Donthe Lucas murder conviction in Kelsie Schelling case upheld by Colorado appeals court

A Pueblo man who was sentenced to life in prison without parole in 2021 in the murder of pregnant 21-year-old Kelsie Schelling has had his conviction upheld by the Colorado Court of Appeals.

Donthe Lucas, 31, appealed his conviction on the grounds that the Pueblo court in which he was tried improperly admitted evidence of "other acts" not related to Schelling's murder and of canine decomposition detection. Lucas's appeal also claimed misconduct in the prosecuting attorney's closing remarks.

However, in a 24-page opinion obtained by the Chieftain, the appeals court found that despite Lucas's arguments, he received a fair trial and his conviction was upheld.

What the court said about 'other acts' evidence

Under Colorado law, evidence related to other acts outside of those strictly related to the case at hand is inadmissible to show that a defendant had a "bad character," as it may be prejudicial to a jury.

However, Judge Jerry Jones wrote in the appeals court's decision that "such evidence may be admissible to prove, for instance, 'motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident.'"

During Lucas's trial, the prosecution asserted that sexual text messages sent by Lucas to alleged prostitutes showed his state of mind and the actions he took during the timeframe relevant to the homicide case, as well as motive and intent. The appeals court also noted that after prosecutors presented those texts as evidence, the Pueblo court instructed the jury that they were not to be considered for any other purpose.

The appeals court declined to resolve Lucas's claim that the messages should not have been admissible, as they ruled that even if Lucas is correct, any error was "harmless."

"The danger of unfair prejudice was minimized because the prosecution didn't identify the text message recipients as prostitutes and the court prohibited the jury from considering the messages as proof of Lucas's bad character," Jones wrote.

According to a footnote in the opinion, the text messages may well have been intrinsic to the case, as they showed Lucas "seeking liaisons" and "expressing romantic interest" in a friend, which may have suggested he knew that Schelling was "not coming back," with "one possible inference" being that he "knew she was dead."

Another piece of "other acts" evidence the court considered in Lucas's appeal was the prosecution's mention of Lucas missing a court hearing in Arapahoe County. The court wrote in its opinion that the day before Schelling disappeared, she messaged Lucas, "thought you had court tomorrow?" to which Lucas replied, "I've taken care of that already, I don't have to go."

The appeals court ruled that evidence was admissible on the grounds that the missed court date "directly proves the charged offense" and "occurred contemporaneously with the charged offense and facilitated its commission." The court argued that Lucas's response showed he attempted to "lure" Schelling to Pueblo the day she disappeared, despite being aware of a court date in another matter.

The missed court date also "afforded Lucas the opportunity to murder (Schelling)," the court wrote.

Furthermore, during the trial, defense counsel "elicited that it (the case in Aurora) was a traffic case" and an investigator also agreed with the defense upon questioning that the Arapahoe County case "wasn't a serious matter."

Appeal questions validity of canine decomposition evidence

During Lucas's trial, Frank Hurst, a police dog trainer, testified as an expert in decomposition canine evidence. During the case, he stated he handled a bloodhound named Radar who detected decomposition by a tree in Lucas's backyard and on a floor mat in Schelling's car.

Lucas objected to the evidence on two grounds — first, he contended the evidence was irrelevant because the four- to six-year gap between Schelling's disappearance and Radar's searches made the evidence unreliable, and second, Radar didn't alert to any hard evidence such as a body or blood.

However, the court contended that the gap did not make the evidence unreliable, as Hurst testified that a bloodhound's acute olfactory senses allow the breed to detect decomposition over 100 years old. "Given his abilities, Radar searched Lucas's backyard within a reasonable time," the court wrote in its opinion.

The appeals court agreed with Lucas, however, that the evidence was only marginally relevant and the bloodhound may have alerted to a number of things, including urine, feces, blood, body oil, mucus, or hair. Although the hair found by police in Schelling's car matched her DNA, it is far from unusual to find the owner's hair in their vehicle, the court wrote.

However, the court concluded that "any error in admitting this evidence is harmless," and argued that, given its marginal relevance, the court doubts the evidence substantially influenced the verdict.

Prosecutor's closing argument and reference to 'Jedi mind' tricks

Lucas made several arguments related to the prosecution's closing statements during his trial.

His appeal contended that the prosecution denigrated defense counselor Karl Tammeler by questioning his sincerity and suggesting that he used diversionary tactics to distract the jury.

It also contended that the prosecutor improperly appealed to the jury’s sympathy by referencing holidays to underscore the effect of Schelling's death on her family and characterizing her as a "21-year-old kid."

During a closing statement, a prosecuting attorney made remarks questioning Tammeler's sincerity in his own statement, in which he said the case was a "tragedy," arguing that throughout the trial Lucas's defense counsel had made callous remarks about the situation, according to the appeals court opinion.

"Lucas contends — and the people appear to concede — that the prosecutor questioned counsel's sincerity by making these statements. Doing so is improper," the appeals court wrote.

"Even so, we discern no plain error because the prosecutor's statements didn't so undermine the fundamental fairness of the trial as to cast serious doubt on the reliability of the jury’s verdict," the opinion reads. "The challenged statements constituted only a brief part of the prosecutor’s closing argument, and we discern no substantial likelihood that the statements deprived Lucas of a fair trial."

Lucas's next challenge was related to the prosecutor's accusation of defense counsel using a "Jedi mind (trick)" to distract from certain evidence.

"You know, (defense counsel) spent a lot of time talking about, frankly, not a whole lot, other than just the DNA evidence," the prosecution argued in a closing statement. "And with everything else, he just kind of, you know, tried to do the Jedi mind thing; right? Just not a lot of evidence there; some cell phone stuff, it’s some troubling statements, and some car mats. Let’s not think about it. He doesn’t want to talk about that stuff in earnest because he can’t confront it. Right? There’s no explanation for any of it."

However, the appeals court argued that statement was a response to Lucas's theory of defense rather than a personal attack on defense counsel.

"The prosecutor properly focused the jury’s attention on the evidence and permissible inferences therefrom. While we question the use of the term 'Jedi mind thing,' we are cognizant that prosecutors may use rhetorical devices and engage in oratorical embellishment and metaphorical nuance," the court wrote.

Lucas also argued that the prosecutor made an emotional argument in rebuttal to the defense's statement that the jury "would not be surprised if (Schelling) walked through the door" by replying that Schelling had not walked through her father's doorway for eight years since her disappearance, missing eight years of holidays and family events.

However, even assuming that the comment was improper based on the standard that a prosecutor's comment on the effect of a victim's death on her family is improper, the appeals court wrote they agree that "any error wasn't plain," given the context of the statement.

Finally, Lucas argued that the prosecution inaccurately characterized Schelling as a "kid" because she had been a legal adult for more than three years by the time she disappeared. However, the appeals court wrote, he fails to explain how this characterization improperly appealed to the jury's sympathy. Moreover, they wrote, the prosecution used a legitimate figure of speech while discussing the circumstantial evidence of the victim's death.

"It is not unreasonable or a stretch to refer to young adults as kids. And they simultaneously noted K.S.’s age," the court wrote.

Court concludes Lucas' trial was fair

Ultimately, even considering two statements that may be considered improper, the appeals court wrote that the cumulative effect of the prosecutor's statements did not sufficiently prejudice the jury's verdict enough to fundamentally affect the fairness of the trial, and that other evidence overwhelmingly showed Lucas's guilt.

While 10th Judicial District Attorney Jeff Chostner expressed happiness with the decision, he refrained from making specific comments about the decision, as the case may still be subject to appeal with the Colorado State Supreme Court.

Looking back at Schelling's disappearance, Lucas's case

Kelsie Schelling went missing on Feb. 4, 2013, when she drove from her home in Denver to visit Lucas in Pueblo.

She was reported missing on Feb. 9. Lucas was first interviewed on Feb. 12, and Schelling's car recovered on Feb. 14. During those 11 days, Lucas allegedly used her phone to send deceptive text messages to her loved ones, acting as Schelling in order to stall the investigation.

Schelling's body was never found.

Years went by without an arrest, and in 2015, Schelling’s parents, Doug Schelling and Laura Saxton, filed a civil lawsuit against the Pueblo Police Department, alleging they obstructed the investigation, and filed a wrongful death suit against several members of Lucas’ family. The lawsuit was later dismissed.

However, the suit, as well as a 2016 television special by ABC’s “20/20” news magazine that was highly critical of Pueblo PD’s investigation, drew national attention to Pueblo PD.

The Colorado Bureau of Investigation then took over as the lead investigative agency on Schelling’s case in 2016.

The case began to build momentum in 2017. Pueblo police and CBI orchestrated several digs at locations throughout Pueblo to try to recover additional evidence, and on Dec. 1, 2017, Lucas was served with a warrant for first-degree homicide while he was already in custody in the Pueblo County Detention Center on an unrelated aggravated robbery charge.

Lucas's trial was delayed several times, but finally took place in late January 2021.

He was found guilty on March 8, 2021 and immediately sentenced to life in prison without the possibility of parole.

Lucas is serving his life sentence in the Limon Correctional Facility.

Questions, comments, or story tips? Contact Justin at jreutterma@gannett.com. Follow him on X, formally known as Twitter, @jayreutter1. Support local news, subscribe to The Pueblo Chieftain at subscribe.chieftain.com.

This article originally appeared on The Pueblo Chieftain: Donthe Lucas loses appeal in Kelsie Schelling Colorado murder case