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People v. Avila

Court of Appeals of Colorado, First Division

September 12, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Tina Louise Avila, Defendant-Appellant.

          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 ...


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