People v. Perea, 03CA1750.

Decision Date23 January 2006
Docket NumberNo. 03CA1750.,03CA1750.
Citation126 P.3d 241
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Rodger Joseph PEREA, Defendant-Appellant.
CourtColorado Supreme Court

John W. Suthers, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Jami L. Vigil, Deputy State Public Defender, Karen N. Taylor, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

DAILEY, J.

Defendant, Rodger Joseph Perea, appeals from the judgment of conviction entered upon a jury verdict finding him guilty of possession of a schedule II controlled substance. We affirm.

The police observed defendant smoking a marijuana cigarette while he was riding with two cousins and a friend in a car. The police pulled the car over, asked defendant to step out, and conducted a pat-down search of him. When the police felt a bulge in his sock and lifted up defendant's pant leg, a small baggie containing a round ball of a "white powdery looking substance" fell onto the street. Upon learning that he would be arrested for possessing what was suspected to be cocaine, defendant "became loud and hysterical."

When the driver of the car could not produce a license or proof of insurance, the police ordered the car towed and conducted a routine inventory search of it at the scene. In the course of that search, a baggie containing eight grams of marijuana was discovered in the center console between the driver's and front passenger's seats.

Subsequent tests revealed the baggie with the white powdery substance in it contained roughly 8.2 grams of cocaine. Defendant was charged with one count of possession of a schedule II controlled substance and one count of possession of a schedule II controlled substance with the intent to distribute.

Two of the other three young men in the car with defendant testified at defendant's trial. The driver, a cousin of defendant, could not be located. The driver's thirteen-year-old younger brother (younger cousin), however, testified that defendant and a friend came over to his house earlier that evening. After eating dinner, defendant went downstairs, where the younger cousin saw him twist a baggie containing a yellowish, round substance, and place that baggie in his pocket; the younger cousin also observed that defendant was standing next to a table that had a plate and a razor blade on it. According to the younger cousin, when the police stopped their car, defendant "reached in his right pocket and put something in his right sock."

Defendant testified that he had gone over to his aunt's house to "hang out" with the driver (missing cousin). While the missing cousin showered and got ready in the basement, defendant remained upstairs, sitting at the kitchen table with his aunt; according to defendant, he never went down to the basement. After dinner, defendant and the two cousins went to pick up defendant's friend, the fourth person in the car.

Defendant testified that the missing cousin invited him to smoke a marijuana cigarette that was in the ashtray of the car. He related that, when the car was being pulled over, the missing cousin tossed a baggie at him and said, "I'm going to jail for a long time if I have it on me." Although he initially protested, defendant ended up taking the baggie and hiding it in his sock. According to defendant, he did not know what was in the baggie until the police told him it was cocaine.

The testimony of defendant's friend largely substantiated that of defendant. He testified that, because it was dark, he could not tell what the missing cousin had thrown at defendant; he also could not tell what defendant did with it.

The jury found defendant guilty on the possession count, but acquitted him on the possession with the intent to distribute count.

I. Knowledge of the General or Precise Nature of a Controlled Substance

Defendant contends that reversal is required because the trial court allowed the prosecution to misstate, and because the trial court did not adequately instruct the jury on, the elements of the offense of which he was convicted. We disagree.

Section 18-18-405(1)(a), C.R.S.2004, provides that "it is unlawful for any person knowingly to . . . possess . . . a controlled substance." The "knowing" element applies both to knowledge of possession, People v. Ceja, 904 P.2d 1308, 1310 (Colo.1995), and to knowledge that the thing possessed is a controlled substance. People v. Theel, 180 Colo. 348, 350, 505 P.2d 964, 965 (1973).

The issue in this case is whether, to be convicted of this offense, a defendant need know, as the prosecution argued, only that he or she was in possession of a controlled substance or, as defendant argued, he or she must be shown to know the precise controlled substance possessed, here, cocaine. Nothing in the plain language of the statute appears to answer this question.

In 1978, a division of this court construed a predecessor version of § 18-18-405(1)(a); there, it concluded, in the context of dispensing drugs, that "[e]ven if defendant were mistaken as to the precise chemical nature or name of the dangerous drug he dispensed, or believed that he was dispensing [drug A] when he was actually dispensing [drug B] his conviction was warranted so long as he intended to dispense a dangerous drug." People v. Clark, 41 Colo.App. 456, 457, 589 P.2d 1379, 1380 (1978).

In 1981, the General Assembly adopted what is now § 18-18-405, as part of a version of the Uniform Controlled Substances Act. The purpose of the Uniform Act is to "maintain uniformity between the laws of the several States and those of the federal government;" to date, forty-eight states have adopted some version of the Uniform Act. See People v. Abiodun, 111 P.3d 462, 466 n. 3 (Colo.2005)(quoting Unif. Controlled Substances Act, Prefatory Note, 9 U.L.A. 5 (1997)).

For this reason, we may look to interpretations of like federal and state statutes for guidance in interpreting § 18-18-405. See Szaloczi v. John R. Behrmann Revocable Trust, 90 P.3d 835, 838-39 (Colo.2004); People v. Rivera, 56 P.3d 1155, 1163 (Colo.App.2002).

Federal authorities are uniform in recognizing that a defendant need not know the exact nature of the substance in his or her possession, but only that it was a controlled substance of some kind. See, e.g., United States v. Martin, 274 F.3d 1208, 1210 (8th Cir.2001); United States v. Ramirez-Ramirez, 875 F.2d 772, 774 & n. 1 (9th Cir.1989); United States v. Cheung, 836 F.2d 729, 731 (1st Cir.1988); United States v. Berick, 710 F.2d 1035, 1040 (5th Cir.1983); see also 2B Fed.-JI § 64.15 (5th ed.2000)("it is not necessary for the government to prove that the defendant knew the precise nature of the controlled substance . . . . The government must prove beyond a reasonable doubt, however, that Defendant [X] did know that some type of controlled substance was [possessed].").

Most of the state courts that have considered this question have reached the same conclusion. See, e.g., State v. Engen, 164 Or.App. 591, 993 P.2d 161, 170 (1999)(characterizing the level of agreement as "a consensus"); State v. Sartin, 200 Wis.2d 47, 546 N.W.2d 449, 455 (1996)(noting that the "majority of courts that have addressed this issue agree that in drug possession or delivery cases, the defendant's knowledge that he had a controlled or illegal substance is all that the State need prove; there is no requirement to prove the defendant knew the exact nature of the substance"). And there is good reason for not imposing such a requirement:

[I]nsulating from criminal liability those defendants who knowingly deal in prohibited controlled substances, but are ignorant, mistaken, or willing to misrepresent the exact nature or chemical name of the substance which they traffic, is contrary to public policy. . . .

The requirement that a defendant "knowingly" distribute or possess a controlled substance adequately protects those individuals who may innocently become involved in a drug transaction by inadvertence or accident. However, one who knowingly engages in the trade of controlled substances should not profit by feigning ignorance, and subsequently relying on the State's potential inability to prove knowledge of the exact substance involved.

State v. Sartin, supra, 546 N.W.2d at 456.

We are persuaded by these authorities, and, accordingly, we construe § 18-18-405 to require only that a person know that he or she possesses a controlled substance, and not that he or she know the precise controlled substance possessed.

Thus construing the statute, we find no error in the prosecution's arguments regarding, or the trial court's instructions on, the law.

In reaching this conclusion, we necessarily reject defendant's reliance on People v. Quick, 190 Colo. 171, 172, 544 P.2d 629, 629-30 (1976); People v. Eades, 187 Colo. 74, 77, 528 P.2d 382, 384 (1974); and People v. Larsen, 180 Colo. 140, 142, 503 P.2d 343, 345 (1972). While these cases stand for the proposition that a defendant must know the "nature" of the thing possessed, none of them requires knowledge of the precise controlled substance possessed.

II. Use of Marijuana-Related Evidence

Next, defendant contends that the trial court erred by admitting evidence of a baggie containing eight grams of marijuana that was found in the center console between the driver's and front passenger's seats. We disagree.

Evidence of other offenses or acts that is part of the criminal episode or transaction with which defendant is charged is "admissible to provide the fact-finder with a full and complete understanding of the events surrounding the crime and the context in which the charged crime occurred." People v. Quintana, 882 P.2d 1366, 1373 (Colo.1994); see People v. St. James, 75 P.3d 1122, 1125 (Colo.App.2002)(evidence of defendant's possession of money and victim's...

To continue reading

Request your trial
24 cases
  • People v. Lucero
    • United States
    • Court of Appeals of Colorado
    • July 14, 2016
    ...states that have adopted the uniform act, are instructive in construing Colorado's Uniform Controlled Substances Act. People v. Perea , 126 P.3d 241, 245 (Colo. App. 2005) ; see § 18–18–604, 1992 Colo. Sess. Laws at 385.3. The Buyer–Seller Rule¶ 19 Twelve circuits of the United States Court......
  • People v. Alemayehu
    • United States
    • Court of Appeals of Colorado
    • May 20, 2021
    ...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. a......
  • People v. Vialpando
    • United States
    • Court of Appeals of Colorado
    • March 19, 2020
    ...in responding to an argument by defense counsel. Domingo-Gomez v. People , 125 P.3d 1043, 1048 (Colo. 2005) ; People v. Perea , 126 P.3d 241, 247 (Colo. App. 2005). A prosecutor "may employ rhetorical devices and engage in oratorical embellishment and metaphorical nuance, so long as he or s......
  • Rose v. State
    • United States
    • Supreme Court of Nevada
    • July 26, 2007
    ...designed to appeal to the jurors' sympathies). 42. Butler v. State, 120 Nev. 879, 898, 102 P.3d 71, 84 (2004). 43. People v. Perea, 126 P.3d 241, 248 (Colo.Ct. App.2005). 44. Ramsey v. State, 853 N.E.2d 491, 500-01 (Ind. 45. Hernandez v. State, 118 Nev. 513, 535, 50 P.3d 1100, 1115 (2002). ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT