v. Harrison ( 2019 )


Menu:
  •      The summaries of the Colorado Court of Appeals published opinions
    constitute no part of the opinion of the division but have been prepared by
    the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
    Any discrepancy between the language in the summary and in the opinion
    should be resolved in favor of the language in the opinion.
    SUMMARY
    May 2, 2019
    2019COA63
    No. 17CA1372, People v. Harrison — Criminal Law —
    Affirmative Defenses — Immunity for Persons Who Suffer or
    Report an Emergency Drug or Alcohol Overdose Event
    A division of the court of appeals considers whether there was
    sufficient evidence to disprove defendant’s immunity under section
    18-1-711, C.R.S. 2018, which provides immunity from arrest or
    prosecution for those who suffer or report an emergency drug or
    alcohol overdose. Interpreting the statute’s plain language for the
    first time in a published opinion, the division concludes that section
    18-1-711(5) defines an “emergency drug or alcohol overdose event”
    under a reasonable person standard, considering what a layperson
    would reasonably believe to be a drug or alcohol overdose that
    requires medical assistance at the time the 911 call is made. Thus,
    the division concludes that neither the subjective belief of the
    person reporting the overdose event (as to whether an overdose is in
    fact occurring), nor events that occur after the 911 call is made
    (such as the defendant’s ultimate need for medical assistance) are
    relevant to determining whether the defendant is immune under the
    statute.
    Applying the objective definition contained in section 18-1-
    711(5) to the facts of this case, the division concludes the
    prosecution presented no relevant evidence to disprove that an
    emergency drug overdose was reported, leading to defendant’s
    arrest. Accordingly, the division finds insufficient evidence to
    disprove defendant’s immunity from prosecution under section 18-
    1-711 and thus vacates defendant’s convictions.
    COLORADO COURT OF APPEALS                                          2019COA63
    Court of Appeals No. 17CA1372
    Jefferson County District Court No. 16CR3708
    Honorable Christopher C. Zenisek, Judge
    The People of the State of Colorado,
    Plaintiff-Appellee,
    v.
    Brittany Page Harrison,
    Defendant-Appellant.
    JUDGMENT VACATED
    Division III
    Opinion by JUDGE ROMÁN
    Webb and Freyre, JJ., concur
    Announced May 2, 2019
    Philip J. Weiser, Attorney General, Trina K. Taylor, Assistant Attorney General,
    Denver, Colorado, for Plaintiff-Appellee
    Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
    Public Defender, Denver, Colorado, for Defendant-Appellant
    ¶1    Defendant, Brittany Page Harrison, appeals the judgment of
    conviction entered after a jury found her guilty of possession of a
    controlled substance and possession of drug paraphernalia.
    Because we conclude the evidence at trial was insufficient to
    disprove the affirmative defense of immunity for persons suffering a
    drug overdose under section 18-1-711, C.R.S. 2018, we vacate the
    judgment.
    I.   Background
    ¶2    Defendant and her friend, A.M., entered a Burger King
    restaurant, ordered a meal, and sat down at a booth. About an
    hour and a half later, staff at the restaurant noticed defendant and
    A.M. had not touched their food and were slumped over each other,
    “asleep.” An employee made multiple attempts to wake them by
    yelling at them, shaking them, and banging on the table. Still,
    defendant and A.M. did not move or open their eyes. A short while
    later, the general manager called 911 because she was “concerned
    for their well-being” and worried “something [could] be wrong.”1
    1 The general manager did not specify exactly how much time
    lapsed between her staff’s first attempt to wake defendant and when
    she called 911. However, she testified that after the first attempt,
    1
    ¶3    When a police corporal arrived, defendant and A.M. were still
    unconscious. However, the corporal was able to wake defendant by
    announcing himself and shaking her forcefully. At that point,
    defendant was sluggish and confused. Because A.M. still did not
    wake up, the corporal called paramedics.
    ¶4    Defendant gave the corporal her identification and told him
    that she had not used drugs that day. But, a second police officer
    arrived on the scene and noticed defendant “looked to be under the
    influence of some substance.”
    ¶5    Defendant gave the corporal permission to search her purse.
    He found a baggie with a tar-type substance in it, a syringe, a
    spoon, a torch, and tin-foil with burn marks. The substance in the
    baggie later tested positive for heroin.
    ¶6    Defendant also consented to a search of her backpack, which
    contained two glass pipes, a lighter, butane fluid, two butane
    torches, aluminum foil, and another baggie containing a powdery
    substance that later tested positive for methamphetamine.
    she and her employee “went on a little bit,” then tried to wake them
    again. It was after this second attempt to wake defendant and A.M.
    that the manager called 911.
    2
    ¶7     When paramedics arrived, A.M., who was still unconscious,
    was taken to the hospital. Defendant was taken into custody.
    ¶8     The prosecution charged defendant with two counts of
    possession of a controlled substance and one count of possession of
    drug paraphernalia.
    ¶9     The jury convicted defendant as charged.
    II.   Standard of Review and Legal Authority
    ¶ 10   The prosecution must prove all elements of a crime beyond a
    reasonable doubt to satisfy due process. Montez v. People, 
    2012 CO 6
    , ¶ 21 (citing U.S. Const. amend. XIV, § 1; Colo. Const. art. II,
    § 25). This includes the burden of disproving “issues involved in
    affirmative defenses.” Montoya v. People, 
    2017 CO 40
    , ¶ 24; see
    also People v. Pickering, 
    276 P.3d 553
    , 555 (Colo. 2011) (noting that
    an affirmative defense “admit[s] the defendant’s commission of the
    elements of the charged act, but seek[s] to justify, excuse, or
    mitigate the commission of the act”). That is, “if presented evidence
    raises the issue of an affirmative defense, the affirmative defense
    effectively becomes an additional element, and . . . the prosecution
    bears the burden of proving beyond a reasonable doubt that the
    affirmative defense is inapplicable.” Pickering, 276 P.3d at 555.
    3
    ¶ 11   Section 18-1-711 provides an affirmative defense, under
    certain circumstances, for persons who suffer or report an
    emergency drug or alcohol overdose. For this affirmative defense to
    apply, the following conditions must be met:
    (1) The person reports in good faith an
    emergency drug or alcohol overdose event
    to a law enforcement officer, to the 911
    system, or to a medical provider;
    (2) The person remains at the scene of the
    event until a law enforcement officer or an
    emergency medical responder arrives or
    the person remains at the facilities of the
    medical provider until a law enforcement
    officer arrives;
    (3) The person identifies himself or herself to,
    and cooperates with, the law enforcement
    officer, emergency medical responder, or
    medical provider; and
    (4) The offense arises from the same course of
    events from which the emergency drug or
    alcohol overdose event arose.
    § 18-1-711(1)(a)-(d). As long as these conditions are met, immunity
    extends to both the person who called 911 and “to the person who
    suffered the emergency drug or alcohol overdose event.” § 18-1-
    711(2).
    4
    ¶ 12   An “emergency drug or alcohol event” is defined as:
    an acute condition including, but not limited
    to, physical illness, coma, mania, hysteria, or
    death resulting from the consumption or use
    of a controlled substance, or of alcohol, or
    another substance with which a controlled
    substance or alcohol was combined, and that a
    layperson would reasonably believe to be a
    drug or alcohol overdose that requires medical
    assistance.
    § 18-1-711(5).
    ¶ 13   We review the record de novo to determine whether the
    evidence before a jury was sufficient both in quantity and quality to
    sustain a conviction. Dempsey v. People, 
    117 P.3d 800
    , 807 (Colo.
    2005). In doing so, we must “determine whether the evidence,
    viewed in the light most favorable to the prosecution, was both
    substantial and sufficient to support the conclusion by a reasonable
    mind that the defendant was guilty beyond a reasonable doubt.”
    People v. Griego, 
    2018 CO 5
    , ¶ 24.
    ¶ 14   “An appellate court is not permitted to act as a ‘thirteenth
    juror’ and set aside a verdict because it might have drawn a
    different conclusion had it been the trier of fact.” People v.
    Arzabala, 
    2012 COA 99
    , ¶ 13 (citation omitted). Instead, we afford
    the prosecution the benefit of every reasonable inference that might
    5
    be fairly drawn from the evidence and, where reasonable minds
    could differ, deem the evidence sufficient to sustain a conviction.
    People v. Kessler, 
    2018 COA 60
    , ¶ 12.
    ¶ 15   Issues of statutory construction are also reviewed de novo.
    People v. Smith, 
    254 P.3d 1158
    , 1161 (Colo. 2011). When
    interpreting a statute, our primary task is to ascertain and give
    effect to the intent of the General Assembly. People v. Diaz, 
    2015 CO 28
    , ¶ 12. To determine legislative intent, we first examine the
    plain language of the statute. Klinger v. Adams Cty. Sch. Dist. No.
    50, 
    130 P.3d 1027
    , 1031 (Colo. 2006). “We read words and phrases
    in context and construe them literally according to common usage
    unless they have acquired a technical meaning by legislative
    definition.” Id. If the language is clear and unambiguous, no
    further analysis is needed. Id.
    III.    Discussion
    ¶ 16   It is undisputed that police discovered defendant in possession
    of controlled substances and drug paraphernalia after the manager
    called 911 out of concern for defendant’s well-being. The manager
    testified that her employee banged loudly on the table in an effort to
    wake defendant and A.M., but they did “not even [f]linch.” At that
    6
    point, her “motherly instinct” gave her “concerns that something
    was wrong,” and she thought “maybe we need to get help.” She
    “called 911 and explained that . . . [she] could not wake [defendant
    and A.M.] up and [she] was concerned for their well-being.” Based
    on these facts, the trial court agreed to instruct the jury on the
    affirmative defense of immunity for persons who suffer an
    emergency drug or alcohol overdose event. The jury found
    defendant guilty.
    ¶ 17   On appeal, defendant asserts that there was insufficient
    evidence to support the jury’s verdict because the prosecution failed
    to meet its burden of disproving the applicability of section 18-1-
    711. Specifically, defendant argues the prosecution did not
    disprove any of the following requirements: (1) that the manager
    made a good faith report of an emergency drug overdose event, as it
    is defined under section 18-1-711(5); (2) that the manager remained
    at the scene until police arrived; (3) that the manager cooperated
    with law enforcement; or (4) that the charged offenses arose out of
    the same course of events as the overdose event.
    ¶ 18   Importantly, only the first element of the immunity statute is
    disputed here. The People do not dispute that the manager called
    7
    911 in good faith, remained at the scene, and cooperated with law
    enforcement, nor that defendant’s charges arose from the
    underlying overdose event. Instead, the People argue that the
    evidence was substantial and sufficient to disprove the first
    condition of section 18-1-711(1)(a) — namely, that the manager
    reported an “emergency drug or alcohol overdose event,” as it is
    defined under subsection (5) of the immunity statute.
    ¶ 19   Even applying the deferential standard in favor of the
    prosecution involved in sufficiency of the evidence review, see
    United States v. Bevans, 
    117 F.3d 1429
     (10th Cir. 1997), we agree
    with defendant that the evidence was insufficient to sustain her
    convictions.
    ¶ 20   Viewed in the light most favorable to the prosecution, the
    evidence at trial showed the following:
    • When defendant and A.M. entered the Burger King and
    ordered food, nothing about them stood out to the
    manager except that they were young, had backpacks,
    and “looked tired.”
    8
    • But, after discovering defendant and A.M. asleep and
    unresponsive, the manager became worried and called
    911.
    • When asked whether she called 911 in “panic mode,” the
    manager testified that she called for assistance because
    she did not know what to do.
    • The manager did not have prior experience with anyone
    on drugs or alcohol and it “never really crossed [her]
    mind” that defendant was experiencing a drug overdose.
    • The call was dispatched to 911 as a “welfare check.”
    • Paramedics were not initially dispatched to the scene,
    and defendant did not receive medical attention.
    • The corporal was able to wake defendant and by the time
    the second officer arrived, defendant was eating a
    hamburger and answering police questions.
    • After police arrived, the manager assumed the situation
    “was okay.”
    ¶ 21   Drawing every reasonable inference from these facts in the
    light most favorable to the prosecution, we conclude the evidence
    showed that (1) the manager did not subjectively believe an
    9
    emergency overdose was occurring when she called 911 and (2)
    defendant did not ultimately require medical attention.
    Nonetheless, we conclude the evidence was insufficient to disprove
    the manager’s report of an emergency overdose event in this case.
    ¶ 22   First, section 18-1-711(5) defines an “emergency drug or
    alcohol overdose event” objectively, based on what “a layperson
    would reasonably believe to be a drug or alcohol overdose that
    requires medical assistance.” See Black’s Law Dictionary 1624
    (10th ed. 2014) (defining an “objective standard” as “[a] legal
    standard that is based on conduct and perceptions external to a
    particular person” and a “subjective standard” as “[a] legal standard
    that is peculiar to a particular person and based on the person’s
    individual views and experiences”). Therefore, the manager’s
    subjective knowledge or ignorance about the cause of defendant’s
    condition is not relevant to the applicability of section 18-1-711(5).
    See J.D.B. v. North Carolina, 
    564 U.S. 261
    , 271 (2011) (holding that
    where police are required to examine circumstances that “‘would
    have affected how a reasonable person’ in the suspect’s position
    ‘would perceive his or her freedom to leave,’ . . . . ‘the ‘subjective
    views harbored by either the interrogating officers or the person
    10
    being questioned’ are irrelevant”) (citation omitted). Rather, under
    the statute’s plain language, immunity must apply so long as the
    person reporting the event reports in good faith an “acute condition”
    that a reasonable person would believe to be a drug or alcohol
    overdose.
    ¶ 23   To read section 18-1-711(5) differently — such as to require
    the person reporting the overdose to subjectively perceive an
    emergency overdose — would necessitate reading terms into the
    statute “that simply are not there.” People v. Benavidez, 
    222 P.3d 391
    , 393-94 (Colo. App. 2009) (emphasizing that “in interpreting a
    statute, we must accept the General Assembly’s choice of
    language”). This is particularly inappropriate given that the
    legislature expressly included a subjective requirement in an
    adjacent section of the immunity statute at issue in this case.
    Specifically, section 18-1-712(2), C.R.S. 2018, grants immunity for
    persons administering an opiate antagonist “to an individual the
    person believes to be suffering an opiate-related drug overdose
    event.” (Emphasis added.) See United States v. Pauler, 
    857 F.3d 1073
    , 1077 (10th Cir. 2017) (“[D]rawing meaning from silence is
    particularly inappropriate . . . [when] Congress has shown that it
    11
    knows how to [address an issue] in express terms.” (quoting
    Kimbrough v. United States, 
    552 U.S. 85
    , 103 (2007))).2
    ¶ 24   Second, and likewise, events that occurred after the manager’s
    911 call are irrelevant to the jury’s determination of whether a
    reasonable person would have perceived a drug overdose event at
    the time the 911 call was made. Section 18-1-711(1)(a) only
    requires that the person reporting the overdose event do so “in good
    faith,” based on the caller’s state of mind at the time of the 911 call.
    See Black’s Law Dictionary 808 (10th ed. 2014) (defining “good
    faith” as “[a] state of mind consisting in . . . honesty in belief or
    purpose . . . or . . . absence of intent to defraud or to seek
    unconscionable advantage”); see also People v. Randolph, 
    4 P.3d 477
    , 483 (Colo. 2000) (noting, in the context of the admissibility of
    2 Notably, other states have also chosen to include a subjective
    requirement in their drug overdose immunity statutes. See Conn.
    Gen. Stat. § 21a-267(e)(2) (West 2011) (providing immunity to any
    person “for whom another person, in good faith, seeks medical
    assistance, reasonably believing such person is experiencing an
    overdose”) (emphasis added); Vt. Stat. Ann. tit. 18, § 4254(a)(1)
    (2018) (defining “drug overdose” as “an acute condition resulting
    from or believed to be resulting from the use of a regulated drug
    that a layperson would reasonably believe requires medical
    assistance”) (emphasis added).
    12
    evidence seized by police, that a “‘[g]ood faith mistake’ means a
    reasonable judgmental error concerning the existence of facts . . .
    which if true would be sufficient” to meet the legal requirement
    (quoting § 16-3-308, C.R.S. 2018)) (emphasis added). Thus,
    evidence of defendant’s condition after police arrived — including
    that she did not ultimately require medical attention — is not
    sufficient to disprove her immunity as an affirmative defense.
    ¶ 25   In other words, the only relevant evidence to aid the jury in
    determining whether section 18-1-711 applied was that, at the time
    the manager called 911, defendant had entered the restaurant,
    ordered her food, and then become unconscious and unresponsive
    for a prolonged period. Although the jury was entitled to determine
    whether a reasonable person would perceive a drug overdose event
    under these circumstances, we conclude the evidence was
    insufficient to support a fair-minded conclusion that this element
    was not met. See People v. Perez, 
    2016 CO 12
    , ¶ 24 (“Evidence is
    sufficient to sustain a conviction if the quantity and quality of the
    relevant evidence would support a fair-minded jury’s finding ‘that
    the guilt of the accused has been established beyond a reasonable
    doubt with regard to each essential element of the crime.’” (quoting
    13
    People v. Gonzales, 
    666 P.2d 123
    , 17-28 (Colo. 1983))) (emphasis
    added).
    ¶ 26   Specifically, even viewing the facts in the prosecution’s favor,
    we conclude a layperson would have reasonably concluded that
    defendant was suffering an acute condition caused by a drug or
    alcohol overdose. Section 18-1-711(5) specifically includes a “coma”
    among the nonexclusive list of acute conditions that can be caused
    by an “emergency drug or alcohol overdose event.” See People v.
    Delgado, 
    153 Cal. Rptr. 3d 260
    , 266 (Cal. Ct. App. 2013) (“[A] coma
    is defined as ‘profound unconsciousness caused by disease, injury,
    or poison.’” (quoting Merriam-Webster’s Collegiate Dictionary 246
    (11th ed. 2006))); see also Merriam-Webster’s Dictionary,
    https://perma.cc/66JJ-TNVS (defining “acute” as “characterized by
    sharpness or severity of sudden onset”).
    ¶ 27   True, other medical conditions may cause unresponsiveness
    such as displayed by defendant and her companion. But the
    prosecution did not present any evidence of the range or prevalence
    of such conditions, especially among young people. Instead, the
    jury was left to consider — unaided by expert testimony — what a
    reasonable person would believe had caused two young people
    14
    sitting together to lapse into unconsciousness simultaneously, at
    mid-morning, and in a public place. In an era of chronic opioid
    abuse, the prosecution was required to do more than argue
    inferences. See Centers for Disease Control and Prevention,
    Opioids Portal, https://perma.cc/7SEY-VBVD (noting that drug
    overdoses are “a leading cause of injury-related death in the United
    States” and that “[o]f those deaths, almost 68% involved a
    prescription or illicit opioid”).
    ¶ 28   For these reasons, we conclude the evidence at trial was
    insufficient to disprove that a reasonable person in the manager’s
    position would have believed that an “emergency drug or alcohol
    overdose event” may be occurring.
    ¶ 29   Because the prosecution did not meet its burden to prove the
    inapplicability of the affirmative defense of immunity under section
    18-1-711 in this case, we vacate defendant’s convictions. See
    Pickering, 276 P.3d at 555.
    ¶ 30   In light of this determination, we need not address defendant’s
    remaining contentions on appeal.
    IV.    Conclusion
    ¶ 31   The judgment is vacated.
    15
    JUDGE WEBB and JUDGE FREYRE concur.
    16