People v. Lucero

• Citation: 381 P.3d 436,2016 COA 105
• Decision Date: 14 July 2016
• Docket Number: Court of Appeals No. 13CA1680
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Rose LUCERO, Defendant–Appellant.
• Court: Colorado Court of Appeals

381 P.3d 436

2016 COA 105

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Rose LUCERO, Defendant–Appellant.

Court of Appeals No. 13CA1680

Colorado Court of Appeals, Div. VI.

Announced July 14, 2016

Cynthia H. Coffman, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Mark Evans, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE NAVARRO

¶ 1 If a person requests and receives a controlled substance solely for her personal use, has she thereby entered into a conspiracy with the person who gave it to her to distribute the substance? We conclude that she has not because in that scenario the two people have not agreed to distribute the substance to others.

¶ 2 Defendant, Rose Lucero, appeals the judgment of conviction entered on a jury verdict finding her guilty of conspiracy to distribute a controlled substance. Because Lucero's acts did not constitute such a conspiracy, we vacate the judgment of conviction and remand for entry of a judgment of acquittal.

I. Factual and Procedural History

¶ 3 The prosecution charged Lucero with conspiring with her coworker to distribute codeine (contained in Tylenol 3), a schedule III controlled substance, as well as two counts of inducing her coworker to distribute the same substance. See § 18–18–405(1)(a), C.R.S. 2015. All of the charged offenses were class 4 felonies at the time of Lucero's acts. See Ch. 424, sec. 3, § 18–18–405(2)(a)(II)(A), 2003 Colo. Sess. Laws 2682–83. Evidence of the following was admitted at trial.

¶ 4 Between December 1, 2010, and April 30, 2012, Lucero's coworker obtained various prescription medications for her health and then shared them with others at the workplace. Several times over this period, Lucero requested medication from the coworker for Lucero's personal use (to relieve pain from cramps). Lucero made these requests in person, by phone, or by e-mail. Each time the coworker gave Lucero medication, she gave Lucero one pill for no reimbursement. There was no evidence that Lucero distributed the medication to others; on the contrary, the evidence showed (and the prosecution argued) that she took the pills herself.

¶ 5 Besides an e-mail with the subject line “Tylenol,” Lucero's requests for medication were unspecific. The women gave inconsistent statements as to what particular medication was exchanged. The coworker testified that she gave Lucero “Advil,” “my prescription of my ibuprofen,” and “Midol.” Lucero said in an interview that she received “Tylenol 3s,” “Excedrin,” and “ibuprofen.” A detective testified that Tylenol 3 is a “codeine narcotic, 30 milligram, which under Schedule III anything less than 90 milligrams would fall under Schedule III.”

¶ 6 The trial court granted Lucero's motion for judgment of acquittal on the inducement counts but denied her motion on the conspiracy count. The jury convicted her of the conspiracy count, and the court sentenced her to one year of probation.

II. Analysis

¶ 7 Lucero contends that the prosecution presented insufficient evidence to prove that she conspired with her coworker to distribute a controlled substance. Lucero relies on the following principle that has been recognized by numerous federal and state courts: Evidence of a buyer-seller relationship—without more—does not constitute a conspiracy to distribute drugs. Of course, this case does not present a stereotypical sale of an illegal drug. Lucero did not purchase drugs from a retail seller; she simply asked for painkillers (one at a time) from a coworker who agreed to provide them for free and for her personal use. Nonetheless, Lucero argues that the aforementioned legal principle should protect her from a conspiracy conviction to the same extent it would shield a stereotypical retail buyer of a controlled substance.

¶ 8 We agree. We conclude that this principle (i.e., a mere buyer-seller relationship does not constitute a drug distribution conspiracy) applies in Colorado because Colorado's drug conspiracy statute is based on the model uniform law, which in turn is based on the federal statute. This precept also comports with Colorado's general conspiracy law, which punishes conspirators who have agreed on a common illicit purpose (e.g., to distribute drugs). Such commonality is absent where, as here, the evidence shows that the transferor intended only to distribute the drugs and the transferee intended only to possess them for personal use. Further, to conclude that such evidence is sufficient to convict the transferee of a conspiracy to distribute controlled substances would contravene the General Assembly's policy decision to punish simple possession less severely than conspiracy to distribute. Accordingly, we hold that the evidence was not sufficient to sustain Lucero's conspiracy conviction.

A. Standard of Review

¶ 9 We review the record de novo to determine whether the evidence before the jury was sufficient both in quantity and quality to sustain the defendant's conviction. Clark v. People , 232 P.3d 1287, 1291 (Colo. 2010). We consider whether the relevant evidence, 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 of the charge beyond a reasonable doubt. Id. We also review questions of statutory interpretation de novo. People v. Perez , 2016 CO 12, ¶ 8, 367 P.3d 695.

B. Relevant Legal Principles

1. Colorado Law

¶ 10 To prove the charge at issue here, the prosecution had to show that Lucero “knowingly ... conspire[d] with one or more other persons, to ... distribute ... a controlled substance[.]” § 18–18–405(1)(a). Any mixture containing “[n]ot more than 1.8 grams of codeine per 100 milliliters or not more than 90 milligrams per dosage unit, with one or more active, nonnarcotic ingredients in recognized therapeutic amounts” constitutes a controlled substance listed in schedule III. § 18–18–205(2)(d)(II), C.R.S. 2015. As noted, conspiracy to distribute a schedule III controlled substance constituted a class 4 felony at the time of Lucero's acts. § 18–18–405(2)(a)(II)(A), 2003 Colo. Sess. Laws at 2683.

¶ 11 “Distribute” is defined as “to deliver other than by administering or dispensing a controlled substance, with or without remuneration.” § 18–18–102(11), C.R.S. 2015. “Deliver” means “to transfer or attempt to transfer a substance, actually or constructively, from one person to another[.]” § 18–18–102(7).

¶ 12 Colorado statutes do not define “conspiracy” in the specific context of section 18–18–405. Under the general conspiracy statute, “[a] person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime[.]” § 18–2–201(1), C.R.S. 2015; see People v Williams , 183 P.3d 577, 581 (Colo. App. 2007) (looking to general conspiracy law to understand the offense of conspiracy to distribute a controlled substance). Additionally, one of the conspirators must perform an overt act “in pursuance of” the conspiracy. § 18–2–201(2).

¶ 13 Conspiracy is a specific intent crime that requires two distinct mental states. Palmer v. People , 964 P.2d 524, 527 (Colo. 1998). “First, it requires the specific intent to agree to commit a particular crime. Second, it requires the specific intent—or the conscious objective—to cause the result of the crime to which the conspirators agreed.” Id. at 525. Therefore, “a conspiracy has legal significance only with respect to some other crime that serves as its object.” Id. at 529. Conspiracy requires proof of a “real agreement, combination, or confederation with a common design. (Mere passive cognizance of the crime to be committed or mere negative acquiescence is not sufficient.)” Bates v. People , 179 Colo. 81, 85, 498 P.2d 1136, 1138 (1972).

2. Uniform Controlled Substances Act and Federal Law

¶ 14 Colorado adopted a version of the Uniform Controlled Substances Act in 1981; Colorado's statute was modeled on the “Uniform Controlled Substances Act (1970).” See Ch. 128, secs. 1–2, §§ 12–22–301 to –322, 18–18–101 to –109, 1981 Colo. Sess. Laws 707–34; Unif. Controlled Substances Act (1970) (amended 1973) tbl. of jurisdictions, 9 pt. 5 U.L.A. 853 (2007) (recognizing that Colorado adopted the Uniform Controlled Substances Act of 1970 in 1981); see also People v. Abiodun , 111 P.3d 462, 466 (Colo. 2005) (“In 1981, the general assembly adopted a version of the Uniform Controlled Substances Act, joining in a single proscription an entire range of conduct potentially facilitating or contributing to illicit drug traffic.”) (footnote omitted). In 1992, Colorado repealed the earlier uniform law and enacted the “Uniform Controlled Substances Act of 1992,” which was modeled on the “Uniform Controlled Substances Act (1990).” See Ch. 71, sec. 1, §§ 18–18–101 to –605, 1992 Colo. Sess. Laws 324–85; Unif. Controlled Substances Act (1990), 9 pt. 5 U.L.A. 781–851 (2007). The General Assembly expressed its intent that Colorado's statutes be construed consistently with the laws of other states adopting the uniform law. See § 18–18–604, 1992 Colo. Sess. Laws at 385 (“To the extent that this article is uniform, the judiciary may look to decisions regarding the ‘Uniform Controlled Substances Act of 1990’ among states enacting it, subject to rights and obligations provided under other Colorado statutes and the state Constitution.”).

¶ 15 In 2010, the General Assembly enacted section 18–18–403.5, which punished simple possession of a controlled substance, and removed simple possession from the offenses listed in section 18–18–405(1)(a). See Ch. 259, sec. 4, § 18–18–403.5, 2010 Colo. Sess. Laws 1165 (effective Aug. 11, 2010). Excluding changes not relevant here, the statutes in effect at the...