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

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

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,

(citing

Sullivan v. Louisiana,

(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,

(Colo. 2010). Then, we determine

whether such actions warrant reversal under the proper standard of

review.

¶ 14 If the defendant contemporaneously objected to the alleged

misconduct at trial, we review for harmless error.

.

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,

(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,

, ¶ 26.

¶ 15 If the defendant fails to contemporaneously object to the

alleged misconduct, we review for plain error. Wend,

. Prosecutorial misconduct constitutes plain error when it was

obvious and “seriously affected the fairness or integrity of the trial.”

Domingo-Gomez v. People,

(Colo. 2005) (citing

United States v. Young,

(1985)). “Only prosecutorial

misconduct which is ‘flagrantly, glaringly, or tremendously

improper’ warrants reversal.’”

(quoting People v. Avila,

(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,

(Colo. 1995).

6 Indeed, prosecutors may not use arguments calculated to inflame

the passions or prejudices the jury. People v. Oliver,

(Colo. 1987); see, e.g., People v. Conyac,

(“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,

(prosecutors may “employ

rhetorical devices and engage in oratorical embellishments”); see

also People v. Gibson,

(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,

(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,

(Colo. 1986); People v. Bass,

(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,

(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,

(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,

(noting that “a split verdict is an indication that prejudice did not

affect the jury’s verdict”); see also People v. Manyik,

(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,

. 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.”

(citing Sullivan,

).

¶ 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.

We review a

court’s decision to provide a particular instruction for an abuse of

discretion. People v. Sandoval,

, ¶ 11; see People v.

Estes,

(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,

(Colo. 1997))). A court abuses its discretion when its

decision is manifestly arbitrary, unreasonable, unfair, or contrary to

law. Sandoval, ¶ 26; People v. Gwinn,

(“[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.”

at ¶ 14 (quoting People v. Sherman,

(Colo. App. 2001)); Griego v. People,

(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,

(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,

(1954)); see also Miles v. United States,

(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,

. 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,

(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,

(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,

).

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,

(opining that the court’s comments during voir dire were not an

instruction), aff’d,

; see also Wansing v. Hargett,

(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,

, 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,

(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,

, ¶ 11. However, we review a trial

court’s ruling on a particular jury instruction for an abuse of

discretion.

Where, as here, the defendant does not object to the

jury instructions, we review for plain error. People v. Smith,

. 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,

, ¶ 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,

; 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,

(“[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,

.

V. Conclusion

¶ 55 The judgment is affirmed.

JUDGE TAUBMAN concurs.

JUDGE PAWAR dissents.

25 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,

-2, ¶ 39. It also states that we review a court’s decision to provide a particular instruction for abuse of discretion.

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.

(“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,

. And we apply this presumption not

31 only to formal written instructions, but oral instructions given only

once during a trial.

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,

, ¶¶ 46-

48; People v. Flynn,

. 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,

, or

Deleon v. People,

, 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,

(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,

(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,

(affirming judgment

where court analogized reasonable doubt to foundational

cracks and birth certificate validity);

3. People v. Boyd,

(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,

;

37 4. People v. Baca,

(affirming judgment

where court analogized reasonable doubt to an

individual’s decision to drive a motor vehicle);

5. People v. Carter,

-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,

(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,

(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