Colorado’s second-highest court on Thursday concluded a Denver jury convicted a defendant of a felony for possessing more than four grams of an illegal substance when the evidence actually showed it was not close to even one gram.

At his 2023 trial, a jury convicted Cesar Noel Garcia for misdemeanor possession of methamphetamine and felony possession of the synthetic opioid fentanyl. He received two years in prison for the fentanyl offense.

To be found guilty of the more serious crime, Garcia needed to possess more than four grams of fentanyl. The analyst who tested a sample of Garcia’s 89 pills testified that each contained two milligrams or fewer of fentanyl. The total weight of the pills was 9.47 grams.

Initially, the prosecutor asked if the total weight was 9.47 grams “of fentanyl,” to which the analyst responded, “That sounds correct.”

But a juror submitted a question seeking to clarify how much fentanyl was in the pills. The analyst responded that fentanyl “makes up very little of the volume and mass of the tablets.”

On appeal, Garcia argued his felony conviction could not stand because his 89 pills did not contain more than four grams of fentanyl. Mathematically, they contained 0.178 grams, and other substances made up the remaining weight. He also contended the prosecutor committed misconduct by telling jurors in closing argument that Garcia possessed 9.47 grams “of fentanyl.”

Because the analyst’s testimony was unclear on the math, “it was for the jury to resolve any potential inconsistencies, and based on this record, a reasonable jury could find Defendant possessed more than the requisite four grams of fentanyl,” responded Gina M. Nykerk of the Colorado Attorney General’s Office.

No, a jury could not have found that, determined a three-judge Court of Appeals panel.

“This isn’t a case where two different witnesses offered conflicting testimony that the jury had to sort out. Instead, this is a circumstance where a single witness’s later testimony — that the pills contained at most 0.178 grams of fentanyl — clarified his earlier testimony that the pills’ total weight was attributable to fentanyl,” wrote Judge Craig R. Welling in the Oct. 16 opinion.

Because the law does not render someone guilty if the total weight of a substance exceeds four grams, the panel agreed Garcia stood convicted of only possessing 0.178 grams of fentanyl. The panel concluded the proper consequence was to resentence Garcia for a misdemeanor.

The case is People v. Garcia.