County District Court No. 13CR58 Honorable Mary C. Hoak,
Cynthia H. Coffman, Attorney General, Paul Koehler, First
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Jessica A.
Pitts, Deputy State Public Defender, Denver, Colorado, for
MÁRQUEZ, JUDGE. [*]
1 Defendant, Daniel Steven Kessler, appeals the judgment of
conviction entered on jury verdicts finding him guilty of
possession of a controlled substance (cocaine), driving under
the influence, possessing an open container of alcohol in a
motor vehicle, operating a motor vehicle without a license,
and speeding. We affirm.
2 Kessler, who lived in Fraser, borrowed his father's car
to drive to Denver to see his girlfriend. On his return, he
was stopped by police between Winter Park and Fraser for
driving sixty-seven miles per hour in a fifty-five mile per
hour zone. Upon approaching the car with a flashlight, the
officer spotted a half-empty 375 milliliter
bottle of schnapps on the floor behind the
passenger's seat. The officer asked Kessler for his
license, registration, and proof of insurance multiple times
before Kessler responded by presenting only the registration
and proof of insurance; Kessler admitted that he did not have
a valid driver's license.
3 Noticing that Kessler had watery, bloodshot eyes, slurred
speech, and an odor of alcohol on his breath, the officer
asked him to step out of the car. Kessler needed to use the
car door for support to get out of the car. When the officer
asked if he had been drinking, Kessler initially told the
officer that he had not; eventually, though, Kessler told him
that he had drunk from the bottle of schnapps. The officer
then administered a roadside sobriety examination of Kessler.
After Kessler performed most of the maneuvers
unsatisfactorily,  the officer administered a preliminary
breath test (PBT), which registered .154 g/210L, before
arresting him for driving under the influence (DUI) and
placing him in the back of a police car.
4 Two other officers searched the vehicle for further
evidence of alcohol consumption. Upon lifting the armrest
over the center console in the front seat, they discovered a
bag containing a white powdery substance that they suspected
was, and which turned out to be, cocaine.
5 Approximately three hours after Kessler's arrest, a
deputy sheriff at the Grand County Jail administered a breath
test as Kessler had requested. The test results showed that
he had a blood alcohol content of 0.097g/210L.
6 At trial, Kessler testified that although he had been
drinking, he was not drunk, and that the cocaine found in his
car did not belong to him. It could have been put there, he
posited, by others (i.e., his girlfriend and a panhandler)
who had been in the car earlier that day.
7 The jury found Kessler guilty as charged.
Sufficiency of Evidence: Possession of a Controlled Substance
8 Kessler contends that the evidence was insufficient to
convict him of possessing a controlled substance (cocaine).
9 As an initial matter, we reject the People's position
that this issue was not properly preserved for appeal.
Although Kessler did not offer a precise argument, he did
move for a judgment of acquittal on this and all the other
counts. In response, the prosecution addressed each count in
turn, including possessing a controlled substance. The trial
court then denied Kessler's motion after, like the
prosecution, addressing each count and its specific evidence.
Because the trial court specifically addressed the count that
Kessler challenges on appeal, the issue is properly
preserved. People v. McFee, 2016 COA 97, ¶ 31
("Where, despite imprecision in the objection, the trial
court actually rules on the claim raised on appeal, and makes
findings of fact and conclusions of law, the claim is
10 Turning to the merits, we note Kessler was convicted under
section 18-18-403.5(1), C.R.S. 2017, which provides, "it
is unlawful for a person knowingly to possess a controlled
substance." Here, Kessler asserts that there was
insufficient evidence from which a jury could find that he
possessed, or knowingly possessed, the cocaine because he
borrowed the car from his father, he was not in exclusive
control of the car on the date in question, and he denied
knowing the cocaine was in the car. In support of his
assertion, he advances two contentions - namely, that (1)
where a person is not in exclusive control of the area in
which drugs are found, the inference of possession may not be
drawn unless statements or other circumstances buttress that
inference; and (2) the mere presence of a drug does not, in
and of itself, prove knowing possession of it, see People
v. Poe, 2012 COA 166, ¶ 16.
11 A flaw in Kessler's arguments is their premises - that
is, that he was not in exclusive possession of the car
(because others had ridden in it that day) and that nothing
besides the mere presence of the cocaine was presented to
show he knowingly possessed it. His premises assume that the
jury believed his version of events. Such an assumption is
given no effect, however, in assessing a sufficiency of
When assessing the sufficiency of the evidence supporting a
conviction, we review the record de novo to determine whether
the evidence, viewed in the light most favorable to the
prosecution, was both substantial and sufficient to support
the conclusion by a reasonable mind that the defendant was
guilty beyond a reasonable doubt.
People v. Griego, 2018 CO 5, ¶ 24.
12 In analyzing the sufficiency of the evidence, we recognize
that (1) it is for the fact finder to determine the difficult
questions of witness credibility and the weight to be given
to conflicting items of evidence, see People v.
Gibson, 203 P.3d 571, 575 (Colo.App. 2008); (2) a fact
finder is not required to accept or reject a witness's
testimony in its entirety; it may believe all, part, or none
of a witness's testimony, Gordon v. Benson, 925
P.2d 775, 778-79 (Colo. 1996); (3) an actor's state of
mind is normally not subject to direct proof and must be
inferred from his or her actions and the circumstances
surrounding the occurrence, People v. Phillips, 219
P.3d 798, 800 (Colo.App. 2009); (4) the prosecution must be
given the benefit of every inference that may fairly be drawn
from the evidence, People v. Heywood, 2014 COA 99,
¶ 1; (5) "[i]f there is evidence upon which one may
reasonably infer an element of the crime, the evidence is
sufficient to sustain that element, " People v.
Chase, 2013 COA 27, ¶ 50; and (6) "[w]here
reasonable minds could differ, the evidence is sufficient to
sustain a conviction, " People v. Bondurant,
2012 COA 50, ¶ 58 (quoting People v. Carlson,
72 P.3d 411, 416 (Colo.App. 2003)); see People v.
Arzabala, 2012 COA 99, ¶ 13 ("An appellate
court is not permitted to act as a 'thirteenth juror'
and set aside a verdict because it might have drawn a
different conclusion had it been the trier of fact.").
¶ 13 Initially, we note that the possibility someone
else was in the car earlier that day does not change the fact
that Kessler was in exclusive possession of the vehicle when
it was stopped and searched, making him subject to the
inferences that he knowingly possessed the cocaine. See
People v. Baca, 109 P.3d 1005, 1007 (Colo.App. 2004)
("[K]nowledge [of drugs] can be inferred from the fact
that the defendant is the driver and sole occupant of a
vehicle, irrespective of whether he is also the vehicle's
owner."); see also Goliday v. State, 708 N.E.2d
4, 6 (Ind. 1999) (holding that where the defendant was the
only person in a borrowed car when stopped, his exclusive
possession of the car was sufficient to raise a reasonable
inference of knowledge of the presence of contraband).
Moreover, as noted above, the jury was not bound to accept
Kessler's testimony that others had been in the car that
day - yet another reason why, for sufficiency of evidence
purposes, Kessler could be considered to have been in
exclusive possession of the car.
14 Furthermore, one officer testified that the cocaine was,
upon the simple movement of lifting the armrest, plainly
visible - and not covered by anything - in the console. This
testimony, in conjunction with the cocaine's location
just inches from where Kessler sat on and off for ten hours
that day, and Kessler's testimony that, to his knowledge,
no one else had interacted with the console, amply supported
the inference that Kessler knowingly possessed the cocaine.
See People v. Warner, 251 P.3d 556, 564 (Colo.App.
2010) ("A conviction for possession of a controlled
substance may be predicated on circumstantial
Admission of Evidence Concerning the Cocaine Found in the Car
15 On appeal, Kessler contends that the trial court should
have suppressed evidence related to the recovery of cocaine
from his car because the police lacked sufficient grounds to
search the car once they seized the half-empty bottle of
schnapps. We disagree.
16 A district court's ruling on a motion to suppress
evidence presents a mixed question of law and fact.
People v. Glick, 250 P.3d 578, 582 (Colo. 2011);
People v. Rabes, 258 P.3d 937, 940 (Colo.App. 2010).
We defer to the court's findings of fact so long as they
are supported by competent evidence in the record, but we
review the court's legal conclusions de novo.
Glick, 250 P.3d at 582.
17 The Fourth Amendment to the United States Constitution
protects against unreasonable searches and seizures.
People v. D.F., 933 P.2d 9, 11-12 (Colo. 1997).
Warrantless searches are presumptively invalid unless
justified by an established exception to the warrant
requirement. People v. Prescott, 205 P.3d 416, 419
(Colo.App. 2008). One such exception is the search of a
vehicle incident to a lawful arrest. People v.
Coates, 266 P.3d 397 (Colo. 2011).
18 In Arizona v. Gant, 556 U.S. 332 (2009), the
United States Supreme Court held that "[p]olice may
search a vehicle incident to a recent occupant's arrest
only if the arrestee is within reaching distance of the
passenger compartment at the time of the search or it is
reasonable to believe the vehicle contains evidence of the
offense of arrest." Id. at 351.
19 Here, because Kessler had been removed from the car and
taken into custody before the search occurred, we are
concerned only with the second Gant situation - that
is, whether it was reasonable for the police to believe that