Peo v. Morris

23CA0992 Peo v Morris 11-20-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0992
Lincoln County District Court No. 21CR36
Honorable H. Clay Hurst, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Shawn Morris,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division III
Opinion by JUDGE LIPINSKY
Dunn and Kuhn, JJ., concur

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

Philip J. Weiser, Attorney General, John T. Lee, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Christina Van Wagenen,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Shawn Morris appeals his conviction on one count of first

degree possession of contraband. We affirm.

I. Background

¶2 A jury could have reasonably found the following facts from

the evidence introduced at trial.

¶3 While working in the Limon correctional facility, Sergeant

Damian Duran saw Morris, an inmate, retrieve an item that had

been passed through a fire hose port — an opening near the lower

part of a doorway. During a strip search of Morris, Sergeant

Christopher Martinez saw Morris move his hand by his sweatpants,

heard a “metallic sound,” and found “sharpened piece[s] of metal”

(the instruments) in a nearby bucket.

¶4 Morris was charged with two counts of possession of

contraband in the first degree in violation of section 18-8-204.1(1),

(3), C.R.S. 2025. The prosecution only proceeded to trial on one of

the counts.

¶5 Morris’s counsel argued at trial that the prosecution had failed

to introduce sufficient evidence to prove beyond a reasonable doubt

that Morris knowingly possessed the instruments.

1
¶6 The jury convicted Morris of the single count. The court

sentenced Morris to six years in the custody of the Department of

Corrections.

¶7 Morris presents two principal contentions in this appeal.

First, he argues that the prosecution did not introduce sufficient

evidence to prove that he knowingly possessed the instruments.

Second, he argues that the court violated his constitutional right to

due process by providing the jury with a reasonable doubt

instruction (the court’s instruction) that unconstitutionally lowered

the prosecution’s burden of proof and shifted the burden to the

defense. He further asserts that the prosecutor engaged in

misconduct during closing argument that compounded the

instructional error.

II. Analysis

A. The Evidence Admitted at Trial Was
Substantial and Sufficient to Support Morris’s Conviction

¶8 Morris argues that the prosecution failed to prove beyond a

reasonable doubt that he knowingly “possessed a dangerous

weapon, as opposed to any other object.” Further, Morris asserts

that, because Sergeant Martinez found the instruments near

2
Morris, no witness observed the instruments “in [Morris’s] hand

during the strip search,” and no witness saw Morris drop them, the

prosecution failed to prove that Morris possessed the instruments.

We disagree.

1. Standard of Review

¶9 “[W]e review the record de novo to determine whether the

evidence before the jury was sufficient both in quantity and quality

to sustain the conviction[].” People v. Gray, 2025 COA 23, ¶ 21,

568 P.3d 448, 452 (quoting People v. Harrison, 2020 CO 57, ¶ 31,

465 P.3d 16, 23).

¶ 10 “At trial, the prosecution has the burden of establishing a

prima facie case of guilt through introduction of sufficient

evidence.” Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). “We

employ a substantial evidence test to determine if the evidence

presented to the jury is sufficient to sustain a defendant’s

conviction.” Id. The substantial evidence test considers “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 of the charge beyond a reasonable

3
doubt.” Id. (quoting People v. Bennett, 515 P.2d 466, 469 (Colo.

1973)).

¶ 11 The following legal principles guide our determination of the

sufficiency of the evidence presented at trial:

(1) “[I]t is for the fact finder to determine the difficult

questions of witness credibility and the weight to be given

to conflicting items of evidence.” People v. Kessler, 2018

COA 60, ¶ 12, 436 P.3d 550, 554.

(2) “[A] fact finder is not required to accept or reject a

witness’s testimony in its entirety; it may believe all, part,

or none of a witness’s testimony.” Id.

(3) “[A]n actor’s state of mind is normally not subject to

direct proof and must be inferred from his or her actions

and the circumstances surrounding the occurrence.” Id.

(4) “[T]he prosecution must be given the benefit of every

inference that may fairly be drawn from the evidence.”

Id.

(5) “[I]f there is evidence upon which one may reasonably

infer an element of the crime, the evidence is sufficient to

4
sustain that element.” Id. (quoting People v. Chase, 2013

COA 27, ¶ 50, 411 P.3d 740, 752).

(6) “[W]here reasonable minds could differ, the evidence is

sufficient to sustain a conviction.” Id. (quoting People v.

Bondurant, 2012 COA 50, ¶ 58, 296 P.3d 200, 212).

Further, “[a] court must not invade the province of the jury by

second-guessing its conclusion when the record supports the jury’s

findings.” People v. Perez, 2016 CO 12, ¶ 31, 367 P.3d 695, 702.

2. The Law Governing Possession of
Contraband in the First Degree

¶ 12 To prove the crime of possession of contraband in the first

degree, the prosecution must show that the defendant was

“confined in a detention facility” and “knowingly obtain[ed] or ha[d]

in the [defendant]’s possession contraband as listed in section

18-8-203(1)(a)[, C.R.S. 2025,]” that meets the definition of “a

dangerous instrument.” § 18-8-204.1(1), (3). For purposes of

section 18-8-204.1, a “[d]angerous instrument” includes a “knife or

sharpened instrument.” § 18-8-203(4).

5
3. The Evidence Introduced at Morris’s Trial

¶ 13 Morris concedes that the instruments meet the definition of a

“[d]angerous instrument” under section 18-8-203(4). However, he

contends that the prosecution failed to prove that he knowingly

possessed contraband. To support this contention, Morris argues

that the “prosecution acknowledged in closing that there was no

direct evidence about what Morris received in the transfer that

[Sergeant] Duran observed.” Thus, he argues that the jury was left

to “guess at whether Morris knew the nature of what he was

holding.”

¶ 14 “A person acts ‘knowingly’ . . . with respect to conduct or to a

circumstance described by a statute defining an offense when he is

aware that his conduct is of such nature or that such circumstance

exists.” § 18-1-501(6), C.R.S. 2025.

¶ 15 “[A]n actor’s state of mind is normally not subject to direct

proof and must be inferred from his or her actions and the

circumstances surrounding the occurrence.” Kessler, ¶ 12, 436

P.3d at 554 (citing People v. Phillips, 219 P.3d 798, 800 (Colo. App.

2009)). Intent may “be established from circumstantial evidence

and from the inferences that may reasonably be drawn from those

6
circumstances.” People v. Miralda, 981 P.2d 676, 679 (Colo. App.

1999).

¶ 16 The prosecution introduced the following evidence to prove

that Morris knowingly possessed the instruments:

• When Sergeant Martinez “asked [Morris] what he got”

through the fire hose port, Morris produced a pair of dice.

• While being strip-searched, Morris handed Sergeant

Martinez a pill that Morris had hidden on his body.

• Later during the search, Sergeant Martinez saw Morris

move his hand to the left side of his sweatpants “as if he

was trying to kind of hide something.”

• Sergeant Martinez turned away from Morris to tell

another officer that Morris “might have something.”

• While he was turned away, Sergeant Martinez heard “a

metallic sound.”

• Sergeant Martinez found the instruments in a mop

bucket. He recognized them as items “usually . . . used

for dangerous acts.”

7
• Although Sergeant Martinez did not see Morris drop the

instruments into the bucket, he saw Morris’s hand “kind

of in the bucket.”

¶ 17 From this evidence, a reasonable juror could find that Morris

obtained the instruments through the fire hose port and possessed

them until he dropped them into the mop bucket. See Bennett, 515

P.2d at 470 (concluding that the prosecution’s circumstantial

evidence “was sufficient to forge a link that eventually created a

chain of circumstances that established the defendant’s connection

to the shipment of [a] box” containing marijuana and LSD and “his

possession of the illicit drugs and narcotics”); see also People v. Poe,

2012 COA 166, ¶ 15, 316 P.3d 13, 16 (“A finding of possession may

be based on the jury’s reasonable inferences from the evidence,

including circumstantial evidence.”).

¶ 18 The prosecution also presented evidence that Morris tried to

conceal the instruments. This evidence could further persuade a

reasonable juror that Morris knowingly possessed the instruments.

See People v. Summitt, 132 P.3d 320, 324 (Colo. 2006) (Evidence of

concealment “can be admissible to show consciousness of guilt.”);

see also People v. McClintic, 2020 COA 120M, ¶¶ 26-29, 484 P.3d

8
724, 729-30 (collecting cases holding that evidence showing that

the defendant committed “voluntary acts of denying possession” or

forgoing “an informed opportunity to relinquish possession of

contraband upon entering a jail” is sufficient to support a

conviction of introduction of contraband in the first degree). Thus,

the jury had a substantial and sufficient basis to find Morris guilty

of first degree possession of contraband.

¶ 19 In arguing that the evidence was insufficient to prove that he

knowingly possessed the instruments, Morris relies on People v.

Heywood, 2014 COA 99, 357 P.3d 201, overruled by, McCoy v.

People, 2019 CO 44, 442 P.3d 379. In Heywood, the division

reversed the defendant’s judgment of conviction because, although

the defendant had invited an unknown person to join a sexually

explicit livestream, the evidence did not establish that the

defendant knew that the unknown person was underage at the

time. Id. at ¶ 29, 357 P.3d at 207-08. Morris argues that, like the

Heywood defendant, he “did something that was not necessarily

illegal in itself” and there was “no evidence that he had knowledge

of the fact that . . . [such] conduct [was] illegal (the contraband

status or dangerous nature of the object).”

9
¶ 20 Morris’s reliance on Heywood is misplaced. At his trial, the

prosecution presented substantial and sufficient evidence to

establish that Morris knowingly possessed the instruments. From

the prosecution’s evidence, a reasonable juror could find that

Morris knew that it was illegal for him to retrieve the instruments

from the fire hose port. See Kessler, ¶ 12, 436 P.3d at 554. And

unlike the defendant in Heywood, Morris was “[a] person being

confined in a detention facility.” § 18-8-204.1(1). Accordingly, a

reasonable juror could conclude that Morris, as an inmate in a

detention facility, knew that the sharpened pieces of metal he

received through the fire hose port were “[d]angerous

instrument[s],” § 18-8-203(4), and, therefore, contraband. Further,

the prosecution presented evidence indicating that Morris

attempted to conceal the instruments from Sergeant Martinez. See

Summitt, 132 P.3d at 324.

¶ 21 For these reasons, we conclude that the prosecution

introduced substantial and sufficient evidence to sustain Morris’s

conviction for first degree possession of contraband.

10
B. The Court’s Instruction
Did Not Violate Morris’s Constitutional Rights

1. The Court’s Instruction

¶ 22 Morris contends that the court’s instruction unconstitutionally

lowered and shifted the burden of proof by (1) failing to inform the

jury that it could base a reasonable doubt on the “lack of evidence”

presented; (2) omitting the “hesitate to act” language in the 2021

model jury instructions on reasonable doubt; and (3) defining

reasonable doubt as a “real possibility” that the defendant is not

guilty. He also argues that the phrase “firmly convinced” in the

court’s instruction improperly directed the jury to consider its own

assumptions and not the evidence presented at trial. Finally,

Morris asserts that the cumulative effect of the errors in the court’s

instruction meant that the court did not correctly instruct the jury

on the prosecution’s burden of proof. We disagree.

a. Standard of Review

¶ 23 “We review de novo whether the jury instructions adequately

informed the jury of the governing law.” People v. Salazar, 2023

COA 102, ¶ 9, 542 P.3d 1209, 1213. “The district court has

substantial discretion in formulating the jury instructions, so long

11
as they are correct statements of the law and fairly and adequately

cover the issues presented.” People v. Nerud, 2015 COA 27, ¶ 35,

360 P.3d 201, 207 (quoting People v. Gallegos, 226 P.3d 1112, 1115

(Colo. App. 2009)). “An instruction that lowers the prosecution’s

burden of proof below reasonable doubt constitutes structural error

and requires automatic reversal.” Johnson v. People, 2019 CO 17,

¶ 8, 436 P.3d 529, 531.

b. Additional Facts

¶ 24 The court patterned the court’s instruction on the 2022 model

jury instructions addressing the presumption of innocence, the

burden of proof, and reasonable doubt (the 2022 model

instructions). Defense counsel objected to the court’s instruction

“in its entirety” because, unlike the 2021 model instructions, the

2022 model instructions lacked the “sort of oomph of years of

testing by the appellate and Supreme Court behind it” and they

contained a confusing definition of “reasonable doubt.” (The 2021

model instructions defined “reasonable doubt” as “a doubt which is

not a vague, speculative or imaginary doubt.” COLJI-Crim. E:03

(2021).)

12
¶ 25 The court overruled defense counsel’s objection, noting that

the 2022 model instructions “lean[ed] towards [Morris’s] favor as

opposed to the [prosecution’s].”

¶ 26 The court’s instruction said:

Every person charged with a crime is
presumed innocent. This presumption of
innocence remains with the defendant
throughout the trial and should be given effect
by you unless, after considering all the
evidence, you are convinced that the defendant
is guilty beyond a reasonable doubt.

The burden of proof in this case is upon the
prosecution. The prosecution must prove to
the satisfaction of the jury beyond a
reasonable doubt the existence of each and
every element necessary to constitute the
crime charged. This burden requires more
than proof that something is highly probable,
but it does not require proof with absolute
certainty.

Proof beyond a reasonable doubt is proof that
leaves you firmly convinced of the defendant’s
guilt. If you are firmly convinced of the
defendant’s guilt, then the prosecution has
proven the crime charged beyond a reasonable
doubt. But if you think there is a real
possibility that the defendant is not guilty,
then the prosecution has failed to prove the
crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide
the prosecution has proven each of the
elements of a crime charged beyond a

13
reasonable doubt, you should find the
defendant guilty of that crime.

After considering all the evidence, if you decide
the prosecution has failed to prove any one or
more of the elements of a crime charged
beyond a reasonable doubt, you should find
the defendant not guilty of that crime.

See COLJI-Crim. E:03 (2022).

c. The Court Did Not Err by Providing the Court’s Instruction
to the Jury

¶ 27 “[T]he Due Process Clause protects the accused against

conviction except upon proof beyond a reasonable doubt of every

fact necessary to constitute the crime with which he is charged.” In

re Winship, 397 U.S. 358, 364 (1970). Thus, a trial court must

“properly instruct the jury on — and, as the fact finder, the jury

must apply — the reasonable doubt standard.” Tibbels v. People,

2022 CO 1, ¶ 25, 501 P.3d 792, 797. “[A]ny jury instruction on

reasonable doubt that creates ‘an improper lessening of the

prosecution’s burden of proof’ violates ‘a defendant’s constitutional

right to due process.’” Johnson, ¶ 13, 436 P.3d at 532-33 (quoting

People v. Garcia, 113 P.3d 775, 784 (Colo. 2005)).

¶ 28 “While the [reasonable doubt] standard’s application is

universally mandated, courts retain some flexibility in defining what

14
constitutes a reasonable doubt.” Id. at ¶ 10, 436 P.3d at 532.

Accordingly, “if the trial court properly instructed the jury on the

law[,] . . . then there is no violation of due process.” Id. at ¶ 14, 436

P.3d at 533.

¶ 29 A division of this court recently held that the 2022 model

instructions on reasonable doubt did not “unconstitutionally lower

the prosecution’s burden of proof, violate the presumption of

innocence, or shift the burden of proof to the defendant.” People v.

Schlehuber, 2025 COA 50, ¶ 2, 572 P.3d 641, 646; see People v.

Melara, 2025 COA 48, ¶ 32, 572 P.3d 619, 628 (rejecting the

defendant’s contention that the “trial court denied his due process

rights or otherwise reversibly erred by failing to include the ‘lack of

evidence’ language in its reasonable doubt instruction”). Although

“[w]e are not obligated to follow the precedent established by

another division,” we give such decisions “considerable deference.”

People v. Smoots, 2013 COA 152, ¶ 20, 396 P.3d 53, 57, aff’d sub

nom., Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.

¶ 30 For five reasons, we reject Morris’s challenge to the court’s

instruction.

15
¶ 31 First, we disagree with Morris’s argument that the removal of

“lack of evidence” from the 2022 model instructions lowered or

shifted the burden of proof or undermined the presumption of

innocence. As two previous divisions of this court concluded, not

including “lack of evidence” in a reasonable doubt instruction does

not lower the prosecution’s burden of proof. Schlehuber, ¶ 20, 572

P.3d at 648; Melara, ¶ 24, 572 P.3d at 627.

¶ 32 In addition, as explained in Schlehuber, the 2022 model

reasonable doubt instructions do not preclude the jury’s

consideration of the prosecution’s lack of evidence. Schlehuber,

¶ 22, 572 P.3d at 649. This concept was subsumed within the

court’s instruction, which informed the jury that “the prosecution

bears the burden of proof” and that Morris is “presumed innocent

unless the prosecution meets its burden.” Id. Moreover, the

ultimate paragraph of the court’s instruction told the jury that it

must consider “all the evidence” when determining whether the

prosecution met its burden of proof: “After considering all the

evidence, if you decide the prosecution has failed to prove any one

or more of the elements of a crime charged beyond a reasonable

doubt, you should find the defendant not guilty of that crime.” See

16
id. And the “fail[ure] to prove” language unambiguously instructed

the jury that it could not convict Morris unless the prosecution

proved every element of the first degree possession of contraband

count beyond a reasonable doubt and that the jury was required to

return a not guilty verdict if it found a material gap in the

prosecution’s proof.

¶ 33 Accordingly, the court’s instruction clearly informed the jury

that, “if the prosecution fails to present sufficient evidence of guilt,

it will not have met its burden.” Id. (citing United States v. Petty,

856 F.3d 1306, 1311 (10th Cir. 2017)); see also Rault v. Louisiana,

772 F.2d 117, 137 (5th Cir. 1985) (“These instructions necessarily

conveyed the concept that a reasonable doubt would arise in the

absence of evidence sufficient to show guilt beyond a reasonable

doubt.”).

¶ 34 Because “there is no reasonable likelihood [that] the jury

understood” the court’s instruction as “unconstitutionally lower[ing]

the prosecution’s burden of proof below the reasonable doubt

standard,” the court did not err by not referring to “lack of evidence”

in the court’s instruction. Schlehuber, ¶ 25, 572 P.3d at 649; see

Melara, ¶ 32, 572 P.3d at 628. Further, the reappearance of “lack

17
of evidence” in the 2023 model reasonable doubt jury instructions

does not mean that the omission of such language from the 2022

model instructions “unconstitutionally lower[ed] the prosecution’s

burden of proof below the reasonable doubt standard.” Schlehuber,

¶¶ 18 n.2, 25, 572 P.3d at 648 n.2, 649.

¶ 35 Second, we reject Morris’s contention that the court lowered

and shifted the burden of proof and undermined the presumption of

innocence by omitting from the court’s instruction the “hesitate to

act” language that appeared in the 2021 model instructions. We

disagree because, like the Schlehuber division, we do not see why it

would be error not to include “hesitate to act” in a reasonable doubt

instruction, “so long as the instruction otherwise correctly defines

the reasonable doubt standard.” Id. at ¶ 28, 572 P.3d at 650.

¶ 36 Third, we disagree with Morris’s argument that the reference

in the court’s instruction to a “real possibility” that the defendant

was not guilty lowered and shifted the burden of proof and

undermined the presumption of innocence. See id. at ¶ 34, 572

P.3d at 651.

¶ 37 The court’s instruction said that “reasonable doubt” is a “real

possibility that [Morris] is not guilty” and that it “requires more

18
than proof that something is highly probable.” See COLJI-Crim.

E:03 (2022). This definition of reasonable doubt “has been

consistently approved by federal courts as an accurate expression

of the reasonable doubt standard.” Schlehuber, ¶ 30, 572 P.3d at

650; see, e.g., Victor v. Nebraska, 511 U.S. 1, 24-27 (1994)

(Ginsburg, J., concurring in part and concurring in the judgment)

(concluding that a similar definition of reasonable doubt

“surpasse[d] others . . . in stating the reasonable doubt standard

succinctly and comprehensibly”).

¶ 38 Indeed, the “phrase ‘real possibility’ correctly directs the jury

not to acquit the defendant simply because it can conceive of some

fanciful possibility that the defendant is not guilty.” Schlehuber,

¶ 31, 572 P.3d at 650. Thus, the “‘real possibility’ language simply

explain[s] the threshold [that] the prosecution must overcome” to

prove each element of the offense beyond a reasonable doubt. Id. at

¶ 34, 572 P.3d at 651.

¶ 39 Moreover, “equating reasonable doubt with a ‘real possibility’

[does not] shift the burden to the defendant to establish that real

possibility.” Id. First, the sentence in the court’s instruction

referring to “real possibility” says that, if a juror thinks “there is a

19
real possibility that the defendant is not guilty, then the prosecution

has failed to prove the crime charged beyond a reasonable doubt.”

(Emphasis added.) Second, the court’s instruction correctly

informed the jury that it was required to presume Morris’s

innocence, the burden of proof was “upon the prosecution,” and the

“prosecution must prove to the satisfaction of the jury beyond a

reasonable doubt the existence of each and every element necessary

to constitute the crime charged.” Finally, as noted above, the

court’s instruction said that, “[a]fter considering all the evidence, if

[the jury] decide[s] the prosecution has failed to prove any one or

more of the elements of a crime charged beyond a reasonable doubt,

[the jury] should find the defendant not guilty of that crime.”

¶ 40 Accordingly, the court’s instruction did not suggest that

Morris must be “the source of the ‘real possibility’” that he was not

guilty. Id. (quoting United States v. Taylor, 997 F.2d 1551, 1557

(D.C. Cir. 1993)).

¶ 41 Fourth, we disagree with Morris’s contention that the “firmly

convinced” phrase in the court’s instruction left “the door open for a

juror to be ‘firmly convinced’ by impermissible, non-evidentiary

considerations — for example, counsel’s arguments, the juror’s

20
personal bias, or a simple, gut-level impulse.” He argues that the

“firmly convinced” phrase was “particularly dangerous in [his] case,

where the jurors were asked to set aside any personal biases they

might have against an incarcerated defendant.”

¶ 42 As the Schlehuber division explained, “[t]he phrase ‘firmly

convinced’ correctly connotes a standard of ‘near certitude’” —

greater than “highly probable” but less than absolute certainty. Id.

at ¶ 31, 572 P.3d at 650 (quoting Jackson v. Virginia, 443 U.S. 307,

315 (1979)); see People v. Camarigg, 2017 COA 115M, ¶ 49, 488

P.3d 267, 276-77 (recognizing the distinction between “proof beyond

a reasonable doubt and proof beyond all doubt”). In addition, the

Melara division characterized the “firmly convinced” phrase as “an

accurate statement of the law.” Melara, ¶ 30, 572 P.3d at 628.

Moreover, as noted above, the court’s instruction, including the

phrase “firmly convinced,” has been “consistently approved by

federal courts as an accurate expression of the reasonable doubt

standard.” Schlehuber, ¶ 30, 572 P.3d at 650; see, e.g., Victor, 511

U.S. at 24-27 (Ginsburg, J., concurring in part and concurring in

the judgment); Harris v. Bowersox, 184 F.3d 744, 751-52 (8th Cir.

1999); United States v. Brand, 80 F.3d 560, 566 (1st Cir. 1996).

21
¶ 43 Morris’s argument regarding the phrase “firmly convinced” in

the court’s instruction ignores the court’s other instructions

germane to the prosecution’s burden of proof. Not only did the

court’s instruction inform the jury that it had to presume Morris’s

innocence, but jury instruction number seven told the jury to

“consider only the evidence in this case and reasonable inferences

therefrom.” Further, jury instruction number one explained that

the jury’s decision must “be made by applying the rules of law” and

that the jury could not base its decision on “sympathy, bias, or

prejudice.” “Absent a contrary showing,” we presume that the jury

followed the instructions it received from the court. People v.

Dominguez-Castor, 2020 COA 1, ¶ 91, 469 P.3d 514, 529.

¶ 44 Fifth, we reject Morris’s argument that the court did not

correctly instruct the jury on the prosecution’s burden of proof

because of the cumulative effect of the deficiencies in the court’s

instruction. Because we conclude that the court did not err in

giving the court’s instruction, there was no cumulative error.

22
2. Prosecutorial Misconduct

¶ 45 Morris contends that the prosecutor’s improper rebuttal

closing argument compounded the errors in the court’s instruction.

We disagree.

a. Standard of Review

¶ 46 To the extent that Morris presents a prosecutorial misconduct

argument, he did not preserve it because defense counsel did not

object when the prosecutor made the challenged remarks. See

Martinez v. People, 2015 CO 16, ¶ 14, 344 P.3d 862, 868 (“Parties

must make objections that are specific enough to draw the trial

court’s attention to the asserted error.”).

¶ 47 When reviewing a claim of prosecutorial misconduct, we first

“must determine whether the prosecutor’s questionable conduct

was improper based on the totality of the circumstances and,

second, whether such actions warrant reversal according to the

proper standard of review.” Wend v. People, 235 P.3d 1089, 1096

(Colo. 2010).

¶ 48 Because Morris did not preserve his prosecutorial misconduct

argument, “we apply a plain error standard of review.” Id. at 1097.

23
¶ 49 To constitute plain error, prosecutorial misconduct must be

“flagrant or glaring 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.” People v.

Rhea, 2014 COA 60, ¶ 43, 349 P.3d 280, 291 (quoting People v.

Weinreich, 98 P.3d 920, 924 (Colo. App. 2004)), aff’d, 119 P.3d

1073 (Colo. 2005). “[P]rosecutorial misconduct in closing

arguments rarely, if ever, is so egregious as to constitute plain

error.” Id. (quoting People v. Constant, 645 P.2d 843, 847 (Colo.

1982)).

b. The Court Did Not Plainly Err by Allowing
the Prosecutor to Make the Challenged Statements

¶ 50 During his rebuttal closing argument, the prosecutor said:

This is the simplest explanation[:] he knows,
and that’s based on evidence and the
reasonable inferences without having to
concoct up any additional evidence that he
couldn’t possibly know because it was too
quick. He’s guilty of possession [of]
contraband in the first degree, possession of a
dangerous instrument based on the evidence
and the reasonable inferences therefrom.

¶ 51 The prosecutor did not engage in misconduct because he

properly commented on the lack of evidence corroborating Morris’s

24
claim that he did not knowingly possess the instruments. See

People v. Esquivel-Alaniz, 985 P.2d 22, 23 (Colo. App. 1999)

(“[C]omment on the lack of evidence confirming a defendant’s theory

of the case is permissible and does not shift the burden of proof.”);

see also People v. Ramirez, 997 P.2d 1200, 1211 (Colo. App. 1999)

(rejecting the defendant’s argument that the “prosecutor’s

statements characterizing [the defendant’s] defense as ‘blowing

smoke’ and ‘smoke’ were an improper comment on [defense]

counsel’s belief in the merits of [the defendant’s] case”), aff’d by an

equally divided court, 43 P.3d 611 (Colo. 2001); People v. Serpa, 992

P.2d 682, 686 (Colo. App. 1999) (finding no error because the

prosecutor’s suggestion that the defense was attempting to “diver[t]”

and “sidetrack” the jury conveyed the message that the jurors

needed to consider the “specific evidence the defense had presented

during the course of trial”).

¶ 52 It was also permissible for the prosecutor to tell the jury that it

must base its determination of guilt “on the evidence and the

reasonable inferences therefrom.” See People v. Walters, 148 P.3d

331, 334 (Colo. App. 2006) (“During closing argument, a prosecutor

has wide latitude and may refer to the strength and significance of

25
the evidence, conflicting evidence, and reasonable inferences that

may be drawn from the evidence.”); see also People v. Bertrand,

2014 COA 142, ¶ 15, 342 P.3d 582, 585 (“Jurors must rely on the

evidence presented at trial and their own common sense to

determine the question of guilt.”).

¶ 53 Thus, the court did not err by not sua sponte striking the

prosecutor’s comments on the lack of evidence supporting Morris’s

theory of defense.

III. Disposition

¶ 54 The judgment is affirmed.

JUDGE DUNN and JUDGE KUHN concur.

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