v. Avila

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
September 12, 2019

2019COA145

No. 17CA1299, People v. Avila — Criminal Law; Juries —
Challenges for Cause — Compensated Employee of a Public Law
Enforcement Agency

In this appeal of a defendant’s criminal conviction, a division

of the court of appeals considers whether a prospective juror who is

employed by the Colorado Office of Prevention and Security’s

“fusion center” is a “compensated employee of a public law

enforcement agency.” The division answers “no” and, after

addressing defendant’s remaining contentions, affirms the

judgment of conviction.
COLORADO COURT OF APPEALS 2019COA145

Court of Appeals No. 17CA1299
Adams County District Court No. 16CR185
Honorable Sharon D. Holbrook, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Tina Louise Avila,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE HAWTHORNE
Taubman and Grove, JJ., concur

Announced September 12, 2019

Philip J. Weiser, Attorney General, Rebecca A. Adams, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Is a prospective juror who is employed by the Colorado Office

of Prevention and Security’s “fusion center” a “compensated

employee of a public law enforcement agency?” We answer “no,”

and after addressing the remaining contentions of defendant, Tina

Louise Avila, we affirm the judgment of conviction entered on jury

verdicts finding her guilty of possessing a controlled substance and

resisting arrest.

I. Factual Background and Procedural History

¶2 Avila was at a bar early one morning, and the staff asked her

to leave. She refused, they argued, and the staff called police. Avila

was outside the bar when police arrived. She appeared upset and

intoxicated, and told the officers about the argument. Without

prompting, Avila said, “I don’t have anything on me” and “you don’t

have shit on me.” Avila avoided making eye contact with the

officers and put her hands in her pockets numerous times, even

after being told not to do so by the officers.

¶3 One officer conducted a pat-down search of Avila, and she

became agitated, again telling the officer that she didn’t have

anything on her. When the officer reached toward Avila’s pocket,

she resisted, and the officer arrested her.

1
¶4 The arresting officer took Avila to jail, where another officer

searched her. That officer found a small piece of white paper with a

powdery substance in it. The substance was sent to the Colorado

Bureau of Investigation (CBI), where an analyst tested it and

identified it as cocaine.

¶5 The arresting officer and the analyst testified at trial for the

prosecution. The arresting officer said that he believed the white

paper was found in Avila’s bra or pocket, but he wasn’t positive

which one. The analyst said he was unable to weigh the cocaine

because it coated the inside of the plastic bag used to store it, so he

could only shake out a portion of the material to test.

¶6 The jury convicted Avila of possessing a schedule II controlled

substance and resisting arrest.

II. Sufficient Evidence Supported the Possession Conviction

¶7 Avila contends that insufficient evidence supported her

conviction for possessing a controlled substance. “Because this is a

dispositive issue,” we address it first and conclude that the evidence

was sufficient. People v. Rawson, 97 P.3d 315, 323 (Colo. App.

2004), as modified on denial of reh’g (May 6, 2004).

2
A. Standard of Review and Applicable Law

¶8 We review the evidence’s sufficiency de novo. People v. Davis,

2012 COA 56, ¶ 11.

¶9 Constitutional due process requirements prohibit a

defendant’s criminal conviction except on proof of guilt beyond a

reasonable doubt. People v. Serra, 2015 COA 130, ¶ 18. To

determine whether sufficient evidence supported a conviction, we

ask “whether the relevant evidence, both direct and circumstantial,

when viewed as a whole and in the light most favorable to the

prosecution, is substantial and sufficient to support a conclusion

by a reasonable mind that the defendant is guilty . . . beyond a

reasonable doubt.” Clark v. People, 232 P.3d 1287, 1291 (Colo.

2010) (citation omitted).

¶ 10 We must afford the prosecution the benefit of every reasonable

inference that may be fairly drawn from the evidence. Id. at 1292.

These inferences must be supported by a “logical and convincing

connection between the facts established and the conclusion

inferred.” People v. Perez, 2016 CO 12, ¶ 25. But inference may

not rest on inference, People v. Ayala, 770 P.2d 1265, 1268 (Colo.

3
1989), nor can an inference “be supported by guessing, speculation,

conjecture, or a mere modicum of relevant evidence.” Perez, ¶ 25.

¶ 11 “[I]t is unlawful for a person knowingly to possess a controlled

substance,” § 18-18-403.5(1), C.R.S. 2018, which includes cocaine.

§ 18-18-204(2)(a)(IV), C.R.S. 2018. And a jury may return a guilty

verdict “if it finds, beyond a reasonable doubt, that the defendant

knowingly possessed any quantity of a controlled substance.”

Richardson v. People, 25 P.3d 54, 58 (Colo. 2001) (citing People v.

Ceja, 904 P.2d 1308, 1310 (Colo. 1995)). Where there is “evidence

of a usable quantity,” that “alone is sufficient evidence of knowledge

to permit the case to go to a jury.” Id. But if “the quantity involved

is so minute that it amounts to only a trace, there is no basis, from

that fact alone, for any logical or reasonable inference that the

defendant had knowledgeable possession.” People v. Theel, 180

Colo. 348, 350, 505 P.2d 964, 966 (1973); see Ceja, 904 P.2d at

1311 (“Absent a usable quantity, the prosecution must present

other evidence from which a jury can reasonably infer knowledge.”).

B. Analysis

¶ 12 Avila asserts that the evidence established she only possessed

a “mere residue of cocaine,” and the prosecution didn’t present

4
sufficient additional evidence from which the jury could infer that

she knowingly possessed it.

¶ 13 The analyst testified at trial that he couldn’t weigh the

substance because it was inside “a heat sealed bag . . . with static

electricity. It was coating the inside of the bag. So I could only

shake out a little bit of the material. My report calls it a residue.”

When asked if there was enough material to adequately test it, the

analyst responded, “Oh yes, there was.” The analyst’s report,

admitted at trial, described the substance as “.5 [g]rams of white

cocaine powder substance” and “a schedule II controlled substance

residue.”

¶ 14 The record evidence doesn’t establish whether the cocaine

powder found on Avila was a usable quantity. While the analyst’s

report states the substance’s weight, the analyst said at trial that

he didn’t actually weigh it. And the substance itself isn’t in the

appellate record. But our supreme court has found as little as 0.16

grams of cocaine to be a usable quantity. People v. Stark, 691 P.2d

334, 337-39 (Colo. 1984) (“The amount of cocaine seized, while not

a large weight, was a usable quantity and not a ‘mere trace.’”)

(citation omitted).

5
¶ 15 But even if we assume the evidence didn’t establish that the

cocaine powder found on Avila was a usable quantity, other

sufficient evidence supported the jury’s finding that Avila knowingly

possessed it.

¶ 16 When officers contacted Avila, she acted evasively by refusing

to make eye contact with them and continuing to put her hand in

her pocket despite being ordered by one officer not to do so. And

she made unprompted statements that she didn’t have anything on

her. See Ceja, 904 P.2d at 1311 (“[T]he prosecution introduced

evidence that [defendant] . . . acted in an evasive manner when

confronted by the police officer.”); see also People v. Richardson, 8

P.3d 562, 564 (Colo. App. 2000) (“A reasonable fact finder could

infer that his . . . denial was motivated by his guilty knowledge of

the existence of the drug within the wallet.”), aff’d, 25 P.3d 54

(Colo. 2001). She also acted confrontationally toward the officers,

resisted one officer’s attempt to search her, and resisted arrest. See

People v. Yeadon, 2018 COA 104, ¶ 28 (sufficient evidence existed

for jury to infer that defendant knowingly possessed

methamphetamine where, in part, “[t]he evidence demonstrated

that . . . [defendant] fled from the accident” where the

6
methamphetamine was found) (cert. granted Mar. 25, 2019). From

this evidence, the jury could have inferred that Avila knowingly

possessed the cocaine powder found on her later.

¶ 17 Also, the paper wrapping holding the cocaine, described as a

“bindle” at trial, was found on Avila, and the arresting officer

testified that he thought it was either in her bra or in a pocket. The

jury could also have inferred knowing possession from the cocaine’s

location and packaging. See Richardson, 8 P.3d at 564 (“The

methamphetamine was packaged in a manner to preserve it, and it

was located in a wallet containing several documents identifying

defendant.”); see also Ceja, 904 P.2d at 1311 (“[T]he prosecution

introduced evidence that Ceja owned the fanny pack in which the

cocaine was found[.]”).

¶ 18 Viewing this evidence in the light most favorable to the

prosecution, including all reasonable inferences fairly drawn from

it, we conclude sufficient evidence supported the jury’s finding that

Avila knowingly possessed the cocaine.

7
III. The District Court Didn’t Err in Declining to Strike Prospective
Juror E.D. for Cause

¶ 19 Avila contends the district court erred in denying her

challenge for cause as to prospective juror E.D. because (1) he was

legally biased as a “compensated employee of a public law

enforcement agency” under section 16-10-103(1)(k), C.R.S. 2018;

and (2) he was actually biased. We disagree as to the first

contention and don’t address the second one.

A. Standard of Review and Applicable Law

¶ 20 We review de novo whether a prospective juror is a public law

enforcement agency’s compensated employee. People v.

Sommerfeld, 214 P.3d 570, 572 (Colo. App. 2009).

¶ 21 We agree with the People that, at trial, Avila didn’t challenge

the prospective juror for cause based on actual bias. Thus, this

challenge is waived, and we don’t address it. See Crim. P. 24(b)(2);

People v. Romero, 197 P.3d 302, 305 (Colo. App. 2008) (“The

challenge is waived, however, if it is not made before the jurors are

sworn in.”).

¶ 22 A trial court must sustain a challenge for cause to any

prospective juror who is a public law enforcement agency’s

8
compensated employee. § 16-10-103(1)(k); accord Crim. P.

24(b)(1)(XII). A public law enforcement agency is “a division or

subdivision of state or federal government that has the authority to

investigate crimes and to arrest, prosecute, or detain suspected

criminals.” People v. Bonvicini, 2016 CO 11, ¶ 11; Ma v. People, 121

P.3d 205, 210 (Colo. 2005). Numerous government agencies are

statutorily designated as public law enforcement agencies,

including “any police department, sheriff’s department, or district

attorney’s office; the office of the state attorney general; the

Colorado bureau of investigation[]; and the Colorado state patrol.”

People v. Speer, 255 P.3d 1115, 1121 (Colo. 2011).

¶ 23 But “simply because a state or federal agency holds

investigative powers or has contact with law enforcement personnel

does not render the agency a ‘public law enforcement agency’ within

the meaning of the statute.” People v. Urrutia, 893 P.2d 1338, 1345

(Colo. App. 1994). The agency’s predominant purpose or mission

must also be considered. See Speer, 255 P.3d at 1122 (“Neither [the

United States Department of Homeland Security or the

Transportation Safety Administration] has as its predominant

purpose or mission the enforcement of penal laws.”); People v.

9
Carter, 2015 COA 24M-2, ¶ 20 (“Although the [Colorado Public

Utilities Commission] has some authority to arrest and investigate a

limited assortment of criminal violations, its primary functions

involve the civil regulation of public utilities, services, and rates.”);

People v. Simon, 100 P.3d 487, 491 (Colo. App. 2004) (“[T]he

[Environmental Protection Agency] is properly characterized as an

investigatory and rulemaking body, and not a law enforcement

agency[.]”). If an agency’s law enforcement authority “is not merely

incidental to but is an integral part of its essential functions,” that

supports a conclusion that it’s a public law enforcement agency.

Sommerfeld, 214 P.3d at 573.

¶ 24 We focus on “the nature of the employing agency rather than

the specific duties of the venireman in question”; thus, “that the job

description of any particular venireman may not directly involve law

enforcement functions is not dispositive of his ability to sit.” Speer,

255 P.3d at 1120-21; see People v. Scott, 41 Colo. App. 66, 68, 583

P.2d 939, 942 (1978) (concluding that challenges for cause to a

counselor and baker employed by the Colorado State Penitentiary

should have been sustained).

10
B. Additional Facts

¶ 25 At trial, defense counsel raised her concern that prospective

juror E.D. was employed by a public law enforcement agency, and

the court conducted an in camera hearing with counsel. At the

hearing, E.D. stated that he worked for “the State Homeland

Security Fusion Center,” whose role is to provide “analytical support

to investigations throughout Colorado and law enforcement

agencies . . . across the state.” He further specified that “[i]f any

agency requests services, much like CBI, if they request a driver’s

license photo request, or any workups on individuals, they can

request it from us.” He also said that the fusion center provides

“[c]riminal background history . . . . If [an agency] want[s] us to

look at GPS data . . . we can do analysis for that. If they are doing a

high-risk warrant [and] want a law enforcement workup on an

individual to see if there [are] any dangerous things in their

criminal history, we can do [that.]” He also said his daily work

“involves taking law enforcement reports from those criminal justice

agencies, law enforcement agencies, and redirecting them to law

enforcement across the state.”

11
¶ 26 E.D. was asked if he worked with non-law enforcement

agencies, and he responded that he also worked with “emergency

medical” and “all public safety agencies.” When asked whether his

work required having “contact with criminals,” he responded that

“[w]e don’t do investigation. We do analytical support. We don’t

have an investigatory side of our office. If an agency requests

pulling background information, we can do that. We can’t initiate

an investigation or conduct investigation unless we are working

with the agency.” When asked if his agency’s role had changed over

time, he noted that an “auto theft coordination center was created

inside of our office. They look at auto theft across the State of

Colorado, along with a couple other functions. . . . [W]e are [also]

doing more strategic functions, looking at . . . drug trafficking

organizations . . . .” The court asked E.D. if his agency investigated

crimes, and he replied: “We [aren’t] lead investigators.” He then

provided an example of his work, where a police department

“wanted to have . . . support because they had cell phone pings that

they wanted mapped. They requested us to do those mappings and

link analysis. . . . So once we finished it, we handed it to [the police

department.]”

12
¶ 27 Defense counsel asked E.D. how the fusion center compared

to CBI, to which he responded,

CBI has statutory authority to conduct
investigation[s] if agencies ask. We can’t
conduct investigations. We can just support
the investigator. So if they request
background checks, driver’s license photos,
any of that, they have to request it of us. We
can give it to them. Unlike CBI, where they
can bring in CBI, conduct investigation with
them. We can’t do it without the local agency.

The court followed up by asking, “[Y]ou don’t arrest anyone,

prosecute anyone, [or] detain anyone?” E.D. responded, “Negative.”

¶ 28 Defense counsel argued that E.D. worked for a public law

enforcement agency because he primarily worked with law

enforcement officers investigating crimes, which was the agency’s

main purpose. The court disagreed, finding that E.D. and his

agency didn’t perform “any of the traditional law enforcement

functions[.]” It denied defense counsel’s request to strike E.D. for

cause. Defense counsel later exhausted her peremptory strikes.

C. Analysis

¶ 29 Avila asserts that E.D.’s employer, “[t]he Homeland Security

Fusion Center[,] is a public law enforcement agency . . . because its

primary mission is to enforce criminal laws.”

13
¶ 30 The General Assembly created the Office of Prevention and

Security (OPS) within the Colorado Division of Homeland Security

and Emergency Management (DHS). § 24-33.5-1603(2)(b), C.R.S.

2018. OPS is tasked with “[o]perating the state’s fusion center,” as

well as “[e]nhancing interagency cooperation through information

sharing” and “[d]eveloping and maintaining, through cooperation

with other tribal, state, local, regional, and federal agencies, a

standardized crisis communication and information-sharing

process.” § 24-33.5-1606(2), C.R.S. 2018.

¶ 31 The fusion center is defined as “the program administered by

[OPS] . . . that serves as the primary focal point within the state for

receiving, analyzing, gathering, and sharing threat-related

information among federal, state, local, tribal, nongovernmental,

and private sector partners.” § 24-33.5-1602(8), C.R.S. 2018.

¶ 32 We conclude that the fusion center isn’t a “public law

enforcement agency” under section 16-10-103(1)(k) because it isn’t

a “police-like division of government that has the authority to

investigate crimes and to arrest, to prosecute, or to detain

suspected criminals.” Ma, 121 P.3d at 211; see Romero, 197 P.3d

at 307 (collecting cases and noting that prior case law had found an

14
agency was not a public law enforcement agency when it “did not

have the authority to arrest, prosecute, or detain suspected

criminals, or any such authority was entirely incidental to the

agency’s essential functions”).

¶ 33 While the fusion center, as E.D. described it, provides

investigatory support to law enforcement officials, it doesn’t have

the authority to investigate crimes on its own. Any such support is

only provided after it’s requested by law enforcement officials. As to

the broader “strategic” initiatives, such as “looking at” statewide

auto theft and drug trafficking, it’s unclear whether investigations

are conducted without request. E.D. said that the fusion center

cannot “initiate an investigation or conduct investigation unless we

are working with [an] agency.” During the in camera review, the

court followed up by asking “when you say that if the agency

requests it of you to do an investigation, it sounds to me that [it’s]

just the data and the analytical support, you are not reaching

conclusions, you are giving the information to the agency for them

to reach a conclusion?” E.D. agreed.

¶ 34 So the record doesn’t support concluding that the fusion

center has the authority to investigate crimes.

15
¶ 35 The record also doesn’t support concluding that the fusion

center has the authority to “arrest, prosecute, or detain suspected

criminals.” Bonvicini, ¶ 11. E.D. denied having any authority to

arrest, prosecute, or detain anyone. See Speer, 255 P.3d at 1122

(“[T]he prospective jurors denied having any authority to detain or

make arrests. . . . Neither juror gave the slightest indication that

their employing unit prosecuted suspected criminals[.]”); People v.

Zurenko, 833 P.2d 794, 796 (Colo. App. 1991) (“While certain

personnel of DSS [the Department of Social Services] investigate

complaints of abuse, these personnel have no power to arrest or

prosecute offenders. Thus, the trial court did not err by refusing

defendant’s challenge for cause to the juror employed by DSS.”).

¶ 36 Also, the fusion center’s purpose, while somewhat related to

law enforcement, isn’t to enforce criminal laws. Instead, it “serves

as the primary focal point within the state for receiving, analyzing,

gathering, and sharing threat-related information.” § 24-33.5-

1602(8). Prospective juror E.D. said that the fusion center works

with “emergency medical” and “all public safety agencies” in

addition to law enforcement agencies. While the work he described

mostly involved assistance to law enforcement agencies, an agency

16
having “contact with law enforcement personnel” doesn’t alone

“render the agency a ‘public law enforcement agency’ within the

meaning of the statute.” Urrutia, 893 P.2d at 1345.

¶ 37 Further, the fusion center isn’t DHS’s or OPS’s “law

enforcement branch.” Ma, 121 P.3d at 212. Nor are its employees

“trained and authorized to arrest suspected criminals, to investigate

crimes, and to detain prisoners.” Id. Thus, the fusion center’s

“predominant purpose or mission” isn’t “the enforcement of penal

laws.” Speer, 255 P.3d at 1122.

¶ 38 While OPS’s manager is a statutorily designated peace officer,

§ 24-33.5-1606(1)(b), OPS and fusion center employees aren’t,

unlike CBI agents. Compare § 24-33.5-1606(1)(b) (OPS’s manager

is a designated peace officer), with § 16-2.5-113, C.R.S. 2018

(designating CBI’s director and CBI “investigation agent[s]” as peace

officers). Regardless, an agency’s employees being “classified by

statute as ‘peace officers’ while engaged in their duties is not

determinative.” Carter, ¶ 17.

¶ 39 Because we focus on the nature of the employing agency

rather than the specific duties of the prospective juror in question,

Speer, 255 P.3d at 1120-21, we conclude the fusion center isn’t a

17
public law enforcement agency, and thus the court didn’t err in

denying Avila’s challenge for cause as to prospective juror E.D.

IV. The District Court’s Reasonable Doubt Illustrations Didn’t
Violate Avila’s Due Process Rights

¶ 40 Avila contends that the district court’s reasonable doubt

illustrations during voir dire impermissibly lessened the

prosecutor’s burden of proof, violating her right to due process. We

disagree.

A. Additional Facts

¶ 41 During voir dire, the district court instructed the prospective

jurors as to the definition of reasonable doubt using an instruction

that mirrored the model jury instructions. See COLJI-Crim. E:03

(2018). The court also explained that the beyond a reasonable

doubt standard applies to every element of a charged crime. Later,

during voir dire, the court returned to reasonable doubt, describing

it as “a concept that is difficult for all of us to understand.” The

court then provided an illustration “in terms that everybody can

kind of get their head around.”

THE COURT: . . . Have you ever purchased a
home?

JUROR: Yes.

18
THE COURT: All right. If you were going to
purchase a home and you were doing the
walk-thru after you made the offer, with the
inspector, right, looking at all aspects of the
house, and you saw a little crack in the
foundation, or up in the corner of one of the
walls, what would you do?

THE JUROR: I would inquire about the crack,
why it is there.

THE COURT: . . . Exactly. In Colorado that is
common to have a few cracks here and there
with our soil, okay? If you saw a huge crack
going all the way across the slab, what would
you think, would you still want to buy the
house?

THE JUROR: No.

THE COURT: Okay. All right. That was
enough then to make you not feel comfortable
in acting in a matter of importance to yourself.
Is that fair?

THE JUROR: Yes.

....

THE COURT: . . . There is no such thing as
beyond a shadow of a doubt. It is beyond a
reasonable doubt. It is a doubt that is based
on reason, right? You could have a couple
cracks. You don’t have to know everything
about the case. None of us were there. You
told me that. None of us saw what happened.
So there is really no way to know beyond all
doubt what happened. You could still have a
reasonable doubt. There could be a few pieces
missing. They can’t be big pieces or that big
crack in the slab. Does that make sense? We

19
hold the prosecution to a high burden, but not
an unreasonable burden. Does that make
sense?

THE JUROR: Yes.

¶ 42 The court then asked another prospective juror if she

understood “reasonable doubt” and provided another illustration:

THE COURT: Are you comfortable using the
standard of beyond a reasonable doubt in
evaluating evidence?

THE JUROR: I think so. I mean, I don’t have
any experience with it, but I would say I would
be, yes.

THE COURT: Would you agree we sort of do
this all the time in our personal lives?
Everything from buying produce? How many
brown spots are too many for me to buy this
apple all the way up to the big house decision.
If it is a matter of importance to yourself. You
take a critical look at all of the surrounding
circumstances. Is that fair to say?

THE JUROR: Yes.

Avila didn’t object to the court’s illustrations.

B. Standard of Review and Applicable Law

¶ 43 We review de novo whether a jury instruction accurately

informed the jury of the law or whether, to the contrary, it

impermissibly lowered the prosecution’s burden of proof and

requires reversal. Johnson v. People, 2019 CO 17, ¶¶ 8-9.

20
¶ 44 “When reviewing an ambiguous jury instruction . . . we ask

whether there is a reasonable likelihood that the jury applied the

contested instruction in an unconstitutional manner.” Id. at ¶ 14;

see Victor v. Nebraska, 511 U.S. 1, 6 (1994). “As the Supreme

Court cautioned . . . attempts to further define reasonable doubt do

not provide clarity. Even if well-intentioned[.]” Johnson, ¶ 19; see,

e.g., Carter, ¶ 58 (“Given the case law from other jurisdictions, we

will assume, without deciding, that the trial court improperly

analogized the concept of reasonable doubt to a puzzle.”).

¶ 45 But we don’t consider the instruction in isolation. Johnson,

¶ 14. Instead, 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.” Id. (quoting People v. Sherman, 45 P.3d 774, 779 (Colo.

App. 2001)). So, when the trial court uses an illustration to explain

the concept of reasonable doubt, we consider the illustration’s

nature, scope, and timing in determining whether its use violated

due process. See People v. Villa, 240 P.3d 343, 357 (Colo. App.

2009); see also Johnson, ¶ 18 (“We note that the trial court provided

21
the instruction to the jury verbally and only once. It was not

mentioned or referenced again throughout the entirety of the

proceedings, including closing arguments.”).

C. Analysis

¶ 46 We conclude that the court’s illustrations didn’t lower the

prosecution’s burden of proof because “[i]n the context of the entire

record, the trial court properly instructed the jury on the law.”

Johnson, ¶ 16.

¶ 47 The illustrations here were limited to voir dire. Neither the

district court nor trial counsel mentioned them after the jury was

selected. Also, the court properly defined the beyond a reasonable

doubt standard for the jury in accordance with the model jury

instructions, once during voir dire, and again orally and in writing

before deliberations. Id. at ¶¶ 16-18; see also People v. Van Meter,

2018 COA 13, ¶ 33 (considering an improper analogy’s brief and

isolated use followed by a correct jury instruction on reasonable

doubt in determining whether plain error occurred). And during

closing arguments, the prosecutor and defense counsel referenced

the proper reasonable doubt definition and directed the jury to

follow it. See People v. Cevallos-Acosta, 140 P.3d 116, 124 (Colo.

22
App. 2005). The court also explained that the prosecutor must

prove every element of the charged offense beyond a reasonable

doubt. We presume the jury followed the court’s instructions.

Johnson, ¶ 14.

¶ 48 So the court’s illustrations as to reasonable doubt didn’t lower

the prosecution’s burden of proof.

V. Extraneous Information Presented to the Jury Didn’t Violate
Avila’s Due Process Right to a Fair Trial

¶ 49 Avila contends that the district court plainly erred by refusing

to declare a mistrial because two prospective jurors exposed the

jury to extraneous information about the arresting officer during

voir dire, violating her right to a fair trial. We disagree.

A. Additional Facts

¶ 50 During voir dire, the district court had the following

discussion with a prospective juror:

THE COURT: . . . [I]f I had to ask you for a
verdict right now, before you heard any
evidence, what would you have to say, guilty or
not guilty?

JUROR: I would have to say guilty.

THE COURT: Why would you say guilty?

JUROR: Because I know the officer involved,
and I think he is a standup person. If [a

23
charge] is resisting arrest, I have a
predisposition to believe him.

The prosecutor later questioned the prospective juror:

COUNSEL: Okay. I know that you know [the
arresting officer]. Let’s talk about that. Do
you have concerns about it affecting your
fairness?

THE JUROR: Yes.

COUNSEL: Okay. Can you tell us about that,
other than what you have already said?

THE JUROR: Not really. I have — I know him.
I know him to be an upstanding officer. I have
had dinner with him, sat at my kitchen table
with him, included him in family activities. So
I think I am predisposed to agree with what he
says.

COUNSEL: Do you have concerns about being
fair to the defense?

THE JUROR: I do.

Avila didn’t object to these comments. The prospective juror was

later removed for cause.

¶ 51 Later during voir dire, the prosecutor asked another

prospective juror about his relationship with the arresting officer:

COUNSEL: [Do] you know [the arresting
officer] as well?

THE JUROR: I am his dentist. . . . He is my
patient, my friend.

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....

COUNSEL: Do you think you can be fair in this
case even though you know him?

THE JUROR: I believe it would be very difficult
to completely distance myself from the fact
that having a personal relationship with the
officer, to not believe him would be harder. . . .
I think it would be a little difficult for me to
separate myself from that situation that we
have already had a personal relationship.

COUNSEL: Even if the law says that?

THE JUROR: Of course I would try terribly to
do that because that is what the law says, but
. . . it is my feeling that if two people were
standing there, already had a relationship, you
know, somebody is a good person, they say
one thing, someone says another, that is not
impartiality.

....

COUNSEL: Do you think you can judge his
credibility?

THE JUROR: I think I already know his
credibility, which is part of the problem, to
already have a set thought in your mind.

Avila didn’t object to these comments, and this prospective juror

was also removed for cause.

B. Standard of Review and Applicable Law

¶ 52 Because Avila didn’t object or request any relief from the

district court, we review for plain error. Hagos v. People, 2012 CO

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63, ¶ 14; People v. Marko, 2015 COA 139, ¶ 39, aff’d, 2018 CO 97.

Plain error occurs where the trial court has committed an error that

is obvious and substantial, and so undermines the trial’s

fundamental fairness as to cast serious doubt on the judgment of

conviction’s reliability. Hagos, ¶ 14.

¶ 53 A defendant is entitled to a jury verdict that is based solely on

the evidence presented in the courtroom. Dunlap v. People, 173

P.3d 1054, 1091 (Colo. 2007). A jury’s exposure to extraneous

information implicates a defendant’s due process right to a fair trial.

Id. When a prospective juror makes a potentially prejudicial remark

during voir dire, the trial court may issue a curative instruction,

canvass the jury, or declare a mistrial. People v. Mersman, 148

P.3d 199, 203-04 (Colo. App. 2006). But where a defendant doesn’t

request a curative instruction, a trial court doesn’t plainly err by

failing to give one on its own. Id. A mistrial “is the most drastic of

remedies” and “is only warranted where the prejudice to the

accused is too substantial to be remedied by other means.” People

v. Abbott, 690 P.2d 1263, 1269 (Colo. 1984). Whether a prospective

juror’s statement is potentially prejudicial depends significantly on

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the facts and circumstances. Vititoe v. Rocky Mountain Pavement

Maint., Inc., 2015 COA 82, ¶ 26.

C. Analysis

¶ 54 Even assuming that the prospective jurors’ comments were

potentially prejudicial because they vouched for the arresting

officer’s veracity as a trial witness, we can’t conclude without more

that the comments so undermined the trial’s fundamental fairness

as to cast serious doubt on the judgment of conviction’s reliability.

¶ 55 The comments weren’t so prejudicial that they required the

court to order a mistrial on its own motion. See Marko, ¶¶ 36-38

(prospective juror’s statements about defendants found not guilty

by reason of insanity being quickly released didn’t warrant a

mistrial); Mersman, 148 P.3d at 204-05 (prospective juror’s

reference to a defense witness’s involvement in the “drug scene”

didn’t warrant a mistrial). But Avila argues to the contrary,

because the comments vouched for the credibility of the

prosecution’s main fact witness. Yet there’s no “clear statutory

command[,] . . . well-settled legal principle[,] or . . . Colorado case

law” that establishes such a principle, so it wasn’t so obvious that

the district court should have declared a mistrial on its own motion.

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People v. Stroud, 2014 COA 58, ¶ 33 (quoting People v. Pollard, 2013

COA 31M, ¶ 40).

¶ 56 We also find this case distinguishable from Mach v. Stewart,

137 F.3d 630, 634 (9th Cir. 1997), a case on which Avila relies. In

Mach, the defendant was charged with sexual conduct with a

minor, and during voir dire a prospective juror said that “in her

experience as a social worker, children never lie[] about sexual

assault.” Id. Given that “[t]he bulk of the prosecution’s case

consisted of a child’s testimony that [the defendant] had sexually

assaulted her,” the Ninth Circuit concluded that the statements

“substantially affected or influenced the verdict,” and reversed the

conviction. Id. It noted that “[a]t a minimum, when [the defendant]

moved for a mistrial, the court should have conducted further voir

dire to determine whether the panel had in fact been infected by

[the prospective juror’s] expert-like statements.” Id. at 633.

¶ 57 But because Avila didn’t object or request any relief, the

district court here didn’t plainly err in failing to give a curative

instruction or canvass the jurors on its own motion. Mersman, 148

P.3d at 204. And again, it wouldn’t have been obvious to do so

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simply because the prospective jurors’ comments vouched for the

prosecution’s main fact witness.

¶ 58 The prospective jurors’ comments vouched for a witness’s

veracity, similar to Mach, but not to the same level. Both jurors

indicated that, as the witness’s friends, they believed him to be an

“upstanding” or “good person,” and they would be partial toward

him if asked to judge his credibility versus another person’s. The

court struck both jurors for cause. This was the appropriate

remedy for those jurors who indicated that they couldn’t be

impartial. Van Meter, ¶ 14. And their comments about their bias

toward the arresting officer may have resulted in better screening of

other prospective jurors. Indeed, a third juror who said that he was

biased against Avila in part by another juror’s “confidence in the

officer” was also struck for cause. See United States v. Guzman,

450 F.3d 627, 631-33 (6th Cir. 2006) (“One of the primary purposes

of voir dire is to aid counsel in their exercise of peremptory

challenges,” and “voir dire in front of the entire jury pool may

actually result in more effective screening” because “[p]otential

jurors are often emboldened to be more candid after witnessing

other potential jurors’ voir dire.”).

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¶ 59 Also, the “the record indicates that all who ultimately served

on the jury indicated that they would be fair and impartial; the

[prospective jurors] who indicated that [they] could not be impartial

were dismissed for cause.” Van Meter, ¶ 14; Vititoe, ¶ 31. So,

Avila’s “contention relies solely ‘on speculation as to the effect, if

any, the potential jurors’ statements had on the actual jurors.’”

Vititoe, ¶ 31 (quoting Guzman, 450 F.3d at 632); see United States v.

Jones, 696 F.2d 479, 492 (7th Cir. 1982) (“Except for the . . .

dismissed panel members, no juror displayed prejudice. . . . We

believe that the defendant[] w[as] tried by an impartial jury.”).

¶ 60 We conclude the district court didn’t plainly err by not

declaring a mistrial on its own motion.

VI. Conclusion

¶ 61 The judgment is affirmed.

JUDGE TAUBMAN and JUDGE GROVE concur.

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