Peo v. Fenstermacher

── Peo v. Fenstermacher ── Court: Colorado Court of Appeals Date: June 04, 2026 Category: General 23CA1001 Peo v Fenstermacher 06-04-2026 COLORADO COURT OF APPEALS Court of Appeals No. 23CA1001 Moffat County District Court No. 21CR6 Honorable Sandra H. Gardner, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Murray A. Fenstermacher, Defendant-Appellant. JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS Division II Opinion by JUDGE KUHN Fox and Sullivan, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced June 4, 2026 Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Kevin M. Whitfield, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Murray A. Fenstermacher, appeals his judgment of conviction for possession of a controlled substance with intent to distribute, a controlled substance special offender sentence enhancer, and possession of drug paraphernalia. We affirm in part, vacate in part, and remand with directions. I. Background ¶2 Fenstermacher owned, operated, and resided in a vehicle repair shop. Three informants reported to law enforcement that Fenstermacher dealt methamphetamine from the shop. Police officers executed a search warrant and searched the shop, seizing (among other items) methamphetamine, drug paraphernalia, several firearms, and Fenstermacher’s cell phone. Fenstermacher was arrested and subsequently charged with seven counts (four of which were later dismissed). ¶3 The informants also reported that Fenstermacher was involved in the commissions of burglary, robbery, assaults, and menacing. Fenstermacher was charged for those activities in a separate criminal matter that trailed this case (the burglary case).1 1 Following the conviction in this case, the trial court granted the prosecution’s motion to dismiss the burglary case. 1 ¶4 Despite extensive efforts by the trial court, this case took several years to bring to trial. During that time, Fenstermacher was consistently uncooperative and argumentative. He eventually proceeded to trial pro se. ¶5 The jury found Fenstermacher guilty of possession with intent to sell or distribute a schedule II controlled substance, a controlled substance special offender sentence enhancer, and possession of drug paraphernalia. See § 18-18-405(1)(a), (2)(b)(I)(B), C.R.S. 2025; § 18-18-407(1)(d)(II), C.R.S. 2025; § 18-18-428(1), C.R.S. 2025. The trial court sentenced him to a controlling term of twenty years in the custody of the Department of Corrections. ¶6 Fenstermacher now appeals, contending that the trial court erred by (1) finding that he implicitly waived his right to counsel; (2) not finding that state actors had destroyed exculpatory evidence; (3) finding that the search warrant affidavit supported probable cause; (4) denying two motions to continue the trial; (5) permitting prosecutorial misconduct; and (6) providing an improper reasonable doubt jury instruction. He further contends that (7) the prosecution presented insufficient evidence to support the special offender sentence enhancer. 2 ¶7 We address each issue in turn, along with a correction to the mittimus. II. Waiver of Right to Counsel ¶8 Fenstermacher contends that he did not implicitly waive his right to counsel through his contumacious conduct when he requested a third appointment of counsel. We are not persuaded. A. Additional Facts ¶9 At the start of the initially scheduled trial, the trial court allowed Fenstermacher’s first