Peo v. Dalton

19CA0549 Peo v Dalton 10-21-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 19CA0549

Adams County District Court No. 17CR579

Honorable Tomee Crespin, Judge

Honorable Donald S. Quick, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Marlow Lee Dalton,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division III

Opinion by JUDGE LIPINSKY

Furman and Brown, JJ., concur

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

Announced October 21, 2021

Philip J. Weiser, Attorney General, Paul E. Koehler, First Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

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

Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Marlow Lee Dalton appeals his judgment of conviction for

possession with intent to manufacture or distribute a controlled

substance and possession of a controlled substance. We affirm his

conviction for possession with intent to manufacture or distribute

but vacate his conviction and sentence for possession. For this

reason, we remand the case for resentencing on Dalton’s conviction

for possession with intent to manufacture or distribute.

I. Background

¶ 2

Deputies from the Adams County Sheriff’s Office responded to

a report of a disturbance at Dalton’s residence. When the deputies

arrived and announced themselves, Dalton responded from inside

the residence that “he was tied up inside, that he had been in a

shoot out inside of his home[,] and that . . . his legs were

broken . . . .” In response to Dalton’s description of the situation,

the officers said they would forcibly enter the residence to help him.

Dalton agreed they could enter. Inside the residence, the deputies

saw swords and bullets, which caused them concern that Dalton

might be armed.

¶ 3

The deputies found Dalton hiding inside a closet. Dalton, who

appeared to be uninjured, became verbally combative with the

2

deputies. After he swung a crutch at one of them, the deputies

subdued Dalton, handcuffed him, and patted him down for

weapons. They did not find any weapons during the pat-down. (As

noted below, Dalton contends that the search involved more than a

pat-down, and that the deputies also pulled out his pockets.) The

deputies did not arrest him. But, because they thought Dalton

“was possibly hallucinating,” they took him to a hospital, where he

was placed on a mental health hold.

¶ 4

Hospital staff asked Dalton to remove his clothing and put on

a hospital gown. A hospital security officer placed Dalton’s clothing

inside a bag, which the officer stored in a locker. The locker was

located in an area near the nurse’s station where access was

restricted to hospital staff.

¶ 5

The security officer later returned to the locker to search

Dalton’s clothes to “[m]ake sure there [were] no weapons or [illicit]

drugs or anything like that.” When he unrolled Dalton’s pants, the

security officer found a “four by six zip-lock bag that had a white

substance in it,” which the officer suspected was

methamphetamine; “several other bags that had [similar] residue”;

“another bag that had very small bags”; about $180 in cash; and

3

what he suspected was marijuana. The security officer called his

supervising officer, who photographed the items and called the

police.

¶ 6

The police officers collected the items and submitted the white

substance to a laboratory, which determined that the large bag held

a substance containing 25.12 grams of methamphetamine and that

two of the smaller bags held a substance containing 6.02 grams

and 0.74 grams of methamphetamine, respectively. Dalton was

arrested several months after his discharge from the hospital and

charged with one count of possession with intent to manufacture or

distribute a controlled substance and one count of possession of a

controlled substance.

¶ 7

At trial, Dalton denied knowledge or ownership of the drugs.

He maintained that he did not know the source of the

methamphetamine or why it was found in his pants.

¶ 8

The jury found him guilty on both counts. The trial court

entered a judgment of conviction on the two counts and sentenced

him to three years of probation on each count, with the sentences

running concurrently.

4

II. Discussion

¶ 9

Dalton raises six principal issues on appeal. He contends that

the trial court erred by

(1) using, and allowing the prosecutor to use, improper

analogies during voir dire;

(2) allowing the prosecutor to ask Dalton whether he

disagreed with the prosecution witnesses’ version of

events or thought the prosecution witnesses were “not

being accurate” in their testimony;

(3) allowing the prosecutor to give a demonstration during

his rebuttal closing argument to “create new evidence”;

(4) denying Dalton’s motion for a mistrial based on the

prosecutor’s allegedly improper comments during closing

argument;

(5) admitting the testimony of a narcotics detective who was

familiar with the facts of the case as “cold” expert

testimony; and

(6) failing to merge Dalton’s convictions for possession with

intent to manufacture or distribute a controlled

substances and possession of a controlled substance.

5

¶ 10

Finally, Dalton argues that the alleged errors require reversal

because they cumulatively deprived him of a fair trial.

¶ 11

We conclude as follows:

(1) The trial court’s and the prosecutor’s use of analogies did

not lower the prosecution’s burden of proof or constitute

plain error requiring reversal of Dalton’s convictions.

(2) The trial court did not plainly err by allowing the

prosecutor to ask Dalton whether he disagreed with the

prosecution witnesses and whether he thought they were

“not being accurate.”

(3) The prosecutor’s demonstration during the rebuttal

closing did not “create new evidence” and, thus, the trial

court did not err by allowing it.

(4) Because Dalton cannot demonstrate prejudice resulting

from the prosecutor’s allegedly improper comments, the

trial court did not err by denying Dalton’s motion for a

mistrial based on those comments.

(5) The trial court did not plainly err by admitting the

expert’s testimony.

6

(6) The trial court plainly erred, however, by failing to merge

Dalton’s convictions because possession of a controlled

substance is a lesser included offense of possession with

intent to manufacture or distribute where, as here, the

prosecution did not demonstrate at trial that the two

offenses rested on discrete quanta of drugs.

¶ 12

In addition, in light of these conclusions, there was no

cumulative error.

¶ 13

For these reasons, we affirm Dalton’s judgment of conviction

for possession with intent to manufacture or distribute a controlled

substance but vacate his conviction and sentence for simple

possession of a controlled substance.

A. The Analogies

¶ 14

During voir dire, the trial court and the prosecutor used two

different analogies to explain the reasonable doubt standard to the

prospective jurors. In addition, the court employed a baking

analogy to explain to the jury that a criminal charge consists of

various elements. We conclude that, even assuming that the trial

court’s and the prosecutor’s analogies explaining the reasonable

doubt standard constituted error, they did not constitute plain

7

error. Further, we conclude that the trial court did not err by using

the baking analogy.

1. The Trial Court’s Home Purchase Analogy

¶ 15

In discussing the prosecution’s burden of proof, the trial court

provided the prospective jurors with a definition of reasonable

doubt that mirrored the pattern instruction:

A reasonable doubt means a doubt that’s

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.

See COLJI-Crim. B:01 (2020).

¶ 16

After reading this definition, the court said, “Yikes, that’s a lot

of words. Right? What does that mean?” The court then asked the

prospective jurors to raise their hands if they had purchased a

home. The court engaged in the following colloquy with a

prospective juror who had raised his hand:

THE COURT: You go in [what looks like your

dream home] and do an inspection. . . . When

you go over to the closet there is a crack right

in front, right on top of the door there. This is

8

the dream home. Is that going to – the crack

going to stop you from buying the house?

THE JUROR: No.

THE COURT: No. Say you walk in, we look at

the bedroom not only is there a crack there,

there is drywall on the floor. Is that going to

stop you from buying the house?

THE JUROR: No.

THE COURT: No. Who is not going to buy the

home? Yeah, some. Going in there, see the

cracks, see the drywall, you open the door and

it sticks, you have to pull it really hard to

open. Are you going to buy the home?

THE JUROR: Yes.

THE COURT: You hesitated this time.

THE JUROR: Yeah.

¶ 17

The court then turned to another prospective juror who had

indicated he had purchased a home:

THE COURT: All right. You’re hesitating,

you’re not going to buy the house?

THE JUROR: Depending on the inspection of

the foundation.

THE COURT: It’s a matter of importance to

yourself, yes? You’re hesitating.

THE JUROR: Correct.

THE COURT: That’s reasonable doubt. You

use it every[ ]day you just don’t know it. All

9

right. We’re lawyers, we put fancy words, put

them all together, right? That’s reasonable

doubt, you use it every[ ]day. Is it reasonable?

Is it a matter of importance to yourself, would

you hesitate to act?

¶ 18

Following this colloquy, the court asked several of the

prospective jurors whether they could “hold the prosecution to their

burden of proof.” The jurors responded affirmatively.

a. Standard of Review and Applicable Law

¶ 19

We review de novo whether the trial court accurately informed

the jury of the law. People v. Waller, 2016 COA 115, ¶ 55, 412 P.3d

866, 877. Because “the Due Process Clause mandates the

universal application of the reasonable doubt standard in criminal

prosecutions,” Johnson v. People, 2019 CO 17, ¶ 10, 436 P.3d 529,

532, “[a]n instruction that lowers the prosecution’s burden of proof

below reasonable doubt constitutes structural error and requires

automatic reversal,” id. at ¶ 8, 436 P.3d at 531. For an

unpreserved nonstructural error or an error involving a comment

that was not an “instruction,” however, we will reverse only if the

error constituted plain error. Hagos v. People, 2012 CO 63, ¶ 14,

288 P.3d 116, 120; People v. Martinez, 224 P.3d 1026, 1030 (Colo.

App. 2009) (reviewing unpreserved argument regarding trial court’s

10

comments on self-defense for plain error), aff’d on other grounds,

244 P.3d 135 (Colo. 2010).

¶ 20

Plain error is “obvious and substantial.” People v. Martinez,

2020 COA 141, ¶ 62, 486 P.3d 412, 424 (quoting Hagos, ¶ 14, 288

P.3d at 120). “To qualify as plain error, an error must generally be

so obvious that a trial judge should be able to avoid it without the

benefit of an objection.” Scott v. People, 2017 CO 16, ¶ 16, 390 P.3d

832, 835. To be considered this obvious, “the action challenged on

appeal ordinarily ‘must contravene (1) a clear statutory command;

(2) a well-settled legal principle; or (3) Colorado case law.’” Id.

(quoting People v. Pollard, 2013 COA 31M, ¶ 40, 307 P.3d 1124,

1133). An error is substantial if it “so undermined the fundamental

fairness of the trial itself so as to cast serious doubt on the

reliability of the judgment of conviction.” People v. Miller, 113 P.3d

743, 750 (Colo. 2005) (quoting People v. Sepulveda, 65 P.3d 1002,

1006 (Colo. 2003)).

¶ 21

“To determine whether a court’s illustration lowered the

prosecution’s burden of proof, in violation of a defendant’s due

process rights, and thus constitutes error, we consider the

illustration’s nature, scope, and timing.” People v. Tibbels, 2019

11

COA 175, ¶ 32, 490 P.3d 517, 524 (cert. granted June 29, 2020).

We also consider the court’s instructions to the jury as a whole. Id.

If, “[i]n the context of the entire record, . . . the trial court properly

instructed the jury on the law — even with ‘objectionable

language . . . [in] the trial court’s elaboration of the reasonable

doubt instruction’ — then there is no violation of due process.”

Johnson, ¶ 14, 436 P.3d at 533 (alterations in original) (quoting

People v. Sherman, 45 P.3d 774, 779 (Colo. App. 2001)).

b. Because the Court’s Home Purchase Analogy Did Not Lower

the Burden of Proof, Automatic Reversal Is Not Required

¶ 22

While we “acknowledge the possibility that the jury might have

viewed the concept of reasonable doubt through the lens of the

court’s” home purchase analogy, following the supreme court’s

guidance in Johnson, we conclude that the analogy did not lower

the prosecution’s burden of proof for two reasons. Tibbels, ¶ 35,

490 P.3d at 525.

¶ 23

First, as in Johnson and Tibbels, the court gave the home

purchasing analogy during voir dire. Neither the court nor the

parties referenced or used the analogy again after the jury was

selected. Id. at ¶ 37, 490 P.3d at 525.

12

¶ 24

Second, before providing the analogy and after the close of

evidence, “the court properly instructed the jury on reasonable

doubt in accordance with the Model Jury Instructions, both verbally

and in writing.” Id. at ¶ 39, 490 P.3d at 525 (“We presume that the

jury understood and followed the court’s instructions.”); Johnson,

¶ 14, 436 P.3d 533. Thus, the record reflects that the trial court

properly instructed the jury on the law. See Johnson, ¶ 14, 436

P.3d at 533.

¶ 25

For these reasons, we conclude that the trial court’s home

purchase analogy did not impermissibly lower the prosecution’s

burden of proof and does not require reversal.

¶ 26

We note that the trial court made an additional problematic

comment not addressed in Tibbels or Johnson: it told the jury that

certain of the jurors’ hesitation in responding to the house

purchase analogy was “reasonable doubt. You use it every[ ]day[,]

you just don’t know it.” But because “[f]ew decisions that people

make have the gravity of deciding whether to convict an accused

person of a crime,” saying that jurors frequently apply the

reasonable doubt standard is “simply untrue.” People v. Knobee,

13

2020 COA 7, ¶¶ 38-39, 490 P.3d 543, 549-50 (cert. granted June

29, 2020).

¶ 27

Trial courts improperly trivialize the prosecution’s burden of

proof when they compare it to an everyday or routine decision. Id.

(collecting cases). But regardless of the trial court’s statement

about everyday decisions, people only infrequently purchase a

home. Significantly, the home purchase was the only analogy the

trial court discussed with the jurors; it did not provide the jury with

an example of a truly everyday decision to attempt to explain the

concept of reasonable doubt. Cf. id. at ¶¶ 38-40, 490 P.3d at

549-50 (holding that trial court’s analogy of reasonable doubt to

“choosing a doctor ‘or whatever’” trivialized the burden of proof);

People v. Avila, 2019 COA 145, ¶¶ 42-48, 457 P.3d 771, 780-81

(analyzing trial court’s analogy likening the reasonable doubt

standard to buying produce). Thus, we conclude that the trial

court’s single, isolated comment about using reasonable doubt

“every day” in the context of the home purchase analogy also did

not impermissibly lower the prosecution’s burden of proof.

14

c. Even if the Home Purchase Analogy Lowered the Prosecution’s

Burden of Proof, Automatic Reversal Is Not Required Because

the Analogy Was Not an Instruction by the Trial Court

¶ 28

Even if the court’s home purchase analogy improperly lowered

the prosecution’s burden of proof, automatic reversal is not

required if the analogy did not constitute an “instruction.” Johnson

requires automatic reversal for instructions that lower the burden

of proof. See Johnson, ¶ 8, 436 P.3d at 531. So we next consider

whether the home purchase analogy was an instruction or merely

an illustration or example, which does not require reversal even if it

lowers the prosecution’s burden of proof. See id.; Knobee,

¶¶ 72-75, 490 P.3d at 554-55 (Dailey, J., concurring in part and

dissenting in part).

¶ 29

In Deleon v. People, 2019 CO 85, 449 P.3d 1135, the trial

court had commented to the jurors during voir dire that the

defendant had no obligation to present evidence or testimony, and

“d[id] not have to testify.” Id. at ¶ 4, 449 P.3d at 1136. But the

final instructions the trial court read to the jury did not include the

pattern no-adverse-inference instruction. Id. at ¶ 7, 449 P.3d at

1137. The supreme court held that the trial judge’s comments

during voir dire did not constitute an instruction for four reasons:

15

(1) “they were given during the early stages of the trial process”; (2)

“they were made with the purpose of determining potential juror

mindset”; (3) “they indicated that the jury would receive further

instructions later in the trial”; and (4) “when the instructions were

read prior to closing arguments, the jury was told by the judge that

the instructions were the law [it] must follow.” Id. at ¶ 15, 449 P.3d

at 1137-38. Because each of these reasons also applies to the trial

court’s home purchase analogy here, that analogy was not an

instruction.

¶ 30

First, like the trial court’s comments in Deleon, the trial court

gave the home purchase analogy during voir dire and, thus, during

“the early stages of the trial process.” Id.

¶ 31

Second, the record demonstrates that the court employed the

analogy to determine “whether the potential jurors could act

impartially and conscientiously apply the law,” rather than to

instruct the potential jurors on the law. Id. at ¶ 26, 449 P.3d at

1140. Indeed, after discussing the analogy with two of the potential

jurors, the court asked them whether they believed they could be

fair and impartial.

16

¶ 32

Third, before opening statements, the trial court announced

that it would instruct the jury on the law later in the case:

At the conclusion of the evidence I will tell you

what the rules of law are which you are to

use . . . in reaching your verdict. I will read

those rules of law to you and you will be

allowed to take them with you to the jury room

during your deliberations.

. . . .

It is my job to decide what rules of law apply to

the case. You must follow all the rules as I

explain them to you. You must not follow

some and ignore others. Even if you disagree

or do not understand the reasons for some of

the rules, you must follow them. You will then

apply these rules to the facts which you have

determined from the evidence and in this way

you will determine whether the prosecution

has proven the guilt of the Defendant beyond a

reasonable doubt.

Because the court told the jurors it had not yet instructed them on

the law, the home purchase analogy during voir dire could not have

been an instruction.

¶ 33

Fourth, before reading the jury instructions, the court again

told the jury that it “must follow the instructions” the court gave

them, and that it must reach its decision “by applying the rules” the

court provided “to the evidence presented at trial.”

17

¶ 34

Further, in addition to the factors described in Deleon, the

court did not provide the home purchase analogy to the jury in

writing, unlike the instructions the court provided following closing

arguments. This factor also supports our conclusion that the home

purchase analogy was an illustration, rather than an instruction.

See Tibbels, ¶ 38, 490 P.3d at 525.

¶ 35

Because the trial court’s home purchase analogy was not an

instruction, automatic reversal is not required, even if the analogy

lowered or trivialized the burden of proof. See Johnson, ¶ 8, 436

P.3d at 531; Knobee, ¶ 76, 490 P.3d at 554 (Dailey, J., concurring

in part and dissenting in part).

d. Even if the Trial Erred by Giving the Home Purchase Analogy,

It Was Not Plain Error

¶ 36

Although the trial court’s home purchase analogy did not

constitute structural error because it was not an instruction that

impermissibly lowered the prosecution’s burden of proof, we must

still review it for plain error. See Knobee, ¶¶ 71-72, 490 P.3d at 555

(Dailey, J., concurring in part and dissenting in part); People v.

Baca, 2015 COA 153, ¶¶ 11-13, 378 P.3d 780, 784, overruled on

other grounds by Gonzalez v. People, 2020 CO 71, 471 P.3d 1059.

18

Even assuming that the trial court erred by discussing the analogy

with the jury, such error was not obvious. Thus, we perceive no

plain error. See Scott, ¶ 18, 390 P.3d at 835.

¶ 37

Contrary to Dalton’s assertion, under the plain error analysis,

we consider whether the error was obvious at the time of the

defendant’s trial, and not at the time of appeal. People v. Hagos,

250 P.3d 596, 620 (Colo. App. 2009); see also People v. O’Connell,

134 P.3d 460, 465 (Colo. App. 2005). At the time of Dalton’s trial,

the only published Colorado appellate decisions holding that a

court erred by using, or allowing the use of, an analogy to explain

the beyond a reasonable doubt standard involved a jigsaw puzzle

analogy. See People v. Van Meter, 2018 COA 13, ¶ 31, 421 P.3d

1222, 1230; People v. Camarigg, 2017 COA 115M, ¶¶ 49-53, 488

P.3d 267, 276-77; People v. Carter, 2015 COA 24M-2, ¶¶ 58-61, 402

P.3d 480, 492.

¶ 38

And even those cases did not hold that a court could never use

or allow a puzzle analogy. For example, the division in Camarigg

noted that a puzzle analogy “may be permissible when used to

explain the difference between proof beyond all doubt and proof

beyond a reasonable doubt,” and said the analogy is only improper

19

if it trivializes the state’s burden, equates the beyond a reasonable

doubt standard to an everyday decision, or uses iconic images that

invite the jury to jump to a conclusion about a defendant’s guilt.

Camarigg, ¶¶ 43-47, 488 P.3d at 275-76. None of these cases

addressed whether other types of analogies, such as home purchase

analogies, are improper.

¶ 39

Even the division in People v. Cevallos-Acosta, which

considered a prosecutor’s use of a home purchase analogy, did not

conclude the analogy was improper. 140 P.3d 116, 123 (Colo. App.

2005). Rather, applying the plain error standard, the division

concluded that, although the prosecutor’s “definition of reasonable

doubt during voir dire did not track” the model jury instruction on

reasonable doubt, there was no plain error because the analogy did

not undermine the fundamental fairness of the trial. Id. at 124.

2. The Prosecutor’s Flag Stealing Analogy

¶ 40

The prosecutor used a different analogy to describe the

concept of reasonable doubt to the prospective jurors. He began by

pointing out the American flag behind the bench. He then engaged

in the following dialogue with a prospective juror:

20

THE PROSECUTOR: What if . . . I brought in

people to tell you that last night they saw me

break into [the presiding judge’s] office and in

her chambers, I scaled up the wall, I busted in

through the window, I took her keys to her

courtroom, I came in here, and I switched the

flag. And that flag doesn’t have fifty stars, it

doesn’t have thirteen stripes, it’s only got

twelve stripes. It’s only got forty-eight stars.

Is that in the realm of possibility?

THE JUROR: No.

THE PROSECUTOR: Do you think I could pull

that off, right? That’s something — it’s not.

But there’s some speculation, right, that

maybe that’s not the American flag . . . .

. . . .

Security here twenty-four hours, nobody tries

to do that, right? Right. And maybe I don’t get

away with that, right? But I can pose to you

some hypothetical, speculative scenario where

maybe that piece of cloth doesn’t have fifty

stars on it, right?

THE JUROR: I would count it.

THE PROSECUTOR: Right. You would want to

count it. But then you would believe beyond

all doubt, right?

THE JUROR: If I counted it and it wasn’t

accurate, yeah.

THE PROSECUTOR: Okay. But what’s our

burden?

THE JUROR: Reasonable.

21

THE PROSECUTOR: So we have to prove

beyond a reasonable doubt. So we’re not going

to give you thirteen stripes and let you count it

and measure it, we’re going to show you the

evidence and tell you it’s beyond a reasonable

doubt.

¶ 41

The prosecutor then asked the prospective jurors whether they

could “hold [the prosecution] to that standard, not one that’s a one

hundred percent or a sure thing?”

a. Standard of Review and Applicable Law

¶ 42

Because Dalton did not object to the prosecutor’s use of the

stolen flag analogy, we review for plain error. Hagos, ¶ 14, 288 P.3d

at 120.

¶ 43

A prosecutor “may not misstate the evidence or the law.” Van

Meter, ¶ 24, 421 P.3d at 1229. Although a prosecutor “may employ

rhetorical devices and engage in oratorical embellishment and

metaphorical nuance,” the prosecutor may not “induce the jury to

determine guilt on the basis of passion or prejudice, attempt to

inject irrelevant issues into the case, or accomplish some other

improper purpose,” such as lessening the state’s burden of proof.

People v. Allee, 77 P.3d 831, 837 (Colo. App. 2003). “Prosecutorial

misconduct rarely constitutes plain error,” however, Carter, ¶ 53,

22

402 P.3d at 491, especially where the record reflects that the trial

court “properly instructed the jury on the state’s burden of proof

and the definition of reasonable doubt.” People v. Sauser, 2020

COA 174, ¶ 93, ___ P.3d ___, ___.

b. Even Assuming the Trial Court Erred by Allowing the

Prosecutor to Use an Analogy to Explain Reasonable Doubt,

the Error Was Not Obvious

¶ 44

Even assuming, without deciding, that the trial court erred by

allowing the prosecutor to use the flag stealing analogy to explain

the concept of reasonable doubt, we are not persuaded that the

error was obvious and thus subject to reversal under the plain error

standard. See Carter, ¶ 58, 402 P.3d at 492.

¶ 45

As explained above, supra Part II.A.1.d, the only published

decisions disapproving of a reasonable doubt analogy announced

before Dalton’s trial involved jigsaw puzzle analogies. See Van

Meter, ¶ 31, 421 P.3d at 1230; Camarigg, ¶¶ 49-53, 488 P.3d at

276-77; Carter, ¶¶ 58-61, 402 P.3d at 492. Thus, at the time of

trial, the prosecutor’s reasonable doubt analogy did not clearly

controvert Colorado case law and was not “so obvious” that the

court should have disallowed it “without the benefit of an

objection.” Scott, ¶ 16, 390 P.3d at 835.

23

¶ 46

Although we conclude that neither the trial court’s home

purchase analogy nor the prosecutor’s flag stealing analogy requires

reversal, because analogies regarding the reasonable doubt

standard do not provide clarity to the jury and can improperly lower

the prosecution’s burden of proof, see Johnson, ¶ 13, 436 P.3d at

532-33, “[l]awyers and trial courts should avoid using analogies

when explaining the concept of reasonable doubt to a jury.”

Sauser, ¶ 88, ___ P.3d at ___.

3. The Trial Court’s Baking Analogy

¶ 47

Later during voir dire, the trial court used a baking analogy to

explain that “[e]ach of the[] [criminal] counts [has] elements of the

offense.” The elements of the offense, the court explained, “are like

a recipe for baking. . . . [E]ach . . . recipe[] ha[s] different

ingredients, that’s kind of how each of these counts work [sic].

Each of these counts [has] ingredients, or elements, to comprise the

full count.”

¶ 48

After providing this analogy, the court reviewed the elements

of each crime with which Dalton was charged. Later, when

describing the duties of a juror, the court returned to the baking

analogy: “I read to you the elements, the list, the recipe, so to

24

speak. Your job, as a juror, is to determine whether or not the

prosecution has proven each and every one of those elements.”

¶ 49

Because the trial court’s baking analogy did not concern the

reasonable doubt standard, we address it separately from the trial

court’s home purchase analogy.

¶ 50

Dalton has not provided any authorities in support of his

argument that the baking analogy was improper, other than the

authorities concerning analogies that seek to explain reasonable

doubt. Thus, we conclude that Dalton has not demonstrated that

the trial court erred by employing the baking analogy and that, even

if the court’s use of the analogy was error, the error was neither

obvious nor substantial.

¶ 51

For the above reasons, we hold that the court’s and the

prosecutor’s analogies did not constitute plain error and, thus, do

not require reversal of Dalton’s convictions.

B. The Prosecutor’s Questions Regarding Dalton’s Disagreement

with the Prosecution Witnesses’ Testimony

¶ 52

Dalton argues that certain of the prosecutor’s questions to him

during cross-examination were improper because they required him

25

to comment on the veracity of the prosecution’s witnesses. We

disagree.

1. Additional Facts

¶ 53

Dalton testified at trial. On direct examination, Dalton said

that the deputies searched him twice before transporting him to the

hospital, and that those searches were more thorough than mere

pat-downs for weapons. Dalton said that the deputies pulled out

his pockets, in which they found his wallet and a lighter, but no

methamphetamine.

¶ 54

On cross-examination, Dalton admitted that he had told the

deputies there had been a shoot-out in his house and that other

people inside the house were involved, although he claimed those

statements were “supposed to be a joke.” The prosecutor then

asked Dalton whether the officers had been lying when they

testified that Dalton was yelling from inside the house and had

claimed that his legs were broken. Defense counsel did not object

to this question.

¶ 55

After Dalton responded that he believed the deputies were

lying about “[s]ome of” the statements they attributed to him, the

prosecutor asked Dalton, “So you believe that they were lying about

26

some of the statements[?]” Defense counsel objected to the

question, and the trial court sustained the objection. The

prosecutor then asked whether Dalton “disagree[d] with some of”

the deputies’ testimony. Dalton responded affirmatively.

¶ 56

The prosecutor next turned to Dalton’s testimony regarding

the deputies’ searches of his person before he was transported to

the hospital. He asked Dalton whether “the officers were not being

truthful yesterday in their testimony” about the extensiveness of the

searches. Defense counsel objected, and the trial court sustained

the objection. The prosecutor rephrased the question, asking

Dalton whether he “disagree[d] with [the deputies’] version of

events.” Dalton responded, “Yes, I do.”

¶ 57

The prosecutor also asked Dalton whether the deputies were

“not being accurate in their statements” when they testified that

“they simply patted [him] down.” Dalton responded, “No, they’re

not.” Finally, the prosecutor asked Dalton whether he “disagree[d]

with [the deputies’] statement[s]” about the search, and Dalton said,

“I do, yes.”

27

¶ 58

During closing argument, defense counsel told the jury it

would have been impossible for the deputies to have missed

methamphetamine on Dalton’s person during their searches:

[I]t makes no sense that multiple trained law

enforcement officers executing the most basic

function that a law enforcement officer does

determining whether someone has anything

suspicious on their person would miss more

than thirty grams of methamphetamine. They

didn’t feel anything unusual in Marlow

Dalton’s pockets because there wasn’t

anything unusual in Marlow Dalton’s pockets.

They didn’t feel any methamphetamine in Mr.

Dalton’s pocket because there was no

methamphetamine in Mr. Dalton’s pockets.

¶ 59

In his rebuttal closing, the prosecutor argued that because, as

the deputies testified, they were only looking for a weapon at the

time they removed Dalton from the house, the deputies “could have

missed this methamphetamine.” The prosecutor said the jury could

not believe Dalton’s testimony to the contrary unless they believed

that the deputies “just told you a big story in order to frame”

Dalton. The prosecutor similarly said that the jurors could believe

the hospital security officer’s testimony that he “simply logg[ed] in

[Dalton’s] property and found these drugs” or the jurors could

believe that the security officer “planted them.”

28

¶ 60

The prosecutor further asserted that the jury could either

believe the deputies and the security officer or could “believe that

this is a conspiracy against Mr. Dalton. Those are the options.

There’s not a third left. There’s the reasonable outcome which

requires a verdict of guilty.” Defense counsel objected to the

statement that “[t]here’s not a third” option, and the trial court

sustained the objection.

2. Standard of Review and Applicable Law

¶ 61

We need not consider Dalton’s arguments regarding the

prosecutor’s questions to which the court sustained defense

counsel’s objections. See People v. Jamison, 2018 COA 121, ¶ 37,

436 P.3d 569, 576-77 (holding that the court “need not consider”

allegedly improper comments to which defense counsel successfully

objected and requested no further relief (quoting People v. Douglas,

2012 COA 57, ¶ 65, 296 P.3d 234, 249)). Thus, we only review

Dalton’s challenges to the questions regarding whether he disagreed

with the deputies’ version of events or whether he thought the

deputies were “not being accurate” in their testimony. See id.

Because defense counsel did not object to these questions, we

review for plain error. As noted above, to establish that the trial

29

court plainly erred by allowing the questions, Dalton must

demonstrate that the error was obvious and substantial. Hagos,

¶ 18, 288 P.3d at 120.

¶ 62

In Liggett v. People, 135 P.3d 725 (Colo. 2006), the supreme

court held that questions “asking a witness to opine on the veracity

of another witness” are categorically improper because they are

“prejudicial, argumentative, and ultimately invade[] the province of

the fact-finder.” Id. at 732. The court concluded that the trial court

erred by allowing the prosecutor to ask the defendant whether he

thought another witness “was lying” or was “mistaken.” Id. at

733-34.

3. The Trial Court Did Not Plainly Err by Allowing the Prosecutor

to Ask Dalton Whether He Disagreed with the Prosecution’s

Witnesses or Thought They Were “Not Being Accurate”

¶ 63

Liggett did not address whether it is improper to ask a witness

whether he or she “disagrees” with another witness’s testimony or

believes another witness is “not being accurate.” Dalton contends

that these questions are the functional equivalent of asking a

witness whether he or she believes another witness is “mistaken”

and, thus, run afoul of Liggett.

30

¶ 64

We need not reach this issue, however, because we conclude

that the prosecutor’s questions did not undermine the fundamental

fairness of the trial and thus did not rise to the level of plain error.

These questions — whether Dalton disagreed with the deputies’

testimony or believed the deputies were “not being accurate” in their

testimony — were part of a longer line of questioning. See People v.

Herr, 868 P.2d 1121, 1124 (Colo. App. 1993) (holding that improper

questions did not undermine the fairness of the trial in part

because they were “brief” and “not repeated during the prosecutor’s

summation”). The absence of a defense objection to the two types of

questions may also demonstrate the “defense counsel’s belief that

the live argument, despite its appearance in a cold record, was not

overly damaging.” People v. Rodriguez, 794 P.2d 965, 972 (Colo.

1990) (quoting Brooks v. Kemp, 762 F.2d 1383, 1397 n.19 (11th

Cir. 1985)).

¶ 65

Moreover, the prosecution presented substantial evidence of

Dalton’s guilt. See People v. Gallegos, 260 P.3d 15, 28 (Colo. App.

2010) (holding that improper statement by prosecutor “was unlikely

to affect the verdict” where substantial evidence supported the

defendant’s conviction). Dalton did not deny that the security

31

officer found methamphetamine in his pants. Rather his defense

rested on his argument that he did not know the source of the

methamphetamine or why it was found in his pants. Because the

error was not substantial, it was not plain. See Scott, ¶ 16, 390

P.3d at 835.

C. The Prosecutor’s Demonstration During Rebuttal Closing

¶ 66

Dalton contends that the trial court erred by overruling his

objection to the prosecutor’s use of a demonstration during rebuttal

closing argument. We reject this contention.

1. Additional Facts

¶ 67

In his closing argument, defense counsel argued that, if the

jury believed the deputies’ testimony that they only performed a

pat-down search of Dalton for weapons, the jury could nonetheless

reasonably doubt whether Dalton possessed methamphetamine on

his person at that time. He argued that “when you pat someone

down, and there’s thirty-one grams of methamphetamine in their

pockets, you feel it. That is something you take notice of as law

enforcement officers.”

¶ 68

The prosecutor began his rebuttal closing argument by

asserting, “[I]f I place the incredible amount of methamphetamine

32

that’s as [defense counsel] would like to describe it on my person, I

don’t have a brick . . . .” The prosecutor then placed next to his

body the bag of methamphetamine that had been introduced into

evidence.

¶ 69

Defense counsel objected to this demonstration, arguing that

the evidence did not establish how the bag of methamphetamine

would appear on a specific individual’s person. The trial court

overruled the objection.

¶ 70

The prosecutor continued with the demonstration, saying to

the jurors, “As you can see [the bag isn’t] bulging from my person.

This isn’t a brick of drugs.”

2. Standard of Review and Applicable Law

¶ 71

“We review claims of prosecutorial misconduct in closing

argument for abuse of discretion.” People v. Lucas, 232 P.3d 155,

165 (Colo. App. 2009). “A trial court abuses its discretion when its

ruling is manifestly arbitrary, unreasonable, or unfair.” People v.

Palacios, 2018 COA 6M, ¶ 18, 419P.3d 1014, 1018. “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.”

People v. Shepherd, 43 P.3d 693, 697 (Colo. App. 2001).

33

3. The Trial Court Did Not Err by Overruling Dalton’s Objection

to the Prosecutor’s Demonstration

¶ 72

Dalton rests his argument regarding the prosecutor’s

demonstration on an Iowa case, State v. Pepples, 250 N.W.2d 390

(Iowa 1977). In Pepples, the prosecutor sought to demonstrate to

the jury that the defendant’s pistol would not fire unless a finger

pulled the trigger: “Keeping his finger off the trigger, [the

prosecutor] struck the weapon, which was cocked and unloaded,

against [a statute book] about six times, progressively harder each

time. The hammer did not fall.” Id. at 395. But, even in that case,

because the pistol was already in evidence, and the firearms expert

had “testified to its trigger-pull characteristics,” the court concluded

that the demonstration was “technically within the scope of the

evidence at trial . . . .” Id. at 396.

¶ 73

Dalton argues that the prosecutor’s demonstration at his trial

was more problematic than the demonstration in Pepples because,

in that case, “a firearms expert had already testified to the point

that the demonstration was meant to illustrate and, in contrast,

none of the witnesses at his trial had testified on the question of

34

whether the amount of methamphetamine in question” would

“bulg[e]” from someone’s body.

¶ 74

Yet the methamphetamine the prosecutor used in his

demonstration was already in evidence, and the deputies had

testified that they patted down Dalton for weapons and, not, as

defense counsel suggested, “for some items that seem out of place

or don’t belong.” Further, although defense counsel objected that

the information provided through the demonstration was “nowhere

in evidence,” Dalton has not provided us with any authorities

holding a demonstration based solely upon admitted evidence

“create[s] new evidence.” For these reasons, we conclude that the

trial court did not err by overruling Dalton’s objection to the

prosecutor’s demonstration.

D. The Motion for a Mistrial

¶ 75

Dalton urges us to hold that the trial court erred by denying

his motion for a mistrial based on several comments that the

prosecutor made during his rebuttal closing argument. But we will

not consider challenges to comments to which defense counsel

successfully objected and where defense counsel requested no

further relief. See People v. Douglas, 2012 COA 57, ¶ 65, 296 P.3d

35

234, 249 (declining to consider an alleged error where “defendant’s

contemporaneous objection to the [prosecutor’s] comment was

sustained, and he requested no further relief”). We find no merit to

Dalton’s argument that the trial court erred by not granting him a

mistrial.

1. Additional Facts

¶ 76

During rebuttal closing argument, defense counsel objected to

four of the prosecutor’s comments, and the trial court sustained

each objection:

 “[T]he defense, if there is one . . . .”

 “[T]he defense would like you to muddy the water . . . .”

 “You can either believe that [the hospital security officer]

was doing his job at a hospital and simply logging in

[Dalton’s] property and found these drugs, or you can

think that he planted them. You can believe that the

Thornton police did everything that they’re supposed to

do in collecting these drugs, having them tested, that the

expert did everything that she did by the book, or you

can believe that this is a conspiracy against Mr. Dalton.

Those are the options. There’s not a third left.”

36

 “Folks, you can either believe speculation, illogical

theories that are thrown to the wall. Or you can

believe —”

¶ 77

The court reminded the jurors following the closing arguments

that they are “to rely on [their] own recollection of the evidence in

this case. Closing arguments are not evidence.” After the jurors

left the courtroom, defense counsel moved for a mistrial based on

the prosecutor’s four comments, arguing that “there’s no other

portion of the trial in which some curative action can be taken.”

The trial court denied the motion, noting that the “comments made

by the prosecution . . . were brief” and “admonished by the court

immediately.” It also reminded defense counsel that the jury “was

again provided information that closing arguments were not

evidence of any type.”

2. Standard of Review and Applicable Law

¶ 78

“A mistrial is a drastic remedy and is warranted only when

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

cannot be remedied by other means.” People v. Ned, 923 P.2d 271,

274 (Colo. App. 1996). Because “the trial court is best positioned to

evaluate whether any statements made by counsel affected the

37

jury’s verdict,” Domingo-Gomez v. People, 125 P.3d 1043, 1049

(Colo. 2005), “‘the decision to grant or deny a motion for a mistrial

is directed to the sound discretion of the trial court,’ and the court’s

decision ‘will not be disturbed absent a clear showing of an abuse of

discretion and prejudice to the defendant.’” People v. Santana, 255

P.3d 1126, 1130 (Colo. 2011) (quoting Bloom v. People, 185 P.3d

797, 807 (Colo. 2008)). “To demonstrate prejudice to the accused,

there must be a reasonable possibility that extraneous information

or influence affected the verdict.” People v. Dore, 997 P.2d 1214,

1221 (Colo. App. 1999).

3. The Trial Court Did Not Err by Denying

Dalton’s Motion for a Mistrial

¶ 79

We conclude that the trial court did not abuse its discretion by

denying Dalton’s motion. While, as Dalton notes, the trial court

incorrectly stated that the “manifest necessity” standard applied to

the defense’s motion, the trial court also articulated the correct

standard for a mistrial: “[M]istrial[] is a most drastic of remedies in

a case and is to be granted only when prejudice incurred is too

substantial.” See Ned, 923 P.2d at 274. (The “manifest necessity”

standard only applies when the prosecution moves for a mistrial.

38

See United States v. Sanford, 429 U.S. 14, 16 n.2 (1976) (per

curiam); People v. Espinoza, 666 P.2d 555, 558 (Colo. 1983).)

¶ 80

Moreover, although Dalton contends on appeal that the trial

court’s curative instruction was insufficient to remedy any prejudice

resulting from the prosecutor’s comments, he does not explain how

the prosecutor’s comments prejudiced him. See Ned, 923 P.3d at

275 (“Speculation of prejudice is insufficient to warrant reversal of a

trial court’s denial of a motion for mistrial.”).

E. The Detective’s Expert Testimony

¶ 81

Dalton contends that the trial court erred by allowing the

prosecution’s expert witness on drug investigations to testify as a

“cold” (or “blind”) expert. (“A ‘blind’ or ‘cold’ expert knows little or

nothing about the facts of a particular case, often has not met the

victim, and has not performed any forensic or psychological

examination of the victim (or the defendant).” People v. Cooper,

2019 COA 21, ¶ 2, ___ P.3d ___, ___, rev’d on other grounds, 2021

CO 69, ___ P.3d ___.) We are not persuaded.

1. Additional Facts

¶ 82

The prosecution called Detective Jon Paul Matzke to testify as

an “expert in drug investigations.” The prosecution did not offer

39

Detective Matzke as a cold expert because he had “look[ed] at the

CBI reports as well as the police reports in this case,” and was thus

“aware of the amount of drugs, . . . the baggies, and that’s what he

based his previously written report off of.” The court expressed

concern if counsel “dr[e]w any correlation between the evidence in

this case” and Detective Matzke’s experience in drug investigations.

For this reason, the trial court prohibited Detective Matzke from

“testify[ing] as to his review of evidence in this case, or draw[ing]

any correlation [between] what he reviewed or knows the evidence

in this case to be . . . and his opinion.”

¶ 83

Even though the prosecutor did not offer Detective Matzke as a

cold expert, defense counsel objected to this ruling:

The prosecution doesn’t have a blind expert.

They have an expert who has knowledge of

exactly what is alleged to have occurred in this

case. So I don’t know that they can put the

cat back in the bag and simply call him a blind

expert when everyone, including himself,

knows that he’s not.

The trial court noted the objection but ruled that “there will be

absolutely no questions posed to [Detective Matzke] about his

review of the evidence in this case or his knowledge of anything in

this case.”

40

¶ 84

The prosecutor asked Detective Matzke to testify “about

generally what you would see in drug distribution and drug

possession cases . . . .” Detective Matzke said that, in cases of drug

distribution, he would typically see larger quantities of drugs than

in cases involving drugs for personal use. He also testified that

distribution cases typically involve evidence such as “small baggies”

for distributing smaller amounts of drugs, scales, and “cash to

make change . . . .”

¶ 85

After Detective Matzke had testified and the jury had been

excused for lunch, defense counsel asked the court for leave to

make a further record regarding his objection to the detective’s

testimony. Defense counsel pointed out that Detective Matzke

“referenced fourteen baggies, we have fourteen baggies in this case.

Detective Matzke knows we have fourteen baggies in this case

because he reviewed the discovery in preparation for testimony as

an expert.” He also noted that the detective “testified almost very

close to the number of the numerical value of the

methamphetamine in this case.” (It appears that defense counsel

argued that Detective Matzke had “tailored” his testimony to the

41

facts of the case, even though defense counsel did not expressly

refer to “tailoring.”)

¶ 86

In response, the trial court pointed out that defense counsel’s

“only objection [to the contents of Detective Matzke’s testimony] was

at the end of his testimony. . . . I didn’t hear any objections as the

testimony was going on concerning any fact specific or alleged fact

specific testimony in this matter.”

2. Standard of Review and Applicable Law

¶ 87

“We review a trial court’s evidentiary decisions for an abuse of

discretion.” Venalonzo v. People, 2017 CO 9, ¶ 15, 388 P.3d 868,

873 (citation omitted).

¶ 88

“Objections must be both specific and timely. ‘It does not

suffice to give trial courts a post-hoc opportunity to consider an

alleged error.’” People v. Randell, 2012 COA 108, ¶ 83, 297 P.3d

989, 1005 (citing and quoting People v. McNeely, 222 P.3d 370,

374-75 (Colo. App. 2009)). Thus, an argument “is unpreserved and

thereby forfeited (subject only to plain error review) unless it is

made in time for the trial court to avoid the alleged error.” Id.

(quoting McNeely, 222 P.3d at 374). In addition, contentions of

error raised for the first time on appeal are also unpreserved and

42

subject to plain error review. People v. Tillery, 231 P.3d 36, 44

(Colo. App. 2009), aff’d sub nom. People v. Simon, 266 P.3d 1099

(Colo. 2011).

3. The Trial Court Did Not Plainly Err by Admitting Detective

Matzke’s Expert Testimony

¶ 89

Although Dalton contends on appeal that the trial court erred

by “allowing [Detective Matzke] who was familiar with the facts of

this case to offer testimony as a ‘blind’ expert,” the prosecution did

not offer Detective Matzke as such an expert and the trial court did

not allow him to testify as one. Thus, we perceive no merit in this

claim of error.

¶ 90

Because Dalton did not timely raise his tailoring argument

challenging Detective Matzke’s testimony, we review it for plain

error. Randell, ¶ 83, 297 P.3d at 1005. As the trial court pointed

out, defense counsel did not object during the detective’s testimony

and only sought to supplement the record after the detective had

been excused. Defense counsel did not preserve this argument

because the trial court had only a post-hoc opportunity to consider

the alleged error. See id.

43

¶ 91

In addition, Dalton argued for the first time on appeal that the

trial court’s ruling regarding Detective Matzke’s testimony

improperly prevented the jury from considering “critical information

that may have led it to view Detective Matzke’s testimony in a

drastically different light,” based on a single law review article

addressing the impact of cold expert testimony on jury verdicts.

¶ 92

Because Dalton does not cite to any authority binding on a

Colorado trial court in support of these arguments, we conclude

that, even assuming the trial court erred by limiting the scope of

Detective Matzke’s testimony, such error was not plain. See Scott,

¶ 16, 390 P.3d at 835 (“To qualify as plain error, an error must

generally be so obvious that a trial judge should be able to avoid it

without the benefit of an objection.”).

F. Merger

¶ 93

Dalton contends that the trial court erred by failing to merge

his convictions for possession of a controlled substance and

possession with intent to manufacture or distribute a controlled

substance, on the grounds that the former is a lesser included

offense of the latter. We agree.

44

1. Standard of Review and Applicable Law

¶ 94

The Double Jeopardy Clauses of the United States and

Colorado Constitutions “protect an accused not only from facing a

second trial for the same offense but also from suffering multiple

punishments for the same offense.” Reyna-Abarca v. People, 2017

CO 15, ¶ 49, 390 P.3d 816, 824. “Whether convictions for different

offenses merge is a question of law that we review de novo.” Page v.

People, 2017 CO 88, ¶ 6, 402 P.3d 468, 469. We review

unpreserved double jeopardy claims for plain error. Reyna-Abarca,

¶ 5, 390 P.3d at 818.

¶ 95

If one offense is a lesser included offense of another, a

defendant may not be convicted of both. Id. at ¶ 51, 390 P.3d at

824. “[A]n 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.” Id. at

¶ 64, 390 P.3d at 826.

¶ 96

Dalton was charged with and convicted of possession with

intent to manufacture or distribute a controlled substance weighing

more than 7 but not more than 112 grams, under section

45

18-18-405(1), (2)(b)(I)(B), C.R.S. 2020, and possession of a

controlled substance weighing more than 2 grams under section

18-18-403.5(1), (2)(a), C.R.S. 2020.

¶ 97

Possession with intent to manufacture or distribute a

controlled substance under section 18-18-405(1) is a level 2 drug

felony if the person “possess[es] with intent to manufacture,

dispense, sell, or distribute” more than 7 but not more than 112

grams of methamphetamine. § 18-18-405(1), (2)(b)(I)(B).

Possession of a controlled substance is a level 4 drug felony if the

person “knowingly . . . possess[es]” methamphetamine.

§ 18-18-403.5(1), (2)(a).

¶ 98

Logically, a person cannot possess a controlled substance with

intent to manufacture or distribute that controlled substance

unless the person knowingly possesses the controlled substance.

Thus, possession of a controlled substance under section

18-18-403.5 is a lesser included offense of possession with intent to

manufacture or distribute under section 18-18-405(1) “when the

possession and distribution charges arise out of actions involving a

single ‘discrete quantum of drugs.’” People v. Davis, 2015 CO 36M,

¶ 35, 352 P.3d 950, 957.

46

2. The Trial Court Plainly Erred by Not Merging

Dalton’s Convictions

¶ 99

Whether Dalton’s conviction for possession must merge into

his conviction for possession with intent to manufacture or

distribute “hinges on whether the prosecution provided sufficient

evidence to show the existence of more than one quantum of

drugs.” Id. at ¶ 36, 352 P.3d at 958. We conclude that it did not.

¶ 100

The 34.7 grams of a substance containing methamphetamine

found in Dalton’s clothing was divided among three bags, which

held substances containing 25.12 grams, 6.02 grams, and 0.74

grams of methamphetamine, respectively. The prosecution did not

present evidence that Dalton “possessed and [intended to]

distribute[] different quanta of drugs,” much less prove this fact

beyond a reasonable doubt. Davis, ¶ 40, 352 P.3d at 958. Rather,

the prosecution’s arguments regarding both offenses rested on the

same quantities of methamphetamine.

¶ 101

Although some of the methamphetamine was bagged

separately, the prosecution did not differentiate the amounts in the

bags by different occasions, different purposes, or different potential

recipients or users of the drugs. See People v. Abiodun, 111 P.3d

47

462, 471 (Colo. 2005) (listing, nonexclusively, factors to consider in

distinguishing separate drug trafficking crimes such as

“distributions of a different quantum of drugs to different recipients,

or to the same recipient on different occasions,” and “proximity in

space and time, intervening events, and volitional departures”).

Rather, the prosecution treated the drugs as a single unit during

trial, emphasizing the amount and separate bagging of the

methamphetamine in support of its argument that Dalton

committed the offense of possession with intent to manufacture or

distribute. For example, during closing argument, the prosecutor

said

on November 19th of 2016, Marlow

Dalton . . . possessed with the intent to

distribute and/or sell methamphetamine.

. . . .

[A]s [the hospital security officer] pulled out

[Dalton’s] pants, baggies fell out. Baggies

consisting of a white crystal like substance.

It’s not just one baggy, this is the largest. . . .

There [are] two other small baggies, same

crystal like substance, for a total of three.

. . . .

[Dalton] was in possession of that

methamphetamine. Over 30 grams of

48

methamphetamine, 14 individual baggies

unused and over $180.

. . . .

That first bag [the forensic scientist] said

weighed over 25 grams. The second bag over

six. One of the questions in the jury

instructions is, Does this substance weigh

more than seven but less than 112 grams? It

absolutely does.

. . . .

Detective Matzke mentioned the bags. He

mentioned the quantity of drugs, and he

mentioned . . . cash, all signs of distribution.

Ladies and gentlemen, this is possession of

methamphetamine and Mr. Dalton had the

intent to distribute the same.

¶ 102

Based on this evidence and the prosecutor’s argument, while

the jury “might have inferred . . . that [he] possessed and [intended

to] distribute[] different quanta of drugs,” Davis, ¶ 40, 352 P.3d at

958, it alternatively could have inferred a number of other reasons

for the separate packaging. The drugs may have been separately

packaged for easier distribution or because the amount of drugs

would not fit in a particular size of bag. In arguing for Dalton’s

conviction, the prosecutor did not provide any evidence or argument

establishing that Dalton possessed a particular quantum of drugs

that he did not also intend for distribution. In fact, the prosecutor

49

argued that the evidence, specifically the cash found in Dalton’s

possession at the hospital, pointed to Dalton being a distributor

and not a simple possessor: “[Detective Matzke testified that] [t]he

average user possesses two to four grams, a few days. They’re not

going to have money because all they can think about is drugs.”

¶ 103

Moreover, it makes no difference that, as the People argue, the

jury answered “yes” to a special interrogatory on the charge of

possession with intent to manufacture or distribute. While a jury

may find a defendant guilty of an offense and a lesser included

offense, “the defendant may not be convicted of both.” Reyna-

Abarca, ¶ 51, 390 P.3d at 824. A special interrogatory regarding a

specific offense does not strip Dalton of his constitutional double

jeopardy protections.

¶ 104

For these reasons, we cannot conclude that “each legally

distinct offense has been charged with sufficient specificity to

distinguish it from other offenses . . . .” Abiodun, 111 P.3d at 471.

Thus, we hold that, by convicting Dalton of both offenses, and

sentencing him on both, the trial court obviously and substantially

violated Dalton’s “right to avoid double jeopardy in a way that so

undermined the fundamental fairness of the sentencing proceeding

50

as to cast serious doubt on the reliability” of his sentence. Davis,

¶ 41, 352 P.3d at 958. For this reason, while we affirm Dalton’s

judgment of conviction for possession with intent to manufacture or

distribute, which is supported by the jury’s verdict, we reverse

Dalton’s judgment of conviction for the lesser included offense —

possession of a controlled substance.

G. Cumulative Error

¶ 105

Because the trial court did not err, aside from not merging

Dalton’s convictions for possession with intent to manufacture or

distribute a controlled substance and simple possession, we reject

his argument that his convictions should be set aside based on

cumulative error. See People v. Thames, 2019 COA 124, ¶ 69, 467

P.3d 1181, 1194 (“[A] single error is insufficient to reverse under the

cumulative error standard.”).

III. Conclusion

¶ 106

Dalton’s judgment of conviction for possession with intent to

manufacture or distribute a controlled substance is affirmed, but

his conviction and sentence for simple possession of a controlled

substance is vacated. The case is remanded to the trial court for

51

resentencing based on his conviction for possession with intent to

manufacture or distribute a controlled substance.

JUDGE FURMAN and JUDGE BROWN concur.