22CA0139 Peo v Shewfelt 03-27-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA0139 Eagle County District Court No. 20CR13 Honorable Paul R. Dunkelman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Curtis Dean Shewfelt,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I Opinion by JUDGE YUN J. Jones and Brown, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 27, 2025
Philip J. Weiser, Attorney General, Grant R. Fevurly, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Taylor J. Hoy, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Curtis Dean Shewfelt appeals the judgment of conviction
entered on jury verdicts finding him guilty of possession with intent
to distribute heroin and conspiracy to distribute heroin. We affirm
the judgment.
I. Background
¶2 Early one morning, police officers received a report of a pickup
truck swerving in and out of its lane on the highway. Holiday
Sanchez was driving the truck, with Shewfelt in the front passenger
seat. An officer spotted the vehicle and attempted to initiate a
traffic stop, but Sanchez did not pull over. The officer pursued the
truck until it crashed. After the crash, Sanchez attempted to flee
on foot but was captured. Meanwhile, Shewfelt remained inside the
truck and cooperated with the police.
¶3 Police officers found drug paraphernalia, a little over half an
ounce of heroin, and two cell phones in the truck. Detectives later
extracted text messages from one of the phones and determined
that the phone belonged to Shewfelt. Text messages sent by
Shewfelt suggested that he and Sanchez were on their way to
deliver “a half,” meaning half an ounce of heroin, to a buyer.
Meanwhile, text messages sent by the buyer, Samuel Fightlin,
1 suggested that he planned to resell that heroin to others upon
receiving it.
¶4 Shewfelt was charged with possession with intent to distribute
a controlled substance and conspiracy to distribute a controlled
substance. During Shewfelt’s trial, the district court admitted the
text messages that Shewfelt sent to Fightlin as admissions against
interest. But the court ruled that the messages Fightlin sent
Shewfelt could be “admitted only to give context to Mr. Shewfelt’s
[text messages] and . . . not . . . as substantive evidence.” The court
gave this limiting instruction to the jury when the statements were
admitted and again in the final jury instructions.
¶5 The jury found Shewfelt guilty as charged.
II. Analysis
¶6 Shewfelt contends that (1) there is insufficient evidence to
support the conspiracy conviction; (2) the evidence presented at
trial created a prejudicial variance and violated his right to a
unanimous verdict; (3) the district court abused its discretion by
admitting Fightlin’s text messages; (4) the district court abused its
discretion by allowing expert testimony to be presented as lay
2 opinion; and (5) the cumulative effect of these errors denied him a
fair trial.
¶7 We begin by discussing the scope of the conspiracy for which
Shewfelt was charged because it bears on nearly every issue in this
appeal. We then address and reject each of his contentions in turn.
A. The Scope of the Conspiracy Charge
¶8 Shewfelt was arrested while on his way to deliver heroin to
Fightlin, who in turn was planning on reselling the heroin to others.
The complaint alleged that “Curtis Dean Shewfelt unlawfully,
feloniously, and knowingly conspired with Holiday Sanchez, and a
person or persons to the District Attorney unknown, to sell or
distribute Heroin.”1 So the question is, was Shewfelt charged with a
conspiracy with Sanchez to deliver heroin to Fightlin or was he
charged with attempting to deliver the heroin to Fightlin as an overt
act in furtherance of a broader conspiracy among Shewfelt,
Sanchez, and Fightlin to resell the drugs to Fightlin’s customers?
1 The People were not required to prove that “a person or persons to
the District Attorney unknown” also participated in the conspiracy. See § 16-5-202(3), C.R.S. 2024 (“Pleading in either the conjunctive or the disjunctive shall place a defendant on notice that the prosecution may rely on any or all of the alternatives alleged.”).
3 Shewfelt contends that he was charged with the former; the People
assert that he was charged with the latter.2 For three reasons, we
conclude that the record demonstrates that the charged conspiracy
was to deliver drugs to Fightlin and nothing further.
¶9 First, the district court and the prosecutor understood the
conspiracy to be limited in this way during the proceedings below.
For instance, while discussing Fightlin’s text messages during a
previous jury trial that ended in a mistrial, the court said the
following:
[T]he argument becomes, “That’s a conspiracy with Fightlin.” He’s not charged with a conspiracy for Fightlin. If that’s the evidence as the conspiracy, that’s not a conspiracy with Holiday Sanchez.
2 Both Shewfelt and the People seem to have taken the opposite
position before the district court. The court made a pretrial ruling that Sanchez’s interrogation would not be admissible as co- conspirator statements; Shewfelt, apparently understanding this ruling to bar the admission of any statements by conspirators, argued that Fightlin was a co-conspirator as well and therefore his text messages should not be admitted. And, as will be further discussed, the prosecution suggested that Fightlin was not a conspirator.
4 The prosecutor did not object to the court’s characterization and
said that “the charge is possession with intent to distribute, and he
was distributing it to Fightlin.”
¶ 10 Second, this understanding of the conspiracy aligns with how
the trial unfolded. For example, Fightlin’s text messages were not
admitted at trial as substantive nonhearsay statements by a
co-conspirator, see CRE 801(d)(2)(E) (co-conspirator statements
during the course and in furtherance of the conspiracy are not
hearsay), but were instead admitted with a limiting instruction for a
nonsubstantive purpose, see CRE 801(c) (For a statement to be
hearsay, it must be “offered in evidence to prove the truth of the
matter asserted.”).
¶ 11 Third, the complaint charged Shewfelt with “conspir[ing] with
Holiday Sanchez, and a person or persons to the District Attorney
unknown.” (Emphasis added.) The affidavit for an arrest warrant,
which was filed shortly after the complaint, makes it clear that the
prosecutor was aware that Fightlin was the buyer at the time the
5 complaint was filed. Nevertheless, the complaint identified Sanchez
by name but did not identify Fightlin.
¶ 12 For these reasons, we conclude that Shewfelt was charged
with conspiring with Sanchez to deliver heroin to Fightlin, not with
conspiring with Fightlin to resell the heroin to others. And Fightlin
was not a co-conspirator to this conspiracy because “a mere
buyer-seller relationship, without more, does not constitute a
conspiracy to distribute a controlled substance.” People v. Lucero,
2016 COA 105, ¶ 26.
B. Sufficiency of the Evidence for the Conspiracy Conviction
¶ 13 We now turn to Shewfelt’s contention that there was
insufficient evidence of an agreement presented at trial to sustain
his conspiracy conviction.
1. Standard of Review and Applicable Law
¶ 14 We review the record de novo to determine whether the
evidence was sufficient both in quantity and quality to sustain a
conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). To
determine whether the prosecution presented sufficient evidence to
support a conviction, we consider “whether the relevant evidence,
both direct and circumstantial, when viewed as a whole and in the
6 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
People v. Bennett, 515 P.2d 466, 469 (Colo. 1973)). In doing so, we
give the prosecution the benefit of all reasonable inferences
supported by a logical connection between the facts established and
the conclusion inferred. Id. at 1292.
¶ 15 In making this determination, we recognize that “it is the jury
which should decide the difficult questions of witness credibility
and the weight to be given to conflicting items of evidence,” People v.
Gibson, 203 P.3d 571, 575 (Colo. App. 2008) (quoting People v.
Brassfield, 652 P.2d 588, 592 (Colo. 1982)), and we do not sit as a
thirteenth juror to reassess witness credibility or to reweigh the
evidence presented to the jury, see Clark, 232 P.3d at 1293;
People v. Franklin, 645 P.2d 1, 4 (Colo. 1982) (“The determination of
the credibility of witnesses is a matter solely within the province of
the jury.”).
2. Discussion
¶ 16 A person commits conspiracy to distribute a controlled
substance by, as relevant here, “knowingly . . . conspir[ing] with one
7 or more other persons, to . . . sell, or distribute, a controlled
substance.” § 18-18-405(1)(a), C.R.S. 2024. Under the general
conspiracy statute, “[a] person commits conspiracy to commit a
crime if, with the intent to promote or facilitate its commission, he
agrees with another person or persons that they, or one or more of
them, will engage in conduct which constitutes a crime or an
attempt to commit a crime.” § 18-2-201(1), C.R.S. 2024; see
Lucero, ¶ 12 (applying the general conspiracy statute to the offense
of conspiracy to distribute a controlled substance).
¶ 17 “Conspiracy requires proof of a ‘real agreement, combination,
or confederation with a common design. (Mere passive cognizance
of the crime to be committed or mere negative acquiescence is not
sufficient.)’” Lucero, ¶ 13 (quoting Bates v. People, 498 P.2d 1136,
1138 (Colo. 1972)). But the agreement “need not be formal or
susceptible to direct proof, and may be, and indeed must generally
be proved circumstantially.” People v. Nelson, 539 P.2d 477, 479
(Colo. 1975) (citation omitted); see also United States v. Loveland,
8 825 F.3d 555, 561-62 (9th Cir. 2016) (The agreement “can be
explicit or tacit.”).
¶ 18 Shewfelt asserts that there was insufficient evidence of an
agreement between him and Sanchez to sell or distribute heroin.3
But the jury was presented evidence that
• Sanchez was driving Shewfelt to Fightlin in the early
morning;
• before they left, Shewfelt informed Fightlin that he was
going to “bring a half,” which the prosecution’s expert
explained meant that Shewfelt was going to bring Fightlin
half an ounce of heroin;
• a little over half an ounce of heroin, along with various drug
distribution paraphernalia, was found in the truck;
• unused tinfoil, which the prosecution’s expert testified is
commonly used to distribute or smoke heroin, was found in
Sanchez’s purse, and the heroin was discovered under the
driver’s seat that Sanchez had occupied;
3 Shewfelt also argues that there was no evidence of an agreement
between him and Fightlin. But as we have already discussed, supra Part II.A, Fightlin was not a conspirator in the charged conspiracy.
9 • Shewfelt told police officers that the heroin belonged to
Sanchez; and
• Sanchez attempted to elude the police when they tried to
initiate a traffic stop and later tried to flee the scene on foot
after crashing the truck.
¶ 19 Shewfelt argues that this evidence only establishes Sanchez’s
presence and that “[m]ere presence does not amount to sufficient
independent evidence to support the existence of the conspiracy.”
People v. Braly, 532 P.2d 325, 328 (Colo. 1975), overruled on other
grounds by People v. Montoya, 753 P.2d 729 (Colo. 1988). We
disagree. Sanchez was not “merely present”; she was actively
involved by driving Shewfelt to deliver heroin to Fightlin. See United
States v. Herrera, 526 F. App’x 823, 826-27 (10th Cir. 2013) (The
fact the defendant was driving drug dealers to a drug deal “allowed
the jury to infer that [the] [d]efendant knowledgeably associated
himself with the drug deal and facilitated its success.”). Moreover,
Sanchez attempted to elude the police and fled from the truck after
crashing, which could indicate her participation in and
consciousness of guilt about the conspiracy. See People v. Gee,
2015 COA 151, ¶ 26 (“Evidence of flight . . . suggests a guilty mind,
10 and ‘[f]rom a guilty mind, guilt itself may be inferred.’” (quoting
People v. Summitt, 132 P.3d 320, 324 (Colo. 2006))) (second
alteration in original).
¶ 20 Viewing the evidence in the light most favorable to the
prosecution, we conclude that a reasonable jury could infer an
agreement between Shewfelt and Sanchez to deliver heroin to
Fightlin. See People v. Randell, 2012 COA 108, ¶ 45 (conspiracy
agreements may be inferred from co-conspirators’ actions); see also
People v. Robinson, 226 P.3d 1145, 1155 (Colo. App. 2009)
(“Because of the ‘covert and secretive nature of the offense,’ most
evidence supporting a conspiracy will be circumstantial.”) (citation
omitted). Accordingly, the evidence was sufficient to sustain
Shewfelt’s conspiracy conviction.
C. Simple Variance and Unanimity for the Conspiracy Conviction
¶ 21 Shewfelt next contends that the evidence presented at trial
established a conspiracy different from the one charged in the
complaint. He asserts that this resulted in a prejudicial variance
11 and violated his right to a unanimous verdict on the conspiracy
charge. We disagree.
¶ 22 We review de novo whether a variance occurred, People v. Rail,
2016 COA 24, ¶ 48, aff’d on other grounds, 2019 CO 99, and
whether the district court erred by failing to give a modified
unanimity instruction, People v. Hines, 2021 COA 45, ¶ 48.
Shewfelt did not preserve these arguments, so we will only reverse if
there was plain error. See People v. Smith, 2018 CO 33, ¶¶ 22-24.
“[P]lain error occurs when there is (1) an error, (2) that is obvious,
and (3) that so undermines the fundamental fairness of the trial
itself as to cast serious doubt on the reliability of the judgment of
conviction.” Cardman v. People, 2019 CO 73, ¶ 19.
¶ 23 There are two types of variances, Campbell v. People, 2020 CO
49, ¶ 45, but Shewfelt alleges only one — a simple variance —
occurred here. A simple variance “occurs when the evidence
presented at trial proves facts materially different from those alleged
in the charging document.” Id. (quoting Smith, ¶ 25). Such a
variance generally will not require reversal as long as the proof on
12 which the conviction is based corresponds to an offense clearly set
out in the charging instrument. Id.
¶ 24 Additionally, the district court has “a duty to correctly instruct
juries on all matters of law.” Day v. Johnson, 255 P.3d 1064, 1067
(Colo. 2011). In Colorado, a defendant has a statutory right to a
unanimous jury verdict. § 16-10-108, C.R.S. 2024; Crim. P.
23(a)(8); Crim. P. 31(a)(3); People v. Linares-Guzman, 195 P.3d
1130, 1134 (Colo. App. 2008). “Unanimity means only that each
juror agrees that each element of the crime charged has been
proved to that juror’s satisfaction beyond a reasonable doubt.”
Linares-Guzman, 195 P.3d at 1134; see People v. Lewis, 710 P.2d
1110, 1116 (Colo. App. 1985).
¶ 25 “Generally, jurors need not agree about the evidence or theory
by which a particular element is established . . . .” People v. Vigil,
251 P.3d 442, 447 (Colo. App. 2010); see People v. Dunlap, 124 P.3d
780, 815 (Colo. App. 2004) (the defendant was not deprived of his
right to a unanimous verdict even though the theft instruction
included both the “without authorization” and “threat and
deception” theories). But when the prosecution presents evidence
of multiple distinct acts that could constitute the charged offense
13 and the jury has a reasonable likelihood of disagreeing over which
act was committed, the district court must either (1) require the
prosecution to elect the transaction on which it relies for the
conviction or (2) provide a special instruction that the jury must
unanimously agree that the defendant committed the same act or
all of the acts. People v. Archuleta, 2020 CO 63M, ¶¶ 21-22; Hines,
¶ 50.
¶ 26 Shewfelt argues that the People pivoted midtrial from
attempting to prove a conspiracy between Shewfelt and Sanchez to
“focusing on Fightlin and Shewfelt’s text messages to prove Fightlin
as the co-conspirator.” This change, according to Shewfelt, resulted
in a prejudicial variance and, because the district court did not give
a modified unanimity instruction, allowed the jury to return a guilty
verdict that may not have been unanimous as to whether he
conspired with Sanchez or with Fightlin. We reject these arguments
because no substantive evidence of a conspiracy between Fightlin
and Shewfelt was admitted at trial, and the prosecution did not
14 argue that such a conspiracy existed and could form the basis of a
guilty verdict.4
¶ 27 As Shewfelt notes, “[T]he prosecution did not present evidence
[at trial] of an agreement to distribute drugs distinct from the
evidence of an alleged agreement to complete any underlying drug
deal (i.e., a drug deal beyond any alleged deal between Shewfelt and
Fightlin).” This is because the text messages that Fightlin sent
Shewfelt — the only evidence of a broader conspiracy between
Shewfelt and Fightlin — were, per the district court’s limiting
instructions, “admitted only to give context to Mr. Shewfelt’s
statements and [were] not . . . admitted as substantive evidence.”
We presume that the jury followed these limiting instructions and
did not consider the buyer’s text messages as substantive evidence.
4 On appeal, the People assert that “Fightlin was alleged to be part
of this conspiracy” and that the prosecutor presented evidence at trial demonstrating a conspiracy between Shewfelt and Fightlin. After reviewing the record de novo, we disagree. See People v. Curren, 228 P.3d 253, 257 (Colo. App. 2009) (“Because a record on appeal speaks for itself, an appellate court may accept, but is not bound by, the concessions of counsel regarding the record’s contents or inferences drawn therefrom.”).
15 See People v. Snelling, 2022 COA 116M, ¶ 22 (“[A]bsent evidence to
the contrary, we presume that jurors follow a court’s instructions.”).
¶ 28 And, contrary to Shewfelt’s assertions, the prosecutor did not
argue during closing statements that the jury could convict based
on a conspiracy between Shewfelt and Fightlin. Instead, the
prosecutor told the jury that it had “heard evidence that
Ms. Sanchez and Mr. Shewfelt were driving together with drugs in
the car and with a plan to meet Mr. Fightlin.” (Emphasis added.)
The prosecutor only referenced the text messages Shewfelt sent to
Fightlin in the context of a plan between Shewfelt and Sanchez to
sell Fightlin drugs. Notably, the prosecutor did not mention any of
the text messages sent by Fightlin to Shewfelt and did not suggest
there was a plan for Fightlin to redistribute the drugs received from
Shewfelt.
¶ 29 During rebuttal closing, the prosecutor did make a somewhat
inartful statement that, if read in isolation, could suggest that
Fightlin was a co-conspirator:
Who are the other people to show that the defendant is guilty of this charge [of conspiracy?] Holiday Sanchez is one of them. She was present with Mr. Shewfelt. She drove his vehicle. . . . It’s the other individual — we
16 know who that is. Look at those text messages.
But the prosecutor immediately went on to clarify that he was
referring to the text messages with “the other individual” (Fightlin)
because “those text messages, they show the overt act towards
delivering those drugs.” (Emphasis added.) There was again no
reference during rebuttal closing to a conspiracy between Shewfelt
and Fightlin to redistribute drugs.
¶ 30 In sum, there was no substantive evidence of a conspiracy
between Fightlin and Shewfelt admitted during trial, and the
prosecution did not argue that any such conspiracy existed.
Accordingly, we conclude that no variance occurred and the district
court was not required to give the jury a modified unanimity
instruction. See Archuleta, ¶¶ 21-22.
D. Limited Admission of the Text Messages
¶ 31 Shewfelt contends that the district court reversibly erred by
admitting the text messages that Fightlin sent Shewfelt.
Specifically, he argues that the text messages were inadmissible
because they (1) were not authenticated as belonging to Fightlin;
17 (2) contained hearsay; and (3) were irrelevant and risked unfair
prejudice and misleading the jury. We are not persuaded.
1. Standard of Review
¶ 32 We review evidentiary rulings for an abuse of discretion.
People v. Abad, 2021 COA 6, ¶ 8. A court abuses its discretion
when its ruling is manifestly arbitrary, unreasonable, or unfair or
misapplies the law. Id.
2. Authentication
¶ 33 We first address Shewfelt’s argument that the district court
abused its discretion by admitting the text messages because
Fightlin was not shown to be the person on the other side of the
text messages.
¶ 34 The requirement of authentication as a condition precedent to
admissibility “is satisfied by evidence sufficient to support a finding
that the matter in question is what its proponent claims.” CRE
901(a). The burden to authenticate “‘is not high — only a prima
facie showing is required,’ and a ‘district court’s role is to serve as
gatekeeper in assessing whether the proponent has offered a
satisfactory foundation from which the jury could reasonably find
that the evidence is authentic.’” People v. Glover, 2015 COA 16,
18 ¶ 13 (citation omitted). Once this prima facie burden is met,
authenticity becomes a question for the jury. Gonzales v. People,
2020 CO 71, ¶ 6.
¶ 35 Shewfelt does not dispute that the text messages were
extracted from one of the cell phones retrieved from his truck, nor
does he argue that there were authentication issues created by the
extraction process. Indeed, the prosecution’s expert witness who
performed the extraction testified about how he extracted the data
from the cell phone and all the ways it was associated with
Shewfelt. This testimony satisfied CRE 901 for Shewfelt’s
messages. See People v. Hamilton, 2019 COA 101, ¶ 36 (“The
proponent may authenticate electronically generated printouts
through the testimony of a person with personal knowledge of how
the printouts were generated and that they are what they are
claimed to be.”).
¶ 36 Nevertheless, relying on People v. Heisler, 2017 COA 58,
Shewfelt contends that the prosecution was required to prove that
Fightlin was the person sending messages to Shewfelt for those text
messages to be admissible. But the text messages were “admitted
only to give context to Mr. Shewfelt’s statements and [were] not . . .
19 admitted as substantive evidence,” and the district court further
instructed the jury that “it has not been conclusively shown that
Mr. Fightlin was the other texting party.” Heisler does not apply to
messages admitted under these circumstances. See Abad, ¶¶ 45,
65 (concluding the district court did not abuse its discretion by
finding that cell phone records including “statements by other
unknown individuals engaging in a chat conversation with” the
defendant satisfied Rule 901(a)); Glover, ¶¶ 41-42 (requiring “the
prosecution to prove that the [Facebook] account belonged to [the]
defendant and that [the] defendant authored the messages in the
printout,” but not imposing the same requirement for “statements
made by others in the records” that “were admitted to give context
to [the] defendant’s statements”); see also People v. Arnold, 826 P.2d
365, 366 (Colo. App. 1991) (“[R]eliability or truth is not at issue”
with statements “offered for the sole and limited purpose of putting
the responses of the defendant in context and making them
20 understandable to the jury, and not for the truth of their content”;
instead, “[t]he only pertinent fact is that they were made.”).
¶ 37 Accordingly, the district court did not abuse its discretion by
admitting the text messages allegedly sent by Fightlin as
nonsubstantive evidence with limiting instructions.
3. Hearsay
¶ 38 We next turn to Shewfelt’s argument that the text messages
were inadmissible hearsay.
¶ 39 Hearsay is “a statement other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove
the truth of the matter asserted.” CRE 801(c). But “statements
offered for other purposes — such as showing the statement’s effect
on the listener or to give context to a defendant’s statements — are
not offered for their truth and are not hearsay.” Abad, ¶ 52.
¶ 40 Shewfelt argues that the text messages from Fightlin were
inadmissible hearsay because “[t]he prosecution admitted Fightlin’s
statements for the truth of the matter — to establish Fightlin owned
the phone corresponding with Shewfelt, signifying a relationship
and an agreement to sell or distribute heroin, which was necessary
to prove the conspiracy count.” Moreover, he contends that the
21 People relied on Fightlin’s text messages for their truth because “the
only actual evidence of anything possibly resembling an agreement
was the messages between Shewfelt” and Fightlin.5
¶ 41 But as we have already discussed, there was sufficient
evidence to support a conspiracy conviction between Shewfelt and
Sanchez, see supra Part II.B, and the People did not argue that
there was a conspiracy between Shewfelt and Fightlin, see supra
Part II.C. Thus, Fightlin’s text messages were not admitted or relied
on for their truth, and we cannot conclude that the district court
abused its discretion by admitting these messages for the limited
nonhearsay purpose of giving context to Shewfelt’s own statements.
4. Relevancy and Prejudice
¶ 42 Finally, Shewfelt contends that the text messages should not
have been admitted because they were irrelevant if they could not
5 In a footnote, Shewfelt also contends that “[i]t is also likely that
the statements are hearsay within hearsay because [the] Detective . . . created the exhibit by using Microsoft Word and typing the statements from a Cellebrite report.” But he does not develop this contention further in his opening brief, so we will not consider it. See People v. Liggett, 2021 COA 51, ¶ 53, aff’d, 2023 CO 22. Nor will we consider his related argument, raised for the first time in his reply brief, that the text messages were inadmissible under the best evidence rule. See People v. Owens, 2024 CO 10, ¶ 90.
22 be authenticated as sent by Fightlin, and they risked misleading the
jury by introducing a different conspiracy.
¶ 43 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. But relevant evidence may be excluded if
its probative value is substantially outweighed by the danger of
unfair prejudice. CRE 403.
¶ 44 The balancing test under Rule 403 strongly favors the
admission of evidence. Masters v. People, 58 P.3d 979, 1001 (Colo.
2002). By requiring that the probative value of the evidence be
“substantially outweighed” by the danger of unfair prejudice, “the
rule makes clear that the need for exclusion must be great.” Id.
Thus, when reviewing a district court’s exercise of discretion under
Rule 403, an appellate court must afford the evidence the
maximum probative value attributable by a reasonable fact finder
and the minimum unfair prejudice to be reasonably expected.
People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995).
¶ 45 Shewfelt’s argument that the text messages were irrelevant
relies on the premise that they were introduced in order to prove a
23 conspiracy between Shewfelt and Fightlin. We have already rejected
that premise. See supra Part II.C. The text messages sent by
Fightlin were relevant for the limited purpose they were admitted
for: to give context to the messages that Shewfelt sent. And the
messages that Shewfelt sent were highly relevant to prove both the
underlying possession with intent to distribute charge and the
conspiracy between Shewfelt and Sanchez because they
demonstrated that Shewfelt was travelling with the drugs to provide
them to Fightlin.
¶ 46 Turning to prejudice, we acknowledge that Fightlin’s text
messages posed a risk of confusing the jury by introducing a
second conspiracy. However, the district court mitigated this
prejudice by admitting the messages as nonsubstantive evidence
and instructing the jury accordingly both at the time the messages
were introduced and in the final jury instructions. Given that we
assume the jury follows the court’s instructions, Snelling, ¶ 22, and
giving the text messages the maximum probative value and the
minimum unfair prejudice that could reasonably be expected,
Gibbens, 905 P.2d at 607, we cannot conclude that the probative
value of the messages is substantially outweighed by the risk of
24 unfair prejudice or confusion. Accordingly, the court did not err by
admitting the text messages.
E. Lay Witness Testimony
¶ 47 Shewfelt contends that the district court plainly erred by
allowing two police officers to present expert testimony under the
guise of lay opinion testimony. We discern no basis for reversal.
1. The Testimony
¶ 48 The first officer testified about his search of Shewfelt’s truck
and made the following statements:
• The officer “came across some crumpled tinfoil with burn
marks on it, which . . . typically coincides with illicit drug
use.”
• The officer found “a glass pipe in a black bag, which is
consistent with illicit drug use. There was residue inside
the pipe.”
• There was “a can of butane gas. Typically, butane gas can
be used to heat drugs for consumption.”
• There were three round containers with a brown substance
in them, and the officer “observed [the substance] to be
consistent with heroin.”
25 • Having multiple containers was, based on the officer’s
“training and experience,” not consistent with personal drug
use. And the “amounts in the containers seemed like a
larger amount than what [the officer had] seen before in
terms of training and experience for personal use.”
• There was a “dentist’s picking tool.” Because the tool “had
burn marks on it,” it seemed similar to tools the officer had
encountered in other situations that were “used to handle
drugs, whether to distribute drugs for consumption or
distribution.”
Shewfelt’s counsel only objected to the statement about the amount
of drugs not being consistent with personal use, but he withdrew
that objection after a bench conference.
¶ 49 The second officer testified that he also examined the round
containers from Shewfelt’s truck and saw a substance that was
“consistent in appearance with what [he had] seen black tar heroin
26 to look like.” Shewfelt’s counsel did not object to this statement
either.
¶ 50 The two officers were not offered as expert witnesses.
2. Standard of Review and Applicable Law
¶ 51 We review a district court’s evidentiary decision for abuse of
discretion. Venalonzo v. People, 2017 CO 9, ¶ 15. Shewfelt’s
counsel withdrew his only objection to one of the challenged
statements, so we review for plain error. See Hagos v. People, 2012
CO 63, ¶ 14.6 As discussed above, a plain error must so undermine
the fundamental fairness of the trial itself as to cast serious doubt
on the reliability of the judgment of conviction. Cardman, ¶ 19.
¶ 52 CRE 701 defines the scope of lay witness opinion testimony.
Under Rule 701, lay witness testimony in the form of opinions or
inferences must be “(a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not based
6 The People contend that Shewfelt’s counsel’s withdrawal of his
objection constitutes a waiver as to the objected-to statement, and therefore we should not review it. We need not resolve this contention because allowing the statement was not plain error.
27 on scientific, technical, or other specialized knowledge within the
scope of [CRE] 702.”
¶ 53 Rule 702, on the other hand, concerns the admissibility of
expert testimony. Under this rule, “[i]f scientific, technical, or other
specialized knowledge will assist the trier of fact to understand the
evidence or to determine a fact in issue, a witness qualified as an
expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.” CRE 702.
¶ 54 The critical factor in distinguishing between lay and expert
opinion testimony is the basis for the witness’s opinion. People v.
Dominguez, 2019 COA 78, ¶ 40. Expert testimony is that which
goes beyond the realm of common experience and requires
experience, skills, or knowledge that the ordinary person would not
have. Venalonzo, ¶ 22.
3. Discussion
¶ 55 Shewfelt contends that each of the above statements
constituted improperly admitted lay testimony. The People argue
that the testimony about drug paraphernalia fell within an ordinary
person’s knowledge or experience and was therefore not expert
testimony, but the People concede that “testimony identifying the
28 substance as heroin or about personal use amounts . . . appears to
have crossed the line into expert testimony.”
¶ 56 To start, we agree with the People that, at the very least, the
testimony that a glass pipe with residue and butane gas are often
associated with drug use did not go beyond the realm of common
experience that an ordinary person would possess. See id.;
People v. Veren, 140 P.3d 131, 139 (Colo. App. 2005) (“We recognize
that certain basic information about drugs may properly fall within
the scope of lay opinion testimony.”). It is common knowledge that
pipes and lighters can and often are used to smoke illegal
substances. Accordingly, the district court did not abuse its
discretion by allowing this testimony.
¶ 57 We further conclude that, even assuming that all of the
remaining statements were improperly admitted lay testimony,
there is no plain error because the statements were cumulative of
properly admitted expert testimony. See People v. Douglas, 2015
COA 155, ¶ 41. After the two police officers testified, the
prosecution presented two expert witnesses. The first expert was
tendered and accepted as “an expert in the area of drug
identification and analysis.” She testified that she performed a
29 laboratory analysis on the substance found in Shewfelt’s truck and
was “able to identify that as heroin.” The second expert was
endorsed as “an expert in the area of narcotics, drug enforcement
and investigations.” He testified that
• the heroin being in multiple separate containers indicated a
plan to distribute;
• “heroin is sold on the street usually on the point or the
tenth of a gram, so” a typical drug user would “use a few
tenths a day”;
• heroin is commonly sold or distributed in tinfoil, and it is
“very common” for heroin to be smoked off of tinfoil; and
• “[a]nything with burn marks would be suspicious” for drug
usage.
¶ 58 Thus, the two experts’ testimony established that the
substance was heroin; the amount of heroin and the way it was
packaged indicated distribution as opposed to personal use; tinfoil
is used both to distribute and to smoke heroin; and burn marks,
such as on the dentist’s pick or tinfoil, are associated with drug
usage. The two officers’ admitted lay statements were cumulative of
30 this properly admitted expert testimony. Therefore, there is no
plain error. See id.
F. Cumulative Error
¶ 59 Shewfelt contends that the cumulative effect of the alleged
errors in his trial mandates reversal. We are not persuaded.
¶ 60 “The doctrine of cumulative error requires that numerous
errors be committed, not merely alleged.” People v. Conyac, 2014
COA 8M, ¶ 152. Under the doctrine, although an individual error,
when viewed in isolation, may be harmless, reversal is required
when the cumulative effect of multiple errors and defects
substantially affected the fairness of the trial or the integrity of the
factfinding process. Howard-Walker v. People, 2019 CO 69, ¶ 24.
¶ 61 We have assumed that five statements made by police officer
witnesses were improper expert testimony. However, we concluded
that the admission of each statement, individually, did not
constitute plain error because each was cumulative of properly
admitted expert testimony. For similar reasons, we now conclude
that these five statements collectively did not substantially impact
the fairness of the trial or the integrity of the factfinding process, as
there was other properly admitted expert testimony that supported
31 the same statements and the jury was instructed that the “number
of witnesses testifying for or against a certain fact does not, by
itself, prove or disprove that fact.” See id.
III. Disposition
¶ 62 The judgment is affirmed.
JUDGE J. JONES and JUDGE BROWN concur.