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People v. Harrison

Court of Appeals of Colorado, Third Division

May 2, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Brittany Page Harrison, Defendant-Appellant.

          Jefferson County District Court No. 16CR3708 Honorable Christopher C. Zenisek, Judge

          Philip J. Weiser, Attorney General, Trina K. Taylor, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          Webb and Freyre, JJ., concur.

          OPINION

          ROMÁN JUDGE

         ¶ 1 Defendant, Brittany Page Harrison, appeals the judgment of conviction entered after a jury found her guilty of possession of a controlled substance and possession of drug paraphernalia. Because we conclude the evidence at trial was insufficient to disprove the affirmative defense of immunity for persons suffering a drug overdose under section 18-1-711, C.R.S. 2018, we vacate the judgment.

         I. Background

         ¶ 2 Defendant and her friend, A.M., entered a Burger King restaurant, ordered a meal, and sat down at a booth. About an hour and a half later, staff at the restaurant noticed defendant and A.M. had not touched their food and were slumped over each other, "asleep." An employee made multiple attempts to wake them by yelling at them, shaking them, and banging on the table. Still, defendant and A.M. did not move or open their eyes. A short while later, the general manager called 911 because she was "concerned for their well-being" and worried "something [could] be wrong."[1]

         ¶ 3 When a police corporal arrived, defendant and A.M. were still unconscious. However, the corporal was able to wake defendant by announcing himself and shaking her forcefully. At that point, defendant was sluggish and confused. Because A.M. still did not wake up, the corporal called paramedics.

         ¶ 4 Defendant gave the corporal her identification and told him that she had not used drugs that day. But, a second police officer arrived on the scene and noticed defendant "looked to be under the influence of some substance."

         ¶ 5 Defendant gave the corporal permission to search her purse.

         He found a baggie with a tar-type substance in it, a syringe, a spoon, a torch, and tin-foil with burn marks. The substance in the baggie later tested positive for heroin.

         ¶ 6 Defendant also consented to a search of her backpack, which contained two glass pipes, a lighter, butane fluid, two butane torches, aluminum foil, and another baggie containing a powdery substance that later tested positive for methamphetamine.

         ¶ 7 When paramedics arrived, A.M., who was still unconscious, was taken to the hospital. Defendant was taken into custody.

         ¶ 8 The prosecution charged defendant with two counts of possession of a controlled substance and one count of possession of drug paraphernalia.

         ¶ 9 The jury convicted defendant as charged.

         II. Standard of Review and Legal Authority

         ¶ 10 The prosecution must prove all elements of a crime beyond a reasonable doubt to satisfy due process. Montez v. People, 2012 CO 6, ¶ 21 (citing U.S. Const. amend. XIV, § 1; Colo. Const. art. II, § 25). This includes the burden of disproving "issues involved in affirmative defenses." Montoya v. People, 2017 CO 40, ¶ 24; see also People v. Pickering, 276 P.3d 553, 555 (Colo. 2011) (noting that an affirmative defense "admit[s] the defendant's commission of the elements of the charged act, but seek[s] to justify, excuse, or mitigate the commission of the act"). That is, "if presented evidence raises the issue of an affirmative defense, the affirmative defense effectively becomes an ...


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