18CA2190 Peo v Lewis 11-04-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA2190

El Paso County District Court No. 17CR6486

Honorable Larry E. Schwartz, Judge

v.

Felicia Gail Lewis,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Philip J. Weiser, Attorney General, Ryan A. Crane, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Heather N. Wong, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2021.

¶ 2 Lewis was arrested on an outstanding warrant and taken to El

Paso County Criminal Justice Center (CJC). The arresting officer

inventoried Lewis’s valuables and clothing. Lewis then removed all

her valuables and placed them in a Seal-a-Meal bag. She reviewed

the inventory sheet and signed it, verifying the list was an accurate

statement of her property. Later she changed into a uniform and

placed her clothing in a plastic bag before she was transferred to

the housing ward. She returned the plastic bag to the officer and

the officer tagged the bag with Lewis’s name and her bag number.

¶ 3 Hours after Lewis was booked and transferred, the midnight

opened the lip balm container and saw a crystalline substance.

¶ 4 The technician showed the lip balm container and the

substance to Deputy Robert Kirkham, who suspected that the

substance was methamphetamine. Deputy Kirkham entered the

suspected methamphetamine into evidence, sealed it in a manila

envelope with red tape, and sent it by courier for testing. The

substance tested positive for methamphetamine.

¶ 5 The State charged Lewis with one count of possession of a

controlled substance and one count of introducing contraband in

the first degree. At trial, defense counsel contended that the only

the jury after defense counsel made a timely request for a jury poll.

She further contends that this error requires reversal. We perceive

no reversible error.

A. Additional Facts

¶ 7 After closing arguments, the jury began deliberating at 4:35

p.m. and the trial court instructed the jury that if it did not reach a

verdict by 5:00 p.m., the jurors would reconvene the following

morning.

¶ 8 The jury deliberated until 5:20 p.m. and returned guilty

verdicts on both counts. The trial court asked the foreperson if the

verdict accurately reflected the verdict of each juror and the

foreperson said, “Yes, Your Honor.” The court then read the

discharge instructions. But, before the jury was dismissed, the

following colloquy occurred:

is a question of law that we review de novo. People v. Steen, 2014

CO 9, ¶ 9.

¶ 10 A defendant has a constitutional and statutory right to a

unanimous verdict. U.S. Const. amend. VI; § 16-10-108, C.R.S.

2021; see also Ramos v. Louisiana, 590 U.S. ___, ___, 140 S. Ct.

1390, 1397 (2020) (“There can be no question either that the Sixth

Amendment’s unanimity requirement applies to state and federal

criminal trials equally.”). “Unanimity requires a deliberative process

that expresses the conscientious conviction of each individual

juror.” People v. Phillips, 91 P.3d 476, 479 (Colo. App. 2004). And

¶ 12 Although Crim. P. 31(d) implements the right to unanimity,

People v. Auman, 67 P.3d 741, 767 (Colo. App. 2002), rev’d on other

grounds, 109 P.3d 647 (Colo. 2005), the right to poll the jury is not

itself a constitutional right, United States v. Tucker, 596 F. App’x

616, 618 (10th Cir. 2014). Instead, it is a procedural right derived

from the Colorado Rules of Criminal Procedure, and failing to poll

the jury under Crim. P. 31(d) is therefore a trial error. See People v.

Miller, 113 P.3d 743, 749 (Colo. 2005) (identifying trial errors as

errors in the trial process itself). Our supreme court has “made

clear that reversal for trial error, based solely on the significance, or

substantiality, of the affected right, can no longer be sustained.”

People v. Novotny, 2014 CO 18, ¶ 26. And automatic reversal is

inappropriate absent structural error. Id. at ¶ 27; see also Phillips,

91 P.3d at 479 (declining to apply a structural error analysis to the

trial court’s failure to poll one of the jurors). Thus, we review a trial

trial proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342

(Colo. 1986)).

¶ 13 Assuming, without deciding, that defense counsel’s request to

poll the jury was timely, the court erred by failing to conduct a poll.

But we conclude that reversal is not required because the error was

harmless.

¶ 14 The trial court instructed the jury on unanimity and the

foreperson confirmed that the verdict accurately reflected each

juror’s verdict. And the record does not reveal any evidence that

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant was guilty beyond a reasonable doubt.

People v. Perez, 2016 CO 12, ¶ 8.

¶ 17 In making this determination, we recognize that “it is the jury

which should decide the difficult questions of witness credibility

and the weight to be given to conflicting items of evidence.” People

v. Gibson, 203 P.3d 571, 575 (Colo. App. 2008) (quoting People v.

Brassfield, 652 P.2d 588, 592 (Colo. 1982)). An appellate court

does not sit as a thirteenth juror to reassess witness credibility or to

reweigh the evidence presented to the jury. Id. As well, “we must

she

§ 18-8-203(1)(a), C.R.S. 2021. A person acts “knowingly” “with

respect to conduct or to a circumstance described by a statute

defining an offense when [s]he is aware that [her] conduct is of such

nature or that such circumstance exists.” § 18-1-501(6), C.R.S.

2021.

¶ 19 A defendant’s mental state can be proven by circumstantial

in oratorical embellishment and metaphorical nuance. Id. A

prosecutor may not, however, misstate or misinterpret the law. Id.

improper and whether reversal is warranted, we may consider the

language used, the context of the statements, the strength of the

evidence, whether the prosecutor improperly appealed to the jurors’

sentiments, whether the misconduct was repeated, and any other

relevant factors. People v. Walters, 148 P.3d 331, 335 (Colo. App.

2006). And we may consider a lack of contemporaneous objection

argument, despite its appearance in a cold record, was not overly

damaging.” Domingo-Gomez, 125 P.3d at 1054.

¶ 34 Defense counsel did not object to the prosecutor’s Mickey

Mouse analogy, so we review this claim for plain error. Hagos,

¶ 14. For an error to be plain, it must be obvious and substantial.

flagrant or glaringly or tremendously improper, and it must so

undermine the fundamental fairness of the trial as to cast serious

People v. Estes, 2012 COA 41, ¶ 19.

¶ 36 Lewis contends that the prosecutor’s use of the American flag

and Mickey Mouse to describe the beyond a reasonable doubt

standard constituted prosecutorial misconduct because it lowered

the prosecution’s burden of proof. We see no plain error.

¶ 37 Divisions of our court have increasingly disapproved the use of

analogies — by the court and by the prosecution — to explain the

beyond a reasonable doubt standard. See People v. Tibbels, 2019

COA 175, ¶ 33 (cert. granted June 29, 2020) (“[T]wenty-two

decisions of this court, both published and unpublished, have

56 (cert. granted Oct. 12, 2020) (“The danger is that, by using

iconic, easily recognizable images, the jury may conclude that guilt

reasonable doubt standard is a low burden of proof.”); People v. Van

Meter, 2018 COA 13, ¶ 31 (“[T]he prosecutor’s use of a puzzle

analogy, including the display of an incomplete puzzle of the iconic

and easily recognizable space shuttle image, was improper.”); People

v. Camarigg, 2017 COA 115M, ¶ 47 (“[P]uzzle analogies are

problematic if they use iconic images, which invite the jury to jump

to a conclusion about a defendant’s guilt.”).

“silly,” and used two iconic images — the American flag and Mickey

Mouse — to describe the difference between beyond a reasonable

doubt and beyond all doubt. The analogy related to the burden of

proof, suggesting that reasonable doubt is easy to determine.

Indeed, Juror 7 told the prosecutor that regardless of what the

¶ 39 We conclude that the court did not plainly err. The prosecutor

did not use the Mickey Mouse analogy to improperly quantify or

trivialize the prosecution’s burden of proof. See Camarigg, at ¶ 50.

Instead, the prosecutor used the analogy to emphasize the

difference between beyond a reasonable doubt and beyond all

doubt. Also, the trial court instructed the jury multiple times on

the proper meaning of “reasonable doubt” and the prosecution’s

burden to prove each element of the charges beyond a reasonable

doubt. See People v. McKeel, 246 P.3d 638, 641 (Colo. 2010) (“We

presume that jurors follow the instructions that they receive.”). The

of proof. And defense counsel did not object to the prosecutor

repeatedly using the analogy. See Domingo-Gomez, 125 P.3d at

1054. For the same reasons, we discern no plain error as to the

doubt on the reliability of the judgment of conviction.” McMinn,

¶ 58. Under these circumstances, we discern no plain error.

¶ 41 Lewis contends that the trial court erred by admitting the

sealed manila envelope containing the lip balm container and

methamphetamine. Specifically, she argues that the prosecution

failed to establish a chain of custody from the time Deputy Kirkham

entered the envelope containing the methamphetamine into

from the intake box at the lab. We are unpersuaded.

¶ 42 During direct examination, Deputy Kirkham identified a

manila envelope sealed with red tape and with the case number and

inside. The prosecutor moved to admit the envelope and defense

¶ 43 The trial court overruled the objection, reasoning that a

foundation had been laid through the technician’s prior testimony.

Deputy Kirkham then identified the lip balm container in the

envelope as the container he received from the property technician.

¶ 44 The forensic chemist later identified the sealed manila

envelope as the envelope he retrieved from the lab’s intake box for

review. See People v. Richardson, 181 P.3d 340, 347 (Colo. App.

2007). Because Lewis did not challenge the envelope’s chain of

custody from the time it left the county sheriff’s office by courier to

the time it was placed into the intake box at the lab at trial, we

agree with the People that this issue is not preserved and review it

for plain error. See People v. Ujaama, 2012 COA 36, ¶ 37.

¶ 46 We review a trial court’s decision to admit evidence for an

abuse of discretion. Richardson, 181 P.3d at 347. A court abuses

its discretion if its decision was manifestly arbitrary, unreasonable,

or unfair, or if it misapplies the law. People v. Payne, 2019 COA

167, ¶ 5.

¶ 47 “The chain of custody rule requires that the proponent of real

evidence establish that the evidence was involved in the incident

unchanged.” People v. Mascarenas, 666 P.2d 101, 112 (Colo. 1983).

evidence showed that the envelope received by the forensic chemist

was sealed with the red tape Deputy Kirkham used to seal it and

the envelope had Deputy Kirkham’s and the forensic chemist’s

handwritten markings on it. And Deputy Kirkham identified the lip

balm container containing methamphetamine as the container he

placed in the envelope for testing and the forensic chemist identified

the same container and substance as the one he received in the

envelope and tested. Thus, the chain of custody was sufficiently

established

¶ 49 We further conclude that that the alleged deficiencies in the