Peo v. Owens

22CA1439 Peo v Owens 03-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1439
Arapahoe County District Court No. 21CR175
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Lewis Javon Owens,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUDGE FREYRE
Schock and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 6, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Benjamin C. Elrod, Assistant Attorney General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John Plimpton, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Lewis Javon Owens, appeals the judgment of

conviction entered on jury verdicts finding him guilty of robbery,

third degree assault, harassment, and extortion. We affirm.

I. Background

¶2 On the evening of September 16, 2020, the female victim was

waiting at a bus stop after work when a man approached her and

asked if she wanted to come back to his apartment. She refused

and said she had a boyfriend, at which point the man became angry

with her. The victim tried to ignore the man and walk away, but he

grabbed her and forcibly sat her back down on the bus bench

before taking her backpack and “put[ting] it on himself.” The man

then told her that he would return the backpack if she went with

him to his apartment, but once again she refused. The man then

“laid [her] down on the bench” and “got on top of [her].” As she

tried to escape, he punched her in the face. During the struggle,

the victim retrieved a bottle of pepper spray from her pocket and

sprayed the man in the face. The man then let go and the victim

fled to her boyfriend’s apartment. As she was running away, the

man said that he would “find her.”

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¶3 The victim waited two months before reporting the incident to

the police. She told the police she delayed reporting because she

was afraid of getting in trouble for spraying the man who had

assaulted her.

¶4 Shortly after the incident, the victim learned from her

coworkers that a nearby store, Pacific Ocean Market, had posted a

picture of Owens in the window. Owens’ photo was in the store’s

window because he had shoplifted and trespassed on numerous

occasions. Pacific Ocean Market is located directly across the street

from the bus stop where the attack occurred.

¶5 Before reporting the incident to the authorities, she asked a

Pacific Ocean Market employee whether there was any surveillance

footage of the incident and learned there was not. However, the

manager of the store provided the victim with Owens’ photograph

because Owens fit the description of her assailant. The victim

provided the photograph, along with photographs of her injuries, to

the police and said this was her assailant. She recognized him as a

customer from her workplace. Later, the victim identified Owens in

a photographic line-up procedure with eighty percent confidence

that he was her assailant.

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¶6 Owens asserted an alibi defense, and his sister testified that

he was with her playing video games at their shared apartment the

entire night of the charged incident. The jury rejected his defense

and convicted him as charged.

¶7 Owens challenges his convictions on two grounds and

contends the trial court erroneously (1) denied his motion for a new

trial after the jury was exposed to extraneous information and (2)

denied his mistrial motion after a witness stated Owens had

previously “robbed” Pacific Ocean Market. We discern no error and

affirm the judgment.

II. Jury Exposure to Extraneous Information

¶8 Owens contends that the trial court reversibly erred when it

denied his motion for a new trial based on extraneous prejudicial

information that was brought to the jurors’ attention by an

unknown juror. Because we conclude the unknown juror’s

statement did not constitute extraneous information, we discern no

basis for reversal.

A. Additional Facts

¶9 Owens filed a motion for a new trial and claimed the jury was

exposed to extraneous prejudicial information that affected his right

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to a fair trial. Specifically, he alleged that two jurors believed that

he was not guilty of some of the charges and only acquiesced in

convicting him of all charges after an unknown juror said, “[I]f the

jury did not come to a unanimous guilty decision as to every count,

all counts must be mistried, and the entire trial would have been a

waste of time.” Owens submitted two juror affidavits to support his

claim.

¶ 10 Before deliberations began, the court instructed the jury as

follows:

In this case a separate offense is charged
against Mr. Owens in each count of the
information. Each count charges a separate
and distinct offense and the evidence and the
law applicable to each count should be
considered separately, uninfluenced by your
decision as to any other count. The fact that
you may find Mr. Owens guilty or not guilty of
one of the offenses charged, should not control
your verdict as to any other offense charged
against Mr. Owens. Mr. Owens may be found
guilty or not guilty of any one of [sic] all of the
offenses charged.

¶ 11 Additionally, after the verdicts were read, the court polled the

jury, and each juror individually confirmed that the verdicts were

theirs.

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¶ 12 Relying on People v. Newman, 2020 COA 108, ¶ 10, the trial

court found that the unknown juror’s statement did not constitute

extraneous information, was inadmissible under CRE 606(b), and

thus could not be considered. The court denied the motion in a

thorough written order.

B. Standard of Review and Applicable Law

¶ 13 A trial court’s decision to grant or deny a new trial is a matter

entrusted to the court’s discretion and will not be disturbed on

review, absent an abuse of that discretion. People v. Wadle, 97 P.3d

932, 936 (Colo. 2004). A court abuses its discretion when its ruling

is “manifestly arbitrary, unreasonable, or unfair, or when it

misapplies the law.” People v. Johnson, 2021 CO 35, ¶ 16 (citations

omitted). However, when a motion for a new trial concerns a juror’s

exposure to extraneous information, it presents a mixed question of

law and fact. People v. Clark, 2015 COA 44, ¶ 216. We review the

court’s legal conclusions de novo, but we defer to its factual

findings if they are supported by competent evidence in the record.

Newman, ¶ 10. Whether the statement made by the juror

constitutes “extraneous prejudicial information” under CRE 606(b)

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is a legal question that we review de novo. See People v. Harlan,

109 P.3d 616, 624 (Colo. 2005).

¶ 14 A defendant is constitutionally entitled to a fair and impartial

jury. People v. Abu-Nantambu-El, 2019 CO 106, ¶ 14. To ensure

this right, jurors are not allowed to consider “any information that

is not properly received into evidence or included in the court’s

instructions.” Harlan, 109 P.3d at 624; see also Wadle, 97 P.3d at

935 (“It is well-settled that the exposure of a jury to information or

influences outside of the trial process itself, whether or not that

exposure occurred as the result of deliberate juror misconduct, may

require reversal of a criminal conviction.”).

¶ 15 To promote the finality of verdicts, shield verdicts from

impeachment, and protect jurors from harassment and coercion,

Colorado law strongly disfavors any juror testimony impeaching a

verdict. Clark v. People, 2024 CO 55, ¶ 651. CRE 606(b) codifies

1 At the time the opening brief was filed, Clark was pending review

before the Colorado Supreme Court. After the opening brief was
filed, Clark was affirmed by the supreme court. See Clark v. People,
2024 CO 55.

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this general prohibition on inquiries into the validity of a verdict,

stating that

a juror may not testify as to any matter or
statement occurring during the course of the
jury’s deliberations or to the effect of anything
upon that juror’s or any other juror’s mind or
emotions as influencing the juror to assent to
or dissent from the verdict or indictment or
concerning the juror’s mental processes in
connection therewith.

¶ 16 However, the rule creates narrow exceptions, including by

permitting inquiry into whether extraneous prejudicial information

was improperly brought to a jury’s attention. CRE 606(b); Clark,

2024 CO 55, ¶ 67. To meet this narrow exception, the moving party

must satisfy a two-pronged test. Clark, 2024 CO 55, ¶ 69. First,

the movant must establish that the information falls under the

definition of prejudicial extraneous information. Id. at ¶ 70. To do

so, the movant must show that the extraneous information consists

of (1) legal content and specific factual information, (2) learned

outside the record that is (3) relevant to the issues in the case at

hand. Newman, ¶ 15. “Legal content” means “a statement of law.”

Id. ¶¶ 23, 30. Moreover, “information learned from outside the

record” could include (1) a juror’s independent investigation into the

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law or (2) the introduction of a statement of law from the juror’s

personal knowledge if that statement was inconsistent with or

supplemental to the instructions provided by the district court. Id.

at ¶¶ 32, 33, 35. Finally, where a statement of law relates to the

definition or elements of the crime or any other issue before the

jury, it is relevant to the issues in a case. Id. at ¶ 40.

¶ 17 If the movant cannot satisfy the first prong, the evidence is

inadmissible, and the claim is rejected without further inquiry. Id.

at ¶ 74. The second prong of the test requires the movant to

establish that the extraneous information posed a reasonable

possibility of causing prejudice to the defendant. Id.

C. Analysis

¶ 18 We conclude, consistent with the trial court, that Owens failed

to establish that the unknown juror’s statement constituted

extraneous prejudicial information and find Newman dispositive on

this issue. The Newman division considered the boundaries of what

a juror who is a lawyer can do and say during deliberations, and in

doing so, it considered the meaning of “legal content,” as that term

is used in defining what constitutes “extraneous prejudicial

information.” Id. at ¶ 1. It held that “legal content” means a

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statement of law. Id. at ¶ 23. It reasoned that a statement of law is

not a lawyer-juror’s “general legal knowledge” because all jurors rely

on their personal experience and knowledge in deliberations. Id. at

¶ 26. Moreover, construing legal content to encompass a lawyer-

juror’s professional background would effectively prohibit lawyers

from jury service, contrary to the legislature’s intent. Id. at ¶ 27;

see Ch. 159, sec. 6, § 16-10-103, 1998 Colo. Sess. Laws 466.

¶ 19 The division further held, as relevant here, that a statement is

“extraneous” or outside the record when it is “inconsistent with or

supplemental to the instructions provided by the trial court.”

Newman, ¶ 35. Finally, the division considered whether the

challenged statement is relevant to the issues in the case and thus

requires a court to conduct an evidentiary hearing. Id. at ¶ 36. It

held that statements related to definitions or elements of a crime, as

well as “any other issue before the jury,” are relevant to the issues

in a case. Id. at ¶ 40.

¶ 20 The division then applied its holding to numerous statements

made by the lawyer-juror during deliberations. As relevant here,

one of those statements concerned what would happen if the jury

did not reach a unanimous verdict. Id. at ¶ 62. The lawyer-juror

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informed the jury that it would result in a hung jury and a mistrial,

that the complaining witness would not likely return for another

trial due to the trauma, and that the jury would be “letting a rapist

back out into the community.” Id. The division held that to the

extent the juror’s statement could be considered a statement of law,

it was not relevant to the elements of any charge or to any other

issue before the jury. Id. at ¶ 63. It therefore concluded that the

statement was inadmissible under CRE 606(b). Id.

¶ 21 More recently, the Colorado Supreme Court relied on

Newman’s analysis and holding to decide whether a juror’s

statement during deliberations concerning an instruction she

received in a prior case constituted extraneous prejudicial

information. Clark, 2024 CO 55, ¶ 17. The juror informed the jury

that a judge in another case told the jury it had to deliberate until it

reached a unanimous verdict. Id. at ¶ 85. The court first

concluded that a juror’s retelling of prior jury service, including her

recollection of the instructions, was not “legal content.” Id. at ¶ 86.

It next concluded that the statement was not based on independent

investigation, but on a prior experience and, thus, was not

extraneous. Id. Finally, the court held that even if the statement

10
was extraneous legal content, it did not concern any definition or

elements of the crimes charged or relate to any other issue the jury

was asked to decide. Id. at ¶ 87. Therefore, the juror’s statement

was not “extraneous prejudicial information” under CRE 606(b). Id.

¶ 22 Applying these holdings to the facts of this case, we conclude

that the unknown juror’s statement was not relevant to the issues

in the case because it did not relate to a definition or element of the

charges, nor did it relate to any issue the jury was asked to decide.

Moreover, Owens does not identify, nor have we found, any evidence

to show that the unknown juror obtained the information from

independent investigation. Accordingly, the statement was

inadmissible under CRE 606(b).

¶ 23 We are not persuaded otherwise by Owens’ reliance on Ravin

v. Gambrell, 788 P.2d 817, 822 (Colo. 1990), and find that case

distinguishable. In Ravin, during the second day of deliberations, a

juror told the bailiff she was not feeling well, said she was the only

juror who favored the respondent, asked whether a unanimous

verdict was required, and asked how much longer deliberations

would continue in the absence of unanimity. Id. at 819. In front of

the other jurors, the bailiff responded that a unanimous verdict was

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required and that the judge could require deliberations to continue

for two weeks. Id. The supreme court concluded the bailiff’s

comments constituted extraneous prejudicial information and that

there was a reasonable possibility that they influenced the jury’s

verdict. Id. at 821. Here, in contrast, an unknown deliberating

juror, not a third party, imparted information based on life

experience to the other jurors that did not concern an issue the jury

was required to decide. Absent evidence that the unknown juror

obtained this information from independent research or

investigation, it was not improper for the juror to rely on their prior

knowledge and experiences during deliberations. See Kendrick v.

Pippin, 252 P.3d 1052, 1065-66 (Colo. 2011) (a juror’s use of

background in engineering and mathematics to calculate speed,

distance, and reaction time for the jury did not constitute

“extraneous” information under CRE 606(b)), abrogated on other

grounds by Bedor v. Johnson, 2013 CO 4.

¶ 24 Finally, because we conclude the unknown juror’s statement

is not extraneous information, we need not address whether it

prejudiced Owens.

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¶ 25 Accordingly, we discern no error in the trial court’s denial of

Owens’ motion for a new trial.

III. Prejudicial Testimony

¶ 26 Owens next contends that the trial court erroneously denied

his motion for mistrial based on the victim’s nonresponsive answer

to a question during direct examination in which she said Owens

had previously “robbed” a store. We discern no error because the

trial court sustained Owens’ objection and provided the jury with an

oral and written curative instruction.

A. Additional Facts

¶ 27 Owens previously worked at Pacific Ocean Market. The store

posted Owens’ picture in the shop window due to his involvement in

numerous shoplifting and trespassing incidents. Before trial, the

prosecutor informed the court and counsel that she planned to ask

the victim questions about her attempts to identify Owens,

including whether Pacific Ocean Market employees recognized him.

¶ 28 During direct examination, the prosecutor asked, “What did

you do on your own to try to find out who hit you and took your

purse on September 16th, 2020?” The victim responded that she

went to the Pacific Ocean Market with a coworker and asked an

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employee where they kept pictures of the people who had previously

“robbed the store.” She said her coworker had told her that Pacific

Ocean Market had Owens’ picture “plastered on the window.”

Defense counsel objected and moved for a mistrial. While the trial

court agreed the response was improper, it found the prosecutor’s

question proper and that the victim’s response was not attributable

to prosecutorial “bad faith.” The court denied Owens’ motion for

mistrial, but it offered to provide a curative instruction telling the

jury to ignore the statement. Defense counsel tendered a proposed

instruction that the court accepted, read to the jury, and then

provided in writing as a jury instruction. That instruction provided:

During this trial, [the victim] testified that Mr.
Owens had previously robbed the Pacific
Ocean Market. You are instructed that this is
not evidence, and you are not to use it for any
purpose. Mr. Owens has never robbed the
Pacific Ocean Market and has never been
accused of doing so.

¶ 29 Neither counsel mentioned this evidence in their closing

arguments.

B. Standard of Review and Applicable Law

¶ 30 “A mistrial is a drastic remedy that is warranted only when the

prejudice to the accused is so substantial that its effect on the jury

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cannot be remedied by other means.” People v. Cousins, 181 P.3d

365, 373 (Colo. App. 2007) (quoting People v. Dore, 997 P.2d 1214,

1221 (Colo. App. 1999)). A trial court has broad discretion to grant

or deny a motion for a mistrial, and we will not reverse its decision

absent an abuse of that discretion and prejudice against the

defendant. People v. Salas, 2017 COA 63, ¶ 9. A court abuses its

discretion if its decision is manifestly arbitrary, unreasonable, or

unfair or when it misapplies the law. People v. Grant, 2021 COA 53,

¶ 12.

¶ 31 “Factors relevant in considering whether a mistrial should be

declared include the nature of the inadmissible evidence, the weight

of the admissible evidence of guilt, and the value of a cautionary

instruction.” 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. Analysis

¶ 32 We discern no reversible error resulting from the victim’s

testimony, for three reasons. First, the record shows the victim’s

statement was nonresponsive and that the prosecutor did not

intentionally elicit it to taint the jury. Indeed, the prosecutor

informed the court and counsel that she intended to ask the

15
question before the trial began and the record does not indicate that

anyone expected the response the victim gave. Thus, we are not

convinced that People v. Goldsberry, 509 P.2d 801, 802 (Colo.

1973), where the court found intentional misconduct by the

prosecutor, and on which Owens relies, compels a different result.

¶ 33 Second, we conclude the trial court’s curative instruction

remedied any prejudice flowing from the victim’s testimony. See

Vigil v. People, 731 P.2d 713, 716 (Colo. 1987) (“Generally, an error

in the admission of evidence may be cured by withdrawing the

evidence from the jury’s consideration and instructing the jury to

disregard it.”). By instructing the jury that Owens had never

robbed or been accused of robbing the store, the court cured any

error that might have occurred. Absent contrary evidence, we

presume the jury understood and followed this instruction. See

People v. Abdulla, 2020 COA 109M, ¶ 58 (“[W]e employ the

presumption that the jury understands and applies the given

instructions unless a contrary showing is made . . . .”)

¶ 34 Third, we reject Owens’ assertion that the victim’s testimony

was “so prejudicial that, but for the exposure, the jury might not

have found the defendant guilty.” (Quoting People v. Snider, 2021

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COA 19, ¶ 34 n.2.) Instead, we conclude the testimony was fleeting

enough not to warrant a mistrial. See People v. Abbott, 690 P.2d

1263, 1269 (Colo. 1984) (“[T]he mere reference to an accused’s past

criminal act is not per se prejudicial, requiring a new trial.”); see

also People v. Krueger, 2012 COA 80, ¶ 73 (holding that a witness’s

single, brief reference to having met the defendant in jail was not

prejudicial enough to warrant a mistrial).

¶ 35 In sum, because the prosecutor did not act in bad faith, the

court provided a curative instruction, and the statement was

fleeting and not mentioned in closing argument, we discern no

abuse of discretion in the court’s denial of Owens’ motion for a

mistrial on this basis. See People v. Lawson, 551 P.2d 206, 209

(Colo. App. 1976).

IV. Disposition

¶ 36 The judgment is affirmed.

JUDGE SCHOCK and JUDGE SULLIVAN concur.

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