COLORADO COURT OF APPEALS 2017COA62
Court of Appeals No. 14CA1174
Pueblo County District Court No. 13CR1208
Honorable Larry C. Schwartz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Valerie Valentina Gonzales,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division I
Opinion by JUDGE GRAHAM
Taubman and Navarro, JJ., concur
Announced May 18, 2017
Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellant
Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Valerie Valentina Gonzales, appeals the judgment
of conviction entered on jury verdicts finding her guilty of unlawful
possession of a schedule II controlled substance (oxycodone) and
unlawful possession of a schedule III controlled substance
(hydrocodone). We conclude that in this instance the provision in
section 18-18-413, C.R.S. 2016, allowing for authorized possession
of a controlled substance by “a person acting at the direction of the
legal owner of the controlled substance” is not an affirmative
defense to a charge of unlawful possession of a controlled
substance under section 18-18-403.5, C.R.S. 2016. We also reject
defendant’s remaining contentions. Consequently, we affirm.
¶2 Defendant was charged with simple possession after the police
found Percocet and Vicodin in her purse for which she did not have
a prescription. At trial, defendant’s neighbor testified that she had
prescriptions for both medications and that she had asked
defendant to hold her prescriptions while they were out that
evening because her purse was too small and she did not wish to
leave the medications at home. A jury convicted defendant of
possession and the trial court sentenced her to probation.
1
I. Instructions
¶3 Defendant contends that she could lawfully possess the
medications if she was “acting at the direction of the legal owner of
the controlled substance.” § 18-18-413. She therefore argues that
the trial court should have given the jury an affirmative defense
instruction. Defendant further contends the trial court plainly
erred by not giving an affirmative defense instruction based on the
prescription exception in section 18-18-302(3)(c), C.R.S. 2016, that
allows lawful possession by “[a]n ultimate user or a person in
possession” of the medication “pursuant to a lawful order of a
practitioner.” We conclude that under the circumstances here,
section 18-18-413 is not an affirmative defense to unlawful
possession and that the trial court did not plainly err by failing sua
sponte to give either instruction.
A. Standard of Review
¶4 “We review de novo the question of whether a jury instruction
accurately informed the jury of the governing law.” People v.
Carbajal, 2014 CO 60, ¶ 10. “We review a trial court’s decision to
give or not to give a particular instruction for an abuse of
discretion.” People in Interest of J.G., 2016 CO 39, ¶ 33.
2
¶5 Statutory construction is a question of law that we review de
novo. Marsh v. People, 2017 CO 10M, ¶ 19.
¶6 “Appellate courts review errors that were not preserved by
objection under a plain error standard.” People v. Davis, 2015 CO
36M, ¶ 32. Plain error is “obvious and substantial,” Hagos v.
People, 2012 CO 63, ¶ 14, and must have “so undermined the
fundamental fairness of the [proceeding] . . . as to cast serious
doubt on the reliability of the judgment” to merit reversal, People v.
Miller, 113 P.3d 743, 750 (Colo. 2005) (citation omitted).
¶7 We apply the plain error standard here because defense
counsel did not request the court to treat section 18-18-413 as an
affirmative defense or request any instruction based on section
18-18-302(3)(c).
B. Additional Facts
¶8 At the close of the first day of trial, defense counsel tendered
an instruction stating as follows: “A person is authorized to possess
a controlled substance if it has been prescribed to them or if they
are acting at the direction of the person to whom it has been
prescribed.” As authority for the instruction, counsel cited sections
18-18-413 and 18-18-401, C.R.S. 2016.
3
¶9 The prosecutor objected to the instruction, and the court
agreed to give the instruction over the objection in a modified form
that more closely tracked the language of section 18-18-413.
Significant to our review, defense counsel never requested that the
instruction be tied to the elements of the charged offenses or
suggested to the court that it was an affirmative defense.1 The trial
court gave the jury the following instruction:
A person to whom or for whose use any
controlled substance has been prescribed or
dispensed by a practitioner may lawfully
possess it, but only in the container in which it
was delivered to him unless he is able to show
that he is the legal owner or a person acting at
the direction of the legal owner of the
controlled substance.
¶ 10 Nor did defense counsel request an affirmative defense
instruction based on section 18-18-302(3)(c). See People v. Whaley,
159 P.3d 757, 760 (Colo. App. 2006) (“Because the prescription
exception . . . is located in a different part of article 18, see
§ 18-18-302(3)(c), we conclude this exception is in reality an
1 The court asked defense counsel whether she wished to have the
instruction in the form ultimately given or whether defendant was
asking for an instruction on a lesser nonincluded offense. Counsel
elected to have the jury given the instruction as modified by the
court.
4
affirmative defense, notwithstanding the fact that the General
Assembly did not label it as such.”).
C. Law and Analysis
¶ 11 “It is the duty of the trial court to ‘correctly instruct the jury
on all matters of law for which there is sufficient evidence to
support giving instructions.’” Carbajal, ¶ 10 (quoting Cassels v.
People, 92 P.3d 951, 955 (Colo. 2004)).
When an exception is included in a statutory
section defining the elements of the offense, it
is generally the burden of the prosecution to
prove that the exception does not apply.
However, when an exception is found in a
separate clause or is clearly disconnected from
the definition of the offense, it is the
defendant’s burden to claim it as an
affirmative defense.
People v. Reed, 932 P.2d 842, 844 (Colo. App. 1996); accord
Whaley, 159 P.3d at 759; see § 18-1-407(1), C.R.S. 2016
(“‘Affirmative defense’ means that unless the state’s evidence raises
the issue involving the alleged defense, the defendant, to raise the
issue, shall present some credible evidence on that issue.”).
¶ 12 The primary goal in statutory interpretation is to ascertain and
effectuate the General Assembly’s intent, and we begin this task by
examining the plain meaning of the statutory language. Marsh,
5
¶ 20. “We read statutes ‘as a whole in order to accord consistent,
harmonious, and sensible effects to all their parts.’” People v.
Adams, 2016 CO 74, ¶ 12 (quoting A.S. v. People, 2013 CO 63,
¶ 10).
1. Section 18-18-413
¶ 13 Section 18-18-413 is located within the “offenses and
penalties” of the Uniform Controlled Substances Act of 2013.
§§ 18-18-101 to -606, C.R.S. 2016. Section 413 is titled
“[a]uthorized possession of controlled substances” and states:
A person to whom or for whose use any
controlled substance has been prescribed or
dispensed by a practitioner may lawfully
possess it, but only in the container in which it
was delivered to him unless he is able to show
that he is the legal owner or a person acting at
the direction of the legal owner of the
controlled substance. Any person convicted of
violating this section commits a drug petty
offense, and the court shall impose a fine of
not more than one hundred dollars.
¶ 14 Defendant was charged with violating section 18-18-403.5,
which states in pertinent part that “[e]xcept as authorized by part 1
or 3 of article 42.5 of title 12, C.R.S., part 2 of article 80 of title 27,
C.R.S., section 18-1-711, section 18-18-428(1)(b), or part 2 or 3 of
6
this article, it is unlawful for a person knowingly to possess a
controlled substance.” § 18-18-403.5(1).
¶ 15 Defendant asks us to consider section 18-18-413 as an
affirmative defense to section 18-18-403.5. Under the
circumstances presented here, we are unpersuaded that section
18-18-413 is an affirmative defense to section 18-18-403.5. Rather,
section 18-18-413 is itself a separate offense, and the exception for
“a person acting at the direction of the legal owner of the controlled
substance” is an element the prosecution must disprove when
charging someone with a violation of that section. See Reed, 932
P.2d at 844 (“When an exception is included in a statutory section
defining the elements of the offense, it is generally the burden of the
prosecution to prove that the exception does not apply.”).
¶ 16 Defendant relies on Whaley, 159 P.3d at 759, for her
argument that section 18-18-413 is an affirmative defense available
to her. In Whaley, the defendant was charged with possession
under section 18-18-405(1)(a), C.R.S. 2006.2 A division of this
2After People v. Whaley, 159 P.3d 757 (Colo. App. 2006), was
decided the General Assembly removed simple possession from
section 18-18-405 and recodified it as section 18-18-403.5. See
7
court concluded that the “prescription exception” codified in section
18-18-302(3)(c) was an affirmative defense to possession under
section 18-18-405(1)(a), C.R.S. 2006. 159 P.3d at 760. Under
section 18-18-302(3)(c), a “person may ‘lawfully possess controlled
substances under this article’ if he or she is ‘in possession of any
controlled substance pursuant to a lawful order of a practitioner.’”
Id. at 759 (quoting § 18-18-302(3)(c), C.R.S. 2006). Because section
18-18-405, C.R.S. 2006, contained exceptions to a violation of the
statute, id. at 758 (“Except as authorized by part 3 of article 22 of
title 12, C.R.S., or by part 2 or 3 of this article . . . .”), and section
18-18-302(3)(c) was within “part . . . 3 of this article,” the division
concluded that section 18-18-302(3)(c) was an affirmative defense,
id. at 760. The division reasoned that because the defendant
requested, and the trial court refused, to instruct the jury that it
was the prosecution’s burden to disprove beyond a reasonable
doubt evidence that the defendant attempted to gain “possession of
Ch. 259, sec. 3, § 18-18-405, 2010 Colo. Sess. Laws 1164; Ch. 259,
sec. 4, § 18-18-403.5, 2010 Colo. Sess. Laws 1165; People v. Davis,
2015 CO 36M, ¶ 35 n.3.
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the controlled substance pursuant to a lawful order of a
practitioner,” reversal and retrial were necessary. Id.
¶ 17 Whaley does not support defendant’s position. The division in
Whaley specifically addressed an exception contemplated by the
possession statute. Here, section 18-18-403.5 considers exceptions
from “part 1 or 3 of article 42.5 of title 12, C.R.S., part 2 of article
80 of title 27, C.R.S., section 18-1-711, section 18-18-428(1)(b), or
part 2 or 3 of this article.” Section 18-18-413 is not included in
that list. And while we construe statutes as a whole and attempt to
harmonize them, we are not required to read into a statute an
affirmative defense that is not there. While the language defendant
relies on in section 18-18-413 might present a defense to the crime
of unauthorized possession of a prescribed controlled substance,
see COLJI-Crim. 18:57 (2015) (describing the elements of the crime
of unauthorized possession of a prescribed or dispensed controlled
substance section 18-18-413), it does not present an affirmative
defense to unlawful possession under section 18-18-403.5.
¶ 18 Furthermore, for the trial court to have reversibly erred in
failing to tie this instruction to the elemental instructions given to
the jury, that error would have to have been “plain and obvious.”
9
Defendant’s proposed construction is neither plain nor obvious.
Thus, the trial court did not commit plain error by not adopting this
construction sua sponte. Accordingly, we reject defendant’s
contention that she should receive a new trial on this basis.
2. Section 18-18-302(3)(c)
¶ 19 Section 18-18-302(3)(c) is an affirmative defense to unlawful
possession of a controlled substance. Whaley, 159 P.3d at 760.
Under section 18-18-302(3)(c):
The following persons . . . may lawfully possess
controlled substances under this article: [a]n
ultimate user or a person in possession of any
controlled substance pursuant to a lawful
order of a practitioner.
¶ 20 We do not agree that the affirmative defense contained in
section 18-18-302(3)(c) applies to the charges against defendant.
Whaley addressed a charge of attempted possession and concluded
that “the trial court erred by refusing to instruct the jury that it was
the prosecution’s burden to disprove, beyond a reasonable doubt,
evidence that defendant attempted to gain ‘possession of the
controlled substance pursuant to a lawful order of a practitioner.’”
159 P.3d at 760 (quoting § 18-18-302(3)(c)). Because section
18-18-302(3)(c) is an affirmative defense to attempted possession, it
10
is also a defense to possession (the charges against defendant in
this case). However, the defendant in Whaley was attempting to
refill a prescription that had been prescribed to him by a
practitioner. Id. at 758. Here, defendant was charged with
possessing medications for which she did not have a valid
prescription from a practitioner. To read Whaley as defendant
suggests would be to expand section 18-18-302(3)(c) beyond the
language of the statute and the division’s interpretation in Whaley.
¶ 21 Furthermore, even if we were to assume that the court erred in
failing to sua sponte give this affirmative defense, that error is only
reversible if it is “obvious and substantial” because defendant did
not request that the court give such an instruction. Here, we
cannot conclude the error was obvious because a reading of section
18-18-403.5 and 18-18-302(3)(c) does not immediately alert a court
that section 18-18-302(3)(c) is an affirmative defense to possession.
Because Whaley was decided under section 18-18-405(1)(a), C.R.S.
2006, which at the time included simple possession, and because
simple possession has since been recodified in section 18-18-403.5,
the application of section 18-18-302(3)(c) to the circumstances here
was not so clear cut that the court should have been able to avoid it
11
without the benefit of counsel. See People v. Cardman, 2016 COA
135, ¶ 87 (“Under the plain error standard, ‘the defendant bears the
burden to establish that an error occurred, and that at the time the
error arose, it was so clear cut and so obvious that a trial judge
should have been able to avoid it without benefit of objection.’”
(quoting People v. Conyac, 2014 COA 8M, ¶ 54)) (emphasis added),
cert. granted & judgment vacated, (Colo. No. 16SC789, Apr. 10,
2017) (unpublished order); cf. People v. Stewart, 55 P.3d 107,
120-21 (Colo. 2002) (trial court did not commit plain error in failing
to sua sponte give the jury defendant’s affirmative defense
instruction); People v. Gorman, 983 P.2d 92, 95 (Colo. App. 1998)
(“In these circumstances, the trial court’s failure sua sponte to
instruct the jury on the affirmative defense was not plain error.”),
aff’d on other grounds, 19 P.3d 662 (Colo. 2000).
II. Prosecutorial Misconduct
¶ 22 Defendant argues that the prosecutor committed reversible
error by arguing that section 18-18-413 was not an affirmative
defense to section 18-18-403.5 and by misstating the evidence in
closing arguments. We disagree.
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A. Additional Facts
¶ 23 Throughout the trial, the prosecutor argued that defendant
was guilty because she did not have a prescription for the
medications in her purse. Defendant argued this was a
misstatement of law because a defendant may have permission
from someone with a prescription to hold the medication under
section 18-18-413. The court allowed the prosecutor to present his
argument during trial.
¶ 24 During closing arguments, the prosecutor made the following
three statements defendant argues are misstatements of fact:
Regarding defendant’s alleged robbery, “[t]he officers
looked into it, and didn’t find anything.”
Regarding the neighbor’s purse being too small to hold
her prescriptions, “I’ve been in the presence of many
purses, and I can tell you they always seem to have
either zippers or buttons that allow them to be closed
fairly securely. So the initial claim . . . as to why this
happened just doesn’t seem to fly.”
Regarding the lack of a label on one of the prescription
bottles, “as anybody can note, these prescriptions are
13
stuck to these bottles. And it’s very, very difficult to get
them off. And there doesn’t seem to be any evidence that
the stickiness was still on that bottle.”
¶ 25 Defendant did not object to these statements.
B. Standard of Review
¶ 26 Defendant objected to the prosecutor’s statement of the law,
and we therefore review for harmless error. Cider v. People, 186
P.3d 39, 42 (Colo. 2008). Reversal is mandated only if we conclude
that error occurred and that there is a reasonable probability that
the error contributed to the guilty verdict. Id.
¶ 27 Defendant did not object to the prosecutor’s comments on the
evidence, and, thus, we review for plain error. See People v.
Ujaama, 2012 COA 36, ¶¶ 37-38. Prosecutorial misconduct
amounts to plain error when it is flagrant, glaring, or tremendously
improper. Id. at ¶ 70; People v. Strock, 252 P.3d 1148, 1152 (Colo.
App. 2010). The misconduct must “so undermine the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction.” People v. Weinreich, 98 P.3d 920, 924
(Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005).
14
C. Law
¶ 28 When considering a claim of prosecutorial misconduct, “the
reviewing court engages in a two-step analysis.” Wend v. People,
235 P.3d 1089, 1096 (Colo. 2010). “First, it must determine
whether the prosecutor’s questionable conduct was improper based
on the totality of the circumstances and, second, whether such
actions warrant reversal according to the proper standard of review.
Each step is analytically independent of the other.” Id. (citation
omitted). “Plain error review maximizes deference to the trial court,
but it does not excuse the appellate court from its responsibility to
address errors that prejudice the defendant.” Id. at 1097.
¶ 29 It is improper for counsel to express his or her personal belief
regarding the truth or falsity of testimony during final argument
because the truthfulness of testimony and the credibility of
witnesses are matters to be determined by the trier of fact, and not
by the advocates. Wilson v. People, 743 P.2d 415, 418 (Colo. 1987).
“[A] prosecutor, while free to strike hard blows, is not at liberty to
strike foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048
(Colo. 2005) (quoting Wilson, 743 P.2d at 418).
15
D. Analysis
1. Misstatement of Law
¶ 30 Because we have concluded that under the circumstances
here section 18-18-413 is not an affirmative defense to section
18-18-403.5, we discern no error in the prosecutor’s argument both
during voir dire and closing argument.
2. Misstatement of Evidence
¶ 31 The prosecutor’s statements regarding the robbery, the purse,
and the prescription bottle were reasonable inferences drawn from
the evidence presented at trial. While the prosecutor may not give
his or her personal opinion on the credibility of a witness, he or she
can “comment on the lack of evidence confirming a defendant’s
theory of the case,” People v. Liggett, 114 P.3d 85, 89 (Colo. App.
2005), aff’d, 135 P.3d 725 (Colo. 2006), and can suggest jurors
draw reasonable inferences from their common knowledge, People v.
Rodriguez, 794 P.2d 965, 976 (Colo. 1990). Here, the prosecutor’s
comments were drawn from the evidence presented at trial, but
even if we were to agree with defendant that the prosecutor struck
some “foul blows” with his argument, we are unpersuaded that
these comments rose to the level of plain error. In short, these
16
statements were neither flagrant, nor glaring, nor tremendously
improper. See, e.g., id. at 974 (as long as the argument does not
bring in extrinsic matters, and is not presented in an inflammatory
manner, it is not objectionable).3
III. Conclusion
¶ 32 The judgment is affirmed.
JUDGE TAUBMAN and JUDGE NAVARRO concur.
3 Because we conclude the prosecutor committed no misconduct,
we reject defendant’s contention that these alleged errors
cumulatively require reversal. See People v. Thomas, 2014 COA 64,
¶ 61 (“To warrant reversal of a conviction based on cumulative
error, ‘numerous errors [must] be committed, not merely alleged.’”
(quoting People v. Whitman, 205 P.3d 371, 387 (Colo. App. 2007))
(alteration in original).
17