County District Court No. 12CR2425 Honorable John E.
Cynthia H. Coffman, Attorney General, Brian M. Lanni,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Mark
Evans, Deputy State Public Defender, Denver, Colorado, for
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
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
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
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.
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.
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 ...