Peo v. Peschong

• Court: Colorado Court of Appeals
• Decided: March 19, 2026
• Docket: 23CA0002
• Status: Unpublished

Opinion

23CA0002 Peo v Peschong 03-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0002 El Paso County District Court No. 18CR801 Honorable Samuel Evig, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Patrick Peschong,

Defendant-Appellant.

JUDGMENT VACATED

Division V Opinion by JUDGE TOW Welling and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 19, 2026

Philip J. Weiser, Attorney General, Alejandro Sorg Gonzalez, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

McClintock Criminal Defense, P.C., Theodore P. McClintock, Colorado Springs, Colorado, for Defendant-Appellant ¶1 Defendant, Patrick Peschong, appeals the judgment of

conviction entered on a jury verdict finding him guilty of possession

with intent to manufacture or distribute a controlled substance,

distribution of a controlled substance, and possession of a

controlled substance. We vacate the judgment.

I. Background

¶2 At trial, the prosecution introduced the following evidence.

¶3 Peschong was a passenger in a car that was pulled over during

a routine traffic stop at 1:40 a.m. on a cold winter night. Police

arrested the driver, Dakota Willmann, because he did not have a

valid driver’s license and was unable to provide proof of ownership

of the vehicle. Police also arrested the front seat passenger, Leigha

Vanhuss, who had multiple outstanding warrants, but they did not

detain Peschong — who had been sitting in the backseat behind

Vanhuss — or the other backseat passenger. The police refused

Peschong’s offer to drive the vehicle away from the scene. Peschong

then left on foot.

¶4 When police searched the vehicle, they found three grams of

packaged methamphetamine under the driver’s seat and 144 grams

of packaged methamphetamine in an opaque black zippered bag —

1 which the People described as a “lunch pail” (the bag) — on the floor

of the car’s backseat, near where Peschong’s feet would have been

while he was seated in the car.

¶5 The prosecution charged Peschong with possession with intent

to manufacture or distribute a controlled substance, distribution of

a controlled substance, and possession of a controlled substance

(simple possession).1 (We refer to the first and third charges

collectively as “the possession charges” and the second charge as

“the distribution charge.”) A jury convicted Peschong of all three

counts. The court merged Peschong’s convictions for the

distribution and the simple possession counts into his conviction

for possession with the intent to distribute and sentenced him to

twelve years in the custody of the Department of Corrections.

II. Sufficiency of the Evidence

¶6 Peschong appeals, contending, among other things, that the

prosecution failed to present sufficient evidence that he possessed

or distributed the drugs. Because we agree, and thus vacate the

convictions, we need not reach his other contentions.

1 The prosecution also brought, and subsequently dismissed, four

habitual offender counts.

2 A. Standard of Review and Applicable Law

¶7 “We review de novo whether the prosecution presented

sufficient evidence to sustain a conviction.” Gorostieta v. People,

2022 CO 41, ¶ 16. In doing so, we apply the substantial evidence

test, in which “we ask whether the evidence, ‘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.’” Id.

(quoting People v. Harrison, 2020 CO 57, ¶ 32). “The substantial

evidence test affords the same status to both direct and

circumstantial evidence.” People v. Bennett, 515 P.2d 466, 469

(Colo. 1973).

¶8 We are to afford the prosecution “the benefit of every

reasonable inference which might be fairly drawn from the

evidence.” Gorostieta, ¶ 17 (quoting Harrison, ¶ 32). But such

inferences “must be supported by a ‘logical and convincing

connection between the facts established and the conclusion

inferred.’” People v. Donald, 2020 CO 24, ¶ 19 (quoting People v.

Perez, 2016 CO 12, ¶ 25). And “verdict[s] cannot be supported by

3 guessing, speculation, conjecture, or a mere modicum of relevant

evidence.” Id. (quoting Perez, ¶ 25).

¶9 Generally, “the prosecution is provided with one fair

opportunity to present evidence sufficient to sustain a conviction.”

People v. Miralda, 981 P.2d 676, 680 (Colo. App. 1999).

Consequently, unless some action by the defense or ruling by the

court prevented the prosecution from presenting evidence, vacatur

of a conviction due to insufficiency of the evidence bars retrial of the

defendant on the charges. Id.

¶ 10 “[I]t is unlawful for any person knowingly to manufacture,

dispense, sell, or distribute, or to possess with intent to

manufacture, dispense, sell, or distribute, a controlled

substance . . . .” § 18-18-405(1), C.R.S. 2025. And it is separately

“unlawful for a person knowingly to possess a controlled

substance.” § 18-18-403.5(1), C.R.S. 2025.

B. Knowing Possession

¶ 11 The possession charges required proof that Peschong

knowingly possessed the methamphetamine. Peschong argues that

the only evidence the prosecution presented to support the

possession charges was his proximity to the bag containing 144

4 grams of methamphetamine. He contends that this proximity alone

is insufficient to prove the possession charges beyond a reasonable

doubt. We agree.

¶ 12 “Mere presence without another additional link in the evidence

will not sustain a conviction for possession.” Feltes v. People, 498

P.2d 1128, 1132 (Colo. 1972). Put another way, “where a person is

not in exclusive possession of the premises in which drugs are

found, such an inference [of knowing possession] may not be drawn

‘unless there are statements or other circumstances tending to

buttress the inference.’” People v. Yeadon, 2018 COA 104, ¶ 26

(quoting People v. Stark, 691 P.2d 334, 339 (Colo. 1984)), aff’d,

2020 CO 38.

¶ 13 The People counter that the fact that the bag was found near

where Peschong’s feet would have been in the car was alone

sufficient to warrant an inference that he knowingly possessed the

methamphetamine inside the bag. Moreover, the People argue that

additional circumstantial evidence supported Peschong’s conviction,

such as

• the fact that drug dealers normally keep their drugs

close to them;

5 • the high street value of the methamphetamine;

• the fact that the bag also contained plastic bags,

indicating an intent to distribute;

• Peschong’s attempt to “regain control of the car”; and

• Peschong being “the only person close to that location

[where the bag was found] before the search.”2

¶ 14 First, we note that the People do not identify where in the

record anyone testified that drug dealers normally keep their drugs

close to them, and our search for such testimony in the record

proved fruitless. At most, in their briefing related to a different

appellate claim, the People direct us to the prosecutor’s closing

argument where she argued this point (again, without identifying

any record support for this assertion).

¶ 15 In any event, even if we were to accept this premise despite the

lack of supporting testimony, neither that fact nor the second fact

on which the People rely in their briefing — the quantity and value

of the drugs in the presence of “items associated with drug

2 At oral argument, the People focused their argument on

Peschong’s actions at the scene, specifically his request to drive the vehicle and then, having been denied that permission, his decision to walk home.

6 sale” — buttresses the People’s position. True, those facts are

relevant to whether whoever possessed the methamphetamine did

so with the intent to distribute it. But they do nothing to inform the

question of who possessed the drugs. In particular, they have no

bearing on whether Peschong possessed them.

¶ 16 The People’s third point — Peschong’s purported effort to

“regain control” of the vehicle — is likewise unpersuasive. To begin

with, there is no evidence that Peschong ever exercised control over

the vehicle. It is undisputed that he was a backseat passenger, not

the driver. Nor did he own the vehicle. In fact, the officers found

no indication that Peschong was associated with the vehicle in any

way, other than being a passenger in it.

¶ 17 Moreover, the mere fact that Peschong requested permission to

drive the vehicle away instead of allowing the police to tow and

impound it does not make it more likely that he knowingly

possessed the methamphetamine. Indeed, as the prosecutor

pointed out in closing argument, it was cold and there was snow on

the ground. It would be entirely reasonable for a person in that

situation to wish to drive rather than walk. In fact, when the

officers informed him the vehicle would be impounded, Peschong

7 ended up walking away — which the prosecutor argued to the jury

somehow demonstrated his consciousness of guilt because, had the

drugs not been his, he would have called for a ride share.3 In short,

any attempt to discern the reason Peschong asked to drive the car

away goes beyond reasonable inference and requires speculation.

See Donald, ¶ 19.

¶ 18 Finally, we reject as unsupported by the evidence the People’s

claim that Peschong was the only person who had access to the

area of the car in which the bag was found. Notably, the evidence

was not entirely clear as to precisely where the bag was found. One

officer testified that the bag was discovered “where Mr. Peschong’s

feet would have been” or “between Mr. Peschong’s feet” (though he

ultimately admitted he never actually saw the bag between

Peschong’s feet because Peschong had gotten out of the car and left

the area before the bag was found). But the officer who actually

found the bag during the search testified that it was located “in the

3 We particularly disapprove of the prosecutor’s “damned if he did

and damned if he didn’t” argument. Moreover, it reflects wholly unsubstantiated presumptions that Peschong could have afforded a ride share, had a ride share account, or possessed a cell phone at the time.

8 floorboard area next to — in between the two rear passenger seats.”

(Emphasis added.)4 Regardless of the bag’s specific location on the

floorboard, four people were in the car. Any one of them would

have had access to a bag sitting on the floorboard in the backseat

area.5

¶ 19 Cases applying the “more than mere presence” rule, see Feltes,

498 P.2d at 1132, have routinely relied on far more compelling

additional circumstances to support the inference necessary to

convict on such charges. For example, in Yeadon, the defendant

was convicted of possessing drugs found in the driver’s side door of

a vehicle he had been driving when it was involved in a car

accident. A division of this court rejected a claim that the

conviction was based on mere proximity to the place where the

drugs were found in light of evidence that a bag of

4 We recognize that it is for the jury to resolve conflicting testimony.

We note this conflict only to the extent it is relevant to assess the People’s unsubstantiated contention that no other person in the vehicle had access to the bag. 5 The People correctly note that the officers testified that no one had

access to the bag after Peschong got out of the car. But there was no evidence that any of the three other occupants of the car lacked access to the floorboard area of the vehicle’s backseat while they were all riding in the car.

9 methamphetamine was found in the driver’s side door, where it

would have been visible to the defendant, a scale was sitting in the

front passenger seat of the vehicle, and the defendant fled from the

accident scene. Yeadon, ¶ 28.

¶ 20 In People v. Poe, 2012 COA 166, a division of this court noted

that a search of the defendant’s apartment revealed drugs in a

laptop computer and under a mattress in the bedroom, a scale

hanging on the bedroom wall, a pipe visible on top of the toilet tank

in the bathroom, and no evidence of any other occupant. Id. at

¶¶ 17-18.

¶ 21 And in People v. Robinson, 226 P.3d 1145 (Colo. App. 2009),

another division rejected a defendant’s claim that no evidence

connected him to the drugs other than his mere presence as a

passenger in a car where drugs were found. The court noted there

was evidence that a police informant had arranged a meeting with

two other people to purchase a specific amount of cocaine, the

defendant was one of two people in the car at the arranged time and

place, and the precise amount of cocaine that was arranged to be

purchased was found under the defendant’s seat. Id. at 1154.

10 ¶ 22 Reviewing the record in this case de novo, we can discern no

evidence admitted at trial that established anything other than that

Peschong was in the car and a closed, opaque bag containing drugs

was found on the floor of the backseat near where he had

presumably placed his feet. The drugs could have belonged to any

of the three other people in the car. (We recognize, of course, that

possession need not be exclusive; but that argument still

presupposes some evidence that Peschong possessed the drugs.)

The drugs were not visible, nor were there any scales, empty plastic

bags, or other indicia of drug distribution in the open. Contrary to

the People’s unsupported invitation to speculate otherwise, there is

no evidence that Peschong fled the scene or attempted to abscond

with the bag — or, for that matter, any evidence that Peschong ever

held, touched, or otherwise interacted with the bag. Simply put,

viewing the evidence in the light most favorable to the People and

drawing all reasonable inferences in their favor, as we must,

Gorostieta, ¶ 17, we conclude that the evidence was insufficient in

both quantity and quality to sustain the convictions on the

possession charges. See McCoy v. People, 2019 CO 44, ¶ 63.

11 C. Distribution of a Controlled Substance

¶ 23 Turning to the distribution charge, we note as an initial matter

that both the basis for and resolution of the distribution charge are

unclear. To obtain a conviction on a distribution charge, the

prosecution must prove that “(1) the defendant, (2) knowingly,

(3) distributed, (4) a controlled substance.” People v. Buckner, 228

P.3d 245, 252 (Colo. App. 2009); § 18-18-405(1)(a). “Distribute” is

defined as to “deliver other than by administering or dispensing a

controlled substance, with or without remuneration.” § 18-18-

102(11), C.R.S. 2025.

¶ 24 In the complaint, the prosecution alleged that Peschong

“unlawfully, feloniously, and knowingly sold or distributed

Methamphetamine, a controlled substance.” But the jury

instruction on this charge restated the elements of the possession

with intent to distribute charge. In other words, the jurors were

never instructed that they had to be convinced beyond a reasonable

doubt that Peschong actually distributed the methamphetamine.

Nevertheless, the verdict reflects that the jury found Peschong

guilty of “Count No. 2, Distribute a Controlled Substance.”

12 ¶ 25 Moreover, during the prosecutor’s closing argument, after

explaining the possession with intent to distribute charge to the

jury, she said, “The second charge is the same. The possession of a

controlled substance with the intent to distribute.” At no point

during her closing did the prosecutor ever assert that Peschong

actually distributed methamphetamine or ask the jury to find him

guilty of doing so.

¶ 26 During the rebuttal closing, a different prosecutor was only

slightly more direct, asking the jury, “Where do you think the front

driver got the three grams of meth from?” But that was the

prosecutor’s only reference to any specific act of distribution. The

remainder of his rebuttal closing focused entirely on painting

Peschong in general as a drug dealer.

¶ 27 Ultimately, however, we need not attempt to determine how

these significant concerns impact the validity of the verdict on the

distribution charge. This is because we conclude that, even if the

verdict was otherwise valid, it is not supported by sufficient

evidence.

¶ 28 As noted, the prosecution’s theory, as laid out (for the first

time) during the rebuttal closing, was that Peschong was “[a] 58-

13 year old man in a car with people [who were] decades younger than

him,” Willmann appeared “disheveled” and possessed three grams

of methamphetamine, Vanhuss had other drug paraphernalia,

Peschong showed no indicia of using drugs himself, and a large

amount of methamphetamine was within his reach.

¶ 29 The prosecution’s contention that Peschong must be guilty

because he is older than the others and did not appear to use

drugs, while Willmann and Vanhuss appeared to be “drug addicts,”6

is nothing more than a “guilt by association” argument — which

6 At times, it is unclear whether the prosecutor was referring to all

three of the vehicle’s occupants besides Peschong or only to Willmann and Vanhuss. To the extent that the prosecutor’s closing could have referred to all three, we note that the prosecution offered no evidence that the other backseat passenger possessed or used any drugs or paraphernalia, and she was released from the scene. (Notably, like Peschong, in addition to showing no signs of being a drug user, this passenger was also sitting in the backseat near the bag on the floorboard.)

14 has “never been an acceptable rationale.” People v. Feltch, 483 P.2d

1335, 1337 (Colo. 1971).7

¶ 30 Most importantly, for the reasons we have already discussed

above, supra Part II.B, no evidence adduced at trial beyond

Peschong’s mere proximity to the bag connected him to the 144

grams of methamphetamine.

¶ 31 In short, the prosecution’s theory rests not on reasonable

inferences but, instead, on leaps of logic, speculation, and

conjecture. See Donald, ¶ 19. Thus, just as the evidence of

knowing possession was insufficient to support the conviction on

the possession charges, the evidence was equally insufficient to

support the conviction on the distribution charge. See McCoy, ¶ 63.

D. Retrial

¶ 32 Because there is no indication that any ruling by the court or

action by the defense prevented the People from admitting

7 We acknowledge that the issue in People v. Feltch, 483 P.2d 1335

(Colo. 1971), was whether there was probable cause rather than whether there was sufficient evidence to support a conviction. Id. at 1335-36. But if merely being in the presence of someone who has narcotics does not even amount to probable cause, id. at 1337, we fail to see how it can clear the much higher burden of proof beyond a reasonable doubt. See People v. Hall, 999 P.2d 207, 221 (Colo. 2000) (discussing the difference in the standards).

15 additional evidence, retrial is prohibited. See Miralda, 981 P.2d at

680.

III. Disposition

¶ 33 The judgment of conviction is vacated.

JUDGE WELLING and JUDGE LIPINSKY concur.