People v. Mollaun

• Decision Date: 15 May 2008
• Docket Number: No. 06CA1025.,06CA1025.
• Citation: 194 P.3d 411
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger MOLLAUN, Defendant-Appellant.
• Court: Colorado Court of Appeals

194 P.3d 411

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Roger MOLLAUN, Defendant-Appellant.

No. 06CA1025.

Colorado Court of Appeals, Div. V.

May 15, 2008.

Certiorari Denied October 20, 2008.

John W. Suthers, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Rebecca R. Freyre, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge J. JONES.

Defendant, Roger Mollaun, appeals the judgment of conviction entered on jury verdicts finding him guilty of unlawful possession of a schedule II controlled substance, a class four felony, and possession of drug paraphernalia, a petty offense. We affirm.

I. Background

The People charged defendant with unlawful possession of a schedule II controlled substance (specifically, methamphetamine), unlawful use of a schedule II controlled substance, and possession of drug paraphernalia arising out of a traffic stop of a vehicle in which defendant was a passenger. At trial, the district court dismissed the unlawful use count. A jury convicted defendant of the two remaining charges. The district court sentenced defendant to four years in the custody of the Department of Corrections on the conviction for unlawful possession of a schedule II controlled substance and fined him $100 on the conviction for possession of drug paraphernalia.

II. Sufficiency of the Evidence

Defendant asserts that the evidence was insufficient to convict him of possession of a schedule II controlled substance, and therefore the district court erred in denying his motion for judgment of acquittal at the close of the prosecution's case. We disagree.

We review a district court's denial of a motion for judgment of acquittal based on allegedly insufficient evidence de novo. Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). The test we apply is "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." People v. McIntier, 134 P.3d 467, 471 (Colo.App.2005) (citing People v. Sprouse, 983 P.2d 771, 777 (Colo.1999), and Kogan v. People, 756 P.2d 945, 950 (Colo. 1988)); see also Dempsey, 117 P.3d at 807. In applying this test, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. Determinations of witness credibility as well as the weight given to all parts of the evidence are solely within the province of the fact finder. Accordingly, we cannot sit as a thirteenth juror and set aside a verdict simply because we might have reached a different conclusion. McIntier, 134 P.3d at 471-72.

Here, the prosecution introduced evidence that at the time of the traffic stop, defendant and the driver were in the car together. When the deputy approached the vehicle, defendant lit a cigarette, which the deputy testified individuals often do to mask the smell of illegal drugs or alcohol. Defendant was fidgeting and sweating. The deputy asked defendant if he could see the back of his tongue. Defendant complied, and the deputy observed raised blisters, a common sign of methamphetamine use.

The deputy then asked the driver for his driver's license, vehicle registration, and proof of insurance. The driver retrieved documents from the glove compartment located in front of defendant. After looking at the documents, the deputy asked the driver to step out of the car. The deputy ran a check on the driver's license and registration, and asked him if he had anything illegal in the car. The driver said there was nothing illegal in the car. The deputy then asked the driver for permission to search the car. While the driver was considering whether to consent to a search, the deputy walked to the passenger side of the car and asked defendant if there was anything illegal in the car. Defendant responded by inviting the deputy to search the car. The deputy then returned to where the driver was standing. The driver shouted at defendant asking whether he had any marijuana in the car. Defendant got out of the car and said, "no." The driver then consented to a search of the car.

During the search, the deputy saw a red vinyl bag in the glove compartment that he had not seen earlier when the driver was retrieving documents. The deputy opened the bag, which contained methamphetamine and drug paraphernalia. The deputy also found a bag of methamphetamine on the floorboard behind the front passenger seat. The driver testified that the methamphetamine belonged to defendant, and that they had both smoked some before they were stopped.

Considering all of the evidence, and the inferences which reasonably can be drawn therefrom, in the light most favorable to the prosecution, we conclude that it was sufficient for a jury to convict defendant on the charge of possession of a schedule II controlled substance. The deputy found the methamphetamine close to where defendant was sitting, defendant had the opportunity to put the red vinyl bag in the glove compartment when the deputy was talking to the driver, and the driver testified the methamphetamine belonged to defendant. Therefore, the district court did not err in denying defendant's motion for judgment of acquittal.

III. Unruly Juror

Defendant also contends that the district court erred by not questioning a juror about her ability to deliberate fairly after learning that at one point in the deliberations the juror was emotionally upset and refusing to deliberate. Thus, defendant asserts, he was denied his right to a fair trial by an impartial jury. We are not persuaded.

On the morning of the second day of the trial, immediately prior to jury deliberations, the court discharged the alternate juror. Jury deliberations began some time before noon. At about 3:00 p.m., the court received a note from the jury foreman stating as follows:

During the [course] of discussion, one of the jurors shut down, became isolated, and began to draw.

Once confronted, she became emotional and declared "she didn't care anymore." We as a group said this was not an option, at which point she became emotional, stood up[,] declared herself bipolar and locked herself in the bathroom.

She seem[s] capable of agreeing with the majority in order to avoid more conflict.

What are the options available including the alternate juror[?]

The bailiff told the court that at some point the juror in question had locked herself in the bathroom, but had later come out and the jury had decided to take a break. According to the bailiff, after the break the juror seemed to be agreeable to going forward with deliberating. At about 3:30 p.m., the court discussed the matter with the attorneys and informed them of the note and related events. Defendant's counsel moved for a mistrial, to which the prosecutor objected.

At 3:40 p.m., the court sent a note back to the foreman stating:

Please advise the Court whether anything has changed since the Court received this note. Specifically, please advise the Court as to whether all 12 of the jurors are able to proceed with deliberations.

Ten minutes later, the foreman responded: "At this point all 12 jurors seem to be fine and are proceeding."

Defendant's counsel renewed his motion for a mistrial. The court denied the motion. After the jury declared that it had reached verdicts, but before it rendered its verdicts, defendant's counsel asked the court to question the juror to determine whether she was "making her own fair and impartial decision." The court denied that request. The jury returned unanimous guilty verdicts. At defendant's counsel's request, the court polled the jury, and each juror replied in the affirmative to the following question: "Are those verdicts your verdicts and also the verdicts of the entire jury?"

Though defendant contends the court should have questioned the juror upon receiving the jury foreman's first note and after the jury indicated it had reached verdicts, defendant's counsel at trial did not request that the court question the juror after receiving the first note. Rather, at that point, defendant's counsel moved for a mistrial. Defendant's counsel did not ask the court to question the juror until after the jury indicated it had reached verdicts.

Therefore, while defendant preserved his claim of error with respect to the court's refusal to question the juror after being told the jury had reached verdicts, he did not preserve his claim that the court should have questioned the juror after receiving the first note. Hence, we may review that claim only for plain error. People v. Kruse, 839 P.2d 1, 3 (Colo.1992) (where a defendant fails to make a timely and sufficient objection during the trial, appellate review is for plain error); People v. Anderson, 183 P.3d 649, 652, 2007 WL 4336313 (Colo. App. No. 05CA0426, Dec. 13, 2007) (reviewing contention for plain error where the defendant did not make a contemporaneous objection on the same grounds as asserted on appeal); People v. Mosley, 167 P.3d 157, 159 (Colo.App.2007). Plain error is error that is both obvious and substantial, and which so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. People v. Miller, 113 P.3d 743, 750 (Colo.2005).

Defendant contends, however, that error at either point in time would be "structural" — that is, an error of such a nature that the consequences thereof would be "necessarily unquantifiable and indeterminate, thus rendering the entire trial fundamentally unfair...." Bogdanov v. People, 941 P.2d 247, 253 (Colo.), amended, 955 P.2d 997 (Colo. 1997); accord People v. Dunlap, 975 P.2d 723, 737 (Colo.1999); see Neder v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (discussing the distinction between trial and structural constitutional...