SUMMARY

November 27, 2019

2019COA175

No. 17CA0620, People v. Tibbels — Trials — Voir Dire; Criminal 

Law — Burden of Proof — Reasonable Doubt; Constitutional 

Law — Due Process

In this criminal case, a division of the court of appeals holds

that although no structural error requiring automatic reversal 

occurred when the trial court analogized reasonable doubt to a 

home’s significant foundation crack during voir dire, such analogies 

should be avoided. The division further concludes that neither the 

alleged prosecutorial misconduct nor the absence of a special 

interrogatory requires reversal or entry of a lower level 

conviction. The judgment is affirmed. The dissent would find 

structural error and reverse the defendant’s convictions.

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.
COLORADO COURT OF APPEALS 2019COA175

Court of Appeals No. 17CA0620

Adams County District Court No. 16CR785

Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Ernest Joseph Tibbels,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I

Opinion by JUDGE FREYRE

Taubman, J., concurs

Pawar, J., dissents

Announced November 27, 2019

Philip J. Weiser, Attorney General, Jacob R. Lofgren, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith K. Rose, Deputy 

State Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 In this criminal case, we address an issue that has repeatedly 

arisen in prior cases but, to date, has not necessitated reversal — a 

trial court’s use of everyday examples to explain legal concepts like 

reasonable doubt. Our supreme court recently held that “[a]n 

instruction that lowers the prosecution’s burden of proof below 

reasonable doubt constitutes structural error and requires 

automatic reversal.” Johnson v. People, 2019 CO 17, ¶ 8 (citing 

Sullivan v. Louisiana, 508 U.S. 275, 281-82 (1993)). This case 

presents a close question, as reflected by our split decision, and 

highlights the need for trial courts to discontinue this practice. 

¶ 2 Defendant, Ernest Joseph Tibbels, appeals his conviction of 

possession of contraband. He argues that reversal is required 

because (1) the prosecutor improperly invited the jury to “hold him 

accountable” for disrupting jail operations when he was not charged 

with disruption; and (2) the trial court impermissibly lowered the 

prosecution’s burden of proof by comparing reasonable doubt to a 

structurally significant crack in the foundation of a prospective 

house for purchase. Mr. Tibbels also asks us to vacate his 

conviction for possession of contraband as a class 4 felony and to 

enter a conviction for possession of contraband as a class 6 felony, 
2

based on the court’s failure to provide an interrogatory requiring the 

jury to find that he possessed a dangerous instrument. We address 

and reject each of his contentions. 

I. Background

¶ 3 Mr. Tibbels called 911 in the midst of a mental health crisis. 

Police officers then arrested him based on their mistaken belief that 

he had violated a protection order. 

¶ 4 The officers transported Mr. Tibbels to the Adams County 

Detention Facility. He refused to follow instructions and physically 

resisted the deputies’ attempts to complete the booking process. 

Consequently, the deputies could only conduct a “cursory search” 

before placing Mr. Tibbels in a “quiet room” to calm down.

¶ 5 After several hours in the quiet room, Mr. Tibbels grew 

agitated and threatened to kill himself by tying a torn piece of his 

shirt around his neck. He then removed a sharpened metal spike 

from his pocket; struck the door with it, which caused damage, and 

shouted, “If you guys come in here, motherfuckers, I’ll kill you.” 

Perceiving Mr. Tibbels’ actions as a threat, the deputies called for 

“lethal cover” and locked down the entire jail until they could 

subdue Mr. Tibbels, who complied with the deputies’ commands. 
3

The deputies recovered a three-inch metal spike from the cell floor 

and documented the damage to the door. 

¶ 6 The State charged Mr. Tibbels with first degree introduction of 

contraband, felony menacing, and first degree possession of 

contraband. During voir dire, the trial court compared the concept 

of reasonable doubt to a structurally significant crack in the 

foundation of a house being considered by a prospective purchaser. 

¶ 7 During trial, the prosecution elicited testimony about how 

deputies responded to Mr. Tibbels by coming from their assigned 

posts throughout the facility. During closing argument, the 

prosecutor asked the jury to hold Mr. Tibbels “accountable” for his 

“temper tantrum” that shut down the jail. The jury subsequently 

convicted Mr. Tibbels of possession of contraband, but it acquitted 

him of the other two charges.

II. Prosecutorial Misconduct

¶ 8 Mr. Tibbels contends that the prosecutor’s appeal to the jury 

to hold him accountable for the jail lockdown was irrelevant, 

prejudicial, and misled the jury. We discern no reversible error. 
4

A. Additional Facts

¶ 9 The “accountability” argument first arose in opening statement 

when the prosecutor asked the jury to “hold [Mr. Tibbels] 

accountable for the situation that he create[d]. Because it was a 

crime.” Defense counsel did not object. 

¶ 10 Then, during the direct examination of a booking deputy, the 

prosecutor asked whether other parts of the jail were left with fewer 

resources because of the incident involving Mr. Tibbels. The court 

sustained defense counsel’s relevance objection and said, “[t]hat’s 

not what he’s charged with.” 

¶ 11 Without objection, the prosecutor then asked two additional 

deputies to describe the impact of Mr. Tibbels’ behavior, and they 

explained that the entire facility had to be locked down. A final 

deputy was asked whether other areas of the jail were left with 

fewer resources because of Mr. Tibbels’ behavior, and again, 

defense counsel objected on relevance. This time, the court 

overruled the objection without further comment. 

¶ 12 In rebuttal closing argument and without objection, the 

prosecutor argued: 
5

And the most disturbing thing of this is that 

14 deputies had to respond to this, fourteen 

deputies out of the 29 that were there to guard 

the 952 inmates. So the other 952 were left 

less guarded because of Mr. Tibbels’[s] actions, 

because of his little show, his little stunt.

And you know, I keep referring to this as a 

‘little show,’ but it’s not. It’s serious. It’s not 

like he’s an actor in a play and you’re the 

audience. No. He committed a crime. He’s 

the defendant. It’s not like he’s going to come 

up here and take a bow. And it’s not like I’m 

going to ask you for applause at this point, 

because what I’m demanding is something 

much more appropriate. I’m demanding 

accountability.

. . . .

You have all of the evidence. Hold him 

accountable for his actions. Find him guilty. 

B. Standard of Review and Law

¶ 13 We review claims of prosecutorial misconduct using a two-step 

analysis. First, we determine whether the prosecutor’s conduct was 

improper based on the totality of the circumstances. Wend v. 

People, 235 P.3d 1089, 1096 (Colo. 2010). Then, we determine 

whether such actions warrant reversal under the proper standard of 

review. Id. 

¶ 14 If the defendant contemporaneously objected to the alleged 

misconduct at trial, we review for harmless error. Id. at 1097. 
6

Whether misconduct is harmless requires a court to evaluate “the 

severity and frequency of misconduct, any curative measures taken 

by the trial court to alleviate the misconduct, and the likelihood 

that the misconduct constituted a material factor leading to the 

defendant’s conviction.” People v. Hogan, 114 P.3d 42, 55 (Colo. 

App. 2004). We reverse “only if we conclude that error occurred 

and that there is a reasonable probability that the error contributed 

to the guilty verdict.” People v. Gonzales, 2017 COA 62, ¶ 26.

¶ 15 If the defendant fails to contemporaneously object to the 

alleged misconduct, we review for plain error. Wend, 235 P.3d at 

1097. Prosecutorial misconduct constitutes plain error when it was 

obvious and “seriously affected the fairness or integrity of the trial.” 

Domingo-Gomez v. People, 125 P.3d 1043, 1053 (Colo. 2005) (citing 

United States v. Young, 470 U.S. 1, 15 (1985)). “Only prosecutorial 

misconduct which is ‘flagrantly, glaringly, or tremendously

improper’ warrants reversal.’” Id. (quoting People v. Avila, 944 P.2d 

673, 676 (Colo. App. 1997)).

¶ 16 Because the right to a fair trial includes the right to an 

impartial jury, prosecutorial misconduct that misleads a jury may 

warrant reversal. Harris v. People, 888 P.2d 259, 264 (Colo. 1995). 
7

Indeed, prosecutors may not use arguments calculated to inflame 

the passions or prejudices the jury. People v. Oliver, 745 P.2d 222, 

228 (Colo. 1987); see, e.g., People v. Conyac, 2014 COA 8M, ¶ 147 

(“Prosecutors may not pressure jurors by suggesting that guilty 

verdicts are necessary to do justice for a sympathetic victim.”). But 

a prosecutor’s use of rhetorical devices to argue record evidence or 

to respond to the defense’s arguments is not misconduct. See 

People v. Samson, 2012 COA 167, ¶ 31 (prosecutors may “employ 

rhetorical devices and engage in oratorical embellishments”); see 

also People v. Gibson, 203 P.3d 571, 577 (Colo. App. 2008) (“[T]he 

prosecutor is entitled to comment on the absence of evidence to 

support a defendant’s contentions.”); see also, e.g., People v. Welsh, 

176 P.3d 781, 788 (Colo. App. 2007) (concluding the prosecutor’s 

comment about the absence of a suicide note was “a permissible 

reference to the absence of evidence to support defendant’s 

contention that she was intending to kill herself”). 

C. Analysis

¶ 17 The parties dispute preservation of the various incidents of 

alleged misconduct. We need not resolve this dispute, however, 
8

because even if we assume that all alleged errors were preserved,

we conclude that they are harmless and do not require reversal. 

¶ 18 First, the trial court properly instructed the jury that opening 

statements “are not evidence. Their purpose is just simply to kind 

of provide you with a roadmap with what each side thinks the 

evidence may show.” The court also reminded the jury that Mr. 

Tibbels was presumed innocent and that the government was 

required to prove “Mr. Tibbels guilty beyond a reasonable doubt.” 

As well, before closing arguments, the trial court instructed the jury 

that it “must not be influenced by sympathy, bias or prejudice in 

reaching [its] decision,” and that the burden of proof is on the 

prosecution to prove “beyond a reasonable doubt the existence of all 

the elements necessary to constitute the crime charged.” We 

presume the jury understood and followed these instructions, 

absent contrary evidence. Leonardo v. People, 728 P.2d 1252, 1255 

(Colo. 1986); People v. Bass, 155 P.3d 547, 552 (Colo. App. 2006). 

And, Mr. Tibbels does not allege, nor has he shown, that the jury 

fundamentally misunderstood these instructions.

¶ 19 Second, no one disputes that defense counsel failed to object 

during opening statements or closing arguments. Importantly, the 
9

failure to contemporaneously object suggests that the prosecutor’s 

comments did not appear to be overly damaging when they were 

made. See People v. Strock, 252 P.3d 1148, 1153 (Colo. App. 2010) 

(“Defense counsel’s failure to object is a factor that may be

considered in examining the impact of a prosecutor’s argument and 

may ‘demonstrate defense counsel’s belief that the live argument, 

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

(quoting People v. Rodriguez, 794 P.2d 965, 972 (Colo. 1990))).

¶ 20 Third, we are not persuaded that the jury’s acquittal of Mr. 

Tibbels of two charges and conviction of the “least culpable offense” 

flowed from the prosecutor’s improper accountability appeal. Mr. 

Tibbels never denied being placed in the quiet room with tools in his 

pocket, nor did he deny striking the door with one of them. Instead, 

we conclude that the verdict shows that the jury “took its role 

seriously and it was not improperly swayed by any potentially 

improper arguments.” See People v. Larson, 2017 CO 29, ¶ 16 

(noting that “a split verdict is an indication that prejudice did not 

affect the jury’s verdict”); see also People v. Manyik, 2016 COA 42, 

¶ 40 (reasoning under plain error review that “the fact that the jury 

acquitted [the defendant] of the most serious charge . . . indicates 
10

that the jurors based their verdict on the evidence presented and 

were not swayed by the prosecutor’s inflammatory appeal to their 

sympathy for the victim).

¶ 21 Finally, the prosecution presented overwhelming evidence of 

guilt. Numerous deputies described Mr. Tibbels holding a “metal 

object that appeared to be sharpened” while inside the quiet room, 

and the prosecution introduced corroborating photographs and 

videos showing Mr. Tibbels holding the sharpened metal object 

inside the quiet room. 

¶ 22 Accordingly, we discern no reasonable probability that the 

alleged misconduct by the prosecutor contributed to Mr. Tibbels’ 

conviction. Any prosecutorial misconduct, if present, was harmless 

and does not require reversal. 

III. Trial Court’s Illustration of Reasonable Doubt

¶ 23 Mr. Tibbels next contends that the trial court’s illustration of 

reasonable doubt during voir dire impermissibly lowered the 

prosecutor’s burden of proof below beyond a reasonable doubt and 

requires reversal. Although we conclude that reversal is not 

required in this case, we strongly discourage the use of illustrations

like this because they run the risk of confusing jurors, lowering the 
11

prosecution’s burden of proof, and diminishing the presumption of 

innocence. People v. Flynn, 2019 COA 105, ¶ 42. Trial courts 

should limit themselves to the suggested introductory remarks in 

the model jury instructions, which explain the standard definitions 

of the relevant legal principles, including reasonable doubt. See 

COLJI-Crim. B:01 (2018). 

A. Additional Facts

¶ 24 During voir dire, the trial court explained that the burden of 

proof in a criminal case was on the prosecution to prove “to the 

satisfaction of the jury beyond a reasonable doubt the existence of 

all of the elements necessary to constitute the crime charged.” It 

then read the definition of reasonable doubt from COLJI-Crim. E:03 

(2018):

THE COURT: Now reasonable doubt means a 

doubt 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 doubt as would cause reasonable 

people to hesitate to act in matters of 

importance to themselves.

¶ 25 Next, the court said, “I’ll give you an example and see if we can 

put some teeth [into the definition] and make this concrete.” 
12

Following this statement, it engaged in a colloquy with a juror about 

the meaning of reasonable doubt:

THE COURT: So you and your spouse and 

your children are in a market to by [sic] a 

house, okay. . . . And you come upon that 

ranch and it’s just like the dream come true, 

okay. The price is right. Interest rates are still 

good. It’s in the location that you want. The 

schools are good. The neighborhood is 

wonderful, it’s perfect. . . . [O]ne Saturday 

morning you go out to the property. . . . And 

you descend the flight of stairs down to the 

basement and as you get to the bottom of the 

basement steps you see a crack in the 

foundation from the floor to the ceiling. And 

it’s not that superficial cracking that concrete 

will do. And structurally it’s significant. Are 

you going to buy that house?

JUROR: No.

THE COURT: Why?

JUROR: Because I don’t want a house that has 

a bad foundation.

THE COURT: Okay. You’ve got a reason. And 

it’s this crack that is structurally significant. 

And that’s causing you to hesitate, causing 

you to pause with going forward with a home 

purchase. This is my example of reasonable 

doubt. Now the lawyers do a better job, all 

right. But does that kind of put some – you 

can kind of touch and feel what reasonable 

doubt is.

¶ 26 Later, in a colloquy with a different juror, the court said:
13

THE COURT: But, you know, the reason I 

bring it up is this proof beyond a reasonable 

doubt is the highest burden of proof known in 

the American justice system.

. . . .

Here, it’s even higher than that [clear and 

convincing evidence]. It’s proof beyond a 

reasonable doubt. And it’s that example that I 

gave you, what a reasonable doubt is. So 

that’s the burden that the government has to 

surmount to prove this case beyond a 

reasonable doubt. . . .

¶ 27 Defense counsel did not object. Neither party mentioned the 

court’s illustration in opening statements or closing arguments. 

Nor did the jury ask any questions during deliberations about the 

meaning of reasonable doubt.

B. Standard of Review and Applicable Law

¶ 28 The parties agree that this alleged error was not preserved, but 

they dispute the proper standard of reversal if we find an error. The 

People ask us to review for plain error and argue that reversal is 

required only if we conclude that the error was obvious and so 

undermined the fundamental fairness of the trial as to cast serious 

doubt on the reliability of the judgment of conviction. For his part, 

Mr. Tibbels, argues that any error that lowers the prosecution’s 
14

burden of proof permeates the trial itself and constitutes structural 

error requiring automatic reversal. 

¶ 29 Based on our supreme court’s recent holding in Johnson, ¶ 8, 

we agree with Mr. Tibbels, and conclude that “[a]n instruction that 

lowers the prosecution’s burden of proof below reasonable doubt 

constitutes structural error and requires automatic reversal.” Id.

(citing Sullivan, 508 U.S. at 281-82).

¶ 30 But did the trial court’s illustration lower the prosecution’s 

burden of proof? We do not think so. 

¶ 31 Whether an instruction from the court accurately states the 

law is a legal question that we review de novo. Id. We review a 

court’s decision to provide a particular instruction for an abuse of 

discretion. People v. Sandoval, 2018 COA 63, ¶ 11; see People v. 

Estes, 2012 COA 41, ¶ 10 (noting trial court’s “wide discretion in 

conducting a trial,” but cautioning the trial court must also exercise 

restraint to maintain an impartial forum (citing People v. Coria, 937 

P.2d 386, 391 (Colo. 1997))). A court abuses its discretion when its 

decision is manifestly arbitrary, unreasonable, unfair, or contrary to 

law. Sandoval, ¶ 26; People v. Gwinn, 2018 COA 130, ¶ 31 (“[A]
15

court abuses its discretion if it bases its ruling on an erroneous 

view of the law.”). 

¶ 32 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. See Johnson, ¶ 18 (“We 

note that the trial court provided 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.”). We also consider the court’s other instructions to the 

jury. “[I]f 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. at ¶ 14 (quoting People v. Sherman, 45

P.3d 774, 779 (Colo. App. 2001)); Griego v. People, 19 P.3d 1, 7 

(Colo. 2001) (reasoning that a jury can only fulfill its constitutional 
16

role of finding each element beyond a reasonable doubt when it has 

been properly instructed).1 

¶ 33 Because the prosecution has the burden of proving every 

charge beyond a reasonable doubt, any instruction on reasonable 

doubt that lowers this burden of proof violates a defendant’s 

constitutional right to due process. People v. Garcia, 113 P.3d 775, 

784 (Colo. 2005). As noted by our supreme court, the United States

Supreme Court “has cautioned that further attempts by courts or 

parties to define ‘reasonable doubt’ do not provide clarity.” 

Johnson, ¶ 13 (citing Holland v. United States, 348 U.S. 121, 140 

(1954)); see also Miles v. United States, 103 U.S. 304, 312 (1880) 

(“Attempts to explain the term ‘reasonable doubt’ do not usually 

result in making it any clearer to the minds of the jury. . . .”). As 

 

1 Although characterizing any error as “structural,” Johnson uses 

factors — nature, scope, timing, and the other instructions — that 

closely resemble the constitutional harmless error prejudice 

analysis (whether there is a reasonable possibility that the error 

might have contributed to the conviction) to determine whether an 

error occurred. See Hagos v. People, 2012 CO 63, ¶ 11. Although 

this rubric is somewhat confusing, we are bound by Johnson, so we 

consider these factors in deciding whether the court’s illustration 

constituted error. See People v. Wise, 2014 COA 83, ¶ 8 (Colorado 

Court of Appeals is bound by Colorado Supreme Court precedent).
17

well, at least twenty-two decisions of this court, both published and 

unpublished, have repeatedly discouraged trial courts’ use of 

illustrations to explain reasonable doubt, the presumption of 

innocence, and other legal concepts. See Appendix.

¶ 34 At oral argument, both sides acknowledged that illustrations, 

like the one used here, are problematic. Indeed, the risk of 

lessening the burden of proof increases when analogies to everyday 

experiences are used to explain the concept of reasonable doubt:

[D]ecisions we make in the most important 

affairs of our lives — choosing a spouse, a job, 

a place to live, and the like — generally involve 

a very heavy element of uncertainty and 

risk-taking. They are wholly unlike the 

decisions jurors ought to make in criminal 

cases. 

Victor v. Nebraska, 511 U.S. 1, 24 (1994) (Ginsburg, J., concurring

in part and concurring in the judgment) (citation omitted). As noted 

by our supreme court, “[t]rial courts must avoid defining reasonable 

doubt so as to lead the jury to convict on a lesser showing than due 

process requires.” Johnson, ¶ 13 (quoting Victor, 511 U.S. at 22).

C. Analysis

¶ 35 To begin, we acknowledge the possibility that the jury might 

have viewed the concept of reasonable doubt through the lens of the 
18

court’s “substantial crack” illustration. Still, although that 

possibility exists every time a trial court explains a legal concept in 

everyday terms, it is not dispositive. We are not aware of any

authority that categorically precludes such explanations. Instead, 

applying the Johnson factors, we conclude that the substantial 

crack illustration did not lower the prosecution’s burden of proof for 

four reasons. 

¶ 36 First, the trial judge characterized the illustration as his 

“example” and said the lawyers would do a better job of explaining 

reasonable doubt. Thus, in our view, the illustration was unlike a 

formal instruction of law. See People v. Boyd, 2015 COA 109, ¶ 12 

(opining that the court’s comments during voir dire were not an 

instruction), aff’d, 2017 CO 2; see also Wansing v. Hargett, 341 

F.3d 1207, 1215 (10th Cir. 2003) (finding that a trial court’s 

contemporaneous remarks are different from formal instructions, 

though both can be considered in determining whether the jury was 

likely to convict based on an improper standard).

¶ 37 Second, as in Johnson, the court’s illustration was limited to 

voir dire. Neither the trial court nor the parties mentioned it again 

after the jury was selected. Cf. People v. Munoz, 240 P.3d 311, 316 
19

(Colo. App. 2009) (instructional language must be examined in 

context and cannot be “sequestered from its surroundings” in 

determining its impact).

¶ 38 Third, the court told the jury:

At the conclusion of the evidence I will tell you 

the rules of law which you are to use in 

reaching your verdict. I’ll read those rules of 

law to you aloud and you will have copies of 

them to take back to the jury deliberation 

room to use.

In our view, this remark and the fact that the court never gave the 

illustration to the jury in writing, supports the court’s 

characterization of the illustration as an example rather than an 

instruction of law.

¶ 39 Finally, before providing the illustration, and at the close of 

the evidence, the court properly instructed the jury on reasonable 

doubt in accordance with the Model Jury Instructions, both verbally 

and in writing. Johnson, ¶¶ 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 deciding whether plain error occurred). And, the jury 

never indicated any confusion about its meaning. We presume that 
20

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

¶ 14. 

¶ 40 Accordingly, while we strongly discourage trial courts’ use of 

everyday illustrations to explain reasonable doubt, as in Johnson, 

we conclude that the trial court’s illustration here did not 

impermissibly lower the prosecution’s burden of proof and does not 

require reversal.

IV. Dangerous Instrument Finding

¶ 41 Mr. Tibbels last contends that his class 4 felony conviction 

should be vacated because the court erroneously failed to give a 

special interrogatory requiring the jury to find that he possessed a 

“dangerous instrument.” He reasons that because the model jury 

instructions recommend giving this interrogatory, its absence 

requires us to modify his conviction to a class 6 felony. While we 

agree with Mr. Tibbels that the better practice is to provide the 

special interrogatory requiring a dangerous instrument finding, we 

nevertheless conclude that the circumstances of this case show that 

the jury made this finding beyond a reasonable doubt. 
21

A. Standard of Review

¶ 42 We review jury instructions de novo to determine whether the 

instructions accurately informed the jury of the governing law. 

People v. Sandoval, 2018 COA 156, ¶ 11. However, we review a trial 

court’s ruling on a particular jury instruction for an abuse of 

discretion. Id. Where, as here, the defendant does not object to the 

jury instructions, we review for plain error. People v. Smith, 2018 

CO 33, ¶ 22. To constitute plain error, the error must be both 

“obvious and substantial.” Hagos, ¶ 14. 

¶ 43 To meet these two requirements, an error must be so clear-cut 

that a trial judge should have been able to avoid it without the 

benefit of an objection, People v. Pollard, 2013 COA 31M, ¶ 39, and 

it must be “seriously prejudicial,” which means it must have so 

undermined the fundamental fairness of the trial as to cast serious 

doubt on the reliability of the defendant’s conviction, People v. 

Ujaama, 2012 COA 36, ¶ 43; see also Hagos, ¶ 14.

B. Possession of Contraband

¶ 44 Section 18-8-204.1, C.R.S. 2019, provides as follows:

(1) A person being confined in a detention 

facility commits the crime of possession of 

contraband in the first degree if he knowingly 
22

obtains or has in his possession contraband as 

listed in section 18-8-203(1)(a) or alcohol . . . .

(2) Possession of contraband in the first 

degree, other than a dangerous instrument, is 

a class 6 felony.

(3) Possession of contraband in the first degree 

involving a dangerous instrument is a class 4 

felony.

¶ 45 Section 18-8-203(1)(a), C.R.S. 2019, defines “contraband” as

a dangerous instrument; malt, vinous, or 

spiritous liquor, . . . fermented malt 

beverage, . . . controlled substance, . . . or 

marijuana or marijuana concentrate . . . .

¶ 46 Subsection (4) of that statute defines a “dangerous 

instrument” as

a firearm, explosive device or substance 

(including ammunition), knife or sharpened 

instrument, poison, acid, bludgeon, or 

projective device, or any other device, 

instrument, material, or substance which is 

readily capable of causing or inducing fear of 

death or bodily injury, the use of which is not 

specifically authorized.

¶ 47 The model jury instruction for “Possession of Contraband in 

the First Degree,” COLJI-Crim. 8-2:09 (2018), follows the statutory 

elements and requires the jury to find, as relevant here, that the 

defendant possessed “contraband or alcohol.” When the 

contraband alleged is a dangerous instrument, the model jury 
23

instructions recommend including a special interrogatory, COLJICrim. 8-2:10.INT (2018), which requires the jury to answer “Yes” or 

“No” to the question, “Was the contraband a dangerous 

instrument?” and then defines a dangerous instrument in 

accordance with section 18-3-203(4).

C. Analysis

¶ 48 The trial court instructed the jury on possession of contraband 

as follows:

1. That the defendant,

2. in the State of Colorado, at or about the 

date and place charged

3. while confined in a detention facility

4. knowingly

5. obtained or had in his possession 

contraband. 

¶ 49 In a separate instruction, the court defined “contraband” as 

only a “dangerous instrument,” and it excluded the other potential 

items identified as contraband in section 18-3-203(1)(a). The court

defined “dangerous instrument” as set forth in section 18-8-203(4). 

¶ 50 We discern no plain error in the court’s omission of the special 

interrogatory. By limiting the definition of contraband to a 

dangerous instrument, and by defining dangerous instrument

consistently with the statute, the court ensured that the jury 
24

unanimously found that the “contraband” element was a dangerous 

instrument, thereby obviating the need for the special interrogatory. 

¶ 51 To the extent Mr. Tibbels argues that the model jury 

instructions require a special interrogatory in all cases, we disagree, 

because it is well settled that the model instructions are not binding 

on a trial court and are intended to provide guidance. See People v. 

Hoskin, 2016 CO 63, ¶ 20 (“[T]he pattern jury instructions are not 

law, not authoritative, and not binding on this court.”) (citation 

omitted). 

¶ 52 We are also not persuaded by Mr. Tibbels’ assertion that his 

acquittal of the other charges requires a different result. He 

reasons that because the acquitted charges included the elements 

of dangerous instrument (introduction of contraband) and deadly 

weapon (menacing), the jury necessarily did not find that he 

possessed a dangerous instrument. But he cites no authority for 

this proposition, and the evidence refutes this reasoning. Mr. 

Tibbels urged the jury to acquit him on the basis that he did not 

know he had tools in his pocket when he was arrested. Indeed, he 

was uncooperative with the deputies during the booking process 

and could not be thoroughly searched. On this evidence, the jury 
25

could find that he did not knowingly introduce contraband. But no 

one disputed that after being in the quiet room for several hours, 

Mr. Tibbels discovered the tools in his pocket and used one of them 

to damage the cell door. On this evidence, the jury could find 

knowing possession.

¶ 53 Likewise, Mr. Tibbels urged the jury to acquit him of menacing 

because he did not direct his comments at a particular deputy and 

ultimately cooperated with the deputies’ commands, an argument 

with which the jury agreed.

¶ 54 Because the jury instructions properly tracked the statutory 

language and required the jury to find the elements of class 4 

possession of contraband beyond a reasonable doubt, and because 

we presume the jury understood and followed those instructions, 

we discern no error, let alone plain error. See Bass, 155 P.3d at 

552.

V. Conclusion

¶ 55 The judgment is affirmed.

JUDGE TAUBMAN concurs.

JUDGE PAWAR dissents.
26

JUDGE PAWAR, dissenting.

¶ 56 I respectfully dissent because I disagree with Part III of the 

majority opinion. In my view, it is reasonably likely that the trial 

court’s illustration of what constitutes reasonable doubt lowered 

the prosecution’s burden of proof. I would therefore conclude that 

this illustration was structural error and reverse Tibbels’ 

conviction.1 Because I would reverse, I would not address Tibbels’ 

remaining contentions.

I. Crack-in-the-Foundation Illustration

¶ 57 During voir dire, the trial court gave an example of a situation 

in which reasonable doubt exists. The court asked a juror to 

imagine that a potential homebuyer had found what she thought 

 

1 The majority correctly states that we review whether the 

instructions accurately informed the jury of the law de novo. People 

v. Carter, 2015 COA 24M-2, ¶ 39. It also states that we review a 

court’s decision to provide a particular instruction for abuse of 

discretion. Id. The error here is not one I would review for abuse of 

discretion. Tibbels’ allegation of error is that the court’s 

instructions lowered the prosecution’s burden of proof. And trial 

courts have no discretion to instruct the jury in a manner that 

misstates the law by lowering the prosecution’s burden of proof. Id.

(“The trial court has broad discretion to formulate jury instructions 

as long as they are correct statements of the law.”) (emphasis added) 

(citation omitted).
27

was her dream home. Imagine the homebuyer walking into the 

basement, the trial court said, and discovering a “structurally 

significant,” “floor to the ceiling” crack in the basement wall and 

foundation. This, according to the trial court, would cause the 

homebuyer to have a reasonable doubt about buying the home.

¶ 58 In my view, this illustration set too high a bar for what 

constitutes reasonable doubt. And because the jury was instructed 

to convict if it had no reasonable doubts about Tibbels’ guilt, the 

illustration lowered the prosecution’s burden of proof.

II. The Majority’s Reasoning

¶ 59 The majority reaches a contrary conclusion, but not because it 

believes that the crack-in-the-foundation illustration properly 

describes reasonable doubt. In fact, just the opposite. The majority 

seems to agree that, had the jury considered and applied the trial 

court’s crack-in-the-foundation illustration, structural error would 

have occurred. Indeed, the majority’s explanation for why there 

was no structural error has nothing to do with the crack-in-thefoundation illustration accurately describing reasonable doubt. 

Instead, the majority’s entire explanation for why there was no 

structural error is that other factors purportedly mitigated the 
28

illustration’s effect on the jury. As I understand the majority’s 

reasoning, it finds no structural error because, based on the 

isolated and informal nature of the illustration and the proper 

reasonable doubt instructions, the jury must have ignored and not 

considered or applied the crack-in-the-foundation illustration. 

Unlike the majority, I see nothing in the record supporting the 

conclusion that the jury did not apply the trial court’s illustration.

III. Nothing Mitigated the Trial Court’s Illustration

¶ 60 For three reasons, I would conclude that nothing mitigated the 

damage done by the trial court’s erroneous illustration of 

reasonable doubt. First, at no point did the trial court tell the jury 

to disregard, ignore, or otherwise not apply the crack-in-thefoundation illustration.

¶ 61 Second, nothing about the court’s proper reasonable doubt 

instructions suggested to the jury that it should not apply the 

court’s improper illustration. The illustration was presented as a 

concrete example of how to apply the abstract legal concepts 

articulated in the proper instructions. Consequently, from the 

jury’s perspective, it did not have to choose between the instruction 
29

or the illustration; the illustration, to a member of the jury, was a 

more precise articulation of what constitutes reasonable doubt.

¶ 62 The instructions properly informed the jury that reasonable 

doubt is based on reason and common sense; is not vague,

speculative, or imaginary; and is doubt that would cause 

reasonable people to hesitate to act in matters of importance to 

themselves. These are abstract explanations of reasonable doubt. 

They could mean different things to different people. The crack-inthe-foundation illustration did not contradict these abstract 

concepts — it more specifically and precisely defined them. It told 

the jury how to apply these abstract concepts in a real-life 

situation. The illustration more precisely explained what it means 

to have a doubt that is not vague, speculative, or imaginary, and 

causes a reasonable person to hesitate to act.2 Consequently, 

nothing about giving the jury the proper instructions suggested that 

 

2 Indeed, the trial court prefaced its illustration by reading the 

proper, abstract definition of reasonable doubt. Addressing the 

jury, the court then stated, “Now, you’re all sitting there saying 

what the hell does that mean. It’s a lengthy definition, okay. And 

don’t lose heart. I’ll give you an example and see if we can put 

some teeth and make this concrete.” The court then explained the 

crack-in-the-foundation illustration.
30

the jury did not also apply the court’s improper illustration. And 

applying the illustration to more precisely define the abstract 

concepts in the reasonable doubt instruction lowered the 

prosecution’s burden of proof. Again, the majority does not dispute 

that the illustration, if applied, would have had this effect. The 

majority only disagrees that the jury actually applied the 

illustration.

¶ 63 This is not a case in which the subsequent proper instructions 

corrected the court’s inaccurate illustration of what constitutes 

reasonable doubt. As mentioned above, at no point did the trial 

court instruct the jury to disregard the illustration. The jury 

therefore could, and likely did, apply the illustration and 

instructions together, thereby lowering the prosecution’s burden of 

proof.

¶ 64 Third, I attach little importance to the fact that the court’s 

illustration was not technically a formal instruction; it was an 

uncontradicted explanation of reasonable doubt from the judge, the 

one person in the courtroom whose words everyone, including the 

jury, must heed.
31

¶ 65 It is true that the jurors heard the illustration during voir dire, 

during the court’s colloquy with a single juror. But, as discussed 

above, this was the only instance in which the court gave a specific 

example of what constitutes reasonable doubt. And this illustration 

did not come from one of the lawyers; it came from the judge. I find 

it unlikely that the jury would have, without direction, understood 

that the court’s illustration was not a formal instruction. I find it 

even less likely that the jury, without direction, would have ignored 

and not applied the illustration because it was not a formal 

instruction. Instead, I think it far more likely that the jury took 

note of and remembered the only time the court explained, in 

familiar and accessible terms, what constitutes reasonable doubt. 

And when the jury received the proper reasonable doubt 

instructions in written form at the end of the case, I think it 

reasonably likely that the jury thought back to the court’s crack-inthe-foundation illustration and used it to determine whether it had 

reasonable doubts about Tibbels’ guilt.

¶ 66 Divisions of this court routinely rely on the presumption that 

the jury followed the trial court’s instructions. See, e.g., People v. 

Hardman, 2012 COA 89, ¶ 61. And we apply this presumption not 
32

only to formal written instructions, but oral instructions given only 

once during a trial. Id. I see no reason why the same presumption 

would not apply to the trial court’s crack-in-the-foundation 

illustration here, especially where nothing in the record suggested 

to the jury that it should not apply the illustration.

¶ 67 I am aware that other divisions of this court have held, like the 

majority here, that a trial court’s illustration of reasonable doubt 

that goes beyond the model instructions does not constitute 

structural error where the illustration occurs during voir dire, the 

illustration is not referred to again, and proper reasonable doubt 

instructions are given. See People v. Avila, 2019 COA 145, ¶¶ 46-

48; People v. Flynn, 2019 COA 105, ¶ 49. But, neither Avila nor 

Flynn explicitly held, as I would here, that the illustration at issue 

would have lowered the prosecution’s burden of proof if the jury 

applied it. Second, even if they had, I would disagree with the 

conclusion that any of the facts mentioned in those cases mitigated 

the harm of an illustration that, if applied, would have lowered the 

prosecution’s burden of proof.
33

IV. Johnson and Deleon

¶ 68 Finally, I see nothing in Johnson v. People, 2019 CO 17, or 

Deleon v. People, 2019 CO 85, that compels a different conclusion.

¶ 69 In Johnson, the supreme court was very clear that the trial 

court’s “extraneous ‘hesitate to act instruction’” did not lower the 

prosecution’s burden of proof “for two reasons: (1) the trial court 

gave proper instructions defining proof beyond a reasonable doubt 

and the prosecution’s burden both before the extraneous 

instruction and at the close of evidence; and (2) the ‘hesitate to act’ 

instruction was too nonsensical to be understood by the jury.” 

Johnson, ¶ 15. In other words, the jury could not have possibly 

applied the hesitate to act instruction because it was impossible to 

understand. Id. at ¶ 18 (“[I]t bears repeating that the instruction is 

nonsensical and simply too confusing for the jury to follow.”). And 

because the instruction was impossible to apply, there was no 

chance that it lowered the prosecution’s burden of proof.

¶ 70 Our case is different. As explained above, the trial court’s 

improper reasonable doubt illustration made sense and was in fact 

easier to understand and apply than the generic and abstract, yet 

proper, reasonable doubt instruction. Therefore, unlike the 
34

unintelligible instruction in Johnson, it is reasonably likely that the 

court’s clear crack-in-the-foundation illustration in this case 

lowered the prosecution’s burden of proof.

¶ 71 Deleon is not a reasonable doubt instruction case. In Deleon, 

the trial court neglected to give the jury a formal written instruction 

explaining that it was to draw no adverse inference from the 

defendant’s decision not to testify. Deleon, ¶ 7. The only time the 

trial court mentioned the defendant’s right not to testify was during 

voir dire, when the court explained that the defendant had “no 

obligation to present any evidence or testimony at all” and “if he 

chooses not to testify, you cannot hold it against him in any way 

that he did not.” Id. at ¶ 26.

¶ 72 The question before the supreme court was whether the trial 

court’s comments during voir dire constituted an “effective” noadverse-inference instruction. Id. at ¶ 25. The supreme court held 

that the mere fact that the comments came during voir dire was not 

dispositive. Id. at ¶ 26. Instead, the court held that the voir dire 

comments were not an effective instruction “based on both their 

timing and their content.” Id.
35

¶ 73 I do not read Deleon to stand for the proposition that a trial 

court’s comments during voir dire are presumed to have no impact 

on the jury. Instead, I understand Deleon to mean that the trial 

court’s comments during voir dire in that case might have had an 

impact on the jury, but that impact was not substantial enough to 

constitute an effective no-adverse-inference instruction. Id. at ¶ 26 

(“Although the timing [of the instruction] is not dispositive, it would 

have been most effective for the trial court to provide an instruction 

at that time,” i.e., “immediately prior to closing arguments.” 

(quoting People v. Baenziger, 97 P.3d 271, 274 (Colo. App. 2004))).

¶ 74 Here, we are not faced with the question of whether the trial 

court’s illustration during voir dire was impactful enough to rise to 

the level of a proper instruction. Instead, our question is whether 

the illustration during voir dire was impactful enough to lower the 

prosecution’s burden of proof, however marginally. As explained 

above, I conclude that it did.

V. Conclusion

¶ 75 In sum, I would conclude (and the majority apparently agrees) 

that, in general, defining reasonable doubt using the crack-in-thefoundation illustration is improper because it lowers the 
36

prosecution’s burden of proof. The majority holds that the trial 

court’s use of that illustration in this case did not lower the 

prosecution’s burden of proof because it is unlikely that the jurors 

considered and applied the illustration. I respectfully disagree 

because (1) the trial court did not tell the jury to ignore the 

illustration; (2) the illustration was not only fully compatible with 

the formal reasonable doubt instructions, it was a more accessible 

and easily understood illustration of reasonable doubt; and (3) the 

illustration came from the judge, whose instructions — formal or 

otherwise — we must presume the jury followed. I would therefore 

conclude that the court’s illustration lowered the prosecution’s 

burden of proof, constituted structural error, and requires reversal 

of Tibbels’ convictions. 
37

APPENDIX

The following cases have discouraged the use of everyday 

examples to explain abstract legal concepts. As of November 17, 

2019, we found seven published cases and sixteen unpublished 

cases discouraging trial courts from using such analogies although 

they have not necessarily warranted reversal.

1. People v. Avila, 2019 COA 145, ¶¶ 41-48 (affirming 

judgment where the court distinguished beyond a 

reasonable doubt from beyond a shadow of a doubt using 

a house with cracks in the foundation or missing pieces 

analogy);

2. People v. Flynn, 2019 COA 105, ¶ 37 (affirming judgment 

where court analogized reasonable doubt to foundational 

cracks and birth certificate validity); 

3. People v. Boyd, 2015 COA 109, ¶ 7 (affirming judgment 

where court explained presumption of innocence did not 

mean the defendant was innocent, but the presumption 

was that he was not guilty and reversing on other 

grounds), aff’d, 2017 CO 2; 
38

4. People v. Baca, 2015 COA 153, ¶ 9 (affirming judgment 

where court analogized reasonable doubt to an 

individual’s decision to drive a motor vehicle); 

5. People v. Carter, 2015 COA 24M-2, ¶ 54 (affirming 

judgment where court analogized reasonable doubt to a 

jigsaw puzzle missing some of the pieces and remanding 

on other grounds to correct mittimus); 

6. People v. Estes, 2012 COA 41, ¶¶ 6-7 (affirming judgment 

where court analogized burden of proof to a customer 

without a gas receipt who is mistakenly reported for 

theft); 

7. People v. Sherman, 45 P.3d 774, 777 (Colo. App. 2001) 

(affirming judgment but noting the trial court defining 

reasonable doubt as “a doubt for which you could give a 

reason. It’s a rational, objective statement of why you 

feel that something hasn’t been proven, or why you have 

a doubt” was error) (emphasis added).

8. People v. Reyes, slip op. at ¶ 8 (Colo. App. No. 18CA0526, 

Nov. 7, 2019) (not published pursuant to C.A.R. 35(e)) 
39

(affirming judgment where court analogized reasonable 

doubt to buying a used car). 

9. People v. Tafoya, slip op. at ¶ 40 (Colo. App. No. 

17CA0910, Apr. 4, 2019) (not published pursuant to 

C.A.R. 35(e)) (affirming judgment where court analogized

reasonable doubt to entering an intersection on a green 

light); 

10. People v. King, slip op. at ¶ 42 (Colo. App. No. 16CA1133, 

Mar. 14, 2019) (not published pursuant to C.A.R. 35(e)) 

(affirming judgment where court analogized reasonable 

doubt to a substantial crack in a house’s foundation); 

11. People v. Taylor, slip op. at ¶ 15 (Colo. App. No. 

16CA1683, Mar. 14, 2019) (not published pursuant to 

C.A.R. 35(e)) (affirming judgment where court analogized

reasonable doubt to “life decisions” such as staying in 

school, choosing a college major, buying a home, and 

getting married); 

12. People in Interest of J.N.S., slip op. at ¶¶ 5-6 (Colo. App. 

No. 16CA0196, June 7, 2018) (not published pursuant to 

C.A.R. 35(e)) (affirming judgment where court analogized
40

reasonable doubt to an engine malfunction or pilots 

drinking heavily at the airport before boarding a 

commercial flight); 

13. People v. Suarez, slip op. at ¶ 18 (Colo. App. No. 

15CA0617, Apr. 5, 2018) (not published pursuant to 

C.A.R. 35(e)) (affirming judgment where court analogized

reasonable doubt to everyday concerns like earthquakes 

and driving); 

14. People v. Lucero, slip op. at ¶¶ 7-8 (Colo. App. No. 

14CA1842, Mar. 22, 2018) (not published pursuant to 

C.A.R. 35(e)) (affirming judgment where court analogized

reasonable doubt to disciplining a child); 

15. People v. Otto, slip op. at ¶ 41 (Colo. App. No. 14CA1328, 

Mar. 15, 2018) (not published pursuant to C.A.R. 35(e)) 

(affirming judgment where court analogized reasonable 

doubt to everyday decision-making like anticipating an 

earthquake, driving a car, or flying on a commercial 

airliner); 

16. People v. Sanchez, slip op. at ¶ 18 (Colo. App. No. 

14CA1170, Jan. 11, 2018) (not published pursuant to 
41

C.A.R. 35(e)) (affirming judgment where trial court asked 

jurors to rely on the same skills they use when driving a 

car or picking out meat for their family in applying 

reasonable doubt and vacating on other grounds); 

17. People v. Essien, slip op. at ¶ 41 (Colo. App. No. 

14CA1375, June 1, 2017) (not published pursuant to 

C.A.R. 35(e)) (affirming judgment where court analogized

reasonable doubt to an incomplete jigsaw puzzle); 

18. People v. Espinoza, (Colo. App. No. 10CA0686, June 20, 

2013) (not published pursuant to C.A.R. 35(f)) (affirming 

judgment where court analogized reasonable doubt to an 

incomplete jigsaw puzzle); 

19. People v. Bonilla-Barrera, (Colo. App. No. 09CA0462, Mar. 

1, 2012) (not published pursuant to C.A.R. 35(f)) 

(affirming judgment where court told the jury the 

defendant “did something” to be in court, and used a gas 

station analogy to explain how to determine if defendant 

broke the law); 

20. People v. Williams, (Colo. App. No. 09CA0906, Jan. 12, 

2012) (not published pursuant to C.A.R. 35(f)) (affirming 
42

judgment where court analogized reasonable doubt and 

presumption of innocence to a customer without a gas 

receipt later charged with theft of gas and vacating on 

other grounds); 

21. People v. Cruz-Avila, (Colo. App. No. 09CA1957, Dec. 8, 

2011) (not published pursuant to C.A.R. 35(f)) (affirming 

judgment where court analogized gas station theft to 

reasonable doubt); 

22. People v. Harris, (Colo. App. 09CA1626, Nov. 3, 2011) 

(not published pursuant to C.A.R. 35(f)) (affirming 

judgment where court told jury that the defendant “did 

something” to be in court and vacating on other 

grounds); and

23. People v. Edwards, (Colo. App. 08CA1764, Aug. 12, 2010) 

(not published pursuant to C.A.R. 35(f)) (affirming 

judgment where court said defendant “may have done 

something,” and “if he did something, well, he may not be 

innocent in the classic sense, but that’s not the issue; 

the issue is whether he committed the crimes” charged).