People v. Valdez

• Decision Date: 14 March 2002
• Citation: People v. Valdez, 56 P.3d 1148 (Colo. App. 2002)
• Docket Number: 00CA1931
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jessie VALDEZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

56 P.3d 1148

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Jessie VALDEZ, Defendant-Appellant.

No. 00CA1931.

Colorado Court of Appeals, Div. III.

March 14, 2002.

Rehearing Denied April 25, 2002.

Certiorari Denied October 28, 2002.

Ken Salazar, Attorney General, John D. Seidel, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee.

Horowitz & Wake, Philip L. Gordon, Denver, CO, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, Jessie Valdez, appeals the judgment and sentences imposed upon his conviction of two counts of possession of controlled substances and five habitual criminal counts. We affirm the convictions in part, reverse them in part, vacate the sentences, and remand for resentencing.

Defendant was found guilty after a jury trial of possession of a schedule III controlled substance (codeine), a class four felony, and possession of a schedule IV controlled substance (alprazolam), a class five felony. Thereafter, the trial court found defendant to be a habitual criminal based on five prior convictions.

Before sentencing, defendant requested and was granted a proportionality review. The trial court determined that the required sentence under § 16-13-101(2), C.R.S.2001, twenty-four years on the class four felony count (codeine) and twelve years on the class five felony count (alprazolam), would be unconstitutionally disproportionate to the crimes for which defendant was convicted. Therefore, the court sentenced him to twelve years on the class four felony (codeine) and ten years on the class five felony (alprazolam), to be served concurrently. This appeal followed.

I.

Defendant contends that the trial court erred in admitting, over his objection, evidence of drug paraphernalia that was seized from his apartment during the execution of a search warrant. We disagree.

Evidence of other offenses or acts that is not extrinsic to the offense charged, but is instead part of the criminal episode or transaction with which the 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. This res gestae evidence is not subject to the general rule that excludes evidence of prior criminality. People v. Quintana, 882 P.2d 1366 (Colo.1994).

Res gestae evidence is admissible only if it is relevant and its probative value is not substantially outweighed by the danger of unfair prejudice. People v. Czemerynski, 786 P.2d 1100 (Colo.1990); see CRE 403. The trial court has substantial discretion in determining the admissibility of evidence. Absent an abuse of discretion, the trial court's evidentiary rulings will be affirmed. People v. Eppens, 979 P.2d 14 (Colo.1999); People v. Davalos, 30 P.3d 841 (Colo.App. 2001).

Here, the trial court allowed two police officers who participated in the search of defendant's apartment to testify regarding items of drug paraphernalia that were recovered: two spoons containing heroin residue, which were recovered under a mattress along with one of the alprazolam pills, and a marihuana pipe and a quantity of marihuana, which were recovered from a chair close to the nightstand where the other two alprazolam pills were found.

The trial court determined that this evidence was admissible as res gestae. However, in an effort to minimize any prejudice to defendant, the court gave the jury a limiting instruction regarding the use that it could make of the evidence. Specifically, the court told the jury that the evidence "should not in any way, shape, or form be considered by you as somehow indicating bad character of the defendant or that he is necessarily guilty by implication of the crimes that he is charged with."

In addition, the court subsequently instructed the jury:

[Y]ou have heard testimony and received exhibits regarding drug paraphernalia recovered from [defendant's] apartment.... You may consider this evidence and give it such weight as you deem appropriate only, and I emphasize the word "only," for the purpose of determining whether the Defendant knowingly possessed Codeine and/or Alprazolam and for no other purpose.

We are not persuaded by defendant's argument that the relevance of this evidence was outweighed by the danger of unfair prejudice. The evidence of illegal drug paraphernalia was relevant to the question of defendant's knowledge of the nature of the codeine and alprazolam pills recovered from his apartment and their illegality in the absence of a prescription. Moreover, because defendant's theory of the case was that he had no knowledge of any controlled substances in his apartment, the evidence gave the jury a more complete picture of the circumstances under which the codeine and alprazolam were found. See, e.g., People v. Mack, 33 P.3d 1211 (Colo.App.2001) (evidence of pager and amount of cash interwoven with facts of defendant's arrest was relevant to jury's full understanding of events surrounding search and arrest); People v. Ornelas, 937 P.2d 867 (Colo.App.1996)(information surrounding defendant's activities and knowledge relative to the distribution of other drugs considered proper res gestae evidence).

Furthermore, although not required, the trial court instructed the jury twice regarding the limited purposes of the evidence. We must presume that the jury followed the limiting instructions given by the court. See People v. O'Neal, 32 P.3d 533 (Colo.App. 2000).

Therefore, we conclude that the trial court did not abuse its discretion in admitting this evidence.

II.

Defendant also contends that the evidence presented at trial was insufficient to support his conviction for possession of alprazolam. Specifically, he asserts that no evidence was presented to establish that he knew what the alprazolam pills were or that they were illegal, and that the guilty verdict was therefore based on speculation and conjecture, rather than direct evidence. We are not persuaded.

Where the sufficiency of the evidence is challenged on appeal, a reviewing court must determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is sufficient to support a conclusion by a reasonable person that the defendant is guilty of the crimes charged beyond a reasonable doubt. Kogan v. People, 756 P.2d 945 (Colo.1988). The evidence, whether direct or circumstantial, must be both substantial and sufficient to support the determination of guilt. People v. Bennett, 183 Colo. 125, 515 P.2d 466 (1973).

It is the duty of the fact finder in a criminal case to determine the credibility of the witnesses, to consider what weight should be given to all parts of the evidence, and to resolve conflicts, inconsistencies, and disputes in the evidence. Kogan v. People, supra; People v. Martinez, 36 P.3d 154 (Colo.App.2001).

Here, the prosecution established that the alprazolam was found in defendant's apartment next to his bed and underneath the mattress. It was also shown that defendant was the only occupant of the apartment. The evidence established that the pills beside the bed were wrapped together in cellophane cigarette packaging material similar to the packaging of the codeine tablets discovered in a shirt in defendant's closet. Trial testimony established that defendant admitted that the tablets found in the shirt contained codeine and that he knew a prescription was necessary to possess them. Finally, evidence was introduced regarding illegal drug paraphernalia found in the vicinity of the drugs defendant was charged with illegally possessing.

Viewing this evidence in the light most favorable to the prosecution, as we must, we conclude that it is substantial and sufficient to allow a reasonable juror to determine that defendant knew the nature of the pills found packaged together beside his bed and underneath his mattress. Therefore, we reject his contention.

III.

Defendant further contends that his conviction for possession of codeine as a schedule III controlled substance as a class four felony must be reversed. We agree in part.

Here, the concentration of codeine in a particular dose establishes the penalty to which a defendant may be subjected. Under § 18-18-405(2)(b)(I), C.R.S.2001, if a substance is classified under schedule III, possession of that substance constitutes a class four felony. Under § 18-18-405(2)(d)(I), C.R.S.2001, if a substance is classified under schedule V, possession constitutes a class one misdemeanor. Codeine appears in the statutes under both schedule III and schedule V, depending upon the concentration of the drug. See § 18-18-205(2)(d)(I), (II), C.R.S. 2001 (schedule III); § 18-18-207(2)(b)(I), C.R.S.2001 (schedule V).

Defendant was charged with and convicted of possession of codeine as a schedule III controlled substance, a class four felony. Therefore, the prosecution was required to prove beyond a reasonable doubt that defendant possessed codeine in a concentration sufficient to place it on schedule III. The record reflects, and the prosecution concedes, that no evidence was presented at trial to establish the concentration of the codeine contained in the eight tablets found in defendant's apartment.

Therefore, the evidence at trial was insufficient to establish that defendant committed the crime with which he was charged in the information and convicted, that is, possession of a schedule III controlled substance (codeine), a class four felony. Consequently, his conviction for that offense must be reversed.

However, the evidence at trial did establish that the tablets found in his apartment contained codeine and that he was aware that a prescription was necessary to possess them. Defendant does not dispute that evidence. Illegal possession of any concentration of codeine up to 200 milligrams per 100 grams is sufficient to constitute possession of a schedule V controlled substance under § 18-18-207(2)(b)(I), a class one misdemeanor. See §...