22CA1732 Peo v Rodriguez 03-20-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1732 El Paso County District Court No. 17CR5166 Honorable David Shakes, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Pedro Rodriguez,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUSTICE MARTINEZ* Freyre and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 20, 2025
Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art VI, § 5(3), and § 24-51-1105, C.R.S. 2024. ¶1 Defendant, Pedro Rodriguez, appeals his conviction for
possession with intent to distribute a controlled substance. We
affirm the judgment.
I. Background
¶2 Police officers stopped a car for failing to use its turn signal on
I-25 northbound in Colorado Springs. Rashaud Williams was the
driver of the stopped car, while Rodriguez was in the front
passenger seat.
¶3 The officers asked Williams and Rodriguez for their licenses
and the car’s registration and insurance. Williams and Rodriguez
provided their licenses but had trouble finding the other
documents, so they began reaching around the car to search.
While searching, Rodriguez opened the glove box. Inside the glove
box, the officers noticed a large amount of cash spilling out.
Rodriguez quickly closed the glove box and, according to the
officers, appeared nervous.
¶4 At this point, the officers ordered Williams and Rodriguez out
of the car. But instead of getting out of the car, Williams and
Rodriguez reached for the gearshift. Fearing they were trying to
flee, one officer punched Williams, and another officer sprayed
1 pepper spray into the car. During this commotion, Rodriguez
continued to reach around the car, including under his seat.
Believing Rodriguez was reaching under his seat for a gun, one
officer warned to watch for a gun, causing the other officers to yell
“gun” and raise their firearms. (Ultimately, however, no gun was
found in the car or on either occupant.)
¶5 Then Rodriguez jumped out of the car and started running
away into the field on the side of the highway. As Rodriguez ran, an
officer saw him throw aside a clear plastic baggie containing white
powder. Police chased after Rodriguez, tased him, and took him
into custody.
¶6 After Rodriguez was arrested, police retrieved the baggie from
the field. Later testing showed the baggie contained 27.63 grams,
or about an ounce, of cocaine. Police also discovered $21,540 in
cash and five cellphones in the car.
¶7 The prosecution charged Rodriguez with possession with
intent to distribute a controlled substance and obstructing a police
officer. A jury convicted Rodriguez of both charges. But another
division of this court reversed the drug conviction because the
prosecution failed to establish a sufficient chain of custody for the
2 cocaine at trial. People v. Rodriguez, 2022 COA 11, ¶¶ 2-35. The
case was remanded for a new trial on the drug charge.
¶8 At the new trial, one of the witnesses for the prosecution was a
narcotics detective who investigated the case, Detective Eric
Coddington. Coddington testified as an expert that the amount of
cocaine, cash, and cellphones showed possession with the intent to
distribute. The defense argued that Rodriguez got scared and ran
and that the drugs were not his. In addition, the defense
challenged the adequacy of the investigation of the incident and
claimed there was no evidence to show Rodriguez had any plans to
sell any drugs.
¶9 The jury found Rodriguez guilty of possession with intent to
distribute a schedule II controlled substance.
II. Expert Witness Testimony
¶ 10 Rodriguez contends that the trial court erred in allowing the
prosecution’s expert to testify to the ultimate issue of whether the
evidence showed possession with an intent to distribute because
such testimony usurped the function of the jury. We disagree
because any error was not plain.
3 A. Additional Background
¶ 11 At trial, Detective Coddington testified as an expert in
narcotics investigation and surveillance. After Coddington testified
about each of the pieces of evidence recovered in this case,
including the cash, cocaine, and cellphones, the prosecutor asked:
“And based on your experience in this area and as an expert, was
this amount of cocaine and the way it was packaged and the money
and the cell phones, did that show possession with an intent to
distribute or sell?” (Emphasis added.) Coddington answered, “Yes.”
B. Standard of Review and Applicable Law
¶ 12 We review a trial court’s decision to admit testimony for an
abuse of discretion. An abuse of discretion occurs when a trial
court’s ruling is manifestly arbitrary, unreasonable, or unfair or if it
misapplies the law. People v. Payne, 2019 COA 167, ¶ 5.
¶ 13 Because Rodriguez did not object at trial, we review for plain
error. See Hagos v. People, 2012 CO 63, ¶ 14. Plain error is
“obvious and substantial.” Id. We reverse only if the error “so
undermined the fundamental fairness of the trial itself so as to cast
serious doubt on the reliability of the judgment of conviction.” Id.
(quoting People v. Miller, 113 P.3d 743, 750 (Colo. 2005)).
4 ¶ 14 CRE 704 provides that “[t]estimony 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.” But
“while expert testimony is not objectionable merely because it
embraces an ultimate issue to be decided by the jury, an expert
witness cannot ‘tell the jury what result to reach or form
conclusions for the jurors that they are competent to reach on their
own.’” People In Interest of J.R., 2021 COA 81, ¶ 21 (citations
omitted). Doing so would usurp the function of the jury.
¶ 15 To determine whether expert testimony usurped the function
of the jury, the court should consider the factors set forth in People
v. Rector, 248 P.3d 1196, 1203 (Colo. 2011):
whether (1) the testimony was clarified on cross-examination; (2) the expert’s testimony expressed an opinion of the applicable law or legal standards and thereby usurped the function of the court; (3) the jury was properly instructed on the law and that it could accept or reject the expert’s opinion; and (4) the expert opined that the defendant had committed the crime or that there was a particular likelihood that the defendant did so.
People v. Baker, 2021 CO 29, ¶ 32 (citing Rector, 248 P.3d at 1203).
5 C. Analysis
¶ 16 Our analysis of the admissibility of Detective Coddington’s
testimony focuses on the fourth Rector factor because the first few
Rector factors weigh in favor of no error. Specifically, Detective
Coddington’s testimony was clarified on cross-examination, which
addressed the detective’s limited personal knowledge of the traffic
stop and arrest, the lack of some other indicators of drug
distribution, and the detective’s lack of recall regarding other
details. See Lawrence v. People, 2021 CO 28, ¶ 51. Also, Detective
Coddington never expressed an opinion of the law or applicable
legal standards, although he did offer examples of evidence that
indicated possession with the intent to distribute. See id. at ¶ 52
(Expert testimony that “simply provided a general overview of the
applicable law and offered examples to help explain the concepts”
was admissible.). Finally, the court properly instructed the jury
that they were not bound by the testimony of any expert witness.
See id. at ¶ 53.
¶ 17 However, Detective Coddington’s testimony comes close to
stating “that the defendant had committed the crime.” Baker, ¶ 32.
Relevant to the fourth Rector factor the prosecutor asked, “[W]as
6 this amount of cocaine and the way it was packaged and the money
and the cell phones, did that show possession with an intent to
distribute or sell?” This question followed a series of questions and
answers that established that the detective was familiar with the
contents of the plastic baggie found in the field and the money and
cell phones found in the car. Thus, the question was based on the
specific facts of this case rather than a hypothetical or general
situation. C.f. Lawrence, ¶ 54 (expert did not opine that defendant
committed any crime when he provided only “hypothetical
examples” to explain a legal concept). And therefore, the context of
the detective’s affirmative response oriented his testimony to an
opinion on whether the evidence in this case could show this
defendant committed the alleged crime.
¶ 18 The prosecutor’s question also addressed the crime’s elements,
specifically possession and intent. The inclusion of both of those
elements distinguishes this case from People v. Atencio, 140 P.3d
73, 76 (Colo. App. 2005), where the court found that an expert’s
testimony that the amount of the controlled substance in that case
was “consistent with distribution” did not invade the province of the
jury because the expert never said the defendant possessed the
7 requisite intent. See also Lawrence, ¶ 54 (expert testimony
concluding only one element of the charged crimes was met was
admissible).
¶ 19 Moreover, asking whether the evidence “show[ed]” intent to
distribute more directly compels a legal conclusion than asking
whether the evidence was “consistent with” intent to distribute.
Atencio, 140 P.3d at 76. By framing the question this way, the jury
could have understood the prosecutor to have been, in effect,
asking Coddington to opine whether Rodriguez was guilty of the
charged crime. Such a question impermissibly asks the expert to
“appl[y] the law to the facts in such a way as to suggest that the
expert ha[s] determined that the defendant [i]s guilty.” Baker, ¶ 33;
see People v. Penn, 2016 CO 32, ¶ 31 (“[A] witness cannot testify
that he believes that the defendant committed the crime at issue.”).
¶ 20 However, the prosecutor’s question did not refer to Rodriguez
directly. The extent to which the question referred to Rodriguez was
only indirect; the question’s connection to Rodriguez was
established through other testimony that he threw away the baggie
and had been seated near where the cell phones and money were
found. The indirect nature of the reference to Rodriguez is a
8 consideration, together with the first three Rector factors, weighing
in favor of finding no error.
¶ 21 But even if we assume Detective Coddington’s testimony
should not have been admitted, we conclude that any error was not
plain because it was not obvious or substantial. See Hagos, ¶ 14.
The error was not obvious because, as our analysis demonstrates,
determining whether this testimony was admissible involves
carefully weighing several Rector factors, one of which does not
weigh entirely in the opposite direction as the other three factors.
Also, understanding that factor, including the reference to
Rodriguez specifically, requires thoughtfully considering the specific
wording of the question that resulted in the answer, “yes,” as well
as the preceding line of questioning. We do not believe the error is
“‘so clear-cut, so obvious,’ a trial judge should be able to avoid it
without benefit of objection.” People v. Crabtree, 2024 CO 40M,
¶ 42 (citation omitted). Further, defense counsel’s failure to object
can be considered to demonstrate the error was not obvious. See
People v. Walters, 148 P.3d 331, 334-35 (Colo. App. 2006) (“We may
consider a lack of contemporaneous objection by the defendant as
demonstrating ‘the defense counsel’s belief that the live argument,
9 despite its appearance in a cold record, was not overly damaging.’”
(quoting Domingo-Gomez v. People, 125 P.3d 1043, 1054 (Colo.
2005))).
¶ 22 Moreover, the error also did not affect “the substantial rights
of the accused.” Crabtree, ¶ 43 (citation omitted). Ample evidence
supported the jury’s finding that Rodriguez possessed the cocaine
with the intent to distribute: the almost one-ounce baggie of cocaine
that Rodriguez tossed aside while running; the $21,540 in cash;
and the five cellphones that were recovered from the car. In
addition, before Detective Coddington made the challenged
statement, he testified that the amount of cocaine and the way it
was packaged, as well as the large amount of cash and cellphones,
were indicators of drug trafficking. Thus, there was substantial
other evidence upon which the jury could have found Rodriguez
guilty. See Lawrence, ¶ 56 (Any error in admitting expert testimony
on the ultimate issue was harmless when “[s]ubstantial, if not
overwhelming, evidence supported the jury’s findings.”).
¶ 23 Finally, the focus of Detective Coddington’s direct examination
was whether the evidence showed the cocaine was intended for
distribution rather than personal use. But the case did not hinge
10 on this issue. Intent to distribute was only one element of the crime
and was not the focus of the defense strategy. While the defense
could be considered a general denial and included the argument
that police inadequately investigated the case, it was a denial of the
possession of any cocaine. The denial of the requisite intent to
distribute was a consequence of the defense’s denial of possession
rather than a distinct issue in the trial.
¶ 24 For all these reasons, even if admission of Detective
Coddington’s testimony was erroneous, we conclude that any error
was harmless.
III. Prosecutorial Misconduct
¶ 25 Rodriguez also contends that the prosecutor committed
misconduct during closing argument by making several improper
statements. We are not persuaded.
A. Standard of Review and Applicable Law
¶ 26 We analyze claims of prosecutorial misconduct in two steps.
“First, we must determine whether the prosecutor’s challenged
conduct was improper based on the totality of the circumstances,
and, second, we must determine whether such conduct warrants
reversal according to the proper standard of review.” People v.
11 Nardine, 2016 COA 85, ¶ 36. When, as here, the defendant does
not object to the challenged conduct at trial, “we will only reverse a
conviction if the conduct was improper and rises to the level of plain
error.” Id. at ¶ 37.
¶ 27 As advocates, prosecutors have “wide latitude in the language
and presentation style used to obtain justice.” People v. Herold,
2024 COA 53, ¶ 68 (quoting Domingo-Gomez, 125 P.3d at 1048). A
prosecutor may “refer to the strength and significance of the
evidence, conflicting evidence, and reasonable inferences that may
be drawn from the evidence” during closing argument. Id. (quoting
Walters, 148 P.3d at 334.
¶ 28 But appropriate prosecutorial advocacy has limits.
Prosecutors may not refer to facts not in evidence, make statements
reflecting their own knowledge, intentionally misstate the evidence,
or express their personal belief in the defendant’s guilt. See
Walters, 148 P.3d at 334; Domingo-Gomez, 125 P.3d at 1049.
“Claims of improper argument must be evaluated in the context of
the argument as a whole and in light of the evidence before the
jury.” Herold, ¶ 70 (quoting People v. Geisendorfer, 991 P.2d 308,
312 (Colo. App. 1999)).
12 B. Statements About Drug Dealers
¶ 29 During closing argument, the prosecutor made several
statements that only drug dealers would carry the amounts of cash
and cocaine recovered in this case:
No user is going to carry around a full ounce of cocaine.
....
And, ladies and gentlemen, you can consider all that money in the glove box, $21,500. Now, who would carry around that much money in a glove box? Somebody who is making drug deals, that’s who would carry around that much money. Nobody other than drug dealers are going to be paying 21,000 — or going to be carrying that amount of money around. Nobody except for people engaging in drug dealing or [sic] going to be accepting that amount of money in cash.
As I said in my first close, nobody except for drug dealers carries around $21,000 in their glove box.
¶ 30 Rodriguez contends that these statements asserted facts not in
evidence and injected the prosecutor’s own purported expertise into
the case. We disagree.
¶ 31 The prosecutor’s comments that “nobody except for drug
dealers” would possess the amounts of cash and cocaine found in
13 this case did not assert facts outside the evidence or imply the
prosecutor had specialized knowledge; rather, these comments
properly referred to Detective Coddington’s expert testimony that
these amounts tended to indicate an intent to distribute rather than
personal use. See Domingo-Gomez, 125 P.3d at 1048 (“Final
argument may properly include the facts in evidence and any
reasonable inferences drawn therefrom.”).
¶ 32 Although the expert did not testify that literally “nobody”
except distributors would possess cash and cocaine in these
amounts, in the context of closing argument, it would be fair to
assume the prosecutor did not mean the phrase in a literal sense.
The prosecutor was using a “rhetorical device[]” to make the point
that it would be unusual for a mere user to carry around these
amounts of cash and cocaine, and therefore, the evidence showed
an intent to distribute. People v. Allee, 77 P.3d 831, 837 (Colo. App.
2003). “[A] prosecutor is permitted to use ‘oratorical embellishment’
and ‘metaphoric nuance.’” People v. Vialpando, 2022 CO 28, ¶ 23
(citation omitted).
¶ 33 Even if the prosecutor’s statements exaggerated the expert’s
testimony, these statements were not likely to “mislead the jury.”
14 Domingo-Gomez, 125 P.3d at 1049 (citation omitted). It requires
only common sense to realize that there could be other possible
reasons why someone may carry these quantities of cash and
drugs. Indeed, the defense pointed out that a user may buy cocaine
in bulk to get it cheaper during Detective Coddington’s cross-
examination. And the trial court properly instructed the jury that
statements of attorneys are not evidence. Thus, the statements
were permissible argument.
C. Statements About the Value of the Cocaine
¶ 34 During closing argument, the prosecutor asserted that the
cocaine was “worth about 1,500 to $2,000, I believe is the figure
you were given.” But Detective Coddington, who provided the only
testimony about the value of the cocaine, had testified that it was
worth $1,200 to 1,500. Rodriguez contends the prosecutor
misstated the evidence by inflating the cash value of the cocaine.
We disagree.
¶ 35 Even though the prosecutor misstated the value of the
cocaine, “nothing in the record suggests that the prosecutor
intentionally misstated the facts.” Herold, ¶ 84; Domingo-Gomez,
125 P.3d at 1049 (“The prosecutor should not intentionally misstate
15 the evidence . . . .” (quoting ABA Standards for Crim. Just.,
Prosecution Function & Def. Function § 3-5.8 (3d ed. 1993)). If
anything, the record shows that the prosecutor was unsure of the
number because she qualified her statement with “I believe.”
Accordingly, we do not think the prosecutor intentionally misstated
the evidence.
¶ 36 The misstatement was also unlikely to prejudice the jury
because the difference in values was not significant, and the precise
cash value of the cocaine was not relevant to any elements of the
charge. Moreover, Detective Coddington had testified to the correct
number just before closing argument. And again, the trial court
properly instructed the jury that statements of attorneys are not
evidence. Thus, “there is no substantial likelihood that the
prosecution’s misstatements during . . . closing contributed to
defendant’s conviction.” People v. Arzabala, 2012 COA 99, ¶ 72
(When “the evidence presented at trial made [the facts] abundantly
clear,” the prosecutor’s misstatement of the facts was not plain
error.).
16 D. Statements About Defendant’s Guilt
¶ 37 The prosecutor asserted that Rodriguez was guilty several
times during closing argument. For example, the prosecutor said,
“[T]he defendant in this case is guilty of Possession with Intent to
Distribute a Controlled Substance: cocaine,” and “He is guilty
beyond a reasonable doubt.” Rodriguez contends that these
statements were improper because the prosecutor expressed a
personal belief in his guilt. The prosecutor also said, “The
Prosecution has given you all the evidence that it can,” during
closing, and “[W]e’ve given you all the information that we can,”
during rebuttal closing. Rodriguez contends that these statements
were improper because the prosecutor implied personal knowledge
of additional evidence of his guilt. Together, Rodriguez argues,
these statements impermissibly encouraged jurors to rely on the
prosecutor’s judgment rather than the evidence.
¶ 38 We disagree with Rodriguez’s characterization of the
prosecutor’s argument. The prosecutor’s statements that Rodriguez
was guilty were “largely tied to [her] arguments about the evidence.”
Vialpando, ¶ 42. For example, the prosecutor explicitly referred to
the evidence in one of her challenged statements: “All of this
17 evidence tells you, ladies and gentlemen, the defendant is in fact
guilty . . . .” (Emphasis added.) And the prosecutor did not precede
her statement with a phrase like “I believe” or otherwise indicate her
statement was a personal opinion imbued with the power of the
State. People v. Samson, 2012 COA 167, ¶ 38. When viewed in the
context of the entire closing argument, the prosecution’s assertions
that Rodriguez was guilty amounted to a “reasonable inference” that
the evidence established his guilt. People v. Villa, 240 P.3d 343,
358 (Colo. App. 2009).
¶ 39 We also disagree that the prosecutor implied personal
knowledge of evidence unknown to the jury by saying, “[W]e’ve given
you all the information that we can.” These statements were clearly
intended to rebut the defense’s argument that the evidence was
insufficient due to a “flawed investigation” that was “filled with
holes.”
¶ 40 Regardless, even assuming that these were improper personal
opinions, the prosecutor’s statements were a “small part of [her]
argument,” which was otherwise a fair summary of the evidence.
Vialpando, ¶ 42. The trial court also instructed the jury on the
presumption of innocence, “which helped to ameliorate any
18 prejudice associated with the prosecutor’s comments.” Id. For
these reasons, the prosecutor’s statements regarding Rodriguez’s
guilt did not constitute misconduct.
¶ 41 In summary, we conclude that none of the challenged
prosecutorial remarks were improper.
IV. Cumulative Error
¶ 42 Rodriguez contends that the cumulative effect of the alleged
errors requires reversal. We have not identified “multiple errors
that collectively prejudice the substantial rights of the defendant.”
Howard-Walker v. People, 2019 CO 69, ¶ 25. Therefore, reversal is
not warranted. See Herold, ¶ 101.
V. Voir Dire Instruction
¶ 43 Lastly, Rodriguez contends that the trial court violated his
right to a jury trial because it instructed the jury that it “will”
convict if the elements are proved. In his view, such an instruction
infringed the “right” for a jury to acquit for any reason — a power
also known as jury nullification. We disagree.
A. Additional Background
¶ 44 At the beginning of voir dire, the trial court instructed the jury
that it must follow the law in determining its verdict:
19 So it’s your responsibility to follow the law. And that might sound sort of obvious, but sometimes we get people on the panel that feel that they can make up their own law, or the law that’s been developed by the legislature is something that they don’t think is right and they’re not going to enforce it. Let me give you an example. And this is sort of a trivial example, but let’s say that this were a speeding case.
How many of you have driven from Pueblo to Walsenburg on I-25? Just about everybody. Let’s say it’s a speeding case. The speed limit is 75 miles an hour. The prosecution has proven its case. They’ve proven the person charged was the driver. They’ve proven the speed limit is 75. They’ve proven the driver knew the speed limit was 75 and was driving 85. You could not be honest to your oath and find that Defendant not guilty because it’s wide open and 85 is just fine on that stretch of the road. You can’t do that.
And, frankly, sometimes, in cases involving drugs, there are some people that feel differently from what our statutes are, but what I need on the jury are people who can follow the law.
¶ 45 Soon after, the court also instructed the jury that it “will” find
Rodriguez guilty if the crime is proved beyond a reasonable doubt:
If you find from the evidence that each and every element of the crime has been proven beyond a reasonable doubt, you will find the Defendant guilty.
20 B. Standard of Review and Applicable Law
¶ 46 A trial judge has wide discretion in conducting a trial but must
correctly instruct the jury on the applicable law. Rodriguez, ¶ 38.
We review de novo whether the trial court properly instructed the
jury on the applicable law. Id.
¶ 47 Jury nullification is the “de facto power” of a jury to acquit a
defendant even though the law or evidence may dictate otherwise.
Id. at ¶ 40; see also People v. Waller, 2016 COA 115, ¶ 57
(“Nullification is a juror’s ‘knowing and deliberate rejection of the
evidence or refusal to apply the law because the result dictated by
law is contrary to the juror’s sense of justice, morality, or fairness.’”)
(citation omitted). This power is only made possible because jury
deliberations are secret. Rodriguez, ¶ 40. But while a jury has the
power to nullify, “there is no constitutional right to jury
nullification.” People v. Scott, 2021 COA 71, ¶ 21 (quoting United
States v. Kleinman, 880 F.3d 1020, 1035 (9th Cir. 2017)).
¶ 48 The jury’s power to nullify stands in tension with the jury’s
“sworn duty to follow the law.” Rodriguez, ¶ 40; see also COLJI-
Crim. E:01 (2024) (“Even if you disagree with or do not understand
the reasons for some of the rules of law, you must follow them.”).
21 For this reason, “courts have consistently disapproved of
instructions that would inform the jury of its power to nullify.”
Rodriguez, ¶ 41; see also Scott, ¶ 16; Waller, ¶ 76; People v. Wilson,
972 P.2d 701, 706 (Colo. App. 1998).
C. Analysis
¶ 49 Here, there was nothing improper about the court’s
instruction. The court did not misstate the law by instructing the
jury, through its speeding analogy, to convict if the crime’s elements
were proved beyond a reasonable doubt. A prior division of this
court upheld essentially the same instruction during Rodriguez’s
first trial, and we agree with its reasoning. Rodriguez, ¶ 42. Like in
Rodriguez, here, “the court did not tell the jurors that they did not
have the power to nullify; the court told the jurors that they had a
duty to follow the law.” Id.
¶ 50 The court also did not err by instructing that the jury “will”
find Rodriguez guilty if all elements are proved beyond a reasonable
doubt. Rodriguez argues that the use of the word “will” instead of
“should” erroneously “eviscerated” the jury’s power to nullify. We
disagree. First, the court is not required to inform the jury of their
power to nullify, as it is a de facto power, not a right. See
22 Rodriguez, ¶ 40. Second, the jury’s nullification power derives from
the inherent secrecy of the jury deliberation process — which the
court’s instruction did not disturb. Id. Lastly, we agree with the
division in Waller, ¶ 72, that the word “should” is “no less
obligatory” than the word “will” in the context of this jury
instruction. See also People v. Munoz, 240 P.3d 311, 317 (Colo.
App. 2009) (holding that the word “should” in a reasonable doubt
instruction “conveys to the jury a sense of duty or obligation and
not discretion”).
¶ 51 Therefore, we reject Rodriguez’s contention that the court’s
instruction extinguished the jury’s nullification power or violated
his right to a jury trial. See id. at ¶ 77.
VI. Disposition
¶ 52 The judgment is affirmed.
JUDGE FREYRE and JUDGE SULLIVAN concur.