22CA1968 Peo v Gist 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1968

Larimer County District Court No. 21CR460

Honorable Laurie K. Dean, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dennis J. Gist,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II

Opinion by JUDGE GROVE

Fox and Sullivan, JJ., concur

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

Announced August 29, 2024

Philip J. Weiser, Attorney General, Claire V. Collins, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Suzan Trinh Almony, Alternate Defense Counsel, Broomfield, Colorado, for

Defendant-Appellant

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¶ 1 Defendant, Dennis J. Gist, appeals the judgment of conviction

entered on jury verdicts finding him guilty of first degree murder

after deliberation, first degree felony murder, second degree

burglary, and two counts of tampering with physical evidence. We

affirm.

I. Background

¶ 2 The prosecution presented the following evidence at trial.

¶ 3 On the morning of the murder, the victim, Jordan Sinden, and

two friends, Aimee Lansden and Mason Bridgeman, slept in

Sinden’s motel room. Sinden had surveillance cameras installed

inside and outside the motel room.

¶ 4 Gist and one of his codefendants, Jonathan Fuhrman, drove to

the motel. Fuhrman knocked on Sinden’s door while Gist stood to

the side. After several minutes, Bridgeman opened the door.

Fuhrman stepped inside. Gist, who was wearing a distinctive black

leather jacket, a black baseball hat, and a black glove on his left

hand, followed Fuhrman into the room, and Bridgeman exited. Gist

pulled the blanket off Sinden and shot him in the eye with a .22

caliber revolver, killing him. Fuhrman then retrieved a cell phone

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that was next to Sinden, which Sinden had been using to watch the

surveillance camera footage.

¶ 5 Fuhrman, Lansden, and Gist got into Fuhrman’s car. Gist

told Fuhrman to drive to the house of codefendant Derrick Pippin

so that he could dispose of the revolver. Before the shooting, Pippin

had given Gist the revolver in exchange for a 9-millimeter Ruger

handgun and magazine.

¶ 6 Once at Pippin’s house, Gist got out of the car and went inside

where he gave Pippin the revolver, leather jacket, baseball hat, and

cell phone. Gist returned to the car with only the cell phone, which

had been factory reset. Pippin placed the jacket and hat in a bag

and stored it in a back room of his house. He disassembled the

revolver, wiped it down, wrapped it up, and gave it to a friend. He

also hid the Ruger handgun behind his house and the magazine in

a tree.

¶ 7 Gist was arrested the next day. Fuhrman and Pippin later

helped law enforcement recover the revolver, black leather jacket,

black hat, Ruger handgun, and magazine.

¶ 8 The prosecution charged Gist with first degree murder after

deliberation, first degree felony murder, second degree burglary, two

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counts of tampering with physical evidence, and two counts of

possession of a weapon by a previous offender (POWPO).

¶ 9 Law enforcement officers collected DNA samples from Sinden,

Gist, Fuhrman, and Pippin. The black leather jacket, Ruger

magazine, Ruger handgun, and revolver were submitted to the

Colorado Bureau of Investigation (CBI) for DNA analysis. Each item

produced a DNA mixture indicative of four contributors. The

analysis of the jacket indicated very strong support that Gist and

Pippen were contributors to the DNA mixture. The analysis of the

magazine indicated very strong support that Sinden and Pippen

were contributors but only moderate support that Gist was a

contributor. And Gist was excluded as a contributor to the DNA

mixtures obtained from the handgun and the revolver.

¶ 10 Before trial, Gist filed a motion to exclude DNA evidence with

four or more contributors and requested a hearing under People v.

Shreck, 22 P.3d 68 (Colo. 2001). The trial court conducted a Shreck

hearing. The prosecution presented testimony from the DNA

program manager and technical leader from the CBI, as well as the

CBI analyst who conducted the DNA analysis. The program

manager testified about CBI’s process for DNA analysis; the CBI’s

4

validation and ongoing audits of STRmix, the probabilistic

genotyping software program used for DNA analysis; and the

process for determining the number of contributors to a DNA

mixture. The DNA analyst further explained the process for

determining the number of contributors to a DNA mixture, as well

as her analysis of the items in this case.

¶ 11 The defense presented testimony from a law professor who was

qualified as an expert in forensic DNA typing. The professor

testified about complex DNA mixtures and the fact that the true

number of contributors can never be known, otherwise known as

the “ground truth.” The professor also testified regarding an article

that discussed whether confirmation bias might influence DNA

mixture interpretation. He further testified that he disagreed with

the DNA analyst’s conclusion that the leather jacket had four

contributors because, he opined, that decision was subjective.

¶ 12 Based on this testimony, defense counsel argued that the DNA

mixtures with four contributors were unreliable because the

conclusions that the DNA analysts drew were subjective and

vulnerable to confirmation bias. In response, the prosecutor argued

that courts throughout Colorado had repeatedly approved the

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admission of four-contributor DNA following Shreck hearings, and

that the complexities inherent in assigning a number of

contributors is not an issue unique to the technology used by the

CBI.

¶ 13 The trial court issued a detailed order denying Gist’s motion to

exclude the DNA evidence. The court found the prosecution’s

witnesses to be credible and that the evidence was reasonably

reliable, relevant, and satisfied CRE 403. The court found that the

DNA evidence with four contributors was reasonably reliable

because STRmix has been validated by the CBI for up to five person

mixtures, the CBI has developed operating standards to ensure the

reliability of the results, STRmix results have been subjected to peer

review and publication, STRmix is not a new or novel technology,

STRmix has been generally accepted in the scientific community,

and STRmix results for four or more contributors had been found to

be reliable by other courts in Colorado. The court further found

that the DNA analyst was qualified, her testimony would be helpful

to the jury, and the probative value of the DNA evidence outweighed

any danger of misleading the jury or unfairly prejudicing Gist.

6

¶ 14 At trial, the DNA analyst testified as to her findings regarding

the evidence submitted for DNA testing, including the

four-contributor DNA mixtures. The prosecution presented

testimony from twenty-seven other witnesses, three of whom —

Lansden, Bridgeman, and Fuhrman — were present during the

shooting. The jury viewed a video of the shooting, a video of Gist

and Fuhrman outside Sinden’s motel room before the shooting, and

videos of Gist in Sinden’s room one day and two days before the

shooting.

¶ 15 The defense’s theory as articulated in the jury instructions

was that Gist “was not the individual who caused the death of

Jordan Sinden.”

¶ 16 The jury found Gist guilty on all of the charges presented to it.

The prosecution subsequently requested dismissal of the POWPO

charges, and the trial court dismissed them. The court sentenced

Gist to a controlling sentence of life in prison without the possibility

of parole.

II. Discussion

¶ 17 Gist contends that the trial court erroneously admitted expert

witness testimony regarding DNA evidence with four contributors,

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which violated the standards for expert testimony outlined in

Shreck as well as his constitutional right to a fair trial. He argues

that four-contributor DNA mixtures are inherently unreliable

because the true number of contributors can never be known, and

the analyst’s determination of this number is subjective and subject

to confirmation bias. He further argues that the probative value of

the DNA evidence with four contributors was substantially

outweighed by the dangers of misleading the jury and unfair

prejudice because jurors place great emphasis on DNA evidence.

We need not determine if the admission of this testimony was error,

however, because even if the court’s ruling was erroneous, its error

was harmless.

A. Standards of Review and Reversal

¶ 18 If an evidentiary error is preserved by objection, the error is

reviewed under either the harmless error or constitutional harmless

error standard. Hagos v. People, 2012 CO 63, ¶¶ 11-12. Whether

we apply a constitutional harmless error standard rather than

harmless error depends on if “the trial court’s evidentiary ruling, in

and of itself, deprived the defendant of any meaningful opportunity

to present a complete defense.” Krutsinger v. People, 219 P.3d

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1054, 1061 (Colo. 2009). “It does not follow, of course, that every

restriction on a defendant’s attempts to challenge the credibility of

evidence against him, or even every erroneous evidentiary ruling

having that effect, amounts to federal constitutional error.” Id. at

1062. “[T]he standard or test for assessing whether a defendant’s

right to . . . present a defense has been violated by evidentiary

rulings is clearly dependent upon the extent to which he was

permitted to subject the prosecutor’s case to ‘meaningful

adversarial testing.’” Id. (quoting Crane v. Kentucky, 476 U.S. 683,

691 (1986)). In essence, we do not review for constitutional

harmless error unless “the trial court’s [evidentiary] ruling . . .

effectively barred the defendant from meaningfully testing evidence

central to establishing his guilt.” Id.

¶ 19 Here, defense counsel extensively cross-examined twenty-five

of the twenty-eight witnesses, including the DNA analyst on her

determination that some of the DNA evidence had four contributors.

Under such circumstances, we are not persuaded that the trial

court’s ruling regarding the DNA analyst’s testimony denied Gist

the opportunity to subject the prosecution’s case to meaningful

adversarial testing. Accordingly, we will review the trial court’s

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ruling for nonconstitutional harmless error and disregard any error

unless it “substantially influenced the verdict or affected the

fairness of the trial proceedings.” Hagos, ¶ 12 (quoting Tevlin v.

People, 715 P.2d 338, 342 (Colo. 1986)).

B. Applicable Law

¶ 20 The admission of DNA expert testimony is governed by CRE

702 and CRE 403. Shreck, 22 P.3d at 77. Under CRE 702, such

evidence is admissible when (1) the scientific principles underlying

the testimony are reasonably reliable; (2) the expert is qualified to

opine on such matters; and (3) the expert testimony is useful to the

jury. Id. Under CRE 403, evidence may be excluded if its probative

value is substantially outweighed by the danger of unfair prejudice,

confusion of the issues, or misleading the jury.

C. Harmless Error

¶ 21 As mentioned, we need not decide whether admitting the DNA

analyst’s testimony regarding four-contributor DNA mixtures was

error because any error was harmless. We reach this conclusion for

several reasons.

¶ 22 First, the DNA mixtures collected from the murder weapon

and the Ruger handgun were not inculpatory because Gist was

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excluded as a contributor to both samples. Moreover, Gist’s

fingerprints were not on either weapon. Indeed, in opening

statement and closing argument, defense counsel argued that Gist’s

DNA and fingerprints were not on the murder weapon or the Ruger,

which, defense counsel maintained, provided reasonable doubt that

he was the shooter.

¶ 23 Second, the DNA evidence was cumulative of other evidence

connecting Gist to the leather jacket and the Ruger magazine. See

People v. Faussett, 2016 COA 94M, ¶ 54 (“In assessing the

harmlessness of error in admitting evidence, we consider a number

of factors, including . . . whether the proffered evidence was

cumulative . . . .”). The following evidence was introduced regarding

the jacket:

• In the surveillance video from two days before the

shooting, Gist was seen wearing a leather jacket with

distinctive threading on the upper back and shoulders.

• Bridgeman identified Gist in the surveillance video of the

shooting and testified that Gist was wearing the same

black leather jacket that he was wearing as shown in the

surveillance video taken two days before the shooting.

11

• The lead investigator testified that the leather jacket Gist

wore two days before the shooting looked similar to the

jacket law enforcement collected from Pippin’s house. He

further testified that the shooter in the surveillance video

wore a similar leather jacket. And he discussed the

distinctive threading on the jacket’s upper back and

shoulders that the jury could compare to the jacket

admitted into evidence, the jacket Gist wore two days

before the shooting, and the jacket the shooter wore.

• Fuhrman identified the leather jacket admitted into

evidence as the same one that Gist was wearing when he

shot Sinden.

• Pippin testified that Gist gave him the black leather

jacket after the shooting and that it matched the jacket

admitted into evidence.

¶ 24 Regarding the magazine, Pippin testified that he had

exchanged with Gist the revolver for the Ruger handgun and had

later hidden the Ruger magazine in a tree. Pippin later assisted law

enforcement in collecting the magazine, which was admitted into

evidence.

12

¶ 25 Third, there was overwhelming evidence of Gist’s guilt

independent of the DNA evidence. See Pernell v. People, 2018 CO

13, ¶¶ 25-26 (concluding that, because the properly admitted

evidence overwhelmingly showed the defendant’s guilt, the

evidentiary error was harmless).

• Surveillance video showed Gist and Fuhrman waiting

outside Sinden’s motel room before the shooting, and

Gist admitted in a police interview to being in the room

when Sinden was shot.

• There was surveillance video of the shooting, and

Lansden and Fuhrman both identified Gist as the

shooter.

• Bridgeman testified that, although he was not in the

room during the shooting, he saw Gist enter the room

and identified Gist in the surveillance video of the

shooting.

• Gunshot residue was found on Gist’s hands, confirming

he had close contact with a fired weapon.

• Pippin told law enforcement that Gist told him, “I killed

Jordan.”

13

• Sinden’s best friend testified that Gist told him on the

day of the shooting, “[m]ission accomplished,” “[t]hat’s a

done deal,” “[he] gone,” and “[h]e’s asleep” after returning

from Sinden’s motel room.

• Pippin testified that Gist gave him the revolver, a black

leather jacket, and a hat, which were recovered by law

enforcement and matched those items admitted into

evidence.

• The lead investigator testified that the revolver recovered

by law enforcement appeared to be the same revolver that

was used in the shooting.

• A firearms expert testified that a bullet fragment

recovered from Sinden’s skull during the autopsy was

conclusively fired from the revolver.

• As previously explained, the leather jacket worn by the

shooter and admitted into evidence appeared to be the

same jacket Gist wore in the surveillance video from two

days before the shooting.

14

• Fuhrman testified that Gist was wearing the leather

jacket and hat, which were recovered by law enforcement

and admitted into evidence, when he shot Sinden.

• When Gist was arrested, he was wearing shoes similar to

those worn by the shooter in the surveillance video. He

also had on his person a pair of gloves that tested

positive for gunshot residue.

¶ 26 Given the strength of the prosecution’s case, we cannot

conclude that the admission of DNA evidence with four

contributors, even if improper, substantially influenced the verdict

or affected the fairness of the trial proceedings. See People v.

Casias, 2012 COA 117, ¶ 69 (“‘[T]he single most important factor’ in

a nonconstitutional harmless error inquiry is whether the case was

‘close.’” (quoting United States. v. Ince, 21 F.3d 576, 584 (4th Cir.

1994)).

III. Disposition

¶ 27 The judgment of conviction is affirmed.

JUDGE FOX and JUDGE SULLIVAN concur.