County District Court No. 13CR1208 Honorable Larry C.
Cynthia H. Coffman, Attorney General, Patrick A. Withers,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Anne T.
Amicarella, Deputy State Public Defender, Denver, Colorado,
1 Defendant, Valerie Valentina Gonzales, appeals the judgment
of conviction entered on jury verdicts finding her guilty of
unlawful possession of a schedule II controlled substance
(oxycodone) and unlawful possession of a schedule III
controlled substance (hydrocodone). We conclude that in this
instance the provision in section 18-18-413, C.R.S. 2016,
allowing for authorized possession of a controlled substance
by "a person acting at the direction of the legal owner
of the controlled substance" is not an affirmative
defense to a charge of unlawful possession of a controlled
substance under section 18-18-403.5, C.R.S. 2016. We also
reject defendant's remaining contentions. Consequently,
2 Defendant was charged with simple possession after the
police found Percocet and Vicodin in her purse for which she
did not have a prescription. At trial, defendant's
neighbor testified that she had prescriptions for both
medications and that she had asked defendant to hold her
prescriptions while they were out that evening because her
purse was too small and she did not wish to leave the
medications at home. A jury convicted defendant of possession
and the trial court sentenced her to probation.
3 Defendant contends that she could lawfully possess the
medications if she was "acting at the direction of the
legal owner of the controlled substance." §
18-18-413. She therefore argues that the trial court should
have given the jury an affirmative defense instruction.
Defendant further contends the trial court plainly erred by
not giving an affirmative defense instruction based on the
prescription exception in section 18-18-302(3)(c), C.R.S.
2016, that allows lawful possession by "[a]n ultimate
user or a person in possession" of the medication
"pursuant to a lawful order of a practitioner." We
conclude that under the circumstances here, section 18-18-413
is not an affirmative defense to unlawful possession and that
the trial court did not plainly err by failing sua sponte to
give either instruction.
Standard of Review
4 "We review de novo the question of whether a jury
instruction accurately informed the jury of the governing
law." People v. Carbajal, 2014 CO 60, ¶
10. "We review a trial court's decision to give or
not to give a particular instruction for an abuse of
discretion." People in Interest of J.G., 2016
CO 39, ¶ 33.
5 Statutory construction is a question of law that we review
de novo. Marsh v. People, 2017 CO 10M, ¶ 19.
6 "Appellate courts review errors that were not
preserved by objection under a plain error standard."
People v. Davis, 2015 CO 36M, ¶ 32. Plain error
is "obvious and substantial, " Hagos v.
People, 2012 CO 63, ¶ 14, and must have "so
undermined the fundamental fairness of the [proceeding] . . .
as to cast serious doubt on the reliability of the
judgment" to merit reversal, People v. Miller,
113 P.3d 743, 750 (Colo. 2005) (citation omitted).
7 We apply the plain error standard here because defense
counsel did not request the court to treat section 18-18-413
as an affirmative defense or request any instruction based on
8 At the close of the first day of trial, defense counsel
tendered an instruction stating as follows: "A person is
authorized to possess a controlled substance if it has been
prescribed to them or if they are acting at the direction of
the person to whom it has been prescribed." As authority
for the instruction, counsel cited sections 18-18-413 and
18-18-401, C.R.S. 2016.
9 The prosecutor objected to the instruction, and the court
agreed to give the instruction over the objection in a
modified form that more closely tracked the language of
section 18-18-413. Significant to our review, defense counsel
never requested that the instruction be tied to the elements
of the charged offenses or suggested to the court that it was
an affirmative defense. The trial court gave the jury the
A person to whom or for whose use any controlled substance
has been prescribed or dispensed by a practitioner may
lawfully possess it, but only in the container in which it
was delivered to him unless he is able to show that he is the
legal owner or a person acting at the direction of the legal
owner of the controlled substance.
10 Nor did defense counsel request an affirmative defense
instruction based on section 18-18-302(3)(c). See People
v. Whaley, 159 P.3d 757, 760 (Colo.App. 2006)
("Because the prescription exception . . . is located in
a different part of article 18, see §
18-18-302(3)(c), we conclude this exception is in reality an