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People v. Lucero

Court of Appeals of Colorado, Sixth Division

July 14, 2016

The People of the State of Colorado, Plaintiff-Appellee,
v.
Rose Lucero, Defendant-Appellant.

         Adams County District Court No. 12CR2425 Honorable John E. Popovich, Judge

          Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          NAVARRO JUDGE

         ¶ 1 If a person requests and receives a controlled substance solely for her personal use, has she thereby entered into a conspiracy with the person who gave it to her to distribute the substance? We conclude that she has not because in that scenario the two people have not agreed to distribute the substance to others.

         ¶ 2 Defendant, Rose Lucero, appeals the judgment of conviction entered on a jury verdict finding her guilty of conspiracy to distribute a controlled substance. Because Lucero's acts did not constitute such a conspiracy, we vacate the judgment of conviction and remand for entry of a judgment of acquittal.

         I. Factual and Procedural History

         ¶ 3 The prosecution charged Lucero with conspiring with her coworker to distribute codeine (contained in Tylenol 3), a schedule III controlled substance, as well as two counts of inducing her coworker to distribute the same substance. See § 18-18-405(1)(a), C.R.S. 2015. All of the charged offenses were class 4 felonies at the time of Lucero's acts. See Ch. 424, sec. 3, § 18-18-405(2)(a)(II)(A), 2003 Colo. Sess. Laws 2682-83. Evidence of the following was admitted at trial.

         ¶ 4 Between December 1, 2010, and April 30, 2012, Lucero's coworker obtained various prescription medications for her health and then shared them with others at the workplace. Several times over this period, Lucero requested medication from the coworker for Lucero's personal use (to relieve pain from cramps). Lucero made these requests in person, by phone, or by e-mail. Each time the coworker gave Lucero medication, she gave Lucero one pill for no reimbursement. There was no evidence that Lucero distributed the medication to others; on the contrary, the evidence showed (and the prosecution argued) that she took the pills herself.

         ¶ 5 Besides an e-mail with the subject line "Tylenol, " Lucero's requests for medication were unspecific. The women gave inconsistent statements as to what particular medication was exchanged. The coworker testified that she gave Lucero "Advil, " "my prescription of my ibuprofen, " and "Midol." Lucero said in an interview that she received "Tylenol 3s, " "Excedrin, " and "ibuprofen." A detective testified that Tylenol 3 is a "codeine narcotic, 30 milligram, which under Schedule III anything less than 90 milligrams would fall under Schedule III."

         ¶ 6 The trial court granted Lucero's motion for judgment of acquittal on the inducement counts but denied her motion on the conspiracy count. The jury convicted her of the conspiracy count, and the court sentenced her to one year of probation.

         II. Analysis

         ¶ 7 Lucero contends that the prosecution presented insufficient evidence to prove that she conspired with her coworker to distribute a controlled substance. Lucero relies on the following principle that has been recognized by numerous federal and state courts: Evidence of a buyer-seller relationship - without more - does not constitute a conspiracy to distribute drugs. Of course, this case does not present a stereotypical sale of an illegal drug. Lucero did not purchase drugs from a retail seller; she simply asked for painkillers (one at a time) from a coworker who agreed to provide them for free and for her personal use. Nonetheless, Lucero argues that the aforementioned legal principle should protect her from a conspiracy conviction to the same extent it would shield a stereotypical retail buyer of a controlled substance.

         ¶ 8 We agree. We conclude that this principle (i.e., a mere buyer-seller relationship does not constitute a drug distribution conspiracy) applies in Colorado because Colorado's drug conspiracy statute is based on the model uniform law, which in turn is based on the federal statute. This precept also comports with Colorado's general conspiracy law, which punishes conspirators who have agreed on a common illicit purpose (e.g., to distribute drugs). Such commonality is absent where, as here, the evidence shows that the transferor intended only to distribute the drugs and the transferee intended only to possess them for personal use. Further, to conclude that such evidence is sufficient to convict the transferee of a conspiracy to distribute controlled substances would contravene the General Assembly's policy decision to punish simple possession less severely than conspiracy to distribute. Accordingly, we hold that the evidence was not sufficient to sustain Lucero's conspiracy conviction.

         A. Standard of Review

         ¶ 9 We review the record de novo to determine whether the evidence before the jury was sufficient both in quantity and quality to sustain the defendant's conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010). We consider whether the relevant evidence, when viewed as a whole and in the 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. We also review questions of statutory interpretation de novo. People v. Perez, 2016 CO 12, ¶ 8.

         B. Relevant Legal Principles 1. Colorado Law

         ¶ 10 To prove the charge at issue here, the prosecution had to show that Lucero "knowingly . . . conspire[d] with one or more other persons, to . . . distribute . . . a controlled substance[.]" § 18-18-405(1)(a). Any mixture containing "[n]ot more than 1.8 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts" constitutes a controlled substance listed in schedule III. § 18-18-205(2)(d)(II), C.R.S. 2015. As noted, conspiracy to distribute a schedule III controlled substance constituted a class 4 felony at the time of Lucero's acts. § 18-18-405(2)(a)(II)(A), 2003 Colo. Sess. Laws at 2683.

         ¶ 11 "Distribute" is defined as "to deliver other than by administering or dispensing a controlled substance, with or without remuneration." § 18-18-102(11), C.R.S. 2015. "Deliver" means "to transfer or attempt to transfer a substance, actually or constructively, from ...


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