Peo v. Duffield

22CA1501 Peo v Duffield 07-18-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1501

El Paso County District Court No. 21CR4345

Honorable Monica J. Gomez, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Keith Duffield,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV

Opinion by JUDGE NAVARRO

Pawar and Richman*, JJ., concur

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

Announced July 18, 2024

Philip J. Weiser, Attorney General, Jaycey DeHoyos, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Krista A. Schelhaas, Alternate Defense Counsel, Littleton, Colorado, for

Defendant-Appellant

*Sitting by designation of the Chief Justice under provisions of Colo. Const. art.

VI, § 5(3), and § 24-51-1105, C.R.S. 2023.

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¶ 1 Defendant, Daniel Keith Duffield, appeals the judgment of

conviction imposed on jury verdicts finding him guilty of possession

with the intent to manufacture or distribute a controlled substance

and a special offender count alleging possession of a firearm during

the drug crime. We affirm.

I. Factual and Procedural History

¶ 2 In 2021, Duffield was charged with the counts described

above. He was convicted and sentenced to sixteen years in the

custody of the Department of Corrections. We discuss additional

factual and procedural history as it becomes relevant to Duffield’s

appellate claims.

II. Sufficiency of the Evidence

¶ 3 Duffield contends that the prosecution presented insufficient

evidence to sustain his convictions.

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We disagree.

A. Standard of Review and Applicable Law

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

evidence admitted at trial was sufficient in both quantity and

1

Because it is more efficient to address Duffield’s sufficiency claim

first, we address his claims in an order different from how he

presents them on appeal.

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quality to sustain a defendant’s convictions. Lawrence v. People,

2021 CO 28, ¶ 23. We cannot, however, intrude upon the fact

finder’s role by reweighing the evidence. People v. Kessler, 2018

COA 60, ¶ 12; see People v. Arzabala, 2012 COA 99, ¶ 13 (“An

appellate court is not permitted to act as a ‘thirteenth juror’ and set

aside a verdict because it might have drawn a different conclusion

had it been the trier of fact.”) (citation omitted). Instead, we

recognize that it is the fact finder’s role to determine the questions

of witness credibility and the weight to be given to conflicting items

of evidence, and we must give the prosecution the benefit of every

inference that may fairly be drawn from the evidence. Kessler, ¶ 12.

¶ 5 We employ the substantial evidence test and ask whether the

evidence — viewed as a whole and in the light most favorable to the

prosecution — was substantial and sufficient to support a

conclusion by a reasonable mind that the defendant was guilty of

the charge beyond a reasonable doubt. Gorostieta v. People, 2022

CO 41, ¶ 16. That is, we assess whether “any rational trier of fact

might accept the evidence . . . as sufficient to support” a guilty

finding beyond a reasonable doubt. People v. Sprouse, 983 P.2d

771, 777 (Colo. 1999).

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B. Additional Facts

¶ 6 Law enforcement officers investigated Duffield’s associate,

Samuel Boyd, for manufacturing and selling controlled substances

in Colorado and South Dakota. As part of this investigation, agents

from the federal Drug Enforcement Agency began surveilling a white

Jeep Cherokee that Boyd often used.

¶ 7 In July 2021, the Jeep was seen in Colorado Springs. Officers

observed Boyd, Duffield, and a woman get into the Jeep and run

errands around town before driving the Jeep to South Dakota. At

that time, Duffield was driving the Jeep.

¶ 8 A few days later, Duffield was spotted with the Jeep at a hotel

in South Dakota. Officers observed him carrying a rifle case from

the Jeep to the hotel.

¶ 9 In August 2021, the Jeep was seen parked outside of a

residence in Colorado Springs. Around this time, Boyd’s ex-fiancee,

who owned the Jeep, reported it as stolen. When South Dakota

officers learned this information, they notified officers in Colorado

Springs. Officers surveilling the Colorado Springs residence

watched Duffield arrive by motorcycle and enter the residence. A

short time later, Duffield approached the vehicle and opened the

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driver’s side door. Officers then arrested him. At the time of his

arrest, Duffield had the key fob to the Jeep.

¶ 10 A search of the Jeep revealed 210 grams of methamphetamine

and 27 grams of cocaine, as well as digital scales and plastic

baggies with a monkey emblem. Several firearms were also found.

In addition, officers discovered a green notebook and a pair of

AirPods. One page of the notebook included a reference to selling

AirPods. Also found in the Jeep was a notary stamp belonging to

Duffield.

¶ 11 At trial, the prosecution sought to introduce photos recovered

from Duffield’s phone and his Facebook account that showed him

posing with various firearms. Relevant here, the prosecution

sought to introduce four exhibits:

• Exhibit 34: A message and photos of two firearms,

including a distinctive revolver, sent by Duffield through

Facebook in July 2021;

• Exhibit 35: A photo depicting Duffield holding an AK-47

with a distinctive orange magazine, sent by Duffield

through Facebook in July 2021;

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• Exhibit 36: A message and photo showing Duffield

holding a distinctive black pistol grip shotgun, sent by

Duffield through Facebook in May 2021; and

• Exhibit 37: Six photos of Duffield holding a firearm with

a distinctive drum magazine, sent by Duffield through

Facebook in April 2021.

¶ 12 Duffield objected to admission of these exhibits, arguing that

the photos were irrelevant because the prosecution could not prove

that these specific firearms were the same weapons recovered from

the Jeep. He also argued that the photos showed nothing more

than that he legally possessed the firearms.

¶ 13 The prosecution countered by arguing that the firearms in

Exhibits 34-37 each had distinct features that matched the

firearms found in the Jeep. The prosecutor addressed each photo

in Exhibits 34-37 and identified the distinctive qualities that

matched the firearms seized from the Jeep. Thus, he argued that

the photos made it more likely that Duffield knowingly possessed

the firearms found in the Jeep at the time of his arrest. The trial

court concluded that that the firearms were relevant and not

unfairly prejudicial.

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C. Analysis

¶ 14 Duffield contends that the evidence was insufficient to sustain

his convictions. Specifically, he argues that there was insufficient

evidence establishing his “awareness of the drugs or weapons found

in the vehicle.”

1. Possession With Intent

¶ 15 Under the first charge, the prosecution had to prove beyond a

reasonable doubt that Duffield knowingly possessed a controlled

substance with the intent to dispense, sell, or distribute it. See §

18-18-405(1)(a), C.R.S. 2023. Duffield argues that the evidence was

insufficient to establish that he “knowingly possessed” the drugs at

issue. But we conclude that the evidence was sufficient to permit

the jury to find that he possessed the Jeep where the drugs were

found and that he knew of the drugs.

¶ 16 First, ample evidence indicated that Duffield had the requisite

dominion and control over the Jeep to establish possession of it and

its contents. A “controlled substance need not be found on the

person of the defendant, as long as it is found in a place under his

or her dominion and control.” People v. Warner, 251 P.3d 556, 564-

65 (Colo. App. 2010) (quoting People v. Atencio, 140 P.3d 73, 75

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(Colo. App. 2005)). If a “defendant has exclusive possession of the

premises in which drugs are found, the jury may infer knowledge

from the fact of possession.” People v. Baca, 109 P.3d 1005, 1007

(Colo. App. 2004). If, however, the defendant is not in exclusive

possession of the premises in which the drugs are found, such an

inference may not be drawn unless there are statements or other

circumstances tending to buttress that inference. People v. Stark,

691 P.2d 334, 339 (Colo. 1984); Warner, 251 P.3d at 564-65.

¶ 17 Even under the stricter standard applied to nonexclusive

possession, we conclude the evidence was adequate to show that

Duffield knowingly possessed the Jeep. He was observed driving

the Jeep on multiple occasions before his arrest. At the time of his

arrest, he had the Jeep’s key fob and had opened a Jeep door. And,

on an earlier occasion, Duffield discussed in Facebook messages

the fact he was looking for the key fob to the Jeep.

¶ 18 In addition, several of Duffield’s personal possessions were

found inside the Jeep. For example, officers found an intimate

photo of Duffield and his girlfriend, a notary stamp that bore his

name, a pair of AirPods, and a notebook that included a reference

to the sale of the AirPods. The serial number on the AirPods was

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the same number found on the AirPods that Duffield had attempted

to sell on Facebook.

¶ 19 The evidence was also sufficient to establish that Duffield had

knowledge of the drugs in the Jeep. For example, the same

notebook found that contained references to Duffield’s AirPods also

contained a list of chemicals and a series of numbers that a

detective described at trial as something commonly found in “drug

ledger[s].”

¶ 20 Moreover, the prosecution submitted photographs establishing

a link between Duffield and the drugs found in the Jeep.

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Photos

found on his phone showed empty plastic baggies marked with a

monkey emblem. Empty baggies bearing the same monkey emblem

were found in the Jeep at the time of Duffield’s arrest.

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

prosecution, it was sufficient to permit the jury to find that Duffield

2

Duffield takes issue with the admissibility of the photographs

taken from his phone and Facebook account. When reviewing a

defendant’s assertion that the evidence was insufficient to support

his conviction, however, an appellate court “must consider all the

evidence admitted at trial, including the erroneously admitted

evidence.” People v. Hard, 2014 COA 132, ¶ 39. Furthermore, as

we discuss, we conclude that the photographs we identify as

supporting his conviction were properly admitted.

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had possession of the Jeep and its contents as well as knowledge of

the drugs therein.

¶ 22 Duffield’s arguments to the contrary dispute the persuasive

value or weight of the evidence. But we may not intrude on the

jury’s role by reweighing the evidence. Kessler, ¶ 12. As noted, a

conviction for possession of a controlled substance may be

predicated on circumstantial evidence. Warner, 251 P.3d at 564.

The circumstantial evidence in this case was compelling. Although

the jury perhaps could have reached a different verdict based on the

limitations of the evidence alleged by Duffield, our role is to review

the verdict the jury actually reached, and the evidence provides

support for it.

¶ 23 We take Duffield’s point that others also had access to the

Jeep. But circumstantial evidence (including the “drug ledger” with

information about his AirPods) buttressed the inference that he

knew of the drugs found in the Jeep. Hence, the jury could infer

his knowledge of the drugs even though he did not have exclusive

possession of the Jeep. See People v. Yeadon, 2018 COA 104,

¶¶ 24-29, aff’d, 2020 CO 38; People v. Wilkie, 185 Colo. 149, 151-

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52, 522 P.2d 727, 729 (1974); People v. Storr, 186 Colo. 242, 247,

527 P.2d 878, 881 (1974).

¶ 24 Finally, we note that Duffield challenges only the sufficiency of

the evidence as it relates to his knowing possession of the controlled

substances. At trial, however, the jury was also instructed on a

theory of complicity, meaning that Duffield could have been

convicted if the jury found that he was a complicitor in Boyd’s

commission of the crime. Duffield does not challenge the

sufficiency of the evidence as it relates to complicity. For this

additional, independent reason, we reject his claim that the

evidence was insufficient to support his conviction.

2. Special Offender Count

¶ 25 As pertinent here, a defendant is guilty as a special offender if

the prosecution proves, beyond a reasonable doubt, that the

defendant possessed a deadly weapon, to which the defendant or a

confederate had access in a manner that posed a risk to others or

in a vehicle the defendant occupied, during the commission of a

drug felony. § 18-18-407(1)(d)(II), C.R.S. 2023. Duffield contends

that the prosecution presented insufficient evidence to establish

that he was a special offender. Specially, he says the evidence did

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not permit the jury to find that he knowingly possessed the guns

found in the Jeep.

¶ 26 As discussed above, the evidence was sufficient to establish

that Duffield possessed the Jeep — and, thus, the guns — at the

time of his arrest. And the special offender statute does not express

a mens rea requirement, such as knowingly. See id. Furthermore,

divisions of this court have held that “a mens rea requirement is

neither included in nor implied by the special offender statute.”

People v. Pineda-Eriza, 49 P.3d 329, 332 (Colo. App. 2001); People v.

Vasquez, 768 P.2d 721, 727 (Colo. App. 1988). Duffield does not

acknowledge these decisions, much less argue that they were

wrongly decided. Hence, we reject his sufficiency claim regarding

the special offender count.

¶ 27 Even assuming, however, that the mental state of knowingly

applied to the special offender count, we conclude that the evidence

was sufficient to permit the jury to find that Duffield knowingly

possessed the firearms in the Jeep.

¶ 28 The prosecution offered photos taken from Duffield’s phone

and Facebook account that showed him posing with various

firearms. The prosecution argued that the firearms in each photo

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contained distinctive characteristics that made them identifiable,

such as a “distinctive black pistol grip shotgun,” a “distinctive drum

magazine,” and a “distinctive orange magazine.” The prosecution

connected these photos to evidence sized from the Jeep —

specifically, Exhibits 18-20 and 24. For instance, the prosecutor

argued that the revolver depicted in Exhibit 34 matched the make

and model of the revolver that was found in the Jeep (Exhibit 20)

and that both firearms shared a distinctive scratch. Similarly, the

prosecutor argued that the AK-47 depicted in Exhibit 35 had an

orange stock that appeared to match Exhibit 19, the AK-47 found

in the Jeep. Likewise, the black pistol grip shotgun seen in

Exhibit 36 arguably matched the gun in Exhibit 18, and the firearm

with the distinctive drum magazine seen in Exhibit 37 also

appeared to match the weapon in Exhibit 24. Thus, the

prosecution asserted that the features of the firearms in Duffield’s

photos matched the characteristics of the weapons seized from the

Jeep, making it more likely that he knowingly possessed the

weapons. And officers testified that they had observed Duffield

carrying a plastic rifle case from the Jeep into a hotel.

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¶ 29 Although defense counsel identified alleged dissimilarities

between the guns in the photos and those found in the Jeep, these

differences merely affected the weight to give the evidence. They did

not preclude the jury from relying on the photos, at least in part, to

find that Duffield knew of the weapons found in the Jeep.

¶ 30 In total, the evidence was sufficient to sustain Duffield’s

conviction under the special offender statute.

III. Alleged CRE 404(b) Evidence

¶ 31 Next, Duffield contends that the trial court violated

CRE 404(b) by admitting the photos of Duffield with the firearms

and the photos of the plastic baggies.

A. Standard of Review and Applicable Law

¶ 32 We review a trial court’s evidentiary rulings for an abuse of

discretion. Rojas v. People, 2022 CO 8, ¶ 16.

¶ 33 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. Although generally admissible, relevant

evidence may be excluded “if its probative value is substantially

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outweighed by the danger of unfair prejudice, confusion of the

issues, or misleading the jury.” CRE 403.

¶ 34 Relevant evidence may also be excluded under CRE 404(b)(1),

which prohibits the admission of evidence of “any other crime,

wrong, or act [when offered] to prove a person’s character in order

to show that on a particular occasion the person acted in

conformity with the character.”

B. Analysis

¶ 35 As noted, Duffield argues that the trial court violated Rule

404(b) by admitting the photos of (1) Duffield posing with firearms

and (2) certain plastic baggies. We disagree.

¶ 36 When evaluating whether uncharged conduct evidence triggers

Rule 404(b), a trial court must first determine if the evidence is

intrinsic or extrinsic to the charged offense. Rojas, ¶ 52. Intrinsic

acts are those that (1) directly prove the charged offense or

(2) occurred contemporaneously with the charged offense and

facilitated the commission of it. Id. Evidence of acts that are

intrinsic to the charged offense are exempt from Rule 404(b). Id.

Evidence of extrinsic acts may be subject to Rule 404(b) but only if

the evidence suggests bad character. Id. “[I]f extrinsic evidence

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does not suggest bad character, Rule 404(b) does not apply[,] and

admissibility is governed by Rules 401-403.” Id.

¶ 37 We first consider the photos of the firearms.

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These photos did

not depict acts indicating Duffield’s misconduct or bad character.

Instead, the photos portrayed him legally possessing firearms.

Indeed, defense counsel reiterated on multiple occasions that the

firearms depicted in the photos were legally owned. The prosecutor

did not argue otherwise. Because legally possessing a firearm does

not suggest bad character, this evidence did not trigger Rule 404(b).

See id. at ¶ 51 (recognizing that Rule 404(b) does not govern

evidence that does not implicate bad character even if it makes it

more likely that the defendant committed the charged offense).

¶ 38 Accordingly, we disagree with Duffield’s contention that

admission of this evidence was governed by Rule 404(b) and,

therefore, required an analysis under People v. Spoto, 795 P.2d

1314 (Colo. 1990). Also, given the high probative value of the

evidence, CRE 403 did not bar its admission. See People v. Rath,

3

The parties dispute whether Duffield preserved his CRE 404(b)

claim concerning the firearm photos. We need not resolve this

dispute because we see no error.

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44 P.3d 1033, 1043 (Colo. 2002) (“Because the balance required by

CRE 403 favors admission, a reviewing court must afford the

evidence the maximum probative value attributable by a reasonable

fact finder and the minimum unfair prejudice to be reasonably

expected.”).

¶ 39 We next consider evidence of the plastic baggies. The

prosecution offered into evidence a photo of empty plastic baggies

with a monkey emblem and another photo of vacuum-sealed plastic

baggie that appeared to contain a white powder. These photos were

found on Duffield’s phone. Because Duffield did not object, we

review only for plain error and perceive none. See Hagos v. People,

2012 CO 63, ¶ 14.

¶ 40 The photo of empty plastic baggies with the monkey emblem

did not implicate Rule 404(b) because they did not suggest bad

character. Furthermore, the photo was both material and probative

because the baggies in the photo matched the baggies found in the

Jeep (thus tying Duffield to the Jeep and its contents).

¶ 41 As to whether admitting the photo depicting a vacuum-sealed

baggie containing white powder violated Rule 404(b), we conclude

that any error in admitting it was not plain. As Duffield concedes,

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the photo did not demonstrate that the baggie contained “actual

drugs.” Although a prosecution witness testified that they

“guess[ed]” the white power was methamphetamine, the photo was

not conclusive on that point.

¶ 42 Additionally, there was significant evidence supporting

Duffield’s conviction that he knowingly possessed the drugs. To

reiterate, the evidence indicated that he possessed the Jeep where

the drugs were found. Personal items belonging to Duffield were

found in the Jeep. Photos of empty plastic baggies with a monkey

emblem found on his phone were like the baggies found in the Jeep.

And a “drug ledger” in the Jeep referenced Duffield’s AirPods.

Therefore, any error in admitting the photo of the baggies with a

white substance did not so undermine the fundamental fairness of

the trial as to cast serious doubt on the reliability of the conviction.

See Hagos, ¶ 14.

IV. Jury Instructions

¶ 43 Duffield contends that the trial court lowered the prosecution’s

burden of proof by incorrectly instructing the jury. Specifically, he

argues that the court erred by (1) instructing the jury that he need

only have “constructive possession” of the drugs and guns and

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(2) failing to instruct the jury that the prosecution had the burden

of proving beyond a reasonable doubt each element of the special

offender count.

A. Standard of Review and Relevant Law

¶ 44 We review jury instructions de novo to determine whether, as

a whole, they accurately informed the jury of the governing law.

Riley v. People, 266 P.3d 1089, 1092-93 (Colo. 2011). If the

instructions properly inform the jury of the law, the trial court has

“broad discretion to determine the form and style of jury

instructions.” Day v. Johnson, 255 P.3d 1064, 1067 (Colo. 2011).

Accordingly, we review a trial court’s decision concerning a

proposed jury instruction for an abuse of discretion, and we will not

disturb the ruling unless it is manifestly arbitrary, unreasonable, or

unfair. Id.

B. Possession Jury Instruction

¶ 45 At the jury instruction conference, the prosecutor tendered an

instruction with an expanded definition of possession. Defense

counsel objected, and the trial court declined to give the

prosecution’s possession definition as proposed. But the court

ultimately decided to include two sentences from the instruction

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offered by the prosecution. Again, defense counsel objected.

Despite the objection, the court used the following description of

possession:

“Possession” constitutes a “voluntary act” if the

actor was aware of his physical possession or

control thereof for a sufficient period to have

been able to have terminated it.

The law recognizes several kinds of possession.

A person may have actual possession or

constructive possession. A person may have

sole or joint possession.

The second paragraph came from the prosecution’s proposed

instruction.

¶ 46 “Possession” of a controlled substance does not have a

statutory definition. Patton v. People, 35 P.3d 124, 131 (Colo.

2001). Consequently, we interpret the term by giving effect to its

generally accepted meaning. See People v. Rosburg, 805 P.2d 432,

439 (Colo. 1991). As pertinent here, “[p]ossession” is commonly

understood to mean “control or occupancy of property without

regard to ownership.” Merriam-Webster Dictionary,

https://perma.cc/MRQ2-XPD4.

¶ 47 Consistent with the common meaning of the term, Colorado

case law recognizes that “possession” requires “immediate and

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knowing control over the substance,” regardless of ownership.

Patton, 35 P.3d at 131; People v. Warren, 55 P.3d 809, 816 (Colo.

App. 2002) (approving an instruction that read, “‘Possession,’ . . .

does not necessarily mean ownership, but does mean actual,

physical possession, or the immediate and knowing dominion or

control over the object or the thing allegedly possessed”). Under

Colorado law, therefore, possession may be actual or constructive.

See Storr, 186 Colo. at 247, 527 P.2d at 881 (“[E]ven though a

defendant does not have marijuana on his person, constructive

possession may be proved by showing that the ‘marijuana . . . was

at a place at least partially under his dominion and control.’”)

(citation omitted). As indicated, a person constructively possesses

an item where the person does not have physical possession over an

object but has dominion and control over the place where the object

is found. Warner, 251 P.3d at 565. Consequently, the trial court’s

instruction here was a correct statement of the law.

¶ 48 Arguing otherwise, Duffield says the instruction provided was

problematic because the jury might have understood the term

“constructive possession” to mean “possession without awareness.”

We disagree because we do not consider a jury instruction in a

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vacuum; rather, we consider it in the context of the instructions as

a whole. Johnson v. People, 2019 CO 17, ¶ 14.

¶ 49 The definition of “possession” provided to the jury expressly

stated that possession was a “voluntary act” only if “the actor was

aware of his physical possession or control” over the controlled

substance. (Emphasis added.) Additionally, the instruction

defining the substantive offense expressly said that, to convict, the

jury must find that Duffield “knowingly” possessed the controlled

substance with the intent to distribute. Further, the court gave

another jury instruction that stated, “Proof of the voluntary act

alone is insufficient to prove that the defendant had the required

state of mind,” and the instruction defined “knowingly.”

¶ 50 Given all this, we conclude that the challenged instruction was

not legally erroneous or an abuse of discretion.

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We also note that, in closing arguments, both parties explained to

the jury that Duffield must have had knowledge of the drugs and

firearms to be convicted of the crimes charged.

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C. Special Offender Jury Instruction

¶ 51 Duffield also contends that the trial court erred by failing to

instruct the jury that the prosecution must prove each element of

the special offender count beyond a reasonable doubt.

¶ 52 The elemental instruction regarding the special offender count

(Instruction 15) read as follows:

The elements of the crime of special offender

are:

(1) On or about the date and place

charged

(2) In El Paso County, Colorado

(3) the Defendant

(4) or a confederate of the defendant

possessed a firearm, as defined in these

instructions, to which the defendant or

confederate had access in a manner that

posed a risk to others or in a vehicle the

defendant was occupying at the time of

the commission of the violation.

(Emphasis added.) Duffield did not object to this instruction.

¶ 53 The jury also received an instruction (Instruction 4) explaining

that the “burden of proof is upon 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.”

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(Emphasis added.) The jurors were instructed that, if they found

that the prosecution had failed to prove “any one or more of the

elements of a crime beyond a reasonable doubt,” they should find

Duffield not guilty of that crime. (Emphasis added.)

¶ 54 It would have been better practice to include the beyond a

reasonable doubt standard in Instruction 15, defining the elements

of the special offender count. Considered in combination, however,

Instructions 4 and 15 advised the jury that it could not convict

Duffield of the special offender crime unless the prosecution proved

every element of that crime beyond a reasonable doubt.

¶ 55 We acknowledge that Instruction 12 was odd. That

instruction advised the jury that, if it found Duffield guilty of

possession with intent to manufacture or distribute a controlled

substance, it should answer a special interrogatory on the verdict

form relating to (1) the weight of the methamphetamine and

(2) whether he possessed a firearm during the offense. The

instruction noted that prosecution had to prove the amount of

methamphetamine beyond a reasonable doubt but did not make the

same note as to the prosecution’s burden of proof for possession of

the firearms.

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¶ 56 Referring to a special interrogatory on firearm possession in

Instruction 12 was apparently a mistake, however, because the jury

did not receive such an interrogatory on the verdict form for the

possession of a controlled substances charge. Instead, the jury

received a separate special offender verdict form, on which the jury

found him guilty of that crime.

¶ 57 Although the instructions were not ideal, we must read them

as a whole. Doing so, we conclude that the alleged error was not

prejudicial enough to constitute plain error. See Hagos, ¶ 14

(explaining that the plain error standard was formulated only “to

correct ‘particularly egregious errors’”) (citation omitted).

V. Cumulative Error

¶ 58 Finally, we disagree with Duffield that the alleged errors

require reversal under the cumulative error doctrine.

¶ 59 “When reviewing for cumulative error, we ask whether

‘numerous formal irregularities, each of which in itself might be

deemed harmless, may in the aggregate show the absence of a fair

trial.’” People v. Vialpando, 2022 CO 28, ¶ 33 (quoting Howard-

Walker v. People, 2019 CO 69, ¶ 24). To reverse under this

doctrine, we must conclude that “the cumulative effect of [multiple]

25

errors and defects substantially affected the fairness of the trial

proceedings and the integrity of the fact-finding process.” Howard-

Walker, ¶ 24 (quoting People v. Lucero, 200 Colo. 335, 344, 615

P.2d 660, 666 (1980)).

¶ 60 Because we have rejected most of Duffield’s assertions of error,

and because the other alleged errors were not substantial, we

conclude that, even in the aggregate, the asserted errors do not

show the absence of a fair trial.

VI. Conclusion

¶ 61 The judgment is affirmed.

JUDGE PAWAR and JUDGE RICHMAN concur.