People v. Alemayehu, Court of Appeals No. 17CA1745

Docket NºCourt of Appeals No. 17CA1745
Citation2021 COA 69
Case DateMay 20, 2021
CourtCourt of Appeals of Colorado

2021 COA 69

The People of the State of Colorado, Plaintiff-Appellee,
Henoke Alemayehu, Defendant-Appellant.

Court of Appeals No. 17CA1745


May 20, 2021

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.


Constitutional LawFourth AmendmentSearch and SeizuresWarrantless SearchPlain View Exception

A division of the court of appeals considers a rather intricate Fourth Amendment issue involving the application of the plain view seizure exception to justify a warrantless seizure and search of several prescription pill bottles found in a compartment of an opened car door. Because the division concludes that the police illegally seized, then searched, the pill bottles, the illegal drugs found therein must be suppressed and the matter remanded for a new trial.

Otherwise, the division addresses issues pertaining to the sufficiency of evidence to support a conviction for possession of a controlled substance; the admissibility of statements purportedly

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obtained from the defendant in violation of Miranda v. Arizona, 384 U.S. 436 (1966); the admission of footage from four deputies' body cameras; and prosecutorial misconduct in closing argument.

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Douglas County District Court No. 16CR1131
Honorable Shay K. Whitaker, Judge


Division I
Berger and Tow, JJ., concur

Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Karen Mahlman Gerash, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

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¶ 1 Defendant, Henoke Alemayehu, appeals the judgment of conviction entered on jury verdicts finding him guilty of failing to report an accident and possession of a controlled substance (oxycodone). In this case we consider the validity of a warrantless search and seizure of several prescription pill bottles found in a visible compartment of an opened car door. Because we conclude that the police illegally seized and searched those bottles, we reverse Alemayehu's conviction for possession of a controlled substance and remand for a new trial on that count. We otherwise affirm Alemayehu's conviction for failing to report an accident.

I. Background

¶ 2 Alemayehu backed into another car in a Target parking lot, left a torn lottery ticket — instead of his name and phone number — on the other car's window, and parked twenty to thirty yards away in the same lot with the engine running.

¶ 3 A bystander reported the accident to a Douglas County Sheriff's deputy (Lieutenant Paul Rogers) who, along with another deputy, happened to be nearby responding to an unrelated accident. Lieutenant Rogers approached Alemayehu and ordered him to turn off his engine. Instead, Alemayehu got out of his car,

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leaving the driver's side door open and his engine still running. When Alemayehu told Lieutenant Rogers that he had "left a note," Lieutenant Rogers responded that the note had no information on it. Alemayehu then said that he had mistakenly put the wrong piece of paper on the car he had hit. However, the second piece of paper that Alemayehu produced had a fake name and phone number on it.

¶ 4 Lieutenant Rogers called for backup and directed Alemayehu to stand and stay next to a shopping cart return. Other deputies arrived on the scene too. Lieutenant Rogers reached into Alemayehu's car and turned it off. At some point, it appears a deputy closed the car door. But, when asked for his registration and insurance, Alemayehu directed Deputy Jeff Creighton to the driver's sun visor area. Deputy Creighton then opened the driver's door again to look there.

¶ 5 Deputy Brad Proulx walked over to the open driver's door and looked at it. Inside a pocket at the bottom of the driver's side door, he saw unlabeled orange prescription pill bottles. He pointed them out to Deputy Creighton, who said, "Yeah, I saw these without any labels."

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¶ 6 Deputy Proulx took three bottles out of the compartment and asked Alemayehu, "What are all these pills?" After giving an evasive answer and being asked multiple times if the pills were his, Alemayehu denied ownership of the pills, saying, instead, that they belonged to a lawyer friend who had hurt his back, was taking medication, and had left them in the car.

¶ 7 Deputy Proulx opened the pill bottles, looked at the pills, and after researching their imprint code on his cell phone, determined that they were oxycodone.

¶ 8 Meanwhile, Deputy Creighton had walked to the passenger side of the car and looked in the glove box for Alemayehu's registration and insurance paperwork. There, he came upon another bottle of pills.1

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¶ 9 The deputies then arrested Alemayehu.

¶ 10 At trial, Alemayehu did not testify or present any witnesses. His theory of defense, however, was that the deputies "made up their mind[s] very early that [Alemayehu] had committed a traffic crime" after talking to witnesses and before engaging with him. Regarding the controlled substance charge, he argued that he did not know the pills were a controlled substance.

¶ 11 The jury convicted Alemayehu as charged and he was sentenced to a term of two years' probation.

¶ 12 On appeal, Alemayehu contends that the trial court erred by (1) concluding that the prosecution had presented sufficient evidence to support a conviction on the possession of a controlled substance charge; (2) not suppressing evidence related to the discovery of oxycodone in his car; (3) not suppressing statements he made to the deputies in the parking lot; (4) admitting four DVDs of the deputies' body camera footage; (5) allowing prosecutorial misconduct during closing argument; and (6) responding to a jury inquiry.

¶ 13 We conclude that the evidence was sufficient to sustain Alemayehu's conviction for possession of a controlled substance.

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But because his second contention has merit, we reverse that conviction and remand for a new trial on the underlying count. We reject all but the last of Alemayehu's remaining contentions, inasmuch as they could affect his conviction for failing to report an accident. As to the last contention, we do not address it because it is not likely to recur on retrial.

II. Sufficiency of the Evidence

¶ 14 A person commits the crime of possession of a controlled substance if he knowingly possesses a controlled substance. § 18-18-403.5, C.R.S. 2020. "The 'knowing' element applies both to knowledge of possession, and to knowledge that the thing possessed is a controlled substance." People v. Perea, 126 P.3d 241, 244 (Colo. App. 2005) (citations omitted). It does not, however, require "that [a defendant] know the precise controlled substance possessed." Id. at 245.

¶ 15 Alemayehu contends the evidence was insufficient to sustain his conviction for possession of a controlled substance because (1) in his statements to the deputies, he "denied knowledge of the contents of the pill bottles" and "never affirmed knowledge of their

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contents"; and (2) "the prosecution never proved he had such knowledge." We are not persuaded.2

¶ 16 Part of Alemayehu's contention appears to assume that the jury had to believe what he told the deputies. This is not the case. Cf. People v. Kessler, 2018 COA 60, ¶ 12 ("[A] fact finder is not required to accept or reject a witness's testimony in its entirety; it may believe all, part, or none of a witness's testimony. . . .") (emphasis added).

¶ 17 Further,

[i]n assessing the sufficiency of the evidence supporting a guilty verdict, a reviewing court must determine whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt.

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People v. Atencio, 140 P.3d 73, 75 (Colo. App. 2005).

¶ 18 In undertaking this analysis, we recognize that (1) "[a]n actor's state of mind is normally not subject to direct proof and must be inferred from his or her actions and the circumstances surrounding the occurrence," People v. Joosten, 2018 COA 115, ¶ 26 (citation omitted); (2) the prosecution must be given the benefit of every inference that may fairly be drawn from the evidence, Kessler, ¶ 12; (3) "[i]f there is evidence upon which one may reasonably infer an element of the crime, the evidence is sufficient to sustain that element," id. (quoting People v. Chase, 2013 COA 27, ¶ 50); and (4) "[w]here reasonable minds could differ, the evidence is sufficient to sustain a conviction," People v. Bondurant, 2012 COA 50, ¶ 58 (citation omitted).

¶ 19 When a "defendant has exclusive possession of the premises in which drugs are found, the jury may infer knowledge from the fact of possession." People v. Yeadon, 2018 COA 104, ¶ 25 (citation omitted), aff'd and remanded, 2020 CO 38. "[K]nowledge can be inferred from the fact that the defendant is the driver and sole occupant of a vehicle, irrespective of whether he is also the vehicle's owner." Id.

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¶ 20 Here, Alemayehu's knowledge that he possessed the pills and that they were a controlled substance can readily be inferred from the following facts: (1) he was the owner, driver, and sole occupant of the car; (2) he was in close proximity to the visible bottles of oxycodone in the driver's side pocket; and (3) his statements to the deputies indicated he was aware of the nature of the pills by attributing their ownership to someone else, noting their purpose was to relieve back pain, and intimating that he needed to move them out of...

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