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 Lancas ter III, appeals the judgment of conviction entered on jury verdic ts finding him guilty of unlawful possession and use of a controlled substance. Because we conclude that the evidence was suf ficient to support both convictions but that they should m erge, we affirm as to the possession conviction but vacat e as to the use conviction. I. Sufficiency of the Evidence ¶ 2 Lancaster contends that the pros ecution presented insufficient evidence to permit the jury to (1) f ind him guilty as a complicitor and (2) reject the affirmative def ense set forth in section 18-1-711, C.R.S. 2021. He is mistaken on b oth points. A. Evidence Supporting the Convicti ons & Procedural History ¶ 3 Lancaster and Mark Largay wer e friends who had participated in “drug court” (or “recovery court” ) in Summit County. One afternoon, Largay texted Lancast er 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 r eally 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 ask ed what type of patches they 2 were, and Largay sent him a photo of the label, which read in part, “Fentanyl Transdermal System.” Lan caster replied, “fuckin sweet dude. Do you want me to show yo u how to extract the gel?” ¶ 4 After Largay asked about their wor th, 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’v e got a nice party,” and said fentanyl “is not tested for in the no rmal 10 or 12 panel urine tests.” When Largay asked about smoking the fentanyl gel, Lancaster reported that smoking it is “definit ely effective” and “you just have to be super careful. People die that way all the time but it definitely works.” Lancaster then asked, “ar e 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 s aid he wanted to talk with Lancaster. Lancaster noted that he had smoked it once in the past and he offered to call Largay. Lar gay said, “[o]k” and “I got 9 of em. ” ¶ 5 The next day, Lancaster saw Larg ay 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 fro m running an errand, Lancast er took a shower. Lancaster then w ent upstairs and found Largay 3 unconscious in his bedroom. Lanc aster dragged Largay to the shower, called 911, and perform ed chest compressions with dispatcher guidance. ¶ 6 Paramedics arrived and determin ed that Largay was in cardiac arrest. The paramedics were tol d (from unidentified people at th e scene) that Largay had a history of drug abuse but he had been “clean” for 90 days. The paramedi cs administered epinephrine an d Narcan. These efforts were ultim ately 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. W hile the paramedics attempted to revive Largay, the deputies quest ioned Lancaster. When the officers asked about Largay’s drug history, Lancaster said that Largay had a history of using “h eroin” and “crystal meth.” Lancaster also said that “from his knowledge,” he knew that Largay had not “used in nine months.” W hen asked whether he was awar e if Largay had used drugs that even ing, Lancaster repeatedly said h e had no knowledge of Largay using drugs. ¶ 8 As relevant to this appeal, Lancast er was charged with and convicted of unlawful possession o f a controlled substance and 4 unlawful use of a controlled subst ance, each as a complicitor to Largay’s offenses. The trial court sentenced Lancaster to two years in community corrections on th e possession count and a concurrent sentence of twelve m onths in jail on the use count. B. Standard of Review and Elements of the Offenses ¶ 9 We review the record de novo to de termine whether the relevant evidence, both direct and c ircumstantial, when viewed as a whole and in the light most favora ble to the prosecution, is substantial and sufficient both in quantity and quality to support a conclusion by a reasonable min d that the defendant is guilty of the charge beyond a reasonable doubt. McCoy v. People , 2019 CO 44, ¶ 63. ¶ 10 A person commits unlawful poss ession 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 us e a controlled substance, except wh en it is dispensed by or under th e direction of a person licensed or authorized by law to prescribe, administer, or dispense the contr olled 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 th e behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or s he aids, abets, advises, or encourages the other person in pla nning or committing the offens e.” § 18-1-603, C.R.S. 2021; see P eople in Interest of N.D.O. , 2021 CO A 100, ¶ 23 (“[C]omplicity is a theory by which a person commits a crime.”). ¶ 12 The Colorado Supreme Court has i nterpreted the complicity statute as imposing a dual mental state requirement. This means the complicitor must have (1) “th e intent, in the commonly understood sense of desiring or ha ving a purpose or design, to aid, abet, advise, or encourage the prin cipal in his criminal act or conduct,” and (2) “an awareness of those circumstances attending the act or conduct he seeks to furt her that are necessary for commission of the offense.” Peopl e v. Childress , 2015 CO 65M , ¶ 29. The “circumstances attendi ng the act or conduct” are “those elements of the offense describing t he prohibited act itself and the 6 circumstances surrounding its com mission, including a required mental state.” Id. ¶ 13 Lancaster does not dispute that La rgay committed the crimes of unlawful possession and use of a controlled substance. Rather, Lancaster argues that the prosec ution did not present evidence sufficient to allow a reasonable jury to find that Lancaster was aware of the circumstances surrou nding Largay’s commission of th e offenses. We disagree. ¶ 14 The evidence as previously descri bed 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, d osage, and packaging; (3) the asking price, and whether that pri ce was reasonable; (4) the fact that Largay was buying the drug off the street; (5) the general location of the buy (Summit Count y); (6) Largay’s likely method of ingesting the drug; (7) the fact t hat Largay had purchased the drug and the amount; and (8) the appro ximate times of Largay’s acts. 7 Indeed, the evidence allowed the j ury to find that Lancaster offered to share in the purchase price and use the drug with Largay. ¶ 15 Accordingly, the evidence support ed the jury’s finding that Lancaster was aware of the circum stances showing Largay’s knowing possession and use of f entanyl. See Childress , ¶ 29; s ee 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 elem ents of the principal’s offense.”). ¶ 16 Nonetheless, Lancaster argues that the evidence did not show he was aware of various other detai ls surrounding Largay’s conduct, such as the identity of Largay’s dealer, precisely where Largay was during the text exchan ge, 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 indivi dual commits an offense when h e completes all the statutory element s of that offense.” Id. at ¶ 13. Hence, the dual mental state requ irement does not extend to circumstances that are not elem ents of the offense. See id. at ¶ 15 8 (“[B]ecause sentence enhancers ar e not elements of the offense, Childress ’s dual mental state requ irement does not extend to them.”). If the dual mental stat e requirement does not extend to circumstances that enhance th e complicitor’s sentence, surely the requirement does not extend to th e non-elemental details surrounding the offense that Lan caster identifies (e.g., the specific time and location of the drug purchas e). ¶ 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 complici ty statute. Id. at ¶ 17. Specifically, the division rejected th e notion that a complicitor must have advance knowledge of the prin cipal’s mental state and conduct; instead, the division agr eed that “even ‘roughly contemporaneous knowledge by the complicitor of the principal’s intent is sufficient.’” Id. at ¶ 18 (q uoting People v. Alvarado , 284 P.3d 99, 103 (Colo. App. 2011)). The upshot is that either advanc e knowledge or roughly contemporaneo us knowledge by the complicitor is sufficient to impose c omplicity liability. 9 ¶ 19 The evidence here was sufficient t o show that Lancaster had both. The evidence permitted the j ury to find that Largay obtained nine fentanyl patches only hours a fter texting with Lancaster about buying the drug. ¶ 20 Given all this, we conclude that t he prosecution presented sufficient evidence to support the j ury’s findings that Lancaster committed unlawful possession an d use of a controlled substance as a complicitor. See People v. Ha rrison , 2020 CO 57, ¶¶ 32-33 . D. The Affirmative Defense ¶ 21 Before trial, Lancaster filed a moti on to dismiss in which he asserted immunity under section 1 8-1-711(1), which precludes criminal prosecution of a person w ho reports an emergency drug or alcohol overdose. The trial court d enied Lancaster’s motion because it found that he did not co operate with first responders as required by the statute. ¶ 22 At trial, however, the court permitt ed Lancaster to raise an affirmative defense based on secti on 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 s ubmitted to the jury, “the prosecution bears the burden of proving beyond a reasonable doubt 10 that the affirmative defense is ina pplicable.” Roberts v. People , 2017 CO 76, ¶ 22 . That is, t he prosecution must present suffici ent evidence to disprove the affirmativ e defense. See Harrison , ¶¶ 30, 36. To do so, the prosecution n eed only disprove one condition of the defense. See id. at ¶ 34. ¶ 24 Under section 18-1-711(1), a pers on is immune from arrest and prosecution for unlawful poss ession and use of a controlled substance if (a) The person reports in good fait h an emergency drug or alcohol overdos e event to a law enforcement officer, to the 911 system, or to a medical provider; (b) The person remains at the scen e of the event until a law enforcement officer or an emergency medical responder arriv es or the person remains at the facilities of t he medical provider until a law enforcement off icer arrives; (c) The person identifies himself or herself to, and cooperates with , the law enforc ement officer, emergency medical respon der, or medical provider; and (d) The offense arises from the sam e course of events from which the emergency drug or alcohol overdose event arose. 11 (Emphasis added.) 1 ¶ 25 In Harrison , ¶ 29, our supreme co urt held that section 18-1- 711(1)(a) requires both that a p erson report in good faith what the person “subjectively perceives” is a n acute condition caused by t he consumption or use of drugs or alc ohol and that a layperson would reasonably believe that the report ed condition is a drug or alcohol overdose needing medical assistanc e. Therefore, “subsection (1)(a) cannot be satisfied if the person m aking the report does not report in good faith (i.e., with honesty) wh at she subjectively perceives is an acute condition caused by the c onsumption or use of drugs or alcohol.” Id. at ¶ 26. 1 Because we ultimately conclud e that the evidence here was sufficient to disprove this defens e, 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 C O 57, ¶ 19 (“[W]e assume without deciding that Harrison wa s entitled to invoke the statute a s an affirmative defense to the charg es brought against her.”). Moreover, to the extent the People ar gue that we should never entertain a defendant’s claim that the prosecution presented insufficient evidence to disprove a n 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 affirmativ e defense raised by Harrison pursua nt to section 18-1-711.”). 12 ¶ 26 For purposes of our analysis, we a ssume that Lancaster satisfied subsection (1)(a) as descri bed in Harrison . In other words, when Lancaster called 911 and lat er spoke with the paramedics or officers at the scene, he subjectiv ely believed in good faith that Largay was suffering from an acut e condition caused by the use of drugs. Id. This assumption is su pported by Lancaster’s text exchange with Largay as well as La ncaster’s later interview with an officer in which he said he had as sumed that Largay was noticeably ill the day after their text conversat ion due to Largay’s use of the fentanyl bought the day before. ¶ 27 Given Lancaster’s subjective und erstanding of Largay’s condition, however, the jury could f ind that Lancaster failed to cooperate with the officers or param edics as required by section 18- 1-711(1)(c). Rather than communi cate his belief that Largay w as suffering from a drug overdose, Lan caster repeatedly told Sipes an d 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 knowl edge, Largay had not used drugs in nine months. A reasonable jury c ould decide that, by reporting the opposite of what he believed to be true, Lancaster did not cooperat e 13 with the paramedics or officers as t hey responded to Largay’s drug overdose. See Merriam-Webster Dictionary, https://perma.cc/56PV-F4XE (d efining “cooperate” as “to act or work with another or others”); s ee also People v. Bondurant , 2012 COA 50, ¶ 40 (noting that “cooper ate” 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 sub section (1)(c) does not require a person to “divulge the s pecifics of everything he knows or even suspects in order to be coo perative.” But Lancaster’s failure to report every detail he knew about Largay’s recent activities is not the issue. Rather, the question bef ore us is whether the jury could reasonably find that Lancaster di d 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 report ed that Largay had not used drugs in months. We conclude that th e answer is “yes.” ¶ 29 Consequently, the prosecution pr esented 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 t rial court erred by failing to merge his convictions for unlawf ul possession of a controlled substance and unlawful use of t he same substance. See People v. Villapando , 984 P.2d 51, 54 (Colo. 1999). He concludes that his conviction for unlawful use (the l esser offense here) must be vacated. The People agree, and w e also agree. See People v. W ood , 2019 CO 7, ¶ 28 . ¶ 31 So we vacate Lancaster’s convictio n for unlawful use of a controlled substance. III. Conclusion ¶ 32 As to the conviction for unlawful possession of a controlled substance, the judgment is affirm ed. As to the conviction for unlawful use of a controlled subst ance, the judgment is vacated. The case is remanded with directions to the trial court to amend th e mittimus accordingly. JUDGE GROVE and JUDGE PAWA R concur.