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People v. Kessler

Court of Appeals of Colorado, Second Division

May 3, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Daniel Steven Kessler, Defendant-Appellant.

          Grand County District Court No. 13CR58 Honorable Mary C. Hoak, Judge.

          Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          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.

         I. Background

         ¶ 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[1] 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, [2] 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.

         II. 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). We disagree.

         ¶ 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 sufficiently preserved.").

         ¶ 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 evidence issue.

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 evidence.").

         III. 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).[3]

         ¶ 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 ...


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