COLORADO COURT OF APPEALS                                     2017COA115


Court of Appeals No. 14CA0586
Boulder County District Court No. 13CR1092
Honorable Patrick D. Butler, Judge
Honorable Thomas F. Mulvahill, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Michael A. Camarigg,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division IV
                         Opinion by JUDGE GRAHAM
                       J. Jones and Welling, JJ., concur

                        Announced September 7, 2017


Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Karen Mahlman Gerash,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Michael A. Camarigg, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of driving

 under the influence of alcohol (DUI); careless driving; and

 possessing chemicals, supplies, or equipment with intent to

 manufacture methamphetamine. We affirm.

                           I.   Background

¶2    After defendant was arrested for DUI, officers decided to

 impound his Jeep because it was parked in front of a gas pump at a

 gas station. The officers conducted an inventory search of the

 vehicle and discovered a sealed box containing items commonly

 used in the manufacture of methamphetamine. Based on those

 items, they obtained a warrant to search the Jeep and found

 additional items used to manufacture meth.

¶3    The People charged defendant with DUI; careless driving; and

 possession of chemicals, supplies, or equipment with intent to

 manufacture methamphetamine. A jury convicted him of all

 charges.




                                   1
                       II.    Motion to Suppress

¶4    Defendant first argues that the trial court should have

 excluded evidence discovered in the inventory search of his Jeep

 and under the subsequently issued warrant. We disagree.

                         A.    Additional Facts

¶5    After stopping defendant on suspicion of DUI, Corporal

 Jonathan Bomba of the Lafayette Police Department called a DUI

 officer to complete the DUI investigation and arrest. Once

 defendant was placed under arrest, Corporal Bomba began an

 inventory search of the Jeep so it could be impounded. Corporal

 Alex Grotzky later arrived and assisted with the inventory search.

¶6    In the cargo area, Corporal Grotzky found a gasoline canister

 and a transmission fluid container with tubes coming out of them.

 These items “kind of piqued [his] attention as possibly something

 that could be used in meth manufacturing.” He also found a United

 States Postal Service (U.S.P.S.) box addressed to “Jayne McCoy” in

 Idaho Springs, from a return address in Arizona without a name.

 Corporal Grotzky cut the box open and discovered drain cleaner,

 leaking hydrochloric acid, a glass beaker, and pH testing strips.

 Recognizing these items as consistent with methamphetamine


                                    2
 manufacturing, Corporal Grotzky called a hazardous materials team

 to determine if the Jeep was an active meth lab. The hazmat team

 determined it was not an active lab, and the Jeep was impounded.

 A search warrant was later issued, and officers discovered

 additional items consistent with the manufacture of

 methamphetamine.

¶7    Defendant moved to suppress evidence obtained from the

 inventory search and under the warrant. He argued that the

 officers had options other than impounding his Jeep and that the

 inventory search was not conducted according to a policy that

 sufficiently curtailed police discretion, but, instead, permitted

 general rummaging. He also asserted that the evidence obtained

 under the warrant was tainted because the warrant was based on

 evidence found in the allegedly unconstitutional inventory search.

¶8    The prosecution argued that the officers acted reasonably in

 impounding defendant’s Jeep because other options were

 impractical under the circumstances. The prosecutor also argued

 that the inventory search was valid because department policy

 required officers to open sealed containers found in an inventory

 search.


                                    3
¶9     The Lafayette Police Department manual provided that

            [a]ll property in a stored or impounded vehicle
            shall be inventoried and listed on the vehicle
            storage form. This includes the trunk and any
            compartments or containers, even if they are
            closed and/or locked. Members conducting
            inventory searches should be as thorough and
            accurate as practicable in preparing an
            itemized inventory. . . .

            If the apparent potential for damage to a
            locked container reasonably appears to
            outweigh the protection of the items inside,
            other options to consider regarding locked
            containers include, but are not limited to,
            obtaining access to the locked container from
            the owner, placing the locked container into
            safekeeping or obtaining a written waiver of
            responsibility for the contents of the locked
            container.

¶ 10   Corporal Grotzky testified at the suppression hearing that he

  did not make the decision to impound defendant’s Jeep, but factors

  likely informing that decision included the following:

           Impounding a vehicle “is common practice with a DUI

            where you don’t want the person to get booked and

            released and go out and drive the vehicle.”

           The officers “[did not] have permission from [the gas

            station] owner to leave the car there.”




                                    4
           The Jeep “was parked kind of in a unique position in

             front of a gas pump where it would have been a

             nuisance.”

           Defendant’s passenger “had admitted to Corporal Bomba

             that she had consumed alcohol” and had left the scene

             by the time Corporal Grotzky arrived.

¶ 11   Corporal Grotzky further explained that he elected to open the

  sealed U.S.P.S. box because, while “[t]here’s some discretion within

  our policy” whether to open closed containers, he “wanted to make

  sure that there were no . . . valuable items that [he] . . . [or] the tow

  truck driver would be responsible for, [and] that the defendant

  could [not] come back and claim that [he] . . . [or] the tow truck

  driver [had] damaged or broken [defendant’s property].” Corporal

  Grotzky believed cutting the tape on the box would not damage it,

  and he “figured if . . . they needed to put a new piece of tape on it

  afterwards it wouldn’t be a big issue.”

¶ 12   The trial court concluded that the Jeep was lawfully

  impounded and the inventory search was conducted according to

  standard policy. The court found no evidence of pretext because

  while officers had some discretion in whether to impound a vehicle,

                                      5
  there were “some coherent and reasonable reasons” why other

  options were impractical. The court also found that “the

  determination to do an inventory search [was made] . . . before

  there was any evidence or even suspicion by the officer that there

  would be some sort of illegal items found inside.” Thus, the court

  denied defendant’s motion to suppress.

              B.   Standard of Review and Applicable Law

¶ 13   We review a trial court’s ruling on a motion to suppress as a

  mixed question of fact and law. People v. Parks, 2015 COA 158,

  ¶ 7. We defer to the court’s factual findings if they are supported by

  the record, but we review its conclusions of law de novo. Id.

¶ 14   Unreasonable searches violate the United States and Colorado

  Constitutions. U.S. Const. amend. IV; Colo. Const. art. II, § 7.

  Warrantless searches are presumptively unconstitutional unless an

  exception to the warrant requirement applies. Parks, ¶ 10.

  Inventory searches are one exception. Id. Inventory searches “are

  designed to protect the owner’s property while it is in police

  custody, to insure against claims concerning lost or damaged

  property, and to protect the police from any danger posed by the

  contents of the vehicle.” Pineda v. People, 230 P.3d 1181, 1185


                                     6
  (Colo. 2010), disapproved of on other grounds by People v. Vaughn,

  2014 CO 71.

¶ 15   Inventory searches are reasonable if (1) the vehicle was

  lawfully taken into custody, id.; (2) the search was conducted

  according to “an established, standardized policy,” Vaughn, ¶ 14;

  and (3) there is no showing police acted in bad faith or for the sole

  purpose of investigation, Pineda, 230 P.3d at 1185.

¶ 16   A vehicle is lawfully taken into custody if the seizure is

  authorized by law and department regulations and is reasonable.

  People v. Brown, 2016 COA 150, ¶¶ 14-15 (cert. granted July 3,

  2017); People v. Gee, 33 P.3d 1252, 1255-57 (Colo. App. 2001).

¶ 17   The inventory search must then be conducted according to a

  standardized procedure so as not to become “a ruse for a general

  rummaging in order to discover incriminating evidence.” Florida v.

  Wells, 495 U.S. 1, 4 (1990). Police discretion is permitted in

  conducting the search “so long as that discretion is exercised

  according to standard criteria and on the basis of something other

  than suspicion of evidence of criminal activity.” Id. at 3-4 (quoting

  Colorado v. Bertine, 479 U.S. 367, 375 (1987)). “The policy or

  practice governing inventory searches should be designed to


                                     7
  produce an inventory,” id. at 4, not as “a purposeful and general

  means of discovering evidence of crime,” id. (quoting Bertine, 479

  U.S. at 376 (Blackmun, J., concurring)). The policy need not be in

  writing, so long as it is routinely used by officers. Brown, ¶ 16.

¶ 18   Finally, when assessing whether an inventory search was

  pretextual, the officer’s subjective motives are irrelevant. Vaughn,

  ¶ 11 n.7. Instead, we ask whether the officer’s actions were

  objectively reasonable under the circumstances. Pineda, 230 P.3d

  at 1185.

                        C.   Decision to Impound

¶ 19   Defendant does not challenge the officers’ legal authority to

  impound his Jeep after his DUI arrest but instead argues that they

  had options other than impounding the vehicle, such as allowing a

  third party to take custody or leaving the Jeep where it was. We are

  not persuaded that the decision was unreasonable.

¶ 20   First, whether the officers had other options besides

  impounding defendant’s Jeep is not controlling; the question is

  whether the decision was objectively reasonable. See Vaughn, ¶ 15

  (“That [the officer] was not required to arrest [the defendant] for

  driving with a suspended license — and could have issued a


                                     8
  summons instead — is irrelevant, as [the defendant’s] arrest was

  both permissible and objectively reasonable.”).

¶ 21   Second, evidence adduced at the suppression hearing

  indicates that the decision to impound was reasonable.

  Defendant’s passenger admitted she had been drinking, so officers

  could have reasonably decided she was incapable of safely operating

  the Jeep. She also left the scene before Corporal Grotzky arrived,

  indicating that she had determined not to stay with defendant and

  that she may not have been willing to take custody of the vehicle

  anyway. The officers lacked permission to leave the Jeep parked on

  the private property of the gas station owner, where it was blocking

  a gas pump and likely to be a nuisance. And department policy

  prohibited officers from moving a vehicle unless it was “an

  imminent danger to the safety of other motorists.” Defendant,

  having been arrested for DUI, certainly could not have moved the

  Jeep himself. Each of these considerations was appropriately based

  on public safety rather than a desire to investigate. See Brown,

  ¶¶ 13-14 (stating that police may impound vehicles at their

  discretion “in furtherance of ‘public safety’” but “not to obtain

  evidence”) (citation omitted).


                                     9
¶ 22   Accordingly, we agree with the trial court that the officers

  properly took custody of defendant’s Jeep.

                       D.   Department Procedure

¶ 23   Defendant also argues that the inventory search was not

  conducted according to standard department procedures that

  sufficiently curtailed officer discretion. Again, we disagree.

¶ 24   First, whether Corporal Grotzky was motivated by some

  investigative curiosity is not controlling. See Gee, 33 P.3d at 1255.

  The question is whether his actions were objectively reasonable. Id.

¶ 25   Department policy instructed officers to open all containers

  unless the potential for damage was significant. Having determined

  that the potential for damage was minimal, Corporal Grotzky acted

  according to policy when he opened the U.S.P.S. box in defendant’s

  Jeep.

¶ 26   The discretion granted to Corporal Grotzky in making that

  decision was appropriate because it tailored his discretion

  according to standard criteria unrelated to criminal suspicion.

  Instead, the criteria were designed to further the purposes of an

  inventory search — protecting property while in police custody.




                                    10
¶ 27   Thus, we agree with the trial court that Corporal Grotzky’s

  decision to open the box was reasonable.

                               E.   Pretext

¶ 28   Finally, to the extent defendant suggests that the officers

  impounded his Jeep and conducted an inventory search as pretext

  for criminal investigation, we disagree.

¶ 29   The only evidence defendant points to that would suggest

  pretext was Corporal Grotzky’s testimony that his curiosity was

  “piqued” by items consistent with the manufacture of

  methamphetamine before he opened the U.S.P.S. box. However, as

  the trial court noted, the decision to impound defendant’s Jeep was

  made before there was any suspicion of illegal items inside. And

  since department policy instructed officers to open all containers

  found during an inventory search unless the potential for damage

  was too great, a reasonable officer in Corporal Grotzky’s position

  would have made the same decision, his individual curiosity

  notwithstanding. See Pineda, 230 P.3d at 1185.

¶ 30   Therefore, we agree with the trial court that the search was

  not pretextual.




                                    11
                       F.   The Counterman Case

¶ 31   Finally, we reject defendant’s suggestion that under People v.

  Counterman, 192 Colo. 152, 556 P.2d 481 (1976), the search was

  improper because the purposes of the inventory search could have

  been accomplished without opening the box. First, Counterman is

  no longer good law.1 Second, the question is not whether the

  purposes of the inventory search could be satisfied by a narrower

  search, see Bertine, 479 U.S. at 374 (“The reasonableness of any

  particular governmental activity does not necessarily or invariably

  turn on the existence of alternative ‘less intrusive’ means.” (quoting

  Illinois v. Lafayette, 462 U.S. 640, 647 (1983))), but whether the

  search was reasonable. Third, the purposes of an inventory search

  would not have been satisfied by merely noting the existence of the




  1 People v. Counterman held that the inventory search of a knapsack
  found in an impounded vehicle was unconstitutional under the
  United States and Colorado Constitutions. 192 Colo. 152, 157-58,
  556 P.2d 481, 485 (1976). However, “under federal constitutional
  standards Counterman is no longer valid.” People v. Parks, 2015
  COA 158, ¶ 21 (quoting People v. Inman, 765 P.2d 577, 579 n.4
  (Colo. 1988)). And subsequent decisions of our supreme court have
  made clear that the Colorado and United States Constitutions offer
  coextensive protections in the context of inventory searches. See id.
  at ¶ 22. Hence, Counterman is no longer valid under either
  constitution.

                                    12
  sealed box in this case because it contained hazardous chemicals,

  which could have threatened police or public safety. See South

  Dakota v. Opperman, 428 U.S. 364, 373 (1976) (“It would be

  unreasonable to hold that the police, having to retain the car in

  their custody . . . , had no right, even for their own protection, to

  search it.” (quoting Cooper v. California, 386 U.S. 58, 61-62 (1967))).

¶ 32   Therefore, we agree with the trial court that the inventory

  search was constitutional.

                                 G.    Taint

¶ 33   Because we conclude that the inventory search was

  constitutional, evidence obtained under the subsequently issued

  warrant could not have been tainted.

                      III.   Prosecutorial Misconduct

¶ 34   Defendant next argues that the prosecutor improperly

  quantified the concept of reasonable doubt and lowered the burden

  of proof by using a puzzle analogy during closing argument. We are

  not convinced this was prosecutorial misconduct, but even if it was,

  it was harmless beyond a reasonable doubt.




                                      13
                         A.    Additional Facts

¶ 35   In closing, the prosecutor argued that the circumstantial

  evidence showed that defendant knew what was inside the U.S.P.S.

  box in his Jeep and that he possessed those items with the intent to

  manufacture methamphetamine. Defense counsel asserted in

  closing that defendant did not know what was in the box, defendant

  did not know how to manufacture methamphetamine, and all of the

  items in the box had innocent uses. Thus, defense counsel argued,

  evidence of defendant’s guilt was merely speculative and the

  prosecution had not proven the possession with intent to

  manufacture meth charge beyond a reasonable doubt.

¶ 36   In rebuttal, the prosecutor used a puzzle analogy to explain

  how the circumstantial evidence was sufficient proof beyond a

  reasonable doubt:

            [W]hen you look at this case, think about
            reasonable doubt like it’s a puzzle, and that
            the pieces of this case are a puzzle that you
            are putting together.

            And when you look at a puzzle you’ve got —
            you start to put together your pieces. So first
            of all, you’ve got a piece here, which is this was
            the defendant’s car. He was driving it. He
            owned it. You saw some insurance paperwork
            in his — in his car.


                                   14
So we know that the car belonged to him, that
he drives this car, that it’s his. It isn’t like he
was driving a friend’s car or something like.
This is his own property.

You keep adding up the pieces of the puzzle;
that he’s driving drunk and he admits to that,
but he does everything that he can to steer the
cops away from the car.

You put in some other pieces of a puzzle. And
you have another one that we know that
there’s nothing in the car that was necessarily
or obviously illegal. Had some of these officers
not had the training that they had, somebody
might have overlooked this and said hey, this
isn’t something that’s illegal.

So he was trying to steer the cops away from
something that he knew in his mind was
illegal. But there wasn’t anything else that
they found because we have talked about
drugs or things like that.

And again, you put together the pieces of the
puzzle, there were items not just inside that
box, but outside the box. Some of the tubing
and the containers and the gas can were found
outside the box.

Keep adding the pieces of the puzzle, and you
look at the proximity. Everything was in the
trunk, and a lot of the items were together in
that box.

So again, if you have some pH papers in a
drawer in your desk and you have some drain
cleaner under your bathroom sink, the two
aren’t probably mixing, right.



                        15
But when you’ve got all of those items in a box
together and there’s no other reason to have
those items in a box together, it’s probably
there because you’re making
methamphetamine.

Keep adding the piecing [sic] of the puzzle.
And again, look at why is this stuff mailed in
the first place, right. If you could just go to
Home Depot or McGuckin’s [Hardware] and
buy it, why does somebody in Nevada have to
ship that to somebody in Idaho Springs; some
filter papers, some pH papers. So kind of look
at just the suspicious circumstances of that.

Remember what Detective Holdstock told you
yesterday, that with his training and his
experience dealing with people shipping drugs
and things like that over the mail that maybe
they’re sending it to a fake name, fake address.
Maybe they’re sending it to somebody who
doesn’t know what’s coming and somebody is
going to intercept it.

So just look at the suspicious nature of that
package in and of itself. There’s a name and
an address of the sender — or excuse me, the
receiver. But the sender didn’t even put their
name on there, just an address in Arizona.

And then lastly you put the pieces together
and let’s use our common sense in this
case. . . .

Common sense, if somebody who is driving a
car, it’s their own car, people know what’s in
your car, people know what’s in the packages
in their car. So use your common sense when
you think about the evidence that you heard in
this case.

                      16
             So reasonable doubt is a puzzle. We have a
             puzzle up here, and we filled in the pieces.
             And each of you might have other pieces of the
             puzzle that you would fill in. But you look at
             this puzzle, and [there are] a couple of items
             that are still missing or a couple of pieces of
             the puzzle that haven’t been filled in.

             When you look at this puzzle and you see what
             it is, it’s a tiger; right? No doubt, proof beyond
             a reasonable doubt that that is a tiger that
             you’re looking at.

¶ 37   Defense counsel objected, arguing that the prosecutor’s

  analogy was “inaccurate as to reasonable doubt.” The court

  overruled the objection but instructed the jury that “the law that

  applies to this case is in the instructions that I’ve read to you and

  that each of you have.”

¶ 38   The prosecutor then concluded:

             And my purpose in putting this up is what I
             talked about, right. Reasonable doubt is not
             all doubt. It’s not beyond a shadow of a doubt.
             It’s a doubt that would cause reasonable
             people to hesitate to act in matters of
             importance to them.

             Are you going to hesitate to say that that’s a
             tiger even though all the pieces aren’t filled in?
             No.

             So . . . look at the evidence, look at what you
             heard yesterday, the photographs that you
             saw.


                                     17
            And when you look at everything, it tells you
            beyond a reasonable doubt that the defendant
            is guilty of the charges.

              B.   Standard of Review and Applicable Law

¶ 39   We review a trial court’s ruling on prosecutorial misconduct

  for “a gross abuse of discretion resulting in prejudice and a denial

  of justice.” People v. Garner, 2015 COA 175, ¶ 26 (quoting People v.

  Rhea, 2014 COA 60, ¶ 42) (cert. granted Oct. 17, 2016).

¶ 40   A prosecutor may not “misstate the evidence or the law,

  attempt to inflame the jurors’ passions or prejudices, or offer a

  personal opinion as to the defendant’s guilt.” People v. Krueger,

  2012 COA 80, ¶ 50.

¶ 41   Only one published case in Colorado has addressed the

  analogy of the reasonable doubt standard to a puzzle. See People v.

  Carter, 2015 COA 24M-2, ¶¶ 50-61. In that case, the trial court

  told jurors during voir dire that if they had a jigsaw puzzle with

  some pieces missing, which showed

            a white building with a part of a red roof and
            the rest of the roof structure is not there . . .
            part of a fence that goes around but then part
            of that’s missing . . . [and] half of, what looks
            like . . . a house . . . [,] I suspect that . . . you
            might be able to figure out that there’s a barn
            and a corral and a house there, even if you


                                     18
             can’t see it all, that might be enough proof
             beyond a reasonable doubt.

  Id. at ¶ 54. The prosecutor later referred to that analogy during

  closing arguments, telling the jurors that “you consider everything

  together. It’s a puzzle.” Id. at ¶ 56. The prosecutor went on to

  recite certain pieces of evidence and told the jury to put those

  pieces together. Id. Because the Carter defendant did not object, a

  division of this court reviewed the comments for plain error. Id. at

  ¶ 51. The division assumed without deciding that the comments

  were erroneous, but it concluded that they were not plain error. Id.

  at ¶ 58.

¶ 42   Here, defendant did object, so we review for reversible error,

  not plain error. Because the Carter division assumed error and

  applied the plain error standard of reversal, and because other

  Colorado cases involving the dilution of the burden of proof have

  also applied a plain error standard, Colorado law provides little

  insight on when a prosecutor’s burden of proof analogy constitutes

  reversible error. See People v. Baca, 2015 COA 153, ¶¶ 9-16

  (reviewing trial court’s analogy of reasonable doubt standard to

  driving a car for plain error); People v. Boyd, 2015 COA 109, ¶¶ 7-



                                    19
  13 (reviewing trial court’s comments on reasonable doubt and

  presumption of innocence for plain error); People v. Hill, slip op. at

  12-16 (Colo. App. No. 14CA0585, Sept. 1, 2016) (not published

  pursuant to C.A.R. 35(e)) (reviewing prosecutor’s analogy of

  reasonable doubt to a puzzle for plain error); People v. Opana, slip

  op. at 9-12 (Colo. App. No. 10CA1987, May 29, 2014) (not

  published pursuant to C.A.R. 35(f)) (same)

¶ 43   However, courts in other jurisdictions have provided guidance.

  Analogizing reasonable doubt to an incomplete puzzle may be

  permissible when used to explain the difference between proof

  beyond all doubt and proof beyond a reasonable doubt, see Adcock

  v. State, 933 N.E.2d 21, 27-28 (Ind. Ct. App. 2010) (holding that

  analogy to a puzzle missing pieces “was used to highlight the

  difference between ‘beyond a reasonable doubt’ and ‘beyond all

  possible doubt’” and did not violate the defendant’s due process

  rights); State v. Jackson, 305 P.3d 685, 692 (Kan. Ct. App. 2013)

  (finding that analogy of the presumption of innocence to a blank

  canvas and the state’s burden to put enough paint on the canvas

  that the jury could recognize the picture beyond a reasonable

  doubt, even if painting was not complete, was within the wide


                                    20
  latitude afforded prosecutors), or when used to explain how the

  evidence at trial will come together, State v. Berube, 286 P.3d 402,

  412 (Wash. Ct. App. 2012) (“The puzzle analogy is an apt

  description of a trial, given that evidence is heard not in logical or

  chronological order but in order of witness knowledge.”).

¶ 44   Even so, puzzle analogies can be problematic in several ways.

  First, they can be improper if they quantify the concept of

  reasonable doubt. See United States v. Pungitore, 910 F.2d 1084,

  1128 (3d Cir. 1990) (The prosecution’s analogy of its case to a five-

  hundred-piece puzzle with eight pieces missing “improperly

  suggested a quantitative measure of reasonable doubt.”); People v.

  Katzenberger, 101 Cal. Rptr. 3d 122, 127 (Cal. Ct. App. 2009)

  (stating that the prosecutor’s use of an image depicting an eight-

  piece puzzle with six pieces in place inappropriately suggested the

  reasonable doubt standard could be quantified); Lord v. State, 806

  P.2d 548, 552 (Nev. 1991) (suggesting argument that having ninety

  to ninety-five percent of the pieces of a puzzle was sufficient proof of

  guilt beyond a reasonable doubt “improperly quantified the

  concept”); State v. Lindsay, 326 P.3d 125, 131-32 (Wash. 2014)

  (finding the prosecutor’s argument that “[y]ou could have 50


                                     21
  percent of those puzzle pieces missing and . . . know [a puzzle

  depicts] Seattle” improperly quantified reasonable doubt).

¶ 45   Second, puzzle analogies can inappropriately trivialize the

  state’s burden. See Berube, 286 P.3d at 412 (“The problem arises

  when the analogy is used to trivialize the State’s burden under the

  reasonable doubt standard.”).

¶ 46   Third, using a puzzle analogy to equate the burden of proof to

  an everyday choice can be improper. See State v. Curtiss, 250 P.3d

  496, 509 (Wash. Ct. App. 2011) (“[C]losing arguments comparing

  ‘the certainty people often require when they make everyday

  decisions . . . trivialize[] and ultimately fail[] to convey the gravity of

  the State’s burden and the jury’s role in assessing its case against

  [the defendant].’” (quoting State v. Anderson, 220 P.3d 1273, 1281

  (Wash. Ct. App. 2009))); cf. State v. Fuller, 282 P.3d 126, 142 (Wash.

  Ct. App. 2012) (deciding that puzzle analogy was not reversible

  error where the prosecution did not “equat[e] its burden of proof to

  making an everyday choice”).

¶ 47   And finally, puzzle analogies are problematic if they use iconic

  images, which invite the jury to jump to a conclusion about a

  defendant’s guilt. See Katzenberger, 101 Cal. Rptr. 3d at 127


                                      22
  (deciding that the prosecutor’s use of a partially completed puzzle

  depicting the Statue of Liberty “invite[d] the jury to guess or jump to

  a conclusion, a process completely at odds with the jury’s serious

  task of assessing whether the prosecution has submitted proof

  beyond a reasonable doubt,” because “most jurors would recognize

  the image well before” the image was complete and “might guess the

  picture is of the Statue of Liberty when the first or second piece[s]”

  were in place); People v. Wilds, 529 N.Y.S.2d 325, 327 (N.Y. App.

  Div. 1988) (The trial court’s analogy to a puzzle depicting Abraham

  Lincoln diminished the prosecution’s burden of proof because “the

  average American juror would recognize a jigsaw puzzle of Abraham

  Lincoln, long before all of the pieces are in place. Obviously, this is

  not the quantum of proof required in a criminal case.”).

¶ 48   The parties disagree whether the prosecutor’s analogy should

  be reviewed for harmless error or constitutional harmless error.

  See Hagos v. People, 2012 CO 63, ¶¶ 9-12 (stating that preserved

  errors that affect a defendant’s constitutional rights are subject to

  constitutional harmless error review, while trial errors that do not

  directly affect a defendant’s constitutional rights are subject to

  harmless error analysis). We need not resolve that question.


                                    23
  Although we are not persuaded that the prosecutor’s argument

  specifically and directly offended defendant’s constitutional due

  process rights, see People v. Flockhart, 2013 CO 42, ¶ 20 (“Only

  those errors ‘that specifically and directly offend a defendant’s

  constitutional rights are “constitutional” in nature.’”) (citation

  omitted), we conclude that there is no reasonable possibility the

  prosecutor’s analogy contributed to defendant’s conviction, see

  Hagos, ¶ 11 (stating that under constitutional harmless error

  review, a reviewing court must reverse if there is a reasonable

  possibility that the error contributed to the defendant’s conviction).

                               C.   Analysis

¶ 49   The prosecutor used a puzzle analogy for purposes that other

  courts have found permissible: to convey the difference between

  proof beyond a reasonable doubt and proof beyond all doubt, and to

  explain how the circumstantial evidence fit together to support the

  prosecution’s case. See Adcock, 933 N.E.2d at 27-28; Jackson, 305

  P.3d at 692; Berube, 286 P.3d at 412. The prosecutor used the

  verbal imagery to emphasize that while the jury might want

  additional information, the circumstantial evidence was sufficient to

  find guilt beyond a reasonable doubt. See Jackson, 305 P.3d at 693


                                     24
  (deciding that the prosecutor did not act improperly in analogizing

  case to an incomplete painting to explain “that the prosecutor’s

  burden was not one to show proof beyond all doubt” and did not

  “attempt to diminish the State’s burden”).

¶ 50   Furthermore, the prosecutor did not use the analogy to

  improperly quantify or trivialize the State’s burden. The prosecutor

  did not suggest the People had provided some specific portion of a

  puzzle or that the reasonable doubt standard would be satisfied

  when a certain percentage of the puzzle was provided. Cf.

  Pungitore, 910 F.2d 1084; Katzenberger, 101 Cal. Rptr. 3d at 127;

  Lord, 806 P.2d 548; Lindsay, 326 P.3d at 134-36. Instead, the

  prosecutor used the analogy to rebut the defense argument that

  evidence of defendant’s guilt was speculative. See People v.

  Santana, 255 P.3d 1126, 1132 (Colo. 2011) (“[T]he more a

  prosecutor is legitimately responding to questions and arguments

  raised by defense counsel, the less likely it is the prosecutor

  intended to shift the burden of proof.”).

¶ 51   While the comparison was potentially problematic because the

  image of a tiger might be recognizable “long before all of the pieces

  are in place,” Wilds, 529 N.Y.S.2d at 327, we nevertheless conclude


                                    25
that there is no reasonable possibility the metaphor contributed to

defendant’s conviction. First, a tiger is not so iconic as to be

immediately recognizable, in contrast to images of the Statue of

Liberty, Katzenberger, 101 Cal. Rptr. 3d at 127, the State of

California, People v. Otero, 148 Cal. Rptr. 3d 812, 816-18 (Cal. Ct.

App. 2012), or Abraham Lincoln, Wilds, 529 N.Y.S.2d at 327, of

which courts have disapproved. Second, in contrast to more

problematic cases, the prosecutor did not display a partial image of

a tiger. Cf. Otero, 148 Cal. Rptr. 3d at 816-18 (prosecutor displayed

image of California and asked what state it was); Katzenberger, 101

Cal. Rptr. 3d at 127 (prosecutor displayed image of partially

completed puzzle depicting Statute of Liberty). The generic verbal

comparison was not so specific that the jury could have

immediately conjured an image of a tiger and thus been encouraged

to jump to conclusions about defendant’s guilt. Cf. Katzenberger,

101 Cal. Rptr. 3d at 127 (finding that image of puzzle depicting

Statute of Liberty “le[ft] the distinct impression that the reasonable

doubt standard may be met by a few pieces of evidence” and thus

“invite[d] the jury to guess or jump to a conclusion”). Instead, the

prosecutor merely recited a long list of circumstantial evidence,


                                  26
  analogous to putting the pieces of a puzzle together, in direct

  rebuttal to defense counsel’s argument that the evidence against

  defendant was speculative and did not prove his guilt. See People v.

  Gibson, 203 P.3d 571, 578 (Colo. App. 2008) (“[I]t was permissible

  for the prosecutor to argue that the sum of the circumstances was

  more than mere coincidence.”).

¶ 52   Finally, the jury was properly instructed on the reasonable

  doubt standard and the State’s burden to prove each element of the

  charges beyond a reasonable doubt; the court reminded the jurors

  of these standards when defense counsel objected to the

  prosecutor’s analogy; and, after the objection, the prosecutor

  repeated the correct formulation of reasonable doubt to the jury.

  See People v. Bowring, 902 P.2d 911, 921 (Colo. App. 1995)

  (deciding that the prosecutor’s statements did not deprive the

  defendant of a fair trial where the jury was properly instructed on

  the law and reminded by the court of those instructions during the

  prosecutor’s objectionable comments).

¶ 53   Under these circumstances, any impropriety in the

  prosecutor’s analogy was harmless beyond a reasonable doubt.




                                    27
                    IV.   Sufficiency of the Evidence

¶ 54   Lastly, defendant contends there was insufficient evidence he

  intended to manufacture methamphetamine. We disagree.

              A.   Standard of Review and Applicable Law

¶ 55   We review the record de novo to determine if there is sufficient

  evidence to sustain a defendant’s conviction. People v. Leverton,

  2017 COA 34, ¶ 56. We ask “whether the relevant evidence, both

  direct and circumstantial, when viewed as a whole and in the light

  most favorable to the prosecution, is substantial and sufficient to

  support a conclusion by a reasonable person that the defendant is

  guilty of the charge beyond a reasonable doubt.” Id. at ¶ 53.

                              B.   Analysis

¶ 56   Defendant argues that there was insufficient evidence he

  intended to manufacture methamphetamine because (1) the items

  he possessed were legal and had legitimate uses; (2) there was no

  evidence he knew how to manufacture meth; (3) he did not possess

  items “essential” to manufacturing meth; and (4) there was no

  evidence he knew what was in the U.S.P.S. box.

¶ 57   However, defendant disregards rational inferences a juror

  could make in favor of the prosecution from the circumstantial


                                   28
  evidence. For example, a juror could conclude defendant knew

  what was in the U.S.P.S. box because most people know what items

  are in their vehicles. Likewise, a juror could conclude defendant

  knew how to and intended to manufacture methamphetamine

  based on the close proximity of the supplies, the containers with

  tubes coming out of them (which an officer testified could be used

  in the production of the drug), the suspicious circumstances of

  having legal items shipped from an anonymous out-of-state

  address, and defendant’s attempts to keep the officers away from

  his vehicle.

¶ 58   That the record contains other evidence that could support a

  contrary conclusion does not change the fact that there was

  sufficient evidence to support the jury’s conclusion. See People v.

  Thornton, 251 P.3d 1147, 1149 (Colo. App. 2010) (“The prosecution

  is entitled to the benefit of every reasonable inference that may

  fairly be drawn from the evidence, even if the record also contains

  evidence to the contrary.”) (emphasis added) (citations omitted);

  People v. Carlson, 72 P.3d 411, 416 (Colo. App. 2003) (“Where

  reasonable minds could differ, the evidence is sufficient to sustain a

  conviction.”).


                                    29
¶ 59   It was the jury’s role to determine what weight and

  significance to attribute to the evidence, see Leverton, ¶¶ 62-63,

  and, viewed in the light most favorable to the prosecution, there

  was sufficient circumstantial evidence from which a rational jury

  could conclude beyond a reasonable doubt that defendant intended

  to manufacture methamphetamine.

                            V.    Conclusion

¶ 60   The judgment of conviction is affirmed.

       JUDGE J. JONES and JUDGE WELLING concur.




                                    30
