Peo v. Lewis

18CA2190 Peo v Lewis 11-04-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 18CA2190

El Paso County District Court No. 17CR6486

Honorable Larry E. Schwartz, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Felicia Gail Lewis,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE HAWTHORNE*

J. Jones and Tow, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 4, 2021

Philip J. Weiser, Attorney General, Ryan A. Crane, Senior Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Heather N. Wong, Deputy State

Public Defender, Denver, Colorado, for Defendant-Appellant

*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2021.

1

¶ 1 Defendant, Felicia Gail Lewis, appeals the judgment entered

after a jury convicted her of possession of a controlled substance

and introducing contraband in the first degree. We affirm.

I. Background

¶ 2 Lewis was arrested on an outstanding warrant and taken to El

Paso County Criminal Justice Center (CJC). The arresting officer

inventoried Lewis’s valuables and clothing. Lewis then removed all

her valuables and placed them in a Seal-a-Meal bag. She reviewed

the inventory sheet and signed it, verifying the list was an accurate

statement of her property. Later she changed into a uniform and

placed her clothing in a plastic bag before she was transferred to

the housing ward. She returned the plastic bag to the officer and

the officer tagged the bag with Lewis’s name and her bag number.

¶ 3 Hours after Lewis was booked and transferred, the midnight

shift intake and property technician completed a head count of the

individuals in the waiting area and matched them with each

property bag not on the conveyor. When he got to Lewis’s bag,

which was not on the conveyor, the bag was not listed on his head

count sheet. On opening the bag, a small lip balm container fell out

of the bag that was not listed on Lewis’s inventory sheet. The

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technician continued to look through the clothing in the bag to

verify whether the bag belonged to Lewis. The clothing items

matched the items listed on the inventory sheet and the shirt

matched the one Lewis was wearing in her booking photo. He then

opened the lip balm container and saw a crystalline substance.

¶ 4 The technician showed the lip balm container and the

substance to Deputy Robert Kirkham, who suspected that the

substance was methamphetamine. Deputy Kirkham entered the

suspected methamphetamine into evidence, sealed it in a manila

envelope with red tape, and sent it by courier for testing. The

substance tested positive for methamphetamine.

¶ 5 The State charged Lewis with one count of possession of a

controlled substance and one count of introducing contraband in

the first degree. At trial, defense counsel contended that the only

evidence tying the methamphetamine to Lewis was that it fell out of

her property bag. He argued the methamphetamine did not belong

to Lewis because officers did not find the lip balm container when

searching her at the time of her arrest and during the intake

procedures. Also, none of the witnesses who testified at trial had

3

direct contact with Lewis at CJC. The jury disagreed with that

evidence and convicted Lewis of both counts.

II. Jury Poll

¶ 6 Lewis first contends the trial court erroneously declined to poll

the jury after defense counsel made a timely request for a jury poll.

She further contends that this error requires reversal. We perceive

no reversible error.

A. Additional Facts

¶ 7 After closing arguments, the jury began deliberating at 4:35

p.m. and the trial court instructed the jury that if it did not reach a

verdict by 5:00 p.m., the jurors would reconvene the following

morning.

¶ 8 The jury deliberated until 5:20 p.m. and returned guilty

verdicts on both counts. The trial court asked the foreperson if the

verdict accurately reflected the verdict of each juror and the

foreperson said, “Yes, Your Honor.” The court then read the

discharge instructions. But, before the jury was dismissed, the

following colloquy occurred:

[Defense]: Judge, I’m sorry, can we poll the

jury?

4

[Court]: I don’t think we need to.

[Defense]: Okay.

[Court]: So, no. You’re excused. Thank you.

B. Standard of Review and Applicable Law

¶ 9 The interpretation of the Colorado Rules of Criminal Procedure

is a question of law that we review de novo. People v. Steen, 2014

CO 9, ¶ 9.

¶ 10 A defendant has a constitutional and statutory right to a

unanimous verdict. U.S. Const. amend. VI; § 16-10-108, C.R.S.

2021; see also Ramos v. Louisiana, 590 U.S. ___, ___, 140 S. Ct.

1390, 1397 (2020) (“There can be no question either that the Sixth

Amendment’s unanimity requirement applies to state and federal

criminal trials equally.”). “Unanimity requires a deliberative process

that expresses the conscientious conviction of each individual

juror.” People v. Phillips, 91 P.3d 476, 479 (Colo. App. 2004). And

the trial court is responsible for ensuring that a conviction is the

result of a unanimous verdict. People v. Rivera, 56 P.3d 1155,

1160-61 (Colo. App. 2002); see also § 16-10-108; Crim. P. 23(a)(8),

31(a)(3).

¶ 11 Under Crim. P. 31(d),

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[w]hen a verdict is returned and before it is

recorded, the jury shall be polled at the

request of any party or upon the court’s own

motion. If upon the poll there is not

unanimous concurrence, the jury may be

directed to retire for further deliberations or

may be discharged.

¶ 12 Although Crim. P. 31(d) implements the right to unanimity,

People v. Auman, 67 P.3d 741, 767 (Colo. App. 2002), rev’d on other

grounds, 109 P.3d 647 (Colo. 2005), the right to poll the jury is not

itself a constitutional right, United States v. Tucker, 596 F. App’x

616, 618 (10th Cir. 2014). Instead, it is a procedural right derived

from the Colorado Rules of Criminal Procedure, and failing to poll

the jury under Crim. P. 31(d) is therefore a trial error. See People v.

Miller, 113 P.3d 743, 749 (Colo. 2005) (identifying trial errors as

errors in the trial process itself). Our supreme court has “made

clear that reversal for trial error, based solely on the significance, or

substantiality, of the affected right, can no longer be sustained.”

People v. Novotny, 2014 CO 18, ¶ 26. And automatic reversal is

inappropriate absent structural error. Id. at ¶ 27; see also Phillips,

91 P.3d at 479 (declining to apply a structural error analysis to the

trial court’s failure to poll one of the jurors). Thus, we review a trial

court’s denial of a request to poll the jury for nonconstitutional

6

harmless error. Hagos v. People, 2012 CO 63, ¶ 12 (“[W]e review

nonconstitutional trial errors that were preserved by objection for

harmless error.”). Under this standard, we reverse only if the error

“substantially influenced the verdict or affected the fairness of the

trial proceedings.” Id. (quoting Tevlin v. People, 715 P.2d 338, 342

(Colo. 1986)).

C. Analysis

¶ 13 Assuming, without deciding, that defense counsel’s request to

poll the jury was timely, the court erred by failing to conduct a poll.

But we conclude that reversal is not required because the error was

harmless.

¶ 14 The trial court instructed the jury on unanimity and the

foreperson confirmed that the verdict accurately reflected each

juror’s verdict. And the record does not reveal any evidence that

the verdict lacked unanimity. Absent any contrary evidence, we

presume the jury understood and followed the court’s unanimity

instruction. See People v. Butler, 224 P.3d 380, 387 (Colo. App.

2009). So we perceive no substantial influence on the verdict or

effect on the trial proceedings’ fairness requiring us to reverse.

7

III. Sufficiency

¶ 15 Lewis next contends there was insufficient evidence that she

knowingly and unlawfully possessed the methamphetamine that

was introduced into CJC. We disagree.

A. Standard of Review and Applicable Law

¶ 16 In assessing the sufficiency of the evidence to support a

conviction, we review the record de novo to determine whether the

evidence, viewed in the light most favorable to the prosecution, was

substantial and sufficient to support a conclusion by a reasonable

mind that the defendant was guilty beyond a reasonable doubt.

People v. Perez, 2016 CO 12, ¶ 8.

¶ 17 In making this determination, we recognize that “it is the jury

which should decide the difficult questions of witness credibility

and the weight to be given to conflicting items of evidence.” People

v. Gibson, 203 P.3d 571, 575 (Colo. App. 2008) (quoting People v.

Brassfield, 652 P.2d 588, 592 (Colo. 1982)). An appellate court

does not sit as a thirteenth juror to reassess witness credibility or to

reweigh the evidence presented to the jury. Id. As well, “we must

give the prosecution the benefit of every reasonable inference which

8

may be fairly drawn from the evidence.” Clark v. People, 232 P.3d

1287, 1292 (Colo. 2010).

¶ 18 As relevant here, “it is unlawful for a person knowingly to

possess a controlled substance.” § 18-18-403.5(1), C.R.S. 2021.

And a person commits introducing contraband in the first degree if

she

knowingly and unlawfully . . . [i]ntroduces or

attempts to introduce a . . . controlled

substance . . . into a detention facility or at

any location where an inmate is or is likely to

be located, while the inmate is in the custody

and under the jurisdiction of a political

subdivision of the state of Colorado or the

department of corrections, but not on parole.

§ 18-8-203(1)(a), C.R.S. 2021. A person acts “knowingly” “with

respect to conduct or to a circumstance described by a statute

defining an offense when [s]he is aware that [her] conduct is of such

nature or that such circumstance exists.” § 18-1-501(6), C.R.S.

2021.

¶ 19 A defendant’s mental state can be proven by circumstantial

evidence rather than direct evidence. People v. Collie, 995 P.2d 765,

773 (Colo. App. 1999) (“Evidence of a defendant’s intent can ‘rarely

be proven other than by circumstantial or indirect evidence.’”

9

(quoting People v. Valenzuela, 825 P.2d 1015, 1016 (Colo. App.

1991))). And “‘[a] defendant’s mental state may be inferred from his

or her conduct and other evidence,’ including the circumstances

surrounding the commission of the crime.” People v. Grant, 174

P.3d 798, 812 (Colo. App. 2007) (citations omitted).

B. Analysis

¶ 20 Lewis contends that there was insufficient evidence that she

“knowingly” possessed and introduced the lip balm container

containing methamphetamine because it was not found on her

person during multiple searches and because none of the testifying

witnesses had any direct contact with her at CJC.

¶ 21 We conclude that the prosecution presented sufficient

evidence of Lewis’s knowledge based on the following evidence:

• Testimony about the intake protocol and the proper

procedures for inventorying a person’s property.

• The inventory sheets completed by the arresting officer

and signed by Lewis, verifying the inventory list was an

accurate description of her property.

10

• Testimony that the lip balm container holding

methamphetamine fell out of the property bag tagged

with Lewis’s name.

• Testimony that the technician verified that the property

bag belonged to Lewis by matching the clothing items in

the bag to the items listed on Lewis’s signed inventory

sheet.

• Testimony that the shirt in the property bag matched the

shirt Lewis was wearing in her booking photo.

¶ 22 Lewis, however, argues that there was compelling evidence

that the lip balm container was placed in Lewis’s property bag by

someone else because her property bag was left in an unsecure area

for several hours before the technician opened the bag and found

the lip balm container. This argument fails. The prosecution need

not “exclude every reasonable hypotheses other than that of guilt”

or disprove the defendant’s theory. Clark, 232 P.3d at 1292

(quoting People v. Bennett, 183 Colo. 125, 131, 515 P.2d 466, 469

(1973)). We will not set aside a conviction merely because a

different conclusion might be drawn from the evidence or because

11

there is evidence supporting a contrary finding. See People v.

Tumbarello, 623 P.2d 46, 49 (Colo. 1981).

¶ 23 Viewing the evidence in the light most favorable to the

prosecution, we conclude that the jury could have reasonably

determined beyond a reasonable doubt that Lewis committed

possession of a controlled substance and introducing contraband in

the first degree.

IV. Prosecutorial Misconduct

¶ 24 Lewis contends that her convictions must be reversed because

the prosecutor “inappropriately trivialized the state’s burden”

during voir dire and closing arguments by using a Mickey Mouse

analogy to explain the burden of proof. And she argues that the

prosecutor further “diluted the burden of proof” by implying that a

reasonable doubt must be a likely doubt, and that the jury could

convict by finding “the prosecution theory ‘more likely’ than the

defense theory.” We discern no reversible error.

A. Additional Facts

¶ 25 Before voir dire, the court instructed the jury that the

prosecution had to prove each element of the crimes charged

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beyond a reasonable doubt. The court then accurately defined

reasonable doubt for the jury.

1

¶ 26 During voir dire, the prosecutor engaged in the following

colloquy with the prospective jurors:

[Prosecutor]: [Juror 7], that object right there,

the stars and stripes, what is that?

. . . .

[Juror 7]: Yeah it’s our flag.

[Prosecutor]: Okay are you certain that that’s

our American flag beyond a reasonable doubt?

[Juror 7]: Yes.

[Prosecutor]: Okay. How do you know that?

[Juror 7]: Well, I trust the Judge wouldn’t have

that flag in here if it wasn’t our American flag.

[Prosecutor]: Okay. So maybe the surrounding

circumstances of where you are and who’s

around?

1

The court said,

Reasonable doubt means a doubt based upon

reason and common sense, which arises from

a fair and rational consideration of all of the

evidence or the lack of evidence in the case. It

is a doubt which is not a vague, speculative, or

imaginary doubt, but such a doubt as would

cause reasonable people to hesitate to act in

matters of importance to themselves.

13

[Juror 7]: Yes.

[Prosecutor]: What if I were to tell you that

there is a Mickey Mouse on the back of the

flag? . . . [D]id I convince you beyond a

reasonable doubt that there is no Mickey

Mouse on the back of that flag?

[Juror 7]: No.

[Prosecutor]: Okay. Why not?

[Juror 7]: You haven’t convinced me of

anything.

[Prosecutor]: Just by saying it?

[Juror 7]: Yeah.

[Prosecutor]: Okay. Have I convinced you

beyond a reasonable doubt that it’s still an

American flag, there’s no Mickey Mouse on the

back of that flag?

[Juror 7]: Well, I see it so it’s an American flag.

Whatever you say, I know it’s an American

flag.

[Prosecutor]: That’s true. But it’s not stretched

out. You can’t see the back of that flag, right?

[Juror 7]: Right.

[Prosecutor]: So could there be a Mickey

Mouse on the back of that flag?

[Juror 7]: There could be.

[Prosecutor]: Do you think it’s reasonably

likely that there is one?

14

[Juror 7]: No.

[Prosecutor]: Why not?

[Juror 7]: Well, I guess because I’ve never

heard of Mickey Mouse being on the back of

the flag.

[Prosecutor]: Sure. Sure. That’s a fair point.

[Juror 13] what do you think about that? You

don’t see it, I haven’t stretched it out, you can’t

see the back of that. Do you still think beyond

a reasonable doubt no Mickey Mouse?

[Juror 13]: Yeah, unless I see it, I don’t know.

[Prosecutor]: Unless you see it you don’t know.

Now, so that’s where I was kinda getting with

that. There is a difference between reasonable

doubt and beyond all doubt, right? You can’t

see on the back of that, and I’m not . . . going

to be able to put you in that place at that time

so that you can see everything, right? You

have to rely on what other people see, the

evidence that I show you. So do you think that

it’s possible for me to convince you that there’s

no Mickey Mouse on the back of that flag

beyond a reasonable doubt without showing it

to you?

[Juror 13]: Well, science guy. Like, I want that

hard evidence.

[Prosecutor]: Right. Right. And, you know,

that’s fair for you to want more than just my

word or something like that, but are you able

to . . . like [Juror 7] was saying, think of your

surroundings and, you know, she trusts that

the Judge wouldn’t have that, that sort of

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thing. Do you see what I’m getting at? I know

it’s kind of a silly example.

[Juror 13]: Yes. Yes.

¶ 27 The prosecutor then questioned each of the remaining

prospective jurors, asking whether they could hold her to the

beyond a reasonable doubt standard rather than a beyond all doubt

standard using the same Mickey Mouse analogy. At one point, the

prosecutor referred to the difference as “likely versus possible.”

Defense counsel did not object.

¶ 28 At the close of evidence, the court again instructed the jury on

the burden of proof, explaining that the prosecution had the burden

to prove beyond a reasonable doubt all elements of the crimes

charged and providing the same accurate definition of beyond a

reasonable doubt that it had read aloud to the prospective jurors

before voir dire. It also instructed the jury that it must apply the

rules of law the court decided applied to the case and that while

“attorneys may comment on some of these rules,” the jury was to

follow the court’s instructions.

16

¶ 29 During rebuttal closing argument, the prosecutor responded to

defense counsel’s argument about the beyond a reasonable doubt

standard by referencing the Mickey Mouse analogy:

And I want to bring you back to the Mickey

Mouse, because I know it’s a silly example, but

think about what is possible versus what is

likely. Is it possible that someone else dropped

the methamphetamine in her bag? Sure. Is it

likely? No. Is it more likely that she had those

drugs, and while she was changing she put

those drugs into her bag hoping that no one

would notice? That’s what is likely. That is

what is reasonable.

¶ 30 Defense counsel did not object.

B. Standard of Review and Applicable Law

¶ 31 We review claims of prosecutorial misconduct using a two-step

analysis. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First,

we determine whether the prosecutor’s conduct was improper based

on the totality of the circumstances. Id. If so, we determine

whether such conduct warrants reversal under the proper standard

of review. Id.

¶ 32 While a prosecutor can use every legitimate means to bring

about a just conviction, she has a duty to avoid using improper

methods intended to obtain an unjust result. Domingo-Gomez v.

17

People, 125 P.3d 1043, 1048 (Colo. 2005). A prosecutor may

comment on the evidence admitted at trial and the reasonable

inferences that can be drawn therefrom. People v. McMinn, 2013

COA 94, ¶ 61. She may also employ rhetorical devices and engage

in oratorical embellishment and metaphorical nuance. Id. A

prosecutor may not, however, misstate or misinterpret the law. Id.

at ¶ 62.

¶ 33 When determining whether a prosecutor’s statements were

improper and whether reversal is warranted, we may consider the

language used, the context of the statements, the strength of the

evidence, whether the prosecutor improperly appealed to the jurors’

sentiments, whether the misconduct was repeated, and any other

relevant factors. People v. Walters, 148 P.3d 331, 335 (Colo. App.

2006). And we may consider a lack of contemporaneous objection

by the defendant’s counsel as demonstrating her belief “that the live

argument, despite its appearance in a cold record, was not overly

damaging.” Domingo-Gomez, 125 P.3d at 1054.

¶ 34 Defense counsel did not object to the prosecutor’s Mickey

Mouse analogy, so we review this claim for plain error. Hagos,

¶ 14. For an error to be plain, it must be obvious and substantial.

18

Id. An obvious error is one that contravenes a statute or rule, a

well-settled legal principle, or established Colorado case law. See

Campbell v. People, 2020 CO 49, ¶ 25.

¶ 35 “To constitute plain error, prosecutorial misconduct must be

flagrant or glaringly or tremendously improper, and it must so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction.” McMinn,

¶ 58. Prosecutorial misconduct rarely constitutes plain error.

People v. Estes, 2012 COA 41, ¶ 19.

C. Analysis

¶ 36 Lewis contends that the prosecutor’s use of the American flag

and Mickey Mouse to describe the beyond a reasonable doubt

standard constituted prosecutorial misconduct because it lowered

the prosecution’s burden of proof. We see no plain error.

¶ 37 Divisions of our court have increasingly disapproved the use of

analogies — by the court and by the prosecution — to explain the

beyond a reasonable doubt standard. See People v. Tibbels, 2019

COA 175, ¶ 33 (cert. granted June 29, 2020) (“[T]wenty-two

decisions of this court, both published and unpublished, have

repeatedly discouraged trial courts’ use of illustrations to explain

19

reasonable doubt, the presumption of innocence, and other legal

concepts.”). And a prosecutor’s use of iconic images to explain the

burden of proof risks trivializing reasonable doubt, thereby lowering

the burden of proof. See People v. Vialpando, 2020 COA 42, ¶¶ 55-

56 (cert. granted Oct. 12, 2020) (“The danger is that, by using

iconic, easily recognizable images, the jury may conclude that guilt

beyond a reasonable doubt is easy to determine and, thus, that the

reasonable doubt standard is a low burden of proof.”); People v. Van

Meter, 2018 COA 13, ¶ 31 (“[T]he prosecutor’s use of a puzzle

analogy, including the display of an incomplete puzzle of the iconic

and easily recognizable space shuttle image, was improper.”); People

v. Camarigg, 2017 COA 115M, ¶ 47 (“[P]uzzle analogies are

problematic if they use iconic images, which invite the jury to jump

to a conclusion about a defendant’s guilt.”).

¶ 38 The prosecutor here acknowledged that the analogy was

“silly,” and used two iconic images — the American flag and Mickey

Mouse — to describe the difference between beyond a reasonable

doubt and beyond all doubt. The analogy related to the burden of

proof, suggesting that reasonable doubt is easy to determine.

Indeed, Juror 7 told the prosecutor that regardless of what the

20

prosecutor said, she knew the object was an American flag. And,

based on their courtroom surroundings, the remaining jurors

agreed that it was unlikely that a Mickey Mouse was on the back of

the flag.

¶ 39 We conclude that the court did not plainly err. The prosecutor

did not use the Mickey Mouse analogy to improperly quantify or

trivialize the prosecution’s burden of proof. See Camarigg, at ¶ 50.

Instead, the prosecutor used the analogy to emphasize the

difference between beyond a reasonable doubt and beyond all

doubt. Also, the trial court instructed the jury multiple times on

the proper meaning of “reasonable doubt” and the prosecution’s

burden to prove each element of the charges beyond a reasonable

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

presume that jurors follow the instructions that they receive.”). The

jury never indicated any confusion about the prosecution’s burden

of proof. And defense counsel did not object to the prosecutor

repeatedly using the analogy. See Domingo-Gomez, 125 P.3d at

1054. For the same reasons, we discern no plain error as to the

prosecutor’s comment that it was “more likely” that Lewis put the

21

methamphetamine in her property bag when she was changing

versus someone planting the drugs in her bag.

¶ 40 We conclude that the challenged conduct did not “so

undermine the fundamental fairness of the trial as to cast serious

doubt on the reliability of the judgment of conviction.” McMinn,

¶ 58. Under these circumstances, we discern no plain error.

V. Authentication/Chain of Custody

¶ 41 Lewis contends that the trial court erred by admitting the

sealed manila envelope containing the lip balm container and

methamphetamine. Specifically, she argues that the prosecution

failed to establish a chain of custody from the time Deputy Kirkham

entered the envelope containing the methamphetamine into

evidence to the time the forensic chemist retrieved the envelope

from the intake box at the lab. We are unpersuaded.

A. Additional Facts

¶ 42 During direct examination, Deputy Kirkham identified a

manila envelope sealed with red tape and with the case number and

his initials written on it as the manila envelope he entered into

evidence containing the lip balm container with methamphetamine

inside. The prosecutor moved to admit the envelope and defense

22

counsel objected on grounds of lack of foundation and lack of chain

of custody, arguing,

With this case, there’s been no testimony

about the initial deputy searching Miss

Lewis’[s] property, him finding any type of lip

balm, and therefore the property that he’s

looking at, there’s no indication as to whether

or not that property was presented to Miss

Lewis as the evidence in the exhibit that [the

prosecution] has already introduced. There is

no indication on Miss Lewis’[s] property sheet

that a lip balm was in her property; therefore,

we’d object to the admission.

¶ 43 The trial court overruled the objection, reasoning that a

foundation had been laid through the technician’s prior testimony.

Deputy Kirkham then identified the lip balm container in the

envelope as the container he received from the property technician.

¶ 44 The forensic chemist later identified the sealed manila

envelope as the envelope he retrieved from the lab’s intake box for

testing and identified the methamphetamine in the lip balm

container as the substance he tested. He noted his forensic marks

on the front and back of the envelope. He explained that the

envelope was delivered via courier from the county sheriff’s office

and the lab took custody of the envelope, placing it in the intake

box.

23

B. Preservation and Standard of Review

¶ 45 As an initial matter, the parties dispute whether Lewis

preserved this issue for appeal. An objection to a “lack of

foundation” is insufficient to preserve a chain of custody issue for

review. See People v. Richardson, 181 P.3d 340, 347 (Colo. App.

2007). Because Lewis did not challenge the envelope’s chain of

custody from the time it left the county sheriff’s office by courier to

the time it was placed into the intake box at the lab at trial, we

agree with the People that this issue is not preserved and review it

for plain error. See People v. Ujaama, 2012 COA 36, ¶ 37.

¶ 46 We review a trial court’s decision to admit evidence for an

abuse of discretion. Richardson, 181 P.3d at 347. A court abuses

its discretion if its decision was manifestly arbitrary, unreasonable,

or unfair, or if it misapplies the law. People v. Payne, 2019 COA

167, ¶ 5.

C. Analysis

¶ 47 “The chain of custody rule requires that the proponent of real

evidence establish that the evidence was involved in the incident

and that the condition of the evidence at trial is substantially

unchanged.” People v. Mascarenas, 666 P.2d 101, 112 (Colo. 1983).

24

¶ 48 The methamphetamine in this case was admitted through

Deputy Kirkham, the officer who logged the drugs into evidence and

sealed the envelope. Despite the lack of testimony from the

individuals involved in delivering the envelope to the lab, the

evidence showed that the envelope received by the forensic chemist

was sealed with the red tape Deputy Kirkham used to seal it and

the envelope had Deputy Kirkham’s and the forensic chemist’s

handwritten markings on it. And Deputy Kirkham identified the lip

balm container containing methamphetamine as the container he

placed in the envelope for testing and the forensic chemist identified

the same container and substance as the one he received in the

envelope and tested. Thus, the chain of custody was sufficiently

established

¶ 49 We further conclude that that the alleged deficiencies in the

chain of custody impacted the weight of the evidence, not its

admissibility. See People in Interest of T.B., 2016 COA 151M, ¶ 28

(“Any purported deficiencies in the chain of custody, such as a lack

of clarity about which police officer had made the copies of the

photographs from the juvenile’s cell phone, went to the weight that

25

the trial court gave the photographs, not to their admissibility.”);

Richardson, 181 P.3d at 347.

¶ 50 So we perceive no error, much less plain error.

VI. Merger

¶ 51 Lewis last contends that the trial court erred by failing to

merge her possession of a controlled substance and introducing

contraband in the first degree convictions because possession of a

controlled substance is a lesser included offense of introducing

contraband. Thus, she argues her conviction on both counts

violates her double jeopardy right.

¶ 52 We review de novo whether a conviction violates a defendant’s

right to be free from double jeopardy. People v. Welborne, 2018

COA 127, ¶ 7. However, because Lewis did not preserve this issue,

we will reverse only if plain error occurred. Reyna-Abarca v. People,

2017 CO 15, ¶ 2.

¶ 53 Pursuant to constitutional double jeopardy protections, a

defendant may not receive multiple punishments for the same

offense unless such punishments are authorized by the General

Assembly. Welborne, ¶ 8. In Colorado, the General Assembly has

determined that a defendant may not be convicted of two different

26

offenses if one offense is a lesser included offense of the other.

§ 18-1-408(1)(a), C.R.S. 2021. Under the strict elements test, one

offense is included in another charged offense when “[i]t is

established by proof of the same or less than all the facts required

to establish the commission of the offense charged.” § 18-1-

408(5)(a); see also Reyna-Abarca, ¶ 51.

¶ 54 Our supreme court has interpreted section 18-1-408(5)(a) to

provide two ways that an offense may be lesser included in another.

Welborne, ¶¶ 11-12. First, “an offense is a lesser included offense

of another offense if the elements of the lesser offense are a subset

of the elements of the greater offense, such that the lesser offense

contains only elements that are also included in the elements of the

greater offense.” Reyna-Abarca, ¶ 64. Second, “[a]n offense can

also be included in another under the statutory elements test when

there are multiple ways to commit the lesser, not all of which are

included within the greater.” Page v. People, 2017 CO 88, ¶ 11

(citing People v. Rock, 2017 CO 84).

¶ 55 In People v. Etchells, a division of this court considered

whether possession of less than one ounce of marijuana is a lesser

included offense of introducing contraband. 646 P.2d 950, 951

27

(Colo. App. 1982). Applying the test in People v. Rivera, 186 Colo.

24, 525 P.2d 431 (1974), the division concluded that the offense is

not lesser included because proof of possession is not an essential

element to the crime of introducing contraband. Etchells, 646 P.2d

at 952. Lewis contends, however, that under the supreme court’s

subsequent decisions in Reyna-Abarca and Page, possession of a

controlled substance is lesser included because proof of possession

is at least one way of committing introduction of contraband. We

are unpersuaded.

¶ 56 A person commits the offense of introduction of contraband in

the first degree when she knowingly introduces or attempts to

introduce a controlled substance into a detention facility. § 18-8-

203(1)(a). And possession of a controlled substance is committed

only when a person knowingly possesses a controlled substance.

§ 18-18-403.5(1), (2)(a). Because possession of a controlled

substance cannot be committed in multiple ways, we apply the test

in Reyna-Abarca.

¶ 57 In People v. Jamison, 2018 COA 121, ¶ 50, a division of this

court, applying the Reyna-Abarca test, held that first degree

possession of contraband is a lesser included offense of

28

introduction of contraband by making, § 18-8-203(1)(b). The

division distinguished introduction of contraband by making under

subsection 203(1)(b) and introducing or attempting to introduce

contraband under subsection 203(1)(a). Id. at ¶ 58. It concluded

that unlike introduction of contraband by making under subsection

203(1)(b) where “making necessarily establishes possession,” id. at

¶ 49, introduction of contraband under subsection 203(1)(a) can be

committed without a defendant possessing the contraband, id. at

¶ 58 (“By way of example, a person could commit introducing

contraband under subsection 203(1)(a) without also committing

possession of contraband by asking someone to mail contraband to

a detention facility.”). Because we agree and conclude that proof of

introducing or attempting to introduce contraband does not

necessarily establish possession, possession of a controlled

substance is not a lesser included offense of introduction of

contraband in the first degree under subsection 203(1)(a). See, e.g.,

People v. Kern, 2020 COA 96, ¶ 34 (holding littering is not a lesser

included offense of throwing a missile at a vehicle because “a

person can commit the throwing a missile offense without also

committing the littering offense”).

29

¶ 58 Accordingly, Lewis’s possession of a controlled substance

conviction does not merge into her introducing contraband in the

first degree conviction.

VII. Conclusion

¶ 59 The judgment is affirmed.

JUDGE J. JONES and JUDGE TOW concur.