Peo v. Fenstermacher

• Court: Colorado Court of Appeals
• Decided: June 4, 2026
• Docket: 23CA1001
• Status: Unpublished

Opinion

23CA1001 Peo v Fenstermacher 06-04-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1001 Moffat County District Court No. 21CR6 Honorable Sandra H. Gardner, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Murray A. Fenstermacher,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division II Opinion by JUDGE KUHN Fox and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 4, 2026

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Murray A. Fenstermacher, appeals his judgment of

conviction for possession of a controlled substance with intent to

distribute, a controlled substance special offender sentence

enhancer, and possession of drug paraphernalia. We affirm in part,

vacate in part, and remand with directions.

I. Background

¶2 Fenstermacher owned, operated, and resided in a vehicle

repair shop. Three informants reported to law enforcement that

Fenstermacher dealt methamphetamine from the shop. Police

officers executed a search warrant and searched the shop, seizing

(among other items) methamphetamine, drug paraphernalia, several

firearms, and Fenstermacher’s cell phone. Fenstermacher was

arrested and subsequently charged with seven counts (four of

which were later dismissed).

¶3 The informants also reported that Fenstermacher was involved

in the commissions of burglary, robbery, assaults, and menacing.

Fenstermacher was charged for those activities in a separate

criminal matter that trailed this case (the burglary case).1

1 Following the conviction in this case, the trial court granted the

prosecution’s motion to dismiss the burglary case.

1 ¶4 Despite extensive efforts by the trial court, this case took

several years to bring to trial. During that time, Fenstermacher was

consistently uncooperative and argumentative. He eventually

proceeded to trial pro se.

¶5 The jury found Fenstermacher guilty of possession with intent

to sell or distribute a schedule II controlled substance, a controlled

substance special offender sentence enhancer, and possession of

drug paraphernalia. See § 18-18-405(1)(a), (2)(b)(I)(B), C.R.S. 2025;

§ 18-18-407(1)(d)(II), C.R.S. 2025; § 18-18-428(1), C.R.S. 2025. The

trial court sentenced him to a controlling term of twenty years in

the custody of the Department of Corrections.

¶6 Fenstermacher now appeals, contending that the trial court

erred by (1) finding that he implicitly waived his right to counsel;

(2) not finding that state actors had destroyed exculpatory evidence;

(3) finding that the search warrant affidavit supported probable

cause; (4) denying two motions to continue the trial; (5) permitting

prosecutorial misconduct; and (6) providing an improper reasonable

doubt jury instruction. He further contends that (7) the

prosecution presented insufficient evidence to support the special

offender sentence enhancer.

2 ¶7 We address each issue in turn, along with a correction to the

mittimus.

II. Waiver of Right to Counsel

¶8 Fenstermacher contends that he did not implicitly waive his

right to counsel through his contumacious conduct when he

requested a third appointment of counsel. We are not persuaded.

A. Additional Facts

¶9 At the start of the initially scheduled trial, the trial court

allowed Fenstermacher’s first appointed counsel to withdraw

because Fenstermacher had physically threatened him.

Fenstermacher claimed that a conflict arose over counsel being

unable to obtain what Fenstermacher alleged were exculpatory text

messages from his seized cell phone, which had become locked

when law enforcement attempted to extract its data. See infra Part

III.B. The court continued the trial and indicated that although it

had previously given Fenstermacher an advisement under People v.

Arguello, 772 P.2d 87 (Colo. 1989), it would wait until after plea

negotiations to do so again. Fenstermacher then proceeded pro se

and engaged in plea negotiations.

3 ¶ 10 After the parties failed to reach a plea agreement, the trial

court provided Fenstermacher with his second Arguello advisement.

Fenstermacher then agreed to a second appointment of counsel.

¶ 11 At a later pretrial hearing, the court advised Fenstermacher of

the charges and sentences he faced. At the second appointed

counsel’s request, the court sealed the hearing, and counsel advised

the court that Fenstermacher had threatened her with litigation.

Fenstermacher alleged that counsel had misled him by not

conducting additional investigations to recover the text messages

from his cell phone. Counsel represented to the court that, despite

a thorough investigation, she could not obtain the text messages on

the cell phone, and she had made that clear to Fenstermacher. She

stated that, based on her experience and evaluation of the strengths

and weaknesses of the case, she had strongly urged Fenstermacher

to take a disposition.

¶ 12 The court then provided a partial new Arguello advisement,

although Fenstermacher interrupted it. Ultimately, Fenstermacher

requested that the second appointed counsel be permitted to

withdraw. Fenstermacher stated that he was going to attempt to

hire private pro bono counsel, something he had represented to the

4 court in the past. The court warned Fenstermacher of the “great

perils” in discharging his second appointed counsel because he

would likely have to proceed to trial pro se.

¶ 13 The trial court then found that Fenstermacher had created a

conflict by threatening his second appointed counsel because he

was not satisfied with her investigation or advice. The court

concluded that Fenstermacher did not have a well-founded reason

to believe that his second appointed counsel could not competently

represent him. Although Fenstermacher expressed reservations

about acting pro se, the court ruled that there was not a complete

breakdown in communication and a new substitution of counsel

was not warranted because it would lead to the same results “at

some point down the road.”

¶ 14 The court accordingly presented Fenstermacher with the

choice to continue with appointed counsel or proceed pro se.

Although Fenstermacher avoided answering the question directly,

the court reiterated the choice multiple times. In the end, the court

found that Fenstermacher’s refusal to work with appointed counsel

without good cause constituted an implied voluntary waiver of his

right to counsel.

5 B. Standard of Review and Applicable Law

¶ 15 The Sixth Amendment to the United States Constitution

guarantees criminal defendants the fundamental right to counsel.

People v. Lavadie, 2021 CO 42, ¶ 23. While it also implies a right to

self-representation, a defendant may only proceed pro se if he first

waives his right to counsel. Id. at ¶¶ 23, 25. To be valid, a waiver

must be made voluntarily, knowingly, and intelligently. Id. at ¶ 26.

¶ 16 “A defendant’s lack of good faith in working with appointed

counsel, including an unreasonable refusal to cooperate with

counsel or an unreasonable request for substitution of appointed

counsel, can be the first step toward waiver of counsel.” Arguello,

772 P.2d at 94. “Once the trial court appropriately has determined

that a substitution of counsel is not warranted, the court can insist

that the defendant choose between continued representation by

existing counsel and appearing pro se.” Id. The defendant then

effects a voluntary waiver if the defendant refuses without good

cause to proceed with existing appointed counsel. Id.

¶ 17 Even though an implied waiver is voluntary, the trial court

must also ensure that the defendant made the waiver knowingly

and intelligently. Id. This means the record must clearly show that

6 “the defendant understood the nature of the charges, the statutory

offenses included within them, the range of allowable punishments,

the possible defenses to the charges and circumstances in their

mitigation, and all other facts essential to a broad understanding of

the whole matter.” Lavadie, ¶ 28.

¶ 18 We review the validity of a waiver as a mixed question of fact

and law. Id. at ¶ 22. We accept the trial court’s factual findings if

they are supported by competent evidence in the record, but we

analyze de novo the facts’ legal significance. Id.

¶ 19 In assessing the validity of a waiver, we must “indulge every

reasonable presumption against finding a waiver of the right to

counsel.” Id. at ¶ 29. We do not only examine the trial court’s

advisement; we also apply a “flexible, totality-of-the-circumstances

test to determine if a defendant has validly waived his right to

counsel.” Id. at ¶ 43.

C. Fenstermacher Implicitly Waived His Right to Counsel

¶ 20 Fenstermacher argues that he did not implicitly waive his right

to counsel because the waiver was not voluntary and he did not act

knowingly or intelligently.

7 ¶ 21 Specifically, Fenstermacher asserts that the waiver of his right

to counsel was not voluntary because there was an irreconcilable

breakdown with appointed counsel due to her inability to obtain the

allegedly exculpatory cell phone data. The court then showed, so

Fenstermacher claims, an unwillingness to inquire into his desire to

obtain new counsel who would acquire the cell phone data. These

actions purportedly violated Fenstermacher’s rights by forcing him

to choose between his right to counsel and his good faith attempt to

present a defense based on the cell phone data.

¶ 22 But Fenstermacher’s argument ignores crucial details from the

proceedings. Considering the totality of the circumstances, the

record clearly shows that Fenstermacher’s discord with his counsel

stemmed from his unreasonable animosity. See Arguello, 772 P.2d

at 94. Fenstermacher’s conflicts with his lawyers didn’t arise from

irreconcilable differences. Both conflicts with his appointed counsel

arose from Fenstermacher threatening each of them — either

physically or with litigation. It’s difficult to conceive of conduct

more uncooperative and unreasonable than threatening one’s own

counsel. See People in Interest of B.H., 2021 CO 39, ¶ 74

(“Threatening to kill one court-appointed lawyer and then failing to

8 cooperate with the replacement is clearly inconsistent with

asserting the right to appointed counsel.”).

¶ 23 Furthermore, the trial court found, and the record supports,

that both appointed lawyers had attempted to obtain the cell phone

data that Fenstermacher sought. See infra Part III.B. Indeed, the

second appointed counsel informed the trial court that in thirty

years she had never had an investigator do more investigating for a

single defendant than the investigator had done for Fenstermacher.

¶ 24 Accordingly, the record supports the trial court’s finding that

Fenstermacher merely disliked his second appointed counsel’s

advice and inability to secure unobtainable evidence. This does not

constitute an irrevocable breakdown over his choice of defense. See

People v. Hodges, 134 P.3d 419, 425 (Colo. App. 2005) (“Neither the

existence of animosity between [the] defendant and [counsel] nor

[counsel’s] asserted disagreement with [the] defendant regarding the

strength of [the] defendant’s case constitutes an actual conflict of

interest requiring the appointment of substitute counsel.”), aff’d on

other grounds, 158 P.3d 922 (Colo. 2007).

¶ 25 It follows that Fenstermacher’s conduct warranted the trial

court pressing him to choose between continuing with existing

9 counsel or proceeding pro se. See Arguello, 772 P.2d at 94.

Because the choice was warranted, he was not unduly compelled.

Cf. Lavadie, ¶ 27 (“A waiver is voluntary if it is ‘not extracted by

threats or violence, promises, or undue influence.’ (quoting People v.

Davis, 2015 CO 36M, ¶ 18)). Therefore, Fenstermacher’s lack of

good faith and refusal to continue working with his appointed

counsel supports the trial court’s conclusion that he effected an

implied, voluntary waiver of his right to counsel. See Arguello, 772

P.2d at 94.

¶ 26 Fenstermacher next argues that he did not knowingly and

intelligently waive his right because he believed that if he could not

retain private counsel, then the court would appoint him new

counsel.

¶ 27 The record shows that, over the course of three Arguello

advisements, Fenstermacher affirmed multiple times that he

understood the nature of the charges, the statutory offenses, the

range of punishments, the possible defenses, and all other essential

facts to the case. See Lavadie, ¶ 28. What is more, during the

sealed hearing, the trial court (1) warned Fenstermacher of the

“great perils” of proceeding pro se; (2) made clear findings that

10 substitution of counsel wasn’t warranted; (3) advised him that he

likely would not later receive substitute counsel; and (4) noted that

he had not yet hired private counsel despite having said he was

going to do so. The trial court thus ensured that Fenstermacher

had “a broad understanding of the whole matter.” Id. His later

professed confusion over the trial proceedings is refuted by the

record, which shows that the court made him fully aware that his

waiver was not conditioned on the acquisition of private counsel.

See People v. Wilson, 397 P.3d 1090, 1095 (Colo. App. 2011) (“Once

a defendant validly waives his right to counsel, he has no

unconditional right to withdraw the waiver.”), aff’d, 2015 CO 37;

People v. Romero, 694 P.2d 1256, 1264 (Colo. 1985) (“[A]n accused’s

legal knowledge is not relevant to an assessment of whether his

exercise of the right to defend himself is knowingly made . . . .”).2

2 We decline to address Fenstermacher’s conclusory assertion that

the court failed to inquire into his mental state under Indiana v. Edwards, 554 U.S. 164, 177-78 (2008) (“[T]he Constitution permits judges to take realistic account of the particular defendant’s mental capacities by asking whether a defendant who seeks to conduct his own defense at trial is mentally competent to do so.” (emphasis added)). This is because Fenstermacher fails to develop this argument or explain how his competency was at issue. See People v. Liggett, 2021 COA 51, ¶ 53, aff’d, 2023 CO 22.

11 ¶ 28 In sum, the totality of the circumstances supports that

Fenstermacher implicitly waived his right to counsel voluntarily,

knowingly, and intelligently.

III. Destruction of Evidence

¶ 29 Fenstermacher contends that his right to due process was

violated because a state actor effectively destroyed text messages

contained on his cell phone. He alleges that law enforcement

caused the cell phone to lock, which prevented him from accessing

the text messages.3 We are not convinced.

A. Standard of Review and Applicable Law

¶ 30 We review de novo whether the State violated a defendant’s

due process rights. People v. Eason, 2022 COA 54, ¶ 40.

¶ 31 “The Due Process Clause of the Fourteenth Amendment

mandates that the [S]tate disclose to criminal defendants favorable

evidence that is material to either guilt or punishment.” People v.

Braunthal, 31 P.3d 167, 172 (Colo. 2001). “To establish a due

3 We reject the People’s contention that this issue was not

preserved. Although Fenstermacher did not file a formal motion, he brought the issue to the trial court’s attention numerous times, and the prosecution raised and presented testimony on the issue during a motions hearing, giving the trial court an adequate opportunity to rule on the matter. See Martinez v. People, 2015 CO 16, ¶ 14.

12 process violation based on the [S]tate’s failure to preserve

potentially exculpatory evidence, the defendant ‘must prove that the

evidence was suppressed or destroyed by state action and that the

evidence was material.’” Eason, ¶ 37 (quoting Braunthal, 31 P.3d at

172). “More specifically, the defendant ordinarily must show that

(1) the [S]tate suppressed or destroyed the evidence; (2) the evidence

had an exculpatory value that was apparent before it was

destroyed; and (3) [the defendant] was unable to obtain comparable

evidence by other reasonably available means.” Id.

¶ 32 Exculpatory evidence means evidence that is material, and

“evidence is material only if there is a reasonable probability that,

had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” People v. Lowe, 2020 COA

116, ¶ 10 (quoting People v. White, 64 P.3d 864, 874 (Colo. App.

2002)). “If, however, the evidence in question wasn’t apparently

exculpatory, but only potentially useful, a defendant alternatively

establishes a due process violation [by showing] that the [S]tate

suppressed or destroyed the evidence in bad faith.” Eason, ¶ 38.

13 B. Additional Facts

¶ 33 Acting under the search warrant, police officers seized

Fenstermacher’s cell phone during their search of his shop. A

forensic examiner partially extracted data from the cell phone; that

data was disclosed to Fenstermacher. Yet the extraction failed to

obtain all the cell phone’s data, including certain text messages,

and the phone became locked during the forensic process.

¶ 34 Fenstermacher then moved for the return of the cell phone so

that he could attempt to access the text messages, which he

contended were exculpatory. The prosecution objected because the

cell phone was potential evidence.

¶ 35 Fenstermacher’s first appointed counsel represented to the

trial court that on two occasions he met with a police technician

and unsuccessfully attempted to view the text messages. Although

counsel represented that law enforcement and the prosecution had

“been very helpful” with counsel’s attempts to access the text

messages, the cell phone remained locked, and Fenstermacher

required the cell phone so that he could try to unlock it with the aid

of Apple Support.

14 ¶ 36 The trial court denied the motion to return the cell phone but

allowed Fenstermacher and counsel to attempt to access the phone

under law enforcement’s supervision. The two then met with law

enforcement and tried to unlock the cell phone for roughly an hour

to no avail.

¶ 37 Later, counsel told the trial court that he was working on

“being able to access the information on the Cloud.” But when the

issue next arose, Fenstermacher — by then pro se — said that he

needed a court order before his cell phone provider would grant him

access to his cell phone’s records. He didn’t follow up with a

motion for such an order.

¶ 38 Thereafter, at a motions hearing, the prosecution raised the

issue to clarify the record. The prosecutor presented witness

testimony recounting Fenstermacher’s attempt to access the phone,

briefly explained how the phone became locked, and summarily

recounted what data was successfully recovered. The prosecutor

then stipulated that he wouldn’t use anything obtained from the

phone in his case-in-chief. Based on that stipulation, the court

ordered that the prosecution could not present the recovered cell

phone data at trial.

15 ¶ 39 At the end of the trial, after the jury was sent to deliberate,

Fenstermacher requested to make a further record about the cell

phone. He alleged that he could download the text messages if

allowed to charge and reset his cell phone. Although

Fenstermacher had previously made numerous general claims

about the content of the text messages, the court allowed

Fenstermacher to make a final, detailed offer of proof about what

the text messages contained.

¶ 40 In his offer of proof, Fenstermacher said that the text

messages revealed information about the informants who were

victims in the burglary case and provided the basis for the search

warrant. These claims against the informants involved, among

many other things, the following: lying about burglary; engaging in

credit card theft; paying $600 for a car title; molesting, robbing, and

date-raping various victims; refusing to move out of the shop;

stealing $7,000; stealing cars; using an extendable baton; stealing

moving boxes; failing to pick up a flag; and embezzling $80,000.

¶ 41 The trial court found that, based on the offer of proof, the text

messages had no bearing on the methamphetamine-related charges

in this case.

16 C. The Cell Phone Did Not Have Apparent Exculpatory Value

¶ 42 We begin by analyzing the apparent exculpatory value of the

cell phone data and text messages because if the evidence was not

apparently exculpatory, we need not address whether the cell phone

data or text messages were destroyed or whether there were other

means to obtain the text messages or other cell phone data. See

Braunthal, 31 P.3d at 175 (“[A]ll three prongs of the [destruction of

evidence test] must be satisfied in order for [the defendant] to

establish a due process violation.”).

¶ 43 Fenstermacher asserts that the exculpatory value of the cell

phone was apparent because the search warrant sought the cell

phone to uncover inculpatory evidence. In other words, according

to Fenstermacher, because law enforcement thought that the cell

phone had potentially inculpatory data, it must have thought that

the cell phone also had potentially exculpatory data.

¶ 44 It is fatal to Fenstermacher’s contention that the search

warrant merely indicated that law enforcement suspected that the

cell phone had potentially relevant evidence. Fenstermacher does

not point to any fact suggesting that the cell phone clearly held

17 relevant or exculpatory data. And the search warrant did not

indicate that law enforcement reasonably foresaw that the cell

phone necessarily contained material evidence, inculpatory or

exculpatory. Cf. id. at 172 (holding that the prosecution’s duty to

preserve evidence applies “[w]hen it is reasonably foreseeable that

evidence may be favorable to the accused”). As indicated, the

warrant established only that the evidence sought was potentially

relevant, and potentially relevant evidence is clearly distinct from

apparently useful evidence, which is itself distinct from apparently

exculpatory evidence. See Eason, ¶ 48 (holding that speculative and

conclusory assertions are insufficient to establish apparent

exculpatory value); cf. Braunthal, 31 P.3d at 172 (“[T]he

prosecution’s duty to prevent the loss or destruction of evidence

that may be favorable to the defendant is not absolute.”).

¶ 45 We further reject Fenstermacher’s assertion that his offer of

proof (as well as his other claims) about the text messages

demonstrated that the data had apparent exculpatory value. First,

his offer of proof and other claims were presented after the cell

phone became locked, thus having no bearing on what would have

been apparent to law enforcement “before [the evidence] was

18 destroyed.” Eason, ¶ 37 (emphasis added). Second, his offer of

proof demonstrated that the text messages related to the

motivations and actions of the informants in the burglary case.

Such factors were irrelevant to the material issues at trial, as the

informants weren’t expected to be (and in fact weren’t) called as

witnesses by the prosecution. Cf. id. at ¶ 48 (“[E]xculpatory

evidence includes evidence which bears on the credibility of a

witness the prosecution intends to call at a trial.” (alteration in

original) (quoting Braunthal, 31 P.3d at 174)).

¶ 46 Fenstermacher alternatively argues that, even if the data’s

exculpatory value was not apparent, his due process rights were

violated because the State acted in bad faith by preventing him

from accessing the text messages. According to Fenstermacher, the

prosecutor and law enforcement officers deliberately gave him less

time than they knew he would need to unlock the cell phone and

access the text messages.

¶ 47 To the contrary, Fenstermacher does not direct us to evidence

showing that the phone was deliberately locked in bad faith. The

testimony at the motions hearing demonstrated that the cell phone

locked during the data extraction for unknown reasons, and the

19 prosecutor disclosed the information law enforcement was able to

extract. This evinces an “imperfect collection of evidence, not the

destruction thereof.” People v. Casias, 59 P.3d 853, 856 (Colo.

2002).

¶ 48 Further, Fenstermacher’s argument is contradicted by the

following facts, which show that he was provided with several

opportunities to attempt to unlock the phone:

• His first appointed counsel was afforded at least three

separate opportunities to access the cell phone.

• Law enforcement provided Fenstermacher with full access

to the cell phone for an hour so that he and his counsel

could make several attempts to access the text messages.

• Fenstermacher’s counsel said that the prosecution and law

enforcement had been “very helpful” in assisting with the

attempts to unlock the phone.

This record demonstrates that the State, in good faith, provided

Fenstermacher with opportunities to unlock the cell phone. That

the State couldn’t provide Fenstermacher with an unlimited amount

of time to continue his efforts does not demonstrate otherwise. Cf.

20 Eason, ¶ 52 (holding that inadvertent, not willful, destruction of

evidence did not support finding bad faith).

¶ 49 Because the cell phone had no apparent exculpatory value and

Fenstermacher has not shown that the State acted in bad faith,

Fenstermacher’s due process challenge fails. See id. at ¶¶ 37-38.

IV. Search Warrant

¶ 50 Fenstermacher contends that the search warrant lacked

probable cause because the affidavit for the warrant relied on stale

information regarding drug activity. We disagree.

¶ 51 “The Fourth Amendment to the United States Constitution and

article II, section 7 of the Colorado Constitution prohibit

unreasonable searches and seizures.” People v. Cox, 2018 CO 88,

¶ 7. “Under both constitutions, ‘a search warrant may only be

issued upon a showing of probable cause, supported by oath or

affirmation, particularly describing the place to be searched and the

things to be seized.’” Id. (quoting People v. Kerst, 181 P.3d 1167,

1171 (Colo. 2008)).

¶ 52 “Probable cause exists when an affidavit for a search warrant

alleges sufficient facts to warrant a person of reasonable caution to

21 believe that contraband or evidence of criminal activity is located at

the place to be searched.” People v. Miller, 75 P.3d 1108, 1112

(Colo. 2003). “[L]aw enforcement’s affidavit must establish a nexus

between the alleged criminal activity and the place to be searched.”

People v. Seymour, 2023 CO 53, ¶ 54. The affidavit must also

provide a “substantial basis” that a search would uncover evidence

of a crime. Id. (quoting Illinois v. Gates, 462 U.S. 213, 236 (1983)).

¶ 53 We generally give a probable cause determination “great

deference.” Cox, ¶ 10 (quoting People v. Hebert, 46 P.3d 473, 481

(Colo. 2002)). Our task is to assess whether the court had a

“substantial basis” for issuing the search warrant, resolving any

doubt in favor of the probable cause determination. Id. (quoting

Hebert, 46 P.3d at 481). In doing so, we must consider “the totality

of the facts and circumstances” before the court. Seymour, ¶ 54

(quoting Henderson v. People, 879 P.2d 383, 391 (Colo. 1994)).

¶ 54 The currentness or staleness of information is important to

our totality of the circumstances analysis. Miller, 75 P.3d at 1113.

“Whether the information is stale and cannot support probable

cause depends on the factual circumstances and the type of crime.”

Id. “For warrants involving drug trafficking specifically, when there

22 is evidence ‘demonstrating that the alleged drug trafficking activity

was ongoing over a considerable period of time[,] . . . the passage of

time between the suspected illegal activities and issuance of the

warrant diminishes in significance.” People v. Cooper, 2016 CO 73,

¶ 13 (second alteration in original) (citation omitted). Also, if an

affidavit is based on a tip from an informant, we must take into

account the informant’s reliability and basis of knowledge. People

v. Randolph, 4 P.3d 477, 481 (Colo. 2000).

¶ 55 When reviewing the denial of a motion to suppress, we defer to

the court’s factual findings and will not disturb those findings if

they are supported by competent evidence in the record. People v.

Brown, 217 P.3d 1252, 1255 (Colo. 2009). However, we review the

trial court’s conclusions of law de novo. Id.

B. Additional Facts

¶ 56 The search warrant, which was executed in 2020, stated that

three informants, one of whom had provided reliable information in

the past, reported to law enforcement that between September 2

and September 11, 2020, Fenstermacher had committed the crimes

at issue in the burglary case. The search warrant affidavit also

contained the following reports from the informants — made

23 without specific dates — that criminal drug activity was taking

place at Fenstermacher’s shop:

• “During [an] interview[,] [two of the informants] told the

[police officer] that for the last two to three weeks

[Fenstermacher] and several other people that were involved

in the illegal drug trade in Moffat County had been accusing

[one of the informants] of stealing people’s property.”

• “[An informant] stated that [Fenstermacher] took his black

Harley Davidson motorcycle and traded it to [an

acquaintance] for methamphetamine and shortly after

[Fenstermacher] began making accusations that [the

informant] had been stealing property from him and other

people.”

• “While in the shop, [an informant] stated she saw multiple

meth pipes and drug paraphernalia laying on a table in the

loft . . . .”

• “[An informant] stated [Fenstermacher] has used

methamphetamine in front of her on numerous occasions

and she has seen methamphetamine and pipes in the shop

on multiple occasions in the recent past.”

24 • “[An informant] stated that he has seen [Fenstermacher] in

possession of large quantities of methamphetamine on

multiple occasions and [Fenstermacher] often hides the

methamphetamine in plastic bags inside the used oil cans.”

• “[An informant] stated it was common for the large garage

door to be partially open when [Fenstermacher] has large

quantities of illegal drugs and is actively dealing.”

• “Based on prior information from other reliable confidential

sources[,] [the police officer] [had] been told the [shop] is

used as a front to facilitate an ongoing criminal enterprise

that includes illegal drug use, possession, [and]

distribution . . . .”

¶ 57 Law enforcement investigated from September 11 to

September 23. They then applied for and received a search warrant

on September 30. Police officers executed the search warrant on

October 7, 2020.

¶ 58 Fenstermacher’s second appointed counsel filed a motion to

suppress the seized evidence based upon the search warrant

lacking probable cause. The trial court denied the motion to

25 suppress, finding that the warrant was supported by sufficient

probable cause and that the police had acted in good faith.

C. The Information in the Search Warrant’s Affidavit Was Not Stale

¶ 59 Fenstermacher claims that the warrant lacked probable cause

because it was not executed until October 7, nearly a month after

the last reported criminal activity around September 10. This

delay, claims Fenstermacher, made the affidavit’s information

regarding drug trafficking stale, especially as the information about

methamphetamine did not include specific dates.4 We reject

Fenstermacher’s contention for three reasons.

¶ 60 First, contrary to Fenstermacher’s view, the affidavit indicated

that the drug trafficking was ongoing because Fenstermacher

(1) was said to be known to traffic drugs; (2) had recently acquired

methamphetamine through trade; (3) used methamphetamine and

displayed methamphetamine paraphernalia on “numerous

occasions”; (4) possessed large quantities of methamphetamine “on

multiple occasions”; (5) “often” hid methamphetamine in the shop;

4 Fenstermacher does not contest on appeal that the affidavit

established a nexus between the alleged criminal activity and the place searched. See People v. Seymour, 2023 CO 53, ¶ 54.

26 and (6) frequently used the shop’s garage door to signal drug

dealing. These numerous and multiple occasions during which

Fenstermacher was recently observed using and handling

methamphetamine — done with enough regularity that

Fenstermacher reportedly had a system to signal when he was

actively dealing — provided a substantial basis for a reasonable

officer to conclude that Fenstermacher’s recent criminal drug

activity had been ongoing over a considerable period, even without

specified dates. See Cooper, ¶ 14 (“[T]he lack of specific dates does

not lead us to conclude that the information was so stale that no

reasonable police officer could rely on the warrant.”). It follows that

the passage of a month between the burglary case’s criminal

activities and the search was not significant to the currentness of

the drug trafficking information. See id. at ¶ 13.

¶ 61 Second, Fenstermacher cites in support of his claim People v.

Miller, where the supreme court determined that a warrant was

invalid after an “excessive delay” of “almost a month” between the

police observations and execution of the warrant. 75 P.3d at 1114-

15. But Miller doesn’t stand for the proposition that an affidavit

becomes stale solely based on the passage of a month. To the

27 contrary, the supreme court in Miller “emphasize[d] that there is no

bright line rule for counting of days in considering whether the

affidavit is based on stale information.” Id. at 1116 n.7. Indeed,

the staleness in Miller arose from the fact that the affidavit’s current

information on drug manufacturing at one location didn’t relate to

the limited illegal activity from a month prior at another location

that was the target of the search. Id. at 1115.

¶ 62 Distinguishable from Miller, the information in the affidavit

here focused on the same location for both the ongoing criminal

activity and the place to be searched. In such situations, “courts

have held that observations dating back more than one month were

not stale.” Id. at 1116 n.7 (citing cases). Consequently, Miller

weighs against Fenstermacher’s position.

¶ 63 Third, Fenstermacher claims that the warrant lacked probable

cause because the police did not corroborate the informants’

statements. But considering the great deference afforded the

probable cause determination, the totality of the circumstances

shows that the informants were sufficiently reliable. See Cox, ¶ 10;

Seymour, ¶ 54. The affidavit established that the informants based

their information on personal observations; their accounts were

28 generally consistent; and they were able to provide specific details

about the layout of the shop and Fenstermacher’s drug activities —

including that Fenstermacher hid the methamphetamine in oil

cans. See Randolph, 4 P.3d at 481-82 (“The totality of the

circumstances analysis also may include the depth of detail

provided by the informant, as courts have inferred reliability from

an informant’s ability to provide details that could not be obtained

easily.”). And one of the informants had provided reliable

information in the past that led to a successful prosecution. See

People v. McCoy, 870 P.2d 1231, 1234 n.6 (Colo. 1994) (“Reliability

of a confidential informant can be supported by showing that the

informant in the past has supplied information that proved

reliable.”). What is more, the affidavit stated that there was some

degree of corroboration achieved through the police officer’s

confidential sources.

¶ 64 Therefore, the warrant did not lack probable cause because

the information was current and reliable, and as a result, we need

not consider a good faith exception. See People v. Gutierrez, 222

P.3d 925, 941 (Colo. 2009) (holding that “evidence obtained in

violation of the Fourth Amendment should not be suppressed in

29 circumstances where the evidence was obtained by officers acting in

objectively reasonable reliance on a warrant issued by a detached

and neutral magistrate, even if that warrant was later determined to

be invalid”).

V. Motions to Continue

¶ 65 Fenstermacher contends that the trial court abused its

discretion by denying two motions to continue the trial. He claims

that the continuances were justified because he needed more time

to (1) review discovery and obtain evidence from his cell phone and

(2) gather witnesses central to his defense. We are unpersuaded.

¶ 66 We review a trial court’s denial of a motion for a continuance

for an abuse of discretion. People v. Rainey, 2023 CO 14, ¶ 14.

“A trial court abuses its discretion in denying a motion to continue

if, under the totality of the circumstances, its ruling is manifestly

arbitrary, unreasonable, or unfair.” People v. Garrison, 2017 COA

107, ¶ 12 (quoting People v. Faussett, 2016 COA 94M, ¶ 12).

¶ 67 Our review must evaluate the circumstances at the time the

motion to continue was made, particularly the reasons presented to

the trial court when the request was denied. People v. Ahuero, 2017

30 CO 90, ¶ 11. There is no mechanical test for our determination,

and the trial court is given a great deal of latitude in scheduling the

trial. Id. at ¶ 12. “Consequently, broad discretion must be granted

trial courts on matters of continuances; only an unreasoning and

arbitrary ‘insistence upon expeditiousness in the face of a justifiable

request for delay’ violates the right to the assistance of counsel.” Id.

(quoting Morris v. Slappy, 461 U.S. 1, 11-12 (1983)).

¶ 68 Although Fenstermacher had implicitly waived his right to

counsel, the court appointed advisory counsel to assist him through

trial. Four days before trial, Fenstermacher filed a motion to

continue. The trial court held a sealed hearing at the start of trial

to address the motion. In that hearing, Fenstermacher alleged that

he lacked full access to discovery and didn’t have proper knowledge

of how to proceed without counsel. He also claimed he needed

more time to obtain the text messages that he believed were

exculpatory.

¶ 69 The trial court extensively reviewed the record regarding

Fenstermacher’s implied waiver of his right to counsel, his previous

attempts to recover the text messages, and the court’s denial of his

31 motion to suppress the search warrant. The trial court made the

following findings as to why the motion to continue was unjustified:

• Fenstermacher had been out of custody for approximately

six months.

• Fenstermacher had been consistently unwilling to work

with court-appointed counsel.

• The prosecution opposed the continuance, was ready to

proceed, and had witnesses subpoenaed.

• The case had been pending for two years and had already

had multiple continuances.

• The court had a busy docket.

• Fenstermacher demonstrated an improper motive to delay

by attempting to argue the evidence rather than addressing

the motion to continue.

Based on the circumstances, the trial court denied the motion

because there was no guarantee that any continuance would result

in Fenstermacher being better prepared.

¶ 70 At trial, after Fenstermacher called all of his available

witnesses, he again requested a continuance. Fenstermacher had

failed to file a motion or obtain a stipulation from the prosecution to

32 call witnesses by Webex, and he claimed that he hadn’t understood

that he needed to have the witnesses subpoenaed. He noted that

he had presumed that subpoenas would automatically issue based

on his expected witness list. Accordingly, he moved for a

continuance so that he could attempt to obtain those witnesses who

had not appeared. In connection with his motion, he made an offer

of proof as to the missing witnesses’ testimony. The court then

denied his motion to continue because it concluded that none of the

testimony would be admissible.

C. The Denials of the Motions to Continue Were Not Abuses of Discretion

¶ 71 Regarding his motion to continue prior to trial, Fenstermacher

claims it was justified because it served the narrow purpose of

allowing him to try to obtain the text messages.

¶ 72 We are not persuaded because the record fully supports the

trial court’s finding that Fenstermacher consistently demonstrated

an unwillingness and inability to prepare. The case was already

two years old and had been continued multiple times, affording

Fenstermacher ample time to attempt to obtain the text

messages — including during the six months he spent out of

33 custody before trial. In addition, Fenstermacher’s continual

argumentative and uncooperative conduct supports the trial court’s

finding that his motives were improper. Moreover, further delay

would have prejudiced the prosecution — which was ready to

proceed — and impacted the court’s already busy docket. See

People v. Senette, 2018 COA 105, ¶ 9 (holding that prejudice to the

nonmoving party is a relevant factor to consider in determining

whether to grant a continuance); cf. People v. Sandoval-Candelaria,

2014 CO 21, ¶ 26 (“[O]ur cases make clear that trial courts have

broad discretion to manage their dockets.”). Under such

circumstances, the court’s ruling was not unreasonable, arbitrary,

or unfair. See Ahuero, ¶ 12; Garrison, ¶ 12.

¶ 73 Similarly, we disagree with Fenstermacher’s claim that the

court abused its discretion by denying his motion to continue

submitted near the end of the trial.

¶ 74 Fenstermacher’s claim that he didn’t understand the

subpoena process was not grounds for delay because he had

advisory counsel to assist him with such matters. Besides, at that

late point in the trial, Fenstermacher’s need for more time to locate

additional witnesses was not a compelling reason for a continuance,

34 given that the court found the expected testimony would have been

irrelevant. See Ahuero, ¶ 12 (holding that the difficulties inherent

in “assembling the witnesses, lawyers, and jurors at the same place

at the same time . . . counsel[] against [a] continuance[] except for

compelling reasons” (quoting Morris, 461 U.S. at 11)).

VI. Prosecutorial Misconduct

¶ 75 Fenstermacher contends that the prosecutor committed

misconduct during closing argument by (1) referencing facts not in

evidence when he directed the jury to consider Fenstermacher’s

actions in the courtroom and (2) denigrating Fenstermacher’s pro se

defense. We disagree.

¶ 76 A prosecutor has wide latitude to make closing arguments that

are based on facts in evidence and reasonable inferences drawn

from those facts, People v. McBride, 228 P.3d 216, 221 (Colo. App.

2009), especially when responding to a defense argument, People v.

Tran, 2020 COA 99, ¶ 58. But the prosecutor may not misstate or

misinterpret the law, refer to facts not in evidence, or denigrate the

defense. People v. McMinn, 2013 COA 94, ¶ 62; People v. Welsh,

176 P.3d 781, 788 (Colo. App. 2007).

35 ¶ 77 We use a two-step analysis to review prosecutorial misconduct

claims. Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010). First,

we evaluate whether the prosecutor’s conduct was improper under

the totality of the circumstances. Id.; see McMinn, ¶ 60. In making

this determination, we consider the language used, the strength of

the evidence supporting the conviction, and the context in which

the statements were made — including, among other things,

asserted defenses. See Domingo-Gomez v. People, 125 P.3d 1043,

1050 (Colo. 2005).

¶ 78 Second, if there was misconduct, we determine whether

reversal is required under the applicable standard of review. Wend,

235 P.3d at 1096; People v. Robinson, 2019 CO 102, ¶ 18. Because

Fenstermacher didn’t object to the asserted misconduct at trial, we

review his claim for plain error. See Robinson, ¶ 19. An error is

plain if it so undermines the fundamental fairness of the trial itself

as to cast serious doubt on the reliability of the jury’s verdict.

Domingo-Gomez, 125 P.3d at 1053. In the context of prosecutorial

misconduct, we will reverse for plain error only “when the

misconduct was ‘flagrantly, glaringly, or tremendously improper.’”

Robinson, ¶ 19 (quoting Domingo-Gomez, 125 P.3d at 1053).

36 Consequently, prosecutorial misconduct in closing argument rarely

constitutes plain error. People v. Sauser, 2020 COA 174, ¶ 101.

B. Facts Not in Evidence

¶ 79 Fenstermacher asserts that the prosecutor improperly referred

to facts not in evidence in the following statements that commented

on Fenstermacher’s questioning of witnesses:

• “We also learned that [Fenstermacher] had an intimate

knowledge of everything that was located in that north loft.

What do we know? When he’s having a back-and-forth

colloquy with [a police officer] on the stand about the double-

barrel shotgun that’s inoperable, he’s describing the

markings on it, the rust, the way that he came into

possession of it. He knows that item in and out.”

(Emphasis added.)

• “[S]prinkled throughout Mr. Fenstermacher’s questioning and

his witness testimony is the implication that somebody else

did this. It wasn’t me; it was someone else. . . . Who knows

about what’s behind the false back wooden container?

Murray Fenstermacher. Because why? Because I know

what these guns are . . . . [W]hat else is in there? A

37 dangerous weapon. [A 9mm handgun], two clips, hollow

point bullets also in there. Murray Fenstermacher’s.

Murray Fenstermacher was asking questions to try to have it

both ways.” (Emphasis added.)

• “Is it a party place or is it not a party place? Like what are

we talking about here? [He asked these] [q]uestions to one of

the witnesses]. Was I a party guy? Hesitation . . . . People

used to come over to his place and they were in a bad way.

What does that mean? What does ‘in a bad way’ mean? Are

they having a hard time with the drugs that they’re using?

They’re coming over to get help from him?”5 (Emphasis

added.)

¶ 80 Apart from the comments regarding the shotgun, we don’t

perceive the prosecutor’s statements as acting as “a vehicle for

injecting irrelevant issues into the case.” People v. Rodriguez, 2021

COA 38M, ¶ 31.

5 Fenstermacher did object to this statement on the grounds that

“he’s just sitting here putting stuff in these guys’s head [sic] that was never ever said.” Fenstermacher does not argue that this objection preserved the contention he advances on appeal.

38 ¶ 81 To begin, the prosecutor’s remarks about Fenstermacher’s

questions and his witness testimony could be fairly construed as

inartful “comment[s] on [Fenstermacher’s] characterization of the

facts and theory of the case.” People v. Webster, 987 P.2d 836, 842

(Colo. App. 1998); see Domingo-Gomez, 125 P.3d at 1051 (holding

that the court should give the prosecutor the benefit of the doubt

where remarks are ambiguous or inartful). And while a close call,

such statements by the prosecutor fell within the wide latitude he

had to respond to Fenstermacher’s arguments. Cf. Domingo-Gomez,

125 P.3d at 1051 (concluding that the prosecutor’s inartful

statements to the jury that a witness “did not tell you the truth”

were, in context, proper comments “on reasonable inferences

stemming directly from the facts in evidence during closing

argument”).

¶ 82 However, the prosecutor’s comments on how Fenstermacher

described the shotgun may have been more than merely inartful.

See id.; cf. Martinez v. People, 244 P.3d 135, 141 (Colo. 2010)

(noting that statements attacking a defendant’s credibility by the

defendant’s mere presence are “improper because they are not

based on reasonable inferences from evidence in the record”). It is

39 true that Fenstermacher’s questions themselves are not evidence

that the jury may consider. See People v. Krueger, 2012 COA 80,

¶ 59. But even though the questions are not evidence, the

prosecutor had some leeway to respond to asserted facts that

Fenstermacher’s questions had injected into the case. Cf. People v.

Iversen, 2013 COA 40, ¶ 37 (“[A] prosecutor has considerable

latitude in replying to opposing counsel’s argument[s].”).

¶ 83 Regardless, even assuming that the prosecutor’s challenged

comments were improper, the remarks amounted to a few, brief

statements focused on the appearance of the shotgun — not a

critical issue in the case — and therefore were not flagrantly,

glaringly, or tremendously improper. See Robinson, ¶ 19; Domingo-

Gomez, 125 P.3d at 1053 (“Comments that were ‘few in number,

momentary in length, and were a very small part of a rather prosaic

summation’ do not warrant reversal under the plain error

standard.” (quoting People v. Mason, 643 P.2d 745, 753 (Colo.

1982))).

C. Denigrating the Defense

¶ 84 Fenstermacher claims that the following statements made by

the prosecutor during his closing argument denigrated

40 Fenstermacher’s pro se defense by mimicking Fenstermacher and

mocking his trial strategy and performance:

• “Well, you know, it was during COVID. People needed to

come over and say hi. We’re jamming up there. We’re

playing music. Did you see guitars and amplifiers and all

this stuff? Is it a party place or is it not a party place? Like

what are we talking about here? [He asked these]

[q]uestions to [one of the witnesses]. Was I a party guy?

Hesitation.”

• “[Fenstermacher] wants you to believe that the security

system is for insurance purposes, to protect people’s

vehicles, to protect my tools, to protect my car repair parts.

Those aren’t stored up in the north loft. That’s not a place

where you put that stuff. Okay? . . . If the purpose of those

security cameras was legitimate business, there’s no reason

for the north loft stairs to have that camera.”

• “Ladies and gentlemen, either this is the vast conspiracy;

everybody’s against me; [a police officer] planted that chalet

container up on that shelving unit; or it is beyond a

41 reasonable doubt a thing that was happening at [the shop]

up in that north loft.”

• “Ladies and gentlemen, [Fenstermacher’s closing argument]

was a request for sympathy there. But let’s please, please

follow the law.”

¶ 85 In context, none of these comments note Fenstermacher’s pro

se status, and the statements are not improper argument that there

was a lack of evidence to support Fenstermacher’s theory that only

legitimate activities were taking place at his shop. See 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.”). Moreover, the prosecutor characterizing

Fenstermacher as appealing to sympathy — while also correctly

encouraging the jury to follow the law — fairly responded to

Fenstermacher’s closing argument. See People v. Wallace, 97 P.3d

262, 269 (Colo. App. 2004).

¶ 86 Nonetheless, Fenstermacher characterizes the prosecutor’s

mimicry of him as ridicule. We disagree with this proposition.

Nothing in the cold record suggests that the imitations did more

than present the prosecutor’s version of Fenstermacher’s defense.

42 See Domingo-Gomez, 125 P.3d at 1048 (holding that rhetorical

flourishes fall within a prosecutor’s “wide latitude in the language

and presentation style used”). And Fenstermacher notably did not

object to the prosecutor imitating him, supporting that the

comments weren’t glaringly improper. See Robinson, ¶ 19; People v.

Cevallos-Acosta, 140 P.3d 116, 122 (Colo. App. 2005) (holding that

a defendant’s failure to object to the conduct at issue “is a factor to

be considered in examining the impact of a prosecutor’s closing

argument” (quoting Wallace, 97 P.3d at 269)).

¶ 87 Therefore, we perceive the prosecutor’s comments as an

attempt to draw the jury’s focus to relevant evidence and not as

denigrating Fenstermacher. See People v. Allee, 77 P.3d 831, 836

(Colo. App. 2003).

VII. Reasonable Doubt Instruction

¶ 88 Fenstermacher contends that the reasonable doubt jury

instruction provided by the trial court lowered the prosecution’s

burden of proof. We are unconvinced.

¶ 89 The trial court gave the following reasonable doubt jury

instruction, which was identical to the COLJI-Crim. E:03 (2022)

instruction:

43 Every person charged with a crime is presumed innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless, after considering all the evidence, you are convinced that the defendant is guilty beyond a reasonable doubt.

The burden of proof in this case is upon the prosecution. The prosecution must prove to the satisfaction of the jury beyond a reasonable doubt the existence of each and every element necessary to constitute the crime charged. This burden requires more than proof that something is highly probable, but it does not require proof with absolute certainty.

Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. If you are firmly convinced of the defendant’s guilt, then the prosecution has proven the crime charged beyond a reasonable doubt. But if you think there is a real possibility that the defendant is not guilty, then the prosecution has failed to prove the crime charged beyond a reasonable doubt.

After considering all the evidence, if you decide the prosecution has proven each of the elements of a crime charged beyond a reasonable doubt, you should find the defendant guilty of that crime.

After considering all the evidence, if you decide the prosecution has failed to prove any one or more of the elements of a crime charged beyond a reasonable doubt, you should find the defendant not guilty of that crime.

44 (Emphasis added.)

¶ 90 Fenstermacher asserts that the instruction’s reliance on the

2022 model instruction lowered the prosecution’s burden of proof

by (1) failing to inform the jury to consider the “lack of evidence”

when determining reasonable doubt; (2) failing to inform the jury

that reasonable doubt “would cause reasonable people to hesitate to

act in matters of importance to themselves”; (3) instructing the jury

that reasonable doubt requires a “real possibility that the defendant

is not guilty”; and (4) framing reasonable doubt in terms of whether

Fenstermacher proved a “real possibility” of his innocence.

¶ 91 For all that, at least two divisions of this court have now

rejected these contentions, as Fenstermacher acknowledges. See

People v. Schlehuber, 2025 COA 50, ¶¶ 7-34; People v. Melara, 2025

COA 48, ¶¶ 10-32; see also People v. Berumen, 2025 COA 93,

¶¶ 14-33 (recently agreeing with Schlehuber and Melara that the

2022 model instruction is an accurate statement of the law).

Indeed, the division in Schlehuber specifically addressed the same

assertions Fenstermacher makes here, holding that the COLJI-

Crim. E:03 (2022) reasonable doubt instruction does not lower the

burden of proof for the following reasons:

45 • The instruction adequately informs the jury of the

prosecution’s burden despite not instructing the jury to

consider the “lack of evidence.” Schlehuber, ¶¶ 21-25.

• “[S]o long as the instruction otherwise correctly defines the

reasonable doubt standard,” the absence of the “hesitate to

act” phrase does not constitute error. Id. at ¶¶ 26-28.

• The “real possibility” language accurately expresses the

reasonable doubt standard. Id. at ¶¶ 30-31; see also

Melara, ¶ 30 (approving the real possibility language as “an

accurate statement of the law”).

• The “real possibility” language explains the threshold that

the prosecution needs to overcome and does not shift the

burden to the defendant. Schlehuber, ¶ 34.

For the reasons articulated by those divisions, with which we agree,

we reject Fenstermacher’s contention that the trial court’s

reasonable doubt instruction impermissibly lowered or shifted the

prosecution’s burden of proof. See id. at ¶ 35; Melara, ¶ 32.

VIII. Sufficiency of the Sentence Enhancer Evidence

¶ 92 Fenstermacher contends that the prosecution failed to prove

the special offender sentence enhancer because there was

46 insufficient evidence that he had access to a firearm. We are

unconvinced.

¶ 93 Irrespective of preservation, we review the record de novo to

determine whether the trial evidence was sufficient to sustain the

jury’s verdict. McCoy v. People, 2019 CO 44, ¶ 27; Dempsey v.

People, 117 P.3d 800, 807 (Colo. 2005). In completing this task, we

must determine whether the evidence, when viewed as a whole and

in the light most favorable to the prosecution, is substantial and

sufficient to support a conclusion by a rational fact finder that the

defendant is guilty beyond a reasonable doubt. Clark v. People, 232

P.3d 1287, 1291 (Colo. 2010). We give the prosecution the benefit

of every reasonable inference that can fairly be drawn from the

evidence, so long as any inference is supported by a convincing

logical connection between the facts established and the conclusion

inferred. People v. Perez, 2016 CO 12, ¶ 25.

¶ 94 Section 18-18-407(1) governs special offender sentence

enhancers for drug felonies and states that a person who commits a

felony drug offense, including possession with intent to distribute,

under defined aggravating circumstances commits a “level 1 drug

47 felony and is a special offender.” In pertinent part, an aggravating

circumstance includes when

[t]he defendant or a confederate of the defendant possessed a firearm, as defined in section 18-1-901(3)(h)[, C.R.S. 2025], 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.

§ 18-18-407(1)(d)(II).6

¶ 95 Fenstermacher was inside his shop when law enforcement

executed the search warrant and detained him. A police officer

testified that the shop contained “a lot” of tools. During the search

of the shop’s loft area, police officers noticed shelving and a cabinet

with paneling in front of it. Observing an opening in the cabinet,

they “removed” or “pulled out” the paneling to reveal a concealed

compartment. There they found a loaded SIG 9mm handgun, an

inoperable shotgun, and a Rossi .22 caliber rifle. The handgun

appeared to be functional. An acquaintance of Fenstermacher’s

6 Section 18-1-901(3)(h), C.R.S. 2025, defines firearm as “any

handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges.”

48 testified at trial that the night before the search, the acquaintance

had given Fenstermacher the shotgun and rifle so that

Fenstermacher could help refinish them.

¶ 96 In his closing argument, the prosecutor contended that

Fenstermacher could access the handgun, thus posing a risk to law

enforcement, because the shop had tools that he could use to

remove the concealed compartment’s paneling.

C. Sufficient Evidence of Access to the Handgun Supported the Special Offender Finding

¶ 97 Fenstermacher contends that there was insufficient evidence

to support that the handgun, as the only clearly operable firearm,7

was immediately accessible. This is because (1) there was

insufficient evidence to show that Fenstermacher could have

breached the paneling to access the handgun and (2) there was an

absence of evidence of how the handgun was placed in the

concealed compartment. He claims that the only modicum of

evidence suggesting that he could access the handgun was general

7 The evidence indicated that the shotgun was inoperable. There was conflicting testimony as to whether the rifle was operable. The police also located in the loft a seemingly inoperable, antique pistol. No black powder, balls, or caps needed to discharge the pistol were found in the loft.

49 testimony that there were tools in the shop. The testimony,

according to Fenstermacher, was inadequate to support that the

paneling could be timely removed by such tools because the

testimony did not specify what the tools were or where they were

located.

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

prosecution, as we must, we disagree. See Clark, 232 P.3d at 1291.

Evidence presented at trial established the following regarding

access to the handgun:

• Fenstermacher was present in the shop.

• The shotgun and rifle were left with Fenstermacher the

night before police officers searched his shop.

• At the time of the search, there was a concealed

compartment in the north loft that held the loaded

handgun, as well as the shotgun and rifle.

• Police officers had “removed” or “pulled out” the paneling to

access the concealed compartment.

• Pictures of the concealed compartment and paneling were

admitted into evidence.

50 From this, a reasonable juror could infer that Fenstermacher could

have accessed the loaded handgun by removing the paneling and

accessing the concealed compartment at the time the police

searched the shop, thus posing a risk to law enforcement.8 See id.

at 1292.

¶ 99 Fenstermacher claims that he couldn’t have easily removed

the paneling, but it is not our role to reevaluate the jury’s

conclusion or second-guess its findings. 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.” (citations

omitted)).

¶ 100 Here, the police officers testified that they removed or pulled

off the paneling without stating that they had any difficulties, and

the jury was provided pictures of the paneling and the concealed

8 Fenstermacher does not contest on appeal that the handgun had

some nexus to the commission of the offense. Cf. People v. Atencio, 878 P.2d 147, 150 (Colo. App. 1994) (holding that section 18-18-407(1)(f), C.R.S. 1993, which is substantially similar to the current subsection (1)(d)(I) language, requires “some nexus between the deadly weapon and the drug offense upon which the enhanced sentence is based”).

51 compartment. Evidence that Fenstermacher had received two of

the weapons the prior evening supports the inference that he had

recently accessed the compartment. All of this evidence was

sufficient to allow a reasonable jury to infer that Fenstermacher was

capable of immediately removing the paneling himself. See People

v. Chase, 2013 COA 27, ¶ 50 (“If there is evidence upon which one

may reasonably infer an element of the crime, the evidence is

sufficient to sustain that element.”); cf. People v. Bondurant, 2012

COA 50, ¶ 58 (“Where reasonable minds could differ, the evidence is

sufficient to sustain a conviction.” (quoting People v. Carlson, 72

P.3d 411, 416 (Colo. App. 2003))). And even if the jury thought that

tools were necessary to remove the paneling, it could have

reasonably concluded that such tools were readily available

according to the pictures and videos of the shop, along with

testimony that “a lot” of tools were inside. See Clark, 232 P.3d at

1293-94 (evidence was sufficient even though it was circumstantial

and conflicting).

¶ 101 Fenstermacher further argues, citing People v. Serna-Lopez,

2023 COA 21, that he could not have possessed the handgun

52 because there was no evidence showing how the handgun became

concealed.

¶ 102 We disagree with the premise. Assuming without deciding

that Fenstermacher’s possession and access depended on him

knowing the handgun’s location,9 the evidence showed that the

shotgun and rifle were left with Fenstermacher the day before the

search. As those two firearms were located in the concealed

compartment by the police officers, the jury could infer that

Fenstermacher placed the firearms in the compartment before the

search, establishing that he knew of the compartment and its

contents. As the handgun was also in the concealed compartment,

the jury could further infer that Fenstermacher also knew of and

possessed the handgun by virtue of concealing it in the same

hidden location — within the shop he owned and resided at — as

the other firearms in his possession. Cf. People v. Harris, 2016 COA

159, ¶ 67 (“[T]he prosecution is not obliged to disprove the

9 We note that the special offender sentence enhancer does not

require proof of a specific mental state. See People v. Hopper, 284 P.3d 87, 91-92 (Colo. App. 2011); People v. Whitaker, 32 P.3d 511, 518 (Colo. App. 2000), aff’d, 48 P.3d 555 (Colo. 2002).

53 defendant’s theories in order for the evidence to be deemed

sufficient under the substantial evidence test.”).

¶ 103 In sum, giving the prosecution the benefit of every reasonable

inference, there was sufficient evidence to sustain the special

IX. Correction to the Mittimus

¶ 104 We can correct a sentence not authorized by law at any time.

Crim. P. 35(a). As discussed supra Part I, the trial court sentenced

Fenstermacher to a controlling term of twenty years in the custody

of the Department of Corrections. More specifically, the court

sentenced Fenstermacher to twenty years on the controlled

substance special offender count (count 2) and eight years on the

possession with intent to sell or distribute a schedule II controlled

substance count (count 1). The court ordered these sentences to

run concurrently.

¶ 105 However, “[t]rial courts may not enter a separate conviction or

sentence on a count that is only a sentence enhancer.” People v.

Torrez, 2013 COA 37, ¶ 23. And the special offender count is a

sentence enhancer. See People v. Rios, 43 P.3d 726, 731 (Colo.

App. 2001) (“The special offender statute does not create a

54 substantive offense but, instead, increases the sentence for the

underlying offense.”). Thus, rather than receiving a separate

sentence, the special offender sentence enhancer raises the

conviction for the possession count to a level 1 drug felony and

establishes the range of years to which the defendant can be

sentenced. See § 18-18-407(1); § 18-1.3-401.5(7), C.R.S. 2025.

¶ 106 The parties agree that the trial court erred by entering a

conviction and sentencing Fenstermacher on the special offender

count. The record of the sentencing hearing clearly establishes that

the trial court intended that Fenstermacher serve a sentence of

twenty years in prison, plus the three-year mandatory parole term.

See Rios, 43 P.3d at 732; § 18-1.3-401.5(2)(a). The parties also

agree on this point.

¶ 107 Accordingly, we vacate the conviction and sentence for the

special offender count (count 2) and remand the case to the trial

court to correct the mittimus by amending the judgment of

conviction on the possession count (count 1) to reflect that it is a

level 1 drug felony; this means that the trial court will apply the

twenty-year sentence previously imposed for the sentence enhancer

count to the possession count. See People v. Martinez, 36 P.3d 201,

55 204-05 (Colo. App. 2001). The court should further amend the

mittimus to reflect that count 2 is a sentence enhancer.

X. Disposition

¶ 108 The conviction and sentence for the controlled substance

special offender count (count 2) are vacated, and the case is

remanded with directions to correct the mittimus to reflect a single

twenty-year sentence for the level 1 drug felony on count 1 —

possession with intent to sell or distribute a schedule II controlled

substance — as directed in this opinion. The judgment of

conviction is affirmed in all other respects.

JUDGE FOX and JUDGE SULLIVAN concur.