Peo v. Rodriguez

22CA1732 Peo v Rodriguez 03-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1732
El Paso County District Court No. 17CR5166
Honorable David Shakes, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Pedro Rodriguez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V
Opinion by JUSTICE MARTINEZ*
Freyre and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 20, 2025

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, River B. Sedaka, 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. 2024.
¶1 Defendant, Pedro Rodriguez, appeals his conviction for

possession with intent to distribute a controlled substance. We

affirm the judgment.

I. Background

¶2 Police officers stopped a car for failing to use its turn signal on

I-25 northbound in Colorado Springs. Rashaud Williams was the

driver of the stopped car, while Rodriguez was in the front

passenger seat.

¶3 The officers asked Williams and Rodriguez for their licenses

and the car’s registration and insurance. Williams and Rodriguez

provided their licenses but had trouble finding the other

documents, so they began reaching around the car to search.

While searching, Rodriguez opened the glove box. Inside the glove

box, the officers noticed a large amount of cash spilling out.

Rodriguez quickly closed the glove box and, according to the

officers, appeared nervous.

¶4 At this point, the officers ordered Williams and Rodriguez out

of the car. But instead of getting out of the car, Williams and

Rodriguez reached for the gearshift. Fearing they were trying to

flee, one officer punched Williams, and another officer sprayed

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pepper spray into the car. During this commotion, Rodriguez

continued to reach around the car, including under his seat.

Believing Rodriguez was reaching under his seat for a gun, one

officer warned to watch for a gun, causing the other officers to yell

“gun” and raise their firearms. (Ultimately, however, no gun was

found in the car or on either occupant.)

¶5 Then Rodriguez jumped out of the car and started running

away into the field on the side of the highway. As Rodriguez ran, an

officer saw him throw aside a clear plastic baggie containing white

powder. Police chased after Rodriguez, tased him, and took him

into custody.

¶6 After Rodriguez was arrested, police retrieved the baggie from

the field. Later testing showed the baggie contained 27.63 grams,

or about an ounce, of cocaine. Police also discovered $21,540 in

cash and five cellphones in the car.

¶7 The prosecution charged Rodriguez with possession with

intent to distribute a controlled substance and obstructing a police

officer. A jury convicted Rodriguez of both charges. But another

division of this court reversed the drug conviction because the

prosecution failed to establish a sufficient chain of custody for the

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cocaine at trial. People v. Rodriguez, 2022 COA 11, ¶¶ 2-35. The

case was remanded for a new trial on the drug charge.

¶8 At the new trial, one of the witnesses for the prosecution was a

narcotics detective who investigated the case, Detective Eric

Coddington. Coddington testified as an expert that the amount of

cocaine, cash, and cellphones showed possession with the intent to

distribute. The defense argued that Rodriguez got scared and ran

and that the drugs were not his. In addition, the defense

challenged the adequacy of the investigation of the incident and

claimed there was no evidence to show Rodriguez had any plans to

sell any drugs.

¶9 The jury found Rodriguez guilty of possession with intent to

distribute a schedule II controlled substance.

II. Expert Witness Testimony

¶ 10 Rodriguez contends that the trial court erred in allowing the

prosecution’s expert to testify to the ultimate issue of whether the

evidence showed possession with an intent to distribute because

such testimony usurped the function of the jury. We disagree

because any error was not plain.

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A. Additional Background

¶ 11 At trial, Detective Coddington testified as an expert in

narcotics investigation and surveillance. After Coddington testified

about each of the pieces of evidence recovered in this case,

including the cash, cocaine, and cellphones, the prosecutor asked:

“And based on your experience in this area and as an expert, was

this amount of cocaine and the way it was packaged and the money

and the cell phones, did that show possession with an intent to

distribute or sell?” (Emphasis added.) Coddington answered, “Yes.”

B. Standard of Review and Applicable Law

¶ 12 We review a trial court’s decision to admit testimony for an

abuse of discretion. An abuse of discretion occurs when a trial

court’s ruling is manifestly arbitrary, unreasonable, or unfair or if it

misapplies the law. People v. Payne, 2019 COA 167, ¶ 5.

¶ 13 Because Rodriguez did not object at trial, we review for plain

error. See Hagos v. People, 2012 CO 63, ¶ 14. Plain error is

“obvious and substantial.” Id. We reverse only if the error “so

undermined the fundamental fairness of the trial itself so as to cast

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

(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).

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¶ 14 CRE 704 provides that “[t]estimony in the form of an opinion

or inference otherwise admissible is not objectionable because it

embraces an ultimate issue to be decided by the trier of fact.” But

“while expert testimony is not objectionable merely because it

embraces an ultimate issue to be decided by the jury, an expert

witness cannot ‘tell the jury what result to reach or form

conclusions for the jurors that they are competent to reach on their

own.’” People In Interest of J.R., 2021 COA 81, ¶ 21 (citations

omitted). Doing so would usurp the function of the jury.

¶ 15 To determine whether expert testimony usurped the function

of the jury, the court should consider the factors set forth in People

v. Rector, 248 P.3d 1196, 1203 (Colo. 2011):

whether (1) the testimony was clarified on
cross-examination; (2) the expert’s testimony
expressed an opinion of the applicable law or
legal standards and thereby usurped the
function of the court; (3) the jury was properly
instructed on the law and that it could accept
or reject the expert’s opinion; and (4) the
expert opined that the defendant had
committed the crime or that there was a
particular likelihood that the defendant did
so.

People v. Baker, 2021 CO 29, ¶ 32 (citing Rector, 248 P.3d at 1203).

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C. Analysis

¶ 16 Our analysis of the admissibility of Detective Coddington’s

testimony focuses on the fourth Rector factor because the first few

Rector factors weigh in favor of no error. Specifically, Detective

Coddington’s testimony was clarified on cross-examination, which

addressed the detective’s limited personal knowledge of the traffic

stop and arrest, the lack of some other indicators of drug

distribution, and the detective’s lack of recall regarding other

details. See Lawrence v. People, 2021 CO 28, ¶ 51. Also, Detective

Coddington never expressed an opinion of the law or applicable

legal standards, although he did offer examples of evidence that

indicated possession with the intent to distribute. See id. at ¶ 52

(Expert testimony that “simply provided a general overview of the

applicable law and offered examples to help explain the concepts”

was admissible.). Finally, the court properly instructed the jury

that they were not bound by the testimony of any expert witness.

See id. at ¶ 53.

¶ 17 However, Detective Coddington’s testimony comes close to

stating “that the defendant had committed the crime.” Baker, ¶ 32.

Relevant to the fourth Rector factor the prosecutor asked, “[W]as

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this amount of cocaine and the way it was packaged and the money

and the cell phones, did that show possession with an intent to

distribute or sell?” This question followed a series of questions and

answers that established that the detective was familiar with the

contents of the plastic baggie found in the field and the money and

cell phones found in the car. Thus, the question was based on the

specific facts of this case rather than a hypothetical or general

situation. C.f. Lawrence, ¶ 54 (expert did not opine that defendant

committed any crime when he provided only “hypothetical

examples” to explain a legal concept). And therefore, the context of

the detective’s affirmative response oriented his testimony to an

opinion on whether the evidence in this case could show this

defendant committed the alleged crime.

¶ 18 The prosecutor’s question also addressed the crime’s elements,

specifically possession and intent. The inclusion of both of those

elements distinguishes this case from People v. Atencio, 140 P.3d

73, 76 (Colo. App. 2005), where the court found that an expert’s

testimony that the amount of the controlled substance in that case

was “consistent with distribution” did not invade the province of the

jury because the expert never said the defendant possessed the

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requisite intent. See also Lawrence, ¶ 54 (expert testimony

concluding only one element of the charged crimes was met was

admissible).

¶ 19 Moreover, asking whether the evidence “show[ed]” intent to

distribute more directly compels a legal conclusion than asking

whether the evidence was “consistent with” intent to distribute.

Atencio, 140 P.3d at 76. By framing the question this way, the jury

could have understood the prosecutor to have been, in effect,

asking Coddington to opine whether Rodriguez was guilty of the

charged crime. Such a question impermissibly asks the expert to

“appl[y] the law to the facts in such a way as to suggest that the

expert ha[s] determined that the defendant [i]s guilty.” Baker, ¶ 33;

see People v. Penn, 2016 CO 32, ¶ 31 (“[A] witness cannot testify

that he believes that the defendant committed the crime at issue.”).

¶ 20 However, the prosecutor’s question did not refer to Rodriguez

directly. The extent to which the question referred to Rodriguez was

only indirect; the question’s connection to Rodriguez was

established through other testimony that he threw away the baggie

and had been seated near where the cell phones and money were

found. The indirect nature of the reference to Rodriguez is a

8
consideration, together with the first three Rector factors, weighing

in favor of finding no error.

¶ 21 But even if we assume Detective Coddington’s testimony

should not have been admitted, we conclude that any error was not

plain because it was not obvious or substantial. See Hagos, ¶ 14.

The error was not obvious because, as our analysis demonstrates,

determining whether this testimony was admissible involves

carefully weighing several Rector factors, one of which does not

weigh entirely in the opposite direction as the other three factors.

Also, understanding that factor, including the reference to

Rodriguez specifically, requires thoughtfully considering the specific

wording of the question that resulted in the answer, “yes,” as well

as the preceding line of questioning. We do not believe the error is

“‘so clear-cut, so obvious,’ a trial judge should be able to avoid it

without benefit of objection.” People v. Crabtree, 2024 CO 40M,

¶ 42 (citation omitted). Further, defense counsel’s failure to object

can be considered to demonstrate the error was not obvious. See

People v. Walters, 148 P.3d 331, 334-35 (Colo. App. 2006) (“We may

consider a lack of contemporaneous objection by the defendant as

demonstrating ‘the defense counsel’s belief that the live argument,

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despite its appearance in a cold record, was not overly damaging.’”

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

2005))).

¶ 22 Moreover, the error also did not affect “the substantial rights

of the accused.” Crabtree, ¶ 43 (citation omitted). Ample evidence

supported the jury’s finding that Rodriguez possessed the cocaine

with the intent to distribute: the almost one-ounce baggie of cocaine

that Rodriguez tossed aside while running; the $21,540 in cash;

and the five cellphones that were recovered from the car. In

addition, before Detective Coddington made the challenged

statement, he testified that the amount of cocaine and the way it

was packaged, as well as the large amount of cash and cellphones,

were indicators of drug trafficking. Thus, there was substantial

other evidence upon which the jury could have found Rodriguez

guilty. See Lawrence, ¶ 56 (Any error in admitting expert testimony

on the ultimate issue was harmless when “[s]ubstantial, if not

overwhelming, evidence supported the jury’s findings.”).

¶ 23 Finally, the focus of Detective Coddington’s direct examination

was whether the evidence showed the cocaine was intended for

distribution rather than personal use. But the case did not hinge

10
on this issue. Intent to distribute was only one element of the crime

and was not the focus of the defense strategy. While the defense

could be considered a general denial and included the argument

that police inadequately investigated the case, it was a denial of the

possession of any cocaine. The denial of the requisite intent to

distribute was a consequence of the defense’s denial of possession

rather than a distinct issue in the trial.

¶ 24 For all these reasons, even if admission of Detective

Coddington’s testimony was erroneous, we conclude that any error

was harmless.

III. Prosecutorial Misconduct

¶ 25 Rodriguez also contends that the prosecutor committed

misconduct during closing argument by making several improper

statements. We are not persuaded.

A. Standard of Review and Applicable Law

¶ 26 We analyze claims of prosecutorial misconduct in two steps.

“First, we must determine whether the prosecutor’s challenged

conduct was improper based on the totality of the circumstances,

and, second, we must determine whether such conduct warrants

reversal according to the proper standard of review.” People v.

11
Nardine, 2016 COA 85, ¶ 36. When, as here, the defendant does

not object to the challenged conduct at trial, “we will only reverse a

conviction if the conduct was improper and rises to the level of plain

error.” Id. at ¶ 37.

¶ 27 As advocates, prosecutors have “wide latitude in the language

and presentation style used to obtain justice.” People v. Herold,

2024 COA 53, ¶ 68 (quoting Domingo-Gomez, 125 P.3d at 1048). A

prosecutor may “refer to the strength and significance of the

evidence, conflicting evidence, and reasonable inferences that may

be drawn from the evidence” during closing argument. Id. (quoting

Walters, 148 P.3d at 334.

¶ 28 But appropriate prosecutorial advocacy has limits.

Prosecutors may not refer to facts not in evidence, make statements

reflecting their own knowledge, intentionally misstate the evidence,

or express their personal belief in the defendant’s guilt. See

Walters, 148 P.3d at 334; Domingo-Gomez, 125 P.3d at 1049.

“Claims of improper argument must be evaluated in the context of

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

jury.” Herold, ¶ 70 (quoting People v. Geisendorfer, 991 P.2d 308,

312 (Colo. App. 1999)).

12
B. Statements About Drug Dealers

¶ 29 During closing argument, the prosecutor made several

statements that only drug dealers would carry the amounts of cash

and cocaine recovered in this case:

No user is going to carry around a full ounce of
cocaine.

....

And, ladies and gentlemen, you can consider
all that money in the glove box, $21,500. Now,
who would carry around that much money in a
glove box? Somebody who is making drug
deals, that’s who would carry around that
much money. Nobody other than drug dealers
are going to be paying 21,000 — or going to be
carrying that amount of money around.
Nobody except for people engaging in drug
dealing or [sic] going to be accepting that
amount of money in cash.

....

As I said in my first close, nobody except for
drug dealers carries around $21,000 in their
glove box.

¶ 30 Rodriguez contends that these statements asserted facts not in

evidence and injected the prosecutor’s own purported expertise into

the case. We disagree.

¶ 31 The prosecutor’s comments that “nobody except for drug

dealers” would possess the amounts of cash and cocaine found in

13
this case did not assert facts outside the evidence or imply the

prosecutor had specialized knowledge; rather, these comments

properly referred to Detective Coddington’s expert testimony that

these amounts tended to indicate an intent to distribute rather than

personal use. See Domingo-Gomez, 125 P.3d at 1048 (“Final

argument may properly include the facts in evidence and any

reasonable inferences drawn therefrom.”).

¶ 32 Although the expert did not testify that literally “nobody”

except distributors would possess cash and cocaine in these

amounts, in the context of closing argument, it would be fair to

assume the prosecutor did not mean the phrase in a literal sense.

The prosecutor was using a “rhetorical device[]” to make the point

that it would be unusual for a mere user to carry around these

amounts of cash and cocaine, and therefore, the evidence showed

an intent to distribute. People v. Allee, 77 P.3d 831, 837 (Colo. App.

2003). “[A] prosecutor is permitted to use ‘oratorical embellishment’

and ‘metaphoric nuance.’” People v. Vialpando, 2022 CO 28, ¶ 23

(citation omitted).

¶ 33 Even if the prosecutor’s statements exaggerated the expert’s

testimony, these statements were not likely to “mislead the jury.”

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Domingo-Gomez, 125 P.3d at 1049 (citation omitted). It requires

only common sense to realize that there could be other possible

reasons why someone may carry these quantities of cash and

drugs. Indeed, the defense pointed out that a user may buy cocaine

in bulk to get it cheaper during Detective Coddington’s cross-

examination. And the trial court properly instructed the jury that

statements of attorneys are not evidence. Thus, the statements

were permissible argument.

C. Statements About the Value of the Cocaine

¶ 34 During closing argument, the prosecutor asserted that the

cocaine was “worth about 1,500 to $2,000, I believe is the figure

you were given.” But Detective Coddington, who provided the only

testimony about the value of the cocaine, had testified that it was

worth $1,200 to 1,500. Rodriguez contends the prosecutor

misstated the evidence by inflating the cash value of the cocaine.

We disagree.

¶ 35 Even though the prosecutor misstated the value of the

cocaine, “nothing in the record suggests that the prosecutor

intentionally misstated the facts.” Herold, ¶ 84; Domingo-Gomez,

125 P.3d at 1049 (“The prosecutor should not intentionally misstate

15
the evidence . . . .” (quoting ABA Standards for Crim. Just.,

Prosecution Function & Def. Function § 3-5.8 (3d ed. 1993)). If

anything, the record shows that the prosecutor was unsure of the

number because she qualified her statement with “I believe.”

Accordingly, we do not think the prosecutor intentionally misstated

the evidence.

¶ 36 The misstatement was also unlikely to prejudice the jury

because the difference in values was not significant, and the precise

cash value of the cocaine was not relevant to any elements of the

charge. Moreover, Detective Coddington had testified to the correct

number just before closing argument. And again, the trial court

properly instructed the jury that statements of attorneys are not

evidence. Thus, “there is no substantial likelihood that the

prosecution’s misstatements during . . . closing contributed to

defendant’s conviction.” People v. Arzabala, 2012 COA 99, ¶ 72

(When “the evidence presented at trial made [the facts] abundantly

clear,” the prosecutor’s misstatement of the facts was not plain

error.).

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D. Statements About Defendant’s Guilt

¶ 37 The prosecutor asserted that Rodriguez was guilty several

times during closing argument. For example, the prosecutor said,

“[T]he defendant in this case is guilty of Possession with Intent to

Distribute a Controlled Substance: cocaine,” and “He is guilty

beyond a reasonable doubt.” Rodriguez contends that these

statements were improper because the prosecutor expressed a

personal belief in his guilt. The prosecutor also said, “The

Prosecution has given you all the evidence that it can,” during

closing, and “[W]e’ve given you all the information that we can,”

during rebuttal closing. Rodriguez contends that these statements

were improper because the prosecutor implied personal knowledge

of additional evidence of his guilt. Together, Rodriguez argues,

these statements impermissibly encouraged jurors to rely on the

prosecutor’s judgment rather than the evidence.

¶ 38 We disagree with Rodriguez’s characterization of the

prosecutor’s argument. The prosecutor’s statements that Rodriguez

was guilty were “largely tied to [her] arguments about the evidence.”

Vialpando, ¶ 42. For example, the prosecutor explicitly referred to

the evidence in one of her challenged statements: “All of this

17
evidence tells you, ladies and gentlemen, the defendant is in fact

guilty . . . .” (Emphasis added.) And the prosecutor did not precede

her statement with a phrase like “I believe” or otherwise indicate her

statement was a personal opinion imbued with the power of the

State. People v. Samson, 2012 COA 167, ¶ 38. When viewed in the

context of the entire closing argument, the prosecution’s assertions

that Rodriguez was guilty amounted to a “reasonable inference” that

the evidence established his guilt. People v. Villa, 240 P.3d 343,

358 (Colo. App. 2009).

¶ 39 We also disagree that the prosecutor implied personal

knowledge of evidence unknown to the jury by saying, “[W]e’ve given

you all the information that we can.” These statements were clearly

intended to rebut the defense’s argument that the evidence was

insufficient due to a “flawed investigation” that was “filled with

holes.”

¶ 40 Regardless, even assuming that these were improper personal

opinions, the prosecutor’s statements were a “small part of [her]

argument,” which was otherwise a fair summary of the evidence.

Vialpando, ¶ 42. The trial court also instructed the jury on the

presumption of innocence, “which helped to ameliorate any

18
prejudice associated with the prosecutor’s comments.” Id. For

these reasons, the prosecutor’s statements regarding Rodriguez’s

guilt did not constitute misconduct.

¶ 41 In summary, we conclude that none of the challenged

prosecutorial remarks were improper.

IV. Cumulative Error

¶ 42 Rodriguez contends that the cumulative effect of the alleged

errors requires reversal. We have not identified “multiple errors

that collectively prejudice the substantial rights of the defendant.”

Howard-Walker v. People, 2019 CO 69, ¶ 25. Therefore, reversal is

not warranted. See Herold, ¶ 101.

V. Voir Dire Instruction

¶ 43 Lastly, Rodriguez contends that the trial court violated his

right to a jury trial because it instructed the jury that it “will”

convict if the elements are proved. In his view, such an instruction

infringed the “right” for a jury to acquit for any reason — a power

also known as jury nullification. We disagree.

A. Additional Background

¶ 44 At the beginning of voir dire, the trial court instructed the jury

that it must follow the law in determining its verdict:

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So it’s your responsibility to follow the law.
And that might sound sort of obvious, but
sometimes we get people on the panel that feel
that they can make up their own law, or the
law that’s been developed by the legislature is
something that they don’t think is right and
they’re not going to enforce it. Let me give you
an example. And this is sort of a trivial
example, but let’s say that this were a
speeding case.

How many of you have driven from Pueblo to
Walsenburg on I-25? Just about everybody.
Let’s say it’s a speeding case. The speed limit
is 75 miles an hour. The prosecution has
proven its case. They’ve proven the person
charged was the driver. They’ve proven the
speed limit is 75. They’ve proven the driver
knew the speed limit was 75 and was driving
85. You could not be honest to your oath and
find that Defendant not guilty because it’s wide
open and 85 is just fine on that stretch of the
road. You can’t do that.

....

And, frankly, sometimes, in cases involving
drugs, there are some people that feel
differently from what our statutes are, but
what I need on the jury are people who can
follow the law.

¶ 45 Soon after, the court also instructed the jury that it “will” find

Rodriguez guilty if the crime is proved beyond a reasonable doubt:

If you find from the evidence that each and
every element of the crime has been proven
beyond a reasonable doubt, you will find the
Defendant guilty.

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B. Standard of Review and Applicable Law

¶ 46 A trial judge has wide discretion in conducting a trial but must

correctly instruct the jury on the applicable law. Rodriguez, ¶ 38.

We review de novo whether the trial court properly instructed the

jury on the applicable law. Id.

¶ 47 Jury nullification is the “de facto power” of a jury to acquit a

defendant even though the law or evidence may dictate otherwise.

Id. at ¶ 40; see also People v. Waller, 2016 COA 115, ¶ 57

(“Nullification is a juror’s ‘knowing and deliberate rejection of the

evidence or refusal to apply the law because the result dictated by

law is contrary to the juror’s sense of justice, morality, or fairness.’”)

(citation omitted). This power is only made possible because jury

deliberations are secret. Rodriguez, ¶ 40. But while a jury has the

power to nullify, “there is no constitutional right to jury

nullification.” People v. Scott, 2021 COA 71, ¶ 21 (quoting United

States v. Kleinman, 880 F.3d 1020, 1035 (9th Cir. 2017)).

¶ 48 The jury’s power to nullify stands in tension with the jury’s

“sworn duty to follow the law.” Rodriguez, ¶ 40; see also COLJI-

Crim. E:01 (2024) (“Even if you disagree with or do not understand

the reasons for some of the rules of law, you must follow them.”).

21
For this reason, “courts have consistently disapproved of

instructions that would inform the jury of its power to nullify.”

Rodriguez, ¶ 41; see also Scott, ¶ 16; Waller, ¶ 76; People v. Wilson,

972 P.2d 701, 706 (Colo. App. 1998).

C. Analysis

¶ 49 Here, there was nothing improper about the court’s

instruction. The court did not misstate the law by instructing the

jury, through its speeding analogy, to convict if the crime’s elements

were proved beyond a reasonable doubt. A prior division of this

court upheld essentially the same instruction during Rodriguez’s

first trial, and we agree with its reasoning. Rodriguez, ¶ 42. Like in

Rodriguez, here, “the court did not tell the jurors that they did not

have the power to nullify; the court told the jurors that they had a

duty to follow the law.” Id.

¶ 50 The court also did not err by instructing that the jury “will”

find Rodriguez guilty if all elements are proved beyond a reasonable

doubt. Rodriguez argues that the use of the word “will” instead of

“should” erroneously “eviscerated” the jury’s power to nullify. We

disagree. First, the court is not required to inform the jury of their

power to nullify, as it is a de facto power, not a right. See

22
Rodriguez, ¶ 40. Second, the jury’s nullification power derives from

the inherent secrecy of the jury deliberation process — which the

court’s instruction did not disturb. Id. Lastly, we agree with the

division in Waller, ¶ 72, that the word “should” is “no less

obligatory” than the word “will” in the context of this jury

instruction. See also People v. Munoz, 240 P.3d 311, 317 (Colo.

App. 2009) (holding that the word “should” in a reasonable doubt

instruction “conveys to the jury a sense of duty or obligation and

not discretion”).

¶ 51 Therefore, we reject Rodriguez’s contention that the court’s

instruction extinguished the jury’s nullification power or violated

his right to a jury trial. See id. at ¶ 77.

VI. Disposition

¶ 52 The judgment is affirmed.

JUDGE FREYRE and JUDGE SULLIVAN concur.

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