v McBride

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
July 23, 2020
2020COA111
No. 17CA2249, People v McBride — Regulation of Vehicles and
Traffic — Equipment — Tail Lamps and Reflectors
A division of the court of appeals considers whether section
42-4-206(1), C.R.S. 2019, which requires motor vehicles to be
equipped with tail lamps emitting red light, prohibits tail lamps
from emitting some white light along with red light. The division
concludes that it does, as the statute requires taillights to shine
only red light. Therefore, the division affirms the judgment for this
traffic infraction and affirms the use of the infraction as justification
for a traffic stop.
The division further considers whether section 42-4-903(1),
C.R.S. 2019, which requires the use of a turn signal before turning
or moving right or left upon a roadway, requires drivers to signal
when navigating a roundabout. The division concludes that it does
not, as the statute does not apply to roundabouts. Therefore, the
division reverses the judgment for this traffic infraction.
Finally, the division considers whether the prosecution
presented sufficient evidence to establish that the defendant
knowingly possessed a firearm as a prior offender. The division
concludes that the prosecution did not and therefore reverses the
defendant’s conviction for the possession charge.
COLORADO COURT OF APPEALS 2020COA111
Court of Appeals No. 17CA2249
Mesa County District Court No. 17CR190
Honorable Valerie J. Robison, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Timothy Robert McBride,
Defendant-Appellant
JUDGMENT AFFIRMED IN PART
AND REVERSED IN PART
Division V
Opinion by JUDGE GOMEZ
J. Jones and Welling, JJ., concur
Announced July 23, 2020
Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In this criminal case, we address two issues of first impression
in this state: (1) whether section 42-4-206(1), C.R.S. 2019, which
requires motor vehicles to be equipped with tail lamps emitting red
light, prohibits tail lamps from emitting some white light along with
red light; and (2) whether section 42-4-903(1), C.R.S. 2019, which
requires the use of a turn signal before turning or moving right or
left upon a roadway, requires drivers to signal when navigating a
roundabout. We conclude that the answer to the first question is
“yes” and the answer to the second is “no.” We also conclude that
the evidence doesn’t support a finding that the defendant, Timothy
R. McBride, knew about the gun found in the car he was driving.
Accordingly, we affirm Mr. McBride’s traffic infraction for a tail lamp
violation but reverse his traffic infraction for failure to signal and
his conviction for possession of a weapon by a previous offender
(POWPO).
I. Background
¶2 One night, while sitting in an unmarked police car surveilling
a hotel for illicit drug activity, a sheriff’s deputy saw a Lincoln Town
Car with two people in it pull into the parking lot, park for less than
ten minutes without anyone getting into or out of the car, and drive
1
away. He relayed his observations to another deputy, who followed
the Lincoln from another unmarked police car.
¶3 The second deputy, as she followed the Lincoln, noticed that
both of the car’s tail lamps were broken and that, although the
lamps had been patched with red tape, the tape was melted and the
bulbs emitted some white light along with red light. The deputy
also observed the Lincoln navigate a roundabout without signaling
and continue straight on the same road. She radioed a third
deputy in a marked patrol car to stop the Lincoln and investigate
the two traffic infractions.
¶4 The third deputy pulled the Lincoln over and identified the
driver as Mr. McBride and his passenger as M.S. Additional officers
and a police dog arrived at the scene. The officers arrested
Mr. McBride on an outstanding warrant. Meanwhile, the dog
alerted to the presence of illegal narcotics in the car. Upon
searching the car, officers found a bag of methamphetamine
between the floorboards and a handgun wedged between the driver
and front passenger seats under M.S.’s purse. M.S. also had drug
paraphernalia on her person.
2
¶5 The prosecution charged Mr. McBride with five offenses:
(1) possession of a controlled substance; (2) a special offender
sentence enhancement for possession of a firearm; (3) POWPO; (4) a
traffic infraction for an improper tail lamp; and (5) a traffic
infraction for failure to signal for a turn.1
¶6 Mr. McBride filed a motion to suppress evidence of the drugs
and the gun as fruits of an illegal traffic stop. After a hearing, the
court denied the motion, ruling that there was reasonable suspicion
to stop Mr. McBride for the two traffic infractions.
¶7 Mr. McBride’s defense at trial was that the drugs and gun
belonged to his passenger, M.S., and that he didn’t see them or
know they were in the car. The jury convicted him of POWPO and
the two traffic offenses. It acquitted him of the drug possession
charge, which mooted the special-offender enhancer. The court
imposed a two-year prison sentence for the POWPO offense (an
aggravated sentence due to the court’s finding that Mr. McBride
was on probation at the time of the offense) and assessed monetary
penalties for the traffic offenses.
1 M.S. was separately charged with related offenses.
3
II. Analysis
¶8 Mr. McBride raises four issues on appeal: (1) the evidence
doesn’t support the traffic offenses for a tail lamp infraction and
failure to signal; (2) the trial court erred by denying the motion to
suppress; (3) the evidence doesn’t support the conviction for
POWPO; and (4) the enhancement of his sentence based on his
probationary status at the time of the offense was illegal. On the
first issue, we conclude that there is sufficient evidence to support
the tail lamp infraction but not the failure to signal infraction. On
the second, we conclude that, because of the tail lamp infraction,
officers had reasonable suspicion for the traffic stop. And on the
third, we conclude that there is insufficient evidence to support the
POWPO conviction. Our conclusion on the third issue moots the
fourth, and therefore we don’t address it.
A. Traffic Infractions
¶9 Mr. McBride contends that there is insufficient evidence to
support the two traffic infractions. We disagree as to the tail lamp
infraction but agree as to the failure to signal infraction.
4
1. Standard of Review
¶ 10 We review sufficiency of the evidence challenges de novo,
applying the substantial evidence test. People v. McCoy, 2015 COA
76M, ¶ 37, aff’d on other grounds, 2019 CO 44. Under this test, we
consider whether the evidence, viewed as a whole and in the light
most favorable to the prosecution, is sufficient to support a rational
conclusion that the defendant is guilty of the offense beyond a
reasonable doubt. Id.
¶ 11 Where a sufficiency of the evidence challenge requires our
interpretation of a statute, our goal is to effectuate the General
Assembly’s intent. Id. at ¶ 38. To determine that intent, we start
with the language of the statute, giving words and phrases their
plain and ordinary meanings. Id. We must read and consider the
statutory scheme as a whole, giving consistent, harmonious, and
sensible effects to all of its parts. Id. If the language is clear and
ambiguous, we will apply it as written, without resorting to further
statutory analysis. Id.
5
2. Tail Lamp Infraction
¶ 12 Mr. McBride’s sufficiency challenge to the tail lamp infraction
turns on interpretation of the applicable statute. That statute,
section 42-4-206(1), provides that
[t]o be operated on a road, every motor vehicle
. . . must be equipped with at least one tail
lamp mounted on the rear, which, when
lighted as required in section 42-4-204, emits
a red light plainly visible from a distance of five
hundred feet to the rear . . . .
(Emphasis added.) The statute further provides that vehicles
manufactured after 1958, like the vehicle in this case, “must be
equipped with at least two tail lamps mounted on the rear . . .
which . . . comply with this section.” Id. Section 42-4-204, C.R.S.
2019, in turn, requires vehicles to display lighted lamps between
sunset and sunrise and at other times when conditions are
unfavorable.
¶ 13 The parties dispute whether section 42-4-206(1) requires that
tail lamps shine only red light, or whether it simply requires that
lamps shine red light without prohibiting lamps from also shining
other colors. We conclude, for several reasons, that the statute
requires tail lamps to shine only red light.
6
¶ 14 First, giving the words their plain and ordinary meanings, the
statute signifies that tail lamps must shine only red. The statute
doesn’t say a tail lamp must shine red, along with any other colors.
It only says “red.” Further, allowing the use of additional colors
would detract from uniformity and uniform enforcement of the law.
If tail lamps had red light mixed with a host of other colors, there
would no longer be uniformity in tail lamps shining as red. And if a
tail lamp shone a lot of white light with a smidge of red but could be
perceived as faintly red at a 500-foot distance, that would introduce
subjectivity on the part of police. Therefore, to promote uniformity
and apply the plain language of the statute, “red” must mean “red”
and only “red.” See People v. Wright, 742 P.2d 316, 321 n.7 (Colo.
1987) (“In Colorado, the legislature has expressly stated that, as a
matter of policy, traffic laws and enforcement throughout the state
should be uniform.” (citing § 42-4-102, C.R.S. 2019)).
¶ 15 Second, another subsection of section 42-4-206 requires “a
tail lamp or a separate lamp” to illuminate the rear registration
plate “with a white light.” § 42-4-206(3). This provision suggests
that tail lamps can include white lights, but only for the purpose of
illuminating the rear plate.
7
¶ 16 Third, other provisions of the traffic code allow or require
lamps in colors other than red. For instance, section 42-4-215(1),
C.R.S. 2019, requires vehicles to have stop lamps on the rear that
“display a red or amber light, or any shade of color between red and
amber” when the driver applies the brake. Section 42-4-215(2)
requires vehicles to have flashing turn signal lamps in the front
“display[ing] a white or amber light, or any shade of color between
white and amber” and in the rear “display[ing] a red or amber light,
or any shade of color between red and amber.” Section 42-4-215(7)
permits vehicles to have hazard lights on the front flashing “white
or amber lights, or any shade of color between white and amber”
and on the rear flashing “amber or red lights, or any shade of color
between amber and red.” Section 42-4-215(8) permits vehicles to
have up to three identification lamps in the front and up to three
such lamps in the rear, with any front lamps “emit[ting] an amber
light” and any rear lamps “emit[ting] a red light.” And section 42-
12-204, C.R.S. 2019, permits street-rod or custom vehicles to use
8
“blue dot tail lights” (red lamps with blue or purple inserts) for stop
lamps, rear turn signal lamps, and rear hazard lamps.2
¶ 17 Collectively, these provisions suggest that when the legislature
says “red” it means only “red” and when it says “amber” or “white” it
means only “amber” or “white.” They also suggest that where more
than one color is permitted, the legislature says so — for instance in
permitting any shade of color between white and amber or between
red and amber for certain types of lamps and permitting the use of
blue dot tail lights for certain lamps on certain vehicles. But in
enacting section 42-4-206(1), the legislature chose to say only “red
light,” suggesting that red is the only permissible light color for tail
lamps. See Cain v. People, 2014 CO 49, ¶ 13 (“Under the rule of
interpretation expressio unius exclusio alterius, the inclusion of
certain items implies the exclusion of others.” (quoting Beeghly v.
Mack, 20 P.3d 610, 613 (Colo. 2001))).
¶ 18 And fourth, as these various provisions demonstrate, specific
colored lights on a vehicle carry significance. Cf. Tidwell ex rel.
Tidwell v. City & Cty. of Denver, 83 P.3d 75, 78, 83 (Colo. 2003)
2 This is by no means an exhaustive list of the statutory provisions
regarding lamp colors. It is meant only to be illustrative.
9
(explaining the significance of the use of red, blue, and white
rotating “stage two” lights on police cars). Front lights are generally
white or amber, and rear lights are generally red (or sometimes
amber). The only white lights on the rear of a car are generally the
small license plate lamp and backup lamps (which illuminate only
when a driver is backing up).3 This uniformity of lighting helps
drivers ascertain what direction a car is facing and whether it is
backing up. Permitting vehicles to emit white light (even if mixed
with red) from tail lamps could therefore lead to confusion and
accidents. See Gallagher Transp. Co. v. Giggey, 101 Colo. 116, 120,
71 P.2d 1039, 1042 (1937) (a driver has a right to assume other
vehicles will be lawfully lighted).
¶ 19 Our interpretation is consistent with the majority view in other
jurisdictions to have considered similar statutory provisions. See,
e.g., Williams v. State, 853 P.2d 537, 538 (Alaska Ct. App. 1993)
3 Although state law doesn’t require backup lamps to be any
specific color, § 42-4-215(6), C.R.S. 2019, federal standards and
regulations have required white backup lamps since the late 1960s.
See David W. Moore & Kåre Rumar, Historical Development and
Current Effectiveness of Rear Lighting Systems 11-12, 38-39 (Univ.
of Mich. Transp. Research Institute Oct. 1999),
https://perma.cc/WTY3-2FEH; see also 49 C.F.R. § 571.108(S7.6)
& tbl. I-a (2019).
10
(“We . . . interpret [the statute] to require that taillights emit only
red light.”); Robinson v. State, 431 S.W.3d 877, 879 (Ark. 2014)
(“Th[e] statute does not contemplate a taillight that displays a white
light in addition to a red light.”); State v. Patterson, 97 P.3d 479,
482 (Idaho Ct. App. 2004) (“Based upon the plain reading of [the
statutory sections, the defendant] violated Idaho law by driving with
taillights that emit light of a color other than red.”); People v. Allen,
933 N.Y.S.2d 756, 759 (App. Div. 2011) (“We hold that the statute
requires a tail light to display only red light.”). But see Vicknair v.
State, 670 S.W.2d 286, 287 (Tex. App. 1984) (a taillight complies
with state statute so long as it emits red light visible at the required
distance, even if it also emits white light), aff’d on other
grounds, 751 S.W.2d 180 (Tex. Crim. App. 1986).
¶ 20 Our interpretation also comports with People v. Brant, 252
P.3d 459, 463 (Colo. 2011), in which our supreme court said that
an investigatory stop for a violation of section 42-4-206 was
justified when a vehicle had a broken tail lamp. Although we
acknowledge that the statute regulates color, not brokenness, Brant
supports our interpretation that a broken tail lamp that emits some
white light along with red light violates the statute.
11
¶ 21 Accordingly, we affirm the traffic infraction for an improper tail
lamp.
3. Turn Signal Infraction
¶ 22 Mr. McBride’s sufficiency challenge to the turn signal
infraction also turns on interpretation of the applicable statute.
That statute, section 42-4-903, provides, in relevant part:
(1) No person shall turn a vehicle at an
intersection . . . , or turn a vehicle to enter a
private road or driveway, or otherwise turn a
vehicle from a direct course or move right or left
upon a roadway unless and until such
movement can be made with reasonable safety
and then only after giving an appropriate
signal in the manner provided in sections 42-
4-608 and 42-4-609.
(2) A signal of intention to turn right or left
shall be given continuously during not less
than the last one hundred feet traveled by the
vehicle before turning in urban or metropolitan
areas and shall be given continuously for at
least two hundred feet on all four-lane
highways and other highways where the prima
facie or posted speed limit is more than forty
miles per hour.
(Emphasis added.) The referenced sections 42-4-608 and 42-4-609,
C.R.S. 2019, describe signaling via lamps or hands and arms when
such signals are required by statute.
12
¶ 23 The parties dispute whether these provisions require a driver
to signal when navigating a roundabout.4
¶ 24 Notably, only one traffic code provision expressly addresses
roundabouts. That provision, section 42-4-1006(2), C.R.S. 2019,
says “[a] vehicle passing around a rotary traffic island shall be
driven only to the right of such island.”
¶ 25 The question, then, is whether any of the actions described in
section 42-4-903(1) — turning at an intersection, turning to enter a
private road or driveway, otherwise turning from a direct course,
and moving right or left upon a roadway — encompass driving
through a roundabout. The People focus largely on the provision
requiring signaling when moving right or left upon a roadway,
urging that drivers necessarily move right or left upon the roadway
when they drive through a roundabout.
¶ 26 Two other jurisdictions have addressed this issue under
similar statutory provisions: Alaska and Indiana. Both held that
4 Although the People argued in the trial court and on appeal that
signaling is required only when exiting a roundabout — not when
entering one — neither the information nor the verdict form or
mittimus so specified. Accordingly, we consider any signaling
requirements for either entering or exiting a roundabout.
13
their statutes regarding the use of turn signals don’t apply to
roundabouts.5 We find their reasoning persuasive and conclude for
the same reasons that section 42-4-903(1) doesn’t require a driver
to signal when entering or exiting a roundabout.
¶ 27 In Noble v. State, the Alaska Court of Appeals gave several
reasons for its decision that the state’s traffic laws don’t require
drivers to use a turn signal when entering or exiting a roundabout.
357 P.3d 1201, 1201-06 (Alaska Ct. App. 2015). Those same
reasons apply equally here.
¶ 28 First, the court cited the state laws expressly applying to
roundabouts. Id. at 1202. As with Colorado’s laws, none of the
provisions addressed signaling. Id.
¶ 29 Next, the court turned to the general provisions on signaling.
Id. at 1202-03. Although not identical to Colorado’s laws, these
provisions similarly require the use of a signal when a motorist
turns or moves right or left upon, off, or on a roadway. Id. at 1202.
5 In a third case, the Eighth Circuit declined to decide whether state
law required drivers to signal in a roundabout; the court held only
that a traffic stop based on failure to signal was reasonable because
the officer could reasonably have believed it was a violation. United
States v. Gadson, 670 F. App’x 907, 909 (8th Cir. 2016).
14
They also similarly require continuous use of a signal for the last
hundred feet before turning. Id. at 1202-03. (Colorado’s law differs
in that this 100-foot requirement applies only in urban or
metropolitan areas and that a longer, 200-foot requirement applies
on any highway that is four-laned and/or has a posted speed limit
exceeding forty miles per hour. § 42-4-903(2).)
¶ 30 The Noble court noted that Alaska’s provisions mirror those of
the 1969 Uniform Vehicle Code, which was drafted before
roundabouts became widespread. 357 P.3d at 1203. It further
noted that the uniform code had last been amended in 2000, and
that none of the 2000 amendments mentioned roundabouts. Id. It
cited sources indicating that, as of 1997, a few years before the
most recent amendments, there were only three dozen roundabouts
in the entire nation. Id. Although none of those was in Alaska,
according to one of the cited sources, ten were in Colorado. Transp.
Research Bd., Modern Roundabout Practice in the United States 14
(1998), https://perma.cc/5S4M-JN7P.
¶ 31 The point, the court explained, is that the uniform code
provisions cannot be readily applied to roundabouts because they
were drafted at a time when roundabouts weren’t common. Noble,
15
357 P.3d at 1203-04. This limitation applies equally to Colorado’s
signaling provisions, which likewise are based on and similar to the
model code provisions. See § 42-4-102 (legislative declaration
stating a purpose of “conforming, as nearly as possible, certain of
the traffic laws of this state with the recommendations of the
national committee of uniform traffic laws and ordinances as set
forth in the committee’s ‘Uniform Vehicle Code’”); see also Nat’l
Comm. of Unif. Traffic Laws & Ordinances, Uniform Vehicle Code
and Model Traffic Ordinance § 11-604(a)-(b) (1969),
https://perma.cc/TW3U-QQUJ (uniform code provisions nearly
identical to those in section 42-4-903(1)-(2)).
¶ 32 The Noble court further elaborated on why existing signaling
laws don’t readily apply to roundabouts. 357 P.3d at 1204. For
instance, the court explained, while one could view movement into a
roundabout as movement right or left upon a roadway (for which a
turn signal is required), it was more accurate to view such
movement as following a curve in the roadway (for which a turn
signal is not required). Id. And so “[i]t seems counter-intuitive to
require all motorists to activate their right-turn signals when
entering a roundabout if they simply wish to drive around the
16
center island and continue in their original direction of travel.” Id.
Moreover, “if a motorist did activate their right-turn signal, this
right-turn signal might well confuse other motorists who were
already inside the roundabout, or who were waiting to enter the
roundabout from a different direction,” and who “might easily
suppose that the signaling motorist actually intended to turn right
(onto an intersecting road) rather than continuing straight through
the roundabout.” Id.
¶ 33 Because of such difficulties with applying existing law to
roundabouts, the court went on, some states had enacted new laws
or created websites or informational pamphlets directly addressing
the issue. Id.; see also Nickerson v. Portland Police Bureau, No. CIV.
08-217-HU, 2008 WL 4449874, at *5 (D. Or. Sept. 30, 2008)
(unpublished order) (reviewing a challenge to an Oregon law directly
addressing signaling in roundabouts). In Alaska, the legislature
hadn’t passed any laws on point, the department of transportation
hadn’t provided any guidance, and a university website had
indicated that motorists on campus “will want to” signal when they
exit a roundabout. Noble, 357 P.3d at 1205. “The result is that no
one can determine, with any degree of surety, what rules apply.” Id.
17
So, too, in Colorado, where there are no laws or departmental
guidance directly on point and the driver handbook doesn’t indicate
whether signaling is required in roundabouts. See Colo. Dep’t of
Rev., Div. of Motor Vehicles, Colorado Driver Handbook 19 (2017),
https://perma.cc/763H-TPYS (stating, as to roundabouts, only that
drivers should “[y]ield to traffic already within the rotary island” and
“[d]rive to the right and watch for directional signs and signals”).
¶ 34 Finally, the Noble court remarked that the required signaling
distance of 100 feet can’t readily be applied to roundabouts, where
entrances and exits are often less than 100 feet apart. 357 P.3d at
1206. As a result, signaling for that length of time at a roundabout
could be confusing and potentially dangerous. Id. This concern
similarly applies to Colorado, where signaling distances, though not
applicable in rural areas, are generally 100 feet (or 200 feet for any
roundabouts that may exist on four-lane highways or highways
with posted limits above forty miles per hour).
¶ 35 For all these reasons, the court in Noble concluded that there
was “no clear way to apply the signaling provisions of [state law] to
roundabouts.” Id. And because any attempt at clarification would
amount to “creating new rules, based on a weighing of facts and
18
policies that is normally entrusted to legislatures or executive
agencies,” the court declined to stretch the language of the statute
to try to make it apply to roundabouts. Id. Instead, the court
encouraged the legislature or department of public safety to address
the issue if they feel it appropriate to do so. Id.
¶ 36 The Indiana Court of Appeals recently applied similar
reasoning in considering this same issue under its state’s laws.
State v. Davis, 143 N.E.3d 343, 347-49 (Ind. Ct. App. 2020). The
Davis court noted that the state’s traffic laws expressly addressing
roundabouts don’t touch on signaling; its general provisions on
signaling were enacted before roundabouts became widespread in
the state; motorists entering a roundabout are simply following the
curve of the road, which would make use of a signal “nonsensical”;
requiring the use of a signal for exiting a roundabout would be
“problematic” because it would be unclear how and when the
motorist would need to signal; and, with the multitude of
roundabout configurations across the state, it would be difficult to
ascertain just how to apply existing law. Id. And, like the Alaska
court, it ultimately concluded that state law on signaling doesn’t
apply to roundabouts and that it is up to the legislature, not the
19
court, to promulgate rules for roundabouts if it chooses to do so.
Id. at 349.
¶ 37 We find the analysis in Noble and Davis persuasive and
conclude for the same reasons that section 42-4-903(1) does not
apply to motorists entering or exiting a roundabout.
¶ 38 The one notable difference in Colorado is that a failed bill in
2017 would have expressly provided that turn signals are not
required in roundabouts. S.B. 17-059, 71st Gen. Assemb., 1st Reg.
Sess. The bill summary suggests that its proponents believed
existing law does require signaling in roundabouts. See S.B.
17-059, 71st Gen. Assemb., 1st Reg. Sess. (as introduced),
https://perma.cc/6LPB-573N (“Currently, a person must signal an
intention to turn before turning or changing lanes while driving a
vehicle. The bill exempts motor vehicles that are using a
roundabout unless otherwise posted.”). But the bill died in the
Senate and was never introduced in the House. See S. Journal,
71st Gen. Assemb., 1st Reg. Sess. 178 (Feb. 10, 2017).
¶ 39 This unsuccessful legislative proposal doesn’t affect our
interpretation of existing law. “[T]he ‘interpretation placed upon an
existing statute by a subsequent group of [legislators] who are
20
promoting legislation and who are unsuccessful has no persuasive
significance.’” Minto v. Sprague, 124 P.3d 881, 885 (Colo. App.
2005) (quoting United States v. Wise, 370 U.S. 405, 411 (1962)); see
also In re Marriage of Heupel, 936 P.2d 561, 570 n.10 (Colo. 1997)
(“[W]hile ‘unsuccessful attempts to amend proposed legislation
during the process of enactment’ is relevant in interpreting the
adopted measure, the same does not hold true for ‘unsuccessful
attempts to amend a measure passed by a previous legislative
session.’” (quoting Tahoe Reg’l Planning Agency v. McKay, 769 F.2d
534, 538 (9th Cir. 1985))).
¶ 40 Accordingly, we reverse the traffic infraction for failure to
signal.
B. Reasonable Suspicion for the Traffic Stop
¶ 41 Mr. McBride next contends that the officers lacked probable
cause for the traffic stop. We disagree.
¶ 42 A trial court’s order on a motion to suppress presents a mixed
question of law and fact. People v. Burnett, 2019 CO 2, ¶ 13. We
accept the trial court’s factual findings if they are supported by
competent evidence on the record, but we assess the legal
21
significance of those facts de novo. Id. We also review related
issues of statutory interpretation de novo. Id.
¶ 43 The trial court denied the motion to suppress based on a
finding that officers had reasonable suspicion to conclude that
Mr. McBride violated two traffic provisions — the tail lamp provision
and the signaling provision. The evidence presented at the
suppression hearing, like the evidence at trial, established that the
Lincoln’s tail lamps emitted both red and white light. Because we
have concluded that this violates section 42-4-206(1), there was
sufficient basis for the stop. Accordingly, although Mr. McBride
didn’t violate the signaling provision, we needn’t consider whether
officers nonetheless had a reasonable basis for concluding he may
have done so.
C. POWPO
¶ 44 Finally, Mr. McBride contends that the evidence was
insufficient to support the POWPO conviction — specifically, the
required element that he knowingly possessed a firearm. We agree.
22
1. Additional Facts
¶ 45 When Mr. McBride was pulled over in the Lincoln, he was
riding with a passenger, M.S., seated in the front passenger seat.
The car wasn’t registered to either of them.
¶ 46 The arresting officer didn’t see Mr. McBride or M.S. make any
furtive movements, as if to hide evidence, while Mr. McBride was
pulling the car over. Nor did the officer see any guns when he
looked into the car upon making initial contact with Mr. McBride or
upon returning to the car to arrest Mr. McBride (after discovering
the outstanding warrant). Mr. McBride didn’t attempt to flee but
cooperated with officers during the arrest.
¶ 47 Later, in a full search of the car, officers found a handgun in
the crevice between the driver and front passenger seats, under
M.S.’s purse. The inside of the car was messy, with items strewn
about, making it difficult to discern specific items. And the gun
wasn’t visible, even from inside the car, until the purse was moved.
¶ 48 There was no evidence that the gun was registered or
otherwise belonged to Mr. McBride or that it was stolen. There was
23
also no evidence that Mr. McBride’s fingerprints or DNA were found
on the gun or on any other items in the car.6
2. Standard of Review
¶ 49 In reviewing a sufficiency of the evidence challenge, we review
the record de novo to determine whether the evidence presented
was sufficient in both quantity and quality to sustain the
defendant’s conviction. Clark v. People, 232 P.3d 1287, 1291 (Colo.
2010); see also McCoy, ¶ 37.
¶ 50 Under the applicable substantial evidence test, we consider
“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 mind that the defendant is guilty of the charge
beyond a reasonable doubt.” Clark, 232 P.3d at 1291 (quoting
People v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)).
The relevant question under this test is “whether, after viewing the
evidence in the light most favorable to the prosecution, a rational
6 One of the officers testified that at one point during the traffic stop
M.S. pretended to cry and claimed everything in the car belonged to
Mr. McBride. But M.S. didn’t testify at trial, and the People don’t
rely on this evidence to support the POWPO conviction.
24
trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Id. “[W]e must give the prosecution
the benefit of every reasonable inference which may be fairly drawn
from the evidence.” Id. at 1292. However, “there must be a logical
and convincing connection between the facts established and the
conclusion inferred.” Id. “If the evidence is such that reasonable
jurors must necessarily have a reasonable doubt, then the evidence
is insufficient to sustain the defendant’s conviction.” Id.
3. Application
¶ 51 A person commits the crime of POWPO if that person
“knowingly possesses, uses, or carries upon his or her person a
firearm . . . subsequent to the person’s conviction for a felony . . .
under Colorado or any other state’s law or under federal law.”
§ 18-12-108(1), C.R.S. 2019.
¶ 52 The question in this case is whether the prosecution presented
sufficient evidence to prove, beyond a reasonable doubt, that
Mr. McBride knowingly possessed the handgun found in the car he
was driving. We conclude that it did not.
¶ 53 “‘[P]ossession,’ as it is used in [POWPO], is the actual or
physical control of the firearm.” People v. Allgier, 2018 COA 122,
25
¶ 65 (quoting Beckett v. People, 800 P.2d 74, 82 (Colo. 1990)). “[A]
defendant need not have had exclusive control of the firearm to be
found guilty of possessing it.” Id. at ¶ 66.
¶ 54 Nonetheless, the possession must be “knowing.” See People v.
Tenorio, 197 Colo. 137, 144, 590 P.2d 952, 957 (1979) (“To convict
one of possessing a weapon, the jury must find, not mere
possession, but that the defendant ‘knowingly’ possessed the
weapon and that he understood that the object possessed was a
weapon.”); see also People v. Van Meter, 2018 COA 13, ¶¶ 38, 43-44
(trial court didn’t plainly err by instructing the jury that
“[p]ossession constitutes a voluntary act if the actor was aware of
his physical possession or control thereof for a sufficient period to
have been able to have terminated it”). “A person acts ‘knowingly’
. . . with respect to conduct or to a circumstance described by a
statute defining an offense when he is aware that his conduct is of
such nature or that such circumstance exists.” § 18-1-501(6),
C.R.S. 2019.
¶ 55 In the related context of knowing possession of controlled
substances, it is well settled that “the ‘controlled substance need
not be found on the person of the defendant, as long as it is found
26
in a place under his or her dominion and control.’” People v.
Yeadon, 2018 COA 104, ¶ 24 (quoting People v. Atencio, 140 P.3d
73, 75 (Colo. App. 2005)), aff’d on other grounds, 2020 CO 38. “If a
‘defendant has exclusive possession of the premises in which drugs
are found, the jury may infer knowledge from the fact of
possession.’” Id. at ¶ 25 (quoting People v. Baca, 109 P.3d 1005,
1007 (Colo. App. 2004)). For instance, “[k]nowledge can be inferred
from the fact that the defendant is the driver and sole occupant of a
vehicle, irrespective of whether he is also the vehicle’s owner.” Id.
(quoting Baca, 109 P.3d at 1007). “Conversely, ‘where a person is
not in exclusive possession of the premises in which drugs are
found, such an inference may not be drawn ‘unless there are
statements or other circumstances tending to buttress the
inference.’” Id. at ¶ 26 (quoting People v. Stark, 691 P.2d 334, 339
(Colo. 1984)).
¶ 56 Thus, it is clear, in the context of knowing possession of a
controlled substance, that where a defendant is not in exclusive
possession of a car or premises in which an illegal object is found,
“[m]ere presence without another additional link in the evidence will
not sustain a conviction for possession.” Id. (quoting Feltes v.
27
People, 178 Colo. 409, 417, 498 P.2d 1128, 1132 (1972)). We find
this equally true in the context of knowing possession of a firearm
and, therefore, we apply the same standards here.
¶ 57 Indeed, in both contexts, divisions of this court have applied
similar reasoning in affirming convictions for knowing possession
where the prosecution presented evidence of something more than a
defendant’s mere proximity to a gun or drugs. See, e.g., People v.
Kessler, 2018 COA 60, ¶¶ 13-14 (the defendant sat in a car for
much of the day just inches away from the cocaine found uncovered
and plainly visible in the console); Yeadon, ¶ 28 (the defendant was
in direct proximity to a visible bag of methamphetamine in the
driver’s side door compartment of the car he’d been driving before
he fled); People v. Warner, 251 P.3d 556, 565-66 (Colo. App. 2010)
(the defendant exercised dominion and control over the residence
where two guns were found, he was seen holding one of the guns
the day before it was seized and later sitting at a table inside the
residence with the same gun, and he owned the safe where the
second gun was found); People v. Jackson, 98 P.3d 940, 945 (Colo.
App. 2004) (the victim identified the gun as belonging to the
defendant); People v. Tramaglino, 791 P.2d 1171, 1171-72 (Colo.
28
Ohio App. 1989) (eyewitness testified that the defendant had the gun in
his possession, and it was later found in his car).
¶ 58 Here, however, the prosecution didn’t offer evidence of that
“something more.” For instance, there was no evidence that
Mr. McBride owned or had exclusive possession of the car, that he
owned or had stolen the gun, that he had ever touched the gun,
that when officers approached he tried to flee or made furtive
movements in an effort to hide the gun, that the gun was in plain
view in the car, or that he made any statements indicating his
knowledge of the gun’s presence in the car.
¶ 59 In this circumstance, where the defendant is not in exclusive
possession of the car or premises in which an object is found and
there is no evidence aside from mere proximity linking the
defendant to that object, a conviction premised on knowing
possession cannot stand. This is because any finding that the
defendant knowingly possessed the object would necessarily be
based on speculation. But “verdicts in criminal cases may not be
based on guessing, speculation, or conjecture,” and “a modicum of
relevant evidence will not rationally support a conviction beyond a
29
reasonable doubt.” People v. Sprouse, 983 P.2d 771, 778 (Colo.
1999).
¶ 60 That critical difference is what distinguishes this case from
People v. Rivera, 765 P.2d 624 (Colo. App. 1988), rev’d on other
grounds, 792 P.2d 786 (Colo. 1990), on which the People rely. In
Rivera, the defendant accompanied his wife when she bought the
gun in question and then was found in his home with the gun in
plain view within arm’s reach. Id. at 628. No such facts are
present here. In particular, no evidence suggests that Mr. McBride
had any prior knowledge of the gun or that the gun was in his plain
view when it was discovered.
¶ 61 That difference also sets this case apart from People v. Donald,
in which our supreme court recognized that “[k]nowledge . . . may
be inferred from circumstantial evidence.” 2020 CO 24, ¶ 37. The
question in Donald was whether the prosecution could establish the
required element of knowledge — in that case, knowledge of the bail
condition prohibiting the defendant from leaving the state without
permission — through stacked inferences. Id. at ¶¶ 3-11, 26. The
court held that inference stacking is not prohibited but is simply
30
one factor a court may consider in determining whether evidence
satisfies the substantial evidence test. Id. at ¶¶ 26-31.
¶ 62 Applying this framework, the court in Donald held that
(1) sufficient evidence supported an inference that the defendant
signed his bond paperwork, including the bondsperson’s testimony
that only by accident would anyone be released from jail without
signing the paperwork, defense counsel’s concession that the
defendant signed the paperwork, and a copy of the signed
paperwork; and (2) sufficient evidence supported an inference that
the defendant saw and was aware of the bond condition, including
the fact that the bond paperwork consisted of a single page and that
the subject condition was the first condition listed under a bolded
heading of additional conditions. Id. at ¶¶ 38-41.
¶ 63 Here, the issue is not one of stacked inferences — just a single
inference that lacks any direct or circumstantial evidence, aside
from mere proximity, to support it. Still, some of the reasoning
from Donald might apply if, for instance, the gun had been found in
plain view or if the car had been in Mr. McBride’s exclusive
possession. Then there could be a question whether Mr. McBride
had actual knowledge of the gun’s presence, and Donald could
31
support an inference of actual knowledge based on those
circumstances. But no such circumstances exist here.
¶ 64 Indeed, in similar cases, other courts have reversed
firearm-related convictions where the prosecution didn’t establish
anything more than the defendant’s mere proximity to the firearm
in a car. For instance, in Commonwealth v. Snow, which is
remarkably similar to this case, the defendant was driving a car
that wasn’t his, there were other passengers in the car, no one
made any furtive movements as the car was being pulled over, and
police ultimately found a gun that was not plainly visible but was
tucked between the driver’s seat and the front console. 920 N.E.2d
68, 69-72 (Mass. App. Ct. 2010). Under those circumstances, the
court held that “[t]he evidence was insufficient ‘to warrant a
reasonable inference of personal knowledge of the presence of the
gun,’ and the conviction [for firearm offenses] cannot stand.” Id. at
72 (citation omitted).
¶ 65 Other cases are in accord. See, e.g., United States v. Hishaw,
235 F.3d 565, 571-73 (10th Cir. 2000) (evidence showed only that a
gun was found under the passenger’s seat of a car the defendant
didn’t own but was driving); Jones v. State, 924 N.E.2d 672, 675-76
32
(Ind. Ct. App. 2010) (evidence showed only that the defendant was
test-driving a customer’s car in which a gun was found under the
driver’s seat and that he made furtive gestures that appeared to be
related to hiding alcohol in the car); State v. Harris, 895 N.W.2d
592, 602-03 (Minn. 2017) (evidence showed only that the defendant
was driving a car he didn’t own with two passengers, he continued
driving for a few blocks after an officer activated his vehicle lights
and siren, the officer saw movement in the car, a gun was
eventually found in a void between the headlining and roof of the
car near the sunroof, where it wasn’t immediately visible, and DNA
testing on the gun was inconclusive); Hancock v. Commonwealth,
465 S.E.2d 138, 140-41 (Va. Ct. App. 1995) (evidence showed only
that the defendant was riding in the back seat of a car in which a
firearm was found in front of him under the driver’s seat and “[n]o
evidence established that [he] ever held the firearm, saw it, knew it
was present, or exercised any dominion and control over it”).
¶ 66 The facts here demand the same result. Accordingly, we
conclude that the evidence is insufficient to support the POWPO
conviction, and we reverse that conviction.
33
III. Conclusion
¶ 67 We affirm the traffic infraction for the tail lamp violation but
reverse the traffic infraction for failure to signal and the judgment of
conviction for POWPO.
JUDGE J. JONES and JUDGE WELLING concur.
34