Peo v. Shewfelt

22CA0139 Peo v Shewfelt 03-27-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0139
Eagle County District Court No. 20CR13
Honorable Paul R. Dunkelman, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Curtis Dean Shewfelt,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE YUN
J. Jones and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 27, 2025

Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Curtis Dean Shewfelt appeals the judgment of conviction

entered on jury verdicts finding him guilty of possession with intent

to distribute heroin and conspiracy to distribute heroin. We affirm

the judgment.

I. Background

¶2 Early one morning, police officers received a report of a pickup

truck swerving in and out of its lane on the highway. Holiday

Sanchez was driving the truck, with Shewfelt in the front passenger

seat. An officer spotted the vehicle and attempted to initiate a

traffic stop, but Sanchez did not pull over. The officer pursued the

truck until it crashed. After the crash, Sanchez attempted to flee

on foot but was captured. Meanwhile, Shewfelt remained inside the

truck and cooperated with the police.

¶3 Police officers found drug paraphernalia, a little over half an

ounce of heroin, and two cell phones in the truck. Detectives later

extracted text messages from one of the phones and determined

that the phone belonged to Shewfelt. Text messages sent by

Shewfelt suggested that he and Sanchez were on their way to

deliver “a half,” meaning half an ounce of heroin, to a buyer.

Meanwhile, text messages sent by the buyer, Samuel Fightlin,

1
suggested that he planned to resell that heroin to others upon

receiving it.

¶4 Shewfelt was charged with possession with intent to distribute

a controlled substance and conspiracy to distribute a controlled

substance. During Shewfelt’s trial, the district court admitted the

text messages that Shewfelt sent to Fightlin as admissions against

interest. But the court ruled that the messages Fightlin sent

Shewfelt could be “admitted only to give context to Mr. Shewfelt’s

[text messages] and . . . not . . . as substantive evidence.” The court

gave this limiting instruction to the jury when the statements were

admitted and again in the final jury instructions.

¶5 The jury found Shewfelt guilty as charged.

II. Analysis

¶6 Shewfelt contends that (1) there is insufficient evidence to

support the conspiracy conviction; (2) the evidence presented at

trial created a prejudicial variance and violated his right to a

unanimous verdict; (3) the district court abused its discretion by

admitting Fightlin’s text messages; (4) the district court abused its

discretion by allowing expert testimony to be presented as lay

2
opinion; and (5) the cumulative effect of these errors denied him a

fair trial.

¶7 We begin by discussing the scope of the conspiracy for which

Shewfelt was charged because it bears on nearly every issue in this

appeal. We then address and reject each of his contentions in turn.

A. The Scope of the Conspiracy Charge

¶8 Shewfelt was arrested while on his way to deliver heroin to

Fightlin, who in turn was planning on reselling the heroin to others.

The complaint alleged that “Curtis Dean Shewfelt unlawfully,

feloniously, and knowingly conspired with Holiday Sanchez, and a

person or persons to the District Attorney unknown, to sell or

distribute Heroin.”1 So the question is, was Shewfelt charged with a

conspiracy with Sanchez to deliver heroin to Fightlin or was he

charged with attempting to deliver the heroin to Fightlin as an overt

act in furtherance of a broader conspiracy among Shewfelt,

Sanchez, and Fightlin to resell the drugs to Fightlin’s customers?

1 The People were not required to prove that “a person or persons to

the District Attorney unknown” also participated in the conspiracy.
See § 16-5-202(3), C.R.S. 2024 (“Pleading in either the conjunctive
or the disjunctive shall place a defendant on notice that the
prosecution may rely on any or all of the alternatives alleged.”).

3
Shewfelt contends that he was charged with the former; the People

assert that he was charged with the latter.2 For three reasons, we

conclude that the record demonstrates that the charged conspiracy

was to deliver drugs to Fightlin and nothing further.

¶9 First, the district court and the prosecutor understood the

conspiracy to be limited in this way during the proceedings below.

For instance, while discussing Fightlin’s text messages during a

previous jury trial that ended in a mistrial, the court said the

following:

[T]he argument becomes, “That’s a conspiracy
with Fightlin.” He’s not charged with a
conspiracy for Fightlin. If that’s the evidence
as the conspiracy, that’s not a conspiracy with
Holiday Sanchez.

2 Both Shewfelt and the People seem to have taken the opposite

position before the district court. The court made a pretrial ruling
that Sanchez’s interrogation would not be admissible as co-
conspirator statements; Shewfelt, apparently understanding this
ruling to bar the admission of any statements by conspirators,
argued that Fightlin was a co-conspirator as well and therefore his
text messages should not be admitted. And, as will be further
discussed, the prosecution suggested that Fightlin was not a
conspirator.

4
The prosecutor did not object to the court’s characterization and

said that “the charge is possession with intent to distribute, and he

was distributing it to Fightlin.”

¶ 10 Second, this understanding of the conspiracy aligns with how

the trial unfolded. For example, Fightlin’s text messages were not

admitted at trial as substantive nonhearsay statements by a

co-conspirator, see CRE 801(d)(2)(E) (co-conspirator statements

during the course and in furtherance of the conspiracy are not

hearsay), but were instead admitted with a limiting instruction for a

nonsubstantive purpose, see CRE 801(c) (For a statement to be

hearsay, it must be “offered in evidence to prove the truth of the

matter asserted.”).

¶ 11 Third, the complaint charged Shewfelt with “conspir[ing] with

Holiday Sanchez, and a person or persons to the District Attorney

unknown.” (Emphasis added.) The affidavit for an arrest warrant,

which was filed shortly after the complaint, makes it clear that the

prosecutor was aware that Fightlin was the buyer at the time the

5
complaint was filed. Nevertheless, the complaint identified Sanchez

by name but did not identify Fightlin.

¶ 12 For these reasons, we conclude that Shewfelt was charged

with conspiring with Sanchez to deliver heroin to Fightlin, not with

conspiring with Fightlin to resell the heroin to others. And Fightlin

was not a co-conspirator to this conspiracy because “a mere

buyer-seller relationship, without more, does not constitute a

conspiracy to distribute a controlled substance.” People v. Lucero,

2016 COA 105, ¶ 26.

B. Sufficiency of the Evidence for the Conspiracy Conviction

¶ 13 We now turn to Shewfelt’s contention that there was

insufficient evidence of an agreement presented at trial to sustain

his conspiracy conviction.

1. Standard of Review and Applicable Law

¶ 14 We review the record de novo to determine whether the

evidence was sufficient both in quantity and quality to sustain a

conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). To

determine whether the prosecution presented sufficient evidence to

support a conviction, we consider “whether the relevant evidence,

both direct and circumstantial, when viewed as a whole and in the

6
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 doubt.” Id. (quoting

People v. Bennett, 515 P.2d 466, 469 (Colo. 1973)). In doing so, we

give the prosecution the benefit of all reasonable inferences

supported by a logical connection between the facts established and

the conclusion inferred. Id. at 1292.

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

which should decide the difficult questions of witness credibility

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

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

Brassfield, 652 P.2d 588, 592 (Colo. 1982)), and we do not sit as a

thirteenth juror to reassess witness credibility or to reweigh the

evidence presented to the jury, see Clark, 232 P.3d at 1293;

People v. Franklin, 645 P.2d 1, 4 (Colo. 1982) (“The determination of

the credibility of witnesses is a matter solely within the province of

the jury.”).

2. Discussion

¶ 16 A person commits conspiracy to distribute a controlled

substance by, as relevant here, “knowingly . . . conspir[ing] with one

7
or more other persons, to . . . sell, or distribute, a controlled

substance.” § 18-18-405(1)(a), C.R.S. 2024. Under the general

conspiracy statute, “[a] person commits conspiracy to commit a

crime if, with the intent to promote or facilitate its commission, he

agrees with another person or persons that they, or one or more of

them, will engage in conduct which constitutes a crime or an

attempt to commit a crime.” § 18-2-201(1), C.R.S. 2024; see

Lucero, ¶ 12 (applying the general conspiracy statute to the offense

of conspiracy to distribute a controlled substance).

¶ 17 “Conspiracy requires proof of a ‘real agreement, combination,

or confederation with a common design. (Mere passive cognizance

of the crime to be committed or mere negative acquiescence is not

sufficient.)’” Lucero, ¶ 13 (quoting Bates v. People, 498 P.2d 1136,

1138 (Colo. 1972)). But the agreement “need not be formal or

susceptible to direct proof, and may be, and indeed must generally

be proved circumstantially.” People v. Nelson, 539 P.2d 477, 479

(Colo. 1975) (citation omitted); see also United States v. Loveland,

8
825 F.3d 555, 561-62 (9th Cir. 2016) (The agreement “can be

explicit or tacit.”).

¶ 18 Shewfelt asserts that there was insufficient evidence of an

agreement between him and Sanchez to sell or distribute heroin.3

But the jury was presented evidence that

• Sanchez was driving Shewfelt to Fightlin in the early

morning;

• before they left, Shewfelt informed Fightlin that he was

going to “bring a half,” which the prosecution’s expert

explained meant that Shewfelt was going to bring Fightlin

half an ounce of heroin;

• a little over half an ounce of heroin, along with various drug

distribution paraphernalia, was found in the truck;

• unused tinfoil, which the prosecution’s expert testified is

commonly used to distribute or smoke heroin, was found in

Sanchez’s purse, and the heroin was discovered under the

driver’s seat that Sanchez had occupied;

3 Shewfelt also argues that there was no evidence of an agreement

between him and Fightlin. But as we have already discussed, supra
Part II.A, Fightlin was not a conspirator in the charged conspiracy.

9
• Shewfelt told police officers that the heroin belonged to

Sanchez; and

• Sanchez attempted to elude the police when they tried to

initiate a traffic stop and later tried to flee the scene on foot

after crashing the truck.

¶ 19 Shewfelt argues that this evidence only establishes Sanchez’s

presence and that “[m]ere presence does not amount to sufficient

independent evidence to support the existence of the conspiracy.”

People v. Braly, 532 P.2d 325, 328 (Colo. 1975), overruled on other

grounds by People v. Montoya, 753 P.2d 729 (Colo. 1988). We

disagree. Sanchez was not “merely present”; she was actively

involved by driving Shewfelt to deliver heroin to Fightlin. See United

States v. Herrera, 526 F. App’x 823, 826-27 (10th Cir. 2013) (The

fact the defendant was driving drug dealers to a drug deal “allowed

the jury to infer that [the] [d]efendant knowledgeably associated

himself with the drug deal and facilitated its success.”). Moreover,

Sanchez attempted to elude the police and fled from the truck after

crashing, which could indicate her participation in and

consciousness of guilt about the conspiracy. See People v. Gee,

2015 COA 151, ¶ 26 (“Evidence of flight . . . suggests a guilty mind,

10
and ‘[f]rom a guilty mind, guilt itself may be inferred.’” (quoting

People v. Summitt, 132 P.3d 320, 324 (Colo. 2006))) (second

alteration in original).

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

prosecution, we conclude that a reasonable jury could infer an

agreement between Shewfelt and Sanchez to deliver heroin to

Fightlin. See People v. Randell, 2012 COA 108, ¶ 45 (conspiracy

agreements may be inferred from co-conspirators’ actions); see also

People v. Robinson, 226 P.3d 1145, 1155 (Colo. App. 2009)

(“Because of the ‘covert and secretive nature of the offense,’ most

evidence supporting a conspiracy will be circumstantial.”) (citation

omitted). Accordingly, the evidence was sufficient to sustain

Shewfelt’s conspiracy conviction.

C. Simple Variance and Unanimity for the Conspiracy Conviction

¶ 21 Shewfelt next contends that the evidence presented at trial

established a conspiracy different from the one charged in the

complaint. He asserts that this resulted in a prejudicial variance

11
and violated his right to a unanimous verdict on the conspiracy

charge. We disagree.

1. Standard of Review and Applicable Law

¶ 22 We review de novo whether a variance occurred, People v. Rail,

2016 COA 24, ¶ 48, aff’d on other grounds, 2019 CO 99, and

whether the district court erred by failing to give a modified

unanimity instruction, People v. Hines, 2021 COA 45, ¶ 48.

Shewfelt did not preserve these arguments, so we will only reverse if

there was plain error. See People v. Smith, 2018 CO 33, ¶¶ 22-24.

“[P]lain error occurs when there is (1) an error, (2) that is obvious,

and (3) that so undermines the fundamental fairness of the trial

itself as to cast serious doubt on the reliability of the judgment of

conviction.” Cardman v. People, 2019 CO 73, ¶ 19.

¶ 23 There are two types of variances, Campbell v. People, 2020 CO

49, ¶ 45, but Shewfelt alleges only one — a simple variance —

occurred here. A simple variance “occurs when the evidence

presented at trial proves facts materially different from those alleged

in the charging document.” Id. (quoting Smith, ¶ 25). Such a

variance generally will not require reversal as long as the proof on

12
which the conviction is based corresponds to an offense clearly set

out in the charging instrument. Id.

¶ 24 Additionally, the district court has “a duty to correctly instruct

juries on all matters of law.” Day v. Johnson, 255 P.3d 1064, 1067

(Colo. 2011). In Colorado, a defendant has a statutory right to a

unanimous jury verdict. § 16-10-108, C.R.S. 2024; Crim. P.

23(a)(8); Crim. P. 31(a)(3); People v. Linares-Guzman, 195 P.3d

1130, 1134 (Colo. App. 2008). “Unanimity means only that each

juror agrees that each element of the crime charged has been

proved to that juror’s satisfaction beyond a reasonable doubt.”

Linares-Guzman, 195 P.3d at 1134; see People v. Lewis, 710 P.2d

1110, 1116 (Colo. App. 1985).

¶ 25 “Generally, jurors need not agree about the evidence or theory

by which a particular element is established . . . .” People v. Vigil,

251 P.3d 442, 447 (Colo. App. 2010); see People v. Dunlap, 124 P.3d

780, 815 (Colo. App. 2004) (the defendant was not deprived of his

right to a unanimous verdict even though the theft instruction

included both the “without authorization” and “threat and

deception” theories). But when the prosecution presents evidence

of multiple distinct acts that could constitute the charged offense

13
and the jury has a reasonable likelihood of disagreeing over which

act was committed, the district court must either (1) require the

prosecution to elect the transaction on which it relies for the

conviction or (2) provide a special instruction that the jury must

unanimously agree that the defendant committed the same act or

all of the acts. People v. Archuleta, 2020 CO 63M, ¶¶ 21-22; Hines,

¶ 50.

2. Discussion

¶ 26 Shewfelt argues that the People pivoted midtrial from

attempting to prove a conspiracy between Shewfelt and Sanchez to

“focusing on Fightlin and Shewfelt’s text messages to prove Fightlin

as the co-conspirator.” This change, according to Shewfelt, resulted

in a prejudicial variance and, because the district court did not give

a modified unanimity instruction, allowed the jury to return a guilty

verdict that may not have been unanimous as to whether he

conspired with Sanchez or with Fightlin. We reject these arguments

because no substantive evidence of a conspiracy between Fightlin

and Shewfelt was admitted at trial, and the prosecution did not

14
argue that such a conspiracy existed and could form the basis of a

guilty verdict.4

¶ 27 As Shewfelt notes, “[T]he prosecution did not present evidence

[at trial] of an agreement to distribute drugs distinct from the

evidence of an alleged agreement to complete any underlying drug

deal (i.e., a drug deal beyond any alleged deal between Shewfelt and

Fightlin).” This is because the text messages that Fightlin sent

Shewfelt — the only evidence of a broader conspiracy between

Shewfelt and Fightlin — were, per the district court’s limiting

instructions, “admitted only to give context to Mr. Shewfelt’s

statements and [were] not . . . admitted as substantive evidence.”

We presume that the jury followed these limiting instructions and

did not consider the buyer’s text messages as substantive evidence.

4 On appeal, the People assert that “Fightlin was alleged to be part

of this conspiracy” and that the prosecutor presented evidence at
trial demonstrating a conspiracy between Shewfelt and Fightlin.
After reviewing the record de novo, we disagree. See People v.
Curren, 228 P.3d 253, 257 (Colo. App. 2009) (“Because a record on
appeal speaks for itself, an appellate court may accept, but is not
bound by, the concessions of counsel regarding the record’s
contents or inferences drawn therefrom.”).

15
See People v. Snelling, 2022 COA 116M, ¶ 22 (“[A]bsent evidence to

the contrary, we presume that jurors follow a court’s instructions.”).

¶ 28 And, contrary to Shewfelt’s assertions, the prosecutor did not

argue during closing statements that the jury could convict based

on a conspiracy between Shewfelt and Fightlin. Instead, the

prosecutor told the jury that it had “heard evidence that

Ms. Sanchez and Mr. Shewfelt were driving together with drugs in

the car and with a plan to meet Mr. Fightlin.” (Emphasis added.)

The prosecutor only referenced the text messages Shewfelt sent to

Fightlin in the context of a plan between Shewfelt and Sanchez to

sell Fightlin drugs. Notably, the prosecutor did not mention any of

the text messages sent by Fightlin to Shewfelt and did not suggest

there was a plan for Fightlin to redistribute the drugs received from

Shewfelt.

¶ 29 During rebuttal closing, the prosecutor did make a somewhat

inartful statement that, if read in isolation, could suggest that

Fightlin was a co-conspirator:

Who are the other people to show that the
defendant is guilty of this charge [of
conspiracy?] Holiday Sanchez is one of them.
She was present with Mr. Shewfelt. She drove
his vehicle. . . . It’s the other individual — we

16
know who that is. Look at those text
messages.

But the prosecutor immediately went on to clarify that he was

referring to the text messages with “the other individual” (Fightlin)

because “those text messages, they show the overt act towards

delivering those drugs.” (Emphasis added.) There was again no

reference during rebuttal closing to a conspiracy between Shewfelt

and Fightlin to redistribute drugs.

¶ 30 In sum, there was no substantive evidence of a conspiracy

between Fightlin and Shewfelt admitted during trial, and the

prosecution did not argue that any such conspiracy existed.

Accordingly, we conclude that no variance occurred and the district

court was not required to give the jury a modified unanimity

instruction. See Archuleta, ¶¶ 21-22.

D. Limited Admission of the Text Messages

¶ 31 Shewfelt contends that the district court reversibly erred by

admitting the text messages that Fightlin sent Shewfelt.

Specifically, he argues that the text messages were inadmissible

because they (1) were not authenticated as belonging to Fightlin;

17
(2) contained hearsay; and (3) were irrelevant and risked unfair

prejudice and misleading the jury. We are not persuaded.

1. Standard of Review

¶ 32 We review evidentiary rulings for an abuse of discretion.

People v. Abad, 2021 COA 6, ¶ 8. A court abuses its discretion

when its ruling is manifestly arbitrary, unreasonable, or unfair or

misapplies the law. Id.

2. Authentication

¶ 33 We first address Shewfelt’s argument that the district court

abused its discretion by admitting the text messages because

Fightlin was not shown to be the person on the other side of the

text messages.

¶ 34 The requirement of authentication as a condition precedent to

admissibility “is satisfied by evidence sufficient to support a finding

that the matter in question is what its proponent claims.” CRE

901(a). The burden to authenticate “‘is not high — only a prima

facie showing is required,’ and a ‘district court’s role is to serve as

gatekeeper in assessing whether the proponent has offered a

satisfactory foundation from which the jury could reasonably find

that the evidence is authentic.’” People v. Glover, 2015 COA 16,

18
¶ 13 (citation omitted). Once this prima facie burden is met,

authenticity becomes a question for the jury. Gonzales v. People,

2020 CO 71, ¶ 6.

¶ 35 Shewfelt does not dispute that the text messages were

extracted from one of the cell phones retrieved from his truck, nor

does he argue that there were authentication issues created by the

extraction process. Indeed, the prosecution’s expert witness who

performed the extraction testified about how he extracted the data

from the cell phone and all the ways it was associated with

Shewfelt. This testimony satisfied CRE 901 for Shewfelt’s

messages. See People v. Hamilton, 2019 COA 101, ¶ 36 (“The

proponent may authenticate electronically generated printouts

through the testimony of a person with personal knowledge of how

the printouts were generated and that they are what they are

claimed to be.”).

¶ 36 Nevertheless, relying on People v. Heisler, 2017 COA 58,

Shewfelt contends that the prosecution was required to prove that

Fightlin was the person sending messages to Shewfelt for those text

messages to be admissible. But the text messages were “admitted

only to give context to Mr. Shewfelt’s statements and [were] not . . .

19
admitted as substantive evidence,” and the district court further

instructed the jury that “it has not been conclusively shown that

Mr. Fightlin was the other texting party.” Heisler does not apply to

messages admitted under these circumstances. See Abad, ¶¶ 45,

65 (concluding the district court did not abuse its discretion by

finding that cell phone records including “statements by other

unknown individuals engaging in a chat conversation with” the

defendant satisfied Rule 901(a)); Glover, ¶¶ 41-42 (requiring “the

prosecution to prove that the [Facebook] account belonged to [the]

defendant and that [the] defendant authored the messages in the

printout,” but not imposing the same requirement for “statements

made by others in the records” that “were admitted to give context

to [the] defendant’s statements”); see also People v. Arnold, 826 P.2d

365, 366 (Colo. App. 1991) (“[R]eliability or truth is not at issue”

with statements “offered for the sole and limited purpose of putting

the responses of the defendant in context and making them

20
understandable to the jury, and not for the truth of their content”;

instead, “[t]he only pertinent fact is that they were made.”).

¶ 37 Accordingly, the district court did not abuse its discretion by

admitting the text messages allegedly sent by Fightlin as

nonsubstantive evidence with limiting instructions.

3. Hearsay

¶ 38 We next turn to Shewfelt’s argument that the text messages

were inadmissible hearsay.

¶ 39 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). But “statements

offered for other purposes — such as showing the statement’s effect

on the listener or to give context to a defendant’s statements — are

not offered for their truth and are not hearsay.” Abad, ¶ 52.

¶ 40 Shewfelt argues that the text messages from Fightlin were

inadmissible hearsay because “[t]he prosecution admitted Fightlin’s

statements for the truth of the matter — to establish Fightlin owned

the phone corresponding with Shewfelt, signifying a relationship

and an agreement to sell or distribute heroin, which was necessary

to prove the conspiracy count.” Moreover, he contends that the

21
People relied on Fightlin’s text messages for their truth because “the

only actual evidence of anything possibly resembling an agreement

was the messages between Shewfelt” and Fightlin.5

¶ 41 But as we have already discussed, there was sufficient

evidence to support a conspiracy conviction between Shewfelt and

Sanchez, see supra Part II.B, and the People did not argue that

there was a conspiracy between Shewfelt and Fightlin, see supra

Part II.C. Thus, Fightlin’s text messages were not admitted or relied

on for their truth, and we cannot conclude that the district court

abused its discretion by admitting these messages for the limited

nonhearsay purpose of giving context to Shewfelt’s own statements.

4. Relevancy and Prejudice

¶ 42 Finally, Shewfelt contends that the text messages should not

have been admitted because they were irrelevant if they could not

5 In a footnote, Shewfelt also contends that “[i]t is also likely that

the statements are hearsay within hearsay because [the]
Detective . . . created the exhibit by using Microsoft Word and
typing the statements from a Cellebrite report.” But he does not
develop this contention further in his opening brief, so we will not
consider it. See People v. Liggett, 2021 COA 51, ¶ 53, aff’d, 2023
CO 22. Nor will we consider his related argument, raised for the
first time in his reply brief, that the text messages were
inadmissible under the best evidence rule. See People v. Owens,
2024 CO 10, ¶ 90.

22
be authenticated as sent by Fightlin, and they risked misleading the

jury by introducing a different conspiracy.

¶ 43 Evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of

the action more probable or less probable than it would be without

the evidence.” CRE 401. But relevant evidence may be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice. CRE 403.

¶ 44 The balancing test under Rule 403 strongly favors the

admission of evidence. Masters v. People, 58 P.3d 979, 1001 (Colo.

2002). By requiring that the probative value of the evidence be

“substantially outweighed” by the danger of unfair prejudice, “the

rule makes clear that the need for exclusion must be great.” Id.

Thus, when reviewing a district court’s exercise of discretion under

Rule 403, an appellate court must afford the evidence the

maximum probative value attributable by a reasonable fact finder

and the minimum unfair prejudice to be reasonably expected.

People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995).

¶ 45 Shewfelt’s argument that the text messages were irrelevant

relies on the premise that they were introduced in order to prove a

23
conspiracy between Shewfelt and Fightlin. We have already rejected

that premise. See supra Part II.C. The text messages sent by

Fightlin were relevant for the limited purpose they were admitted

for: to give context to the messages that Shewfelt sent. And the

messages that Shewfelt sent were highly relevant to prove both the

underlying possession with intent to distribute charge and the

conspiracy between Shewfelt and Sanchez because they

demonstrated that Shewfelt was travelling with the drugs to provide

them to Fightlin.

¶ 46 Turning to prejudice, we acknowledge that Fightlin’s text

messages posed a risk of confusing the jury by introducing a

second conspiracy. However, the district court mitigated this

prejudice by admitting the messages as nonsubstantive evidence

and instructing the jury accordingly both at the time the messages

were introduced and in the final jury instructions. Given that we

assume the jury follows the court’s instructions, Snelling, ¶ 22, and

giving the text messages the maximum probative value and the

minimum unfair prejudice that could reasonably be expected,

Gibbens, 905 P.2d at 607, we cannot conclude that the probative

value of the messages is substantially outweighed by the risk of

24
unfair prejudice or confusion. Accordingly, the court did not err by

admitting the text messages.

E. Lay Witness Testimony

¶ 47 Shewfelt contends that the district court plainly erred by

allowing two police officers to present expert testimony under the

guise of lay opinion testimony. We discern no basis for reversal.

1. The Testimony

¶ 48 The first officer testified about his search of Shewfelt’s truck

and made the following statements:

• The officer “came across some crumpled tinfoil with burn

marks on it, which . . . typically coincides with illicit drug

use.”

• The officer found “a glass pipe in a black bag, which is

consistent with illicit drug use. There was residue inside

the pipe.”

• There was “a can of butane gas. Typically, butane gas can

be used to heat drugs for consumption.”

• There were three round containers with a brown substance

in them, and the officer “observed [the substance] to be

consistent with heroin.”

25
• Having multiple containers was, based on the officer’s

“training and experience,” not consistent with personal drug

use. And the “amounts in the containers seemed like a

larger amount than what [the officer had] seen before in

terms of training and experience for personal use.”

• There was a “dentist’s picking tool.” Because the tool “had

burn marks on it,” it seemed similar to tools the officer had

encountered in other situations that were “used to handle

drugs, whether to distribute drugs for consumption or

distribution.”

Shewfelt’s counsel only objected to the statement about the amount

of drugs not being consistent with personal use, but he withdrew

that objection after a bench conference.

¶ 49 The second officer testified that he also examined the round

containers from Shewfelt’s truck and saw a substance that was

“consistent in appearance with what [he had] seen black tar heroin

26
to look like.” Shewfelt’s counsel did not object to this statement

either.

¶ 50 The two officers were not offered as expert witnesses.

2. Standard of Review and Applicable Law

¶ 51 We review a district court’s evidentiary decision for abuse of

discretion. Venalonzo v. People, 2017 CO 9, ¶ 15. Shewfelt’s

counsel withdrew his only objection to one of the challenged

statements, so we review for plain error. See Hagos v. People, 2012

CO 63, ¶ 14.6 As discussed above, a plain error must so undermine

the fundamental fairness of the trial itself as to cast serious doubt

on the reliability of the judgment of conviction. Cardman, ¶ 19.

¶ 52 CRE 701 defines the scope of lay witness opinion testimony.

Under Rule 701, lay witness testimony in the form of opinions or

inferences must be “(a) rationally based on the perception of the

witness, (b) helpful to a clear understanding of the witness’

testimony or the determination of a fact in issue, and (c) not based

6 The People contend that Shewfelt’s counsel’s withdrawal of his

objection constitutes a waiver as to the objected-to statement, and
therefore we should not review it. We need not resolve this
contention because allowing the statement was not plain error.

27
on scientific, technical, or other specialized knowledge within the

scope of [CRE] 702.”

¶ 53 Rule 702, on the other hand, concerns the admissibility of

expert testimony. Under this rule, “[i]f scientific, technical, or other

specialized knowledge will assist the trier of fact to understand the

evidence or to determine a fact in issue, a witness qualified as an

expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.” CRE 702.

¶ 54 The critical factor in distinguishing between lay and expert

opinion testimony is the basis for the witness’s opinion. People v.

Dominguez, 2019 COA 78, ¶ 40. Expert testimony is that which

goes beyond the realm of common experience and requires

experience, skills, or knowledge that the ordinary person would not

have. Venalonzo, ¶ 22.

3. Discussion

¶ 55 Shewfelt contends that each of the above statements

constituted improperly admitted lay testimony. The People argue

that the testimony about drug paraphernalia fell within an ordinary

person’s knowledge or experience and was therefore not expert

testimony, but the People concede that “testimony identifying the

28
substance as heroin or about personal use amounts . . . appears to

have crossed the line into expert testimony.”

¶ 56 To start, we agree with the People that, at the very least, the

testimony that a glass pipe with residue and butane gas are often

associated with drug use did not go beyond the realm of common

experience that an ordinary person would possess. See id.;

People v. Veren, 140 P.3d 131, 139 (Colo. App. 2005) (“We recognize

that certain basic information about drugs may properly fall within

the scope of lay opinion testimony.”). It is common knowledge that

pipes and lighters can and often are used to smoke illegal

substances. Accordingly, the district court did not abuse its

discretion by allowing this testimony.

¶ 57 We further conclude that, even assuming that all of the

remaining statements were improperly admitted lay testimony,

there is no plain error because the statements were cumulative of

properly admitted expert testimony. See People v. Douglas, 2015

COA 155, ¶ 41. After the two police officers testified, the

prosecution presented two expert witnesses. The first expert was

tendered and accepted as “an expert in the area of drug

identification and analysis.” She testified that she performed a

29
laboratory analysis on the substance found in Shewfelt’s truck and

was “able to identify that as heroin.” The second expert was

endorsed as “an expert in the area of narcotics, drug enforcement

and investigations.” He testified that

• the heroin being in multiple separate containers indicated a

plan to distribute;

• “heroin is sold on the street usually on the point or the

tenth of a gram, so” a typical drug user would “use a few

tenths a day”;

• heroin is commonly sold or distributed in tinfoil, and it is

“very common” for heroin to be smoked off of tinfoil; and

• “[a]nything with burn marks would be suspicious” for drug

usage.

¶ 58 Thus, the two experts’ testimony established that the

substance was heroin; the amount of heroin and the way it was

packaged indicated distribution as opposed to personal use; tinfoil

is used both to distribute and to smoke heroin; and burn marks,

such as on the dentist’s pick or tinfoil, are associated with drug

usage. The two officers’ admitted lay statements were cumulative of

30
this properly admitted expert testimony. Therefore, there is no

plain error. See id.

F. Cumulative Error

¶ 59 Shewfelt contends that the cumulative effect of the alleged

errors in his trial mandates reversal. We are not persuaded.

¶ 60 “The doctrine of cumulative error requires that numerous

errors be committed, not merely alleged.” People v. Conyac, 2014

COA 8M, ¶ 152. Under the doctrine, although an individual error,

when viewed in isolation, may be harmless, reversal is required

when the cumulative effect of multiple errors and defects

substantially affected the fairness of the trial or the integrity of the

factfinding process. Howard-Walker v. People, 2019 CO 69, ¶ 24.

¶ 61 We have assumed that five statements made by police officer

witnesses were improper expert testimony. However, we concluded

that the admission of each statement, individually, did not

constitute plain error because each was cumulative of properly

admitted expert testimony. For similar reasons, we now conclude

that these five statements collectively did not substantially impact

the fairness of the trial or the integrity of the factfinding process, as

there was other properly admitted expert testimony that supported

31
the same statements and the jury was instructed that the “number

of witnesses testifying for or against a certain fact does not, by

itself, prove or disprove that fact.” See id.

III. Disposition

¶ 62 The judgment is affirmed.

JUDGE J. JONES and JUDGE BROWN concur.

32