Peo v. Martinez

Opinion

23CA1573 Peo v Martinez 06-04-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1573 El Paso County District Court No. 21CR7154 Honorable David A. Gilbert, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Paul Martinez,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division V Opinion by JUDGE LIPINSKY Welling and Tow, JJ. concur

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

Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Paul Martinez appeals his convictions for possession with

intent to manufacture or distribute a controlled substance and

unlawful possession of a controlled substance. He contends that

the trial court erred by (1) admitting evidence that individuals were

seen entering and leaving his apartment nine days before detectives

found drugs there during a search; (2) admitting insufficiently

authenticated drug evidence; (3) allowing the prosecutor to use an

improper reasonable doubt analogy during voir dire; (4) admitting a

detective’s opinion testimony that Martinez possessed

methamphetamine with intent to distribute; and (5) imposing a

sentence in the aggravated range in violation of Apprendi v. New

Jersey, 530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S.

296 (2004). We affirm.

I. Background

¶2 While surveilling Martinez’s apartment on November 29, 2021,

Detective Erik Gulbrandson saw, within a forty-five-minute period,

three people knock on Martinez’s door, be let in, and leave after five

minutes or less. (Detective Gulbrandson later acknowledged that

one of the three individuals was Martinez’s roommate.)

1 ¶3 On December 8, 2021, while conducting additional

surveillance on the apartment, Detective Gulbrandson observed

Martinez throw a trash bag into a community bin. Detective

Gulbrandson collected the bag and found what he “considered to be

drug paraphernalia” inside it. He obtained a search warrant for

Martinez’s apartment based on the bag’s contents.

¶4 Detective Gulbrandson and four other detectives executed the

search warrant on December 15, 2021. They recovered from the

apartment methamphetamine, heroin, packaging material, digital

scales, and a vacuum-sealed bag (which Detective Gulbrandson

later explained is commonly used to transport drugs).

¶5 Martinez was charged with possession with intent to

manufacture or distribute a controlled substance

(methamphetamine) and unlawful possession of a controlled

substance (heroin) from December 8 to December 15, 2021.

Martinez admitted that he used methamphetamine and heroin, but

he asserted that he solely possessed the drugs for personal use.

¶6 A jury convicted Martinez of both counts, and the trial court

sentenced him to eight years in the custody of the Department of

2 Corrections (DOC) for possession with intent to distribute and time

served for possession of a controlled substance.

II. Analysis

A. Martinez’s Evidentiary Contentions

1. Standard of Review

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

discretion.” People v. Cross, 2023 COA 24, ¶ 9, 531 P.3d 444, 447

(quoting Rojas v. People, 2022 CO 8, ¶ 16, 504 P.3d 296, 302). “A

trial court abuses its discretion if it misconstrues or misapplies the

law or otherwise reaches a manifestly arbitrary, unreasonable, or

unfair result.” People v. Johnson, 2019 COA 159, ¶ 10, 487 P.3d

1166, 1171, aff’d, 2021 CO 35, 486 P.3d 1154.

¶8 When a defendant timely objects to the admission of evidence

that does not “specifically and directly offend [his] constitutional

rights,” Wend v. People, 235 P.3d 1089, 1097 (Colo. 2010), as here,

“any error that occurred in the admission of this evidence is subject

to non-constitutional harmless error review.” Pernell v. People,

2018 CO 13, ¶ 22, 411 P.3d 669, 673. Under this standard, “an

objected-to trial error is harmless if there is no reasonable

possibility that it contributed to the defendant’s conviction.” Id.

3 The People bear the burden of proving that “the error did not

substantially influence the verdict or affect the fairness of the trial

proceedings.” James v. People, 2018 CO 72, ¶ 19, 426 P.3d 336,

341.

2. The November 29 Surveillance Evidence

¶9 Martinez contends that the trial court erred by admitting as

intrinsic evidence Detective Gulbrandson’s testimony about the

three individuals who briefly visited Martinez’s apartment on

November 29 (the November 29 surveillance evidence) — nine days

before the time period specified in the complaint and information

(the complaint). Martinez argues that, because the November 29

surveillance evidence was extrinsic, the trial court should have

evaluated it under CRE 404(b) and People v. Spoto, 795 P.2d 1314

(Colo. 1990), and, if it admitted the evidence, given the defense an

opportunity to request a limiting instruction. We conclude that,

although the trial court abused its discretion by determining that

the November 29 surveillance evidence was intrinsic and admitting

it without allowing the defense to ask for a limiting instruction, the

error was harmless.

4 a. Applicable Law

¶ 10 “Unless otherwise provided by constitution, statute, or rule, all

relevant evidence is admissible.” Spoto, 795 P.2d at 1318; see CRE

402. 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.

¶ 11 But not all relevant evidence is admissible. For example,

“[e]vidence of any other crime, wrong, or act is not admissible to

prove a person’s character in order to show that on a particular

occasion the person acted in conformity with the character.” CRE

404(b)(1).

¶ 12 We begin by considering whether the November 29

surveillance evidence is evidence of Martinez’s “other” acts. See

Rojas, ¶ 42, 504 P.3d at 308 (CRE 404(b) “requires trial courts to

evaluate, in the first instance, when ‘other’ crimes, wrongs, or acts

are at issue”). The November 29 surveillance evidence falls into this

category because it occurred outside the time period specified in the

complaint. See People v. Sauser, 2020 COA 174, ¶ 46, 490 P.3d

1018, 1029 (holding that other act evidence is evidence that

5 “‘involves a separate and distinct episode wholly independent from

the offense charged,’ even if it is ‘similar in nature’ to the charged

offense” (quoting People v. Trujillo, 2014 COA 72, ¶ 69, 338 P.3d

1039, 1051)).

¶ 13 In People v. Vasquez, the division explained that, “[f]or other

acts evidence to be admissible,” the trial court “must first

determine, by a preponderance of the evidence, that the other act

happened and that the defendant committed the act.” 2022 COA

100, ¶ 74, 521 P.3d 1042, 1056. Although Detective Gulbrandson

did not testify that he saw Martinez selling drugs on November 29,

the November 29 surveillance evidence suggested that Martinez was

meeting with drug buyers in the apartment on that date. Indeed,

the evidence had no probative value beyond this inference — that

Martinez had a bad character and did the types of things a drug

dealer would do.

¶ 14 Because the November 29 surveillance evidence is evidence of

Martinez’s “other” acts, we next examine whether it is intrinsic or

extrinsic to the charged offense. “Intrinsic acts are those (1) that

directly prove the charged offense or (2) that occurred

contemporaneously with the charged offense and facilitated the

6 commission of it.” Rojas, ¶ 52, 504 P.3d at 309. “Evidence of acts

that are intrinsic to the charged offense are exempt from

Rule 404(b) because they are not ‘other’ crimes, wrongs, or acts.

Accordingly, courts should evaluate the admissibility of intrinsic

evidence under Rules 401-403.” Id.

¶ 15 In contrast, evidence of other crimes, wrongs, or acts that do

not directly prove the charged offense is extrinsic. See id. Extrinsic

evidence that “suggests bad character (and thus a propensity to

commit the charged offense) . . . is admissible only as provided by

Rule 404(b) and after a Spoto analysis.” Id. If extrinsic evidence

does not suggest bad character, it too falls outside CRE 404(b)’s

scope, and its admissibility is evaluated under CRE 401 to 403. Id.

b. Additional Facts

¶ 16 Before opening statements, and outside the presence of the

jury, defense counsel asked whether the prosecution intended to

introduce the November 29 surveillance evidence even though the

parties had previously agreed “there was . . . no [CRE] 404(b)”

evidence. The prosecutor explained that she intended to “get into

the fact that there was surveillance done. There was traffic

consistent with drug sales at that location, and that’s why [the

7 police] launched the investigation.” The trial court said to the

prosecutor,

[I]t does not sound to me like you’re alleging that [the November 29] evidence of people coming and going is some sort of separate incident of bad behavior. . . . [Y]ou’re trying to say that this is part and parcel of what you believe is going on in the household in terms of selling or sharing narcotics?

¶ 17 The prosecutor responded in the affirmative, adding that the

November 29 surveillance evidence “would be intrinsic to . . . the

case at hand.”

¶ 18 The prosecutor argued that she intended to introduce evidence

of Martinez’s presence at the apartment on November 29 and the

three individuals’ brief visits to it on the same day “to prove

[Martinez’s] connection to the location” and that a “business [was]

happening” there. The defense countered that the “information

[from] November 29” was “separate” from the information gleaned

during the December 8 surveillance and that the November 29

surveillance evidence was “not in the date and timeframe” of the

charges. Defense counsel further argued that the November 29

surveillance evidence was inadmissible extrinsic evidence because

Martinez was charged with “possession with intent to distribute

8 between December 8th and December 15th, not . . . on November

29th.”

¶ 19 The trial court ruled that the November 29 surveillance

evidence was admissible intrinsic evidence because it “[bore]

relevance in terms of whether or not it makes it more or less likely

that a week later and then for the ensuing days of this claim there

was dealing happening.” The trial court further said that, “[e]ven

though it falls outside the date range it is not, in my opinion, claims

of other act evidence.”

c. The Trial Court Erred by Admitting the November 29 Surveillance Evidence Without a Limiting Instruction

¶ 20 Martinez argues that the trial court abused its discretion by

finding that the November 29 surveillance evidence was intrinsic

and by admitting it without granting defense counsel an

opportunity to request a limiting instruction. We agree.

¶ 21 We conclude that the trial court abused its discretion by

admitting the November 29 surveillance evidence as intrinsic. The

surveillance that Detective Gulbrandson conducted on that date did

not occur contemporaneously with the charged offenses, and the

three individuals’ brief visits to the apartment did not facilitate the

9 commission of crimes during the time period specified in the

complaint. See Rojas, ¶ 52, 504 P.3d at 309. Under Rojas, the

November 29 surveillance evidence would have been intrinsic if the

complaint had referenced November 29 to December 15, rather

than December 8 to December 15. See id. at ¶ 54, 504 P.3d at 310

(concluding that the defendant’s conduct that occurred outside the

time period when the charged counts occurred was not

contemporaneous).

¶ 22 Accordingly, the November 29 surveillance evidence did not

directly establish that Martinez sold drugs between December 8 and

December 15, and such evidence therefore was not intrinsic. See

id. And the identities of the individuals who briefly visited

Martinez’s apartment on November 29 were irrelevant to the

charges. Instead, the prosecution sought to use the evidence that

Martinez received these short-term visitors to convince the jury

that, because Martinez sold drugs from the apartment on November

29, he had a bad character as a drug dealer — and thus had a

propensity to commit the charged offenses between December 8 and

15.

10 ¶ 23 In concluding that the November 29 surveillance evidence was

intrinsic, the trial court found it was direct evidence of “what was

going on in the [apartment] in the next week after the [December 8]

search of [Martinez’s] trash.” According to the trial court, the

evidence was “part and parcel of what [the prosecution] believe[s]

[was] going on in the household in terms of selling or sharing

narcotics.” Thus, the trial court admitted the evidence to establish

that between December 8 and December 15 — the times specified in

the complaint — Martinez distributed a controlled substance based

on his propensity to engage in such conduct.

¶ 24 Even though CRE 404(b) prohibits the admission of propensity

evidence, the trial court agreed with the prosecution that the

November 29 surveillance evidence was admissible for this very

purpose. During their opening statements and closing arguments,

the prosecutors characterized the visits to Martinez’s apartment on

that day as “very consistent with drug sales” and “indicat[ed] that

[Martinez] was selling.” The prosecutors told the jury that, for this

reason, the November 29 surveillance evidence supported

convictions for the charged offenses.

11 ¶ 25 During the trial, the prosecution elicited testimony from

Detective Gulbrandson to support its argument that Martinez had a

propensity to sell drugs from the apartment. Detective

Gulbrandson said he “look[s] for” behavior such as persons making

brief visits to a suspect’s home while investigating the person for

drug sales and that Martinez had engaged in such behavior on

November 29.

¶ 26 For these reasons, we agree with Martinez that the trial court

should have categorized the November 29 surveillance evidence as

extrinsic character evidence and, therefore, should have analyzed

its admissibility through the lens of CRE 404(b) and Spoto, see

Rojas, ¶ 52, 504 P.3d at 309, and allowed defense counsel to

request a limiting instruction if the court deemed the evidence

admissible, see id. at ¶ 33, 504 P.3d at 306.

¶ 27 We need not consider whether the evidence was admissible

under CRE 404(b) and Spoto, however, because, even if it was

admissible, the trial court did not afford defense counsel the

opportunity to request a limiting instruction. See id. at ¶ 54, 504

P.3d at 310. Because we conclude that the court erred by not

allowing defense counsel to argue for a limiting instruction when

12 the court admitted the November 29 surveillance evidence, we next

turn to whether the error was harmless.

d. Admitting the November 29 Surveillance Evidence Without a Limiting Instruction Was Harmless Error

¶ 28 As noted, the People must demonstrate there is “no reasonable

possibility” that the admission of the November 29 surveillance

evidence contributed to Martinez’s conviction. Pernell, ¶ 22, 411

P.3d at 673. One way of doing so is to show there is “overwhelming

independent evidence of [the defendant’s] guilt.” People v. Munoz-

Diaz, 2023 COA 105, ¶ 29, 543 P.3d 402, 408. As the People note,

the prosecution only minimally relied on the November 29

surveillance evidence at trial. Other evidence overwhelmingly

demonstrated Martinez’s intent to distribute narcotics during the

relevant time period — for example, on December 15, officers found

that his apartment contained an amount of methamphetamine that

exceeded what a normal user would possess, packaging material,

digital scales, and vacuum-sealed bags. Moreover, Martinez’s

statements to police and Detective Gulbrandsen’s expert testimony

also supported the verdict, infra Part II.A.3.a. Accordingly, we are

persuaded that there is not a reasonable probability that the

13 November 29 surveillance evidence contributed to Martinez’s

conviction, and its admission was harmless.

3. Detective Gulbrandson’s Expert Testimony

¶ 29 Martinez next contends that the trial court erred by allowing

Detective Gulbrandson to provide opinion testimony that the drugs

found in Martinez’s apartment were for distribution rather than

personal use. We disagree.

a. Additional Facts

¶ 30 During opening statements, the prosecution informed the jury

that Detective Gulbrandson would “explain . . . why the evidence he

collected with other detectives . . . shows that there’s distribution.”

The prosecution moved, without objection, for Detective

Gulbrandson’s qualification as an expert on distribution of

narcotics. The trial court qualified him to render opinions on that

subject.

¶ 31 The prosecutor questioned Detective Gulbrandson about “what

sorts of things” he looks for when investigating individuals for drug

dealing. Detective Gulbrandson testified that he does “a lot of

surveillance” and “generally . . . look[s] for people coming to a

place . . . for five minutes at a time and leav[ing] throughout the

14 day.” He said he observed this type of activity at Martinez’s

apartment on November 29. See supra Part II.A.2.b.

¶ 32 Detective Gulbrandson then testified about the drug

paraphernalia he recovered from Martinez’s trash bag on

December 8. See supra Part II.A.2.b. He opined that “it was what

[he] would consider to be packaging material and material used to

ingest narcotics.” He noted that he obtained the search warrant for

Martinez’s apartment based on his belief that the contents of the

trash bag were “evidence of drug trafficking.”

¶ 33 Detective Gulbrandson itemized the evidence he found in the

trash bag and in Martinez’s apartment and explained how that

evidence tended to show that Martinez was distributing drugs:

• “Vacuum-sealed bags are used to transport and conceal

large quantities of narcotics usually.”

• “Lots of packages with large quantities will be in [plastic

bags], cling wrapped in [cellophane cling wrap],

eventually put in [a] vacuum-sealed bag.”

• He characterized the plastic bags and scale found in

Martinez’s apartment as “packaging materials that a drug

dealer would have.”

15 • “[T]iny bags with a Ziploc top, [are] very commonly used

to store, dispense, sell small amounts of narcotics.”

¶ 34 The prosecutor asked Detective Gulbrandson, “[B]ased on your

training and experience, why did you ultimately request that

[Martinez] be arrested on these charges?” Detective Gulbrandson

replied, “Because there was evidence of drug distribution in his

apartment . . . .” The prosecutor asked, “[W]hat kinds of things

specifically” led him to “believe that this was distribution of

narcotics?” Detective Gulbrandson reiterated that the packaging

material and scales were “specifically” used to transport large

amounts of drugs and that the quantity of drugs in Martinez’s

apartment — thirty-four grams of methamphetamine — was more

than what a “general abuser would[] normally” have.

¶ 35 Detective Gulbrandson then testified that, following Martinez’s

arrest, Martinez said he “get[s] high for free.” Detective

Gulbrandson explained that “people who use drugs and sell a little

bit of drugs, basically say they’re using drugs for free . . . . [D]rug

users[] [will] consume some of their product. They sell the rest of it

for a little bit more to pay for what they consume.”

16 ¶ 36 Toward the end of Detective Gulbrandson’s direct

examination, the prosecutor asked him, “[W]hen you look at all of

these things together and as well as your conversation with

Mr. Martinez, why was it your opinion that it was distribution

rather than personal use?” Defense counsel objected, but the trial

court overruled the objection, finding that Detective Gulbrandson

had “already discussed some of the features in question” and that

the question properly elicited “a summary of what factors the

detective thought were important to the issue of distribution versus

personal use.” Detective Gulbrandson responded that “[t]here were

several factors” and reviewed the indicia of distribution found in

Martinez’s apartment. Detective Gulbrandson added, “Martinez

said he was a user of methamphetamine. A meth user will always

have a glass pipe . . . . [I]t’s by far the most common way to

consume [meth] . . . and we didn’t find a pipe there.”

¶ 37 On cross-examination, Detective Gulbrandson testified that

Martinez could have ingested drugs without a glass pipe, there were

indicia of drug use in his apartment, the amount of drugs in the

apartment was enough for “10 to 15 days” for a “heavy user,”

Detective Gulbrandson never asked Martinez how much he

17 consumed, and the drugs in the apartment were not packaged for

sale.

¶ 38 The trial court instructed the jurors that they were “not bound

by the testimony of a witness who has testified as an expert” and

they may “believe all of an expert witness’s testimony, part of it, or

none of it. The weight you give the testimony is entirely [the jury’s]

decision.”

b. The Trial Court Did Not Err by Allowing Detective Gulbrandson to Offer an Opinion on Drug Distribution

¶ 39 “Testimony in the form of an opinion or inference otherwise

admissible is not objectionable because it embraces an ultimate

issue to be decided by the trier of fact.” CRE 704. An expert

witness, however, cannot “tell the jury what result to reach or form

conclusions for the jurors that they are competent to reach on their

own.” People v. Baker, 2019 COA 165, ¶ 14, 487 P.3d 1194, 1199,

aff’d, 2021 CO 29, 485 P.3d 1100. Such testimony is inadmissible

“when the expert . . . applied the law to the facts in such a way as

to suggest that the expert had determined that the defendant was

guilty.” Baker, 2021 CO 29, ¶ 33, 485 P.3d at 1107.

18 ¶ 40 To determine whether expert testimony usurps the jury’s

function, we examine, among other considerations, whether

(1) the expert usurped the function of the jury by expressing

an opinion on the applicable law or legal standards;

(2) the expert opined that the defendant had committed the

crime or there was a particular likelihood that the

defendant did so;

(3) the expert clarified the testimony on cross-examination;

and

(4) the trial court properly instructed the jury on the law and

told the jury it could accept or reject the expert’s opinion.

Id. at ¶ 32, 485 P.3d at 1106-07.

¶ 41 We consider each factor in turn.

¶ 42 First, Detective Gulbrandson did not usurp the jury’s function

by expressing an opinion on the applicable law or legal standards.

The prosecutor repeatedly prompted Detective Gulbrandson to

discuss what “sorts” or “kinds” of “things” he would look for while

investigating whether a suspect was “dealing.” Detective

Gulbrandson pointed to the specific evidence he found in Martinez’s

19 apartment that he “consider[ed]” or “believed” to be evidence of drug

trafficking.

¶ 43 Second, Detective Gulbrandson did not opine that Martinez

committed either charged offense or there was a particular

likelihood that Martinez did so. Detective Gulbrandson’s testimony

that Martinez was arrested because of the “evidence of drug

distribution” did not cross this line. Nor did Detective Gulbrandson

offer an improper opinion in response to the prosecutor’s request to

explain why he believed that “it was distribution rather than

personal use.” Although Detective Gulbrandson did not disavow

the prosecutor’s characterization of his opinion, he again referred to

the things he would look for as part of a drug dealing investigation.

He said that he found in Martinez’s apartment items that a drug

dealer “would” have, “could” be used for dealing, and were “not

consistent” with personal use. At no point did Detective

Gulbrandson expressly say that Martinez was a drug dealer.

¶ 44 Thus, contrary to Martinez’s argument, Detective

Gulbrandson’s opinion testimony did not go beyond characterizing

and commenting on the evidence or apply facts to the law to

suggest Martinez was guilty. Unlike the expert witness in Baker,

20 who referred to disputed facts as true and told the jury the facts

were material, id. at ¶ 14, 485 P.3d at 1104, Detective Gulbrandson

relied on his expertise in narcotics to explain the evidence he

“consider[ed]” and “believed” to form an opinion that Martinez was

not just consuming drugs for personal use but was also selling

them.

¶ 45 Third, defense counsel had a full opportunity to clarify

Detective Gulbrandson’s testimony. On cross-examination, defense

counsel directed Detective Gulbrandson’s attention to evidence

suggesting that Martinez only possessed the drugs for personal use.

¶ 46 Fourth, the trial court properly instructed the jury that it was

“not bound” by Detective Gulbrandson’s testimony and could

choose to believe “none of it.” It was within the province of the jury

to decide which portions, if any, of Detective Gulbrandson’s

testimony were credible. See People v. Newell, 2017 COA 27, ¶ 28,

395 P.3d 1203, 1208.

¶ 47 Moreover, unlike the expert witness in Baker, all of Detective

Gulbrandson’s opinions were based on information shared with the

jury — the indicia of drug dealing about which he testified and a

video of his interview with Martinez were admitted into evidence.

21 And Detective Gulbrandson did not “imply[] that [he] knew more

about the facts than [the jury] did.” Baker, 2019 COA 165, ¶ 22,

487 P.3d at 1201.

¶ 48 In sum, the trial court did not abuse its discretion by

admitting Detective Gulbrandson’s expert testimony.

4. Authentication of the Drug Evidence

¶ 49 Martinez contends that the trial court erred by admitting the

evidence of the drugs found in his apartment because the

prosecution failed to sufficiently account for it “at all times” to

authenticate it. The People counter that Martinez waived this

argument because he conceded that he possessed the drugs and

did not contemporaneously object to the evidence’s admission. We

agree with the People.

a. Applicable Law

¶ 50 When the defense fails to object to the admission of evidence,

we only reverse if the trial court abused its discretion by admitting

the evidence and such abuse rose to the level of plain error. People

v. Allgier, 2018 COA 122, ¶ 30, 428 P.3d 713, 720-21. The right to

have evidence excluded is a nonfundamental right that defense

22 counsel may waive. See Phillips v. People, 2019 CO 72, ¶ 16, 443

P.3d 1016, 1022.

¶ 51 “Waiver . . . is ‘the intentional relinquishment of a known right

or privilege.’” People v. Rediger, 2018 CO 32, ¶ 39, 416 P.3d 893,

902 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.

1984)). “We ‘do not presume acquiescence in the loss of

fundamental constitutional rights, and therefore indulge every

reasonable presumption against waiver.’” Id. (quoting People v.

Curtis, 681 P.2d 504, 514 (Colo. 1984)). “[W]aiver extinguishes

error, and therefore appellate review . . . .” Id. at ¶ 40, 416 P.3d at

902. Evidence that a party intended to relinquish a right may be

express or implied. See id. at ¶ 42, 416 P.3d at 902.

b. Martinez Waived His Challenge to the Drug Evidence’s Authenticity

¶ 52 Police seized the following drugs from Martinez’s apartment:

• methamphetamine in a bag from the inside of a

nightstand drawer;

• methamphetamine loose on top of a dresser; and

• suspected heroin on top of a nightstand.

23 ¶ 53 The prosecution admitted evidence of these drugs through

Detective Gulbrandson, who testified that he found them during his

search of Martinez’s apartment. The prosecutor questioned

Detective Gulbrandson about the “evidence bagging process.”

Defense counsel did not ask to conduct voir dire on the drug

evidence and did not object to its admission.

¶ 54 Defense counsel did not oppose the admission of this evidence

because the defense conceded that the drugs belonged to Martinez.

The record does not reveal why defense counsel made this strategic

concession. Instead, Martinez’s theory of defense was that,

although he possessed the drugs, he did not intend to distribute

¶ 55 Significantly, in her opening statement, defense counsel told

the jury more than once that Martinez “admit[ted] that he

possessed those drugs back on December 15th of 2021. That’s not

what this case is about. . . . He did not possess drugs with the

intent to distribute.” Defense counsel said that Martinez “accepts

responsibility. He’s the one that says yes, that’s for personal use.”

¶ 56 Although the mere “failure to make the timely assertion of a

right,” Rediger, ¶ 40, 416 P.3d at 902 (quoting United States v.

24 Olano, 507 U.S. 725, 733 (1993)), does not bar appellate review, the

failure to object for a “strategic or other reason[]” precludes

assertion of an argument on appeal, Phillips, ¶¶ 18-19, 443 P.3d at

1022-23.

¶ 57 Defense counsel’s opening statement, if not an express waiver

of Martinez’s right to challenge the authenticity of the drug

evidence, was at the very least an implicit one. See Rediger, ¶ 42,

416 P.3d at 903-04 (acknowledging that a waiver may be express or

implied). The record shows that defense counsel made a strategic

decision to concede that the drugs found in Martinez’s apartment

belonged to him and, instead, to argue to the jury that the

prosecution had failed to prove beyond a reasonable doubt that

Martinez intended to distribute them. Consistent with this strategy,

there was no reason to challenge the admissibility of the drug

evidence or its authenticity.

¶ 58 In sum, we conclude that Martinez waived his right to contest

the authenticity of the drug evidence.

B. Prosecutorial Misconduct

¶ 59 Martinez contends that the trial court plainly erred by allowing

the prosecutor to engage in misconduct during voir dire by using

25 analogies that “trivialized the reasonable doubt standard.” We

discern no plain error.

¶ 60 When reviewing prosecutorial misconduct arguments, “[w]e

first determine whether the conduct at issue was improper based on

the totality of the circumstances.” People v. VanMeter, 2018 COA

13, ¶ 23, 421 P.3d 1222, 1229. Second, “we determine whether any

misconduct warrants reversal.” Id.

¶ 61 If the appellant “fail[ed] to object to the alleged misconduct at

trial, we review for plain error.” People v. Ray, 2025 COA 42M,

¶ 131, 575 P.3d 400, 435. “An error is plain if it is obvious,

substantial, and so undermined the fundamental fairness of a trial

as to cast serious doubt on the reliability of the conviction.” People

v. Dominguez-Castor, 2020 COA 1, ¶ 85, 469 P.3d 514, 529. “An

error is obvious if it contravenes a clear statutory command, a

well-settled legal principle, or Colorado case law.” People v. Valles,

2025 COA 67, ¶ 10, 576 P.3d 740, 744.

26 2. The Trial Court Did Not Plainly Err by Allowing the Prosecutor to Use Reasonable Doubt Analogies During Voir Dire

¶ 62 During voir dire, the prosecutor distinguished reasonable

doubt from “beyond all doubt.” She told the jury that the

prosecution bore the burden to prove its case beyond “only a

reasonable doubt” and was not required “to prove the case beyond

any and all doubts.” The prosecutor then asked a juror how he

might prove he drove to the courthouse. After the juror said he

would point to his parking stub, keys, and vehicle as evidence that

he drove himself, the prosecutor asked the other jurors if it was

“possible that [the first juror] got a ride.” After a second juror

responded, “Sure,” the prosecutor asked, “Is that likely, though?”

The second juror replied, “No.” The prosecutor then inquired, “Is it

reasonable even?” The second juror again replied, “[N]o.”

¶ 63 The prosecutor then told the second juror that part of what

the jury “look[s] to” is a witness’s credibility and asked if the first

juror seemed credible. After the second juror answered, “Yes,” the

prosecutor inquired how other jurors made credibility

determinations.

27 ¶ 64 Turning back to the reasonable doubt standard, the

prosecutor said, “That’s the thing; you can have doubts. . . . But if

they’re not reasonable based on the evidence that’s presented, the

law instructs you to convict someone if you’re otherwise convinced

that someone committed a crime. That’s basically what we’re

talking about here.” The prosecutor added that even “[i]f you’re

convinced[, . . .] you can still think of a possibility why what you’re

convinced about isn’t correct that’s not a reasonable doubt.”

¶ 65 While we recognize that “[l]awyers and trial courts should

avoid using analogies when explaining the concept of reasonable

doubt to a jury,” Sauser, ¶ 88, 490 P.3d at 1035, and that such

analogies “can be problematic” and “trivialize the reflection and

judgment” of the jury, Dominguez-Castor, ¶ 88, 469 P.3d at 529,

employing a reasonable doubt analogy, without more, does not

amount to plain error, Sauser, ¶ 88, 490 P.3d at 1035.

¶ 66 The prosecutor referenced the analogies only once during voir

dire. See Dominguez-Castor, ¶ 91, 469 P.3d at 529. And during

their closing arguments, both the prosecutor and defense counsel

reiterated the correct reasonable doubt standard after the trial

court had properly instructed the jury on the meaning of reasonable

28 doubt. See People v. Camarigg, 2017 COA 115M, ¶ 52, 488 P.3d

267, 276 (concluding there was no harmless error where the jury

was properly instructed on the reasonable doubt standard after the

prosecutor used a puzzle analogy during voir dire). We presume the

jury followed the trial court’s instructions. People v. Vialpando,

2022 CO 28, ¶ 41, 512 P.3d 106, 115.

¶ 67 Moreover, Martinez does not point to, and we are unaware of,

any published Colorado case holding that, in the absence of other

trial errors, a prosecutor’s reasonable doubt analogy during voir

dire alone can amount to plain error. See Camarigg, ¶ 53, 488 P.3d

at 277; Van Meter, ¶ 32, 421 P.3d at 1230. (To the extent that

Martinez relies on Vialpando to argue that the brevity of his trial

made the error more substantial, we are unpersuaded. In

Vialpando, ¶¶ 33, 40-46, 512 P.3d at 114-16, the supreme court

acknowledged that a short trial may “compound the impact of any

errors” but nonetheless concluded that, even when there were

cumulative errors, including use of a reasonable doubt analogy

during voir dire, such errors did not warrant reversal.

Furthermore, in Vialpando, the supreme court did “not decide . . .

whether the trial court’s use of reasonable doubt analogies during

29 voir dire is a separate ground for reversal.” Id. at ¶ 41 n.2, 512

P.3d at 115 n.2.)

¶ 68 In the absence of a supporting “well-settled legal principle” or

“Colorado case law,” any error in allowing the prosecutor to use the

reasonable doubt analogies during voir dire was not obvious, Valles,

¶ 10, 576 P.3d at 744, and, thus, not plain.

C. Aggravated Sentence

¶ 69 Lastly, Martinez argues for reversal of his aggravated sentence

because the trial court, and not a jury, found that he was confined

in community corrections. See § 18-1.3-401(8)(a)(IV), C.R.S. 2025.

Under that statute, if a court “sentences the defendant to

incarceration,” it must “sentence the defendant to a term of at least

the midpoint in the presumptive range but not more than twice the

maximum term authorized in the presumptive range for the

punishment of a felony” if “[t]he defendant was under

confinement . . . in any correctional institution as a convicted

felon.” Id.

¶ 70 Martinez contends that, under Apprendi and Blakely, only a

jury can make a finding of confinement for purposes of imposing an

aggravated sentence. In Apprendi, the Court held that, under the

30 Sixth and Fourteenth Amendments, “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond

the prescribed statutory maximum must be submitted to a jury,

and proved beyond a reasonable doubt.” 530 U.S. at 476, 490; see

also Blakely, 542 U.S. at 302-03 (holding that the trial court erred

because it — and not a jury — found that the defendant acted with

“deliberate cruelty”); Erlinger v. United States, 602 U.S. 821, 835

(2024) (finding error when a trial court, rather than a jury,

determined whether a defendant’s prior convictions occurred on

separate occasions).

1. Waiver and Invited Error

¶ 71 The People contend that Martinez is precluded from

challenging his sentence under the doctrines of waiver and invited

error, see supra Part II.A.4.a, because, during the sentencing

hearing, defense counsel “expressly and repeatedly stated that

[Martinez’s] sentence was an aggravated range sentence with a

minimum of eight years.” We disagree.

¶ 72 At Martinez’s sentencing hearing, the trial court, the

prosecutor, and defense counsel agreed that the court was required

to impose an aggravated sentence because Martinez was serving a

31 community corrections sentence for a prior conviction. Defense

counsel noted Martinez’s prior felony convictions and that he had

pleaded guilty in a prior distribution case and “was sentenced to

four years DOC and he had a drug sentence” to community

corrections. Defense counsel said that “the minimum sentence is

aggravated” and acknowledged that Martinez “underst[oo]d why the

court may [have wanted] to go over the minimum sentence in this,

but it[] [was Martinez’s] position that since the minimum sentence

[was] aggravated, eight years on this case [was] already going to be

aggravated and [was] justified under the circumstances.”

¶ 73 The record “reveals no evidence, either express or implied,”

that, through defense counsel’s statements, Martinez “intended to

relinquish his right” to a jury trial on the fact of his confinement.

Rediger, ¶ 42, 416 P.3d at 902. Instead, the record shows that

Martinez’s counsel argued for the lowest sentence she believed the

trial court was authorized to impose. Martinez did not waive his

Apprendi argument because defense counsel, like the prosecutor

and the trial court, was apparently under the impression that the

court could impose an aggravated sentence without a jury finding

that Martinez was “under confinement.” See id. at ¶¶ 43-44, 416

32 P.3d at 903 (holding there is no waiver when “neglect, not intent,

explains [the] lack of an objection”).

¶ 74 Moreover, “a sentencing court may not use a defendant’s

admissions to sentence him in the aggravated range unless the

defendant knowingly, voluntarily and intelligently waives his Sixth

Amendment right to have a jury find the facts that support the

aggravated sentence.” People v. Isaacks, 133 P.3d 1190, 1192

(Colo. 2006). Nothing in the record suggests that Martinez

“knowingly, voluntarily and intelligently” waived his Sixth

Amendment right to have a jury determine his confinement status.

¶ 75 Nor did defense counsel’s failure to make an Apprendi and

Blakely argument constitute invited error. Invited error “is a

narrow doctrine and applies to errors in trial strategy but not to

errors that result from oversight.” Rediger, ¶ 34, 416 P.3d at 901.

It “prevents a party from complaining on appeal of an error that he

or she has invited or injected into the case.” Id. The record shows

that Martinez’s failure to challenge his aggravated sentence arose

from defense counsel’s neglect or oversight. Accordingly, we reject

the People’s argument that Martinez’s Apprendi and Blakely

argument is barred under the invited error doctrine.

33 2. Standard of Reversal

¶ 76 The parties do not agree on the standard of reversal for

Martinez’s challenge to his aggravated sentence. While Martinez

concedes that he did not preserve his challenge, he argues that

preservation was not required because the “claim is made under

Crim. P. 35(a),” citing Fransua v. People, 2019 CO 96, ¶ 13, 451

P.3d 1208, 1211, and, therefore, we must review de novo whether

the trial court erred by not requiring a jury to find that Martinez

was “under confinement.”

¶ 77 We disagree that we should disregard the lack of preservation.

Crim. P. 35(a) does not apply to challenges to a sentence’s

constitutionality. If presented in a postconviction motion, such an

argument does not fall within Crim. P. 35(a) but, rather, under

Crim. P. 35(c)(2)(I). See People v. Collier, 151 P.3d 668, 670 (Colo.

App. 2006); Crim. P. 35(c)(2)(I) (addressing applications for

postconviction review that allege “the conviction was obtained or

sentence imposed in violation of the Constitution or laws of the

United States or the constitution or laws of this state”).

¶ 78 But this is a direct appeal. Courts may consider challenges to

a sentence’s constitutionality in direct appeals, as well as in Crim.

34 P. 35(c)(2)(I) postconviction proceedings. See People v. Elie, 148

P.3d 359, 365-66 (Colo. App. 2006) (reviewing a defendant’s

Apprendi-Blakely challenge to his sentence on direct appeal). Thus,

we review de novo “whether the district court erred in applying the

law to defendant’s sentence.” People v. Sandoval, 2016 COA 19,

¶ 13, 488 P.3d 93, 101, aff’d, 2018 CO 21, 413 P.3d 1274.

¶ 79 If the trial court erred by not requiring that a jury find whether

Martinez was “under confinement,” we must then consider whether

the error was plain. See Elie, 148 P.3d at 366; see also United

States v. Cotton, 535 U.S. 625, 631-34 (2002) (reviewing an

unpreserved Apprendi violation for plain error); Crim P. 52(b). As

noted above, an error cannot be plain if it is not obvious. See

Dominguez-Castor, ¶ 85, 469 P.3d at 529.

¶ 80 In People v. Crabtree, 2024 CO 40M, 550 P.3d 656, the

Colorado Supreme Court held that an unpreserved trial error is not

reversible under the plain error standard unless the error was

obvious at the time it occurred. Id. at ¶ 8, 550 P.3d at 661. In

effect, Crabtree requires us, when examining an issue under the

plain error standard, to travel back in time to the moment of the

error.

35 3. Even if the Trial Court Erred, the Error Was Not Obvious at the Time of Martinez’s Sentencing

¶ 81 Under Crabtree, we need not determine whether Martinez was

entitled to have a jury determine his confinement status under

Erlinger or any other case announced after his sentencing hearing.

¶ 82 Following Crabtree, we hold that, even if the court erred by not

requiring a jury to determine whether Martinez was “under

confinement,” the error was not plain because we agree with the

People that it “was not obvious, given the binding precedent

established by” People v. Huber, 139 P.3d 628 (Colo. 2006).

¶ 83 At the time that the trial court sentenced Martinez, it was

bound by the Colorado decisions instructing trial courts that they

would not “run[] afoul of the Apprendi-Blakely rule” by making

findings regarding a defendant’s confinement and basing an

aggravated sentence on that fact. Id. at 630; see People v. Hines,

2021 COA 45, ¶¶ 60-65, 491 P.3d 578, 589-90.

¶ 84 Because at the time of Martinez’s sentencing, Colorado law

permitted trial courts to impose aggravated sentences based on

their own finding that the defendant was under confinement, any

36 error at Martinez’s sentencing was not obvious and, therefore, not

plain. Under the plain error standard, we must affirm the sentence.

III. Disposition

¶ 85 The judgment of conviction is affirmed.

JUDGE WELLING and JUDGE TOW concur.