DocketNumber： Court of Appeals No. 09CA2717
Citation Numbers： 356 P.3d 877, 2014 COA 49
Judges： Booras, Roman, Webb
Filed Date： 4/24/2014
Status： Precedential
Modified Date： 1/12/2023
Opinion by
T1 Defendant, Leo J. Cisneros, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession with intent to distribute marijuana. He also appeals his enhanced sentence as a special offender. We affirm.,
I. Background
T2 At around 10:30 p.m. on November 26, 2007, defendant was at home with his wife, four children, brother, and mother when there was a knock on his front door. The knock came from a group of five aequain-tances who were armed and intending to rob defendant. When defendant's brother answered the door, one of the robbers pushed the door open and pointed a gun into the apartment. At that point, gunfire erupted.
8 Police and emergency services arrived shortly after the shooting. Officers entered the apartment and observed the victim's body on the floor in the living room, spent shell casings near the body, and a tray on the living room floor containing suspected mariJuana. An officer spoke with defendant at the scene and, subsequently, a detective interviewed defendant at the police department several times. During the initial interview with the detective, defendant admitted that he owned a handgun and that he possessed and sold marijuana.
4f 4 Police obtained a warrant and searched defendant's apartment. In addition to the items officers previously observed, the search recovered a bag of marijuana in the victim's hand, which was thrust into her [pocket; $1145 in cash in a bedroom closet; the handgun and another gun on an armoire in a bedroom; a safe that had been under defendant's bed and which contained sixteen baggies of marijuana; a dresser drawer containing several boxes of live cartridge ammunition; and a gun-cleaning kit found on top of an armoire.
T5 The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana-eight ounces or more, and one special offender count under the special offender statute's deadly weapon provision, Ch. 71, see. 1, § 18-18-407(1)(f), 1992 Colo. Sess. Laws 862 (hereinafter section 18-18-407(1)(f)). The People alleged that defendant was an armed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her life or health and resulted in her death. Regarding the special offender count,. the People alleged that defendant possessed the handgun in connection with his drug dealing business.
T6 The defense contended that the armed robbers, rather than defendant, were responsible for creating the unreasonably dangerous situation in which defendant's daughter was placed. They also argued that defendant purchased the handgun not to further his drug business but for self-defense, asserting that defendant lived in a dangerous neighborhood and had purchased the gun for protection.
T7 After a jury trial, defendant was acquitted of the child abuse charge but found guilty of possession -with intent to distribute marijuana. The jury also determined that he was a special offender because he "use[dl, possess[ed], or hald] available for use a deadly weapon during the commission of and in connection with the crime of Possession With Intent to Distribute Marihuana." Based on the jury's determination, defendant received an enhanced sentence of fifteen years in the custody of the Department of Corrections. This appeal followed.
II. Section 18-18-407(1)(F)
T8 Section 18-18-407(1)(f), under which defendant was sentenced, provides that when an offender is guilty of possession of a controlled substance and the prosecution has pursued a special offender count, the jury must determine whether the offender "used, displayed, possessed, or had available for use a deadly weapon." If so, that determination constitutes an extraordinary aggravating circumstance, and the court is required "to sentence the defendant to the department of corrections for a térm of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony." § 18-18-407(1)(f)
A. Deadly Weapon Instruction
T9 Defendant contends that the trial court erroncously denied his request for an elemental jury instruction concerning possession of a deadly weapon under section 18-18-
1 10 Defendant also argues that the verdict form did not require the jury to determine whether the prosecution proved beyond a reasonable doubt that defendant did not possess, display, or use the gun for the purpose of self-defense.
1. Preservation
{11 Initially, we conclude defendant preserved his claim that an elemental instruction was required by objecting during the jury instruction conference that the deadly weapon special offender provision should be presented "as a separate offense with its own elements."
2. Analysis
112 Section 18-18-407(1)(F) acts as a sentence enhancement provision and not a substantive offense. People v. Whitley, 998 P.2d 31, 33 (Colo.App.1999). Nevertheless, any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
118 The plain language of section 18-18-407(1)(f) indicates that it is triggered only after a felony drug conviction. Its effect, after the fact finder has entered a special finding as to the existence of the special offender cireumstance, is to increase the re'quired sentencing range. See Whitaker v. People, 48 P.3d 555, 560 (Colo.2002) (interpreting the importation provision of section 18-18-407).
114 Here, although the trial court denied defendant's request for an elemental instruction for the special offender count, it instructed the jury to find the presence or absence of the special offender deadly weapon fact only if it found defendant guilty of the underlying offense of possession with intent to distribute:
If you find defendant not guilty of possession with intent to distribute marthuana, you should disregard this instruction and fill out the verdict form reflecting your not guilty verdiet. If, however, you find the defendant guilty of possession with intent to distribute marihuana, you should fill out the verdiet form reflecting your guilty verdict, and then answer the following question:
On November 26, 2007, did the defendant use, possess, or have available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana? It is the Prosecution's burden to prove beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana.
After considering all the evidence if you decide the prosecution has failed to prove beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commis-gion of and in connection with the erime of*885 possession with intent to distribute marihuana, you should indicate "no" on the verdict form that has been provided. ,
After considering all the evidence if you decide the prosecution has proven beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marthuana, you should indicate "yes" on the verdict form that has been provided. Your answer to the above question must be unanimous.
15 The jury verdiet form for the possession with intent to distribute charge contained a special offender interrogatory that read: "Did [defendant] use, possess, or have available for use a deadly weapon during the commission of and in connection with the crime of Possession With Intent to Distribute Marihuana[?]"
"[ 16 We conclude the verdiet form was not misleading because the instructions as a whole properly informed the jury of the elements of the sentence aggravator and the proof beyond a reasonable doubt burden. The special offender instruction required the jury to find, beyond a reasonable doubt, that the weapon was possessed "during the commission of and in connection with" the drug offense, thereby notifying the jury of the standard of proof and identifying a nexus requirement between the weapon and the drugs,. Thus, the instructions contained the elements that the jury was required to find, although not in an elemental format. No error has been shown.
B. Sufficiency of the Evidence
117 Defendant also asserts that the trial evidence was legally insufficient to prove he possessed or used the gun on November 26, 2007, for the purpose of facilitating the drug offense and not for self-defense. We conclude the evidence was sufficient to support the jury's determination that defendant "used, displayed, possessed, or had available for use a deadly weapon" in connection with the commission of a drug offense.
118 In addressing a claim of insufficient evidence, we must uphold a conviction if the verdict is supported by substantial evidence, viewed in the light most favorable to the prosecution. Mata-Medina v. People, 71 P.3d 973, 983 (Colo.2008). Evidence is sufficient when a 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. Warner, 251 P.3d 556, 564 (Colo.
119 After trial, defendant moved for a judgment of acquittal on the grounds that there was no "showing of purposive conduct with that gun linking it to the marijuana and his possession of it with intent to distribute." The trial court denied his motion, and we agree with that determination.
120 Here, it was undisputed that defendant possessed a handgun. And, as the trial court noted, the People presented evidence that (1) one of defendant's stated purposes in owning the gun was to protect his property, which included nearly one pound of marijuana he held with an admitted intent to distribute it; and (2) the gun was found near a tray of marijuana and within feet of defendant, thus showing that this gun was available for use. Accordingly, there is sufficient evidence to support the jury's findings that defendant possessed both a controlled substance and a deadly weapon, and to infer a nexus between the controlled substance and the weapon. See People v. Tweedy, 126 P.3d 303, 308 (Colo.App.2005) (close spatial proximity between a weapon and drugs is sufficient for the jury to infer the required nexus).
C. Constitutionality of Section 18~18-407(1)(f)
1. Section 18-18-407(1)(f) Does Not Violate the Right to Bear Arms in Self-Defense
121 Defendant contends that section 18-18-407(1)(f) violates the fundamental Second Amendment right to bear arms in self-defense, as recognized in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and also article II, seetion 18 of the Colorado Constitution. Because we conclude that the United States and Colorado Constitutions do not protect the unlawful purpose of possessing a firearm in
22 Prior to trial, the trial court denied defendant's motion to declare section 18-18-unconstitutional on grounds that it infringed on his fundamental state and federal rights. According to defendant's argument below and on appeal, he falls within the "central component" of the Second Amendment, which is the individual right to bear arms in self-defense. He asserts that "constitutional rights are not reserved only for law-abiding people," and that, regardless, he was not a criminal when he used the handgun for self-defense. He further argues that article II, section 18 of the Colorado Constitution provides even greater protection for the right to bear arms than the Second Amendment. Proceeding from the premise that he has a fundamental right to possess a weapon for self-defense, defendant urges that section 18-18-407(1)(f) must be subject to strict serutiny, which he contends it cannot survive.
T28 We review the constitutionality of statutes de novo, Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo.2007). Statutes are presumed to be constitutional and the party challenging a statute's constitutionality must show the statute is unconstitutional beyond a reasonable doubt. Id.
a. United States Constitution
«24 First, we consider and reject defendant's contention that section 18-18-407(1)(f) prohibits conduct that is protected under the Second Amendment to the United States Constitution.
1 25 The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II.
12%6 In Heller, the Supreme Court held for the first time that the Second Amendment secures an individual right to keep and bear arms. 554 U.S. at 595, 128 S.Ct. 2788; see also McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (extending the Second Amendment's reach to the states). The Court explained that, "whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 635, 128 S.Ct. 2783. The Second Amendment right as identified in Heller is limited in seope and subject to some regulation. Id. at 625, 128 S.Ct. 2788. For example, the Heller court identified a non-exhaustive, illustrative list of "longstanding prohibitions on the possession of firearms" as "presumptively lawful regulatory measures." Id. at 626-27 n.26, 128 S.Ct. 27883.
T27 Numerous federal courts have interpreted Heller in upholding the deadly weapon provision's federal counterpart, 18 U.S.C. § 924(c) (2014), which provides for a five-year prison sentence for any defendant who uses or carries a firearm in furtherance of a drug trafficking crime. See United States v. Bryant, 711 F.3d 864, 368-70 (2d Cir.2018) (addressing 18 U.S.C. § 924(c) in light of Heller and discussing other federal courts' decisions that have recognized limits on the exercise of Second Amendment rights under Heller).
128 In Bryant, for example, the United States Court of Appeals for the Second Circuit held that a defendant's conviction for unlawful possession of a firearm in furtherance of a drug trafficking crime did not violate his Second Amendment right to possess a firearm for self-defense in his home. Id. at 870. The court interpreted Heller as providing "an implicit limitation on the exercise of the Second Amendment right to bear arms for lawful purpose[s]/" and a limitation on ownership to that of " law-abiding, responsible citizens'" Id. at 869 (quoting Heller, 554 U.S. at 628, 630, 128 S.Ct. 2783).
129 We agree with the federal circuit courts that the Second Amendment entitles citizens to keep and bear arms for self-protection, but not for all self-protection. Id.; see also United States v. Jackson, 555 F.3d 635, 636 (7th Cir.2009). Here, defendant was distributing illegal drugs out of his home. Although defendant contends that he lived in a dangerous neighborhood and purchased the handgun for self-defense, "his decision to operate an illegal [drug] business [out of his
The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a degler's stash.... Suppose a ... statute said: "Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there." Such a statute would be valid ... [alnd if [the legislature] may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns.
Id. at 636.
130 We conclude that the fundamental right conferred under the Second Amendment is the right for law-abiding, responsible citizens to bear arms for lawful purposes. Because section 18-18-407(1)(f) applies only to possession of a firearm in connection with a person's commission of a felony drug offense, it does not apply to law-abiding citizens and, thus, does not infringe on the. Second Amendment right to bear arms. See id. ("there is no constitutional problem with separating guns from drugs").
b. Colorado Constitution
T381 We next consider whether seetion 18-18-407(1)(f) implicates the right to bear arms as guaranteed by the Colorado Constitution, and hold that it does not.
- { 82 Colorado's constitution includes a provision in its bill of rights establishing a right to keep and bear arms in defense of one's home, person, and property:
The right of no person to keep and bear arms in defense of his home, person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.
Colo. Const. art. II, § 18.
33 This provision was adopted in 1876 as part of Colorado's original constitution and has never been amended. See People v. Carbajal, 2012 COA ¶ 4, 11, - P.3d -, Like the Second Amendment-although worded differently-this provision does not provide an unlimited right to use a gun.
134 In Robertson v. City & County of Denver, 874 P.2d 325 (Colo.1994), the Colorado Supreme Court addressed a challenge to a city ordinance banning assault weapons on grounds that it violated article II, section 18 of the Colorado Constitution. Without deciding whether the right to bear arms as guaranteed under the Colorado Constitution was fundamental, the court held that "the state may regulate the exercise of that right under its inherent police power so long as the exercise of that power is reasonable." Id. at 328. Thus, a statute limiting the right to bear arms in self-defense should be held unconstitutional under the Colorado Constitution only if the defendant establishes that the statute does not regulate "under [the state's] police power in a reasonable manner." Id. at 881.
185 Because we conclude that Heller did not call into question section 18-18-407(1)(f)'s prohibition on using, possessing, or having available for use a firearm during the commission of a drug offense, we see no reason to speculate that our supreme court would modify its holding in Robertson in light of Heller.
186 Thus, as stated in Robertson, the appropriate question in analyzing a challenge to a statute pursuant to article II, section 18 of the Colorado Constitution is whether the provision was a legitimate exer-. cise of the state's police power. A statute is within the state's police power if it is "reasonably related to a legitimate governmental interest such as the public health, safety, or
T387 To the extent that the Colorado Constitution enumerates "defending their lives" among the "essential and inalienable rights" of "[alll persons," prohibiting guns in connection with drug dealing does not prevent a person from using a gun in self-defense. See Colo. Const. art. II, § 3. Because defendant elected to deal drugs from his home and to keep guns available for use in connection with that drug-dealing in close proximity to his drug supply both in his living room and his bedroom, he has violated the special offender statute, even if he fired a shot from his gun to defend his life.
2. Section 18-18-407(1)(F) Is Not Unconstitutionally Overbroad
138 We next address defendant's argument that section 18-18-407(1)(f) is unconstitutionally overbroad on its face and as applied to him. Defendant argues that "(tlhe deadly weapon provision, as currently interpreted [in Coloradol, criminalizes the use or possession of a gun unrelated to a drug transaction and is, thus, unconstitutional." He also contends that the nexus requirement, as articulated in Atencio, is insufficient to protect the right to bear arms in self-defense because "people are adjudicated special offenders even if they possess a gun for self-defense."
(89 Whether a statute is unconstitutionally overbroad is a question of law that we review de novo. People v. Martinez, 165 P.3d 907, 912 (Colo.App.2007). "A statute which proscribes conduct which can be prohibited under the police power of the state is overbroad if it also purports to proscribe conduct which cannot validly be prohibited under that power." People v. Sequin, 199 Colo. 381, 384, 609 P.2d 622, 624 (1980). A statute is facially overbroad if it sweeps within its reach constitutionally protected, as well as unprotected, activities. Robertson, 874 P.2d at 330. However, facial challenges are disfavored and a person to whom a statute was constitutionally applied " 'will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court'" Sequin, 199 Colo. at 384, 609 P.2d at 624 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1978)); see also United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (noting the Court has not recognized an overbreadth doctrine outside the limited context of the First Amendment). Because we conclude that the deadly weapon provision was constitutionally applied in this case, we decline to address defendant's facial challenge.
$40 Here, we perceive no over-breadth in the statute as applied. See Seguin, 199 Colo. at 384, 609 P.2d at 624, The conduct here could validly be prohibited under the state's police power; it did not involve a substantial amount of activity that is constitutionally protected.
{41 First, as previously discussed, the right to bear arms may be regulated by the state under its police power in a reasonable manner. Id. Section 18-18-407(1)(f) does not implicate the right of a law-abiding citizen to bear arms for lawful purposes-it applies only to persons who possess guns during the commission of a drug offense. Once defendant possessed drugs with the intent to sell them in his home and had a gun available for use in connection with that offense, he was no longer simply a law-abiding citizen using the handgun for a lawful purpose.
{ 42 Section 18-18-407(1)(f) requires a relationship between the deadly weapon and the drug offense. Atencio, 878 P.2d at 149-50 (The language of section 18-18-407(1)(F), "used, displayed, possessed, or had available for use a deadly weapon," includes "nexus terms" and "[tlhus, by the express language
48 Here, defendant argues that his possession of the handgun upon which his enhanced sentence was based was unrelated to the drug offense, and that the special offender conviction therefore punished him for exercising his right to possess and use a gun in self-defense. by returning the special verdict form containing nexus language, the jury found, contrary to defendant's contentions, that his possession of the handgun was related to his drug offense. Both the special offender instruction and jury verdict form directed the jury to determine whether defendant "use[d], possess[ed], or hald] available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana." Thus, because defendant possessed a deadly weapon in connection with his commission of a felony drug offense, his conviction under section 18-18-407(1)(f) did not infringe on any constitutionally protected activities, and as applied here, is not unconstitutionally overbroad.
8. Section 18-18-407(1)(f) Is Not Unconstitutionally Vague .
144 We also reject defendant's assertion that section 18-18- 407(1) (f) is unconstitutionally vague. A statute is unconstitutionally vague if it: (1) does not give fair notice of the conduct prohibited and (2) does not supply adequate standards for those enforcing it in order to prevent arbitrary and discriminatory enforcement. See People v. Holmes, 959 P.2d 406, 414 (Colo.1998).
- 45 Section 18-18-407(1)(f) requires a finding that the defendant "used, displayed, possessed or had available for use, a deadly weapon." This language is the same language held valid against a vagueness challenge by a division of this court in Atencio. 878 P.2d at 150-51 (concluding that section 18-18-407(1)(f) was not unconstitutionally vague with regard to either the definition of "deadly weapon" or its prohibition on the use, display, possession, or availability of use of such weapons). There, the enhanced sentence was based on firearms found in the defendant's residence. The division concluded that section 18-18-407(1)(F) was not vague with respect to the term "deadly weapon" because firearms are capable of producing death or bodily harm in the manner they are used or intended to be - used. Id. at 150. The division also reasoned that the ordinary and commonplace definitions of the terms "used," "displayed," "possessed," or "available for use" provide fair notice and are in accord with previous decisions of the court of appeals and supreme court. Id. at 151. We agree with the reasoning in Atencio and conclude that section 18-18-407(1)(f) is facially valid for the same reasons.
146 Defendant's vagueness challenge to section 18-18-407(1)(f) as applied to him also fails The terms of the provision provide fair notice of the conduct prohibited and set forth adequate standards for enforcement so as to prevent arbitrary application.
1 47 Defendant urges that because the robbers possessed firearms while committing a separate drug offense prior to the robbery, they too should have been charged with possession of a controlled substance and subjected to the deadly weapons provision, and the prosecution's failure to do so was arbitrary and discriminatory. We are not persuaded-the prosecution's decision in this case regarding whether to charge the robbers as special offenders does not establish that the statute is unconstitutionally vague or was arbitrarily or discriminatorily applied. See People v. Kurs, 847 P.2d 194, 196 (Colo.App.1992) (noting that "[a] district attorney has wide dis-eretion in determining who to prosecute for criminal activity and on what charge"). Defendant was convicted of a controlled substance offense and the jury also determined that he used, possessed, or had available for use a deadly weapon. Thus, defendant was properly subject to an enhanced sentence pursuant to section 18-18-407(1)(f).
I 48 Defendant next contends that the trial court erred by refusing his tendered right to bear arms instruction. We perceive no error.
{ 49 The defendant tendered, and the court rejected, the following instruction regarding the right to bear arms:
Constitutional Right to Keep and Bear Arms-Defendant not a Prohibited Person-Firearms Registration
The Second Amendment to the Umted States Constitution and Article II, Section 13 of the Colorado Constitution guarantee to [defendant] the right to possess, carry, and use a firearm, including a handgun, in defense of his home and for the safety of himself and his family.
You are instructed that on the date charged in this case [defendant] was not prohibited from purchasing, owning, possessing, or using a firearm, including a handgun, by virtue of having been convicted of any criminal offense under state or federal law.
You are also instructed that there is no legal requirement in the State of Colorado or under federal law to register a handgun.
§50 We conclude that the trial court did not abuse its discretion by refusing this tendered instruction.
'T51 A defendant's use or possession of a gun can simultaneously be for the purpose of self-defense against intruders, and also for the purpose of protecting a drug supply from intruders. Even if the use of the gun for self-defense would ordinarily be constitutionally protected, the simultaneous use of the gun to protect drugs is punishable through an enhanced sentence for drug possession with the intent to distribute.
(52 Here, the jury would not have been able to find that the weapon was used solely for a constitutional self-defense purpose, because in order to make the special offender finding, the jury was required to find that the gun was used, possessed, or available for use during the commission of and in connection with the erime of possession with intent to distribute maribhuana. Thus, the nexus requirement eliminated any violation of a defendant's right to bear arms because a defendant has no such right "in connection with" drug-dealing. Even if defendant kept | or used his gun to protect his family, he was subject to enhanced punishment because it was also connected to his possession with mtent to distribute marijuana.
153 Relying on People v. DeWitt, 275 P.3d 728, 733 (Colo.App.2011), defendant urges that, under the Colorado Constitution, he is entitled to assert the right to bear arms in self-defense as an affirmative defense. However, DeWitt, unlike this case, involved charges of possession of a weapon by a previous offender (POWPO). Possession of a weapon in the POWPO context is illegal by virtue of the defendant's status, and not by virtue of simultaneous illegal conduct. Here, the enhanced sentence was not triggered by defendant's status, but rather by his otherwise illegal conduct.
{54 In light of our prior determination that defendant had no state or federal constitutional right to bear arms during the commission of his drug offense, we find no error in the court's denial of defendant's proposed instruction on the right to bear arms.
III. Other Issues
A. Motion to Suppress
T55 Defendant contends reversal is required because the trial court violated his Fifth Amendment and Fourteenth Amendment rights when it denied his motion to
A trial court's ruling on a motion to suppress presents a mixed question of fact and law. People v. Adkins, 113 P.3d 788, 790 (Colo.2005). However, where statements sought to be suppressed are audio- and video-recorded, we undertake an independent review of the undisputed facts in the recording to determine whether the statements should be suppressed. People v. Madrid, 179 P.3d 1010, 1014 (Colo.2008). In our review, we defer to the trial court's determinations concerning disputed facts that occurred outside of the interview if they are supported by competent evidence in the record. People v. Gennings, 808 P.2d 839, 844 (Colo.1991).
1. Background
157 During the investigation of this case, defendant provided statements to law enforcement officers both before and after receiving Mirando warnings. His unwarned statements include (1) a statement he made to an officer outside his apartment shortly after the shooting and (2) initial statements he made in speaking with a detective in an interview room at the police department approximately two hours after the shooting occurred. After receiving a Mirando advisement, he continued to speak with the detective until the interview concluded, and later agreed to speak in two subsequent interviews during the investigation.
1158 Before trial, defendant filed a motion to suppress, arguing that (1) the statements he made before receiving Miranda warnings occurred during custodial interrogation; (2) the statements he made after receiving Mi-ramndo warnings were inadmissible because they were tainted by the illegality of his initial interrogation and the Miranda warnings were ineffective because the officer used an improper "successive interrogation" tactic; and (8) the statements were involuntary and their admission would violate due process.
T59 The trial court denied the motion to suppress.. First, the court found that defendant was not in custody and was not being interrogated when he provided his statement to the officer at the scene. The court further found that defendant was not in custody while in the waiting room at the police department, noting that "[plolice interrogation at a stationhouse does not necessarily render the interrogation custodial for purposes of the Mirando warning." People v. Matheny, 46 P.3d 453, 466 (Colo.2002). The trial court concluded that "[tlhe totality of the cireum-stances should have led a reasonable person in this situation to believe that he was a witness only."
{60 As to the Fifth Amendment voluntariness argument, the trial court concluded that defendant's pre-Mirando statements were voluntary, his waiver of his Miranda rights was knowing, intelligent, and voluntary, and the statements he made after receiving M/-randa warnings were voluntary. Finally, the court declined to suppress the statements defendant made in his subsequent interviews with law enforcement officers, finding that the statements were voluntary and were not obtained in violation of Miranda: "Defendant further alleges these were serial interrogations, each building on the initial un-Mirandized statement and are prohibited under Seibert. I find these are not the sort of interviews disapproved by Seibert, but a series of continuous witness interviews based upon developing information." .
. 2. Facts |
1 61 Defendant contends on appeal that he was in custody "within minutes of his daughter's death." However, we agree with the trial court's conclusion that defendant was not in custody. prior to being advised of his Miranda rights.
T 62 At the pretrial hearing on defendant's motion to suppress, the testimony established the following facts, Officers arrived shortly after the shooting occurred and began to separate the witnesses, including de
T63 Defendant informed the officer that an unidentified person had knocked on his door, his brother answered, and the person asked, "What's up Homie[?]" Defendant said his brother tried to close the door and the person foreed the door open and began firing a small semi-automatic pistol into the residence. Defendant said the suspect fled from the residence, firing several more shots as he ran.
T 64 After receiving defendant's statement, the officer asked him to sit in the back of a patrol car, and defendant asked if he was under arrest. The officer advised defendant that he was not under arrest but was being separated from the other witnesses.
T 65 After being taken to the police station, defendant sat in a room with his wife while he waited to be interviewed by a detective. They were not restrained or in custody, but an officer was present to ensure that they did not speak to each other.
T66 Rather than providing an immediate Miranda advisement, the detective introduced himself, asked defendant if he understood how important it was to be truthful, and then asked defendant to tell him what happened. The detective advised defendant that the interview would be video-recorded, and defendant agreed to provide a statement.
T67 Defendant again described his brother's struggle after answering a knock at the door, and said he saw the suspect raise a gun and start shooting. Hig wife started seream-ing and he saw his daughter lying on the floor. The detective commented on defendant's tattoos and asked if defendant was a member of a gang and whether defendant had had problems before with anyone. Defendant explained that his family had been involved in a prior altercation and his apartment had been "robbed" previously by a person called "Lips."
. T68 Turning to the person who had knocked on defendant's door that night, the detective asked, "what did this person want?" Defendant said that maybe this person wanted money, but he had not asked for money. Defendant described the shots he heard during the encounter, and the detective asked if anyone inside the house returned fire. Defendant said, "I did," and admitted that he had "shot off a whole clip." The detective asked if defendant could have accidentally hit his daughter, and defendant replied, "I hope not, I hope not, I hope not, I hope not. She was off to the right to me, she was off to the right to me." The detective said, "sounds like there might be a possibility?" and defendant replied, "no, I don't think so. I mean if it is it was just like so fast, if it is, if it is ... I'd kill myself if it is, if it is." He then said:
I don't care if I get in trouble here it is I don't give a fuck like, him I really don't know ... but when he started shooting I jumped up and I started shooting back because I noticed the door was opening and I seen a gun in his hand so I-I cocked my gun and I started shooting back.
69 At that point, the detective interrupted defendant to provide a Miranda advisement. Defendant was given an oral Miranda advisement, and then he signed a written form acknowledging that he understood those rights and was willing to voluntarily speak with the detective.
T70 After receiving the Mirando advisement, defendant explained the shots he fired. He said that, originally, his gun had been under the couch on the floor. When he saw his brother trying to shut the door, he turned around, grabbed the gun, and fired toward the intruders. He also indicated that the gun he fired was now in his bedroom and that there was an additional pistol and ammunition in his bedroom. He said that his handgun was under the couch because he had just finished cleaning it. He also said he possessed guns in the house because people had tried to break in and had kicked in his door. Additionally, defendant admitted that he had approximately fifteen ounces of mari
8. Miranda Analysis
171 "To protect a suspect's Fifth Amendment right against self-inerimination, Miranda prohibits the prosecution from introducing in its case-in-chief any statement, whether inculpatory or exculpatory, procured by eustodial interrogation, unless the police precede their interrogation with certain warnings." Effland v. People, 240 P.3d 868, 873 (Colo.2010) (citing Miranda, 384 U.S. at 444, 86 S.Ct. 1602). Miranda protections apply only when a suspect is subject to both custody and interrogation. Id. ©
172 Whether a suspect is in custody for Miranda purposes is a question of law that we review de novo. Id. To determine whether a suspect has been subjected to custodial interrogation, we consider " 'whether a reasonable person in the suspect's position would believe himself to be deprived of his freedom of action to the degree associated with a formal arrest!" Id. at 874 (quoting People v. Hankins, 201 P.3d 1215, 1218 (Colo.2009)). In making this determination we consider whether, under the cireumstances surrounding the interrogation, a reasonable person would have felt free to terminate the interrogation and leave. Id. For Miranda purposes, "interrogation" includes express questioning as well as its functional equivalent, that is, "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." People v. Rivas, 13 P.3d 315, 319 (Colo.2000) (citing Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980)).
178 First, we conclude Miranda warnings were not required before the officer received defendant's statement at the seene of the shooting. The officer requested the statement from defendant to further the on-seene investigation. The officer testified that he was aware of defendant's emotional state and attempted to be "sensitive" in speaking with defendant, and that he informed defendant he was not under arrest or otherwise in custody. The trial court credited the officer's testimony, and we agree with the trial court that defendant was not in custody when he provided a statement at the scene of the shooting. >
174 Second, as to the statements defendant made to the detective at the police department, we perceive no Miranda violation. The interviews were conducted for the purpose of furthering the investigation, and defendant was not placed under arrest or restrained prior to being interviewed. The video-recording of the initial interview with the detective reveals that the detective did not accuse defendant of committing a erime. Rather, he asked defendant for his account of the events surrounding the shooting. The detective did not threaten or intimidate defendant and spoke in a calm and conversational tone. We conclude that, under the cireumstances presented here, defendant was not in custody for purposes of Miranda prior to being given his Miranda advisement. See Mumford v. People, 2012 CO 2, ¶ 21, 270 P.3d 958 (concluding the defendant was not in custody where "at the time of his questioning, there was nothing to indicate that [the defendant] was ultimately going to be arrested rather than simply detained temporarily during a search focused primarily on someone else" (internal quotation marks omitted)); see also Matheny, 46 P.3d at 467-68.
175 Third, regarding defendant's contention that the trial court should have suppressed his incriminating statements under Seibert, we disagree.
176 Certain interrogation techniques can render Miranda warnings ineffective. People v. Lucas, 232 P.3d 155, 160 (Colo. App.2009). In Seibert, police officers interrogated the defendant, but deliberately delayed advising her of her Miranda rights until after she confessed to certain crimes. 542 U.S. at 605-04, 124 S.Ct. 2601. The officers then provided a Mirando advise ment, obtained a waiver, and continued to question her until she repeated the earlier incriminating statements. Id. The object of this technique, which then enjoyed some popularity, see id. at 610-11, 124 S.Ct. 2601, was
177 However, as the trial court found, the interviews here were not the sort of interviews disapproved by Seibert Here, the pre-Miranda conversations did not occur during custodial interrogation and defendant _ did not admit to possessing marijuana before he received a Miranda warning, Thus, unlike in Seibert, the information defendant provided prior to receiving a Miranda advisement was not necessarily incriminating. When defendant began to make potentially incriminating remarks, the detective promptly provided a Miranda warning. Hence, the type of "midstream" warning that was deemed ineffective in Seibert did not occur in this case.
T78 We therefore agree that defendant's pre-Miranda statements did not invalidate the subsequent Miranda advisement.
4, Voluntariness Analysis
T 79 Defendant also argues that the police exploited his mental and physical condition, and, thus, his statements were involuntary and should have been suppressed. We perceive no due process violation.
180 "Under the due process clauses of the United States and Colorado Constitutions, a defendant's statements must be made voluntarily in order to be admissible into evidence." Effland, 240 P.3d at 877. "To be voluntary, a statement must be 'the product of an essentially free and unconstrained choice by its maker.)" Id. (quoting People v. Raffaelli, 647 P.2d 230, 234 (Colo. 1982)). A confession or inculpatory statement is voluntary unless coercive police conduct played a significant role in inducing the statement. Id. Coercive police conduct includes physical abuse, threats, and subtle forms of psychological coercion. Id. "The focus of the voluntariness question is whether the behavior of the State's law enforcement officials was such as to overbear [the defendant's] will to resist and bring about confessions not freely self-determined-a question to be answered with complete disregard of whether or not the [defendant] in fact spoke the truth'" Id. (quoting Rogers v. Richmond, 365 U.S. 534, 544, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961)). f
181 In determining whether a statement is voluntary, courts consider the totality of the cireumstances. The prosecution bears the burden of establishing the voluntariness of the defendant's statement by a preponderance of the evidence. Id. at 878. "A trial court's findings of fact on the volun-tariness of a statement will be upheld by this court on review where the finding is supported by adequate evidence in the record." Id. "However, the ultimate determination of whether a statement is voluntary is a legal question and is reviewed de novo." Id,.
182 Here, defendant. contends that the detective used psychological intimidation to coerce him into making incriminating statements. He argues that "[the detective] deliberately exploited [his] emotional and psychological vulnerability-having just watched his daughter die-by psychologically intimidating him into making incriminating statements regarding his marijuana sales and gun possession." We conclude, however, that the detective did not engage in coercive conduct.
183 In Effland, the Colorado Supreme Court held that "the deliberate exploitation of a person's weakness by psychological intimidation can under some cirenmstances constitute a form of governmental coercion that renders a statement involuntary." 240 P.3d at 877. In that case, police officers interrogated the defendant, who was suffering from extreme depression, in his hospital room after a failed suicide attempt that resulted in the deaths of his wife and daughter. The court determined that the conduct of investigating officers was sufficient to overbear the defendant's will to resist, thereby rendering his statements involuntary, The investigating officers' continued questioning in the face of the defendant's invocation of his rights to remain silent and to counsel was of particular significance in reaching this determination. Id.
" 85 The video-recordings of the interviews show that the detective did not engage in conduct designed to exploit defendant's vulnerable state or intimidate him into making incriminating statements. The detective's manner throughout the interviews was calm and conversational and he did not brandish 2. weapon, raise his voice, make threats, or invade defendant's personal space. Defendant was lucid and alert throughout the interviews. When he was advised pursuant to Mirando, he voluntarily waived his rights. Finally, he did not ask to end the questioning or to speak with counsel, even after he was informed orally and in writing, through his Miranda advisement, that he had the right to do so. Accordingly, under the cireum-stances presented here, we conclude that defendant's statements during his initial interview with the detective, and interviews on subsequent dates, were not the product of government coercion.
[86 In sum, given the totality of the circumstances, we are satisfied that defendant's statements to Iaw enforcement officers were given deliberately and freely. See People v. Miranda-Olivas, 41 P.3d 658, 661 (Colo. 2001) ("Ultimately, the test of voluntariness is whether the individual's will has been overborne."). Therefore, we conclude that the trial court did not err in denying the motion to suppress.
B. Juror Challenge
187 We next consider whether the trial court erred in denying defendant's causal challenge to a juror who worked as a Denver Post reporter. We conclude that it did not.
1. Facts
11 88 Mr. I, a potential juror, indicated in a" juror questionnaire that he worked as a reporter for the Denver Post and had read extensively about the case and "overheard colleagues talking about the case and perhaps joined in those conversations." In addition, he responded "Yes" to a question that asked, "Do you believe there is any other reason why you cannot be a fair juror in this criminal case?" He explained in writing, "As a general assignment reporter, I often interact with members of the Denver Police Dept. [and] the Denver DA’si office."
89 The court conducted an in chambers voir dire with several potential jurors, including Mr. I, whose responses raised concerns regarding their ability to be impartial,. The court asked Mr. I about his familiarity with the facts of defendant's case and whether he could listen to the evidence as presented and determine what happened. Mr. I responded:
MR. I:; Okay. Well, my understanding from reading the newspaper, from listening to the reports and talking to colleagues or at least overhearing colleagues is that the defendant was possibly dealing drugs. That there was an incident where 'some folks came into his house. As a result of that there was a shoot out. The defendant's little girl somehow got caught in the crossfire and was hit. And there may have been, if I'm recalling correctly, something found on her. She was holding something, possibly a bag of marijuana.
THE COURT: Okay. Anything about those facts, those understandings as you've just recited them, that would cause you any prejudice or bias either for the People or for [defendant] one way or the other?
*896 MR. I: Well, those facts as I just repeated them certainly don't sound good for the defendant. But that's sort of the purpose of the trial is to figure out what actually happened.
THE COURT: Okay. And so you think you would be in a position to be able to listen to the evidence as it is presented and determine what happened?
MR. I: Sure, I would certainly do my best.
T 90 Mr. I also discussed how his relationship with law enforcement agencies might affect his job as a newspaper reporter. He indicated that "being in the good graces of the DA or the police department" would be helpful, but that this would not affect his approach to serving as a juror:
If I were on the jury I would need to take the duty seriously. So absolutely to my best I would not think about those things. But I think it could create an awkward situation.
Defense counsel further explored Mr. I's relationship with the police and prosecutors, questioning whether the "awkward situation" would make Mr,. I uncomfortable during the trial Mr. I admitted that it would be "concerning," but stated that if he were on the jury, he would do his best to listen to the facts and to make the right decision. He also clarified that potential awkwardness would be more likely to occur after trial rather than during trial.
T91 Finally, defense counsel questioned whether the awkward situation would cause Mr. I to have doubts about his ability to decide this case based on its facts and evidence and the law as instructed by the judge. Mr. I responded:
Well, again, if I were placed on the jury, I would certainly-I would take it seriously, and I would do my absolute best. I think that might be something that would stick in the back of my mind. It is not to say I couldn't put it out.
DEFENSE COUNSEL: I'm not questioning that you would try your best or that you didn't take it seriously. Does this awkward situation make it such that you didn't want to serve on this jury?
MR. I: Yeah.
192 After this response, defense counsel moved to excuse Mr. I for cause:
[Mr. I] doesn't want to be on this jury because of the adverse impact he is afraid it is going to have on his profession. He is going to have his own paper watching him perform on the jury. He already said that the dynamics of this favor his convicting our client unless he's able to disregard this awkward situation.
193 The court brought Mr. I back in for further questioning about the pressure he might feel as a result of his job. Mr. I assured the court that he would not provide inside information about the case to other reporters. The court then denied the challenge for cause, noting, "(hle was pretty clear that if he's chosen to sit on this jury he'll do what the law requires and if there are consequences he'll deal with them." The following day, defense counsel renewed the challenge and the court denied the challenge a second time. Defense counsel used a peremptory challenge to excuse Mr. I and ultimately exhausted all of his peremptory challenges.
2. Law .
$94 Section 16-10-108(1)(), requires a trial court to sustain a challenge for cause if a juror's state of mind evinces enmity or bias toward the defendant or the state. Similarly, Crim. P. 24(b)(1)(X) requires disqualification of a juror if his or her state of mind manifests a bias for or against either side, unless the court is satisfied that the juror will render an impartial verdiet based solely upon the evidence and instructions of the court. See Morrison v. People, 19 P.8d 668, 672 (Colo.2000); People v. Shreck, 107 P.8d 1048, 1057 (Colo.App. 2004). A prospective juror who makes a statement that may evince bias: may sit on the jury so long as he or she agrees to set aside any preconceived notions and decide the case based on the evidence and the court's instructions. Carrillo v. People, 974 P.2d 478, 487 (Colo.1999).
195 Because the trial court is in a better position than a reviewing court to evaluate a potential juror's credibility, demeanor, and sincerity in explaining his or her state of mind, we will overturn its decision concerning a challenge for cause only upon an affirmative showing by the defendant that the
8. Analysié
$96 On appeal, defendant argues that the trial court abused its discretion in denying the causal challenge to Mr, I because: (1) Mr. I's questionnaire response and statements indicated he believed the defendant was guilty and that he could not be a fair and impartial juror and (2) his job as a Denver Post reporter made him reliant on Denver police and district attorneys and would impact his ability to serve. He also contends that, when combined, these factors required the court to disqualify him for cause.
T97 We conclude that the trial court did not abuse its discretion in denying defendant's challenge for cause. Although Mr. I's responses on the questionnaire may have initially raised questions about his ability to be fair and impartial, the record as a whole supports the trial court's decision to deny defendant's challenge.
1 98 Initially, we reject defendant's contention that the court erred in refusing to dismiss Mr. I because he "never agreed to set aside his preconceived belief [defendant] was guilty, and he never repudiated his belief he could not be a fair and impartial juror." First, defendant has not established that Mr. I held a preconceived belief that defendant was guilty. Mr. I's statement that the facts "certainly don't sound good for the defendant" does not necessarily suggest that he believed defendant was guilty,. Second, he assured the court that he would do his best to listen to the evidence as it is presented and determine what happened, and that he would take his duty as a juror seriously. These responses were sufficient to support the trial court's finding that he could be fair and impartial. See People v. Samson, 2012 COA 167, ¶¶ 21-22, 302 P.3d 311 (court acted within its discretion in denying the defendant's challenge for cause, where juror affirmed that he would give the defendant a "'fair shake'" and would do his " 'best to be fair and impartial and listen to the evidence in its totality' "); see also Morrison, 19 P.3d at 673 (denial of for-cause challenge of a juror who was allegedly predisposed to find the defendant guilty was not an abuse of discretion because none of the juror's statements "suggests that she would be unable to afford the defendant the presumption of innocence or that she would fail to render her verdict based on the evidence"); cf. People v. Hancock, 220 P.3d 1015, 1016 (Colo.App. 2009) ("[DJenials of challenges for cause have been reversed where prospective jurors have made statements demonstrating bias and there are no other statements in the record that would permit the reviewing court to affirm based on deference to the trial court's assessment of unclear or ambiguous respons-eg.").
199 As to defendant's claim that Mr. I's relationship with the Denver police department and prosecutors created a bias in favor of the People, again, we are not persuaded. Here, Mr. I indicated that serving on the jury may be "awkward" due to his professional relationship with law enforcement agencies, but also stated, "if I were placed on the jury, I would certainly-I would take it seriously, and I would do my absolute best." Regarding the awkward situation, he stated, "I think that might be something that would stick in the back of my mind. It's not to say I couldn't put it out." In response to a question regarding the potential chilling effect that serving on the jury may have on his professional relationships, Mr. I stated that he would listen to the facts and "make the right decision, you know, irregardless of that situation."
1100 These statements were sufficient to support the court's finding that he could "do what the law requires" and would deal with any consequences of his relationship with law enforcement agencies. See People v. Blessett, 155 P.3d 388, 393 (Colo.App.2006) (denial of challenge for cause not abuse of discretion where, although prospective juror's statements evinced a belief that police officers were more credible than other witnesses, he indicated that he could decide the
1 101 In sum, because the record supports the trial court's decision to deny the challenge for cause, we perceive no error.
C. Evidence of Uncharged Conduct
{102 Defendant next contends that the trial court erred when it admitted, as res gestae, (1) defendant's statements concerning his prior acts of buying, selling, and receiving marijuana; and (2) defendant's wife's testimony regarding marijuana and weapons in their home. He urges that, instead, the evidence should have been analyzed pursuant to CRE 404(b). To illustrate the harm caused by the court's error, defendant argues that admission of the res gestae evidence caused the jury to submit a question during deliberations seeking clarification of the offense date, and further argues that the court's response to the question was erroneously ambiguous and confusing. We perceive no error.
' 103 We review a trial court's decision to admit evidence of other acts for abuse of discretion. See Yusem v. People, 210 P.3d 458, 463 (Colo.2009); People v. Jimenez, 217 P.3d 841, 864 (Colo.App.2008). We will disturb its. ruling on appeal only if the ruling was manifestly arbitrary, unreasonable, or unfair. Yusem, 210 P.3d at 463; Jimenez, 217 P.3d at 864.
$104 Under CRE 404(b), evidence of other crimes, wrongs, or acts is inadmissible to prove a bad character trait and conformity therewith, but may be admitted to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Courts consider the admissibility of CRE 404(b) evidence under the four-part test set forth in People v. Spoto, 795 P.2d 1314, 1318 (Colo.1990). Courts ask whether the prior act (1) relates to a material fact in the case; (2) is logically relevant; (8) is relevant independent of an inference relying on bad character; and (4) has probative value that is not substantially outweighed by the danger of unfair prejudice. Id.; see also Yusem, 210 P.3d at 463.
«(105 Prior acts by a defendant may also be admissible as res gestae evidence, which is evidence "that helps 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. Skufca 176 P.3d 83, 86 (Colo.2008) (quoting People v. Quintana, 882 P.2d 1366, 1373 (Colo.1994)). Generally, res gestae evidence is linked in time and cireumstance to the charged crime; it is admissible to explain " 'the events surrounding the crime and the context in which the charged crime occurred.!" People v. Thomeczek, 284 P.3d 110, 114 (Colo.App. 2011) (quoting People v. Lucas, 992 P.2d 619, 624. (Colo.App.1999)). As with other evidence, the res gestae evidence must be relevant and its probative value must not be substantially outweighed by the danger of unfair prejudice. CRE 401, 403; People v. Gladney, 250 P.3d 762, 768 (Colo.App.2010). However, the additional procedural protections for CRE 404(b) evidence, articulated in Spoto, do not apply to res gestae evidence. See Thomeczek, 284 P.3d at 114 (citing People v. Czemerynski, 786 P2d 1100, 1109 (Colo.1990)).
° We perceive no abuse of dis-. cretion in the trial court's decision to admit the evidence of defendant's prior possession of drugs, prior drug deals, and prior possession of a weapon as res gestae. Defendant was charged with reckless child abuse and possession with intent to distribute marijuana. He was also charged as a special offender on the basis that he possessed a deadly weapon during the commission of and in connection with the drug offense.
107 The child abuse charge required the prosecution to prove that defendant recklessly permitted his daughter to be unreasonably
(108 Evidence of defendant's activities and knowledge relative to the distribution of drugs and possession of weapons is related to defendant's knowledge and intent to distribute the marijuana and his possession of a deadly weapon in connection with that offense. The evidence also related to the dangerous cireumstances in which defendant allowed his daughter to live. Thus, the evidence of defendant's other dealings with marijuana and weapons helped explain the events surrounding the crimes and the context in which the charged crimes occurred. See Quintama, 882 P.2d at 1373; Skufca, 176 P.3d at 86 (in possession with intent to distribute case, evidence of the defendant's prior drug transactions was admissible as res gestae because it "helped give the jury a more complete understanding of the events surrounding the crime"); People v. Merklin, 80 P.3d 921, 924-25 (Colo.App. 2008) ("Evidence of criminal conduct that occurs contemporaneously with or is part and parcel of the crime charged is considered part of the res gestae of that offense, and consequently is not subject ... to the general rule that excludes evidence of prior criminality." (mternal quotation marks omitted)).
£109 Even assuming that the evidence should have been analyzed as other bad acts under CRE 404(b), the court here provided the basic CRE 404(b) protections. Prior to the admission of the evidence, the court instructed the jury not to use the other act evidence to assess defendant's character, but to consider it only for limited purposes for which it was offered, namely, to show (1) the circumstances and 'environment that were present in the home; (2) proof of defendant's intent to distribute marijuana that was found in his home; and (8) defendant's reaction to events prior to November 26, 2007, which may have led up to the November 26, 2007 events, Additionally, the written jury instructions included an instruction as to the use of evidence admitted for a limited purpose.
110 We also conclude that the probative value of this evidence outweighed any potential for unfair prejudice, and that prejudice was mitigated by the trial court's limiting instructions, -
$111 Next, we address and reject defendant's assertion that the admission of the evidence of defendant's prior drug dealing triggered an erroneous response to a jury question during deliberations regarding the special offender charge.
€ 112 During deliberations, the jury asked the court the following question:
(1) Is the charge of having a deadly weapon in conjunction with possession with intent to distribute marijuana isolated solely to the date of Nov, 26, 2007, and/or including incidents, prior? : If not, there is discrepancy between the verdict forms because it does not list a date on the verdict form, and yet a date is listed in instruction 29.
[ 113 The defense proposed that the court respond by providing: (1) "Yes, the date of offense for the charge referred to in Instruction 29 is limited to November 26, 2007: See instruction 26." Instead, the court gave the jury a written response that said:
Regarding [question 1], your deliberations, and verdicts concern the incidents of November 26, 2007. In making these determinations and reaching your verdicts regarding the events of November 26, 2007 you may consider any evidence received or admitted during the trial. Please refer to the third paragraph of instruction #1 as well as all other instructions. -
[[ 114 The third paragraph of Instruction 1 provided: "During the course of the trial you received all of the evidence that you may properly consider to decide the case. Your decision must be made by applying the rules of law which I give you to the evidence presented at trial Neither sympathy nor prejudice should influence your decision."
1115 A trial court must instruct the jury correctly on all matters of law, People v.
1 116 On appeal, defendant asserts that the court's written response improperly instructed the jury that it could consider and convict defendant based on his conduct on dates other than the offense date. We are not persuaded.
{117 The court's response informed the jury that its deliberations and verdicts concerned the incidents of November 26, 2007. The response also noted that the jury could consider any evidence presented at trial in reaching its verdicts. The response, when read as a whole with the other instructions provided to the jury, adequately informed the jury of the law. See Gallegos, 226 P.3d 1112." Thus, we perceive no error.
IV. Conclusion
€118 The judgment and sentence are affirmed.
. Section 18-18-407(1)(f) was enacted in 1992 and remained unchanged until 2010. Because the events in this case took place prior to 2010, the 2010 amendments to the special offender statute are irrelevant to this appeal. See People v. Warner, 251 P.3d 556, 566 (Colo.App.2010) (the 2010 amendment to section 18- 18—407(1)(f) does not apply retroactively).
. Although defendant provides a proposed elemental instruction in his opening brief to this court, he did not provide such an instruction to the trial court. ~
, Because we conclude that defendant had no Second Amendment right to possess a gun in connection with a felony drug offense, we need not decide whether strict scrutiny or intermediate scrutiny would apply. See United States v. Reese, 627 F.3d 792, 800-01 (10th Cir.2010) (recognizing two-step inquiry suggested by He/ ler: courts first determine whether a challenged law burdens conduct falling within the scope of the Second Amendment, and if so, then evaluate the law under the approprlate form of means-end scrutiny). B
. Courts have questioned status-based restrictions on the right to bear arms, unless the status supports some danger in the possession of a weapon. See, e.g., Fletcher v. Haas, 851 F.Supp.2d 287, 303 (D.Mass.2012) (finding unconstitutional a firearms regulatory scheme that granted firearms permits only to "citizens" and not to lawful permanent resident aliens); see also United States v. Booker, 644 F.3d 12, 24 n.13 (1st Cir.2011) (noting "substantial debate among scholars" concerning "historical pedigree of laws disarming those convicted of a crime").