     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.




                                      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, 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
