criminal

activity and on what charge.” Butler, 224 P.3d at 383 (quoting

People v. Kurz, 847 P.2d 194, 196 (Colo. App. 1992)). But a

prosecutor’s discretion to bring charges is constrained by the Equal

Protection Clause of the Fourteenth Amendment. United States v.

7
Armstrong, 517 U.S. 456, 464 (1996); People v. Gallegos, 226 P.3d

1112, 1118 (Colo. App. 2009). “Equal protection of the laws

guarantees that persons who are similarly situated will receive like

treatment by the law.” Harris v. Ark, 810 P.2d 226, 229 (Colo.

1991).

¶ 21 “Selective prosecution is a claim that the prosecutor has

brought a criminal charge for a forbidden reason, such as race or

religion, that violates equal protection.” Butler, 224 P.3d at 384

n.1. The defendant has the burden of establishing that “the

selective prosecution had a discriminatory effect and was motivated

by a discriminatory purpose.” Kurz, 847 P.2d at 197. To obtain

discovery on a selective prosecution claim, the defendant must

provide some credible evidence tending to show the existence of

both discriminatory effect and discriminatory intent. People v.

Valencia-Alvarez, 101 P.3d 1112, 1116 (Colo. App. 2004); see also

Butler, 224 P.3d at 384. “The some credible evidence standard for

obtaining discovery on a claim of selective . . . prosecution is

‘rigorous.’” Butler, 224 P.3d at 384 (quoting Armstrong, 517 U.S. at

468).

8
¶ 22 “To establish a discriminatory effect [on the basis of race], the

claimant must show that similarly situated individuals of a different

race were not prosecuted.” Armstrong, 517 U.S. at 465. “The

threshold question in any equal protection challenge is whether the

persons allegedly subject to disparate treatment are in fact similarly

situated.” People v. Black, 915 P.2d 1257, 1260 (Colo. 1996).

“[S]haring a charge alone does not make defendants ‘similarly

situated’ for purposes of a selective prosecution claim.” In re United

States, 397 F.3d 274, 285 (5th Cir. 2005). Rather, “defendants are

similarly situated when their circumstances present no

distinguishable legitimate prosecutorial factors that might justify

making different prosecutorial decisions with respect to them.”

United States v. Deberry, 430 F.3d 1294, 1301 (10th Cir. 2005)

(quoting United States v. Olvis, 97 F.3d 739, 744 (4th Cir. 1996)).

¶ 23 “The fact that some people escaped prosecution under a

statute is not a denial of equal protection unless the prosecutor’s

selective enforcement of the statute was intentional or purposeful.”

People in Interest of T.B., 2016 COA 151M, ¶ 67, aff’d, 2019 CO 53.

Discriminatory purpose “implies more than intent as volition or

intent as awareness of consequences. It implies that the

9
decisionmaker . . . selected or reaffirmed a particular course of

action at least in part ‘because of,’ not merely ‘in spite of,’ its

adverse effects upon an identifiable group.” McCleskey v. Kemp,

481 U.S. 279, 298 (1987) (quoting Pers. Adm’r v. Feeney, 442 U.S.

256, 279 (1979)). Discriminatory purpose can be shown by either

direct or circumstantial evidence. Deberry, 430 F.3d at 1299.

Generally, to prevail under the Equal Protection Clause, a

defendant “must prove that the decisionmakers in his case acted

with discriminatory purpose.” McCleskey, 481 U.S. at 292. But in

“certain limited contexts,” courts have “accepted statistics as proof

of intent to discriminate.” Id. at 293. In Yick Wo v. Hopkins,

118 U.S. 356 (1886), for example, where all but one of the white

applicants received permits to operate laundries but none of the

Chinese applicants did, the “statistical pattern of discriminatory

impact demonstrated a constitutional violation.” McCleskey,

481 U.S. at 293 n.12.

2. Discussion

¶ 24 Mitchell argues that the four juvenile codefendants were

“similarly situated at the outset of the case” because all were

charged with felony murder based on their equal participation in

10
the attempted robbery. Relying on the felony murder statute,

Mitchell suggests that it does not matter who shot the victim

because liability arises from the participation in, and the intent to

commit, the predicate felony — attempted robbery.

¶ 25 But the district court found that, regardless of the charges

filed, Mitchell was not similarly situated to J.S. and D.S. because

the evidence “support[ed] a finding that Mr. Mitchell is the

participant who actually shot and killed” the victim. Although the

court found that “[c]onsideration of that fact alone is sufficient to

find that [Mitchell] is not similarly situated to the [other] individuals

who drove to the scene,” it further noted that Mitchell was not

similarly situated to J.S. and D.S. because the latter two chose to

cooperate with law enforcement and “participated in proffers with

the district attorney which included acknowledgment of their

respective roles in the crime.” Accordingly, the court found that

Mitchell “ha[d] not met his burden to show a discriminatory effect in

the continued prosecution of him as an adult.”

¶ 26 The district court properly went beyond the charges the four

juveniles shared and considered each participant’s involvement in

the crime to determine whether they were similarly situated. Apart

11
from the victim’s statement that “Kenny” (that is, K.G.) shot him,

the bulk of the evidence supported a finding that Mitchell fired the

shot that killed the victim. Further, the evidence suggested the

victim may have named K.G. because he knew and could identify

him, while he did not know Mitchell. Under these facts, the

evidence that Mitchell was the likely shooter was a “legitimate

prosecutorial factor[]” on which the prosecution could permissibly

base its decision to treat Mitchell differently than J.S. and D.S.

Deberry, 430 F.3d at 1301 (quoting Olvis, 97 F.3d at 744); see, e.g.,

Keene v. Mitchell, 525 F.3d 461, 465 (6th Cir. 2008) (concluding

that the defendant, who “was the triggerman in four out of the five

aggravated murders,” was not similarly situated to a codefendant

who “was not the triggerman for any of the murders”); In re United

States, 397 F.3d at 284 (concluding that the driver of a truck in

which nineteen migrants died was not similarly situated to other

participants in the smuggling conspiracy because only he, as the

driver, could have heeded the victims’ screams, stopped the truck,

and prevented their deaths); United States v. Cook, 949 F.2d 289,

291-92 (10th Cir. 1991) (concluding that the defendant — a

“‘major,’ ‘high ranking’ cocaine trafficker” — was not similarly

12
situated to a codefendant whose “participation was limited to

throwing the cocaine out the car window when [the defendant]

handed it to her and ordered her to do so”).

¶ 27 Further, as the district court noted, the decision by J.S. and

D.S. to cooperate with law enforcement was another legitimate

factor for prosecutorial decision-making. In the district court

proceeding, the People asserted, and Mitchell did not dispute, that

“both co-conspirators who resolved their cases via plea bargains

offered full proffers in cooperation with law enforcement in advance

of any plea bargain being offered.” See, e.g., United States v. Darif,

446 F.3d 701, 708 (7th Cir. 2006) (concluding that the defendant

was not similarly situated to codefendants who “agreed to accept

immunity in exchange for testimony against” him); United States v.

Alanis, 265 F.3d 576, 585 (7th Cir. 2001) (noting that “it is

axiomatic that an individual who decides not to cooperate with the

government is not similarly situated to one who does cooperate,”

but acknowledging that, if the “bigger picture showed that in all

similar cases the non-Mexican suspects were given an opportunity

to cooperate to the exclusion of those of Mexican descent, obviously

the issue might well be different”).

13
¶ 28 We thus conclude that the district court did not abuse its

discretion by finding that Mitchell was not similarly situated to J.S.

and D.S. and that he therefore had not demonstrated

discriminatory effect.

¶ 29 To obtain discovery on a selective prosecution claim, a

defendant must provide some credible evidence of both

discriminatory effect and discriminatory purpose. Valencia-Alvarez,

101 P.3d at 1116; Armstrong, 517 U.S. at 468. Because Mitchell

has not demonstrated discriminatory effect, we do not address

whether his statistical evidence meets the some credible evidence

threshold for demonstrating discriminatory purpose.

B. Reverse-Transfer Hearing

¶ 30 Mitchell contends that the district court erred by denying his

motion for a reverse transfer to juvenile court because it misapplied

two of the statutory factors it was required to consider: “the

maturity of the juvenile” and “[t]he likelihood of the juvenile’s

rehabilitation.” § 19-2.5-801(4)(b)(IV), (VII). We disagree.

1. Standard of Review and Governing Law

¶ 31 We review issues of statutory interpretation and application de

novo. People v. Johnson, 2016 CO 69, ¶ 9; People v. Barnett, 2020

14
COA 167, ¶ 10. In doing so, “we give words and phrases their plain

and ordinary meaning, read them in context, and construe them

according to the rules of grammar and common usage.” People v.

Brown, 2019 CO 50, ¶ 16. But we review the district court’s factual

findings for clear error and defer to those findings if they are

supported by the record. M.D.C./Wood, Inc. v. Mortimer, 866 P.2d

1380, 1383 (Colo. 1994).

¶ 32 A juvenile charged by direct filing in district court may move

for a reverse transfer to juvenile court. § 19-2.5-801(4)(a); Johnson,

¶ 10. Upon receipt of the motion, the court must set a

reverse-transfer hearing with the preliminary hearing.

§ 19-2.5-801(4)(a). “In determining whether the juvenile and the

community would be better served by” the case proceeding in the

adult criminal system or the juvenile system, the court “shall

consider” eleven factors:

(I) The seriousness of the alleged offense and
whether the protection of the community
requires response or consequence beyond that
afforded by [the juvenile system];

(II) Whether the alleged offense was committed
in an aggressive, violent, premeditated, or
willful manner;

15
(III) Whether the alleged offense was against
persons or property, greater weight being given
to offenses against persons;

(IV) The age of the juvenile and the maturity of
the juvenile, as determined by considerations
of the juvenile’s home, environment, emotional
attitude, and pattern of living;

(V) The juvenile’s record and previous history
in prior court-related matters;

(VI) The juvenile’s current and past mental
health status, as evidenced by relevant mental
health or psychological assessments or
screenings that are made available to both the
district attorney and defense counsel;

(VII) The likelihood of the juvenile’s
rehabilitation by use of the sentencing options
available in the juvenile courts and district
courts;

(VIII) The interest of the community in the
imposition of a punishment commensurate
with the gravity of the offense;

(IX) The impact of the offense on the victim;

(X) Whether the juvenile was previously
committed to the department of human
services following an adjudication for a
delinquent act that constitutes a felony; and

(XI) Whether the juvenile used, or possessed
and threatened the use of, a deadly weapon in
the commission of the delinquent act.

§ 19-2.5-801(4)(b).

16
2. Maturity

¶ 33 At the reverse-transfer hearing, the defense presented an

expert in adolescent psychology who testified that, during her work

with Mitchell, she administered an assessment called the Risk-

Sophistication-Treatment Inventory (RSTI). She testified that “the

RSTI was developed in an attempt to provide courts with

information . . . about dangerousness, sophistication, and . . .

treatment amenability, as it relates to juveniles who are . . .

involved in the juvenile justice system.” She further testified that

Mitchell’s “scores were in . . . the high range for sophistication and

maturity.”

¶ 34 In its oral ruling on Mitchell’s reverse-transfer motion, the

district court discussed all eleven statutory factors and the evidence

relevant to each. As to the fourth factor, “[t]he age of the juvenile

and the maturity of the juvenile, as determined by considerations of

the juvenile’s home, environment, emotional attitude, and pattern of

living,” § 19-2.5-801(4)(b)(IV), the court made the following findings:

 Mitchell was one month shy of his seventeenth birthday at

the time of the offense;

17
 Mitchell experienced trauma during his childhood,

including domestic violence, child abuse, homelessness,

multiple changes of school, and the violent loss of several

men close to him;

 the juvenile brain is not fully developed, particularly with

regard to the high-level executive functioning involved in

decision-making, reasoning, impulse control, and empathy;

 Mitchell “scored high in maturity and sophistication during

his . . . testing and evaluation” by the adolescent psychology

expert;

 youth services center staff “viewed [Mitchell] as a leader,

someone who could be counted on to help control other

juveniles at the center, someone who could lead by

example”; and

 Mitchell’s RSTI evaluation scores and leadership at the

youth services center suggested that he was amenable to

change and treatment, but also “suggest[ed] that [he]

possessed both maturity and sophistication at the time of

the offense and was not merely the victim of an adolescent

brain” or “peer pressure.”

18
¶ 35 Mitchell acknowledges that “the RSTI maturity score was

relevant evidence” that the district court could properly consider in

ruling on his motion for reverse transfer, but he argues that the

court reversibly erred by allowing the RSTI to “outweigh[]” the

evidence regarding the environment in which he grew up. The

reverse-transfer statute, however, provides only that the court

“shall consider” the eleven factors. It is left for the court to

determine how to weigh the evidence presented regarding each

factor. Further, there is no indication in the record that the court

viewed the RSTI as “outweigh[ing]” other relevant evidence. Rather,

the court found that Mitchell’s high scores in maturity and

sophistication, combined with his demonstrated leadership at the

youth services center, suggested both an amenability to change and

treatment and a greater degree of responsibility for his actions at

the time of the offense.

¶ 36 These findings are grounded in the evidence. We thus discern

no error in the court’s application of the fourth factor.

3. Likelihood of Rehabilitation

¶ 37 The adolescent psychology expert testified that Mitchell was at

a “crossroads” where he “could go one way or the other” — that is,

19
he had “the potential to get some treatment and address his mental

health concerns and learn some skills to live a prosocial life,” but he

could also “go the other way and . . . become a more sophisticated

criminal.” She testified that Mitchell’s treatment needs were “pretty

high” and that “complex trauma and the level of mental health

symptoms that he has are difficult to treat and can take a lot of

time to treat.” She testified that there was “substantial room for

rehabilitation . . . with the right services,” but that a “lifetime of

trauma” could not be dealt with “overnight.”

¶ 38 The assessment services coordinator for DYS testified about

the “treatment modalities . . . DYS use[s] in its facilities.” The

coordinator also testified that the recidivism rate (defined as

commission of class 1 misdemeanors and felonies) among juvenile

offenders coming out of DYS programs was “approximately 55

percent” over a three-year period.

¶ 39 As to the seventh statutory factor, “[t]he likelihood of the

juvenile’s rehabilitation by use of the sentencing options available

in the juvenile courts and district courts,” § 19-2.5-801(4)(b)(VII),

the district court made the following findings:

20
 the adolescent psychology expert expressed “concerns

about [Mitchell] going to [DOC] and being surrounded by

negative influences”;

 Mitchell’s treatment needs were “high” and could “take a

long time” to address;

 DYS “likely provides greater services [than DOC] to

people in its programs, but it has very little time in which

to provide those services given that it loses jurisdiction

over its clients at the age of 21”;

 the court was “discouraged and disappointed in the

recidivism rate of 55 percent with [DYS]”; and

 in light of all of the evidence, the court had “insufficient

confidence in the ability of the sentencing options

available in the juvenile courts to ensure [Mitchell’s]

rehabilitation.”

¶ 40 Mitchell argues that the court reversibly erred by

“requir[ing] . . . a demonstration that the DYS options would

‘ensure’ [his] rehabilitation.” He argues that the seventh statutory

factor does not require that the sentencing options available in

juvenile court “ensure” a juvenile’s rehabilitation, and that the

21
court’s misinterpretation of the statute “impos[ed] an

insurmountable burden.”

¶ 41 We agree with Mitchell that the statute does not require the

court to find that a juvenile’s rehabilitation is “ensured” before

transferring the case to juvenile court — rather, it requires the

court only to consider “[t]he likelihood of the juvenile’s

rehabilitation.” § 19-2.5-801(4)(b)(VII). But the record shows that

the district court properly considered the likelihood of Mitchell’s

rehabilitation by use of the sentencing options available in the

juvenile courts and district courts. The court considered the

adolescent psychology expert’s concerns about the negative

influences Mitchell would encounter in DOC, the treatment

opportunities available through DYS, the evidence that Mitchell had

significant treatment needs, and the recidivism evidence. In short,

the district court undertook the analysis required by the seventh

statutory factor, despite its ill-chosen use of the word “ensure.”

¶ 42 Further, section 19-2.5-801(4)(b) directs the court to consider

the likelihood of rehabilitation as one of eleven factors in

determining whether to order a reverse transfer to juvenile court.

The statute leaves the determination of how to weigh the factors to

22
the court’s discretion. Thus, a court could properly determine that,

where the alleged offense was serious (first factor), violent (second

factor), committed against a person (third factor), the cause of the

victim’s death (ninth factor), and committed with a deadly weapon

(eleventh factor), the juvenile and the community would be better

served by the case proceeding in the juvenile system only if the

likelihood of rehabilitation were very high.

¶ 43 We thus discern no error in the court’s application of the

seventh factor.

C. Evidentiary Ruling

¶ 44 Finally, Mitchell contends that the district court erred by

excluding evidence that K.G. had previously robbed the victim. We

disagree.

1. Standard of Review

¶ 45 A district court has substantial discretion in ruling on the

admissibility of evidence. People v. Beilke, 232 P.3d 146, 149 (Colo.

App. 2009). We will not disturb the court’s decision absent a

showing that it was manifestly arbitrary, unreasonable, or unfair.

Id.

23
2. Additional Background

¶ 46 The defense sought to present evidence at trial that K.G. had

previously robbed or attempted to rob the victim for either vaping

products or shoes. Defense counsel argued that the evidence

(1) was “consistent with [the] theory of defense that Mr. Mitchell

was a late-joiner to this group, not part of the plan, and that [K.G.]

had in fact done this before”; and (2) went to “lack of mistake by

[the victim] in identifying [K.G.] as the shooter because this ha[d]

happened previously.” The prosecutor objected, arguing that the

evidence was irrelevant because an alleged prior instance of

violence by K.G. against the victim had “nothing to do with whether

or not [Mitchell] played a part in the second instance of violence.”

The prosecutor also argued that, to the extent the defense was

claiming that “because [K.G.] perpetrated some violence on [the

victim] before, he must have been the sole perpetrator of violence

here,” this constituted improper character evidence under CRE

404(b).

¶ 47 The district court initially sustained the objection, but then it

asked what evidence the defense had regarding a prior robbery, so

that it could conduct a full analysis pursuant to People v. Spoto,

24
795 P.2d 1314 (Colo. 1990). Defense counsel responded that J.S.

had told the police “that the reason that they did this is because

[K.G.] had done this previously.” The court and defense counsel

then questioned J.S. outside the presence of the jury. J.S. said she

was aware of a prior robbery but did not know whether K.G. had

been involved in it or not. Based on J.S.’s responses, the court

found that it could not determine by a preponderance of the

evidence that any prior robbery of the victim by K.G. had occurred.

Accordingly, the court did not permit the defense to inquire further

into the issue.

3. Law and Discussion

¶ 48 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. Only relevant evidence is admissible.

CRE 402.

¶ 49 We agree with the People that evidence of a prior robbery by

K.G. against the victim was not relevant. See People v. Eppens,

979 P.2d 14, 22 (Colo. 1999) (we may affirm the district court’s

ruling on any ground supported by the record). Because it was

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uncontested that K.G. and the victim knew each other, evidence of

a prior robbery did not make it more likely that the victim

accurately identified “Kenny” as the shooter.1 Likewise, evidence

that K.G. had previously robbed the victim did not make it less

likely that Mitchell participated in the plan to rob the victim on

May 8, 2019. See United States v. Farrington, 58 F. App’x 919, 925

(3d Cir. 2003) (concluding that evidence that a codefendant

“committed other frauds without [the defendant’s] help does not

render it less likely that he received [the defendant’s] cooperation

here”).

¶ 50 Further, even assuming that evidence of the prior robbery

could be considered relevant, the court’s exclusion of the evidence

because the defense failed to make the threshold showing under

CRE 404(b) did not constitute an abuse of discretion. Under CRE

404(b)(2), evidence of other acts may be admissible for a non-

propensity purpose. The district court is tasked with analyzing the

1 As the People acknowledge, the prior robbery could have been

relevant if there were evidence that the victim learned K.G.’s name
and recognized him because of it. But the defense proffered no
such evidence, and the testimony indicated that the victim
otherwise knew K.G.

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evidence before it may be admitted, including a determination by a

preponderance of the evidence that the other act occurred and that

the person alleged committed it. See People v. Garner, 806 P.2d

366, 372 (Colo. 1991). Here, although the court and defense

counsel questioned J.S. regarding the alleged prior robbery, J.S.

disavowed any knowledge of K.G.’s involvement. The record thus

supports the court’s finding that it could not determine by a

preponderance of the evidence that K.G. had previously robbed the

victim.

¶ 51 We thus discern no abuse of discretion.

IV. Disposition

¶ 52 The judgment is affirmed.

JUDGE FREYRE and JUDGE RICHMAN concur.

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