Adams
County District Court No. 16CR185 Honorable Sharon D.
Holbrook, Judge
Philip
J. Weiser, Attorney General, Rebecca A. Adams, Senior
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
OPINION
HAWTHORNE, JUDGE
¶
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 arrest.
I.
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 officers.
¶
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 test.
¶
6 The jury convicted Avila of possessing a schedule II
controlled substance and resisting arrest.
II.
Sufficient Evidence Supported the Possession Conviction
¶
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).
A.
Standard of Review and Applicable Law
¶
8 We review the evidence's sufficiency de novo.
People v. Davis, 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, 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, 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
evidence of 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.").
B.
Analysis
¶
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 substance residue."
¶
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
later.
¶
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.
A.
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 is waived, however, if it is not made before the
jurors are sworn in.").
¶
22 A trial court must sustain a challenge for cause to any
prospective juror who is a public law enforcement
agency's compensated employee. § 16-10-103(1)(k);
accord Crim. P. 24(b)(1)(XII). A public law
enforcement agency is "a division or subdivision of
state or federal government that has the authority to
investigate crimes and to arrest, prosecute, or detain
suspected criminals." People v. Bonvicini, 2016
CO 11, ¶ 11; Ma v. People, 121 P.3d 205, 210
(Colo. 2005). Numerous government agencies are statutorily
designated as public law enforcement agencies, including
"any police department, sheriff's department, or
district attorney's office; the office of the state
attorney general; the Colorado bureau of investigation[]; and
the Colorado state patrol." People v. Speer,
255 P.3d 1115, 1121 (Colo. 2011).
¶
23 But "simply because a state or federal agency holds
investigative powers or has contact with law enforcement
personnel does not render the agency a 'public law
enforcement agency' within the meaning of the
statute." People v. Urrutia, 893 P.2d 1338,
1345 (Colo.App. 1994). The agency's predominant purpose
or mission must also be considered. See Speer, 255
P.3d at 1122 ("Neither [the United States Department of
Homeland Security or the Transportation Safety
Administration] has as its predominant purpose or mission the
enforcement of penal laws."); People v. Carter,
2015 COA 24M-2, ¶ 20 ("Although the [Colorado
Public Utilities Commission] has some authority to arrest and
investigate a limited assortment of criminal violations, its
primary functions involve the civil regulation of public
utilities, services, and rates."); People v.
Simon, 100 P.3d 487, 491 (Colo.App. 2004) ("[T]he
[Environmental Protection Agency] is properly characterized
as an investigatory and rulemaking body, and not a law
enforcement agency[.]"). If an agency's law
enforcement authority "is not merely incidental to but
is an integral part of its essential functions," that
supports a conclusion that it's a public law enforcement
agency. Sommerfeld, 214 P.3d at 573.
¶
24 We focus on "the nature of the employing agency
rather than the specific duties of the venireman in
question"; thus, "that the job description of any
particular venireman may not directly involve law enforcement
functions is not dispositive of his ability to sit."
Speer, 255 P.3d at 1120-21; see People v.
Scott, 41 Colo.App. 66, 68, 583 P.2d 939, 942 (1978)
(concluding that challenges for cause to a counselor and
baker employed by the Colorado State Penitentiary should have
been sustained).
B.
Additional Facts
¶
25 At trial, defense counsel raised her concern that
prospective juror E.D. was employed by a public law
enforcement agency, and the court conducted an in camera
hearing with counsel. At the hearing, E.D. stated that he
worked for "the State Homeland Security Fusion
Center," whose role is to provide "analytical
support to investigations throughout Colorado and law
enforcement agencies . . . across the state." He further
specified that "[i]f any agency requests services, much
like CBI, if they request a driver's license photo
request, or any workups on individuals, they can request it
from us." He also said that the fusion center provides
"[c]riminal background history . . . . If [an agency]
want[s] us to look at GPS data . . . we can do analysis for
that. If they are doing a high-risk warrant [and] want a law
enforcement workup on an individual to see if there [are] any
dangerous things in their criminal history, we can ...