Peo v. Larimore

Opinion

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.

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¶ 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.

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Viewing

the evidence in the light most favorable to the verdict, Larimore

pushed the girlfriend during the fight, first into the front door and

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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.

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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

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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.

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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,

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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

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compromised because of the earlier incompetency finding.” Id. at

¶ 62; see also People v. Gladney, 194 Colo. 68, 73, 570 P.2d 231,

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

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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,

583 F.3d 1265 (10th Cir. 2009). In Robinson, 583 F.3d at 1267,

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

inaccurate picture of the CI’s credibility.” Id. at 1267.

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¶ 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

desired cross-examination.” (quoting Van Arsdall, 475 U.S. at 680)).

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”

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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).

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(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

controlled substance. See Bennett, 183 Colo. at 130, 515 P.2d at

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

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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

controlled substance. See People v. Donald, 2020 CO 24, ¶ 19 (The

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.