Peo v. Ocampo

• Court: Colorado Court of Appeals
• Decided: April 30, 2026
• Docket: 23CA1830
• Status: Unpublished

Opinion

23CA1830 Peo v Ocampo 04-30-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1830 Lincoln County District Court No. 22CR59 Honorable H. Clay Hurst, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jose A. Ocampo,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE GROVE Yun and Schock, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 30, 2026

Philip J. Weiser, Attorney General, Rachel Lieb, Assistant Attorney General II, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Jose A. Ocampo, appeals the judgment of

conviction entered on a jury verdict finding him guilty of possession

of contraband in the second degree. We affirm.

I. Background

¶2 A reasonable jury could find the following based on evidence

presented at trial:

¶3 In June 2022, while confined at the Limon Correctional

Facility, Ocampo was strip-searched. During the search, an officer

discovered a broken balloon containing an item wrapped in

cellophane concealed inside Ocampo’s COVID-19 mask.

¶4 The officer turned the materials over to the Office of Inspector

General (OIG), which opened an investigation. The Colorado

Bureau of Investigation (CBI) tested the materials and found they

contained buprenorphine — the active ingredient in Suboxone, a

prescription drug commonly used to treat opioid addiction.

Buprenorphine is a schedule V controlled substance.

¶5 The prosecution charged Ocampo with possession of

contraband in the second degree. § 18-8-204.2, C.R.S. 2025. At

trial, defense counsel argued that Ocampo did not knowingly

possess an illegal substance. The jury convicted Ocampo, and the

1 court sentenced him to thirty months in the custody of the

Department of Corrections, to run consecutively with an unrelated

sentence.

¶6 Ocampo now appeals, arguing that the district court

(1) violated his due process rights by improperly instructing the jury

on reasonable doubt and (2) erroneously admitted evidence for

which the prosecution did not sufficiently establish a chain of

custody. We affirm.

II. Jury Instructions

¶7 Ocampo contends that the district court reversibly erred by

giving the 2022 model jury instruction on reasonable doubt because

that instruction lowered the prosecution’s burden of proof. We

disagree.

A. Applicable Facts

¶8 In 2022, the Model Criminal Jury Instructions Committee

revised the model instruction for reasonable doubt. People v.

Melara, 2025 COA 48, ¶ 12. In addition to modifying the

reasonable doubt instruction, the committee also combined it with

the presumption of innocence instruction into a single model

instruction. See COLJI-Crim. E:03 (2022).

2 ¶9 Before the 2022 revision, the model reasonable doubt

instruction read as follows:

Reasonable doubt means a doubt based upon reason and common sense which arises from a fair and rational consideration of all of the evidence, or the lack of evidence, in the case. It is a doubt which is not a vague, speculative or imaginary doubt, but such a doubt as would cause reasonable people to hesitate to act in matters of importance to themselves.

If you find from the evidence that each and every element of a crime has been proven beyond a reasonable doubt, you should find the defendant guilty of that crime. If you find from the evidence that the prosecution has failed to prove any one or more of the elements of a crime beyond a reasonable doubt, you should find the defendant not guilty of that crime.

COLJI-Crim. E:03 (2021).

¶ 10 Over defense counsel’s objections, the district court gave the

following 2022 model instruction at Ocampo’s trial:

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

3 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.

COLJI-Crim. E:03 (2022).

B. Standard of Review and Applicable Law

¶ 11 We review de novo whether a trial court accurately instructed

the jury on the law. Johnson v. People, 2019 CO 17, ¶ 8.

4 ¶ 12 The Due Process Clause of the United States Constitution

“protects the accused against conviction except upon proof beyond

a reasonable doubt of every fact necessary to constitute the crime

with which he is charged.” Tibbels v. People, 2022 CO 1, ¶ 23

(quoting In re Winship, 397 U.S. 358, 364 (1970)).

¶ 13 The district court must properly instruct the jury on the

reasonable doubt standard. Id. at ¶ 25. Although the court has

some flexibility in how it defines reasonable doubt, an instruction

that lowers the prosecution’s burden of proof below that standard

constitutes structural error requiring automatic reversal. People v.

Schlehuber, 2025 COA 50, ¶ 13.

¶ 14 To determine whether an instruction impermissibly lowered

the burden of proof, we apply a “functional test, asking whether

there is a reasonable likelihood that the jury understood [the]

contested instruction, in the context of the instructions as a whole

and the trial record, to allow a conviction based on a standard lower

than beyond a reasonable doubt.” Tibbels, ¶ 36. The district court

has broad discretion to determine the form and style of instructions

as long as they properly inform the jury of the law. McDonald v.

People, 2021 CO 64, ¶ 54. Thus, if the instructions, as a whole,

5 correctly inform the jury of the prosecution’s burden of proof

beyond a reasonable doubt, there is no due process violation.

Johnson, ¶ 14.

C. Analysis

¶ 15 Like the defendant in Schlehuber, Ocampo challenges four

aspects of the 2022 model jury instruction as given by the district

court: (1) its failure to direct the jury that it could consider the “lack

of evidence”; (2) its omission of the “hesitate to act” phrase that was

in the previous model instruction; (3) its equating reasonable doubt

with “a real possibility that the defendant is not guilty”; and (4) its

use of the phrase “firmly convinced” to define proof beyond a

reasonable doubt. Schlehuber, ¶ 16.1

¶ 16 We agree with the division’s reasoning in Schlehuber. Id. at

¶¶ 16-35. Ocampo’s argument that the omission of the “lack of

evidence” language in the 2022 model instructions undermined the

reasonable doubt standard by diminishing consideration of

1 Ocampo also asserts that the cumulative effects of these errors

lowered and shifted the prosecution’s burden of proof. See People v. Schlehuber, 2025 COA 50, ¶ 35. For the same reasons we conclude that none of the claimed errors individually lowered the burden of proof, we conclude they did not do so cumulatively. See id.

6 “evidentiary gaps” does not withstand scrutiny when the

instructions are read as a whole. See Schlehuber, ¶¶ 19-23. And

contrary to Ocampo’s assertion, the Melara court’s suggestion that

a trial court “should inform the jury, as part of the reasonable

doubt instruction, that it may consider the lack of evidence in [a]

case” did not alter its conclusion that the 2022 instructions “did not

impermissibly lower the prosecution’s burden of proof.” Melara,

¶ 24.

¶ 17 The removal of the “hesitate to act” language, likewise, did not

deprive the jury of the context necessary to understand and apply

the concept of reasonable doubt. The 2022 instructions define

reasonable doubt using “firmly convinced” and “real possibility.” As

the Schlehuber court explained, “‘firmly convinced’ correctly

connotes a standard of ‘near certitude’ — one that is higher than

‘highly probable’ but stops short of absolute certainty,” and the

phrase “real possibility” instructs the jury not to acquit “simply

because it can conceive of some fanciful possibility that the

defendant is not guilty.” Schlehuber, ¶ 31 (citations omitted).

These terms work in tandem: A juror could not, as Ocampo argues,

be “firmly convinced” of a defendant’s guilt while concomitantly

7 believing there was a “real possibility” of innocence. Thus, the

concept of reasonable doubt is adequately conveyed, and the

burden of proof remains firmly with the prosecution. Id. at ¶¶ 32-

34.

¶ 18 Because we conclude that the 2022 model jury instruction on

reasonable doubt did not lower the prosecution’s burden of proof, it

follows that the district court did not violate Ocampo’s due process

rights by giving it to the jury.

III. Chain of Custody

¶ 19 Ocampo contends that the district court erred by admitting

the buprenorphine found during the search into evidence because

the prosecution failed to sufficiently establish chain of custody. We

are not persuaded.

¶ 20 After searching Ocampo and confiscating the COVID-19 mask

and suspected contraband, the officer placed both into a nearby

OIG lockbox. OIG Inspector Colpitts2 retrieved the materials from

2 The transcript spells this witness’s last name as “Culpits” (with a

notation that the spelling is phonetic). We use the spelling that OIG Inspector Colpitts used when signing an affidavit that appears elsewhere in the court file.

8 the box the next day and inspectors opened an investigation. OIG

Inspector Henriquez then delivered the materials to the OIG office in

Colorado Springs. From there, Henriquez testified, “[i]t was picked

up by o[u]r evidence technician to be taken to the laboratory of the

CBI, which is the Colorado Bureau of Investigation[].”

¶ 21 Once delivered, a unique laboratory case number was

generated to track the evidence as it moved through the lab. CBI

Forensic Scientist Katherine Lance testified that the case number

tracked who submitted the evidence, who the evidence was

connected to, and who possessed the evidence within the lab.

Lance confirmed the specimen’s laboratory case tracking number,

documented it in her report, tested the materials, and found they

contained buprenorphine.

¶ 22 At trial, defense counsel objected when the prosecution moved

to admit Exhibit 3, the bagged materials the laboratory tested, into

evidence. Counsel argued that the chain of custody had not been

established. The court overruled the objection and admitted the

exhibit.

9 B. Standard of Review and Applicable Law

¶ 23 A district court’s decision to admit evidence is reviewed for an

abuse of discretion and will be overturned only if the decision was

arbitrary, unreasonable, or unfair. People v. James, 117 P.3d 91,

94 (Colo. App. 2004).

¶ 24 CRE 901(a) requires that an object be identified as a condition

precedent to its admissibility. That condition is satisfied by

“evidence sufficient to support a finding that the matter in question

is what its proponent claims.” Id. The rationale is that in the

absence of a showing that the evidence is what its proponent

alleges, the evidence is simply irrelevant. People v. Rodriguez, 2022

COA 11, ¶ 14.

¶ 25 “When the proffered evidence is ‘unique, readily identifiable

and relatively resistant to change,’ a witness can authenticate it by

identifying the evidence as the item in question.” Id. at ¶ 16

(quoting United States v. Cardenas, 864 F.2d 1528, 1531 (10th Cir.

1989)). Conversely, “when the evidence . . . is not readily

identifiable and is susceptible to alteration by tampering or

contamination, the proponent of the evidence must authenticate it

by establishing a chain of custody for the item.” Id. at ¶ 21. “The

10 chain of custody rule requires that the proponent of real evidence

establish that the evidence was involved in the incident and that

the condition of the evidence at trial is substantially unchanged.”

People v. Mascarenas, 666 P.2d 101, 112 (Colo. 1983). “To do so,

the proponent must introduce evidence showing where the item has

been from its initial seizure until it is offered at trial.” Rodriguez,

¶ 23. And even where there is some confusion about the chain of

custody, the evidence may still be deemed authentic under CRE

901(a) so long as it was accounted for at all times. People v.

Atencio, 565 P.2d 921, 923 (Colo. 1977).

¶ 26 Speculation about the possibility of tampering is insufficient to

establish a break in the chain of custody. People v. LeMasters, 666

P.2d 573, 577 (Colo. App. 1983), aff’d, 678 P.2d 538 (Colo. 1984).

And absent any evidence of tampering or a lack of authentication,

the proponent of the evidence is not required to call each witness

who may have handled the item. People v. Sutherland, 683 P.2d

1192, 1197 (Colo. 1984).

¶ 27 Ocampo contends the chain of custody was not sufficiently

established because the prosecution failed to show that the tested

11 evidence was the same as what was collected when he was

searched. We disagree.

¶ 28 Testimony at trial established with reasonable certainty that

Exhibit 3 consisted of the evidence collected during Ocampo’s

search and bore no signs of alteration or tampering. See

Sutherland, 683 P.2d at 1197 (The “burden is upon the party

offering the evidence to show to the satisfaction of the court, with

reasonable certainty, that there was no alteration of or tampering

with the evidence.” (citation omitted)); Mascarenas, 666 P.2d at 112.

Based on the “properly labeled” evidence tag and its contents —

rectangular, orange-colored, barcoded strips that appeared to be

“brand-name Suboxone” — Officer Henriquez testified that Exhibit 3

was what he transported to the Colorado Springs OIG office.

Forensic Scientist Lance likewise confirmed that Exhibit 3 was the

specimen she tested and that she received it without any suggestion

of tampering.

¶ 29 Nevertheless, Ocampo maintains that the trial testimony did

not sufficiently establish that the tested evidence was “accounted

for at all times.” Atencio, 565 P.2d at 923. He offers no evidence of

tampering but asserts a break in the chain of custody because the

12 prosecution did not establish how the tested materials were

transported from the Colorado Springs OIG office to the CBI lab.

¶ 30 We perceive no abuse of discretion. Ocampo’s argument

seems to rest on the premise that eyewitness testimony is required

for each step in the chain of custody. But the prosecution’s burden

is not so demanding. See Rodriguez, ¶ 24. The testimony here

accounted for “where the item ha[d] been from its initial seizure

until it [was] offered at trial,” id. at ¶ 23, and established that it

arrived for testing without signs of tampering, see People v. Brake,

553 P.2d 763, 768 (Colo. 1976) (explaining chain of custody was

properly shown where the “envelope seal was unbroken” when an

officer delivered a “lock seal envelope” to CBI even though “no one

was able to state who []moved the envelope” from CBI to the lab);

see also Sutherland, 683 P.2d at 1197 (citing State v. Crawford, 573

P.2d 982 (Kan. 1977), for the proposition that evidence was

admissible despite the prosecution’s inability to locate a nurse who

took the exhibit from the examination room to a waiting

messenger). Therefore, because Ocampo offered “only speculation

that there was tampering,” Sutherland, 683 P.2d at 1198 (citation

omitted), the court properly admitted the evidence and left “any

13 weakness in the chain of custody” as a “question of weight for the

jury,” Atencio, 565 P.2d at 924.

IV. Disposition

¶ 31 We affirm the judgment.

JUDGE YUN and JUDGE SCHOCK concur.