24CA0195 Peo v Marceleno 02-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0195 Weld County District Court No. 22CR1016 Honorable Timothy Kerns, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Danny Marceleno,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE SULLIVAN Fox and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Chelsea A. Carr, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Danny Marceleno, appeals the judgment of
conviction entered after a bench trial at which he was found guilty
of possession of contraband in the second degree. We affirm.
I. Background
¶2 Deputies at the Weld County jail moved Marceleno, an inmate,
to a “dry cell” because they suspected he possessed narcotics. A
dry cell lacks a toilet and fountain so that inmates suspected of
having contraband can’t dispose of it. A body scan and strip search
of Marceleno revealed a small cellophane bag containing a white
powdery substance concealed in his genital area. A subsequent
search of Marceleno’s cell revealed a second cellophane bag
containing bean paste hidden in his mattress and a third
cellophane bag containing a white, crystal-like substance located in
a pair of pants in a shared clothes hamper. Deputies disposed of
the bag of bean paste because, as a food product, it couldn’t be
stored in evidence. They sent the other two bags to a Colorado
Bureau of Investigation (CBI) lab for analysis.
¶3 Believing that the substances in the bags contained
methamphetamine, Deputy Brian Hammond conducted a
videotaped interview of Marceleno to obtain more information.
1 During the interview, Marceleno made several inculpatory
statements about the substances in the bags found on his person
and in his mattress.
¶4 The prosecution charged Marceleno with one count of
possession of contraband in the second degree. § 18-8-204.2,
C.R.S. 2025. Marceleno waived his right to a jury trial and
proceeded to a bench trial.
¶5 At trial, a CBI forensic scientist testified that the bag found in
the shared clothes hamper tested positive for methamphetamine.
However, the forensic scientist didn’t analyze the substance found
on Marceleno’s person.
¶6 In a detailed oral ruling, the district court found Marceleno
guilty and sentenced him to eighteen months in the custody of the
Department of Corrections.
II. Sufficiency of the Evidence
¶7 Marceleno contends that the prosecution presented
insufficient evidence to convict him of possession of contraband in
the second degree because (1) CBI didn’t chemically test the
substances in the bags found on his person and in his mattress
and (2) the prosecution didn’t establish that he possessed the
2 substance found in the shared clothes hamper. We conclude the
prosecution satisfied its burden, even without a chemical test, by
presenting circumstantial evidence regarding the substances found
on his person and in his mattress. Given our conclusion, we need
not address whether Marceleno possessed the substance found in
the shared clothes hamper.
A. Standard of Review and Applicable Law
¶8 In a challenge to the sufficiency of the evidence, we “review the
record de novo to determine whether the evidence before the [fact
finder] was sufficient both in quantity and quality to sustain the
defendant’s conviction.” Johnson v. People, 2023 CO 7, ¶ 13
(quoting Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010)). We
evaluate whether the evidence, “direct and circumstantial, when
viewed as a whole and in the light most favorable to the
prosecution, is substantial and sufficient to support a conclusion
by a reasonable mind that the defendant is guilty of the charge
beyond a reasonable doubt.” Id. (quoting Clark, 232 P.3d at 1291).
¶9 With exceptions not relevant here, a person confined in a
detention facility commits possession of contraband in the second
degree if they knowingly obtain or possess contraband.
3 § 18-8-204.2(1). The definition of contraband includes controlled
substances. § 18-8-204(2)(o), C.R.S. 2025. Section 18-18-102(5),
C.R.S. 2025, defines a controlled substance as a drug, substance,
or immediate precursor included in schedules I through V as set
forth in sections 18-18-203 to -207, C.R.S. 2025.
Methamphetamine is a schedule II drug. § 18-18-204(2)(c)(II),
C.R.S. 2025.
¶ 10 The prosecution need not necessarily present a chemical test
to prove that a particular substance is contraband. See People v.
Steiner, 640 P.2d 250, 252 (Colo. App. 1981). Instead, the
prosecution may satisfy its burden through circumstantial
evidence. See id.; People in Interest of J.G., 97 P.3d 300, 303 (Colo.
App. 2004). Examples of such circumstantial evidence include
representations and admissions made by the defendant, behavior
consistent with use or possession of the controlled substance, and
the defendant’s furtiveness. See, e.g., J.G., 97 P.3d at 303; Steiner,
640 P.2d at 252; People v. Edwards, 598 P.2d 126, 128 (Colo.
1979).
4 B. Analysis
¶ 11 Viewing the evidence in the light most favorable to the
prosecution and affording the prosecution the benefit of every
reasonable inference, we conclude that the prosecution presented
sufficient evidence to prove beyond a reasonable doubt that
Marceleno committed possession of contraband in the second
degree.
¶ 12 Marceleno doesn’t dispute that the prosecution presented
evidence that deputies found one small bag containing a white
powdery substance concealed in his genital area and a second bag
containing bean paste hidden in his mattress. From this evidence,
the district court could reasonably infer that Marceleno knowingly
possessed the substances in the two bags. See People v. Miralda,
981 P.2d 676, 679 (Colo. App. 1999) (“Intent may . . . be established
from circumstantial evidence and from the inferences that may
reasonably be drawn from those circumstances.”); People v.
Summitt, 132 P.3d 320, 324 (Colo. 2006) (evidence of concealment
“can be admissible to show consciousness of guilt”).
¶ 13 Marceleno’s primary argument is that the prosecution
presented insufficient evidence that the substances in the two bags
5 constituted “contraband” under section 18-8-204.2(1). We disagree.
Deputy Hammond testified that the substance in the bag found on
Marceleno’s person appeared to be methamphetamine. Moreover,
in the body camera footage submitted into evidence by the
prosecution, Deputy Hammond told Marceleno that the substance
found on his person tested positive for methamphetamine. While
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24CA0195 Peo v Marceleno 02-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0195 Weld County District Court No. 22CR1016 Honorable Timothy Kerns, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Danny Marceleno,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE SULLIVAN Fox and Kuhn, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 26, 2026
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patrick R. Henson, Alternate Defense Counsel, Chelsea A. Carr, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Danny Marceleno, appeals the judgment of
conviction entered after a bench trial at which he was found guilty
of possession of contraband in the second degree. We affirm.
I. Background
¶2 Deputies at the Weld County jail moved Marceleno, an inmate,
to a “dry cell” because they suspected he possessed narcotics. A
dry cell lacks a toilet and fountain so that inmates suspected of
having contraband can’t dispose of it. A body scan and strip search
of Marceleno revealed a small cellophane bag containing a white
powdery substance concealed in his genital area. A subsequent
search of Marceleno’s cell revealed a second cellophane bag
containing bean paste hidden in his mattress and a third
cellophane bag containing a white, crystal-like substance located in
a pair of pants in a shared clothes hamper. Deputies disposed of
the bag of bean paste because, as a food product, it couldn’t be
stored in evidence. They sent the other two bags to a Colorado
Bureau of Investigation (CBI) lab for analysis.
¶3 Believing that the substances in the bags contained
methamphetamine, Deputy Brian Hammond conducted a
videotaped interview of Marceleno to obtain more information.
1 During the interview, Marceleno made several inculpatory
statements about the substances in the bags found on his person
and in his mattress.
¶4 The prosecution charged Marceleno with one count of
possession of contraband in the second degree. § 18-8-204.2,
C.R.S. 2025. Marceleno waived his right to a jury trial and
proceeded to a bench trial.
¶5 At trial, a CBI forensic scientist testified that the bag found in
the shared clothes hamper tested positive for methamphetamine.
However, the forensic scientist didn’t analyze the substance found
on Marceleno’s person.
¶6 In a detailed oral ruling, the district court found Marceleno
guilty and sentenced him to eighteen months in the custody of the
Department of Corrections.
II. Sufficiency of the Evidence
¶7 Marceleno contends that the prosecution presented
insufficient evidence to convict him of possession of contraband in
the second degree because (1) CBI didn’t chemically test the
substances in the bags found on his person and in his mattress
and (2) the prosecution didn’t establish that he possessed the
2 substance found in the shared clothes hamper. We conclude the
prosecution satisfied its burden, even without a chemical test, by
presenting circumstantial evidence regarding the substances found
on his person and in his mattress. Given our conclusion, we need
not address whether Marceleno possessed the substance found in
the shared clothes hamper.
A. Standard of Review and Applicable Law
¶8 In a challenge to the sufficiency of the evidence, we “review the
record de novo to determine whether the evidence before the [fact
finder] was sufficient both in quantity and quality to sustain the
defendant’s conviction.” Johnson v. People, 2023 CO 7, ¶ 13
(quoting Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010)). We
evaluate whether the evidence, “direct and circumstantial, when
viewed as a whole and in the light most favorable to the
prosecution, is substantial and sufficient to support a conclusion
by a reasonable mind that the defendant is guilty of the charge
beyond a reasonable doubt.” Id. (quoting Clark, 232 P.3d at 1291).
¶9 With exceptions not relevant here, a person confined in a
detention facility commits possession of contraband in the second
degree if they knowingly obtain or possess contraband.
3 § 18-8-204.2(1). The definition of contraband includes controlled
substances. § 18-8-204(2)(o), C.R.S. 2025. Section 18-18-102(5),
C.R.S. 2025, defines a controlled substance as a drug, substance,
or immediate precursor included in schedules I through V as set
forth in sections 18-18-203 to -207, C.R.S. 2025.
Methamphetamine is a schedule II drug. § 18-18-204(2)(c)(II),
C.R.S. 2025.
¶ 10 The prosecution need not necessarily present a chemical test
to prove that a particular substance is contraband. See People v.
Steiner, 640 P.2d 250, 252 (Colo. App. 1981). Instead, the
prosecution may satisfy its burden through circumstantial
evidence. See id.; People in Interest of J.G., 97 P.3d 300, 303 (Colo.
App. 2004). Examples of such circumstantial evidence include
representations and admissions made by the defendant, behavior
consistent with use or possession of the controlled substance, and
the defendant’s furtiveness. See, e.g., J.G., 97 P.3d at 303; Steiner,
640 P.2d at 252; People v. Edwards, 598 P.2d 126, 128 (Colo.
1979).
4 B. Analysis
¶ 11 Viewing the evidence in the light most favorable to the
prosecution and affording the prosecution the benefit of every
reasonable inference, we conclude that the prosecution presented
sufficient evidence to prove beyond a reasonable doubt that
Marceleno committed possession of contraband in the second
degree.
¶ 12 Marceleno doesn’t dispute that the prosecution presented
evidence that deputies found one small bag containing a white
powdery substance concealed in his genital area and a second bag
containing bean paste hidden in his mattress. From this evidence,
the district court could reasonably infer that Marceleno knowingly
possessed the substances in the two bags. See People v. Miralda,
981 P.2d 676, 679 (Colo. App. 1999) (“Intent may . . . be established
from circumstantial evidence and from the inferences that may
reasonably be drawn from those circumstances.”); People v.
Summitt, 132 P.3d 320, 324 (Colo. 2006) (evidence of concealment
“can be admissible to show consciousness of guilt”).
¶ 13 Marceleno’s primary argument is that the prosecution
presented insufficient evidence that the substances in the two bags
5 constituted “contraband” under section 18-8-204.2(1). We disagree.
Deputy Hammond testified that the substance in the bag found on
Marceleno’s person appeared to be methamphetamine. Moreover,
in the body camera footage submitted into evidence by the
prosecution, Deputy Hammond told Marceleno that the substance
found on his person tested positive for methamphetamine. While
the record doesn’t contain evidence of any such test, Marceleno
responded, “It is what it is,” “I signed up for it, you know,” and “It
was on me, literally.” Marceleno also explained that he considered
eating the substance but was “scared” and “didn’t want to go out
like that, in jail.” Although not the strongest evidence, when viewed
in the light most favorable to the prosecution, the substance’s
appearance, Marceleno’s representations, and his furtive actions in
hiding the bag in his genital area allowed the district court to
reasonably infer that the bag contained contraband. See, e.g.,
Edwards, 598 P.2d at 128.
¶ 14 We reach the same conclusion with respect to the bean paste
hidden in Marceleno’s mattress. Marceleno admitted to Deputy
Hammond that (1) if the beans were tested, they would “come out
dirty, too”; (2) while mixing the substance into the beans, he “put it
6 in [his] mouth, got a little high,” and “started tripping”; and (3) the
amount of the substance mixed into the beans was “less than half”
the amount in the bag found on his person. Marceleno said that he
took “full responsibility for it.” Viewing these inculpatory
statements in the light most favorable to the prosecution, the
district court could reasonably find that the bean paste contained
contraband. See, e.g., id.; see also Steiner, 640 P.2d at 252
(evidence regarding the “effect of the substance” on users, coupled
with other evidence, satisfied the prosecution’s burden).
¶ 15 Accordingly, we conclude that sufficient evidence supported
Marceleno’s conviction for possession of contraband in the second
III. Disposition
¶ 16 We affirm the judgment.
JUDGE FOX and JUDGE KUHN concur.