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ADVANCE SHEET HEADNOTE

March 16, 2020

2020 CO 22

No. 19SA242, In Re People v. Rosas—Insanity—Not Guilty by Reason of 

Insanity Plea—Evidence Regarding a Defendant’s Capacity to Form the 

Requisite Culpable Mental State—Expert Mental Condition Evidence.

The supreme court concludes that evidence that a mental disease or defect 

prevented a defendant from forming the culpable mental state required by a 

charged offense is evidence relevant to the issue of insanity. Further, the supreme 

court concludes that a defendant—even one charged with specific intent crimes

—cannot introduce evidence relevant to the issue of insanity without first entering 

a plea of not guilty by reason of insanity. Because the district court allowed the 

defendant to introduce evidence relevant to the issue of insanity without requiring 

him to enter a plea of not guilty by reason of insanity, the supreme court makes 

the rule to show cause absolute. 
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2020 CO 22

Supreme Court Case No. 19SA242

Original Proceeding Pursuant to C.A.R. 21

Arapahoe County District Court Case No. 18CR72

Honorable Andrew C. Baum, Judge

________________________________________________________________________

In Re

Plaintiff:

The People of the State of Colorado,

v.

Defendant:

Paul Damon Rosas.

________________________________________________________________________

Rule Made Absolute

en banc

March 16, 2020

________________________________________________________________________

Attorneys for Plaintiff:

George H. Brauchler, District Attorney, Eighteenth Judicial District

Susan J. Trout, Senior Deputy District Attorney

Centennial, Colorado

Attorneys for Defendant:

The Law Firm of Michael D. Miller, LLC

Michael D. Miller

Lakewood, Colorado

JUSTICE SAMOUR delivered the Opinion of the Court.
2

¶1 Must a defendant charged with specific intent crimes plead not guilty by 

reason of insanity (“NGRI”) in order to introduce evidence that, as a result of a 

mental disease or defect, he was incapable of forming the requisite culpable mental 

state on the dates of the offenses charged? The district court said “no.” The People 

then filed a petition pursuant to C.A.R. 21, and we issued a rule to show cause. 

Because the correct answer to the question is “yes,” we make the rule absolute. 

Evidence that a mental disease or defect prevented a defendant from forming the 

culpable mental state required by an offense charged is evidence relevant to the 

issue of insanity. And a defendant—even one charged with specific intent 

crimes—cannot introduce evidence relevant to the issue of insanity without first 

pleading NGRI.

I

¶2 Based on an incident that occurred between January 3 and 4 of 2018, the 

People charged Paul Damon Rosas with two counts of second degree assault on a 

peace officer (class 4 felonies), two counts of attempted second degree assault on 

a peace officer (class 5 felonies), and one count of obstructing a peace officer (a 

class 2 misdemeanor). Rosas filed a notice of the affirmative defense of “impaired 

mental condition” pursuant to section 16-8-103.5, C.R.S. (2019), asserting that at 

the time of the offenses he was suffering from a mental disease or defect that made 

him incapable of forming the requisite culpable mental state. But this affirmative 
3

defense no longer exists; in fact, it hasn’t existed for a quarter of a century. See

§ 16-8-103.5(8) (“This section shall apply only to offenses committed before July 1, 

1995.”). Effective July 1, 1995, our General Assembly “modified the test for 

insanity to fold in the former affirmative defense for ‘impaired mental condition.’” 

Renfandt v. N.Y. Life Ins. Co., 2018 CO 49, ¶ 48, 419 P.3d 576, 585. Thus, what used 

to be the defense of “impaired mental condition” is now subsumed within the

defense of insanity. 

¶3 Insanity is defined through the following two-part test:

(a) A person who is so diseased or defective in mind at the time of the 

commission of the act as to be incapable of distinguishing right from 

wrong with respect to that act is not accountable; except that care 

should be taken not to confuse such mental disease or defect with 

moral obliquity, mental depravity, or passion growing out of anger, 

revenge, hatred, or other motives and kindred evil conditions, for, 

when the act is induced by any of these causes, the person is 

accountable to the law; or

(b) A person who suffered from a condition of mind caused by mental 

disease or defect that prevented the person from forming a culpable 

mental state that is an essential element of a crime charged, but care 

should be taken not to confuse such mental disease or defect with 

moral obliquity, mental depravity, or passion growing out of anger, 

revenge, hatred, or other motives and kindred evil conditions 

because, when the act is induced by any of these causes, the person is 

accountable to the law. 
4

§ 16-8-101.5(1), C.R.S. (2019).

1 With respect to crimes committed before July 1, 

1995, as to which insanity and impaired mental condition are separate defenses, 

paragraph (a) above defines “insanity” and paragraph (b) above defines

“impaired mental condition,” though the two defenses do not reside within the 

same statute. See § 16-8-101(1), (3), C.R.S. (2019); § 16-8-102(2.7), C.R.S. (2019). 

¶4 The People objected to Rosas’s notice of the defense of impaired mental 

condition, but only on the ground that it was untimely. After a hearing, the district 

court overruled the People’s objection and “allow[ed] [Rosas] to enter an 

affirmative defense of impaired mental condition.” It then ordered an 

examination “for impaired mental condition.”2 

1 Neither “[d]iseased or defective in mind” nor “[m]ental disease or defect,” as 

those terms are used in section 16-8-101.5(1), includes an abnormality that is 

“manifested only by repeated criminal or otherwise antisocial conduct.” 

§ 16-8-101.5(2). Further, “[m]ental disease or defect,” as referenced in 

section 16-8-101.5(1), “includes only those severely abnormal mental conditions 

that grossly and demonstrably impair a person’s perception or understanding of 

reality and that are not attributable to the voluntary ingestion of alcohol or any 

other psychoactive substance.” § 16-8-101.5(2)(b).

2 In fairness to the district court, it acknowledged that impaired mental condition 

is now part of insanity. But it continued to refer to the outdated defense and it 

ultimately ordered an “examination for impaired mental condition.” 
5

¶5 Then, rather than order an examination of Rosas at the Colorado Mental 

Health Institute at Pueblo (“CMHIP”) or at another eligible public facility selected 

by the court, see § 16-8-106(1)(a), C.R.S. (2019), the court incorrectly ordered an 

examination by a psychiatrist, psychologist, or other expert of Rosas’s choosing.

3 

The court appears to have relied on section 16-8-108(1)(a), C.R.S. (2019), but that 

provision simply permits a defendant to request a second court-ordered 

examination—one that may be performed “by a psychiatrist, psychologist, or 

other expert of his own choice.”4 § 16-8-108(1)(a); see also § 16-8-106(1)(a) 

(requiring, in the first instance, a court-ordered examination at a “public 

institution designated by the court”). 

¶6 Rosas retained Dr. Patricia Westmoreland to complete the court-ordered

examination. In her report, Dr. Westmoreland diagnosed Rosas as suffering from

3 Section 16-8-106(1)(a) addresses court-ordered mental examinations; it lists the 

following as the locations where defendants may be committed for such 

examinations: “the Colorado psychiatric hospital in Denver, [CMHIP], the place 

where he or she is in custody, or such other public institution designated by the 

court.” § 16-8-106(1)(a); see also § 16-8-105.5(1), C.R.S. (2019) (noting that “the court 

shall forthwith commit the defendant for a sanity examination, specifying the 

place and period of commitment”). 

4 Of course, a defendant may obtain his own private examination at any time 

without making a request under section 16-8-108(1)(a) for a court-ordered 

examination. 
6

multiple conditions on the dates of the offenses: bipolar I disorder, current episode 

manic, with psychotic feature; alcohol use disorder; cannabis use disorder; and a 

concussion. She concluded that Rosas’s actions were the result of “delusions” 

caused by “his acutely manic state, which rendered him so acutely mentally ill that 

he required not only restraints and high doses of major tranquilizers in the 

immediate period, but [also] acute psychiatric hospitalization with a need for 

medication adjustment several weeks later” before he could finally be 

psychiatrically stabilized. Defense counsel subsequently informed the court that 

Dr. Westmoreland intends to opine at trial that, as a result of a severe mental 

disease or defect, Rosas was not capable of forming the culpable mental state 

required by all four of the felony charges—i.e., the culpable mental state of 

intentionally.

5 

¶7 The People moved for a second examination, this one by CMHIP, and the 

court held a hearing on their motion. At the hearing, the court sought confirmation 

from Rosas that he had not pled NGRI, “which would include impaired mental 

condition,” and had instead simply given notice of his intent to introduce expert

evidence of his mental condition pursuant to section 16-8-107(3)(b), C.R.S. (2019). 

5 Dr. Westmoreland concedes that Rosas was capable of forming the culpable 

mental state of knowingly required by the misdemeanor obstruction charge. 
7

Rosas confirmed that the court’s recollection was accurate. However, the record 

reflects that Rosas had clearly indicated that he plans to introduce evidence related 

to insanity (evidence of impaired mental condition), not expert mental condition 

evidence pursuant to section 16-8-107(3)(b). The court apparently misremembered 

what had transpired in earlier proceedings, including that it had ordered an 

impaired mental condition examination, not an examination pursuant to section 

16-8-107(3)(b). 

¶8 Under section 16-8-107(3)(b), a defendant may introduce expert evidence of 

his “mental condition” when his “mental condition is not so severe” as to fall 

within “the statutory definition of ‘insanity’” and such evidence is offered “to 

show that [he] had a mistaken belief of fact that negates the existence of a culpable 

mental state.”6 People v. Wilburn, 2012 CO 21, ¶ 20, 272 P.3d 1078, 1082 (quoting 

§ 16-8-107(3)(b)). Section 16-8-107(3) reflects that our legislature has 

6 The term “mental condition,” as used in section 16-8-107(3)(b), is not defined; 

however, we have interpreted it to include a defendant’s intellectual disability that 

is not so severely abnormal as to come within the statutory definition of insanity. 

People v. Flippo, 159 P.3d 100, 104 (Colo. 2007); see also People v. Wilburn, 2012 CO 

21, ¶ 25, 272 P.3d 1078, 1083 (explaining that the defendant did not claim that his

mental condition, a learning disability, rose to the statutory level of a mental 

disease or defect that would require an NGRI plea). 
8

“distinguished between expert testimony offered to support a plea of [NGRI] and 

expert testimony of a mental condition in support of a defendant’s theory that, on 

the occasion in question, he did not form the mens rea required for conviction.” 

Id. at ¶ 21, 272 P.3d at 1082; see also § 16-8-103.6(2)(a), C.R.S. (2019) (distinguishing, 

for purposes of waiver of confidentiality or privilege, between pleading NGRI and 

seeking to introduce expert evidence of mental condition under section 

16-8-107(3)(b)). 

¶9 Whereas a defendant who raises the defense of insanity must plead NGRI,

see § 16-8-103(1.5)(a), C.R.S. (2019), a defendant who wishes to introduce expert 

evidence of mental condition pursuant to section 16-8-107(3)(b) need only provide 

timely notice of his intent to present such evidence. However, like a defendant 

who asserts the insanity defense, a defendant relying on section 16-8-107(3)(b) 

must submit to a court-ordered examination pursuant to section 16-8-106. 

¶10 The court granted the People’s motion for a second examination. But, in 

accordance with its erroneous belief that Rosas was proceeding pursuant to section 

16-8-107(3)(b), it ordered CMHIP to conduct an examination related to his “mental 

condition,” not his sanity. In so doing, the court seemed to assume that evidence 

that on the dates of the offenses Rosas suffered from a mental disease or defect 

that deprived him of “the capacity to form the culpable mental state” of 
9

intentionally is evidence governed by section 16-8-107(3)(b), not evidence relevant 

to the issue of insanity. (Emphasis added.) 

¶11 Dr. Brittany Remmert performed CMHIP’s mental condition examination of

Rosas. After diagnosing him as suffering from, among other things, bipolar 

disorder with psychotic features, she concluded that he experienced symptoms of 

this serious mood disorder prior to and after the charged assaults. She added that

at the time of the offenses Rosas exhibited “a severely abnormal mental condition 

that grossly and demonstrably impaired [his] understanding or perception of 

reality.” In other words, Dr. Remmert opined that Rosas suffered from a mental 

disease or defect that affected his mental condition on the dates of the offenses. 

See § 16-8-101.5(2)(b) (defining “[m]ental disease or defect” as including “only 

those severely abnormal mental conditions that grossly and demonstrably impair 

a person’s perception or understanding of reality”). 

¶12 In a follow-up telephone interview with the People, Dr. Remmert informed 

them that she had not formulated or rendered an opinion as to whether Rosas was 

capable of forming the culpable mental state of intentionally at the time of the 

offenses. According to Dr. Remmert, she could not offer such an opinion because 

she had not been asked to conduct a sanity examination and had not conducted 

such an examination; instead, pursuant to the court’s order, she had performed a 

mental condition examination consistent with section 16-8-107(3)(b). 
10

¶13 Dr. Remmert’s position placed the People in a predicament. At the hearing

on their motion for a second examination, Rosas had informed the court that Dr. 

Westmoreland would opine at trial that Rosas lacked the capacity to form the 

culpable mental state of intentionally at the time of the offenses. And Dr. Remmert 

had just informed the People that she could not attempt to rebut that evidence 

because the court had ordered her to complete a mental condition examination 

under section 16-8-107(3)(b), not a sanity examination. 

¶14 The People thus moved to strike any expert evidence of mental disease or 

defect or, alternatively, to compel both an NGRI plea and an order for a sanity 

examination. They argued that the evidence Rosas seeks to introduce at trial is 

relevant to the issue of insanity because he claims that, as a result of a mental 

disease or defect, he was rendered incapable of forming the required culpable 

mental state of intentionally on the dates of the offenses. Therefore, asserted the 

People, Rosas should be ordered to enter an NGRI plea or be precluded from 

offering the challenged evidence. 

¶15 Rosas objected, insisting that he is not attempting to introduce evidence 

relevant to the issue of insanity. He further urged the court to find that, regardless,

Colorado law allows a defendant charged with specific intent crimes to “introduce 

[expert] evidence of his mental condition as it bears upon his ability to form the 

culpable mental state without pleading [NGRI].” 
11

¶16 Siding with Rosas, the court denied both the request to exclude the

proposed evidence and the alternative request to compel an NGRI plea and a 

sanity examination. It ruled that Rosas is not required to plead NGRI to introduce 

the evidence in question because he is charged with specific intent crimes. At the 

People’s request, however, the court ordered a supplemental examination by Dr. 

Remmert to allow her to opine whether Rosas had the capacity to form the 

culpable mental state of intentionally at the time of the offenses. The court made 

clear, though, that it was not ordering a sanity examination—apparently because 

it continued to believe that evidence that Rosas was incapable of forming the 

culpable mental state of intentionally on the dates of the offenses is mental 

condition evidence under section 16-8-107(3)(b), not evidence of insanity. 

¶17 Dr. Remmert did as the court ordered. In her supplemental report, she 

opined that Rosas suffered from “a mental disease or defect” at the time of the

offenses, but that such disease or defect “did not prevent him from forming the 

culpable mental state that is an essential element of [any of] the crimes charged.” 

¶18 The People then filed a petition pursuant to C.A.R. 21 seeking our

intervention. And we issued a rule to show cause. 

II

¶19 The first question we must address is that of jurisdiction. We have 

repeatedly observed that we have discretion to determine whether to exercise our 
12

original jurisdiction pursuant to Rule 21. See C.A.R. 21(a)(1) (“Relief under this 

rule . . . is a matter wholly within the discretion of the supreme court.”); People v. 

Rowell, 2019 CO 104, ¶ 9, 453 P.3d 1156, 1159 (“The exercise of original jurisdiction 

under C.A.R. 21 rests solely within our discretion.”). In exercising our discretion, 

we are mindful that Rule 21 provides “an extraordinary remedy that is limited in 

both purpose and availability.” Villas at Highland Park Homeowners Ass’n v. Villas 

at Highland Park, LLC, 2017 CO 53, ¶ 22, 394 P.3d 1144, 1151; accord C.A.R. 21(a)(1) 

(“Relief under this rule is extraordinary in nature . . . .”). We have exercised our 

jurisdiction in circumscribed situations, such as “when an appellate remedy would 

be inadequate, when a party may otherwise suffer irreparable harm, or when a 

petition raises issues of significant public importance that we have not yet 

considered.” Rowell, ¶ 9, 453 P.3d at 1159 (citations omitted).

¶20 In invoking our original jurisdiction, the People contend that a Rule 21 

proceeding is the only adequate appellate remedy. We agree. Requiring the 

People to raise their claim on direct appeal would be inappropriate. Rosas claims 

that he is entitled to have Dr. Westmoreland testify that, as a result of a mental 

disease or defect, he lacked the capacity to form the culpable mental state of 

intentionally at the time of the offenses. The People counter that Rosas must plead 

NGRI or forgo the opportunity to introduce the challenged evidence. Because 

resolution of this disagreement will have significant ramifications, including with 
13

respect to evidentiary matters at trial, forcing the People to wait to raise their claim 

on direct appeal is unsuitable. 

III

¶21 Having decided to exercise our original jurisdiction, we turn our attention 

to the standard of review that governs our analysis. Whether Rosas may introduce 

the disputed evidence without entering an NGRI plea hinges on our interpretation 

of several statutory provisions. The interpretation of a statute “is a question of 

law, which we review de novo.” People v. Steen, 2014 CO 9, ¶ 9, 318 P.3d 487, 490. 

IV

¶22 In determining whether the district court erred, we must first assess the 

nature of the evidence Rosas wishes to present. The district court and the parties 

struggled with this aspect of the analysis. They initially used the outmoded 

moniker of “impaired mental condition,” which caused confusion, and the court

later inadvertently switched to viewing the proposed evidence through the section 

16-8-107(3)(b) prism, an outlook Rosas adopted. These missteps, in turn, set off a 

cascade of consequences.7 

7 To be fair, this is a complex area of the law.
14

¶23 The challenged evidence is clearly relevant to the issue of insanity. Rosas 

himself initially called the evidence in question “impaired mental condition 

evidence,” which, by definition, is evidence relevant to the issue of insanity. The 

second part of the two-part test used by the legislature to define insanity 

incorporates the former impaired mental condition defense. Compare

§ 16-8-101.5(1)(b) (providing the second part of the test for insanity), with

§ 16-8-102(2.7)(a) (defining “[i]mpaired mental condition” for purposes of offenses 

committed before July 1, 1995). It specifically refers to a mental disease or defect 

or a condition of mind caused by a mental disease or defect that “prevented the 

person from forming a culpable mental state.” § 16-8-101.5(1)(b) (emphasis 

added). This is precisely the type of evidence Rosas plans to present at trial. 

¶24 The court of appeals has consistently recognized that evidence of insanity 

includes evidence of a mental disease or defect that rendered the defendant 

incapable of forming the requisite culpable mental state at the time of the offense. 

See, e.g., People v. Marko, 2015 COA 139, ¶ 169, 434 P.3d 618, 652, aff’d on other 

grounds, Marko v. People, 2018 CO 97, 432 P.3d 607; People v. Sommers, 200 P.3d 1089, 

1093 (Colo. App. 2008); see also People v. Herrera, 87 P.3d 240, 251 (Colo. App. 2003) 

(when a defendant claims he was insane under the second part of the two-prong 

test for insanity, Colorado law “limit[s] the admissibility of evidence acquired for 

the first time from [the] defendant’s mental processes during the court-ordered 
15

examination to issues involving his capacity to form a culpable mental state”

(emphasis added)). We agree with the court of appeals. 

¶25 Rosas nevertheless contends that, regardless of how Dr. Westmoreland’s 

opinions are characterized, Colorado law does not require him to plead NGRI 

because he intends to offer the evidence at issue only in defending against specific 

intent crimes. Rosas misunderstands Colorado law. 

¶26 The very statute on which Rosas leans, section 16-8-107, undercuts his 

position. Section 16-8-107(3)(a) provides, in no uncertain terms, that “[i]n no event 

shall a court permit a defendant to introduce evidence relevant to the issue of 

insanity . . . unless the defendant enters a[n] [NGRI] plea” pursuant to section 

16-8-103(1.5)(a).

8 There is no exception for specific intent crimes in section 

16-8-107(3)(a). 

¶27 Giving the words and phrases in section 16-8-107(3)(a) their plain and 

ordinary meaning, see Carrera v. People, 2019 CO 83, ¶ 17, 449 P.3d 725, 729, we 

conclude that they prohibit a defendant—including one charged with specific 

intent crimes—from introducing evidence relevant to the issue of insanity unless 

8 Section 16-8-103(1.5)(a) states that “[t]he defense of insanity may only be raised 

by a specific plea” of NGRI entered at the time of arraignment, unless the court 

finds “good cause” to allow the plea to be entered later.
16

he enters an NGRI plea. Thus, Rosas may not introduce the challenged evidence 

without first pleading NGRI.

¶28 Contrary to Rosas’s assertion, section 16-8-107(3)(b) does not warrant a 

different interpretation of section 16-8-107(3)(a). Whereas subsection (3)(a) 

addresses the admission of evidence relevant to the issue of insanity, subsection 

(3)(b) addresses the admission of expert evidence regarding mental condition. 

Under subsection (3)(b), “[r]egardless of whether a defendant enters a plea of 

[NGRI],” he may “introduce evidence in the nature of expert opinion concerning 

his . . . mental condition,” so long as he has “given [timely] notice . . . of his . . . 

intent to introduce such evidence” and has “undergone a court-ordered 

examination.” § 16-8-107(3)(b). In People v. Flippo, we reasoned that the statutory

phrase, “[r]egardless of whether a defendant enters a plea of [NGRI],”

unambiguously conveys that subsection (3)(b) “is meant to apply in those 

situations where insanity is not the reason the evidence is being introduced, such 

as evidence of an intellectual disability.” 159 P.3d 100, 104 (Colo. 2007). Here, 

though, we’ve already determined that the evidence Rosas is attempting to 

introduce is relevant to the issue of insanity. Accordingly, subsection (3)(b) 

doesn’t apply. 

¶29 The argument rooted in section 16-8-106(6), which, like section 

16-8-107(3)(a), affords no special treatment to specific intent crimes, is equally 
17

unavailing for Rosas. True, section 16-8-106(6) requires that an examiner’s report 

set forth: (a) an opinion as to whether the defendant suffered from a mental disease 

or defect (or from a condition of mind caused by it) “that prevented [him] from 

forming the culpable mental state” required; and, if so, (b) “[s]eparate opinions as 

to whether the defendant was insane or is ineligible for release.” (Emphasis 

added.) However, section 16-8-106(6) applies only after a sanity examination is 

completed. See § 16-8-106(6) (requiring opinions that are relevant only to the issue 

of insanity). Stated differently, it can only be triggered by an NGRI plea, which 

Rosas has declined to enter. Therefore, Rosas cannot rely on this subsection to 

boost his position. 

¶30 Notably, the contents of an examiner’s report following a section 

16-8-107(3)(b) examination are governed by 16-8-106(7), not section 16-8-106(6). 

Unlike subsection (6), subsection (7) makes no reference to a mental disease or 

defect (or to a condition of mind caused by it) that prevented the defendant from 

forming the culpable mental state required. And for good reason: mental 

condition evidence under section 16-8-107(3)(b) does not include evidence that a 

defendant lacked the capacity to form a requisite culpable mental state. 

¶31 Finally, we are not persuaded by Rosas’s reliance on section 16-8-103(1)(a), 

which, on the one hand, provides that a defendant who fails to plead NGRI “shall 

not be permitted to rely upon insanity as a defense,” but on the other, indicates
18

that when a defendant is “charged with a crime requiring a specific intent as an 

element thereof,” he “may introduce [expert] evidence of [his] mental condition as 

bearing upon his . . . capacity to form the required specific intent.” (Emphases added.) 

Section 16-8-103(1)(a) is irrelevant because it applies only to offenses committed 

before July 1, 1995, see § 16-8-103(1)(b), and the dates of the offenses in this case are 

between January 3 and 4 of 2018. For offenses committed on or after July 1, 1995, 

subsection (1.5)(a) applies. See § 16-8-103(1.5)(b). And subsection (1.5)(a) does not 

include the quoted language in subsection (1)(a) on which Rosas hangs his hat.9

V

¶32 For all the foregoing reasons, we make the rule to show cause absolute. On 

remand, the district court must afford Rosas the opportunity to plead NGRI. If he 

doesn’t, he may not introduce the challenged evidence. If he does, the district

court should order a sanity examination pursuant to section 16-8-106. 

9 Crim. P. 11(e)(1) contains language almost identical to the language in section 

16-8-103(1)(a). It appears that the rule was not updated when the legislature 

replaced subsection (1)(a) with subsection (1.5)(a).