People v. Leverton

COLORADO COURT OF APPEALS 2017COA34
Court of Appeals No. 15CA0050
El Paso County District Court No. 13CR123
Honorable Robert L. Lowrey, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Randall Eric Leverton,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE BERGER
Dailey and J. Jones, JJ., concur
Announced March 23, 2017
Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Katayoun A. Donnelly, Alternative Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1 A jury convicted defendant, Randall Eric Leverton, of theft by
receiving and possession of drug paraphernalia. He appeals,
contending the trial court erred by (1) joining the two offenses in a
single trial and not allowing him to plead guilty to the
paraphernalia charge before joining them and (2) admitting into
evidence two witnesses’ prior inconsistent statements. He also
contends that the evidence is insufficient to support his convictions.
We address and reject these contentions and affirm.
I. Relevant Facts and Procedural History
¶2 On a cold evening, the victim started her car and left it
running while she collected some belongings from inside her home.
She returned to where the car had been parked a few minutes later
and saw that the car was gone. She immediately reported the theft
to the police.
¶3 A few days later, a police officer pulled over the stolen car.
Leverton was seated in the front passenger side of the car, another
man was driving, and two women were in the back seat. When
asked who owned the car, Leverton told the officer that it belonged
to his girlfriend, the victim. The victim later testified at trial that
she did not know and had never met Leverton.
1
¶4 The officer searched the vehicle and discovered several small
baggies which he suspected contained cocaine and
methamphetamine. All four passengers were patted down,
arrested, and transported to the police station.1
¶5 Leverton and the other man were transported in the same
police vehicle. One of the transporting officers testified at trial that
while the other man apparently slept during the drive to the police
station, Leverton, who was handcuffed, “started moving around in
the seat, kind of bending over and just acting not normal.” After
removing Leverton from the vehicle, the officer searched the back
seat and discovered a type of pipe commonly used to smoke
methamphetamine.
¶6 Based on the discovery of the pipe, Leverton was charged with
possession of drug paraphernalia, a petty offense under section
18-18-428(2), C.R.S. 2016. Approximately two weeks later, in a
separate case filed in the same judicial district, Leverton was
1 Leverton was not charged with any crimes associated with the
officer’s discovery of these drugs.
2
charged with theft by receiving, a felony under section 18-4-410(1),
(4), C.R.S. 2012.2
¶7 The day before trial on the felony theft charge, the prosecution
moved to amend the complaint to join the paraphernalia charge and
dismiss the petty offense case. Leverton’s counsel objected, stating
that his client intended to “enter a straight guilty plea” to the
paraphernalia charge, and then move to dismiss the felony case “for
failure to join.” The court granted the prosecution’s motion, stating
that the prosecution’s dismissal of the paraphernalia case and the
amendment of the complaint in the felony case “in fact, does join
[the petty offense case] into [the felony case]” and dismissed the
petty offense case because “it doesn’t have a count anymore.”
Leverton pleaded not guilty to both charges.
¶8 At trial, the two women in the back seat of the stolen car
testified under subpoena. Both women testified that, due to drug
use, they could not remember the events of that night, nor could
they remember making any statements to the police. The
prosecutor questioned both women based on oral statements they
2Section 18-4-410 has since been repealed, effective June 5, 2013,
and consolidated with the general theft statute, section 18-4-401,
C.R.S. 2016.
3
allegedly had made to the police following their arrests. For
instance, the prosecutor asked one of the women, “Do you recall
telling [the police] that Mr. Leverton had had the vehicle for several
days and that someone had given it to him?”
¶9 Leverton’s counsel objected to these questions because he
argued that they “essentially just end up being testimony via the
question itself, particularly when the witness has testified she has
no recollection.” The court ruled that the questions were proper
impeachment questions. The witnesses’ oral statements later were
admitted into evidence over Leverton’s objection through the
testimony of the two police officers to whom the witnesses made
their statements.
¶ 10 The jury convicted Leverton as charged and the trial court
sentenced him to three years of probation and forty-eight hours of
useful public service.
II. Joinder of the Theft and Paraphernalia Charges
¶ 11 Leverton argues that the trial court erred when it rejected his
guilty plea on the paraphernalia charge and then permitted the
prosecution to add that charge to the complaint. He claims that the
trial court’s actions violated Colorado’s mandatory joinder statute,
4
section 18-1-408, C.R.S. 2016, as well as the Double Jeopardy
Clauses of both the United States and Colorado Constitutions. We
reject these arguments.
¶ 12 The Attorney General argues that because Leverton did not
object to the procedure for joining the offenses, but only requested
that the trial court accept his guilty plea prior to joining them, his
claims should be reviewed only for plain error. We need not decide
whether Leverton preserved these claims because we perceive no
error, plain or otherwise. Cf. Marshall v. People, 2013 CO 51, ¶ 15
n.5 (declining to address whether the defendant preserved a
Confrontation Clause challenge because there was no confrontation
error).
¶ 13 The mandatory joinder statute “seeks to prevent vexatious
prosecution and harassment of a defendant by a district attorney
who initiates successive prosecutions for crimes which stem from
the same criminal episode.” People v. Talarico, 192 Colo. 445, 446,
560 P.2d 90, 91 (1977); see § 18-1-408(2). The statute requires
that all such offenses known to the prosecutor which were
committed in the same judicial district must be prosecuted by
separate counts in a single prosecution. § 18-1-408(2). Any offense
5
not joined “cannot thereafter be the basis of a subsequent
prosecution[.]” § 18-1-408(2).
¶ 14 Whether a trial court properly joined multiple offenses under
the mandatory joinder statute presents a mixed question of law and
fact. See People v. Marshall, 2014 COA 42, ¶ 19 (applying the
“mixed question of law and fact” standard of review to the question
whether a trial court properly dismissed a criminal case under the
mandatory joinder statute). The trial court’s interpretation of the
joinder statute is a question of law we review de novo, People v.
Garcia, 2016 COA 124, ¶ 6, but we defer to factual findings
supported by the record, People v. Marshall, ¶ 19.
¶ 15 Leverton argues that the trial court erred in refusing to accept
his guilty plea in the paraphernalia case and in granting the
prosecution’s motion to amend the theft complaint because the
result was that he was effectively charged in two separate cases
with the same offense. He insists that “the only way the
prosecution could go forward with charging [him] for both charges
was to file a motion to join the two cases before the trial.”
(Emphasis added.)
6
¶ 16 We conclude, as did the trial court, that while the
prosecution’s motion was styled as a motion to amend, it was
effectively a motion to join the two offenses. In Jeffrey v. Dist. Court,
626 P.2d 631, 638-39 (Colo. 1981), the supreme court held that
“section 18-1-408(2) does not prohibit the court from permitting the
district attorney to add to a criminal information other counts that
arise from the same criminal episode as the original count so long
as the additional counts are filed prior to the jeopardy stage of the
prosecution.” That holding is dispositive here; the prosecution
moved to join the offenses prior to Leverton’s attempt to plead guilty
to the paraphernalia charge. See Jeffrey, 626 P.2d at 636.
¶ 17 Moreover, irrespective of whether the procedure utilized by the
court complied strictly with the mandatory joinder statute, it
nevertheless met the statute’s purpose of preventing successive
prosecutions. Leverton points to no unfair prejudice resulting from
the procedure used.
¶ 18 The court also did not abuse its discretion in rejecting
Leverton’s guilty plea. Trial courts have discretion to accept or to
reject a guilty plea because “[t]here is no absolute right to have a
7
guilty plea accepted.” People v. Jasper, 17 P.3d 807, 812 (Colo.
2001) (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)).
¶ 19 Had the court accepted Leverton’s guilty plea on the
paraphernalia charge prior to joining the two offenses, the
mandatory joinder statute may have prohibited prosecution of the
felony theft charge. Indeed, Leverton expressly sought to plead
guilty to the paraphernalia charge — a petty offense — for the
purpose of preventing prosecution of the felony charge. While
neither this court nor the supreme court has addressed such an
attempt to manipulate the criminal justice system to escape
additional charges, courts in other jurisdictions have squarely
rejected it.
¶ 20 In State v. Turner, 980 P.2d 1188, 1190 (Utah Ct. App. 1998),
the Utah Court of Appeals held that the trial court abused its
discretion when it accepted the defendant’s guilty plea on a traffic
violation because doing so effectively nullified the state’s right to
prosecute the defendant on the more serious charge of negligent
homicide.
¶ 21 The Wisconsin Supreme Court similarly held that the trial
court did not err in rejecting a defendant’s guilty plea when the
8
defendant intended to “create a situation of double jeopardy” to
protect himself from additional charges. State v. Waldman, 203
N.W.2d 691, 693 (Wis. 1973).
¶ 22 And in Newsome v. State, 797 N.E.2d 293, 298 (Ind. Ct. App.
2003), the Indiana Court of Appeals held that “a trial court does not
abuse its discretion in rejecting a guilty plea where the court
reasonably could have concluded that the request was a ‘ruse’
intended to manipulate the system.”
¶ 23 Consistent with these cases, and in view of society’s interest in
maintaining the integrity of the criminal justice system, People v.
Wiedemer, 852 P.2d 424, 440 (Colo. 1993), we conclude that the
court acted within its discretion when it rejected Leverton’s guilty
plea to the petty offense.
¶ 24 Finally, we reject Leverton’s argument that his constitutional
right to be free from double jeopardy was somehow violated when
the theft and paraphernalia charges were joined. The Double
Jeopardy Clauses comprise “three separate but related prohibitions:
(1) a rule which bars a reprosecution for the same offense after
acquittal; (2) a rule barring reprosecution for the same offense after
conviction, and; (3) a rule barring multiple punishment[s] for the
9
same offense.” People v. Henderson, 810 P.2d 1058, 1060 (Colo.
1991) (citation omitted). Leverton does not allege that he was
reprosecuted for either the paraphernalia or theft offense after he
was convicted, or that he was sentenced or otherwise punished
multiple times for those offenses.
¶ 25 Moreover, double jeopardy protection does not attach until the
jury has been impaneled and sworn (or, in a bench trial, when the
first witness is sworn), or when the trial court accepts the
defendant’s guilty plea. Jeffrey, 626 P.2d at 636. Because the
court had not accepted Leverton’s guilty plea on the paraphernalia
charge (which, as we have concluded above, was appropriate under
these circumstances), double jeopardy had not attached, and there
was no double jeopardy violation.
III. Admission of Prior Inconsistent Statements
¶ 26 Leverton next argues that the trial court erred in permitting
the prosecution to examine two witnesses about their prior
statements to the police. He asserts that the prosecutor’s questions
exposed the jury to inadmissible evidence and violated his
confrontation rights. These arguments ignore well-established case
law and we reject them.
10
A. Admissibility Under CRE 613 and
Section 16-10-201, C.R.S. 2016
¶ 27 Generally, we review a trial court’s evidentiary rulings for an
abuse of discretion. People v. Tyme, 2013 COA 59, ¶ 8. But when a
defendant asserts that the trial court’s evidentiary rulings violated
his confrontation rights, we review de novo. People v. Brown, 2014
COA 155M-2, ¶ 18.
¶ 28 CRE 613(a) authorizes impeachment by prior inconsistent
statement “[w]here the witness denies or does not remember
making the prior statement[.]” To do so, “the examiner must call
the attention of the witness to the particular time and occasion
when, the place where, and the person to whom he made the
statement” and may give “[t]he exact language of the prior
statement.” CRE 613(a).
¶ 29 Similarly, section 16-10-201(1), C.R.S. 2016, provides as
follows:
Where a witness in a criminal trial has made a
previous statement inconsistent with his
testimony at the trial, the previous
inconsistent statement may be shown by any
otherwise competent evidence and is
admissible not only for the purpose of
impeaching the testimony of the witness, but
also for establishing a fact to which his
11
testimony and the inconsistent statement
relate, if . . . [t]he witness, while testifying, was
given an opportunity to explain or deny the
statement or the witness is still available to
give further testimony in the trial; and . . . [t]he
previous inconsistent statement purports to
relate to a matter within the witness’s own
knowledge.
Under the statute, a witness’s inability to remember a statement “is
tantamount to a denial that [s]he made the statement.” People v.
Baca, 633 P.2d 528, 529 (Colo. App. 1981) (citing People v. Pepper,
193 Colo. 505, 568 P.2d 446 (1977)). The same result obtains
under the express language of CRE 613.
¶ 30 Both women testified that they did not remember what
happened the night the stolen car was pulled over, nor did they
remember any statements they made to the police. To impeach the
witnesses, the prosecutor was entitled to confront them with the
exact language of their prior statements. CRE 613. Indeed, under
section 16-10-201(1)(a), the prosecutor was required to give the
witnesses “an opportunity to explain or deny the statement[s]” prior
to introducing evidence of those statements for purposes of
impeachment or to prove a matter related to the statement.
12
¶ 31 Leverton argues that because the witnesses testified that they
did not recall making any statements to the police, they effectively
did not testify, and therefore their prior statements were not
admissible as inconsistent with their testimony. But this argument
was squarely rejected in Baca. In that case, the witness testified
that he did not remember the testimony he gave in a prior trial, nor
did he remember the facts underlying his statements at the prior
trial. Baca, 633 P.2d at 529. This court held the witness’s
testimony that he could not remember was inconsistent with his
prior testimony, and therefore his prior testimony was admissible
under section 16-10-201.
¶ 32 We believe that Baca was correctly decided and we apply it
here. Because both witnesses’ testimony amounted to a denial that
they made the statements to the police, the prosecution was
entitled to impeach the witnesses with the statements, and the
court properly admitted those statements. See also People v.
Thomas, 2014 COA 64, ¶ 20 (applying Baca).
13
B. Confrontation Clause
¶ 33 We also reject Leverton’s related argument that admission of
the witnesses’ prior statements violated his right of confrontation
under the Sixth Amendment.
¶ 34 Out-of-court, testimonial statements by a declarant who is
unavailable to testify at trial are barred by the Confrontation Clause
unless the defendant had a prior opportunity to cross-examine the
declarant. Crawford v. Washington, 541 U.S. 36, 50 (2004).3
¶ 35 Leverton argues that when a witness claims to have no
memory of either the prior statements or the events that produced
those statements (or perhaps both), she is not “available” for cross-
examination within the meaning of the Confrontation Clause and
thus her prior statements are inadmissible. While Leverton
acknowledges that United States Supreme Court decisions have
rejected this argument, he nevertheless argues that these cases
3Leverton does not make a separate argument that the state
constitutional confrontation guarantee in article II, section 16 of the
Colorado Constitution provides greater protection than the Federal
Confrontation Clause, nor did he raise that argument in the trial
court. Consequently, we do not further address the Colorado
Constitution. People v. Ujaama, 2012 COA 36, ¶ 10 n.3.
14
have been silently overruled by Crawford. Our reading of Crawford
does not support this argument.
¶ 36 The Supreme Court addressed the effect of a witness’s memory
loss on a defendant’s right of confrontation in three pre-Crawford
decisions: California v. Green, 399 U.S. 149 (1970); Delaware v.
Fensterer, 474 U.S. 15 (1985); and United States v. Owens, 484 U.S.
554 (1988). Each of these cases rejected the argument that the
testifying witness was unavailable for confrontation purposes
because he or she suffered from some memory loss.
¶ 37 In Green, the witness had stated, in both a police interview
and at a preliminary hearing, that the defendant was his marijuana
supplier. 399 U.S. at 151. But at trial, the witness testified that he
could not remember how he had obtained the marijuana because
he was under the influence of drugs the day it was delivered. Id. at
151-52. Rejecting his Confrontation Clause challenge, the Court
concluded that “where the declarant is not absent, but is present to
testify and to submit to cross-examination, our cases, if anything,
support the conclusion that the admission of his out-of-court
statements does not create a confrontation problem.” Id. at 162.
15
¶ 38 In Fensterer, an expert witness presented his opinion at trial,
but could not recollect the basis of that opinion. The Court held
that because “[t]he Confrontation Clause includes no guarantee
that every witness called by the prosecution will refrain from giving
testimony that is marred by forgetfulness, confusion, or evasion,”
there was no Confrontation Clause violation. 474 U.S. at 21-22.
¶ 39 Finally, in Owens, the victim had been beaten with a metal
pipe, resulting in severe memory impairment. 484 U.S. at 556.
Despite these injuries, the victim identified the defendant as his
attacker. Id. At trial, however, the victim testified that while he
remembered telling the police who had attacked him, he had no
memory that the defendant was his attacker. Id. The defendant
argued that the victim’s loss of memory on this critical matter
rendered ineffective any cross-examination of the victim and that as
a result, he could not confront the witness in violation of his Sixth
Amendment confrontation right. Id. at 556-57. The Court rejected
this argument, holding that the defendant’s confrontation rights
were not violated because “[t]he Confrontation Clause guarantees
only ‘an opportunity for effective cross-examination, not cross-
examination that is effective in whatever way, and to whatever
16
extent, the defense might wish.’” Id. at 559 (citation omitted).
Because “the traditional protections of the oath, cross-examination,
and opportunity for the jury to observe the witness’ demeanor” were
satisfied, there was no Confrontation Clause violation. Id. at 560.
¶ 40 Leverton does not contend that Crawford expressly overruled
Owens and nothing in Crawford would support such a contention.
Instead, Leverton claims that several words buried in one of
Crawford’s footnotes silently overruled Owens.
¶ 41 Footnote nine of Crawford states as follows: “[t]he
[Confrontation] Clause does not bar admission of a statement so
long as the declarant is present at trial to defend or explain it.” 541
U.S. at 59 n.9 (emphasis added). From these italicized words,
Leverton argues that if a witness claims some memory loss, she
cannot “defend or explain” her prior statements and thus is
unavailable for confrontation purposes.
¶ 42 Virtually every court that has addressed this argument has
rejected it and has squarely held that the physical presence of the
witness at trial avoids any confrontation issue. See, e.g., State v.
Real, 150 P.3d 805, 807 (Ariz. Ct. App. 2007); State v. Pierre, 890
A.2d 474, 502 (Conn. 2006); People v. Bryant, 909 N.E.2d 391, 399
17
(Ill. App. Ct. 2009); Smith v. State, 25 So. 3d 264, 270 (Miss. 2009);
State v. Legere, 958 A.2d 969, 977 (N.H. 2008); Woodall v. State,
336 S.W.3d 634, 644 (Tex. Crim. App. 2011); Abney v.
Commonwealth, 657 S.E.2d 796, 802 (Va. Ct. App. 2008); State v.
Price, 146 P.3d 1183, 1191 (Wash. 2006).
¶ 43 Two courts have taken a more nuanced view. In Cookson v.
Schwartz, 556 F.3d 647, 651 (7th Cir. 2009), relying on footnote
nine’s language, the Seventh Circuit held that Crawford’s statement
that “when the declarant appears for cross-examination at trial, the
Confrontation Clause places no constraints at all on this use of his
prior testimonial statements” is not dispositive of whether a witness
suffering from total memory loss is “available” for confrontation
purposes. The court entertained the possibility that total, extreme
memory loss could render a witness unavailable for Confrontation
Clause purposes. Still, noting that the witness remembered at least
some of the underlying events described in her out-of-court
statements, the court concluded that the defendant had had “ample
opportunity to confront his accuser at trial,” and thus his
confrontation rights were not violated. Id. at 652.
18
¶ 44 The Mississippi Supreme Court relied on Cookson in
construing the Mississippi Constitution’s confrontation clause in
Goforth v. State, 70 So. 3d 174 (Miss. 2011). After the witness made
his statement to the police, but before the trial, he was injured in
an automobile accident that “substantially impaired his physical
and mental conditions,” and he testified that he “could not
remember anything that had occurred two years prior to the wreck.”
Id. at 182. The court, observing that the witness’s “total loss of
memory” was undisputed, held that the witness, “though physically
present at trial, did not have the requisite, minimal ability or
capacity” under the Mississippi Constitution to be cross-examined.
Id. at 186.4
¶ 45 This case does not require us to determine whether total
memory loss coupled with extreme physical disabilities could ever
4 Although Goforth v. State, 70 So. 3d 174 (Miss. 2011), analyzed
both Crawford v. Washington, 541 U.S. 36 (2004), and United States
v. Owens, 484 U.S. 554 (1988), its holding was predicated on the
Mississippi Constitution’s confrontation clause, not the federal
clause. As a result, it provides little, if any, support for the federal
constitutional argument made by Leverton.
19
render a witness unavailable under the Confrontation Clause and
we express no opinion on that question.5
¶ 46 Though both witnesses claimed at trial that they had no
memory of the night in question or of any of the statements they
made to the police, their actual trial testimony belied those claims.
Both witnesses testified that they remembered their car being
pulled over, that they remembered being arrested, and both were
able to identify who was in the car at the time. Thus, like in
Cookson, the witnesses were able to recall at least some of the
events underlying their statements to the police, and, unlike in
Goforth, neither witness suffered from “total loss of memory.”
¶ 47 Though Leverton claims that he could not effectively
cross-examine the witnesses, in fact he did so, emphasizing the
witnesses’ alleged drug-induced memory loss in an effort to
discredit their testimony. As the Court observed in Owens, 484
U.S. at 559, attacking a witness’s memory is often one of the prime
objectives of cross-examination. Leverton was able to do so in this
case and that dooms his Confrontation Clause argument.
5We note that the Supreme Court recognized such a possibility
both in California v. Green, 399 U.S. 149, 168-69 (1970), and
Delaware v. Fensterer, 474 U.S. 15, 20 (1985).
20
¶ 48 We also observe that a rule that a witness is unavailable for
Confrontation Clause purposes based entirely upon the witness’s
testimony that she suffers from memory loss is unworkable.
Memory loss may be real or feigned. It may be total or partial.
Sometimes lost memory may be refreshed in whole or in part. To
permit a witness to unilaterally control the admission into evidence
of the witness’s prior relevant statements merely by professing a
lack of memory is intolerable to the criminal justice system.
¶ 49 For similar reasons, we reject Leverton’s analogy of a witness’s
exercise of his Fifth Amendment right not to incriminate himself or
herself to a witness’s professed lack of memory.
¶ 50 These situations are not analogous. In the Fifth Amendment
context, the witness has a constitutional right not to testify; so long
as that Fifth Amendment right has not been waived, the right is
absolute. A court cannot overrule the exercise of the right on the
basis that the testimony is essential, and no inquiry into the
reasons for the exercise of the right is permissible (other than
whether testimony on the subject might tend to incriminate the
witness). People v. Razatos, 699 P.2d 970, 976 (Colo. 1985). Thus,
a witness who exercises her Fifth Amendment right not to testify is
21
unavailable for Confrontation Clause purposes. United States v.
Smalls, 605 F.3d 765, 776 (10th Cir. 2010). In contrast, the
availability inquiry in the memory loss context depends on a
multitude of factors beyond simply an assertion of constitutional
rights.
¶ 51 For all of these reasons, we hold that Leverton’s right to
confrontation was not violated.
IV. Sufficiency of the Evidence
¶ 52 Leverton argues that the prosecution did not present sufficient
evidence to prove beyond a reasonable doubt that he committed
theft or possessed drug paraphernalia. We disagree.
¶ 53 “The due process clauses of the United States and Colorado
Constitutions prohibit the criminal conviction of any person except
on proof of guilt beyond a reasonable doubt.” Kogan v. People, 756
P.2d 945, 950 (Colo. 1988), abrogated on other grounds by Erickson
v. People, 951 P.2d 919 (Colo. 1998). A reviewing court faced with a
sufficiency challenge must determine whether the relevant evidence,
both direct and circumstantial, when viewed as a whole and in the
light most favorable to the prosecution, is substantial and sufficient
to support a conclusion by a reasonable person that the defendant
22
is guilty of the charge beyond a reasonable doubt. Dempsey v.
People, 117 P.3d 800, 807 (Colo. 2005); People v. Gonzales, 666
P.2d 123, 127 (Colo. 1983).
¶ 54 In determining whether the evidence is sufficient to sustain a
conviction, “[t]he prosecution is entitled to the benefit of every
reasonable inference that may fairly be drawn from the evidence,
even if the record also contains evidence to the contrary.” People v.
Thornton, 251 P.3d 1147, 1149 (Colo. App. 2010).
¶ 55 The determination of the credibility of witnesses is solely
within the province of the jury, as is the specific weight to be
accorded to that testimony. People v. Sprouse, 983 P.2d 771, 778
(Colo. 1999); see also People v. Duncan, 109 P.3d 1044, 1045-46
(Colo. App. 2004).
¶ 56 We review the record de novo to determine whether the
evidence is sufficient to sustain a criminal conviction. Dempsey,
117 P.3d at 807.6
6Relying on People v. Lacallo, 2014 COA 78, ¶¶ 4-23, the Attorney
General argues that because Leverton did not raise the issue of
sufficiency in the trial court, we should review only for plain error.
We need not resolve that issue here because we conclude that
sufficient evidence supported Leverton’s convictions. People v.
Sena, 2016 COA 161, ¶ 8.
23
A. Theft
¶ 57 “[A] person commits theft by receiving when he receives,
retains . . . or disposes of anything of value of another, knowing or
believing that said thing of value has been stolen, and when he
intends to deprive the lawful owner permanently of the use or
benefit of the thing of value.” § 18-4-410(1), C.R.S. 2012.
¶ 58 A few days after the car had been reported stolen, the police
found Leverton sitting in the car’s front passenger seat. Though
Leverton told the police that the car had been given to him by the
victim, his statement was directly refuted by the victim’s testimony
that she had never met him. Evidence also was presented at trial
that Leverton himself drove the vehicle to a gas station.
¶ 59 Based on all of this evidence, we conclude that the jury was
entitled to infer that Leverton intended to permanently deprive the
owner of the car of the rights of ownership. Thus, sufficient
evidence supported the theft by receiving conviction.
B. Possession of Paraphernalia
¶ 60 “[A] person commits possession of drug paraphernalia if he or
she possesses drug paraphernalia and knows or reasonably should
know that the drug paraphernalia could be used under
24
circumstances in violation of the laws of this state.” § 18-18-
428(1)(a).
¶ 61 The prosecution presented evidence that, prior to placing
Leverton into the police vehicle, a police officer searched the
vehicle’s back seat and found nothing. While Leverton was being
transported to the police station, he was fidgeting. After removing
Leverton from the vehicle, the officer discovered in the back seat
where Leverton had been sitting a pipe of the sort commonly used
to smoke methamphetamine. The pipe contained a white residue
which the officer testified was consistent with methamphetamine.
¶ 62 Leverton argues that no jury rationally could have concluded
that the pipe belonged to him because if he had had the pipe on his
person, it would have been discovered when he was patted down
before he was placed into the police vehicle. He also argues that the
pipe could have belonged to the driver of the stolen car, who rode in
the police vehicle with him. But the fact that the officer did not find
the pipe during the pat-down search goes to the weight of the
officer’s testimony, an inquiry that is irrelevant in determining
sufficiency. Sprouse, 983 P.2d at 778. And while the pipe might
25
have belonged to the other man, it was the jury’s role to decide to
whom the pipe belonged.
¶ 63 Viewing the evidence in the light most favorable to the
prosecution, we conclude that there was sufficient evidence for the
jury to convict Leverton of possession of drug paraphernalia.
V. Guilt by Association
¶ 64 Leverton also contends that “the trial court erred by allowing
the prosecution to seek Mr. Leverton’s convictions on the basis of
guilt by association.” We have held that the prosecution presented
sufficient evidence for the jury to conclude that every element of the
charged crimes was proved beyond a reasonable doubt. Leverton’s
convictions were not based on his association with other persons;
they were based on evidence that proved that Leverton, not some
other person, committed the crimes.
¶ 65 To the extent that Leverton asserts a back-door Fourth
Amendment argument ― that the police officer’s search of the police
vehicle after Leverton exited the vehicle was unreasonable ― we
reject it for two reasons: (1) it was not sufficiently developed and we
do not address skeletal arguments, People v. Simpson, 93 P.3d 551,
555 (Colo. App. 2003); and (2) it was not raised in the trial court
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and thus was waived, People v. Cordova, 293 P.3d 114, 120 (Colo.
App. 2011).
VI. Conclusion
¶ 66 The judgment of conviction is affirmed.
JUDGE DAILEY and JUDGE J. JONES concur.
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