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
November 27, 2019
2019COA175
No. 17CA0620, People v. Tibbels — Trials — Voir Dire; Criminal
Law — Burden of Proof — Reasonable Doubt; Constitutional
Law — Due Process
In this criminal case, a division of the court of appeals holds
that although no structural error requiring automatic reversal
occurred when the trial court analogized reasonable doubt to a
home’s significant foundation crack during voir dire, such analogies
should be avoided. The division further concludes that neither the
alleged prosecutorial misconduct nor the absence of a special
interrogatory requires reversal or entry of a lower level
conviction. The judgment is affirmed. The dissent would find
structural error and reverse the defendant’s convictions.
COLORADO COURT OF APPEALS 2019COA175
Court of Appeals No. 17CA0620
Adams County District Court No. 16CR785
Honorable Robert W. Kiesnowski, Jr., Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Ernest Joseph Tibbels,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE FREYRE
Taubman, J., concurs
Pawar, J., dissents
Announced November 27, 2019
Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In this criminal case, we address an issue that has repeatedly
arisen in prior cases but, to date, has not necessitated reversal — a
trial court’s use of everyday examples to explain legal concepts like
reasonable doubt. Our supreme court recently held that “[a]n
instruction that lowers the prosecution’s burden of proof below
reasonable doubt constitutes structural error and requires
automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8 (citing
Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)). This case
presents a close question, as reflected by our split decision, and
highlights the need for trial courts to discontinue this practice.
¶2 Defendant, Ernest Joseph Tibbels, appeals his conviction of
possession of contraband. He argues that reversal is required
because (1) the prosecutor improperly invited the jury to “hold him
accountable” for disrupting jail operations when he was not charged
with disruption; and (2) the trial court impermissibly lowered the
prosecution’s burden of proof by comparing reasonable doubt to a
structurally significant crack in the foundation of a prospective
house for purchase. Mr. Tibbels also asks us to vacate his
conviction for possession of contraband as a class 4 felony and to
enter a conviction for possession of contraband as a class 6 felony,
1
based on the court’s failure to provide an interrogatory requiring the
jury to find that he possessed a dangerous instrument. We address
and reject each of his contentions.
I. Background
¶3 Mr. Tibbels called 911 in the midst of a mental health crisis.
Police officers then arrested him based on their mistaken belief that
he had violated a protection order.
¶4 The officers transported Mr. Tibbels to the Adams County
Detention Facility. He refused to follow instructions and physically
resisted the deputies’ attempts to complete the booking process.
Consequently, the deputies could only conduct a “cursory search”
before placing Mr. Tibbels in a “quiet room” to calm down.
¶5 After several hours in the quiet room, Mr. Tibbels grew
agitated and threatened to kill himself by tying a torn piece of his
shirt around his neck. He then removed a sharpened metal spike
from his pocket; struck the door with it, which caused damage, and
shouted, “If you guys come in here, motherfuckers, I’ll kill you.”
Perceiving Mr. Tibbels’ actions as a threat, the deputies called for
“lethal cover” and locked down the entire jail until they could
subdue Mr. Tibbels, who complied with the deputies’ commands.
2
The deputies recovered a three-inch metal spike from the cell floor
and documented the damage to the door.
¶6 The State charged Mr. Tibbels with first degree introduction of
contraband, felony menacing, and first degree possession of
contraband. During voir dire, the trial court compared the concept
of reasonable doubt to a structurally significant crack in the
foundation of a house being considered by a prospective purchaser.
¶7 During trial, the prosecution elicited testimony about how
deputies responded to Mr. Tibbels by coming from their assigned
posts throughout the facility. During closing argument, the
prosecutor asked the jury to hold Mr. Tibbels “accountable” for his
“temper tantrum” that shut down the jail. The jury subsequently
convicted Mr. Tibbels of possession of contraband, but it acquitted
him of the other two charges.
II. Prosecutorial Misconduct
¶8 Mr. Tibbels contends that the prosecutor’s appeal to the jury
to hold him accountable for the jail lockdown was irrelevant,
prejudicial, and misled the jury. We discern no reversible error.
3
A. Additional Facts
¶9 The “accountability” argument first arose in opening statement
when the prosecutor asked the jury to “hold [Mr. Tibbels]
accountable for the situation that he create[d]. Because it was a
crime.” Defense counsel did not object.
¶ 10 Then, during the direct examination of a booking deputy, the
prosecutor asked whether other parts of the jail were left with fewer
resources because of the incident involving Mr. Tibbels. The court
sustained defense counsel’s relevance objection and said, “[t]hat’s
not what he’s charged with.”
¶ 11 Without objection, the prosecutor then asked two additional
deputies to describe the impact of Mr. Tibbels’ behavior, and they
explained that the entire facility had to be locked down. A final
deputy was asked whether other areas of the jail were left with
fewer resources because of Mr. Tibbels’ behavior, and again,
defense counsel objected on relevance. This time, the court
overruled the objection without further comment.
¶ 12 In rebuttal closing argument and without objection, the
prosecutor argued:
4
And the most disturbing thing of this is that
14 deputies had to respond to this, fourteen
deputies out of the 29 that were there to guard
the 952 inmates. So the other 952 were left
less guarded because of Mr. Tibbels’[s] actions,
because of his little show, his little stunt.
And you know, I keep referring to this as a
‘little show,’ but it’s not. It’s serious. It’s not
like he’s an actor in a play and you’re the
audience. No. He committed a crime. He’s
the defendant. It’s not like he’s going to come
up here and take a bow. And it’s not like I’m
going to ask you for applause at this point,
because what I’m demanding is something
much more appropriate. I’m demanding
accountability.
....
You have all of the evidence. Hold him
accountable for his actions. Find him guilty.
B. Standard of Review and Law
¶ 13 We review claims of prosecutorial misconduct using a two-step
analysis. First, we determine whether the prosecutor’s conduct was
improper based on the totality of the circumstances. Wend v.
People, 235 P.3d 1089, 1096 (Colo. 2010). Then, we determine
whether such actions warrant reversal under the proper standard of
review. Id.
¶ 14 If the defendant contemporaneously objected to the alleged
misconduct at trial, we review for harmless error. Id. at 1097.
5
Whether misconduct is harmless requires a court to evaluate “the
severity and frequency of misconduct, any curative measures taken
by the trial court to alleviate the misconduct, and the likelihood
that the misconduct constituted a material factor leading to the
defendant’s conviction.” People v. Hogan, 114 P.3d 42, 55 (Colo.
App. 2004). We reverse “only if we conclude that error occurred
and that there is a reasonable probability that the error contributed
to the guilty verdict.” People v. Gonzales, 2017 COA 62, ¶ 26.
¶ 15 If the defendant fails to contemporaneously object to the
alleged misconduct, we review for plain error. Wend, 235 P.3d at
1097. Prosecutorial misconduct constitutes plain error when it was
obvious and “seriously affected the fairness or integrity of the trial.”
Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (citing
United States v. Young, 470 U.S. 1, 15 (1985)). “Only prosecutorial
misconduct which is ‘flagrantly, glaringly, or tremendously
improper’ warrants reversal.’” Id. (quoting People v. Avila, 944 P.2d
673, 676 (Colo. App. 1997)).
¶ 16 Because the right to a fair trial includes the right to an
impartial jury, prosecutorial misconduct that misleads a jury may
warrant reversal. Harris v. People, 888 P.2d 259, 264 (Colo. 1995).
6
Indeed, prosecutors may not use arguments calculated to inflame
the passions or prejudices the jury. People v. Oliver, 745 P.2d 222,
228 (Colo. 1987); see, e.g., People v. Conyac, 2014 COA 8M, ¶ 147
(“Prosecutors may not pressure jurors by suggesting that guilty
verdicts are necessary to do justice for a sympathetic victim.”). But
a prosecutor’s use of rhetorical devices to argue record evidence or
to respond to the defense’s arguments is not misconduct. See
People v. Samson, 2012 COA 167, ¶ 31 (prosecutors may “employ
rhetorical devices and engage in oratorical embellishments”); see
also People v. Gibson, 203 P.3d 571, 577 (Colo. App. 2008) (“[T]he
prosecutor is entitled to comment on the absence of evidence to
support a defendant’s contentions.”); see also, e.g., People v. Welsh,
176 P.3d 781, 788 (Colo. App. 2007) (concluding the prosecutor’s
comment about the absence of a suicide note was “a permissible
reference to the absence of evidence to support defendant’s
contention that she was intending to kill herself”).
C. Analysis
¶ 17 The parties dispute preservation of the various incidents of
alleged misconduct. We need not resolve this dispute, however,
7
because even if we assume that all alleged errors were preserved,
we conclude that they are harmless and do not require reversal.
¶ 18 First, the trial court properly instructed the jury that opening
statements “are not evidence. Their purpose is just simply to kind
of provide you with a roadmap with what each side thinks the
evidence may show.” The court also reminded the jury that Mr.
Tibbels was presumed innocent and that the government was
required to prove “Mr. Tibbels guilty beyond a reasonable doubt.”
As well, before closing arguments, the trial court instructed the jury
that it “must not be influenced by sympathy, bias or prejudice in
reaching [its] decision,” and that the burden of proof is on the
prosecution to prove “beyond a reasonable doubt the existence of all
the elements necessary to constitute the crime charged.” We
presume the jury understood and followed these instructions,
absent contrary evidence. Leonardo v. People, 728 P.2d 1252, 1255
(Colo. 1986); People v. Bass, 155 P.3d 547, 552 (Colo. App. 2006).
And, Mr. Tibbels does not allege, nor has he shown, that the jury
fundamentally misunderstood these instructions.
¶ 19 Second, no one disputes that defense counsel failed to object
during opening statements or closing arguments. Importantly, the
8
failure to contemporaneously object suggests that the prosecutor’s
comments did not appear to be overly damaging when they were
made. See People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010)
(“Defense counsel’s failure to object is a factor that may be
considered in examining the impact of a prosecutor’s argument and
may ‘demonstrate defense counsel’s belief that the live argument,
despite its appearance in a cold record, was not overly damaging.’”
(quoting People v. Rodriguez, 794 P.2d 965, 972 (Colo. 1990))).
¶ 20 Third, we are not persuaded that the jury’s acquittal of Mr.
Tibbels of two charges and conviction of the “least culpable offense”
flowed from the prosecutor’s improper accountability appeal. Mr.
Tibbels never denied being placed in the quiet room with tools in his
pocket, nor did he deny striking the door with one of them. Instead,
we conclude that the verdict shows that the jury “took its role
seriously and it was not improperly swayed by any potentially
improper arguments.” See People v. Larson, 2017 CO 29, ¶ 16
(noting that “a split verdict is an indication that prejudice did not
affect the jury’s verdict”); see also People v. Manyik, 2016 COA 42,
¶ 40 (reasoning under plain error review that “the fact that the jury
acquitted [the defendant] of the most serious charge . . . indicates
9
that the jurors based their verdict on the evidence presented and
were not swayed by the prosecutor’s inflammatory appeal to their
sympathy for the victim).
¶ 21 Finally, the prosecution presented overwhelming evidence of
guilt. Numerous deputies described Mr. Tibbels holding a “metal
object that appeared to be sharpened” while inside the quiet room,
and the prosecution introduced corroborating photographs and
videos showing Mr. Tibbels holding the sharpened metal object
inside the quiet room.
¶ 22 Accordingly, we discern no reasonable probability that the
alleged misconduct by the prosecutor contributed to Mr. Tibbels’
conviction. Any prosecutorial misconduct, if present, was harmless
and does not require reversal.
III. Trial Court’s Illustration of Reasonable Doubt
¶ 23 Mr. Tibbels next contends that the trial court’s illustration of
reasonable doubt during voir dire impermissibly lowered the
prosecutor’s burden of proof below beyond a reasonable doubt and
requires reversal. Although we conclude that reversal is not
required in this case, we strongly discourage the use of illustrations
like this because they run the risk of confusing jurors, lowering the
10
prosecution’s burden of proof, and diminishing the presumption of
innocence. People v. Flynn, 2019 COA 105, ¶ 42. Trial courts
should limit themselves to the suggested introductory remarks in
the model jury instructions, which explain the standard definitions
of the relevant legal principles, including reasonable doubt. See
COLJI-Crim. B:01 (2018).
A. Additional Facts
¶ 24 During voir dire, the trial court explained that the burden of
proof in a criminal case was on the prosecution to prove “to the
satisfaction of the jury beyond a reasonable doubt the existence of
all of the elements necessary to constitute the crime charged.” It
then read the definition of reasonable doubt from COLJI-Crim. E:03
(2018):
THE COURT: Now reasonable doubt means a
doubt based upon reason and common sense
which arises from a fair and rational
consideration of all of the evidence or the lack
of evidence in the case. It is a doubt which is
not a vague, speculative, or imaginary doubt
but such doubt as would cause reasonable
people to hesitate to act in matters of
importance to themselves.
¶ 25 Next, the court said, “I’ll give you an example and see if we can
put some teeth [into the definition] and make this concrete.”
11
Following this statement, it engaged in a colloquy with a juror about
the meaning of reasonable doubt:
THE COURT: So you and your spouse and
your children are in a market to by [sic] a
house, okay. . . . And you come upon that
ranch and it’s just like the dream come true,
okay. The price is right. Interest rates are still
good. It’s in the location that you want. The
schools are good. The neighborhood is
wonderful, it’s perfect. . . . [O]ne Saturday
morning you go out to the property. . . . And
you descend the flight of stairs down to the
basement and as you get to the bottom of the
basement steps you see a crack in the
foundation from the floor to the ceiling. And
it’s not that superficial cracking that concrete
will do. And structurally it’s significant. Are
you going to buy that house?
JUROR: No.
THE COURT: Why?
JUROR: Because I don’t want a house that has
a bad foundation.
THE COURT: Okay. You’ve got a reason. And
it’s this crack that is structurally significant.
And that’s causing you to hesitate, causing
you to pause with going forward with a home
purchase. This is my example of reasonable
doubt. Now the lawyers do a better job, all
right. But does that kind of put some – you
can kind of touch and feel what reasonable
doubt is.
¶ 26 Later, in a colloquy with a different juror, the court said:
12
THE COURT: But, you know, the reason I
bring it up is this proof beyond a reasonable
doubt is the highest burden of proof known in
the American justice system.
....
Here, it’s even higher than that [clear and
convincing evidence]. It’s proof beyond a
reasonable doubt. And it’s that example that I
gave you, what a reasonable doubt is. So
that’s the burden that the government has to
surmount to prove this case beyond a
reasonable doubt. . . .
¶ 27 Defense counsel did not object. Neither party mentioned the
court’s illustration in opening statements or closing arguments.
Nor did the jury ask any questions during deliberations about the
meaning of reasonable doubt.
B. Standard of Review and Applicable Law
¶ 28 The parties agree that this alleged error was not preserved, but
they dispute the proper standard of reversal if we find an error. The
People ask us to review for plain error and argue that reversal is
required only if we conclude that the error was obvious and so
undermined the fundamental fairness of the trial as to cast serious
doubt on the reliability of the judgment of conviction. For his part,
Mr. Tibbels, argues that any error that lowers the prosecution’s
13
burden of proof permeates the trial itself and constitutes structural
error requiring automatic reversal.
¶ 29 Based on our supreme court’s recent holding in Johnson, ¶ 8,
we agree with Mr. Tibbels, and conclude that “[a]n instruction that
lowers the prosecution’s burden of proof below reasonable doubt
constitutes structural error and requires automatic reversal.” Id.
(citing Sullivan, 508 U.S. at 281-82).
¶ 30 But did the trial court’s illustration lower the prosecution’s
burden of proof? We do not think so.
¶ 31 Whether an instruction from the court accurately states the
law is a legal question that we review de novo. Id. We review a
court’s decision to provide a particular instruction for an abuse of
discretion. People v. Sandoval, 2018 COA 63, ¶ 11; see People v.
Estes, 2012 COA 41, ¶ 10 (noting trial court’s “wide discretion in
conducting a trial,” but cautioning the trial court must also exercise
restraint to maintain an impartial forum (citing People v. Coria, 937
P.2d 386, 391 (Colo. 1997))). A court abuses its discretion when its
decision is manifestly arbitrary, unreasonable, unfair, or contrary to
law. Sandoval, ¶ 26; People v. Gwinn, 2018 COA 130, ¶ 31 (“[A]
14
court abuses its discretion if it bases its ruling on an erroneous
view of the law.”).
¶ 32 To determine whether a court’s illustration lowered the
prosecution’s burden of proof, in violation of a defendant’s due
process rights, and thus constitutes error, we consider the
illustration’s nature, scope, and timing. See Johnson, ¶ 18 (“We
note that the trial court provided the instruction to the jury verbally
and only once. It was not mentioned or referenced again
throughout the entirety of the proceedings, including closing
arguments.”). We also consider the court’s other instructions to the
jury. “[I]f the trial court properly instructed the jury on the law —
even with ‘objectionable language . . . [in] the trial court’s
elaboration of the reasonable doubt instruction’ — then there is no
violation of due process.” Id. at ¶ 14 (quoting People v. Sherman, 45
P.3d 774, 779 (Colo. App. 2001)); Griego v. People, 19 P.3d 1, 7
(Colo. 2001) (reasoning that a jury can only fulfill its constitutional
15
role of finding each element beyond a reasonable doubt when it has
been properly instructed).1
¶ 33 Because the prosecution has the burden of proving every
charge beyond a reasonable doubt, any instruction on reasonable
doubt that lowers this burden of proof violates a defendant’s
constitutional right to due process. People v. Garcia, 113 P.3d 775,
784 (Colo. 2005). As noted by our supreme court, the United States
Supreme Court “has cautioned that further attempts by courts or
parties to define ‘reasonable doubt’ do not provide clarity.”
Johnson, ¶ 13 (citing Holland v. United States, 348 U.S. 121, 140
(1954)); see also Miles v. United States, 103 U.S. 304, 312 (1880)
(“Attempts to explain the term ‘reasonable doubt’ do not usually
result in making it any clearer to the minds of the jury. . . .”). As
1 Although characterizing any error as “structural,” Johnson uses
factors — nature, scope, timing, and the other instructions — that
closely resemble the constitutional harmless error prejudice
analysis (whether there is a reasonable possibility that the error
might have contributed to the conviction) to determine whether an
error occurred. See Hagos v. People, 2012 CO 63, ¶ 11. Although
this rubric is somewhat confusing, we are bound by Johnson, so we
consider these factors in deciding whether the court’s illustration
constituted error. See People v. Wise, 2014 COA 83, ¶ 8 (Colorado
Court of Appeals is bound by Colorado Supreme Court precedent).
16
well, at least twenty-two decisions of this court, both published and
unpublished, have repeatedly discouraged trial courts’ use of
illustrations to explain reasonable doubt, the presumption of
innocence, and other legal concepts. See Appendix.
¶ 34 At oral argument, both sides acknowledged that illustrations,
like the one used here, are problematic. Indeed, the risk of
lessening the burden of proof increases when analogies to everyday
experiences are used to explain the concept of reasonable doubt:
[D]ecisions we make in the most important
affairs of our lives — choosing a spouse, a job,
a place to live, and the like — generally involve
a very heavy element of uncertainty and
risk-taking. They are wholly unlike the
decisions jurors ought to make in criminal
cases.
Victor v. Nebraska, 511 U.S. 1, 24 (1994) (Ginsburg, J., concurring
in part and concurring in the judgment) (citation omitted). As noted
by our supreme court, “[t]rial courts must avoid defining reasonable
doubt so as to lead the jury to convict on a lesser showing than due
process requires.” Johnson, ¶ 13 (quoting Victor, 511 U.S. at 22).
C. Analysis
¶ 35 To begin, we acknowledge the possibility that the jury might
have viewed the concept of reasonable doubt through the lens of the
17
court’s “substantial crack” illustration. Still, although that
possibility exists every time a trial court explains a legal concept in
everyday terms, it is not dispositive. We are not aware of any
authority that categorically precludes such explanations. Instead,
applying the Johnson factors, we conclude that the substantial
crack illustration did not lower the prosecution’s burden of proof for
four reasons.
¶ 36 First, the trial judge characterized the illustration as his
“example” and said the lawyers would do a better job of explaining
reasonable doubt. Thus, in our view, the illustration was unlike a
formal instruction of law. See People v. Boyd, 2015 COA 109, ¶ 12
(opining that the court’s comments during voir dire were not an
instruction), aff’d, 2017 CO 2; see also Wansing v. Hargett, 341
F.3d 1207, 1215 (10th Cir. 2003) (finding that a trial court’s
contemporaneous remarks are different from formal instructions,
though both can be considered in determining whether the jury was
likely to convict based on an improper standard).
¶ 37 Second, as in Johnson, the court’s illustration was limited to
voir dire. Neither the trial court nor the parties mentioned it again
after the jury was selected. Cf. People v. Munoz, 240 P.3d 311, 316
18
(Colo. App. 2009) (instructional language must be examined in
context and cannot be “sequestered from its surroundings” in
determining its impact).
¶ 38 Third, the court told the jury:
At the conclusion of the evidence I will tell you
the rules of law which you are to use in
reaching your verdict. I’ll read those rules of
law to you aloud and you will have copies of
them to take back to the jury deliberation
room to use.
In our view, this remark and the fact that the court never gave the
illustration to the jury in writing, supports the court’s
characterization of the illustration as an example rather than an
instruction of law.
¶ 39 Finally, before providing the illustration, and at the close of
the evidence, the court properly instructed the jury on reasonable
doubt in accordance with the Model Jury Instructions, both verbally
and in writing. Johnson, ¶¶ 16-18; see also People v. Van Meter,
2018 COA 13, ¶ 33 (considering an improper analogy’s brief and
isolated use followed by a correct jury instruction on reasonable
doubt in deciding whether plain error occurred). And, the jury
never indicated any confusion about its meaning. We presume that
19
the jury understood and followed the court’s instructions. Johnson,
¶ 14.
¶ 40 Accordingly, while we strongly discourage trial courts’ use of
everyday illustrations to explain reasonable doubt, as in Johnson,
we conclude that the trial court’s illustration here did not
impermissibly lower the prosecution’s burden of proof and does not
require reversal.
IV. Dangerous Instrument Finding
¶ 41 Mr. Tibbels last contends that his class 4 felony conviction
should be vacated because the court erroneously failed to give a
special interrogatory requiring the jury to find that he possessed a
“dangerous instrument.” He reasons that because the model jury
instructions recommend giving this interrogatory, its absence
requires us to modify his conviction to a class 6 felony. While we
agree with Mr. Tibbels that the better practice is to provide the
special interrogatory requiring a dangerous instrument finding, we
nevertheless conclude that the circumstances of this case show that
the jury made this finding beyond a reasonable doubt.
20
A. Standard of Review
¶ 42 We review jury instructions de novo to determine whether the
instructions accurately informed the jury of the governing law.
People v. Sandoval, 2018 COA 156, ¶ 11. However, we review a trial
court’s ruling on a particular jury instruction for an abuse of
discretion. Id. Where, as here, the defendant does not object to the
jury instructions, we review for plain error. People v. Smith, 2018
CO 33, ¶ 22. To constitute plain error, the error must be both
“obvious and substantial.” Hagos, ¶ 14.
¶ 43 To meet these two requirements, an error must be so clear-cut
that a trial judge should have been able to avoid it without the
benefit of an objection, People v. Pollard, 2013 COA 31M, ¶ 39, and
it must be “seriously prejudicial,” which means it must have so
undermined the fundamental fairness of the trial as to cast serious
doubt on the reliability of the defendant’s conviction, People v.
Ujaama, 2012 COA 36, ¶ 43; see also Hagos, ¶ 14.
B. Possession of Contraband
¶ 44 Section 18-8-204.1, C.R.S. 2019, provides as follows:
(1) A person being confined in a detention
facility commits the crime of possession of
contraband in the first degree if he knowingly
21
obtains or has in his possession contraband as
listed in section 18-8-203(1)(a) or alcohol . . . .
(2) Possession of contraband in the first
degree, other than a dangerous instrument, is
a class 6 felony.
(3) Possession of contraband in the first degree
involving a dangerous instrument is a class 4
felony.
¶ 45 Section 18-8-203(1)(a), C.R.S. 2019, defines “contraband” as
a dangerous instrument; malt, vinous, or
spiritous liquor, . . . fermented malt
beverage, . . . controlled substance, . . . or
marijuana or marijuana concentrate . . . .
¶ 46 Subsection (4) of that statute defines a “dangerous
instrument” as
a firearm, explosive device or substance
(including ammunition), knife or sharpened
instrument, poison, acid, bludgeon, or
projective device, or any other device,
instrument, material, or substance which is
readily capable of causing or inducing fear of
death or bodily injury, the use of which is not
specifically authorized.
¶ 47 The model jury instruction for “Possession of Contraband in
the First Degree,” COLJI-Crim. 8-2:09 (2018), follows the statutory
elements and requires the jury to find, as relevant here, that the
defendant possessed “contraband or alcohol.” When the
contraband alleged is a dangerous instrument, the model jury
22
instructions recommend including a special interrogatory, COLJI-
Crim. 8-2:10.INT (2018), which requires the jury to answer “Yes” or
“No” to the question, “Was the contraband a dangerous
instrument?” and then defines a dangerous instrument in
accordance with section 18-3-203(4).
C. Analysis
¶ 48 The trial court instructed the jury on possession of contraband
as follows:
1. That the defendant,
2. in the State of Colorado, at or about the
date and place charged
3. while confined in a detention facility
4. knowingly
5. obtained or had in his possession
contraband.
¶ 49 In a separate instruction, the court defined “contraband” as
only a “dangerous instrument,” and it excluded the other potential
items identified as contraband in section 18-3-203(1)(a). The court
defined “dangerous instrument” as set forth in section 18-8-203(4).
¶ 50 We discern no plain error in the court’s omission of the special
interrogatory. By limiting the definition of contraband to a
dangerous instrument, and by defining dangerous instrument
consistently with the statute, the court ensured that the jury
23
unanimously found that the “contraband” element was a dangerous
instrument, thereby obviating the need for the special interrogatory.
¶ 51 To the extent Mr. Tibbels argues that the model jury
instructions require a special interrogatory in all cases, we disagree,
because it is well settled that the model instructions are not binding
on a trial court and are intended to provide guidance. See People v.
Hoskin, 2016 CO 63, ¶ 20 (“[T]he pattern jury instructions are not
law, not authoritative, and not binding on this court.”) (citation
omitted).
¶ 52 We are also not persuaded by Mr. Tibbels’ assertion that his
acquittal of the other charges requires a different result. He
reasons that because the acquitted charges included the elements
of dangerous instrument (introduction of contraband) and deadly
weapon (menacing), the jury necessarily did not find that he
possessed a dangerous instrument. But he cites no authority for
this proposition, and the evidence refutes this reasoning. Mr.
Tibbels urged the jury to acquit him on the basis that he did not
know he had tools in his pocket when he was arrested. Indeed, he
was uncooperative with the deputies during the booking process
and could not be thoroughly searched. On this evidence, the jury
24
could find that he did not knowingly introduce contraband. But no
one disputed that after being in the quiet room for several hours,
Mr. Tibbels discovered the tools in his pocket and used one of them
to damage the cell door. On this evidence, the jury could find
knowing possession.
¶ 53 Likewise, Mr. Tibbels urged the jury to acquit him of menacing
because he did not direct his comments at a particular deputy and
ultimately cooperated with the deputies’ commands, an argument
with which the jury agreed.
¶ 54 Because the jury instructions properly tracked the statutory
language and required the jury to find the elements of class 4
possession of contraband beyond a reasonable doubt, and because
we presume the jury understood and followed those instructions,
we discern no error, let alone plain error. See Bass, 155 P.3d at
552.
V. Conclusion
¶ 55 The judgment is affirmed.
JUDGE TAUBMAN concurs.
JUDGE PAWAR dissents.
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JUDGE PAWAR, dissenting.
¶ 56 I respectfully dissent because I disagree with Part III of the
majority opinion. In my view, it is reasonably likely that the trial
court’s illustration of what constitutes reasonable doubt lowered
the prosecution’s burden of proof. I would therefore conclude that
this illustration was structural error and reverse Tibbels’
conviction.1 Because I would reverse, I would not address Tibbels’
remaining contentions.
I. Crack-in-the-Foundation Illustration
¶ 57 During voir dire, the trial court gave an example of a situation
in which reasonable doubt exists. The court asked a juror to
imagine that a potential homebuyer had found what she thought
1 The majority correctly states that we review whether the
instructions accurately informed the jury of the law de novo. People
v. Carter, 2015 COA 24M-2, ¶ 39. It also states that we review a
court’s decision to provide a particular instruction for abuse of
discretion. Id. The error here is not one I would review for abuse of
discretion. Tibbels’ allegation of error is that the court’s
instructions lowered the prosecution’s burden of proof. And trial
courts have no discretion to instruct the jury in a manner that
misstates the law by lowering the prosecution’s burden of proof. Id.
(“The trial court has broad discretion to formulate jury instructions
as long as they are correct statements of the law.”) (emphasis added)
(citation omitted).
26
was her dream home. Imagine the homebuyer walking into the
basement, the trial court said, and discovering a “structurally
significant,” “floor to the ceiling” crack in the basement wall and
foundation. This, according to the trial court, would cause the
homebuyer to have a reasonable doubt about buying the home.
¶ 58 In my view, this illustration set too high a bar for what
constitutes reasonable doubt. And because the jury was instructed
to convict if it had no reasonable doubts about Tibbels’ guilt, the
illustration lowered the prosecution’s burden of proof.
II. The Majority’s Reasoning
¶ 59 The majority reaches a contrary conclusion, but not because it
believes that the crack-in-the-foundation illustration properly
describes reasonable doubt. In fact, just the opposite. The majority
seems to agree that, had the jury considered and applied the trial
court’s crack-in-the-foundation illustration, structural error would
have occurred. Indeed, the majority’s explanation for why there
was no structural error has nothing to do with the crack-in-the-
foundation illustration accurately describing reasonable doubt.
Instead, the majority’s entire explanation for why there was no
structural error is that other factors purportedly mitigated the
27
illustration’s effect on the jury. As I understand the majority’s
reasoning, it finds no structural error because, based on the
isolated and informal nature of the illustration and the proper
reasonable doubt instructions, the jury must have ignored and not
considered or applied the crack-in-the-foundation illustration.
Unlike the majority, I see nothing in the record supporting the
conclusion that the jury did not apply the trial court’s illustration.
III. Nothing Mitigated the Trial Court’s Illustration
¶ 60 For three reasons, I would conclude that nothing mitigated the
damage done by the trial court’s erroneous illustration of
reasonable doubt. First, at no point did the trial court tell the jury
to disregard, ignore, or otherwise not apply the crack-in-the-
foundation illustration.
¶ 61 Second, nothing about the court’s proper reasonable doubt
instructions suggested to the jury that it should not apply the
court’s improper illustration. The illustration was presented as a
concrete example of how to apply the abstract legal concepts
articulated in the proper instructions. Consequently, from the
jury’s perspective, it did not have to choose between the instruction
28
or the illustration; the illustration, to a member of the jury, was a
more precise articulation of what constitutes reasonable doubt.
¶ 62 The instructions properly informed the jury that reasonable
doubt is based on reason and common sense; is not vague,
speculative, or imaginary; and is doubt that would cause
reasonable people to hesitate to act in matters of importance to
themselves. These are abstract explanations of reasonable doubt.
They could mean different things to different people. The crack-in-
the-foundation illustration did not contradict these abstract
concepts — it more specifically and precisely defined them. It told
the jury how to apply these abstract concepts in a real-life
situation. The illustration more precisely explained what it means
to have a doubt that is not vague, speculative, or imaginary, and
causes a reasonable person to hesitate to act.2 Consequently,
nothing about giving the jury the proper instructions suggested that
2 Indeed, the trial court prefaced its illustration by reading the
proper, abstract definition of reasonable doubt. Addressing the
jury, the court then stated, “Now, you’re all sitting there saying
what the hell does that mean. It’s a lengthy definition, okay. And
don’t lose heart. I’ll give you an example and see if we can put
some teeth and make this concrete.” The court then explained the
crack-in-the-foundation illustration.
29
the jury did not also apply the court’s improper illustration. And
applying the illustration to more precisely define the abstract
concepts in the reasonable doubt instruction lowered the
prosecution’s burden of proof. Again, the majority does not dispute
that the illustration, if applied, would have had this effect. The
majority only disagrees that the jury actually applied the
illustration.
¶ 63 This is not a case in which the subsequent proper instructions
corrected the court’s inaccurate illustration of what constitutes
reasonable doubt. As mentioned above, at no point did the trial
court instruct the jury to disregard the illustration. The jury
therefore could, and likely did, apply the illustration and
instructions together, thereby lowering the prosecution’s burden of
proof.
¶ 64 Third, I attach little importance to the fact that the court’s
illustration was not technically a formal instruction; it was an
uncontradicted explanation of reasonable doubt from the judge, the
one person in the courtroom whose words everyone, including the
jury, must heed.
30
¶ 65 It is true that the jurors heard the illustration during voir dire,
during the court’s colloquy with a single juror. But, as discussed
above, this was the only instance in which the court gave a specific
example of what constitutes reasonable doubt. And this illustration
did not come from one of the lawyers; it came from the judge. I find
it unlikely that the jury would have, without direction, understood
that the court’s illustration was not a formal instruction. I find it
even less likely that the jury, without direction, would have ignored
and not applied the illustration because it was not a formal
instruction. Instead, I think it far more likely that the jury took
note of and remembered the only time the court explained, in
familiar and accessible terms, what constitutes reasonable doubt.
And when the jury received the proper reasonable doubt
instructions in written form at the end of the case, I think it
reasonably likely that the jury thought back to the court’s crack-in-
the-foundation illustration and used it to determine whether it had
reasonable doubts about Tibbels’ guilt.
¶ 66 Divisions of this court routinely rely on the presumption that
the jury followed the trial court’s instructions. See, e.g., People v.
Hardman, 2012 COA 89, ¶ 61. And we apply this presumption not
31
only to formal written instructions, but oral instructions given only
once during a trial. Id. I see no reason why the same presumption
would not apply to the trial court’s crack-in-the-foundation
illustration here, especially where nothing in the record suggested
to the jury that it should not apply the illustration.
¶ 67 I am aware that other divisions of this court have held, like the
majority here, that a trial court’s illustration of reasonable doubt
that goes beyond the model instructions does not constitute
structural error where the illustration occurs during voir dire, the
illustration is not referred to again, and proper reasonable doubt
instructions are given. See People v. Avila, 2019 COA 145, ¶¶ 46-
48; People v. Flynn, 2019 COA 105, ¶ 49. But, neither Avila nor
Flynn explicitly held, as I would here, that the illustration at issue
would have lowered the prosecution’s burden of proof if the jury
applied it. Second, even if they had, I would disagree with the
conclusion that any of the facts mentioned in those cases mitigated
the harm of an illustration that, if applied, would have lowered the
prosecution’s burden of proof.
32
IV. Johnson and Deleon
¶ 68 Finally, I see nothing in Johnson v. People, 2019 CO 17, or
Deleon v. People, 2019 CO 85, that compels a different conclusion.
¶ 69 In Johnson, the supreme court was very clear that the trial
court’s “extraneous ‘hesitate to act instruction’” did not lower the
prosecution’s burden of proof “for two reasons: (1) the trial court
gave proper instructions defining proof beyond a reasonable doubt
and the prosecution’s burden both before the extraneous
instruction and at the close of evidence; and (2) the ‘hesitate to act’
instruction was too nonsensical to be understood by the jury.”
Johnson, ¶ 15. In other words, the jury could not have possibly
applied the hesitate to act instruction because it was impossible to
understand. Id. at ¶ 18 (“[I]t bears repeating that the instruction is
nonsensical and simply too confusing for the jury to follow.”). And
because the instruction was impossible to apply, there was no
chance that it lowered the prosecution’s burden of proof.
¶ 70 Our case is different. As explained above, the trial court’s
improper reasonable doubt illustration made sense and was in fact
easier to understand and apply than the generic and abstract, yet
proper, reasonable doubt instruction. Therefore, unlike the
33
unintelligible instruction in Johnson, it is reasonably likely that the
court’s clear crack-in-the-foundation illustration in this case
lowered the prosecution’s burden of proof.
¶ 71 Deleon is not a reasonable doubt instruction case. In Deleon,
the trial court neglected to give the jury a formal written instruction
explaining that it was to draw no adverse inference from the
defendant’s decision not to testify. Deleon, ¶ 7. The only time the
trial court mentioned the defendant’s right not to testify was during
voir dire, when the court explained that the defendant had “no
obligation to present any evidence or testimony at all” and “if he
chooses not to testify, you cannot hold it against him in any way
that he did not.” Id. at ¶ 26.
¶ 72 The question before the supreme court was whether the trial
court’s comments during voir dire constituted an “effective” no-
adverse-inference instruction. Id. at ¶ 25. The supreme court held
that the mere fact that the comments came during voir dire was not
dispositive. Id. at ¶ 26. Instead, the court held that the voir dire
comments were not an effective instruction “based on both their
timing and their content.” Id.
34
¶ 73 I do not read Deleon to stand for the proposition that a trial
court’s comments during voir dire are presumed to have no impact
on the jury. Instead, I understand Deleon to mean that the trial
court’s comments during voir dire in that case might have had an
impact on the jury, but that impact was not substantial enough to
constitute an effective no-adverse-inference instruction. Id. at ¶ 26
(“Although the timing [of the instruction] is not dispositive, it would
have been most effective for the trial court to provide an instruction
at that time,” i.e., “immediately prior to closing arguments.”
(quoting People v. Baenziger, 97 P.3d 271, 274 (Colo. App. 2004))).
¶ 74 Here, we are not faced with the question of whether the trial
court’s illustration during voir dire was impactful enough to rise to
the level of a proper instruction. Instead, our question is whether
the illustration during voir dire was impactful enough to lower the
prosecution’s burden of proof, however marginally. As explained
above, I conclude that it did.
V. Conclusion
¶ 75 In sum, I would conclude (and the majority apparently agrees)
that, in general, defining reasonable doubt using the crack-in-the-
foundation illustration is improper because it lowers the
35
prosecution’s burden of proof. The majority holds that the trial
court’s use of that illustration in this case did not lower the
prosecution’s burden of proof because it is unlikely that the jurors
considered and applied the illustration. I respectfully disagree
because (1) the trial court did not tell the jury to ignore the
illustration; (2) the illustration was not only fully compatible with
the formal reasonable doubt instructions, it was a more accessible
and easily understood illustration of reasonable doubt; and (3) the
illustration came from the judge, whose instructions — formal or
otherwise — we must presume the jury followed. I would therefore
conclude that the court’s illustration lowered the prosecution’s
burden of proof, constituted structural error, and requires reversal
of Tibbels’ convictions.
36
APPENDIX
The following cases have discouraged the use of everyday
examples to explain abstract legal concepts. As of November 17,
2019, we found seven published cases and sixteen unpublished
cases discouraging trial courts from using such analogies although
they have not necessarily warranted reversal.
1. People v. Avila, 2019 COA 145, ¶¶ 41-48 (affirming
judgment where the court distinguished beyond a
reasonable doubt from beyond a shadow of a doubt using
a house with cracks in the foundation or missing pieces
analogy);
2. People v. Flynn, 2019 COA 105, ¶ 37 (affirming judgment
where court analogized reasonable doubt to foundational
cracks and birth certificate validity);
3. People v. Boyd, 2015 COA 109, ¶ 7 (affirming judgment
where court explained presumption of innocence did not
mean the defendant was innocent, but the presumption
was that he was not guilty and reversing on other
grounds), aff’d, 2017 CO 2;
37
4. People v. Baca, 2015 COA 153, ¶ 9 (affirming judgment
where court analogized reasonable doubt to an
individual’s decision to drive a motor vehicle);
5. People v. Carter, 2015 COA 24M-2, ¶ 54 (affirming
judgment where court analogized reasonable doubt to a
jigsaw puzzle missing some of the pieces and remanding
on other grounds to correct mittimus);
6. People v. Estes, 2012 COA 41, ¶¶ 6-7 (affirming judgment
where court analogized burden of proof to a customer
without a gas receipt who is mistakenly reported for
theft);
7. People v. Sherman, 45 P.3d 774, 777 (Colo. App. 2001)
(affirming judgment but noting the trial court defining
reasonable doubt as “a doubt for which you could give a
reason. It’s a rational, objective statement of why you
feel that something hasn’t been proven, or why you have
a doubt” was error) (emphasis added).
8. People v. Reyes, slip op. at ¶ 8 (Colo. App. No. 18CA0526,
Nov. 7, 2019) (not published pursuant to C.A.R. 35(e))
38
(affirming judgment where court analogized reasonable
doubt to buying a used car).
9. People v. Tafoya, slip op. at ¶ 40 (Colo. App. No.
17CA0910, Apr. 4, 2019) (not published pursuant to
C.A.R. 35(e)) (affirming judgment where court analogized
reasonable doubt to entering an intersection on a green
light);
10. People v. King, slip op. at ¶ 42 (Colo. App. No. 16CA1133,
Mar. 14, 2019) (not published pursuant to C.A.R. 35(e))
(affirming judgment where court analogized reasonable
doubt to a substantial crack in a house’s foundation);
11. People v. Taylor, slip op. at ¶ 15 (Colo. App. No.
16CA1683, Mar. 14, 2019) (not published pursuant to
C.A.R. 35(e)) (affirming judgment where court analogized
reasonable doubt to “life decisions” such as staying in
school, choosing a college major, buying a home, and
getting married);
12. People in Interest of J.N.S., slip op. at ¶¶ 5-6 (Colo. App.
No. 16CA0196, June 7, 2018) (not published pursuant to
C.A.R. 35(e)) (affirming judgment where court analogized
39
reasonable doubt to an engine malfunction or pilots
drinking heavily at the airport before boarding a
commercial flight);
13. People v. Suarez, slip op. at ¶ 18 (Colo. App. No.
15CA0617, Apr. 5, 2018) (not published pursuant to
C.A.R. 35(e)) (affirming judgment where court analogized
reasonable doubt to everyday concerns like earthquakes
and driving);
14. People v. Lucero, slip op. at ¶¶ 7-8 (Colo. App. No.
14CA1842, Mar. 22, 2018) (not published pursuant to
C.A.R. 35(e)) (affirming judgment where court analogized
reasonable doubt to disciplining a child);
15. People v. Otto, slip op. at ¶ 41 (Colo. App. No. 14CA1328,
Mar. 15, 2018) (not published pursuant to C.A.R. 35(e))
(affirming judgment where court analogized reasonable
doubt to everyday decision-making like anticipating an
earthquake, driving a car, or flying on a commercial
airliner);
16. People v. Sanchez, slip op. at ¶ 18 (Colo. App. No.
14CA1170, Jan. 11, 2018) (not published pursuant to
40
C.A.R. 35(e)) (affirming judgment where trial court asked
jurors to rely on the same skills they use when driving a
car or picking out meat for their family in applying
reasonable doubt and vacating on other grounds);
17. People v. Essien, slip op. at ¶ 41 (Colo. App. No.
14CA1375, June 1, 2017) (not published pursuant to
C.A.R. 35(e)) (affirming judgment where court analogized
reasonable doubt to an incomplete jigsaw puzzle);
18. People v. Espinoza, (Colo. App. No. 10CA0686, June 20,
2013) (not published pursuant to C.A.R. 35(f)) (affirming
judgment where court analogized reasonable doubt to an
incomplete jigsaw puzzle);
19. People v. Bonilla-Barrera, (Colo. App. No. 09CA0462, Mar.
1, 2012) (not published pursuant to C.A.R. 35(f))
(affirming judgment where court told the jury the
defendant “did something” to be in court, and used a gas
station analogy to explain how to determine if defendant
broke the law);
20. People v. Williams, (Colo. App. No. 09CA0906, Jan. 12,
2012) (not published pursuant to C.A.R. 35(f)) (affirming
41
judgment where court analogized reasonable doubt and
presumption of innocence to a customer without a gas
receipt later charged with theft of gas and vacating on
other grounds);
21. People v. Cruz-Avila, (Colo. App. No. 09CA1957, Dec. 8,
2011) (not published pursuant to C.A.R. 35(f)) (affirming
judgment where court analogized gas station theft to
reasonable doubt);
22. People v. Harris, (Colo. App. 09CA1626, Nov. 3, 2011)
(not published pursuant to C.A.R. 35(f)) (affirming
judgment where court told jury that the defendant “did
something” to be in court and vacating on other
grounds); and
23. People v. Edwards, (Colo. App. 08CA1764, Aug. 12, 2010)
(not published pursuant to C.A.R. 35(f)) (affirming
judgment where court said defendant “may have done
something,” and “if he did something, well, he may not be
innocent in the classic sense, but that’s not the issue;
the issue is whether he committed the crimes” charged).
42