     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
                                                         September 12, 2019

                               2019COA145

No. 17CA1299, People v. Avila — Criminal Law; Juries —
Challenges for Cause — Compensated Employee of a Public Law
Enforcement Agency

     In this appeal of a defendant’s criminal conviction, a division

of the court of appeals considers whether a prospective juror who is

employed by the Colorado Office of Prevention and Security’s

“fusion center” is a “compensated employee of a public law

enforcement agency.” The division answers “no” and, after

addressing defendant’s remaining contentions, affirms the

judgment of conviction.
COLORADO COURT OF APPEALS                                    2019COA145


Court of Appeals No. 17CA1299
Adams County District Court No. 16CR185
Honorable Sharon D. Holbrook, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tina Louise Avila,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division I
                       Opinion by JUDGE HAWTHORNE
                       Taubman and Grove, JJ., concur

                        Announced September 12, 2019


Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Is a prospective juror who is employed by the Colorado Office

 of Prevention and Security’s “fusion center” a “compensated

 employee of a public law enforcement agency?” We answer “no,”

 and after addressing the remaining contentions of defendant, Tina

 Louise Avila, we affirm the judgment of conviction entered on jury

 verdicts finding her guilty of possessing a controlled substance and

 resisting arrest.

           I.    Factual Background and Procedural History

¶2    Avila was at a bar early one morning, and the staff asked her

 to leave. She refused, they argued, and the staff called police. Avila

 was outside the bar when police arrived. She appeared upset and

 intoxicated, and told the officers about the argument. Without

 prompting, Avila said, “I don’t have anything on me” and “you don’t

 have shit on me.” Avila avoided making eye contact with the

 officers and put her hands in her pockets numerous times, even

 after being told not to do so by the officers.

¶3    One officer conducted a pat-down search of Avila, and she

 became agitated, again telling the officer that she didn’t have

 anything on her. When the officer reached toward Avila’s pocket,

 she resisted, and the officer arrested her.


                                     1
¶4     The arresting officer took Avila to jail, where another officer

 searched her. That officer found a small piece of white paper with a

 powdery substance in it. The substance was sent to the Colorado

 Bureau of Investigation (CBI), where an analyst tested it and

 identified it as cocaine.

¶5     The arresting officer and the analyst testified at trial for the

 prosecution. The arresting officer said that he believed the white

 paper was found in Avila’s bra or pocket, but he wasn’t positive

 which one. The analyst said he was unable to weigh the cocaine

 because it coated the inside of the plastic bag used to store it, so he

 could only shake out a portion of the material to test.

¶6     The jury convicted Avila of possessing a schedule II controlled

 substance and resisting arrest.

     II.   Sufficient Evidence Supported the Possession Conviction

¶7     Avila contends that insufficient evidence supported her

 conviction for possessing a controlled substance. “Because this is a

 dispositive issue,” we address it first and conclude that the evidence

 was sufficient. People v. Rawson, 97 P.3d 315, 323 (Colo. App.

 2004), as modified on denial of reh’g (May 6, 2004).




                                     2
              A.   Standard of Review and Applicable Law

¶8     We review the evidence’s sufficiency de novo. People v. Davis,

  2012 COA 56, ¶ 11.

¶9     Constitutional due process requirements prohibit a

  defendant’s criminal conviction except on proof of guilt beyond a

  reasonable doubt. People v. Serra, 2015 COA 130, ¶ 18. To

  determine whether sufficient evidence supported a conviction, 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 mind that the defendant is guilty . . . beyond a

  reasonable doubt.” Clark v. People, 232 P.3d 1287, 1291 (Colo.

  2010) (citation omitted).

¶ 10   We must afford the prosecution the benefit of every reasonable

  inference that may be fairly drawn from the evidence. Id. at 1292.

  These inferences must be supported by a “logical and convincing

  connection between the facts established and the conclusion

  inferred.” People v. Perez, 2016 CO 12, ¶ 25. But inference may

  not rest on inference, People v. Ayala, 770 P.2d 1265, 1268 (Colo.




                                    3
  1989), nor can an inference “be supported by guessing, speculation,

  conjecture, or a mere modicum of relevant evidence.” Perez, ¶ 25.

¶ 11   “[I]t is unlawful for a person knowingly to possess a controlled

  substance,” § 18-18-403.5(1), C.R.S. 2018, which includes cocaine.

  § 18-18-204(2)(a)(IV), C.R.S. 2018. And a jury may return a guilty

  verdict “if it finds, beyond a reasonable doubt, that the defendant

  knowingly possessed any quantity of a controlled substance.”

  Richardson v. People, 25 P.3d 54, 58 (Colo. 2001) (citing People v.

  Ceja, 904 P.2d 1308, 1310 (Colo. 1995)). Where there is “evidence

  of a usable quantity,” that “alone is sufficient evidence of knowledge

  to permit the case to go to a jury.” Id. But if “the quantity involved

  is so minute that it amounts to only a trace, there is no basis, from

  that fact alone, for any logical or reasonable inference that the

  defendant had knowledgeable possession.” People v. Theel, 180

  Colo. 348, 350, 505 P.2d 964, 966 (1973); see Ceja, 904 P.2d at

  1311 (“Absent a usable quantity, the prosecution must present

  other evidence from which a jury can reasonably infer knowledge.”).

                              B.   Analysis

¶ 12   Avila asserts that the evidence established she only possessed

  a “mere residue of cocaine,” and the prosecution didn’t present


                                     4
  sufficient additional evidence from which the jury could infer that

  she knowingly possessed it.

¶ 13   The analyst testified at trial that he couldn’t weigh the

  substance because it was inside “a heat sealed bag . . . with static

  electricity. It was coating the inside of the bag. So I could only

  shake out a little bit of the material. My report calls it a residue.”

  When asked if there was enough material to adequately test it, the

  analyst responded, “Oh yes, there was.” The analyst’s report,

  admitted at trial, described the substance as “.5 [g]rams of white

  cocaine powder substance” and “a schedule II controlled substance

  residue.”

¶ 14   The record evidence doesn’t establish whether the cocaine

  powder found on Avila was a usable quantity. While the analyst’s

  report states the substance’s weight, the analyst said at trial that

  he didn’t actually weigh it. And the substance itself isn’t in the

  appellate record. But our supreme court has found as little as 0.16

  grams of cocaine to be a usable quantity. People v. Stark, 691 P.2d

  334, 337-39 (Colo. 1984) (“The amount of cocaine seized, while not

  a large weight, was a usable quantity and not a ‘mere trace.’”)

  (citation omitted).


                                     5
¶ 15   But even if we assume the evidence didn’t establish that the

  cocaine powder found on Avila was a usable quantity, other

  sufficient evidence supported the jury’s finding that Avila knowingly

  possessed it.

¶ 16   When officers contacted Avila, she acted evasively by refusing

  to make eye contact with them and continuing to put her hand in

  her pocket despite being ordered by one officer not to do so. And

  she made unprompted statements that she didn’t have anything on

  her. See Ceja, 904 P.2d at 1311 (“[T]he prosecution introduced

  evidence that [defendant] . . . acted in an evasive manner when

  confronted by the police officer.”); see also People v. Richardson, 8

  P.3d 562, 564 (Colo. App. 2000) (“A reasonable fact finder could

  infer that his . . . denial was motivated by his guilty knowledge of

  the existence of the drug within the wallet.”), aff’d, 25 P.3d 54

  (Colo. 2001). She also acted confrontationally toward the officers,

  resisted one officer’s attempt to search her, and resisted arrest. See

  People v. Yeadon, 2018 COA 104, ¶ 28 (sufficient evidence existed

  for jury to infer that defendant knowingly possessed

  methamphetamine where, in part, “[t]he evidence demonstrated

  that . . . [defendant] fled from the accident” where the


                                     6
  methamphetamine was found) (cert. granted Mar. 25, 2019). From

  this evidence, the jury could have inferred that Avila knowingly

  possessed the cocaine powder found on her later.

¶ 17   Also, the paper wrapping holding the cocaine, described as a

  “bindle” at trial, was found on Avila, and the arresting officer

  testified that he thought it was either in her bra or in a pocket. The

  jury could also have inferred knowing possession from the cocaine’s

  location and packaging. See Richardson, 8 P.3d at 564 (“The

  methamphetamine was packaged in a manner to preserve it, and it

  was located in a wallet containing several documents identifying

  defendant.”); see also Ceja, 904 P.2d at 1311 (“[T]he prosecution

  introduced evidence that Ceja owned the fanny pack in which the

  cocaine was found[.]”).

¶ 18   Viewing this evidence in the light most favorable to the

  prosecution, including all reasonable inferences fairly drawn from

  it, we conclude sufficient evidence supported the jury’s finding that

  Avila knowingly possessed the cocaine.




                                     7
   III.    The District Court Didn’t Err in Declining to Strike Prospective
                                Juror E.D. for Cause

¶ 19      Avila contends the district court erred in denying her

  challenge for cause as to prospective juror E.D. because (1) he was

  legally biased as a “compensated employee of a public law

  enforcement agency” under section 16-10-103(1)(k), C.R.S. 2018;

  and (2) he was actually biased. We disagree as to the first

  contention and don’t address the second one.

                 A.   Standard of Review and Applicable Law

¶ 20      We review de novo whether a prospective juror is a public law

  enforcement agency’s compensated employee. People v.

  Sommerfeld, 214 P.3d 570, 572 (Colo. App. 2009).

¶ 21      We agree with the People that, at trial, Avila didn’t challenge

  the prospective juror for cause based on actual bias. Thus, this

  challenge is waived, and we don’t address it. See Crim. P. 24(b)(2);

  People v. Romero, 197 P.3d 302, 305 (Colo. App. 2008) (“The

  challenge is waived, however, if it is not made before the jurors are

  sworn in.”).

¶ 22      A trial court must sustain a challenge for cause to any

  prospective juror who is a public law enforcement agency’s



                                       8
  compensated employee. § 16-10-103(1)(k); accord Crim. P.

  24(b)(1)(XII). A public law enforcement agency is “a division or

  subdivision of state or federal government that has the authority to

  investigate crimes and to arrest, prosecute, or detain suspected

  criminals.” People v. Bonvicini, 2016 CO 11, ¶ 11; Ma v. People, 121

  P.3d 205, 210 (Colo. 2005). Numerous government agencies are

  statutorily designated as public law enforcement agencies,

  including “any police department, sheriff’s department, or district

  attorney’s office; the office of the state attorney general; the

  Colorado bureau of investigation[]; and the Colorado state patrol.”

  People v. Speer, 255 P.3d 1115, 1121 (Colo. 2011).

¶ 23   But “simply because a state or federal agency holds

  investigative powers or has contact with law enforcement personnel

  does not render the agency a ‘public law enforcement agency’ within

  the meaning of the statute.” People v. Urrutia, 893 P.2d 1338, 1345

  (Colo. App. 1994). The agency’s predominant purpose or mission

  must also be considered. See Speer, 255 P.3d at 1122 (“Neither [the

  United States Department of Homeland Security or the

  Transportation Safety Administration] has as its predominant

  purpose or mission the enforcement of penal laws.”); People v.


                                      9
  Carter, 2015 COA 24M-2, ¶ 20 (“Although the [Colorado Public

  Utilities Commission] has some authority to arrest and investigate a

  limited assortment of criminal violations, its primary functions

  involve the civil regulation of public utilities, services, and rates.”);

  People v. Simon, 100 P.3d 487, 491 (Colo. App. 2004) (“[T]he

  [Environmental Protection Agency] is properly characterized as an

  investigatory and rulemaking body, and not a law enforcement

  agency[.]”). If an agency’s law enforcement authority “is not merely

  incidental to but is an integral part of its essential functions,” that

  supports a conclusion that it’s a public law enforcement agency.

  Sommerfeld, 214 P.3d at 573.

¶ 24   We focus on “the nature of the employing agency rather than

  the specific duties of the venireman in question”; thus, “that the job

  description of any particular venireman may not directly involve law

  enforcement functions is not dispositive of his ability to sit.” Speer,

  255 P.3d at 1120-21; see People v. Scott, 41 Colo. App. 66, 68, 583

  P.2d 939, 942 (1978) (concluding that challenges for cause to a

  counselor and baker employed by the Colorado State Penitentiary

  should have been sustained).




                                      10
                           B.   Additional Facts

¶ 25   At trial, defense counsel raised her concern that prospective

  juror E.D. was employed by a public law enforcement agency, and

  the court conducted an in camera hearing with counsel. At the

  hearing, E.D. stated that he worked for “the State Homeland

  Security Fusion Center,” whose role is to provide “analytical support

  to investigations throughout Colorado and law enforcement

  agencies . . . across the state.” He further specified that “[i]f any

  agency requests services, much like CBI, if they request a driver’s

  license photo request, or any workups on individuals, they can

  request it from us.” He also said that the fusion center provides

  “[c]riminal background history . . . . If [an agency] want[s] us to

  look at GPS data . . . we can do analysis for that. If they are doing a

  high-risk warrant [and] want a law enforcement workup on an

  individual to see if there [are] any dangerous things in their

  criminal history, we can do [that.]” He also said his daily work

  “involves taking law enforcement reports from those criminal justice

  agencies, law enforcement agencies, and redirecting them to law

  enforcement across the state.”




                                     11
¶ 26   E.D. was asked if he worked with non-law enforcement

  agencies, and he responded that he also worked with “emergency

  medical” and “all public safety agencies.” When asked whether his

  work required having “contact with criminals,” he responded that

  “[w]e don’t do investigation. We do analytical support. We don’t

  have an investigatory side of our office. If an agency requests

  pulling background information, we can do that. We can’t initiate

  an investigation or conduct investigation unless we are working

  with the agency.” When asked if his agency’s role had changed over

  time, he noted that an “auto theft coordination center was created

  inside of our office. They look at auto theft across the State of

  Colorado, along with a couple other functions. . . . [W]e are [also]

  doing more strategic functions, looking at . . . drug trafficking

  organizations . . . .” The court asked E.D. if his agency investigated

  crimes, and he replied: “We [aren’t] lead investigators.” He then

  provided an example of his work, where a police department

  “wanted to have . . . support because they had cell phone pings that

  they wanted mapped. They requested us to do those mappings and

  link analysis. . . . So once we finished it, we handed it to [the police

  department.]”


                                     12
¶ 27   Defense counsel asked E.D. how the fusion center compared

  to CBI, to which he responded,

            CBI has statutory authority to conduct
            investigation[s] if agencies ask. We can’t
            conduct investigations. We can just support
            the investigator. So if they request
            background checks, driver’s license photos,
            any of that, they have to request it of us. We
            can give it to them. Unlike CBI, where they
            can bring in CBI, conduct investigation with
            them. We can’t do it without the local agency.

  The court followed up by asking, “[Y]ou don’t arrest anyone,

  prosecute anyone, [or] detain anyone?” E.D. responded, “Negative.”

¶ 28   Defense counsel argued that E.D. worked for a public law

  enforcement agency because he primarily worked with law

  enforcement officers investigating crimes, which was the agency’s

  main purpose. The court disagreed, finding that E.D. and his

  agency didn’t perform “any of the traditional law enforcement

  functions[.]” It denied defense counsel’s request to strike E.D. for

  cause. Defense counsel later exhausted her peremptory strikes.

                              C.   Analysis

¶ 29   Avila asserts that E.D.’s employer, “[t]he Homeland Security

  Fusion Center[,] is a public law enforcement agency . . . because its

  primary mission is to enforce criminal laws.”


                                    13
¶ 30   The General Assembly created the Office of Prevention and

  Security (OPS) within the Colorado Division of Homeland Security

  and Emergency Management (DHS). § 24-33.5-1603(2)(b), C.R.S.

  2018. OPS is tasked with “[o]perating the state’s fusion center,” as

  well as “[e]nhancing interagency cooperation through information

  sharing” and “[d]eveloping and maintaining, through cooperation

  with other tribal, state, local, regional, and federal agencies, a

  standardized crisis communication and information-sharing

  process.” § 24-33.5-1606(2), C.R.S. 2018.

¶ 31   The fusion center is defined as “the program administered by

  [OPS] . . . that serves as the primary focal point within the state for

  receiving, analyzing, gathering, and sharing threat-related

  information among federal, state, local, tribal, nongovernmental,

  and private sector partners.” § 24-33.5-1602(8), C.R.S. 2018.

¶ 32   We conclude that the fusion center isn’t a “public law

  enforcement agency” under section 16-10-103(1)(k) because it isn’t

  a “police-like division of government that has the authority to

  investigate crimes and to arrest, to prosecute, or to detain

  suspected criminals.” Ma, 121 P.3d at 211; see Romero, 197 P.3d

  at 307 (collecting cases and noting that prior case law had found an


                                     14
  agency was not a public law enforcement agency when it “did not

  have the authority to arrest, prosecute, or detain suspected

  criminals, or any such authority was entirely incidental to the

  agency’s essential functions”).

¶ 33   While the fusion center, as E.D. described it, provides

  investigatory support to law enforcement officials, it doesn’t have

  the authority to investigate crimes on its own. Any such support is

  only provided after it’s requested by law enforcement officials. As to

  the broader “strategic” initiatives, such as “looking at” statewide

  auto theft and drug trafficking, it’s unclear whether investigations

  are conducted without request. E.D. said that the fusion center

  cannot “initiate an investigation or conduct investigation unless we

  are working with [an] agency.” During the in camera review, the

  court followed up by asking “when you say that if the agency

  requests it of you to do an investigation, it sounds to me that [it’s]

  just the data and the analytical support, you are not reaching

  conclusions, you are giving the information to the agency for them

  to reach a conclusion?” E.D. agreed.

¶ 34   So the record doesn’t support concluding that the fusion

  center has the authority to investigate crimes.


                                     15
¶ 35   The record also doesn’t support concluding that the fusion

  center has the authority to “arrest, prosecute, or detain suspected

  criminals.” Bonvicini, ¶ 11. E.D. denied having any authority to

  arrest, prosecute, or detain anyone. See Speer, 255 P.3d at 1122

  (“[T]he prospective jurors denied having any authority to detain or

  make arrests. . . . Neither juror gave the slightest indication that

  their employing unit prosecuted suspected criminals[.]”); People v.

  Zurenko, 833 P.2d 794, 796 (Colo. App. 1991) (“While certain

  personnel of DSS [the Department of Social Services] investigate

  complaints of abuse, these personnel have no power to arrest or

  prosecute offenders. Thus, the trial court did not err by refusing

  defendant’s challenge for cause to the juror employed by DSS.”).

¶ 36   Also, the fusion center’s purpose, while somewhat related to

  law enforcement, isn’t to enforce criminal laws. Instead, it “serves

  as the primary focal point within the state for receiving, analyzing,

  gathering, and sharing threat-related information.” § 24-33.5-

  1602(8). Prospective juror E.D. said that the fusion center works

  with “emergency medical” and “all public safety agencies” in

  addition to law enforcement agencies. While the work he described

  mostly involved assistance to law enforcement agencies, an agency


                                    16
  having “contact with law enforcement personnel” doesn’t alone

  “render the agency a ‘public law enforcement agency’ within the

  meaning of the statute.” Urrutia, 893 P.2d at 1345.

¶ 37   Further, the fusion center isn’t DHS’s or OPS’s “law

  enforcement branch.” Ma, 121 P.3d at 212. Nor are its employees

  “trained and authorized to arrest suspected criminals, to investigate

  crimes, and to detain prisoners.” Id. Thus, the fusion center’s

  “predominant purpose or mission” isn’t “the enforcement of penal

  laws.” Speer, 255 P.3d at 1122.

¶ 38   While OPS’s manager is a statutorily designated peace officer,

  § 24-33.5-1606(1)(b), OPS and fusion center employees aren’t,

  unlike CBI agents. Compare § 24-33.5-1606(1)(b) (OPS’s manager

  is a designated peace officer), with § 16-2.5-113, C.R.S. 2018

  (designating CBI’s director and CBI “investigation agent[s]” as peace

  officers). Regardless, an agency’s employees being “classified by

  statute as ‘peace officers’ while engaged in their duties is not

  determinative.” Carter, ¶ 17.

¶ 39   Because we focus on the nature of the employing agency

  rather than the specific duties of the prospective juror in question,

  Speer, 255 P.3d at 1120-21, we conclude the fusion center isn’t a


                                    17
  public law enforcement agency, and thus the court didn’t err in

  denying Avila’s challenge for cause as to prospective juror E.D.

       IV.   The District Court’s Reasonable Doubt Illustrations Didn’t
                         Violate Avila’s Due Process Rights

¶ 40     Avila contends that the district court’s reasonable doubt

  illustrations during voir dire impermissibly lessened the

  prosecutor’s burden of proof, violating her right to due process. We

  disagree.

                            A.   Additional Facts

¶ 41     During voir dire, the district court instructed the prospective

  jurors as to the definition of reasonable doubt using an instruction

  that mirrored the model jury instructions. See COLJI-Crim. E:03

  (2018). The court also explained that the beyond a reasonable

  doubt standard applies to every element of a charged crime. Later,

  during voir dire, the court returned to reasonable doubt, describing

  it as “a concept that is difficult for all of us to understand.” The

  court then provided an illustration “in terms that everybody can

  kind of get their head around.”

              THE COURT: . . . Have you ever purchased a
              home?

              JUROR: Yes.


                                      18
THE COURT: All right. If you were going to
purchase a home and you were doing the
walk-thru after you made the offer, with the
inspector, right, looking at all aspects of the
house, and you saw a little crack in the
foundation, or up in the corner of one of the
walls, what would you do?

THE JUROR: I would inquire about the crack,
why it is there.

THE COURT: . . . Exactly. In Colorado that is
common to have a few cracks here and there
with our soil, okay? If you saw a huge crack
going all the way across the slab, what would
you think, would you still want to buy the
house?

THE JUROR: No.

THE COURT: Okay. All right. That was
enough then to make you not feel comfortable
in acting in a matter of importance to yourself.
Is that fair?

THE JUROR: Yes.

....

THE COURT: . . . There is no such thing as
beyond a shadow of a doubt. It is beyond a
reasonable doubt. It is a doubt that is based
on reason, right? You could have a couple
cracks. You don’t have to know everything
about the case. None of us were there. You
told me that. None of us saw what happened.
So there is really no way to know beyond all
doubt what happened. You could still have a
reasonable doubt. There could be a few pieces
missing. They can’t be big pieces or that big
crack in the slab. Does that make sense? We

                        19
             hold the prosecution to a high burden, but not
             an unreasonable burden. Does that make
             sense?

             THE JUROR: Yes.

¶ 42   The court then asked another prospective juror if she

  understood “reasonable doubt” and provided another illustration:

             THE COURT: Are you comfortable using the
             standard of beyond a reasonable doubt in
             evaluating evidence?

             THE JUROR: I think so. I mean, I don’t have
             any experience with it, but I would say I would
             be, yes.

             THE COURT: Would you agree we sort of do
             this all the time in our personal lives?
             Everything from buying produce? How many
             brown spots are too many for me to buy this
             apple all the way up to the big house decision.
             If it is a matter of importance to yourself. You
             take a critical look at all of the surrounding
             circumstances. Is that fair to say?

             THE JUROR: Yes.

  Avila didn’t object to the court’s illustrations.

              B.    Standard of Review and Applicable Law

¶ 43   We review de novo whether a jury instruction accurately

  informed the jury of the law or whether, to the contrary, it

  impermissibly lowered the prosecution’s burden of proof and

  requires reversal. Johnson v. People, 2019 CO 17, ¶¶ 8-9.


                                     20
¶ 44   “When reviewing an ambiguous jury instruction . . . we ask

  whether there is a reasonable likelihood that the jury applied the

  contested instruction in an unconstitutional manner.” Id. at ¶ 14;

  see Victor v. Nebraska, 511 U.S. 1, 6 (1994). “As the Supreme

  Court cautioned . . . attempts to further define reasonable doubt do

  not provide clarity. Even if well-intentioned[.]” Johnson, ¶ 19; see,

  e.g., Carter, ¶ 58 (“Given the case law from other jurisdictions, we

  will assume, without deciding, that the trial court improperly

  analogized the concept of reasonable doubt to a puzzle.”).

¶ 45   But we don’t consider the instruction in isolation. Johnson,

  ¶ 14. Instead, if “[i]n the context of the entire record . . . 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. (quoting People v. Sherman, 45 P.3d 774, 779 (Colo.

  App. 2001)). So, when the trial court uses an illustration to explain

  the concept of reasonable doubt, we consider the illustration’s

  nature, scope, and timing in determining whether its use violated

  due process. See People v. Villa, 240 P.3d 343, 357 (Colo. App.

  2009); see also Johnson, ¶ 18 (“We note that the trial court provided


                                      21
  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.”).

                              C.   Analysis

¶ 46   We conclude that the court’s illustrations didn’t lower the

  prosecution’s burden of proof because “[i]n the context of the entire

  record, the trial court properly instructed the jury on the law.”

  Johnson, ¶ 16.

¶ 47   The illustrations here were limited to voir dire. Neither the

  district court nor trial counsel mentioned them after the jury was

  selected. Also, the court properly defined the beyond a reasonable

  doubt standard for the jury in accordance with the model jury

  instructions, once during voir dire, and again orally and in writing

  before deliberations. Id. at ¶¶ 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 determining whether plain error occurred). And during

  closing arguments, the prosecutor and defense counsel referenced

  the proper reasonable doubt definition and directed the jury to

  follow it. See People v. Cevallos-Acosta, 140 P.3d 116, 124 (Colo.


                                    22
  App. 2005). The court also explained that the prosecutor must

  prove every element of the charged offense beyond a reasonable

  doubt. We presume the jury followed the court’s instructions.

  Johnson, ¶ 14.

¶ 48        So the court’s illustrations as to reasonable doubt didn’t lower

  the prosecution’s burden of proof.

       V.     Extraneous Information Presented to the Jury Didn’t Violate
                       Avila’s Due Process Right to a Fair Trial

¶ 49        Avila contends that the district court plainly erred by refusing

  to declare a mistrial because two prospective jurors exposed the

  jury to extraneous information about the arresting officer during

  voir dire, violating her right to a fair trial. We disagree.

                               A.   Additional Facts

¶ 50        During voir dire, the district court had the following

  discussion with a prospective juror:

                 THE COURT: . . . [I]f I had to ask you for a
                 verdict right now, before you heard any
                 evidence, what would you have to say, guilty or
                 not guilty?

                 JUROR: I would have to say guilty.

                 THE COURT: Why would you say guilty?

                 JUROR: Because I know the officer involved,
                 and I think he is a standup person. If [a


                                        23
            charge] is resisting arrest, I have a
            predisposition to believe him.

  The prosecutor later questioned the prospective juror:

            COUNSEL: Okay. I know that you know [the
            arresting officer]. Let’s talk about that. Do
            you have concerns about it affecting your
            fairness?

            THE JUROR: Yes.

            COUNSEL: Okay. Can you tell us about that,
            other than what you have already said?

            THE JUROR: Not really. I have — I know him.
            I know him to be an upstanding officer. I have
            had dinner with him, sat at my kitchen table
            with him, included him in family activities. So
            I think I am predisposed to agree with what he
            says.

            COUNSEL: Do you have concerns about being
            fair to the defense?

            THE JUROR: I do.

  Avila didn’t object to these comments. The prospective juror was

  later removed for cause.

¶ 51   Later during voir dire, the prosecutor asked another

  prospective juror about his relationship with the arresting officer:

            COUNSEL: [Do] you know [the arresting
            officer] as well?

            THE JUROR: I am his dentist. . . . He is my
            patient, my friend.



                                    24
            ....

            COUNSEL: Do you think you can be fair in this
            case even though you know him?

            THE JUROR: I believe it would be very difficult
            to completely distance myself from the fact
            that having a personal relationship with the
            officer, to not believe him would be harder. . . .
            I think it would be a little difficult for me to
            separate myself from that situation that we
            have already had a personal relationship.

            COUNSEL: Even if the law says that?

            THE JUROR: Of course I would try terribly to
            do that because that is what the law says, but
            . . . it is my feeling that if two people were
            standing there, already had a relationship, you
            know, somebody is a good person, they say
            one thing, someone says another, that is not
            impartiality.

            ....

            COUNSEL: Do you think you can judge his
            credibility?

            THE JUROR: I think I already know his
            credibility, which is part of the problem, to
            already have a set thought in your mind.

  Avila didn’t object to these comments, and this prospective juror

  was also removed for cause.

             B.    Standard of Review and Applicable Law

¶ 52   Because Avila didn’t object or request any relief from the

  district court, we review for plain error. Hagos v. People, 2012 CO


                                    25
  63, ¶ 14; People v. Marko, 2015 COA 139, ¶ 39, aff’d, 2018 CO 97.

  Plain error occurs where the trial court has committed an error that

  is obvious and substantial, and so undermines the trial’s

  fundamental fairness as to cast serious doubt on the judgment of

  conviction’s reliability. Hagos, ¶ 14.

¶ 53   A defendant is entitled to a jury verdict that is based solely on

  the evidence presented in the courtroom. Dunlap v. People, 173

  P.3d 1054, 1091 (Colo. 2007). A jury’s exposure to extraneous

  information implicates a defendant’s due process right to a fair trial.

  Id. When a prospective juror makes a potentially prejudicial remark

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

  canvass the jury, or declare a mistrial. People v. Mersman, 148

  P.3d 199, 203-04 (Colo. App. 2006). But where a defendant doesn’t

  request a curative instruction, a trial court doesn’t plainly err by

  failing to give one on its own. Id. A mistrial “is the most drastic of

  remedies” and “is only warranted where the prejudice to the

  accused is too substantial to be remedied by other means.” People

  v. Abbott, 690 P.2d 1263, 1269 (Colo. 1984). Whether a prospective

  juror’s statement is potentially prejudicial depends significantly on




                                    26
  the facts and circumstances. Vititoe v. Rocky Mountain Pavement

  Maint., Inc., 2015 COA 82, ¶ 26.

                               C.    Analysis

¶ 54   Even assuming that the prospective jurors’ comments were

  potentially prejudicial because they vouched for the arresting

  officer’s veracity as a trial witness, we can’t conclude without more

  that the comments so undermined the trial’s fundamental fairness

  as to cast serious doubt on the judgment of conviction’s reliability.

¶ 55   The comments weren’t so prejudicial that they required the

  court to order a mistrial on its own motion. See Marko, ¶¶ 36-38

  (prospective juror’s statements about defendants found not guilty

  by reason of insanity being quickly released didn’t warrant a

  mistrial); Mersman, 148 P.3d at 204-05 (prospective juror’s

  reference to a defense witness’s involvement in the “drug scene”

  didn’t warrant a mistrial). But Avila argues to the contrary,

  because the comments vouched for the credibility of the

  prosecution’s main fact witness. Yet there’s no “clear statutory

  command[,] . . . well-settled legal principle[,] or . . . Colorado case

  law” that establishes such a principle, so it wasn’t so obvious that

  the district court should have declared a mistrial on its own motion.


                                     27
  People v. Stroud, 2014 COA 58, ¶ 33 (quoting People v. Pollard, 2013

  COA 31M, ¶ 40).

¶ 56   We also find this case distinguishable from Mach v. Stewart,

  137 F.3d 630, 634 (9th Cir. 1997), a case on which Avila relies. In

  Mach, the defendant was charged with sexual conduct with a

  minor, and during voir dire a prospective juror said that “in her

  experience as a social worker, children never lie[] about sexual

  assault.” Id. Given that “[t]he bulk of the prosecution’s case

  consisted of a child’s testimony that [the defendant] had sexually

  assaulted her,” the Ninth Circuit concluded that the statements

  “substantially affected or influenced the verdict,” and reversed the

  conviction. Id. It noted that “[a]t a minimum, when [the defendant]

  moved for a mistrial, the court should have conducted further voir

  dire to determine whether the panel had in fact been infected by

  [the prospective juror’s] expert-like statements.” Id. at 633.

¶ 57   But because Avila didn’t object or request any relief, the

  district court here didn’t plainly err in failing to give a curative

  instruction or canvass the jurors on its own motion. Mersman, 148

  P.3d at 204. And again, it wouldn’t have been obvious to do so




                                      28
  simply because the prospective jurors’ comments vouched for the

  prosecution’s main fact witness.

¶ 58   The prospective jurors’ comments vouched for a witness’s

  veracity, similar to Mach, but not to the same level. Both jurors

  indicated that, as the witness’s friends, they believed him to be an

  “upstanding” or “good person,” and they would be partial toward

  him if asked to judge his credibility versus another person’s. The

  court struck both jurors for cause. This was the appropriate

  remedy for those jurors who indicated that they couldn’t be

  impartial. Van Meter, ¶ 14. And their comments about their bias

  toward the arresting officer may have resulted in better screening of

  other prospective jurors. Indeed, a third juror who said that he was

  biased against Avila in part by another juror’s “confidence in the

  officer” was also struck for cause. See United States v. Guzman,

  450 F.3d 627, 631-33 (6th Cir. 2006) (“One of the primary purposes

  of voir dire is to aid counsel in their exercise of peremptory

  challenges,” and “voir dire in front of the entire jury pool may

  actually result in more effective screening” because “[p]otential

  jurors are often emboldened to be more candid after witnessing

  other potential jurors’ voir dire.”).


                                      29
¶ 59   Also, the “the record indicates that all who ultimately served

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

  [prospective jurors] who indicated that [they] could not be impartial

  were dismissed for cause.” Van Meter, ¶ 14; Vititoe, ¶ 31. So,

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

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

  Vititoe, ¶ 31 (quoting Guzman, 450 F.3d at 632); see United States v.

  Jones, 696 F.2d 479, 492 (7th Cir. 1982) (“Except for the . . .

  dismissed panel members, no juror displayed prejudice. . . . We

  believe that the defendant[] w[as] tried by an impartial jury.”).

¶ 60   We conclude the district court didn’t plainly err by not

  declaring a mistrial on its own motion.

                              VI.   Conclusion

¶ 61   The judgment is affirmed.

       JUDGE TAUBMAN and JUDGE GROVE concur.




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