Peo v. Lancaster

17CA1391 Peo v Lancaster 11-10-2021

COLORADO COURT OF APPEALS

Court of Appeals No. 17CA1391

Summit County District Court No. 16CR47

Honorable Mark D. Thompson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Walker Lancaster III,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART, VACATED IN PART,

AND CASE REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE NAVARRO

Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced November 10, 2021

Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Anne T. Amicarella, Deputy

State Public Defender, Denver, Colorado, for Defendant-Appellant

1

¶ 1

Defendant, William Walker Lancaster III, appeals the judgment

of conviction entered on jury verdicts finding him guilty of unlawful

possession and use of a controlled substance. Because we

conclude that the evidence was sufficient to support both

convictions but that they should merge, we affirm as to the

possession conviction but vacate as to the use conviction.

I. Sufficiency of the Evidence

¶ 2

Lancaster contends that the prosecution presented insufficient

evidence to permit the jury to (1) find him guilty as a complicitor

and (2) reject the affirmative defense set forth in section 18-1-711,

C.R.S. 2021. He is mistaken on both points.

A. Evidence Supporting the Convictions & Procedural History

¶ 3

Lancaster and Mark Largay were friends who had participated

in “drug court” (or “recovery court”) in Summit County. One

afternoon, Largay texted Lancaster to ask questions about fentanyl.

Largay asked whether a 25 mcg/h patch was “strong.” Lancaster

said, “[i]t’s not a bad dose but it really depends on whether it is a

gel patch or a papery Mylan patch. The gel patches are where it’s

at.” Largay asked about their “street price” because “[d]ude is

saying 60 [dollars].” Lancaster asked what type of patches they

2

were, and Largay sent him a photo of the label, which read in part,

“Fentanyl Transdermal System.” Lancaster replied, “fuckin sweet

dude. Do you want me to show you how to extract the gel?”

¶ 4

After Largay asked about their worth, Lancaster opined, “60 is

steep for a 25. . . . I’d say 30 but this is [S]ummit.” Lancaster also

advised, “[e]xtract the gel and you’ve got a nice party,” and said

fentanyl “is not tested for in the normal 10 or 12 panel urine tests.”

When Largay asked about smoking the fentanyl gel, Lancaster

reported that smoking it is “definitely effective” and “you just have

to be super careful. People die that way all the time but it definitely

works.” Lancaster then asked, “are you going to do it tonight? I’ll

split the cost with ya if you wanna wait til the AM?” Largay asked

how Lancaster would “do it” and said he wanted to talk with

Lancaster. Lancaster noted that he had smoked it once in the past

and he offered to call Largay. Largay said, “[o]k” and “I got 9 of em.”

¶ 5

The next day, Lancaster saw Largay in person and noticed that

he appeared seriously ill, which Lancaster assumed (and which

Largay effectively admitted to him) was due to fentanyl use. After

they returned to Largay’s home from running an errand, Lancaster

took a shower. Lancaster then went upstairs and found Largay

3

unconscious in his bedroom. Lancaster dragged Largay to the

shower, called 911, and performed chest compressions with

dispatcher guidance.

¶ 6

Paramedics arrived and determined that Largay was in cardiac

arrest. The paramedics were told (from unidentified people at the

scene) that Largay had a history of drug abuse but he had been

“clean” for 90 days. The paramedics administered epinephrine and

Narcan. These efforts were ultimately unsuccessful, and Largay

died in the ambulance on the way to the hospital.

¶ 7

Meanwhile, Deputy Sheriff Eric Sipes and Deputy Brian

Metzger responded to the scene. While the paramedics attempted

to revive Largay, the deputies questioned Lancaster. When the

officers asked about Largay’s drug history, Lancaster said that

Largay had a history of using “heroin” and “crystal meth.”

Lancaster also said that “from his knowledge,” he knew that Largay

had not “used in nine months.” When asked whether he was aware

if Largay had used drugs that evening, Lancaster repeatedly said he

had no knowledge of Largay using drugs.

¶ 8

As relevant to this appeal, Lancaster was charged with and

convicted of unlawful possession of a controlled substance and

4

unlawful use of a controlled substance, each as a complicitor to

Largay’s offenses. The trial court sentenced Lancaster to two years

in community corrections on the possession count and a

concurrent sentence of twelve months in jail on the use count.

B. Standard of Review and Elements of the Offenses

¶ 9

We review the record de novo 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 both in quantity and quality to support a

conclusion by a reasonable mind that the defendant is guilty of the

charge beyond a reasonable doubt. McCoy v. People, 2019 CO 44,

¶ 63.

¶ 10

A person commits unlawful possession of a controlled

substance if, unless authorized by Colorado law, they knowingly

possess a controlled substance. § 18-18-403.5(1), C.R.S. 2021. A

person commits unlawful use of a controlled substance if they use a

controlled substance, except when it is dispensed by or under the

direction of a person licensed or authorized by law to prescribe,

administer, or dispense the controlled substance for bona fide

medical needs. § 18-18-404(1)(a), C.R.S. 2021.

5

C. Complicity Liability

¶ 11

Under a complicity liability theory, “[a] person is legally

accountable as principal for the behavior of another constituting a

criminal offense if, with the intent to promote or facilitate the

commission of the offense, he or she aids, abets, advises, or

encourages the other person in planning or committing the offense.”

§ 18-1-603, C.R.S. 2021; see People in Interest of N.D.O., 2021 COA

100, ¶ 23 (“[C]omplicity is a theory by which a person commits a

crime.”).

¶ 12

The Colorado Supreme Court has interpreted the complicity

statute as imposing a dual mental state requirement. This means

the complicitor must have (1) “the intent, in the commonly

understood sense of desiring or having a purpose or design, to aid,

abet, advise, or encourage the principal in his criminal act or

conduct,” and (2) “an awareness of those circumstances attending

the act or conduct he seeks to further that are necessary for

commission of the offense.” People v. Childress, 2015 CO 65M,

¶ 29. The “circumstances attending the act or conduct” are “those

elements of the offense describing the prohibited act itself and the

6

circumstances surrounding its commission, including a required

mental state.” Id.

¶ 13

Lancaster does not dispute that Largay committed the crimes

of unlawful possession and use of a controlled substance. Rather,

Lancaster argues that the prosecution did not present evidence

sufficient to allow a reasonable jury to find that Lancaster was

aware of the circumstances surrounding Largay’s commission of the

offenses. We disagree.

¶ 14

The evidence as previously described provided ample support

for the jury’s finding that Lancaster, in the text messages,

intentionally aided, advised, and encouraged Largay in acquiring

and using fentanyl. Additionally, the evidence permitted the jury to

find that Lancaster was aware of (1) Largay’s intent to acquire and

use fentanyl; (2) the drug’s form, dosage, and packaging; (3) the

asking price, and whether that price was reasonable; (4) the fact

that Largay was buying the drug off the street; (5) the general

location of the buy (Summit County); (6) Largay’s likely method of

ingesting the drug; (7) the fact that Largay had purchased the drug

and the amount; and (8) the approximate times of Largay’s acts.

7

Indeed, the evidence allowed the jury to find that Lancaster offered

to share in the purchase price and use the drug with Largay.

¶ 15

Accordingly, the evidence supported the jury’s finding that

Lancaster was aware of the circumstances showing Largay’s

knowing possession and use of fentanyl. See Childress, ¶ 29; see

also Butler v. People, 2019 CO 87, ¶ 12 (“Assessing whether a

defendant may be found liable as a complicitor therefore requires a

determination of the requisite elements of the principal’s offense.”).

¶ 16

Nonetheless, Lancaster argues that the evidence did not show

he was aware of various other details surrounding Largay’s

conduct, such as the identity of Largay’s dealer, precisely where

Largay was during the text exchange, and precisely when Largay

would buy and use the drug.

¶ 17

Following Childress, however, our supreme court has stressed

that “complicitor liability requires awareness of all circumstances

necessary for the commission of the offense.” People in Interest of

B.D., 2020 CO 87, ¶ 12. “An individual commits an offense when he

completes all the statutory elements of that offense.” Id. at ¶ 13.

Hence, the dual mental state requirement does not extend to

circumstances that are not elements of the offense. See id. at ¶ 15

8

(“[B]ecause sentence enhancers are not elements of the offense,

Childress’s dual mental state requirement does not extend to

them.”). If the dual mental state requirement does not extend to

circumstances that enhance the complicitor’s sentence, surely the

requirement does not extend to the non-elemental details

surrounding the offense that Lancaster identifies (e.g., the specific

time and location of the drug purchase).

¶ 18

Relatedly, we are not persuaded by Lancaster’s contention that

there was an insufficient temporal connection between his behavior

and Largay’s offenses. In People v. Sandoval, 2018 COA 156 — a

case on which Lancaster relies — the division declined to impute a

temporal element to Colorado’s complicity statute. Id. at ¶ 17.

Specifically, the division rejected the notion that a complicitor must

have advance knowledge of the principal’s mental state and

conduct; instead, the division agreed that “even ‘roughly

contemporaneous knowledge by the complicitor of the principal’s

intent is sufficient.’” Id. at ¶ 18 (quoting People v. Alvarado, 284

P.3d 99, 103 (Colo. App. 2011)). The upshot is that either advance

knowledge or roughly contemporaneous knowledge by the

complicitor is sufficient to impose complicity liability.

9

¶ 19

The evidence here was sufficient to show that Lancaster had

both. The evidence permitted the jury to find that Largay obtained

nine fentanyl patches only hours after texting with Lancaster about

buying the drug.

¶ 20

Given all this, we conclude that the prosecution presented

sufficient evidence to support the jury’s findings that Lancaster

committed unlawful possession and use of a controlled substance

as a complicitor. See People v. Harrison, 2020 CO 57, ¶¶ 32-33.

D. The Affirmative Defense

¶ 21

Before trial, Lancaster filed a motion to dismiss in which he

asserted immunity under section 18-1-711(1), which precludes

criminal prosecution of a person who reports an emergency drug or

alcohol overdose. The trial court denied Lancaster’s motion

because it found that he did not cooperate with first responders as

required by the statute.

¶ 22

At trial, however, the court permitted Lancaster to raise an

affirmative defense based on section 18-1-711(1), and the court so

instructed the jury. Like the court had, the jury rejected it.

¶ 23

When an affirmative defense is submitted to the jury, “the

prosecution bears the burden of proving beyond a reasonable doubt

10

that the affirmative defense is inapplicable.” Roberts v. People,

2017 CO 76, ¶ 22. That is, the prosecution must present sufficient

evidence to disprove the affirmative defense. See Harrison, ¶¶ 30,

36. To do so, the prosecution need only disprove one condition of

the defense. See id. at ¶ 34.

¶ 24

Under section 18-1-711(1), a person is immune from arrest

and prosecution for unlawful possession and use of a controlled

substance if

(a) The person reports in good faith an

emergency drug or alcohol overdose event to a

law enforcement officer, to the 911 system, or

to a medical provider;

(b) The person remains at the scene of the

event until a law enforcement officer or an

emergency medical responder arrives or the

person remains at the facilities of the medical

provider until a law enforcement officer

arrives;

(c) The person identifies himself or herself to,

and cooperates with, the law enforcement

officer, emergency medical responder, or

medical provider; and

(d) The offense arises from the same course of

events from which the emergency drug or

alcohol overdose event arose.

11

(Emphasis added.)1

¶ 25

In Harrison, ¶ 29, our supreme court held that section 18-1-

711(1)(a) requires both that a person report in good faith what the

person “subjectively perceives” is an acute condition caused by the

consumption or use of drugs or alcohol and that a layperson would

reasonably believe that the reported condition is a drug or alcohol

overdose needing medical assistance. Therefore, “subsection (1)(a)

cannot be satisfied if the person making the report does not report

in good faith (i.e., with honesty) what she subjectively perceives is

an acute condition caused by the consumption or use of drugs or

alcohol.” Id. at ¶ 26.

1 Because we ultimately conclude that the evidence here was

sufficient to disprove this defense, we need not resolve the People’s

claim that this statute does not set forth an affirmative defense at

all. See People v. Harrison, 2020 CO 57, ¶ 19 (“[W]e assume

without deciding that Harrison was entitled to invoke the statute as

an affirmative defense to the charges brought against her.”).

Moreover, to the extent the People argue that we should never

entertain a defendant’s claim that the prosecution presented

insufficient evidence to disprove an affirmative defense, we reject

that argument as contrary to our supreme court’s jurisprudence.

See, e.g., id. at ¶ 30 (“[O]ur task is to discern whether the

prosecution presented sufficient evidence to disprove the affirmative

defense raised by Harrison pursuant to section 18-1-711.”).

12

¶ 26

For purposes of our analysis, we assume that Lancaster

satisfied subsection (1)(a) as described in Harrison. In other words,

when Lancaster called 911 and later spoke with the paramedics or

officers at the scene, he subjectively believed in good faith that

Largay was suffering from an acute condition caused by the use of

drugs. Id. This assumption is supported by Lancaster’s text

exchange with Largay as well as Lancaster’s later interview with an

officer in which he said he had assumed that Largay was noticeably

ill the day after their text conversation due to Largay’s use of the

fentanyl bought the day before.

¶ 27

Given Lancaster’s subjective understanding of Largay’s

condition, however, the jury could find that Lancaster failed to

cooperate with the officers or paramedics as required by section 18-

1-711(1)(c). Rather than communicate his belief that Largay was

suffering from a drug overdose, Lancaster repeatedly told Sipes and

Metzger that he was not aware that Largay had recently used drugs.

Indeed, when Metzger asked about Largay’s history of drug use,

Lancaster said that, to his knowledge, Largay had not used drugs in

nine months. A reasonable jury could decide that, by reporting the

opposite of what he believed to be true, Lancaster did not cooperate

13

with the paramedics or officers as they responded to Largay’s drug

overdose. See Merriam-Webster Dictionary,

https://perma.cc/56PV-F4XE (defining “cooperate” as “to act or

work with another or others”); see also People v. Bondurant, 2012

COA 50, ¶ 40 (noting that “cooperate” means to “act or work

together with another or others to a common end” (quoting

Webster’s Third New International Dictionary 501 (2002)).

¶ 28

Still, Lancaster maintains that subsection (1)(c) does not

require a person to “divulge the specifics of everything he knows or

even suspects in order to be cooperative.” But Lancaster’s failure to

report every detail he knew about Largay’s recent activities is not

the issue. Rather, the question before us is whether the jury could

reasonably find that Lancaster did not cooperate as required by

subsection (1)(c) where he failed to report his subjective belief that

Largay was suffering from a drug overdose and, instead, he reported

that Largay had not used drugs in months. We conclude that the

answer is “yes.”

¶ 29

Consequently, the prosecution presented sufficient evidence to

disprove the defense set forth in section 18-1-711(1).

14

II. Merger of Lancaster’s Convictions

¶ 30

Finally, Lancaster argues that the trial court erred by failing to

merge his convictions for unlawful possession of a controlled

substance and unlawful use of the same substance. See People v.

Villapando, 984 P.2d 51, 54 (Colo. 1999). He concludes that his

conviction for unlawful use (the lesser offense here) must be

vacated. The People agree, and we also agree. See People v. Wood,

2019 CO 7, ¶ 28.

¶ 31

So we vacate Lancaster’s conviction for unlawful use of a

controlled substance.

III. Conclusion

¶ 32

As to the conviction for unlawful possession of a controlled

substance, the judgment is affirmed. As to the conviction for

unlawful use of a controlled substance, the judgment is vacated.

The case is remanded with directions to the trial court to amend the

mittimus accordingly.

JUDGE GROVE and JUDGE PAWAR concur.