Peo v. Miller

Opinion

23CA1122 Peo v Miller 07-10-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1122 El Paso County District Court No. 22CR5058 Honorable Laura N. Findorff, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cara Powers Miller,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I Opinion by JUDGE J. JONES Kuhn and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 10, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Claire Pakis, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Cara Powers Miller, appeals the district court’s

judgment of conviction entered on jury verdicts finding her guilty of

one count of possession of a controlled substance with intent to sell

or distribute, three counts of possession of a controlled substance,

and one count of possession of drug paraphernalia. We affirm.

I. Background

¶2 Late one rainy night, Colorado Springs Police Department

Officer Spinelli saw a car drive by her patrol car without a license

plate “where the license plate normally would go.” She pulled over

the car. When she started walking to the car, she saw what looked

like a temporary tag taped to the inside of the rear window.

¶3 Officer Spinelli spoke to the driver through the passenger side

window. He gave her a purported bill of sale for the car. Miller was

sitting in the passenger seat. Officer Spinelli saw a roll of tinfoil at

Miller’s feet. When backup arrived, Officer Spinelli went around to

the driver’s side of the car. After another officer saw a piece of

tinfoil with burnt residue on it inside the car near the driver’s feet,

the officers told the driver and Miller to get out of the car. (Miller

was uncooperative throughout the encounter, until officers pulled

her out of the car.) Miller had a glass pipe in her hand.

1 ¶4 Officers searched Miller and the car, finding (1) $236 in cash

(in Miller’s bra); (2) a glass tube (on the passenger seat); (3) a bag

with pills separated into groups of smaller bags (under the

passenger seat); (4) cut straws, tinfoil, needles, and more baggies (in

Miller’s purse); (5) small amounts of suspected heroin; and (6) an

“air-soft” gun (underneath the passenger seat). Following lab

testing of the suspected drugs, the People charged Miller with one

count of possession with intent to sell or distribute a controlled

substance (fentanyl), three counts of possession of a controlled

substance (methamphetamine, heroin, and cocaine), and one count

of possession of drug paraphernalia. A jury found her guilty of all

charges.

II. Discussion

¶5 Miller contends that (1) the district court erred by denying her

motion to suppress the evidence obtained as a result of the traffic

stop; (2) the evidence was insufficient to prove that she possessed

four or more grams of fentanyl; and (3) the district court erred by

failing to give the jury a “bridge instruction” in connection with the

instruction on the lesser included offense of simple possession of

fentanyl. We address and reject these contentions in turn.

2 A. Motion to Suppress

¶6 Miller’s attorney moved to suppress the evidence obtained

from the traffic stop, arguing that although Officer Spinelli had

reasonable suspicion to make the traffic stop, that reasonable

suspicion evaporated once she got out of her patrol car and saw the

temporary tag taped to the inside of the rear window.1 Following an

evidentiary hearing, the district court denied the motion. It relied

primarily on People v. Hayes, 2020 COA 175, in which the division

held that when a temporary tag isn’t properly placed in accordance

with sections 42-3-202 and -203, C.R.S. 2024, there is reasonable

suspicion for an investigatory stop. In this case, as in Hayes, the

temporary tag’s placement didn’t comply with sections 42-3-202

and -203, so, the district court ruled, the continuation of the stop

was lawful.

¶7 On appeal, Miller advances the same argument she made

below, focusing on Officer Spinelli’s testimony that, when she first

saw the tag, she didn’t recall the law applicable to the placement of

tags, but was told of it by another officer who arrived at the scene

1 As it turns out, the temporary tag was a fake.

3 as backup. According to Miller, this means there was no

reasonable suspicion at the point when officers first saw suspicious

items in the car. We reject Miller’s argument.

1. Standard of Review

¶8 Our review of a district court’s ruling on a motion to suppress

evidence involves a mixed question of fact and law. People v.

Threlkel, 2019 CO 18, ¶ 15. We defer to the district court’s factual

findings if they have record support but review de novo the court’s

legal conclusions. Id. If, as in this case, the issue presented on

appeal is preserved and we determine that the court erred by

denying the motion, we reverse unless the People show that the

error was harmless beyond a reasonable doubt. Pettigrew v. People,

2022 CO 2, ¶ 50; see also Hagos v. People, 2012 CO 63, ¶ 11.

2. Analysis

¶9 One exception to the Fourth Amendment’s warrant

requirement is that an officer may make an investigatory stop if

there is reasonable suspicion of criminal activity. People v. Vaughn,

2014 CO 71, ¶ 11. “In the context of traffic stops, an officer need

only have a reasonable suspicion of a traffic violation — i.e., an

4 objectively reasonable basis to believe that a driver has committed a

traffic offense — in order to pull the driver over.” Id.

¶ 10 “[A]n officer’s subjective motives for stopping a driver are

irrelevant in determining whether an officer had reasonable

suspicion.” Id. Rather, “[w]hat is relevant is the existence of

specific and articulable facts and the rational inferences from those

facts that create a reasonable suspicion of criminal activity.” People

v. Cherry, 119 P.3d 1081, 1083 (Colo. 2005); accord People v.

Wheeler, 2020 CO 65, ¶ 13 (noting that this is an objective

analysis).

¶ 11 In Hayes, the division addressed the same factual situation as

that before us in this case. A police officer saw a car that he

thought didn’t have either a license plate or a temporary tag.

Hayes, ¶ 3. But after the officer stopped the car, he saw a

temporary tag in the rear window. Id. After determining that the

placement of the temporary tag violated sections 42-3-202 and -

203, the division held that the violation constituted reasonable

suspicion and that “[t]he stop continued to be lawful even after the

officer saw the temporary [tag] because it was not in the location

required by law.” Hayes, ¶ 24.

5 ¶ 12 We don’t see any meaningful distinction between this case and

Hayes. Officer Spinelli also thought the car didn’t have a plate or

tag but saw a temporary tag in the rear window when she got out of

her patrol car. The placement of the tag was a fact known to Officer

Spinelli and therefore objectively established reasonable suspicion

for continuing the stop and questioning the car’s occupants.

¶ 13 Whether Officer Spinelli immediately recognized the legal effect

of the tag’s placement is neither here nor there: the inquiry is an

objective one based on the facts known by the officer. Therefore, we

don’t need to address Miller’s contention that the district court

erred by finding that Officer Spinelli “was not sure if she could

exactly remember the location of where a temporary tag should be

at the time she made the stop.”

¶ 14 People v. Redinger, 906 P.2d 81 (Colo. 1995), on which Miller

relies, doesn’t dictate a contrary conclusion. As the division

recognized in Hayes, in Redinger, “there was no issue regarding the

location of the temporary plate.” Hayes, ¶ 15. That is, the location

of the temporary tag in Redinger didn’t violate the law in effect at

the time.

6 ¶ 15 We therefore conclude that the district court didn’t err by

denying the motion to suppress.

B. Sufficiency of the Evidence

¶ 16 Miller challenges the sufficiency of the evidence that she

possessed the requisite amount of fentanyl with intent to sell or

distribute to constitute a level 2 drug felony. She argues that the

prosecution was required to prove that the fentanyl weighed more

than four grams to prove that she committed a level 2 drug felony.

See § 18-18-405(1), (2)(b)(I)(D), C.R.S. 2024.2

¶ 17 Miller focuses primarily on the testimony of the forensic

chemist who tested the substances found as a result of the traffic

stop. There were “light blue round tablets” in a bag, separated into

four baggies within the larger bag. They all shared the same color,

size, shape, and imprint. The chemist tested one of the tablets from

a baggie containing 100 tablets and determined that it contained

fentanyl. The 100 tablets collectively weighed 11.05 grams. All

2 The People assert, and Miller doesn’t appear to dispute, that the

weight affects only the offense level: the basic charge of possession with intent to sell or distribute can be proved with proof of any amount of a controlled substance.

7 tablets from all four baggies collectively weighed about thirty-five

grams.3

¶ 18 Miller argues that this evidence was insufficient because the

prosecution didn’t present any evidence of the weight of the fentanyl

itself and the jury could only speculate that the other tablets

contained fentanyl. These arguments fail.

¶ 19 In reviewing a challenge to the sufficiency of the evidence, we

consider the evidence, both direct and circumstantial, as a whole

and in the light most favorable to the verdict. We ask whether the

evidence is substantial and sufficient to support a conclusion by

reasonable jurors that the defendant is guilty of the charged offense

beyond a reasonable doubt. People v. Phillips, 219 P.3d 798, 800

(Colo. App. 2009). This inquiry requires us to give the prosecution

the benefit of all reasonable inferences that might fairly be drawn

from the evidence. Id. But such inferences must be supported by a

“logical and convincing connection between the facts established

3 The chemist also tested two other substances which came back

positive for fentanyl, but it appears that the prosecution didn’t rely on those test results to support this charge.

8 and the conclusions inferred.” People v. Donald, 2020 CO 24, ¶ 19

(quoting People v. Perez, 2016 CO 12, ¶ 25).

¶ 20 We also must keep in mind when determining the sufficiency

of the evidence that the law doesn’t make any distinction between

direct and circumstantial evidence; rather, jurors may draw

reasonable inferences from both direct and circumstantial evidence.

Id. at ¶ 27; see also People v. Bennett, 515 P.2d 466, 469 (Colo.

1973); People v. Chase, 2013 COA 27, ¶ 50 (“If there is evidence

upon which one may reasonably infer an element of the crime, the

evidence is sufficient to sustain that element.”).

¶ 21 Subsections (1)(a) and (2)(b)(I)(D) of section 18-18-405 provide

that a person commits a level 2 drug felony if she possesses with

intent to sell or distribute “any material, compound, mixture, or

preparation that weighs . . . [m]ore than four grams, but not more

than fifty grams, and contains fentanyl.” This plainly means that

the weight of the mixture, not the fentanyl, must be between more

than four grams and fifty grams. So long as a mixture weighing

that much “contains” fentanyl, the offense is a level 2 drug felony.

See People v. Woodyard, 2023 COA 78, ¶ 57 (if the language of a

9 statute is clear and unambiguous, we enforce it as written); see also

People v. Reeves, 252 P.3d 1137, 1139-40 (Colo. App. 2010) (so

construing similarly worded former subsections (2)(a), (2.3), and

(3)(a) of section 18-18-405).

¶ 22 Thus, to the extent Miller contends that the prosecution failed

to prove she possessed more than four grams of fentanyl itself, that

contention fails because its premise — that the statute requires

proof of the weight of the controlled substance — is incorrect. The

prosecution has to prove the weight of the mixture containing

fentanyl.4

¶ 23 To the extent Miller contends that the prosecution failed to

prove a mixture weighing more than four grams and containing

fentanyl, that contention also fails. Contrary to Miller’s assertion,

4 In her reply brief, Miller suggests that interpreting the statute this

way would create a due process problem. Her argument on this point isn’t entirely clear. In any event, the statute clearly puts people on notice of the prohibited amount of a mixture and what such a mixture may not contain. See People v. Hickman, 988 P.2d 628, 643 (Colo. 1999) (discussing how a vague statute may violate due process). To the extent her contention is based on the assumption that the prosecution must prove “the quantity of a controlled substance,” it fails because, as discussed, the prosecution is required to prove the weight of the mixture containing a controlled substance, not the weight of the controlled substance itself.

10 the jury’s determination that the prosecution proved this fact didn’t

rest on “mere speculation” just because the chemist tested only one

of the blue tablets. The 100 tablets in the baggie from which the

randomly selected tested tablet was taken — weighing about eleven

grams in total — were identical and were found in the same place

and package. This baggie was one of four baggies of tablets,

weighing a collective thirty-five grams, that were found in the same

larger bag. An expert testified that since 2018, law enforcement

had seen tablets containing fentanyl marketed in this form.

Further, Miller wrote a letter, which was admitted into evidence,

saying she “got hemmed up . . . and they found about 380 pills

(34.8 [grams]).”

¶ 24 True, much of the case was based on circumstantial evidence

and inferences. But as discussed, such evidence may be sufficient.

From the evidence presented, the jury reasonably could have

inferred that the blue tablets that weren’t tested contained fentanyl

and that Miller therefore possessed at least more than four grams of

a mixture containing fentanyl.

11 C. Lesser Included Offense

¶ 25 Lastly, Miller contends that the district court erred by refusing

to give the jury a proper lesser included offense instruction.

Defense counsel requested that the court instruct the jury on

simple possession of fentanyl, a lesser included offense of

possession with intent to sell or distribute a controlled substance.

The court gave the jury an instruction on the lesser included

offense and gave it a verdict form for that offense. But on appeal,

Miller contends that the court should have given an instruction

telling the jury that simple possession is a lesser included offense of

possession with intent to sell or distribute and that it could not

convict Miller of both — a so-called “bridge instruction.”

¶ 26 We conclude that this contention is waived. In the discussion

between the court and counsel concerning the lesser included

offense instruction, defense counsel initially asked the court to

include “some kind of either-or language,” which would say, “[I]f you

do not find [Miller] guilty of possession with intent to distribute,

then do you find [her] guilty of possession?” But as the discussion

continued, it became clear that defense counsel’s concern was that

without such language, the jury could find Miller guilty of both.

12 After the court said that if the jury found Miller guilty of both, it

would merge the lesser included offense into the greater, defense

counsel indicated that this merger would alleviate the defense’s

concern. Ultimately, the court and the parties settled on

instructions for the elements of possession with intent to “dispense,

sell, or distribute” and simple possession, and separate verdict

forms — 1 and 1A — for possession with intent and simple

possession. The court said, without objection by defense counsel, “I

think we have worked through the ways that those were done is

acceptable.” (The “those” to which the court was referring were the

elemental instruction for possession with intent and verdict forms 1

and 1A.)

¶ 27 Because defense counsel ultimately agreed to the way the

court intended to instruct the jury on the greater and lesser

included offenses, any challenge to the sufficiency or form of the

relevant instructions and verdict forms was waived. This isn’t a

case of counsel merely failing to object to a course of action that

wasn’t on defense counsel’s radar. Rather, defense counsel actively

participated in the discussion of how the jury should be instructed

and ultimately agreed to the court’s proposed course of action.

13 That is a waiver. See People v. Carter, 2021 COA 29, ¶¶ 30-33; see

also People v. Garcia, 2024 CO 41M, ¶¶ 45-53. Because this claim

of error is waived, we may not review its merits. Garcia, ¶ 28.

III. Disposition

¶ 28 The judgment of conviction is affirmed.

JUDGE KUHN and JUDGE MOULTRIE concur.