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People v. Hard

Court of Appeals of Colorado, Fifth Division

October 9, 2014

The People of the State of Colorado, Plaintiff-Appellee and Cross-Appellant,
v.
Lisa Lynne Hard, Defendant-Appellant and Cross-Appellee

Page 573

Arapahoe County District Court No. 11CR2497. Honorable John L. Wheeler, Judge.

John W. Suthers, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado; George Brauchler, District Attorney, Rich Orman, Senior Deputy District Attorney, Centennial, Colorado for Plaintiff-Appellee and Cross Appellant.

Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant and Cross-Appellee.

Opinion by JUDGE J. JONES. Hawthorne and Ashby, JJ., concur.

OPINION

J. JONES, JUDGE

Page 574

[¶1] Defendant, Lisa Lynne Hard, appeals the judgment of conviction entered on jury verdicts finding her guilty of possession of a schedule II controlled substance and possession of a schedule III controlled substance.

[¶2] The People cross-appeal defendant's sentence as to her conviction for failure to present proof of insurance.

[¶3] We vacate defendant's conviction for possession of a schedule II controlled substance, reverse her conviction for possession of a schedule III controlled substance, vacate her sentence in part, and otherwise affirm.

I. Background

[¶4] According to the prosecution's evidence, State Trooper Blake Hancey pulled over defendant's car after seeing that defendant was speeding and not wearing a seat belt. He asked to see her driver's license, vehicle registration, and proof of insurance. She provided only her driver's license.

[¶5] During the traffic stop, Trooper Hancey noticed that defendant smelled faintly of alcohol, her eyes were bloodshot and watery, her speech was rapid and slurred, and she was squirming in her seat. He asked her why she was not wearing a seat belt, and she said that she was on her way to the emergency room because she was having back spasms. He also asked whether she had been drinking and whether she was taking any medications. She responded that she had " had a beer earlier, and that she had taken a half a Xanax earlier."

[¶6] Trooper Hancey then checked whether defendant had any outstanding warrants for her arrest, and discovered that she had a warrant for failure to appear on a charge of driving under the influence. He then asked whether she would consent to perform roadside maneuvers. She refused, and Trooper Hancey arrested her.

[¶7] Incident to the arrest, Trooper Hancey searched defendant and found ten pills in her pants pockets. Defendant said that she had

Page 575

prescriptions for the pills, but that she did not have the prescriptions with her. Inside defendant's car, Trooper Hancey also found an empty twenty-four-ounce beer can and another unopened beer can.

[¶8] Before taking defendant to the police station, Trooper Hancey accessed the website Drugs.com to identify the pills. He identified one pill as oxycodone, a controlled substance, and seven of the pills as alprazolam, another controlled substance.[1] He identified the other two pills as naproxen, an over-the-counter medication. He did not subsequently submit the pills for any confirmatory chemical testing.

[¶9] Trooper Hancey then took defendant to the Arapahoe County Jail, where she consented to a blood test. The test showed that her blood-alcohol content was .039. No drugs were detected.

[¶10] As relevant here, the People charged defendant with possession of a schedule II controlled substance (oxycodone), possession of a schedule III controlled substance (alprazolam),[2] driving under the influence, failure to present proof of insurance, and speeding.

[¶11] A jury acquitted defendant of the driving under the influence charge, but found her guilty of the other charges. The district court sentenced her to two years of probation for the drug possession convictions, and imposed monetary fines for the other convictions.

[¶12] On appeal, defendant challenges only her drug possession convictions.

II. Defendant's Appeal

[¶13] Defendant contends that (1) the district court erroneously admitted testimonial hearsay; (2) there was insufficient evidence to support her convictions for possession of controlled substances; (3) the district court erroneously admitted expert testimony; and (4) the mittimus incorrectly identified one of her convictions.

[¶14] We agree with defendant's first contention, agree with the second as to the conviction for possession of a schedule II controlled substance, disagree with the second as to possession of a schedule III (actually IV) controlled substance, and do not address her other two contentions.

A. Hearsay Evidence

[¶15] Defendant first contends that (1) the district court erred by admitting hearsay testimony about information Trooper Hancey obtained from Drugs.com and (2) the admission of that evidence violated her state and federal confrontation rights. We agree with defendant that the Drugs.com evidence was inadmissible hearsay.[3]

1. Procedural Background

[¶16] Before trial, defendant's counsel moved to exclude Trooper Hancey's testimony about his Drugs.com search results. Counsel argued, as relevant here, that the evidence was inadmissible hearsay and that its admission would violate defendant's right to confrontation.

[¶17] The prosecutor argued in response that the evidence was admissible under CRE 803(17), the hearsay exception for market reports and commercial ...


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