People v. Hard

• Citation: 2014 COA 132,342 P.3d 572
• Decision Date: 09 October 2014
• Docket Number: Court of Appeals No. 12CA2167
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee and Cross–Appellant, v. Lisa Lynne HARD, Defendant–Appellant and Cross–Appellee.
• Court: Colorado Court of Appeals

342 P.3d 572

2014 COA 132

The PEOPLE of the State of Colorado, Plaintiff–Appellee and Cross–Appellant

v.Lisa Lynne HARD, Defendant–Appellant and Cross–Appellee.

Court of Appeals No. 12CA2167

Colorado Court of Appeals, Div. V.

Announced October 9, 2014

Rehearing Denied November 26, 2014

John W. Suthers, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado; George Brauchler, District Attorney, Rich Orman, Senior Deputy District Attorney, Centennial, Colorado, for Plaintiff–Appellee and Cross–Appellant.

Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant and Cross–Appellee.

Opinion

Opinion by JUDGE J. JONES

¶ 1 Defendant, Lisa Lynne Hard, appeals the judgment of conviction entered on jury verdicts finding her guilty of possession of a schedule II controlled substance and possession of a schedule III controlled substance.

¶ 2 The People cross-appeal defendant's sentence as to her conviction for failure to present proof of insurance.

¶ 3 We vacate defendant's conviction for possession of a schedule II controlled substance, reverse her conviction for possession of a schedule III controlled substance, vacate her sentence in part, and otherwise affirm.

I. Background

¶ 4 According to the prosecution's evidence, State Trooper Blake Hancey pulled over defendant's car after seeing that defendant was speeding and not wearing a seat belt. He asked to see her driver's license, vehicle registration, and proof of insurance. She provided only her driver's license.

¶ 5 During the traffic stop, Trooper Hancey noticed that defendant smelled faintly of alcohol, her eyes were bloodshot and watery, her speech was rapid and slurred, and she was squirming in her seat. He asked her why she was not wearing a seat belt, and she said that she was on her way to the emergency room because she was having back spasms. He also asked whether she had been drinking and whether she was taking any medications. She responded that she had “had a beer earlier, and that she had taken a half a Xanax

earlier.”

¶ 6 Trooper Hancey then checked whether defendant had any outstanding warrants for her arrest, and discovered that she had a warrant for failure to appear on a charge of driving under the influence. He then asked whether she would consent to perform roadside maneuvers. She refused, and Trooper Hancey arrested her.

¶ 7 Incident to the arrest, Trooper Hancey searched defendant and found ten pills in her pants pockets. Defendant said that she had prescriptions for the pills, but that she did not have the prescriptions with her. Inside defendant's car, Trooper Hancey also found an empty twenty-four-ounce beer can and another unopened beer can.

¶ 8 Before taking defendant to the police station, Trooper Hancey accessed the website Drugs.com to identify the pills. He identified one pill as oxycodone

, a controlled substance, and seven of the pills as alprazolam, another controlled substance.¹ He identified the other two pills as naproxen, an over-the-counter medication. He did not subsequently submit the pills for any confirmatory chemical testing.

¶ 9 Trooper Hancey then took defendant to the Arapahoe County Jail, where she consented to a blood test. The test showed that her blood-alcohol content was .039. No drugs were detected.

¶ 10 As relevant here, the People charged defendant with possession of a schedule II controlled substance (oxycodone), possession of a schedule III controlled substance (alprazolam),² driving under the influence, failure to present proof of insurance, and speeding.

¶ 11 A jury acquitted defendant of the driving under the influence charge, but found her guilty of the other charges. The district court sentenced her to two years of probation for the drug possession convictions, and imposed monetary fines for the other convictions.

¶ 12 On appeal, defendant challenges only her drug possession convictions.

II. Defendant's Appeal

¶ 13 Defendant contends that (1) the district court erroneously admitted testimonial hearsay; (2) there was insufficient evidence to support her convictions for possession of controlled substances; (3) the district court erroneously admitted expert testimony; and (4) the mittimus incorrectly identified one of her convictions.

¶ 14 We agree with defendant's first contention, agree with the second as to the conviction for possession of a schedule II controlled substance, disagree with the second as to possession of a schedule III (actually IV) controlled substance, and do not address her other two contentions.

A. Hearsay Evidence

¶ 15 Defendant first contends that (1) the district court erred by admitting hearsay testimony about information Trooper Hancey obtained from Drugs.com and (2) the admission of that evidence violated her state and federal confrontation rights. We agree with defendant that the Drugs.com evidence was inadmissible hearsay.³

1. Procedural Background

¶ 16 Before trial, defendant's counsel moved to exclude Trooper Hancey's testimony about his Drugs.com search results. Counsel argued, as relevant here, that the evidence was inadmissible hearsay and that its admission would violate defendant's right to confrontation.

¶ 17 The prosecutor argued in response that the evidence was admissible under CRE 803(17), the hearsay exception for market reports and commercial publications. Specifically, the prosecutor argued that information from Drugs.com fits within the exception because Drugs.com is a public source of information on which police officers rely to identify drugs.

¶ 18 Defendant's counsel replied that the information from Drugs.com is insufficiently reliable to be admissible under CRE 803(17). Specifically, defendant's counsel pointed to the fact that Drugs.com disclaims the accuracy of the information on its website, and argued that a police officer's testimony that he relies on a given source of information is insufficient to establish the reliability of that source.

¶ 19 The district court ruled first that the Drugs.com evidence was not testimonial and that it therefore did not implicate defendant's confrontation rights. The court further determined that information from Drugs.com is sufficiently reliable to be admissible under CRE 803(17), reasoning that “literally scores of judicial opinions rely independently on [D]rugs.com for both the description of drugs, drug side effects, and drug interactions.” Thus, the court ruled that it would allow testimony about the Drugs.com search results, assuming Trooper Hancey could first lay a proper foundation.

¶ 20 At trial, Trooper Hancey testified, over objection, that Drugs.com is a nationally recognized website and that he and other law enforcement officials rely on Drugs.com to identify prescription drugs. He then described how the search function on Drugs.com is used:

On [Drugs.com], [it] allows you to put in specific identifiers. The one that I typically use that's been the easiest is simply the number rather than deal with the color and shape. So I'll put in the number or numbers into the search function. That will give—some cases I've seen it's given multiple pills with similar markings and you're able to determine by simply size, shape and color on whether or not it is the same marking as the pill that I'm looking at.

He testified that Drugs.com indicated that the pills in defendant's possession were oxycodone

and alprazolam. Specifically, he said that the numerical markings, shape, and color of the pills matched those of oxycodone and alprazolam, respectively, as shown on the website.

¶ 21 On cross-examination, Trooper Hancey said that he is not a drug recognition expert, and that he had not requested any confirmatory chemical testing of the pills.

2. Standard of Review and Applicable Law

¶ 22 We will not disturb a district court's evidentiary rulings absent a showing of an abuse of discretion. Davis v. People, 2013 CO 57, ¶ 13, 310 P.3d 58 ; People v. Reed, 2013 COA 113, ¶ 42, ––– P.3d ––––. A district court abuses its discretion if its decision is manifestly unreasonable, arbitrary, or unfair, or if its decision is based on an erroneous understanding or application of the law. People v. Trammell, 2014 COA 34, ¶ 10, –––P.3d –––– ; People v. Muniz, 190 P.3d 774, 781 (Colo.App.2008) ; see Davis, ¶ 13 ; Reed, ¶ 42.

¶ 23 Where, as here, the defendant objected to the admission of evidence, we review any error under the harmless error standard. Yusem v. People, 210 P.3d 458, 469 (Colo.2009). Under that standard, we must “consider whether any error, in light of the entire record of the trial, substantially influenced the verdict or impaired the fairness of the trial.” Davis, ¶ 13.

¶ 24 CRE 803(17) codifies an exception to the hearsay rule for market reports and commercial publications. Specifically, that exception provides that “[m]arket quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations” are admissible. CRE 803(17).

¶ 25 At common law, this exception was recognized as a narrow exception that was to be applied to a well-defined category of cases. See 6 John Henry Wigmore, Evidence in Trials at Common Law § 1702, at 38 (Chadbourn rev. ed. 1976); see also id. §§ 1704–06, at 41–51 (describing the common-law origins of the exception); 4 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 8:101, at 885 (3d ed. 2007) (“The commercial list exception is actually narrow, and grew out of a tradition with distinct limits.”); Fed.R.Evid. 803(17) advisory committee's note (acknowledging the common law origins of the substantially similar federal rule).⁴

¶ 26 “As with other hearsay exceptions, the admissibility of market reports and commercial publications under Rule 803(17) is predicated on the two factors of necessity and reliability.” 5 Jack B. Weinstein & Margaret A. Berger, Weinstein's Federal Evidence § 803.19[1], at 803–131 (Joseph M. McLaughlin ed., 2d...