Feltes v. People

• Decision Date: 12 June 1972
• Docket Number: No. 24387,24387
• Citation: 178 Colo. 409,498 P.2d 1128
• Parties: Robert A. FELTES et al., Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 1128

498 P.2d 1128

178 Colo. 409

Robert A. FELTES et al., Plaintiffs in Error, v. The PEOPLE of the State of Colorado, Defendants in Error.

No. 24387.

Supreme Court of Colorado, In Department.

June 12, 1972.

Hemminger, McKendree, Vamos & Elliot, Gary H. Hemminger, F. Richard Hite, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Michael T. Haley, David A. Sorenson, Asst. Attys. Gen., Denver, for defendants in error.

HODGES, Justice.

The defendants were convicted of possession of narcotic drugs and all except Yvonne Gabriel were also convicted of conspiracy to possess narcotic drugs. On writ of error, they allege first: that the information did not give the accused proper or adequate notice of the offenses charged; and, secondly, that there was insufficient evidence to establish either possession of narcotics or conspiracy to possess narcotics. It is our view that the information did sufficiently advise the accused of the charges against them. We also hold that there was sufficient evidence to convict John Jones, Yvonne Gabriel, Robert Feltes, and the two Willemsteins of possession of narcotics and Jones and the Willemsteins of conspiracy to possess narcotic drugs. All other convictions are reversed, however, because of insufficiency of the evidence.

At approximately 7:30 a.m. on the morning of January 5, 1969, the Gilpin County Sheriff led a group of law enforcement officers on a search of the Heidi Chalet at Blackhawk, Colorado. Acting under a search warrant, these officers discovered certain amounts of marijuana, hashish, methamphetamine, and related paraphernalia in various locations in the Chalet. The defendants were in the Chalet at the time. Their location in the Chalet and the location of the contraband seized are described in the following paragraphs.

In a second Floor bathroom, which was apparently used by all of the occupants, officers found a bag of marijuana on a shelf in the corner.

Defendants Martin and Patricia Houston were sleeping in bedroom number 1. A search of this room disclosed a small box containing marijuana debris in a drawer of the dresser.

Defendants Robert Feltes and Yvonne Gabriel were sleeping in bedroom number 2. A search of this room disclosed a bag containing marijuana and methamphetamine in open view on the table next to the bed.

Defendants James and Sheryl Kennedy were sleeping in bedroom number 3, but no narcotics were discovered in this room.

Defendants Robert and Gayle Willemstein, and defendant John Jones were in bedroom number 4. A search of the room disclosed (1) a bag of marijuana located in a box beside the bed; (2) a bag of marijuana lying on the bottom shelf of a bedside table; (3) a bag of marijuana located on the floor beneath the bedside table; (4) a prescription vial in the drawer of the bedside table containing hashish; (5) a homemade water pipe containing marijuana on a table in the corner of the room; and (6) between the springs and sideboard of the bed a kit was found which contained cotton, a homemade syringe, a spoon cooker, two needles, a glass vial and what looked like a fingernail pick.

Defendant Mike Kennedy was in bedroom number 5 and no contraband was found there.

Defendant Petry was sleeping on a couch in the living room. Marijuana seeds were discovered under the cushions of the couch.

The officers also found a cigarette roller with marijuana particles in a storage room.

The Chalet had been under surveillance by law enforcement officers for several weeks prior to the day it was searched and the defendants were arrested. Evidence was presented regarding the length of occupancy of each defendant, their previous stays at the Chalet, and which bedroom they occupied. This evidence in many respects is conflicting and somewhat confusing. It did, however, show that prior to the day of the search, all the defendants had stayed at the Chalet at various previous times. For example, this evidence revealed that the Willemsteins were at the Chalet on November 10 and 11, December 25, and every night but one between December 29, 1968 and January 5, 1969, when they were occupying bedroom number 4, which room they had occupied during at least two previous stays.

Defense witnesses also testified that everyone could come and go as they pleased inside the Chalet and that no one had an assigned room.

I.

We will first consider defendants' argument that the information did not properly or adequately inform the accused of the charges they faced. The defendants argue that under the wording of C.R.S.1963, 48--5--2 there are 11 alternative ways of violating the statute and that the information failed to charge the defendants with sufficient specificity as to how they had violated the statute. We do not agree with this contention. The First Count of the information charged that each of the defendants 'did unlawfully and feloniously have under his or her control a narcotic drug, to-wit: Cannabis Sativa L.' The Second Count charged the defendants with conspiracy to possess a narcotic drug. In our view, the information clearly and definitely informed the defendants of the charges made against them.

Although the statute in question sets forth alternative ways in which an offense may be committed under its provisions, the first count of the information stated that each of the defendants are charged with a violation of only one of these alternatives, to-wit, having a narcotic drug under his or her control. The second count charged each with conspiracy to violate C.R.S.1963, 48--5--2. This information is sufficiently specific so as to inform each of the defendants of the offenses charged and to protect them against further prosecutions for the same offenses. Diggs v. People, Colo., 492 P.2d 840; People v. Allen, 167 Colo. 158, 446 P.2d 223; People v. Warner, 112 Colo. 565, 151 P.2d 975.

II.

Defendants next assert that it was error for the trial court to deny defendants' motion for judgment of acquittal and to submit the case to the jury because of insufficiency of the evidence. Before discussing the evidence in relation to the individual defendants, a few observations on the general law in this state on this subject are in order. In Petty v. People, 167 Colo. 240, 447 P.2d 217 (1968), this Court summarized the law as follows:

'. . . a conviction for possession may be predicated upon circumstantial evidence. Mickens v. People, 148 Colo. 237, 365 P.2d 679. A conviction of illegal possession may be based upon evidence that the marijuana, while not found on the person of the defendant, was in a place under his dominion and control. Duran v. People, 145 Colo. 563, 360 P.2d 132; Gonzales v. People, 128 Colo. 522, 264 P.2d 508. If possession is established, knowledge of the character of the drug and the fact that it is possessed can be inferred therefrom. (citation omitted.) Possession need not be exclusive and the substance can be possessed jointly by a person and another without a showing that the person had actual physical control thereof. Gallegos v. People, 139 Colo. 166, 337 P.2d 961. However, where a person is in possession, but not in exclusive possession of the premises, it may not be inferred that he knew of the presence of marijuana there and had control of it unless there are statements or other circumstances tending to buttress the inference. Evans v. United States, 9 Cir., 257 F.2d 121; People v. Antista, 129 Cal.App.2d 47, 276 P.2d 177. Similarly joint possession cannot be established by the fact that the defendant is or has been in the company of one having possession of the substance in the absence of an additional factor linking the defendant with it. State v. Faircloth, 181 Neb. 333, 148 N.W.2d 187; State v. Hunt, 91 Ariz. 149, 370 P.2d 642; (Carroll v. State), 90 Ariz. 411, 368 P.2d 649. These rules lend specificity to the general rule expressed in Gonzales v. People, Supra, and other Colorado decisions that, when the evidence in a case is wholly circumstantial, the trial judge must be satisfied that it excludes every reasonable hypothesis of innocence before he can submit it to the jury.'

Under the facts of this case, where there was no exclusive possession of either the premises as a whole, or of any of the rooms within the Chalet, additional links in the evidence must be provided to connect the individual defendants with the contraband discovered to prove possession and control to the exclusion of any reasonable hypothesis of innocence. Macias v. People, Colo., 484 P.2d 782; Moore v. People, 171 Colo. 338, 467 P.2d 50; Gonzales v. People, 128 Colo. 522, 264 P.2d 508. In those cases where all reasonable hypotheses of innocence are excluded, the question of whether a defendant had dominion and control over the contraband, and hence, possession of narcotics, is a matter to the resolved by the jury under proper instructions. Duran v. People, 145 Colo. 563, 360 P.2d 132.

Our research has disclosed a number of recent cases from several jurisdictions which are in accord with the Colorado law applicable to non-exclusive possession of the place searched in narcotics cases. In People v. Mosley,...