     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
                                                            February 8, 2018

                                2018COA13

No. 15CA0170, People v. Van Meter — Criminal Law ― Burden
of Proof ― Prosecutorial Misconduct

     A division of the court of appeals considers whether the trial

court erred in allowing the prosecutor’s use of a partially completed

puzzle of an iconic and easily recognizable space shuttle image — as

an analogy and a visual display — to explain the concept of

reasonable doubt to the jury. The division concludes that the

challenged conduct constituted prosecutorial misconduct but does

not require reversal under the plain error standard of review.

     Also, the division rejects the defendant’s assertions that the

trial court reversibly erred in (1) refusing to declare a mistrial after

a prospective juror made potentially prejudicial statements during

voir dire; (2) improperly instructing the jury on the “possession”

element of the crime of possession of a weapon by a previous
offender; and (3) allowing evidence showing that the defendant

allegedly used illegal drugs and that the gun he was accused of

possessing was stolen.

     Accordingly, the division affirms the judgment.
COLORADO COURT OF APPEALS                                     2018COA13


Court of Appeals No. 15CA0170
El Paso County District Court No. 14CR2764
Honorable Michael P. McHenry, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Wayne Jared Van Meter,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                 Division VI
                           Opinion by JUDGE FOX
                        Furman and Ashby, JJ., concur

                         Announced February 8, 2018


Cynthia H. Coffman, Attorney General, Erin K. Grundy, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Meredith K. Rose, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Wayne J. Van Meter, appeals the judgment of

 conviction entered on a jury verdict finding him guilty of possession

 of a weapon by a previous offender (POWPO). Although the

 prosecutor’s use of a partially completed puzzle of an iconic and

 easily recognizable space shuttle image to explain the concept of

 reasonable doubt constituted prosecutorial misconduct, we

 ultimately conclude that the trial court did not reversibly err by

 allowing the conduct where no contemporaneous objection was

 made. We therefore affirm.

                           I.    Background

¶2    In 1988, Van Meter pleaded guilty to multiple crimes,

 including two counts of felony aggravated robbery, and was

 sentenced to serve thirty-two years in the Department of

 Corrections’ custody. In June 2013, Van Meter was released on

 parole.

¶3    Johnny Gilliland, a construction industry employer, hired Van

 Meter after his release. In June 2014, Gilliland told Van Meter’s

 parole officer that Van Meter had a gun in his car and was possibly

 using heroin and stealing from customers. Gilliland directed Van

 Meter to a jobsite, where the parole officer and three other officers


                                    1
 waited. When Van Meter arrived, the officers arrested him and

 found a loaded semi-automatic handgun inside of a toolbox in the

 trunk of his car.

¶4    Van Meter was charged with one count of POWPO, pursuant to

 section 18-12-108(1), (2)(c), C.R.S. 2017. A jury found him guilty.

                     II.   The Prospective Juror Panel

¶5    Van Meter argues that the trial court reversibly erred in failing

 to declare a mistrial after a prospective juror stated in front of the

 panel that he was aware of the underlying case because he was a

 deputy sheriff and had transported Van Meter to court. We

 disagree.

                           A.   Additional Facts

¶6    During voir dire, the following interaction occurred in front of

 the panel of prospective jurors:

             [THE COURT:] Anyone else believe they’re
             suffering a true hardship[?]

             PROSPECTIVE JUROR: Yes, sir. Not a
             hardship, but I’m aware of the case. I’m a
             deputy sheriff.

             THE COURT: And you look familiar to me . . . .
             You’re aware of this particular case, the [Van
             Meter] case?



                                     2
            PROSPECTIVE JUROR: Yes, sir. I’ve
            transported him to court.

 The trial court then dismissed the prospective juror for cause, and

 defense counsel asked to approach the bench.

¶7    Defense counsel argued that the prospective juror’s statement

 suggested that Van Meter “is in custody” and, thus, might bias the

 entire panel. Defense counsel then requested a new panel of

 prospective jurors. The trial court denied the request, determining

 that the statement did not taint the panel “in a trial that’s

 necessarily going to involve the jurors gaining knowledge of the fact

 that [Van Meter] has a prior felony conviction.” The trial court also

 noted that the statement did not indicate when the prospective

 juror transported Van Meter to court.

              B.    Preservation and Standard of Review

¶8    The parties agree that this issue was properly preserved.

¶9    We review a trial court’s decision to deny a mistrial for an

 abuse of discretion. People v. Marko, 2015 COA 139, ¶ 29 (cert.

 granted on other grounds Oct. 24, 2016). An abuse of discretion

 occurs when a trial court’s ruling is manifestly arbitrary,

 unreasonable, or unfair, or contrary to law. People v. Relaford,



                                    3
  2016 COA 99, ¶ 25. “Under the abuse-of-discretion standard, an

  appellate court must affirm the trial court’s decision if there is any

  evidence in the record to support the trial court’s finding.” People

  v. Muckle, 107 P.3d 380, 383 (Colo. 2005). Moreover, the “trial

  court is in a better position to evaluate any adverse effect of

  improper statements or testimony on a jury, [so] it has considerable

  discretion to determine whether a mistrial is warranted.” People

  v. Tillery, 231 P.3d 36, 43 (Colo. App. 2009), aff’d sub nom. People

  v. Simon, 266 P.3d 1099 (Colo. 2011).

                          C.   Law and Analysis

¶ 10   “When a prospective juror makes a potentially prejudicial

  statement during voir dire, the trial court may issue a curative

  instruction; canvass the jury; or declare a mistrial.” Vititoe v. Rocky

  Mountain Pavement Maint., Inc., 2015 COA 82, ¶ 20. Generally, a

  curative instruction issued after a prejudicial statement is made

  remedies any harm caused by the statement. People v. Mersman,

  148 P.3d 199, 203 (Colo. App. 2006). “However, to receive a

  curative instruction, a defendant must request it, and a trial court

  does not commit plain error if it does not give a curative instruction

  sua sponte.” Id. (concluding that the trial court did not commit


                                     4
  plain error in failing to issue a curative instruction or canvass the

  jury where defense counsel failed to request either remedy).

¶ 11   Because a mistrial is the most drastic of remedies, one is “only

  warranted where the prejudice to the accused is too substantial to

  be remedied by other means.” People v. Collins, 730 P.2d 293, 303

  (Colo. 1986). Factors relevant to whether a mistrial is warranted

  include the nature of the inadmissible evidence, the weight of the

  admissible evidence of the defendant’s guilt, and the value of a

  cautionary instruction. Tillery, 231 P.3d at 43.

¶ 12   A defendant’ s due process right to a fair trial may be

  implicated when a jury is exposed to information outside of properly

  admitted evidence or information included in the court’s

  instructions. Marko, ¶¶ 30, 32. In determining whether a jury’s

  exposure to such extraneous information violated a defendant’s

  right to a fair trial, we ask, first, whether the information was

  improperly before the jury and, second, “whether there is a

  reasonable possibility that the extraneous information influenced

  the verdict” to the defendant’s detriment. Id. at ¶ 31.

¶ 13   Even if the prospective juror’s comments here were potentially

  prejudicial, we conclude that the trial court did not err in declining


                                     5
  to declare a mistrial because there is no “reasonable possibility that

  the extraneous information influenced the verdict” to Van Meter’s

  detriment. See id. The challenged comments were brief, totaling

  only a few lines in the multi-page transcript from the two-day trial,

  and trial counsel never mentioned them again. See People v. Lahr,

  2013 COA 57, ¶ 24 (noting that inadmissible evidence typically will

  have less prejudicial impact if it appears only in a fleeting

  reference). The record supports the trial court’s determination that

  the challenged comments did not taint the entire panel because

  they did not necessarily imply that the deputy sheriff transported

  Van Meter to court for the underlying case — rather than for a

  previous case — especially where the POWPO charge required the

  jury to learn that Van Meter had a prior felony conviction:

  aggravated robbery.

¶ 14   Moreover, the record indicates that all who ultimately served

  on the jury indicated that they would be fair and impartial; the

  deputy sheriff and the only other potential juror who indicated that

  she could not be impartial were dismissed for cause. “As a result,

  plaintiff’s contention relies solely ‘on speculation as to the effect, if

  any, the potential jurors’ statements had on the actual jurors.’”


                                      6
  Vititoe, ¶ 31 (citation omitted); see also United States v. Jones, 696

  F.2d 479, 491-92 (7th Cir. 1982) (holding that the defendants were

  tried by an impartial jury even though two prospective jurors made

  improper comments and the entire panel heard those comments

  where the two prospective jurors were dismissed).

¶ 15   Additionally, defense counsel did not request that the trial

  court canvas the jury or issue a curative instruction — two lesser

  means to remedy any prejudice from the challenged statements.

  See Collins, 730 P.2d at 303. The trial court, therefore, did not err

  in failing to act sua sponte. See Mersman, 148 P.3d at 203.

¶ 16   For these reasons, we conclude that the trial court did not

  abuse its discretion in declining to declare a mistrial and the jury’s

  exposure to the deputy sheriff’s brief comments did not deprive Van

  Meter of a fair trial or due process. See Relaford, ¶ 25; Marko, ¶ 31.

                     III.   Prosecutorial Misconduct

¶ 17   Van Meter next asserts that the trial court reversibly erred by

  allowing the prosecutor to show the jury a picture of an incomplete

  puzzle depicting an iconic and easily recognizable image of a space

  shuttle to explain the prosecution’s burden of proof, despite the

  lack of a contemporaneous objection. Although the challenged


                                     7
  behavior constituted prosecutorial misconduct, the trial court did

  not commit plain error by allowing it.

                          A.    Additional Facts

¶ 18   The trial court instructed the prospective jurors on the

  prosecution’s burden of proof and defined “reasonable doubt” as

             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 a doubt as would cause reasonable
             people to hesitate to act in matters of
             importance to themselves.

¶ 19   Later, during voir dire, the prosecutor explained that he only

  had to prove each element of the charged crime beyond a

  reasonable doubt and that it was possible to do so while “missing

  pieces” remained. The prosecutor then showed the panel the

  following picture of a puzzle of a space shuttle containing thirty-five

  pieces — twelve (or thirty-four percent) of which are missing:




                                     8
The prosecutor used this photo to explain his burden of proof,

asking the potential jurors whether “anyone [had] a reasonable

doubt that this is a space shuttle?” After no potential juror raised

his or her hand — which would have indicated that the potential

juror thought the image was not beyond a reasonable doubt a space

shuttle — the prosecutor stated, “If you focus on the pieces that

                                  9
  you’re missing, you don’t see the picture, but if you focus on the

  pieces that you have, it’s beyond a reasonable doubt a space

  shuttle. Isn’t that correct? Does anyone disagree with that? All

  right [sic].”

¶ 20    The prosecutor showed the picture to the jury again during

  closing arguments, stating the following:

              There’s no conspiracy. There might be
              questions, though. There might be holes in
              the story. There might be things that you still
              want to know, that you didn’t hear, that you
              didn’t see. We talked about this in voir dire.
              That doesn’t rise to the level of a reasonable
              doubt. If you focus on the holes in the puzzle,
              you don’t see the picture. But if you can see
              that picture, if you can say beyond a
              reasonable doubt that is what that is, then you
              should find the defendant guilty. And there
              will be questions, and there will be holes, but
              they don’t rise to the level of a reasonable
              doubt.

¶ 21    The trial court instructed the jurors before they began

  deliberating — repeating the pattern “reasonable doubt” definition

  — and provided the “reasonable doubt” definition with the written

  instructions.

       B.    Preservation, Standard of Review, and Applicable Law

¶ 22    The parties agree that Van Meter failed to preserve this issue.



                                    10
¶ 23   Our review of a claim of prosecutorial misconduct involves a

  two-step analysis. People v. Howard-Walker, 2017 COA 81M, ¶ 83

  (citing Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010)). We first

  determine whether the conduct at issue was improper based on the

  totality of the circumstances. Id. Next, we determine whether any

  misconduct warrants reversal. Id.

¶ 24   We evaluate claims of improper argument “in the context of

  the argument as a whole and in light of the evidence before the

  jury.” People v. Geisendorfer, 991 P.2d 308, 312 (Colo. App. 1999).

  A “prosecutor has wide latitude to make arguments based on facts

  in evidence and reasonable inferences drawn from those facts.”

  People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010). A

  prosecutor also “may employ rhetorical devices and engage in

  oratorical embellishment and metaphorical nuance, so long as he or

  she does not thereby induce the jury to determine guilt on the basis

  of passion or prejudice, attempt to inject irrelevant issues into the

  case, or accomplish some other improper purpose.” People v. Allee,

  77 P.3d 831, 837 (Colo. App. 2003). A prosecutor may not misstate

  the evidence or the law. See Howard-Walker, ¶ 83; Marko, ¶ 206.




                                    11
¶ 25      Whether a prosecutor committed misconduct is an issue

  within the trial court’s discretion. See Strock, 252 P.3d at 1152.

  We will not disturb the court’s ruling absent an abuse of discretion

  “resulting in prejudice and a denial of justice.” Id. Under this

  standard, we ask not “whether we would have reached a different

  result but, rather, whether the trial court’s decision fell within a

  range of reasonable options.” People v. Rhea, 2014 COA 60, ¶ 58

  (citation omitted).

¶ 26      We review unpreserved claims of error for plain error. See

  People v. Acosta, 2014 COA 82, ¶ 77. Reversal is required under

  this standard only if the error was obvious and “so undermined the

  fundamental fairness of the trial itself so as to cast serious doubt

  on the reliability of the judgment of conviction.” Hagos v. People,

  2012 CO 63, ¶ 14 (citation omitted). “Prosecutorial misconduct

  rarely constitutes plain error.” People v. Carter, 2015 COA 24M-2,

  ¶ 53.

¶ 27      Only two published cases in Colorado have addressed the use

  of a puzzle analogy to explain the reasonable doubt standard. See

  People v. Camarigg, 2017 COA 115M, ¶ 34; Carter, ¶ 50.




                                     12
¶ 28   In Camarigg, the prosecutor used a puzzle analogy in rebuttal

  closing, describing an incomplete puzzle of an image of a tiger and

  explaining how circumstantial evidence was sufficient proof beyond

  a reasonable doubt. Camarigg, ¶¶ 36, 38. That division reasoned

  that puzzle analogies can be problematic if they (1) “quantify the

  concept of reasonable doubt”; (2) “inappropriately trivialize the

  state’s burden”; (3) “equate the burden of proof to an everyday

  choice”; or (4) “use iconic images, which invite the jury to jump to a

  conclusion about a defendant’s guilt.” Id. at ¶¶ 44-47; see also

  People v. Centeno, 338 P.3d 938, 947 (Cal. 2014) (“It is . . .

  misleading to analogize a jury’s task to solving a picture puzzle

  depicting an actual and familiar object unrelated to the evidence.”).

¶ 29   Noting that the prosecutor did not actually display a partial

  image of a tiger and contrasting that to “more problematic cases,”

  that division held that “any impropriety in the prosecutor’s analogy

  was harmless beyond a reasonable doubt.” Id. at ¶¶ 51, 53.

¶ 30   In Carter, the trial court analogized the reasonable doubt

  standard to a puzzle during voir dire and later allowed the

  prosecutor to make similar comments. Carter, ¶ 50. That division

  held that, assuming the challenged statements were improper, the


                                    13
  trial court had not committed plain error in allowing them because

  the error was neither obvious nor substantial under those

  circumstances. Id. at ¶ 61.

                              C.   Analysis

¶ 31   We conclude that the 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. During voir

  dire, the prosecutor showed the potential jurors an incomplete

  puzzle of a space shuttle (with only sixty-six percent of the pieces

  present), stated that the image was a space shuttle “beyond a

  reasonable doubt,” and asked the potential jurors whether anyone

  disagreed, which none did; the prosecutor also showed the image

  during closing arguments. By using the iconic and easily

  recognizable space shuttle image, the prosecutor “invite[d] the jury

  to jump to a conclusion about [the] defendant’s guilt,” especially

  because the jury was shown an image and told that it was a space

  shuttle “beyond a reasonable doubt.” Camarigg, ¶¶ 47, 51; see also

  People v. Katzenberger, 101 Cal. Rptr. 3d 122, 127 (Cal. Ct. App.

  2009) (concluding that a prosecutor improperly quantified the

  burden of proof by displaying an eight-piece puzzle of the Statue of


                                    14
  Liberty missing two pieces and saying “this picture is beyond a

  reasonable doubt”). The prosecutor’s use of a two-thirds completed

  puzzle analogy also improperly quantified the burden of proof, even

  where the prosecutor did not undertake to quantify the number or

  percentage of missing pieces. See Camarigg, ¶ 44.

¶ 32   Although the challenged conduct was improper, the trial court

  did not commit plain error in allowing the conduct absent a

  contemporaneous objection. We are not persuaded that the error in

  allowing the conduct, without the benefit of the guidance provided

  by this opinion, was “obvious and so clear-cut that a trial judge

  should have been expected to avoid it without benefit of an

  objection.” Carter, ¶ 58 (assuming that allowing the use of a puzzle

  analogy was improper and concluding that it was not obvious for

  purposes of plain error review); see also People in Interest of T.C.C.,

  2017 COA 138, ¶ 15 (“An error is obvious if it contravenes either a

  clear statutory command, a well-settled legal principle, or Colorado

  case law.”).

¶ 33   Moreover, in this case, the challenged conduct did not “so

  undermin[e] the fundamental fairness of the trial itself so as to cast

  serious doubt on the reliability of the judgment of conviction.”


                                     15
Hagos, ¶ 14 (citation omitted). The trial court instructed the jurors

multiple times on the proper meaning of “reasonable doubt.” See

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

jurors follow the instructions that they receive.”); see also State v.

Crawford, 262 P.3d 1070, 1081-82 (Kan. Ct. App. 2011) (concluding

that the prosecutor’s use of a puzzle analogy was misconduct, but

did not require reversal due to correct jury instructions), aff’d, 334

P.3d 311 (Kan. 2014). But see People v. Wilds, 529 N.Y.S.2d 325,

327 (N.Y. App. Div. 1988) (holding that the trial court reversibly

erred in explaining that, even though there might be some blank

spaces in a puzzle of Abraham Lincoln, reasonable doubt is

satisfied if you can still tell that it is Lincoln because “the average

American juror would recognize a jigsaw puzzle of Abraham Lincoln,

long before all of the pieces are in place”). The prosecutor’s use of

the puzzle analogy was relatively brief and isolated. See Carter,

¶ 60; People v. Munsey, 232 P.3d 113, 124 (Colo. App. 2009)

(concluding that it was “unlikely that this comment substantially

influenced the verdict” where the challenged comment was made in

an isolated portion of closing and absent other allegations of

prosecutorial misconduct during closing). And, the lack of a


                                   16
  contemporaneous objection is also telling. See People v. Rodriguez,

  794 P.2d 965, 972 (Colo. 1990) (“The lack of an objection may

  demonstrate defense counsel’s belief that the live argument, despite

  its appearance in a cold record, was not overly damaging.”) (citation

  omitted).

¶ 34   Importantly, the record contains undisputed evidence that the

  parole officers saw Van Meter arrive at the jobsite in a car, arrested

  Van Meter, immediately searched the car, and found a loaded

  handgun in the car’s trunk; Gilliland also testified that he had seen

  Van Meter with the gun and had spoken to him about it. See

  People v. Butler, 2017 COA 98, ¶ 11 (“The determination of the

  credibility of witnesses rests solely within the province of the jury.”);

  People v. Munoz-Casteneda, 2012 COA 109, ¶ 35 (holding that the

  prosecutor’s improper conduct did not require reversal under plain

  error review in light of overwhelming evidence of the defendant’s

  guilt). Because all the elements of the POWPO charge were clearly

  proven, and the error was neither obvious nor substantial here, we

  conclude that the trial court did not plainly err in allowing the

  prosecutor’s improper conduct. See Carter, ¶ 57.




                                     17
                           IV.   Jury Instruction

¶ 35   According to Van Meter, the trial court erroneously instructed

  the jury on the definition of “possession” in the context of the

  POWPO charge. We perceive no error.

                           A.    Additional Facts

¶ 36   A person commits the crime of POWPO if the person

  “knowingly possesses, uses, or carries upon his or her person a

  firearm . . . subsequent to the person’s conviction for a felony . . .

  under Colorado or any other state’s law or under federal law.”

  § 18-12-108(1).

¶ 37   During voir dire — after a prospective juror asked defense

  counsel, “[A]re you in possession if the weapon is in your

  possession?” — defense counsel and the prosecutor approached the

  bench to discuss the instructions on the possession element of the

  crime of POWPO. The trial court stated,

             So I’m looking at a definition of . . .
             “possession” . . . in the new criminal jury
             instructions . . . . And if there was one
             candidate for the least-favorite change in the
             new instructions, it would be this definition
             right here. The old definition of “possession”
             used to talk about being in dominion and
             control . . . I suppose [the new instruction]
             does still talk in terms of possession or control,


                                     18
             and it just adds — it connects it up to the
             concept of a voluntary act. So is there any
             objection to me reading the new definition?

  Defense counsel responded, “No objection.”

¶ 38   The trial court then instructed the prospective jurors that

  “[p]ossession constitutes a voluntary act if the actor was aware of

  his physical possession or control thereof for a sufficient period to

  have been able to have terminated it.” One prospective juror

  responded, “That’s pretty clear.” Defense counsel further discussed

  the definition of “possession” in the context of the crime of POWPO

  with the prospective jurors.

¶ 39   After all evidence was presented, the trial court conferred with

  the prosecutor and defense counsel to finalize the jury instructions.

  The trial court asked whether the parties objected to the page of

  instructions containing the definition of terms, including defining

  “possession” as “constitut[ing] a ‘voluntary act’ if the actor was

  aware of his physical possession or control thereof for a sufficient

  period to have been able to have terminated it.” Defense counsel

  responded, “No objection.” At the end of the instructional

  conference, the trial court reviewed each proposed jury instruction,




                                    19
  including the instruction on the definition of “possession.” Defense

  counsel again stated, “No objection.”

       B.   Preservation, Standard of Review, and Applicable Law

¶ 40   The parties agree that this issue is unpreserved, but they

  dispute whether Van Meter waived his objection to the challenged

  instruction. We need not decide the waiver issue because, in any

  event, there was no error.

¶ 41   “[A] trial court is obligated to instruct the jury correctly on the

  law applicable to the case.” People v. Stewart, 55 P.3d 107, 120

  (Colo. 2002). We review jury instructions de novo, considering them

  as a whole to determine whether they accurately informed the jury

  of the governing law. People v. Lucas, 232 P.3d 155, 162 (Colo.

  App. 2009). The trial court has substantial discretion in

  formulating the instructions, “so long as they are correct

  statements of the law and fairly and adequately cover the issues

  presented.” People v. Nerud, 2015 COA 27, ¶ 35 (quoting People

  v. Gallegos, 226 P.3d 1112, 1115 (Colo. App. 2009)).

¶ 42   Where a defendant fails to object to a trial court’s jury

  instruction, we normally apply the plain error standard of review.

  People v. Garcia, 28 P.3d 340, 344 (Colo. 2001); Acosta, ¶ 77.


                                     20
  Reversal is required under this standard only if the error was

  obvious and “so undermined the fundamental fairness of the trial

  itself so as to cast serious doubt on the reliability of the judgment of

  conviction.” Hagos, ¶ 14 (citation omitted); People v. Miller, 113

  P.3d 743, 750 (Colo. 2005). “[W]ith respect to jury instructions,

  reversal under a plain error standard requires a defendant to

  ‘demonstrate not only that the instruction affected a substantial

  right, but also that the record reveals a reasonable possibility that

  the error contributed to [the] conviction.’” Garcia, 28 P.3d at 344

  (quoting Bogdanov v. People, 941 P.2d 247, 255-56 (Colo. 1997)).

  “[A]n erroneous jury instruction does not normally constitute plain

  error where the issue is not contested at trial or where the record

  contains overwhelming evidence of the defendant’s guilt.” Miller,

  113 P.3d at 750; see Crim. P. 30 (“All instructions shall be

  submitted to the parties, who shall make all objections thereto

  before they are given to the jury. Only the grounds so specified

  shall be considered on motion for a new trial or on review.”).

                              C.    Analysis

¶ 43   The trial court’s challenged instruction — framing

  “possession” in terms of “physical possession or control” — mirrors


                                    21
the generally accepted meaning of the term “possession” and the

pattern instruction in the POWPO context. See People v. Martinez,

780 P.2d 560, 561 (Colo. 1989) (“‘[P]ossession’ is ‘a common term

which is to be given its generally accepted meaning’ [and it means]

‘the actual or physical control of a firearm.’” (quoting People v.

Garcia, 197 Colo. 550, 554, 595 P.2d 228, 231 (1979))). The

evidence of Van Meter’s guilt was focused on Van Meter’s

possession of a specific gun found at the scene of his arrest. See

Miller, 113 P.3d at 750. Defense counsel explained in detail his

theory that, although the gun was in the car Van Meter drove that

day, he was unaware of its presence because Gilliland set him up.

This defense theory, which focused on the assertion that Van Meter

did not knowingly possess the gun, was ultimately rejected by the

jury. The challenged instruction and any related questions were

discussed at length during voir dire. And, defense counsel

affirmatively declined to object to the challenged instruction three

times. See Domingo-Gomez v. People, 125 P.3d 1043, 1054 (Colo.

2005) (“The lack of an objection may demonstrate the defense

counsel’s belief that the live argument, despite its appearance in a

cold record, was not overly damaging.”) (citation omitted).


                                   22
¶ 44   Under these circumstances, we are unconvinced that the trial

  court’s decision to give the challenged instruction was incorrect or

  otherwise confusing to the extent that it constituted plain error.

  See Hagos, ¶ 14.

                         V.    Evidentiary Issues

¶ 45   Van Meter next contends that the trial court reversibly erred in

  allowing evidence in violation of CRE 402, 403, 404(b), and 802:

  namely, evidence that the gun was stolen and that Van Meter was

  allegedly using illicit drugs. We disagree.

                          A.    Additional Facts

¶ 46   Before trial, defense counsel moved for disclosure of all prior

  or criminal acts the prosecution intended to use or present at trial.

  At a hearing in October 2014, the prosecutor stated that “other

  than proof of the prior conviction to prove the [POWPO], there is no

  404(b) [evidence] anticipated.” The trial court then asked, “So is

  there really any ruling to enter today since the defense is on notice

  of [the prior case and conviction]?” Defense counsel responded, “I

  don’t think there’s anything we can do today, Your Honor.” The

  trial court agreed.




                                    23
¶ 47   At trial, before voir dire, defense counsel said that he had

  learned that Gilliland had accused Van Meter of committing various

  other bad acts, “includ[ing] a theft from a jobsite while [Van Meter]

  was working for [G]illiland, an insurance scam[,] [Van Meter]

  actually stealing from [G]illiland, and also [Van Meter] stealing

  jewelry from jobsites.” Defense counsel moved to exclude the noted

  other bad acts. The prosecutor said that he had no plan to “get into

  any of the prior acts,” and the trial court granted the motion,

  broadly stating that there “will be no mention of any prior bad acts.”

¶ 48   In his opening statement, defense counsel argued that

  Gilliland lied and “set up” Van Meter, who did not know about the

  gun in the trunk.

¶ 49   During direct examination of Van Meter’s parole officer, the

  prosecutor asked about Gilliland’s report of Van Meter’s alleged

  illegal activity. The parole officer testified that Gilliland “claimed

  [Van Meter] was possibly using heroin, possibly stealing from

  customers, and . . . had a weapon[.]” Defense counsel did not

  object. The parole officer continued to describe the investigation

  and arrest; he testified, without objection, that he contacted the

  Colorado State Police, who used a serial number on the gun found


                                     24
  in Van Meter’s car to determine that the gun was stolen before

  taking the gun into their custody.

¶ 50   On cross-examination, the following exchange occurred:

             Q. [Gilliland] told you about this information,
             about [Van Meter] supposedly carrying a
             weapon, correct?

             A. He also said he was supposedly using
             heroin.

             Q. Heroin. And also methamphetamine; is
             that correct?

             A. And he also claimed that he was using
             flush kits to try to beat the urinalysis.

  Defense counsel then elicited testimony that Van Meter never tested

  positive for heroin or methamphetamine, and neither heroin nor

  methamphetamine was found on Van Meter or in his car when he

  was arrested. Defense counsel later asked about the gun’s stolen

  status. The parole officer responded that he did not know when the

  gun was stolen.

¶ 51   During the direct examination of a second parole officer

  involved in the investigation, the officer testified, without objection,

  that Van Meter’s parole officer “said that he had received

  information that [Van Meter] had been using drugs and was in



                                     25
  possession of a weapon.” Van Meter does not expressly challenge

  the second parole officer’s testimony in his briefs on appeal.

¶ 52   The prosecution examined a third parole officer involved in the

  investigation. On cross-examination, defense counsel elicited

  testimony that no illegal drugs or other contraband was found on

  Van Meter when he was arrested.

¶ 53   Next, during direct examination, Gilliland testified that he was

  convicted of four felonies, including methamphetamine possession,

  and was on probation. Gilliland also testified that Van Meter’s

  behavior was becoming erratic and, when Gilliland asked him

  whether he was “getting high again,” he denied it. Further,

  Gilliland testified about an incident where Van Meter arrived at a

  jobsite and Gilliland noticed that “he was really high . . . I could tell

  he was high.”

¶ 54   On cross-examination, defense counsel challenged Gilliland’s

  credibility by asking him about his prior convictions. The

  prosecutor objected on relevance grounds, and defense counsel

  stated, “I do intend to get into [Gilliland’s] meth conviction as 404(b)

  evidence, as it goes to his knowledge of [meth and] the effects that it

  has on people.” The trial court ruled that, when asking Gilliland


                                     26
about his prior convictions, defense counsel could “briefly get into

the nature of the conviction.” Defense counsel then asked Gilliland

about methamphetamine, and the prosecution raised a relevance

objection. Defense counsel stated the following:

          Gilliland has testified that he allowed [Van
          Meter] to remain on job sites while under the
          influence of methamphetamine. I’m crossing
          him about what was going on in his mind at
          that time, that he would actually allow
          somebody to be unsupervised on a job site that
          he’s responsible for . . . . We’re attacking this
          witness and his story saying that there’s all
          this drug use, that this guy is such a bad guy,
          he held off on reporting it, that we absolutely
          do not believe that to be the truth, and we
          wanted to show the jury this happened.

The trial court ruled that defense counsel had “a little leeway” to

continue with this questioning; defense counsel did so, repeatedly

asking Gilliland about his accusations concerning Van Meter’s gun

and drug use. Defense counsel later asked Gilliland about his

allegations concerning thefts at various jobsites. The prosecutor

objected on the grounds of relevance and CRE 404(b). Defense

counsel responded,

          I’m attacking his credibility and opening the
          door . . . I’m asking about these prior
          accusations that [G]illiland has made against
          [Van Meter]. They’re accusations that he’s


                                  27
             mentioned to law enforcement more than once,
             in which he continued to employ [Van Meter]
             afterwards. It goes towards our theory of
             defense.

  Defense counsel then clarified that he was opening the door to

  Gilliland’s prior accusations that Van Meter “stole a number of large

  appliances from a home sometime near the date of the arrest . . . .

  [O]ur theory is that [G]illiland was doing unlawful things in his

  company and that [Van Meter] is essentially a scapegoat.” During

  redirect examination, Gilliland, speaking about why he called Van

  Meter’s parole officer, testified, “I didn’t know if I should do

  something about it. I mean, a high person with a weapon, armed

  robbery history, you know, they’re on the road to hurting other

  people.”

¶ 55   The prosecutor next questioned a police officer involved in the

  investigation. During cross-examination, defense counsel elicited

  testimony that the gun was stolen in 2012 while Van Meter was in

  prison. Defense counsel asked, “So if somebody was in prison in

  2012, they could not have stolen that gun; is that fair to say?” The

  officer responded, “That wouldn’t be impossible. It would be

  difficult for that person to steal the gun. Could they coordinate it?



                                     28
  Of course.” The officer also testified that, when Van Meter was

  arrested and the gun was recovered, it was “not [his] concern”

  whether Van Meter was connected to the original theft of the gun.

¶ 56   After the close of the prosecution’s case-in-chief, defense

  counsel called Van Meter’s parole officer and questioned him about

  Van Meter’s alleged illegal drug use. Defense counsel elicited

  testimony that Van Meter was not drug tested on the day of his

  arrest, nor did the parole officer document that Van Meter was

  under the influence of methamphetamine or heroin.

¶ 57   The prosecutor repeatedly referred to Gilliland’s allegations

  regarding Van Meter’s illegal drug use during his closing argument

  and stated the following:

            Was it meth or was it heroin? Lots of
            questions about whether [Gilliland] knew it
            was meth, and he’d seen meth and he knows
            what meth is like and he knows what
            somebody on meth looks like. Or was it
            heroin? It doesn’t matter. [Van Meter] is
            guilty of possessing the weapon. He hasn’t
            been charged with any drug crime. The fact
            that he didn’t have any drugs on him when the
            parole officers found him, [G]illiland explained
            that to you. He said, if you bought drugs,
            you’d smoke them or use them.




                                   29
  The prosecutor also noted Gilliland’s “criminal history with drugs”

  and knowledge of methamphetamine, but emphasized that these

  facts do not “mean that what [Gilliland] said on the witness stand

  was untruthful.”

¶ 58   During defense counsel’s closing, he reiterated Van Meter’s

  theory of the case — Gilliland lied and set him up. Defense counsel

  highlighted inconsistencies regarding Gilliland’s allegations of Van

  Meter’s drug use, then highlighted other inconsistencies in

  Gilliland’s testimony. Regarding why he asked Gilliland about his

  prior drug convictions, defense counsel stated,

            His prior convictions for methamphetamine,
            the reason we explored those is because they
            further bolster his knowledge and the
            unbelievability of him allowing a person who
            he knows to be using these drugs to be going
            into these houses. I wasn’t trying to drag him
            through the mud, but when a man tells me he
            doesn’t know about heroin, that heroin is even
            addictive, we have to talk about the
            methamphetamine.

               B.    Preservation and Standard of Review

¶ 59   We conclude that Van Meter failed to preserve this issue.

  Although the trial court never made a definitive ruling regarding the

  challenged evidence’s admissibility, Van Meter later failed to



                                    30
  contemporaneously object to the challenged evidence. See Camp

  Bird Colo., Inc. v. Bd. of Cty. Comm’rs, 215 P.3d 1277, 1289-90

  (Colo. App. 2009) (“Once the trial court makes definitive rulings

  either at or before trial, the objecting party need not renew the

  objection contemporaneously during trial to preserve a claim of

  error on appeal.”). The trial court broadly ruled on the first day of

  trial that there “will be no mention of any prior bad acts”; this

  ruling resolved Van Meter’s pretrial Rule 404(b) motion, which only

  referenced alleged thefts. The Rule 404(b) motion made no mention

  of the evidence Van Meter now challenges.

¶ 60   We review unpreserved claims of error for plain error. See

  Acosta, ¶ 77. We review a trial court’s evidentiary rulings for an

  abuse of discretion. Relaford, ¶ 25.

                           C.   Applicable Law

¶ 61   To be admissible, evidence must be relevant. CRE 402.

  “‘Relevant evidence’ means evidence having any tendency to make

  the existence of any fact that is of consequence to the determination

  of the action more probable or less probable than it would be

  without the evidence.” CRE 401.




                                    31
¶ 62   Evidence of other acts is not admissible to prove the character

  of a person in order to show that the person acted in conformity

  with that character. CRE 404(b). However, such evidence is

  admissible for other purposes, such as to prove motive,

  opportunity, intent, preparation, plan, knowledge, identity, or

  absence of mistake or accident. See id.

¶ 63   To admit evidence of other acts under CRE 404(b), a trial court

  must find that the evidence (1) “relates to a material fact”; (2) is

  “logically relevant”; (3) has such relevance “independent of the

  intermediate inference, prohibited by CRE 404(b), that the

  defendant has a bad character” and acted in conformity therewith;

  and (4) satisfies CRE 403 by having probative value that is not

  “substantially outweighed by the danger of unfair prejudice.”

  People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). The third prong

  of this test “does not demand the absence of the inference”; rather,

  it “merely requires that the proffered evidence be logically relevant

  independent of that inference” because all evidence of other bad

  acts could support a propensity inference. People v. Snyder, 874

  P.2d 1076, 1080 (Colo. 1994).




                                     32
¶ 64   Hearsay is “a statement other than one made by the declarant

  while testifying at the trial or hearing, offered in evidence to prove

  the truth of the matter asserted.” CRE 801(c). If an out-of-court

  statement is not offered for its truth, it is admissible as nonhearsay

  evidence as long as it is relevant. See CRE 402; see also People

  v. Welsh, 176 P.3d 781, 790 (Colo. App. 2007). If a statement is

  hearsay, it is inadmissible unless it falls within an exception to the

  hearsay rule. CRE 802.

                               D.    Analysis

¶ 65   We conclude that any error in allowing the challenged

  evidence did not rise to the level of plain error.

¶ 66   We are not persuaded that any error in allowing the

  challenged evidence was obvious where defense counsel offered no

  contemporaneous objections and strategically chose to elicit Rule

  404(b) evidence, regardless of his earlier motion, to further his

  theory that Gilliland lied and set up Van Meter. See Hagos, ¶ 14.

  Defense counsel expressly stated that he was “opening the door” to

  evidence of Van Meter’s involvement in various alleged thefts to

  challenge Gilliland’s credibility. Defense counsel also elicited

  testimony about methamphetamine, making the first mention of


                                     33
  that drug at trial during the cross-examination of Van Meter’s

  parole officer. Defense counsel then extensively used evidence of

  Gilliland’s methamphetamine possession conviction to further

  challenge his credibility. Additionally, the evidence that the gun

  was stolen and that Van Meter was allegedly using illegal drugs

  arguably explained why the investigation proceeded the way it did.

  See People v. Penn, 2016 CO 32, ¶¶ 31-33 (reasoning that officers

  may, in some circumstances, testify about “the reasons they took

  certain investigative steps, even where this testimony touches upon

  prohibited subjects”).

¶ 67   Further, admitting the challenged evidence did not “so

  undermin[e] the fundamental fairness of the trial itself so as to cast

  serious doubt on the reliability of the judgment of conviction.”

  Hagos, ¶ 14 (citation omitted). As already detailed, there was

  overwhelming evidence of Van Meter’s guilt, including Gilliland’s

  testimony. See People v. Clark, 2015 COA 44, ¶ 175 (“It is the

  function of the [trier of fact], and not the reviewing court, to weigh

  evidence and determine the credibility of the witnesses.”) (citation

  omitted); Munoz-Casteneda, ¶ 35; see also Page v. Clark, 197 Colo.

  306, 313, 592 P.2d 792, 796 (1979) (The fact finder’s “presence


                                     34
  during the presentation of testimonial evidence provides an

  unparalleled opportunity to determine the credibility of the

  witnesses and the weight to be afforded the evidence[.]”). Also, both

  Gilliland’s and Van Meter’s prior felony convictions and criminal

  histories garnered substantial attention at trial. Thus, we remain

  unconvinced that evidence of Van Meter’s alleged criminal acts

  unfairly prejudiced the jury against him, but not against Gilliland.

¶ 68   For these reasons, we conclude that the trial court did not

  plainly err in allowing the challenged evidence. See Hagos, ¶ 14.

                            VI.    Conclusion

¶ 69   The judgment is affirmed.

       JUDGE FURMAN and JUDGE ASHBY concur.




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