19CA2046 Peo v Larimore 11-10-2021
COLORADO COURT OF APPEALS
Court of Appeals No. 19CA2046
Jefferson County District Court No. 19CR439
Honorable Margie L. Enquist, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Joseph Mack Larimore,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II
Opinion by JUDGE YUN
Berger and Davidson*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 10, 2021
Philip J. Weiser, Attorney General, Paul Koehler, First Assistant Attorney
General, Melody Joy Fields, Assistant Attorney General Fellow, Denver,
Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Dana Neely, Deputy State
Public Defender, Golden, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2021.
1
¶ 1 Joseph Mack Larimore appeals the judgment convicting him of
third degree assault and possession of a controlled substance. We
affirm.
I. Background
¶ 2 Larimore and the victim, his then-girlfriend, were having a bad
day. They had spent a few hours working for a third-party food
delivery service, with Larimore driving and the girlfriend picking up
and dropping off the orders. But by early afternoon, following an
argument over a wrong turn, the couple decided to return to their
shared apartment. After arriving there, they found a late-rent
notice taped to their door. The couple soon started arguing again —
this time about money, about their relationship, and about
Larimore’s alcohol use.
¶ 3 Later that evening, the couple’s argument escalated into a
physical fight over possession of one of their cell phones.
1
Viewing
the evidence in the light most favorable to the verdict, Larimore
pushed the girlfriend during the fight, first into the front door and
1
At trial, the evidence diverged as to whose phone was at the center
of the struggle: Larimore’s (by then former) girlfriend testified that it
was her cell phone, while Larimore testified that it was his cell
phone.
2
later over the back of the couch. He then held her down by sitting
on her back and squeezing her neck with his legs. The girlfriend
punched and kicked Larimore and screamed for help, drawing the
attention of a neighbor who called 911. Larimore eventually let the
girlfriend go and, as she was calling 911, left the apartment.
¶ 4 When the police arrived, the girlfriend answered the door with
red marks on her neck and the back of her ears, as well as
reddening in her eyes. While one of the officers was interviewing
the girlfriend, Larimore returned to the apartment. A sergeant took
Larimore into the breezeway and patted him down for weapons.
While she was doing so, the sergeant found an unlabeled pill bottle
containing a sealed, twelve-unit blister pack of clonazepam tablets
in the pocket of his hoodie. Larimore was later arrested.
¶ 5 Two days later, the People charged Larimore with (1) second
degree assault in violation of section 18-3-203(1)(i), C.R.S. 2021;
(2) obstruction of telephone service in violation of section
18-9-306.5(1), C.R.S. 2021; and (3) possession of a schedule III, IV,
or V controlled substance in violation of section 18-18-403.5(1),
(2)(c), C.R.S. 2021. He pleaded not guilty and proceeded to trial,
where the jury acquitted him of the obstruction of telephone service
3
charge but found him guilty of possessing a controlled substance
and the lesser included offense of third degree assault, see
§ 18-3-204(1), C.R.S. 2021. The court entered judgment of
conviction and sentenced Larimore to two years of domestic violence
probation.
II. Analysis
¶ 6 Larimore makes two arguments on appeal. He contends that
the court reversibly erred by limiting his ability to cross-examine
the girlfriend and that insufficient evidence supports his conviction
for possessing a controlled substance. We address each of his
arguments in turn.
A. Limits on Cross-Examination
¶ 7 Larimore first contends that, by limiting his cross-examination
of the girlfriend about her mental health history, the district court
violated his constitutional right to confront the witnesses against
him, requiring reversal. We disagree.
1. Additional Background
¶ 8 Before Larimore’s trial began, the prosecutor asked the court
to bar the defense from inquiring about the girlfriend’s past suicide
attempt. The prosecutor argued that such evidence was irrelevant.
4
The court agreed, restricting questioning to the girlfriend’s mental
state on the day of the offense. Specifically, the court ruled that the
defense could ask about whether the girlfriend was upset or
depressed that day, whether she drank alcohol, used marijuana,
took medication or other drugs that day, and whether she became
impaired — but could not ask about her past suicide attempt.
2. Standard of Review and Governing Law
¶ 9 A defendant has the constitutional right to confront and
cross-examine the witnesses against him. People v. McFee, 2016
COA 97, ¶ 56 (citing Krutsinger v. People, 219 P.3d 1054, 1061
(Colo. 2009)); see U.S. Const. amends. VI, XIV; Colo. Const. art II,
§ 16. But this right is neither absolute nor unlimited. McFee, ¶ 56.
A district court has discretion “under the Confrontation Clause to
impose reasonable limits on cross-examination because of concerns
about harassment, prejudice, repetition, or marginal relevance.”
Kinney v. People, 187 P.3d 548, 559 (Colo. 2008) (citing Delaware v.
Van Arsdall, 475U.S. 673, 679 (1986)). In exercising that
discretion, the court “should exclude evidence that has little bearing
on credibility, places undue emphasis on collateral matters, or has
the potential to confuse the jury.” People v. Knight, 167 P.3d 147,
5
153 (Colo. App. 2006). “The scope and limits of cross-examination
are matters within the sound discretion of the trial court, and
absent an abuse of that discretion, we will not disturb the court’s
rulings on appeal.” McFee, ¶ 56.
3. Discussion
¶ 10 Larimore argues that the court’s bar on questions about the
girlfriend’s past suicide attempt prevented him from impeaching her
credibility and thus bolstering his theory of defense: that the
girlfriend was “inconsolable and attacked him.” Without this
evidence, he asserts, “his ability to cross-examine the prosecution’s
key witness” was “significantly prejudiced.”
¶ 11 But “[a] witness’s prior mental health condition is relevant for
impeachment purposes only if the witness suffered from the
condition close in time to the events at issue.” Id. at ¶ 58 (collecting
cases). Thus, in McFee, ¶¶ 55, 57, 62, the division deemed “too
remote to be relevant” the fact that a witness had been found
incompetent to stand trial three years before the murder and four
years before his testimony at trial. The division noted that “McFee
did not argue, much less produce evidence tending to show, that
[the witness’s] ability to recall events or testify accurately was
6
compromised because of the earlier incompetency finding.” Id. at
234-35 (1977) (concluding that the trial court had properly
prevented questioning the witness because “[t]he defendant made
no offer of proof to demonstrate that the [psychiatric] hospitalization
was in any way relevant to the defendant’s credibility three years
later at the time of trial”); People v. Norwood, 37 Colo. App. 157,
164, 547 P.2d 273, 279 (1975) (“The mere fact of [a psychiatric]
hospitalization for a period of six weeks, three and one-half years
before the trial, is too remote to affect, per se, a witness’
credibility.”).
¶ 12 Like the four-year-old incompetency finding regarding the
witness in McFee, the fact that the girlfriend attempted suicide at
some (unknown) point before the day of the assault was not
relevant for impeachment purposes at trial. Larimore claims that
he laid an adequate foundation for introducing this evidence
because he and the girlfriend “were dating when [the girlfriend]
attempted suicide, and Mr. Larimore commented to an officer on
the scene that she had been overmedicating with drugs and alcohol
since her suicide attempt.” But Larimore never asserted that the
7
girlfriend attempted suicide “close in time” to the assault; in fact, he
did not say when it happened at all. See McFee, ¶ 58. Nor did he
explain how the suicide attempt affected the girlfriend’s credibility
at trial. Accordingly, the court did not abuse its discretion by
precluding the defense from asking about the girlfriend’s past
suicide attempt.
¶ 13 We are not persuaded otherwise by Larimore’s contention that
this case more closely resembles United States v. Robinson,
1272, the district court precluded the defense from inquiring about
the mental health history of a confidential informant (CI) — “the
government’s star witness” — even though the CI had been
involuntarily committed to a mental health facility just six days
before trial and, at the time of his admission, was abusing drugs,
experiencing auditory hallucinations, seeing “things out through
the window that are not really there,” and possibly suffering from
psychosis. The Tenth Circuit reversed, noting that because of the
district court’s restrictions, “the jury saw an incomplete and
8
¶ 14 By contrast, testimony about the girlfriend’s past suicide
attempt would not have given the jury a “significantly different
impression” of her credibility at trial. Kinney, 187 P.3d at 559 (A
Confrontation Clause violation “is prejudicial when a reasonable
jury would have had a ‘significantly different impression’ of the
witness’s credibility had the defendant been allowed to pursue the
The jury heard testimony that on the day of the assault, the
girlfriend (1) argued with and yelled at Larimore; (2) drank alcohol,
smoked marijuana concentrate, and took her “mental health
medication” while drinking (contrary to the medication’s warning
label); (3) felt angry; (4) could not remember important facts about
that day, like whether she struck Larimore first; and (5) was unable
to calm down and “not really making much sense.”
B. Sufficiency of the Evidence
¶ 15 Next, Larimore contends that the evidence presented at trial
was insufficient to support his conviction for possessing a
schedule III, IV, or V controlled substance. Again, we disagree.
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1. Standard of Review and Governing Law
¶ 16 We review sufficiency-of-the-evidence claims de novo.
McCoy v. People, 2019 CO 44, ¶ 2. In reviewing such a claim, we
look at the entire record to 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 mind that
the defendant is guilty of the charge beyond a reasonable doubt.”
Clark v. People, 232 P.3d 1287, 1291 (Colo. 2010) (quoting People v.
Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). “It does
not matter that, were we the trier of fact, we might have reached a
different conclusion.” Id.
¶ 17 Larimore argues, specifically, that the evidence was
insufficient to support the charge of possessing a schedule III, IV, or
V controlled substance in violation of section 18-18-403.5(1), (2)(c).
As pertinent here, according to that statute, “it is unlawful for a
person knowingly to possess a controlled substance,”
§ 18-18-403.5(1), and a person who knowingly possesses “[a]ny
material, compound, mixture, or preparation that contains . . . any
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quantity of a controlled substance listed in schedule III, IV, or V . . .
commits a level 1 drug misdemeanor,” § 18-18-403.5(2)(c).
2. Discussion
¶ 18 The record contains the following evidence showing that
Larimore knowingly possessed a schedule III, IV, or V controlled
substance:
(1) during a consensual search of Larimore’s pocket, an
officer found an unlabeled prescription pill bottle in his
pocket;
(2) Larimore testified that the bottle contained “Klonopin”
2
tablets that he and the girlfriend had found near a creek;
(3) the girlfriend testified that another officer told her
Larimore had a bottle of pills and that she told the officer
she thought the pills were “Klonopin”;
(4) the pill bottle contained a labeled blister pack, folded in
half and containing twelve tablets, and the jury was
allowed to examine both the bottle and the blister pack;
2
Klonopin is a trade name for clonazepam. United States v.
Hargrove, 382 F. App’x 765, 773 n.12 (10th Cir. 2010).
11
(5) because the blister pack was factory-sealed and labeled,
the forensic drug chemist did not test the tablets;
(6) though the chemist admitted during cross-examination
that he could not “a hundred percent say that it is
[c]lonazepam,” he explained that when something is
“commercially manufactured, we can put in our report
that we can presumptively identify that this contains a
certain substance based on the packaging”; and
(7) the chemist testified that clonazepam is a schedule IV
controlled substance.
¶ 19 In our view, this evidence was substantial and sufficient to
support a conclusion by a reasonable mind that Larimore was
guilty, beyond a reasonable doubt, of possessing a schedule IV
469. We are not persuaded otherwise by Larimore’s contentions.
¶ 20 First, he asserts that because the chemist never tested the
tablets, and because the prosecutor presented no evidence that the
tablets resembled clonazepam tablets, no reasonable juror could
conclude, beyond a reasonable doubt, that the tablets were
clonazepam. But the absence of that evidence did not make it
12
improper for the jury to infer, based on its own inspection of the
label on the blister pack — as well as the testimony outlined above
— that the tablets were, indeed, clonazepam, a schedule IV
substantial evidence “test requires us to give the prosecution the
benefit of all reasonable inferences that might fairly be drawn from
the evidence.”).
¶ 21 Second, Larimore contends that the chemist offered improper
expert testimony when he said that he “simply read the label off the
commercially sealed packages” to identify the tablets as clonazepam
and that the chemist’s status as an expert “most likely swayed the
jury.” But as the People point out, the court sustained Larimore’s
objection, struck that testimony, and told the jury, “Ladies and
gentlemen, you will get this exhibit. . . . [I]t’s up to you to decide
what the packaging is.” Further, at the end of the trial, the court
instructed the jury,
You are not bound by the testimony of a
witness who has testified as an expert; the
credibility of an expert’s testimony is to be
considered as that of any other witness. You
may believe all of an expert witness’s
testimony, part of it, or none of it.
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The weight you give the testimony is entirely
your decision.
And we presume that the jury follows the instructions it receives.
People v. Flockhart, 2013 CO 42, ¶ 28.
III. Conclusion
¶ 22 For these reasons, we affirm the judgment.
JUDGE BERGER and JUDGE DAVIDSON concur.