[Copyrighted Material Omitted]
County District Court No. 16CR185. Honorable Sharon D.
J. Weiser, Attorney General, Rebecca A. Adams, Senior
Assistant Attorney General, Denver, Colorado, for
A. Ring, Colorado State Public Defender, Jessica Sommer,
Deputy State Public Defender, Denver, Colorado, for
Judges: Opinion by JUDGE HAWTHORNE. Taubman
and Grove, JJ., concur.
[¶ 1] Is a prospective juror who is employed by the
Colorado Office of Prevention and Security's "
fusion center" a " compensated
employee of a public law enforcement agency?" We answer
" no," and after addressing the remaining
contentions of defendant, Tina Louise Avila, we affirm the
judgment of conviction entered on jury verdicts finding her
guilty of possessing a controlled substance and resisting
Factual Background and Procedural History
[¶ 2] Avila was at a bar early one morning,
and the staff asked her to leave. She refused, they argued,
and the staff called police. Avila was outside the bar when
police arrived. She appeared upset and intoxicated, and told
the officers about the argument. Without prompting, Avila
said, " I don't have anything on me" and "
you don't have shit on me." Avila avoided making eye
contact with the officers and put her hands in her pockets
numerous times, even after being told not to do so by the
[¶ 3] One officer conducted a pat-down
search of Avila, and she became agitated, again telling the
officer that she didn't have anything on her. When the
officer reached toward Avila's pocket, she resisted, and
the officer arrested her.
[¶ 4] The arresting officer took Avila to
jail, where another officer searched her. That officer found
a small piece of white paper with a powdery substance in it.
The substance was sent to the Colorado Bureau of
Investigation (CBI), where an analyst tested it and
identified it as cocaine.
[¶ 5] The arresting officer and the analyst
testified at trial for the prosecution. The arresting officer
said that he believed the white paper was found in
Avila's bra or pocket, but he wasn't positive which
one. The analyst said he was unable to weigh the cocaine
because it coated the inside of the plastic bag used to store
it, so he could only shake out a portion of the material to
[¶ 6] The jury convicted Avila of possessing
a schedule II controlled substance and resisting arrest.
II. Sufficient Evidence Supported the Possession
[¶ 7] Avila contends that insufficient
evidence supported her conviction for possessing a controlled
substance. " Because this is a dispositive issue,"
we address it first and conclude that the evidence was
sufficient. People v. Rawson, 97 P.3d 315, 323
(Colo.App. 2004), as modified on denial of reh'g
(May 6, 2004).
Standard of Review and Applicable Law
[¶ 8] We review the evidence's
sufficiency de novo. People v. Davis, 296 P.3d 219,
2012 COA 56, ¶ 11.
[¶ 9] Constitutional due process
requirements prohibit a defendant's criminal conviction
except on proof of guilt beyond a reasonable doubt.
People v. Serra, 361 P.3d 1122, 2015 COA 130, ¶ 18.
To determine whether sufficient evidence supported a
conviction, we ask " whether the relevant evidence, both
direct and circumstantial, when viewed as a whole and in the
light most favorable to the prosecution, is substantial and
sufficient to support a conclusion by a reasonable mind that
the defendant is guilty . . . beyond a reasonable
doubt." Clark v. People, 232 P.3d 1287, 1291
(Colo. 2010) (citation omitted).
[¶ 10] We must afford the prosecution the
benefit of every reasonable inference that may be fairly
drawn from the evidence. Id. at 1292 . These
inferences must be supported by a " logical and
convincing connection between the facts established and the
conclusion inferred." People v. Perez, 367 P.3d
695, 2016 CO 12, ¶ 25. But inference may not rest on
inference, People v. Ayala, 770 P.2d 1265, 1268
(Colo. 1989), nor can an inference " be supported by
guessing, speculation conjecture, or a mere modicum of
relevant evidence." Perez, ¶ 25.
[¶ 11] " [I]t is unlawful for a person
knowingly to possess a controlled substance," §
18-18-403.5(1), C.R.S. 2018, which includes cocaine. §
18-18-204(2)(a)(IV), C.R.S. 2018. And a jury may return a
guilty verdict " if it finds, beyond a reasonable doubt,
that the defendant knowingly possessed any quantity of a
controlled substance." Richardson v. People, 25
P.3d 54, 58 (Colo. 2001) (citing People v. Ceja, 904
P.2d 1308, 1310 (Colo. 1995)). Where there is " evidence
of a usable quantity," that " alone is sufficient
knowledge to permit the case to go to a jury."
Id. But if " the quantity involved is so minute
that it amounts to only a trace, there is no basis, from that
fact alone, for any logical or reasonable inference that the
defendant had knowledgeable possession." People v.
Theel, 180 Colo. 348, 350, 505 P.2d 964, 966 (1973); see
Ceja, 904 P.2d at 1311 (" Absent a usable quantity, the
prosecution must present other evidence from which a jury can
reasonably infer knowledge." ).
[¶ 12] Avila asserts that the evidence
established she only possessed a " mere residue of
cocaine," and the prosecution didn't present
sufficient additional evidence from which the jury could
infer that she knowingly possessed it.
[¶ 13] The analyst testified at trial that
he couldn't weigh the substance because it was inside
" a heat sealed bag . . . with static electricity. It
was coating the inside of the bag. So I could only shake out
a little bit of the material. My report calls it a
residue." When asked if there was enough material to
adequately test it, the analyst responded, " Oh yes,
there was." The analyst's report, admitted at trial,
described the substance as " .5 [g]rams of white cocaine
powder substance" and " a schedule II controlled
[¶ 14] The record evidence doesn't
establish whether the cocaine powder found on Avila was a
usable quantity. While the analyst's report states the
substance's weight, the analyst said at trial that he
didn't actually weigh it. And the substance itself
isn't in the appellate record. But our supreme court has
found as little as 0.16 grams of cocaine to be a usable
quantity. People v. Stark, 691 P.2d 334, 337-39
(Colo. 1984) (" The amount of cocaine seized, while not
a large weight, was a usable quantity and not a 'mere
trace.'" ) (citation omitted).
[¶ 15] But even if we assume the evidence
didn't establish that the cocaine powder found on Avila
was a usable quantity, other sufficient evidence supported
the jury's finding that Avila knowingly possessed it.
[¶ 16] When officers contacted Avila, she
acted evasively by refusing to make eye contact with them and
continuing to put her hand in her pocket despite being
ordered by one officer not to do so. And she made unprompted
statements that she didn't have anything on her.
See Ceja, 904 P.2d at 1311 (" [T]he
prosecution introduced evidence that [defendant] . . . acted
in an evasive manner when confronted by the police
officer." ); see also People v.
Richardson, 8 P.3d 562, 564 (Colo.App. 2000) (" A
reasonable fact finder could infer that his . . . denial was
motivated by his guilty knowledge of the existence of the
drug within the wallet." ), aff'd, 25 P.3d
54 (Colo. 2001). She also acted confrontationally toward the
officers, resisted one officer's attempt to search her,
and resisted arrest. See People v. Yeadon,
2018 COA 104, ¶ 28 (sufficient evidence existed for jury to
infer that defendant knowingly possessed methamphetamine
where, in part, " [t]he evidence demonstrated that . . .
[defendant] fled from the accident" where the
methamphetamine was found) (cert. granted Mar. 25,
2019). From this evidence, the jury could have inferred that
Avila knowingly possessed the cocaine powder found on her
[¶ 17] Also, the paper wrapping holding the
cocaine, described as a " bindle" at trial, was
found on Avila, and the arresting officer testified that he
thought it was either in her bra or in a pocket. The jury
could also have inferred knowing possession from the
cocaine's location and packaging. See
Richardson, 8 P.3d at 564 (" The
methamphetamine was packaged in a manner to preserve it, and
it was located in a wallet containing several documents
identifying defendant." ); see also
Ceja, 904 P.2d at 1311 (" [T]he prosecution
introduced evidence that Ceja owned the fanny pack in which
the cocaine was found[.]" ).
[¶ 18] Viewing this evidence in the light
most favorable to the prosecution, including all reasonable
inferences fairly drawn from it, we conclude sufficient
evidence supported the jury's finding that Avila
knowingly possessed the cocaine.
III. The District Court Didn't Err in Declining to
Strike Prospective Juror E.D. for Cause
[¶ 19] Avila contends the district court
erred in denying her challenge for cause as to prospective
juror E.D. because (1) he was
legally biased as a " compensated employee of a public
law enforcement agency" under section 16-10-103(1)(k),
C.R.S. 2018; and (2) he was actually biased. We disagree as
to the first contention and don't address the second one.
Standard of Review and Applicable Law
[¶ 20] We review de novo whether a
prospective juror is a public law enforcement agency's
compensated employee. People v. Sommerfeld, 214 P.3d
570, 572 (Colo.App. 2009).
[¶ 21] We agree with the People that, at
trial, Avila didn't challenge the prospective juror for
cause based on actual bias. Thus, this challenge is waived,
and we don't address it. See Crim. P. 24(b)(2);
People v. Romero,197 P.3d 302, 305 (Colo.App. 2008)
(" The challenge ...