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 ...