23CA0712 Peo v Alarcon 03-26-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0712 Larimer County District Court No. 21CR722 Honorable Stephen J. Jouard, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Cruz Victor Alarcon,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division II Opinion by JUDGE KUHN Fox and Sullivan, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 26, 2026
Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Cruz Victor Alarcon, was convicted of two counts of
possession with intent to distribute a controlled substance. He
appeals his judgment of conviction, seeking a new trial. We affirm.
I. Background
¶2 In January 2021, law enforcement received an anonymous tip,
alleging that Alarcon and his partner, Sarah Sewolt, were “engaged
in the sale and distribution of methamphetamine and fentanyl from
their home.” The tip prompted Sergeant Josiah Thiemann to surveil
Alarcon and his home.
¶3 On April 23, Sergeant Thiemann was surveilling the home.
Around 5:25 p.m., he saw a dark blue or purple truck arrive with a
woman driving and a man in the passenger seat. The man was
later identified as Marcelino Moreno, Alarcon’s nephew. The woman
remained in the truck while Moreno met Alarcon in the backyard.
Alarcon and Moreno then went into a shed for approximately five
minutes and came out with no tools in hand. Moreno and Alarcon
were seen looking down the street and over their shoulders.
Sergeant Thiemann characterized this behavior as being consistent
with “countersurveillance.”
1 ¶4 Moreno returned to the truck, which was still running with the
woman in the driver’s seat. As the two drove away, Sergeant
Thiemann observed Moreno looking in the mirrors “harder than
normal.” Sergeant Thiemann communicated the truck’s description
to Deputy Kyle Ryan, who then started following the truck. Deputy
Ryan observed Moreno turning around in the truck and “looking at
his surroundings.” The truck then pulled into a gas station and
stopped at a gas pump, but neither Moreno nor the woman pumped
any gas. A short time later, Moreno moved the truck from the gas
pump to the air station. Moreno picked up the air tube and
checked the tires, but he did not fill any of the tires with air.
¶5 During this time, Sergeant Thiemann was still surveilling
Alarcon’s home. He saw Alarcon and Sewolt leave the house in
their SUV around 6:18 p.m. The two headed in the direction of the
gas station while Sergeant Thiemann followed them. When Alarcon
and Sewolt arrived at the gas station, they parked next to the truck.
Moreno got out of the truck and entered Alarcon’s SUV with a
backpack. Alarcon’s SUV then pulled out of the gas station.
Sergeant Thiemann and Deputy Ryan followed behind Alarcon’s
SUV until Deputy Ryan could initiate a traffic stop.
2 ¶6 Deputy Ryan identified all the passengers in the SUV. He then
had them get out of the SUV so that a K-9 unit’s trained drug dog
could do an initial drug sniff around the outside of the SUV. Based
on the results of the dog’s sniff, Deputy Ryan concluded that there
was probable cause to search the SUV. In the SUV, he found a
backpack with a Ziplock baggie containing what appeared to be
meth and a grocery bag with a “large quantity of small blue pills”
consistent with fentanyl. Deputy Ryan also found a cell phone in
the center console. Alarcon was placed under arrest and later
charged with two counts of possession with intent to distribute a
controlled substance. See § 18-18-405(1)(a), (2)(a)(I)(B), (2)(c)(I),
C.R.S. 2025.
¶7 Before trial, Alarcon moved to suppress the drug evidence
obtained during the traffic stop, arguing that officers did not have
reasonable articulable suspicion to justify stopping Alarcon’s SUV
and detaining its passengers. The trial court denied the motion,
and the evidence was admitted at trial. The prosecution also
introduced evidence at trial that Alarcon had previously sold meth
and fentanyl. Ultimately, the jury found Alarcon guilty as charged,
and he was convicted and sentenced to concurrent sentences of
3 twelve years on the first count and six years on the second count in
the custody of the Department of Corrections.
¶8 Alarcon now appeals.
II. Analysis
¶9 Alarcon contends that (1) the trial court erred when it denied
his motion to suppress because police officers did not have
reasonable suspicion to conduct an investigatory stop; (2) his prior
statements and text messages were admitted in violation of CRE
404(b) and CRE 403; and (3) Deputy Ryan’s testimony usurped the
function of the jury when he opined on Alarcon’s likelihood of guilt.
We see no basis for reversal.
A. Police Officers Had Reasonable Suspicion to Stop Alarcon’s Car
¶ 10 Alarcon argues that the officers lacked reasonable suspicion to
pull him over because none of the anonymous tip, Alarcon’s
behavior by the shed, or Moreno’s behavior at the gas station
constituted reasonable suspicion.
¶ 11 If a police officer has a reasonable suspicion that criminal
activity is afoot, they may conduct a brief investigatory stop. People
v. Brown, 2019 CO 63, ¶ 10. An officer has a reasonable suspicion
4 when they “have ‘a specific and articulable basis in fact for
suspecting that criminal activity has occurred, is taking place, or is
about to take place.’” Id. (quoting People v. Perez, 690 P.2d 853,
855 (Colo. 1984)). To determine whether a police officer had
reasonable suspicion to conduct an investigatory stop, “courts look
to the totality of the circumstances, keeping in mind that ‘[a]n
officer is entitled to draw reasonable inferences from all the
circumstantial evidence.’” Id. at ¶ 11 (alteration in original) (quoting
People v. Threlkel, 2019 CO 18, ¶ 20).
¶ 12 As the People point out, the Colorado Supreme Court has
already evaluated whether there was reasonable suspicion for the
stop challenged here. In People v. Moreno, 2022 CO 19, the
prosecution also charged Moreno, Alarcon’s nephew, with intent to
distribute the controlled substances found during the stop of
Alarcon’s car. Id. at ¶ 8. Moreno moved to suppress the evidence of
the meth and fentanyl found in the backpack, and the trial court
granted the motion. Id. at ¶¶ 8-9. The People then filed an
interlocutory appeal to the supreme court, which ultimately
reversed the trial court’s suppression order.
5 ¶ 13 The supreme court held that “under the totality of the
circumstances, the officers had reasonable suspicion to conduct the
stop.” Id. at ¶ 1. First, the court stated that the original tip about
Alarcon and Sewolt may have been “problematic” because it was
stale at three months old. Id. at ¶ 19. The court noted that while
that fact is “certainly a factor, it is not dispositive; instead, the
totality of the circumstances must be considered.” Id. (quoting
People v. Brown, 2019 CO 63, ¶ 13). The court then detailed the
factors supporting the officer’s suspicion: the detailed nature of the
tip, Moreno’s and Alarcon’s “strange” and “hypervigilant” behavior
while at Alarcon’s home, and Moreno’s continued strange behavior
at the gas station. Id. at ¶¶ 20-21.
¶ 14 Alarcon argues that none of these facts, considered
individually, amount to reasonable suspicion. And the supreme
court agreed with that point in Moreno. Id. at ¶ 23 (“[A]ny one of
these facts by itself would be insufficient to give rise to reasonable
suspicion.”). But as it also noted, courts must determine whether
reasonable suspicion exists based on the totality of the
circumstances, not individual facts in isolation. Id. at ¶ 15. After
considering the totality of the circumstances, the supreme court
6 concluded that the facts discussed above “established reasonable
suspicion” to conduct an investigatory stop. Id. at ¶ 23.
¶ 15 In spite of this holding, Alarcon argues that we should reach a
different conclusion when we evaluate the stop. In support, he
asserts that in Moreno the supreme court relied on Moreno’s actions
after he left Alarcon’s house. He argues that, in this case, we
should consider only Alarcon’s actions. Finally, he asserts that
once we exclude Moreno’s actions, “the totality of the circumstances
here could not establish reasonable suspicion to stop Alarcon’s car
and detain him.”
¶ 16 But only one stop is challenged in both cases. And the
question before the supreme court in Moreno was whether officers
had reasonable suspicion to stop Alarcon’s car. See id. at ¶ 7 (“The
second officer in the patrol car then stopped [Alarcon’s] SUV on
suspicion of drug trafficking activity.”). In reaching its conclusion
in that case, the supreme court didn’t rely on facts that only
involved Moreno. To the contrary, several of the key facts
underpinning its decision directly involved Alarcon, including the
detailed and corroborated tip and his interaction with Moreno at his
house. So in considering the totality of the circumstances justifying
7 the stop of Alarcon’s SUV, the supreme court relied on Alarcon’s
behavior and his interactions with Moreno, as well as Moreno’s
later suspicious behavior.
¶ 17 We also don’t agree with the premise of Alarcon’s argument
that we should exclude Moreno’s behavior when considering the
totality of the circumstances around the stop and subsequent
detention. Moreno’s behavior at the gas station was relevant to the
challenged traffic stop. But even if we only considered the tip about
Alarcon and Sewolt, Alarcon’s interaction with Moreno at the house,
and their later interaction at the gas station, we would conclude
that there was reasonable suspicion to stop the car and temporarily
detain Alarcon and Moreno.
¶ 18 Consequently, whether we were to treat the supreme court’s
decision in Moreno as binding precedent, see People v. Allen, 111
P.3d 518, 520 (Colo. App. 2004), or persuasive in light of Alarcon’s
different factual arguments, we would reach the same conclusion.
We perceive no error in the trial court’s denial of Alarcon’s motion to
suppress.
8 B. Alarcon’s Prior Statements and Text Messages Did Not Violate Rule 404(b) and Rule 403
¶ 19 Alarcon next argues that the trial court erred when it admitted
his prior statements and text messages about past drug activity.
He claims that admitting the evidence violated Rule 404(b) and
People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). Alarcon also
claims that the prosecutor engaged in misconduct by mentioning
this evidence during closing arguments. We disagree.
1. Applicable Law and Standard of Review
¶ 20 Rule 404(b)(1) prohibits admitting “[e]vidence of any other
crime, wrong, or act . . . to prove a person’s character in order to
show that on a particular occasion the person acted in conformity
with the character.” However, this type of evidence can be admitted
for other purposes, such as to prove “motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.” CRE 404(b)(2). To determine if prior act evidence can
be admitted under one of these exceptions, courts apply a four-part
Spoto analysis. Spoto, 795 P.2d at 1318.
¶ 21 First, we must determine whether the evidence “relates to a
material fact.” Id. Second, if the evidence relates to a material fact,
9 we then ask whether the evidence is “logically relevant, i.e., does it
have ‘any tendency to make the existence of [the material fact] more
probable or less probable.’” Id. (quoting CRE 401) (alteration in
original). Third, “[i]f the evidence is logically relevant, we then must
determine whether the logical relevance is independent of the” bad
character inference prohibited under Rule 404(b). Id. Fourth, we
evaluate “whether the probative value of the evidence is
substantially outweighed by the danger of unfair prejudice,” which
would violate Rule 403. Id.
¶ 22 We review evidentiary rulings for an abuse of discretion.
People v. Quillen, 2023 COA 22M, ¶ 14. A court abuses its
discretion when “its ruling is manifestly arbitrary, unreasonable, or
unfair, or if it misconstrues or misapplies the law.” Id.
¶ 23 Alarcon does not challenge the first two prongs, so we focus on
prongs three and four of Spoto.
2. Additional Background
¶ 24 At trial, the prosecution introduced a number of text message
exchanges extracted from a cell phone Alarcon possessed at the
time of his arrest. These text messages suggested that Alarcon was
buying and selling meth and fentanyl. The prosecution also
10 introduced statements that Alarcon made to Deputy Ryan when he
was interviewed after his arrest. Alarcon said that he had (1) traded
a vehicle for $6,000 worth of meth a few months before the arrest
and (2) received about three pounds of meth in the trade.
3. The Logical Relevance of Past Drug Distribution Is Independent of the Bad Character Inference Prohibited Under Rule 404(b)
¶ 25 Alarcon argues that admitting this evidence violated the third
prong of Spoto because it was relevant only to establish his bad
character and allowed the jury to infer that he committed the
charged offenses here because he acted in conformity with that bad
character. We disagree.
¶ 26 The evidence consisted of statements that Alarcon had
purchased or traded for meth in the past, and the text messages
suggested that Alarcon had previously sold meth and fentanyl in
the months leading up to the charges. The trial court concluded
that this evidence was relevant to show Alarcon’s intent to
distribute the drugs. This theory of relevance is independent of the
prohibited bad character inference. In other words, the jury did not
have to rely on the inference that Alarcon committed a bad act on
this occasion because he had committed a bad act on a prior
11 occasion. Instead, the jury could evaluate the evidence that he had
previously sold drugs to decide whether he intended to sell the
drugs he was caught with on this occasion. This theory of
relevance is independent of the prohibited character inference and
satisfies prong three. See People v. Salyer, 80 P.3d 831, 838 (Colo.
App. 2003) (“[E]vidence of defendant’s prior drug dealing qualified
for admission because it tended to show, apart from any prohibited
inference of bad character, that defendant possessed the marijuana
recovered by the sheriff’s officers with [the] intent to distribute it.”).1
We therefore perceive no abuse of discretion in the trial court’s
ruling.
4. The Probative Value of the Prior Statements and Text Messages Was Not Outweighed by the Danger of Unfair Prejudice
¶ 27 Alarcon argues that the evidence fails to satisfy the fourth
prong of Spoto because “[t]he very nature of the statements and text
1 Alarcon argues that People v. Salyer, 80 P.3d 831, 838 (Colo. App.
2003), differs from the case at hand because the CRE 404(b) issue in Salyer was unpreserved. We note that, as Alarcon acknowledges, the division in Salyer didn’t find “error, much less plain error,” when resolving the case. Id. The evidence of prior drug dealing in Salyer was admissible and relevant to prove intent, “apart from any prohibited inference of bad character.” Id.
12 messages [were] inflammatory and likely incited the jury to convict
Alarcon on an improper basis . . . because of the nature of the
substances referenced[:] meth and fentanyl.” We are not convinced.
¶ 28 “Evidence is unfairly prejudicial if it has ‘some undue
tendency to suggest a decision on an improper basis, commonly an
emotional basis, such as bias, sympathy, hatred, contempt,
retribution, or horror.’” People v. Gonzales, 2019 COA 30, ¶ 34
(quoting People v. Cardenas, 2014 COA 35, ¶ 52), aff’d, 2020 CO
71. Rule “403 ‘strongly favors the admission of relevant evidence.’”
People v. Schnorenberg, 2025 CO 43, ¶ 42 (quoting People v.
Greenlee, 200 P.3d 363, 367 (Colo. 2009)). “Accordingly, a
reviewing court must afford the evidence its maximum probative
value and minimum prejudicial effect.” Id. “Evidence is not
unfairly prejudicial ‘simply because it damages the defendant’s
case.’” People v. Dominguez, 2019 COA 78, ¶ 30 (quoting People v.
Dist. Ct., 785 P.2d 141, 147 (Colo. 1990)).
¶ 29 While meth and fentanyl may elicit a negative or
“inflammatory” reaction, Alarcon does not explain how these
potentially damaging qualities make the evidence of past
distribution unfairly prejudicial. This is particularly true given that
13 the jury heard testimony about how Alarcon was found in
possession of a pound of meth and about 100 fentanyl pills. Given
these facts, we don’t see — and Alarcon doesn’t explain — how the
evidence that he had previously dealt these two drugs was unfairly
prejudicial. Accordingly, the trial court didn’t err by concluding
that the probative value of Alarcon’s prior statements and text
messages about past drug distribution was not outweighed by the
danger of unfair prejudice.
5. The Prosecution Did Not Engage in Prosecutorial Misconduct
¶ 30 In his opening brief, Alarcon contends that the prosecution
engaged in misconduct because the prosecutor used Alarcon’s prior
statements and text messages to make propensity arguments
during closing arguments. In his reply brief, Alarcon clarifies that
this alleged prosecutorial misconduct exacerbated the impact of the
error in admitting the evidence, rendering its admission not
harmless. But because we hold that the trial court did not err by
admitting the evidence in the first place, we conclude there is no
harm to analyze.
14 ¶ 31 To the extent that Alarcon intended to argue that the
prosecutor’s alleged misconduct in closing argument independently
entitles him to relief, we conclude that this argument is
underdeveloped. Alarcon does not identify any prosecutorial
misconduct legal standards, let alone explain how those standards
apply here. We therefore decline to address that contention further.
See People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining
to address arguments presented in a perfunctory or conclusory
manner).
C. Deputy Ryan’s Testimony Does Not Require Reversal
¶ 32 Finally, Alarcon argues that the trial court erred when it
admitted certain expert testimony from Deputy Ryan. Alarcon
argues that Deputy Ryan’s statements usurped the function of the
jury because he weighed the evidence in the case and testified that
Alarcon was likely guilty of possession with intent to distribute.
¶ 33 Testimony that merely “embraces an ultimate issue” is not
objectionable, however, “an expert witness can’t tell the jury what
result to reach or form conclusions for the jurors that they are
competent to reach on their own.” People v. Baker, 2019 COA 165,
15 ¶ 14, aff’d, 2021 CO 29. For example, an expert cannot opine on
and weigh the evidence in the case, as this is a matter “for the jury
alone.” Id. at ¶ 16.
¶ 34 We consider “a number of factors when determining whether
[an] expert[’s] testimony usurped the function of the jury.” People v.
Rector, 248 P.3d 1196, 1202 (Colo. 2011). These factors include
whether “the testimony was clarified on cross-examination, . . .
whether the expert’s testimony expressed an opinion of the
applicable law or legal standards thereby usurping the function of
the court, . . . whether [the] jury was properly instructed on the law
and that it may accept or reject the expert’s opinion[, and] . . .
whether an expert opined that the defendant committed the crime
or that there was a particular likelihood that the defendant
committed the crime.” Id. at 1203 (citations omitted).
¶ 35 Though we review evidentiary rulings for an abuse of
discretion, Quillen, ¶ 14, if the issue is “not preserved by
objection[,]” we will only reverse if there was plain error, Hagos v.
People, 2012 CO 63, ¶ 14. “Plain error is obvious and substantial[,]
. . . [and] permit[s] an appellate court to correct ‘particularly
egregious errors.’” Hagos, ¶ 14 (quoting Wilson v. People, 743 P.2d
16 415, 420 (Colo. 1987)). To rise to the level of plain error, the error
“must be so clear-cut, so obvious, that a trial judge should be able
to avoid it without the benefit of objection.” People v. Pollard, 2013
COA 31M, ¶ 39. An error is ordinarily this obvious if it violates
“(1) a clear statutory command; (2) a well-settled legal principle; or
(3) Colorado case law.” Scott v. People, 2017 CO 16, ¶ 16 (quoting
Pollard, ¶ 40). An error is substantial, warranting reversal, “only if
[it] ‘so undermined the fundamental fairness of the trial itself so as
to cast serious doubt on the reliability of the judgment of
conviction.’” Hagos, ¶ 14 (quoting People v. Miller, 113 P.3d 743,
750 (Colo. 2005)).
2. Deputy Ryan’s Testimony About the Text Messages
¶ 36 Alarcon challenges Deputy Ryan’s answers to a series of
questions about the text messages on Alarcon’s phone indicating he
was selling drugs:
[Prosecutor]: In your experience and review of the text messages, do these messages support that Mr. Alarcon had the opportunity to distribute controlled substances in April of 2021?
[Defense Counsel]: Objection to foundation.
THE COURT: Overruled. I’ll allow that.
17 DEPUTY RYAN: Yes. The text messages support that.
....
[Prosecutor]: [I]n your expert opinion, do these messages provide evidence that Mr. Alarcon had the knowledge to distribute controlled substances in April of 2021?
DEPUTY RYAN: Yes, they do.
[Prosecutor]: In your expert review of these messages, do these messages provide evidence that in April 2021 Mr. Alarcon did not possess these drugs by accident?
DEPUTY RYAN: Yes. In my expert review of the messages, I reach a conclusion it appears the user of this phone was both seeking[,] purchasing[,] and distributing controlled substances.
[Prosecutor]: Based on your experience in drug distribution investigations, do these te[x]t messages provide evidence that proves that Mr. Alarcon had the intent to sell or distribute controlled substances in April 2021?
DEPUTY RYAN: Yes.
¶ 37 Most of these questions are not problematic. In them, the
prosecutor asked whether the text messages supported or provided
evidence that Alarcon had knowledge, opportunity, or intent to
possess and distribute controlled substances. These are all
appropriate subjects for expert testimony.
18 ¶ 38 But as noted above, an expert witness cannot opine on and
weigh the evidence in a case. Baker, ¶ 16. The last two questions
in this series run afoul of this rule. Deputy Ryan testified that he
had concluded that Alarcon was seeking, purchasing, and
distributing controlled substances. And Deputy Ryan responded
affirmatively when the prosecutor asked if the text messages proved
that Alarcon had the intent to distribute drugs. In giving these
answers, Deputy Ryan weighed the evidence of the text messages
and opined that it proved intent.
¶ 39 But even if this testimony was inadmissible, we conclude that
any error wasn’t “so clear-cut, so obvious, that a competent trial
judge should [have been] able to avoid it without [the] benefit of [an]
objection.” People v. Beilke, 232 P.3d 146, 152 (Colo. App. 2009).
The two questions occurred near the middle of sixty-eight transcript
pages of Deputy Ryan’s testimony. As noted, they occurred in a
series of questions that neither called for nor contained
inappropriate testimony. During Deputy Ryan’s testimony, defense
counsel actively and frequently objected to questions or resulting
answers, including the questions immediately surrounding the ones
Alarcon challenges on appeal. And the trial court sustained many
19 of those objections. Yet defense counsel did not object to these two
questions. And even if we didn’t reach this conclusion, this
testimony was, at least in part, cumulative of other witness
testimony. Given all of these facts, we don’t perceive these two
questions as “cast[ing] serious doubt on the reliability of the
judgment of conviction.” See Pollard, ¶ 43 (quoting Hagos, ¶ 14).
We therefore conclude that the trial court did not plainly err by not
sua sponte striking the answers to these two questions.
3. Deputy Ryan’s Testimony About the Amount of Drugs
¶ 40 Deputy Ryan also testified that Alarcon “had been in a vehicle
with a significant amount of controlled substances, an amount of
controlled substances that [Deputy Ryan] suspected, based on [his]
training and experience, to be only possessed for the purposes of
distribution.” He testified that in his experience, someone carrying
around a pound of meth was inconsistent with “here-and-there
usage.”
¶ 41 Applying the Rector factors, we see no error. Deputy Ryan did
not opine that Alarcon likely committed the crime because of the
amount of drugs found in the car. Rector, 248 P.3d at 1202.
20 Instead, he merely opined that the amount of drugs Alaron
possessed was inconsistent with personal use based on his years of
experience. Though Deputy Ryan’s testimony was not clarified on
cross-examination, the jury was properly instructed. Id. It was told
that it was “not bound by the testimony of witnesses who . . .
testified as experts; the credibility of an expert’s testimony [was] to
be considered as that of any other witness. [And the jury was
allowed to] . . . believe all of an expert witness’s testimony, part of it,
or none of it.” Moreover, Deputy Ryan did not opine as to the legal
standard the court should apply.
¶ 42 Considering the Rector factors, we conclude that Deputy Ryan
did not usurp the function of the jury. The trial court did not err by
not sua sponte excluding this testimony.
III. Disposition
¶ 43 The judgment of conviction is affirmed.
JUDGE FOX and JUDGE SULLIVAN concur.