22CA1243 Peo v Simmons 07-31-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 22CA1243 El Paso County District Court No. 20CR1819 Honorable Marcus S. Henson, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Leo Simmons,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV Opinion by JUDGE FREYRE Gomez and Meirink, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced July 31, 2025
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Tillman Clark, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Leo Simmons, appeals his jury convictions of four
counts of possession of a controlled substance with the intent to
distribute, one count of unlawful possession of a controlled
substance, and one count of possession of drug paraphernalia. We
affirm.
I. Background
¶2 Police officers observed a parked car that did not have “any
front or rear plates” and a silver minivan in a parking lot at
Memorial Park in Colorado Springs. After briefly speaking with the
driver of the minivan, officers approached Simmons, who was
seated in the driver’s seat of his parked car. Upon approaching the
car, officers noticed a “cigarette box that was laying right
underneath the driver’s door.” The two police officers then
instructed Simmons to exit his vehicle. As Simmons exited, he
looked down at the cigarette box with “an emphasis on not stepping
on the box, [and] kind of walking around it,” which prompted the
officers to collect the cigarette box from the ground.
¶3 Upon further examination, officers observed that the cigarette
box had been “recently opened or recently used” and “was pretty
much intact.” It was not “crumpled” or “ran over” or “soiled by the
1 weather conditions.” Inside the box, officers found “some plastic
baggies containing a rock-like substance.” Police officers then
conducted a search of Simmons’ car and found “suspected
prescription narcotics.” During a pat-down search, officers found
“baggies” in Simmons’ pocket that were “similar to the baggies that
had the white substance in the [cigarette box].” In total, the officers
recovered 4.62 grams of cocaine, 3.49 grams of oxycodone, and
0.22 grams of amphetamine from Simmons and the area around his
car.
¶4 A jury convicted Simmons as charged, and the prosecution
dismissed the added habitual criminal counts before sentencing.
The trial court sentenced him to community corrections.
II. Substitute Counsel
¶5 Simmons contends that his Sixth Amendment right to conflict-
free counsel was violated when the trial court declined to assign
him a new attorney. He argues that a conflict of interest existed
between him and trial counsel because (1) counsel refused to
collaterally attack his prior convictions and (2) counsel’s scheduled
surgery impaired counsel’s ability to provide effective
representation. We are not persuaded.
2 A. Additional Facts
¶6 At a pretrial hearing, Simmons told the trial court that he
wanted new counsel. He said he wanted a lawyer who would “fight
his priors,” but that his counsel said he was “appointed on this case
and not his priors.” The trial court asked Simmons if he wanted a
conflict hearing, to which Simmons responded yes.
¶7 At the conflict hearing, Simmons explained that he wanted his
counsel to “fight his priors” because he believed his prior
convictions could be used to enhance his sentence. Trial counsel
responded that he had looked into Simmons’ prior convictions and
discovered that in his most recent conviction, all the issues had
been litigated, the Colorado Supreme Court had denied certiorari,
and final judgment had entered. Counsel said that he had
previously had “at-length discussions with [Simmons] about his
criminal history” and how there was nothing the public defender’s
office could do with his previous convictions considering that his
most recent conviction “was affirmed through our highest court”
and his cases from 1990, 1996, and 1997 were time barred. The
trial court told Simmons that certain strategic decisions were within
3 his counsel’s discretion and that collateral attacks of prior
convictions were “not always easily litigated” or successful.
¶8 The trial court determined that Simmons did not have an
actual conflict with counsel but rather a “legal dilemma” regarding
his prior convictions. Simmons insisted that his most recent case
was “remanded back to the lower courts” but was “never taken care
of.” The trial court verified that Simmons’ most recent conviction
was affirmed and never remanded. After continuous requests for
substitute counsel and subsequent denials, Simmons proceeded
pro se.
¶9 Shortly before trial, Simmons moved for appointment of
counsel other than the public defender. The court explained that it
could only appoint the same attorney and that Simmons was not
entitled to court-appointed counsel of his choice. Simmons
declined the reappointment of the public defender and told the
court that he needed to “get a deposition” from witnesses and asked
how to do so. The court said it would not appoint advisory counsel
since Simmons had declined the public defender’s representation,
and it reset the trial date to allow Simmons to have more time to
prepare.
4 ¶ 10 On the morning trial was scheduled to begin, Simmons said he
needed help with deposing a witness from one of his prior
convictions because he did not “want to approach the person
without the proper authorities being around.” Simmons waived his
right to a speedy trial, and the court granted a continuance so he
could subpoena the alleged witness.
¶ 11 At the next status conference, the court and the prosecutor
expressed concern about Simmons proceeding to trial pro se.
Simmons told the court there was “a possibility [that he needed] to
rethink it.” Simmons asked the court to appoint alternate defense
counsel, but the court denied this request and reminded Simmons
that his only option was his previous counsel because there was no
actual conflict.
¶ 12 At the next hearing, Simmons requested another continuance
to seek private counsel and again waived his right to a speedy trial.
The trial court reset the trial date and reminded Simmons that if he
remained indigent and applied for court-appointed counsel, the
court could only appoint previous counsel. Simmons said he
understood.
5 ¶ 13 At the next hearing, Simmons appeared without counsel after
being unable to secure private counsel, and the court reappointed
prior counsel upon his request.
¶ 14 On the first day of trial, counsel told the court that he had a
previously scheduled surgery at the end of the week and that he
believed Simmons’ trial could be finished within the day. Counsel
also said that if the court waited until later in the week to begin the
trial, he did not feel comfortable moving forward.
¶ 15 Simmons’ trial lasted four days. Counsel represented
Simmons through the trial and to the beginning of jury
deliberations. On the final day of trial, another public defender
substituted for trial counsel, due to the scheduled surgery, and
received the jury’s verdict with Simmons.
B. Standard of Review and Applicable Law
¶ 16 The parties dispute preservation. While acknowledging that
Simmons’ contention regarding his request for substitute counsel is
preserved, the People assert that his argument concerning counsel’s
scheduled surgery was never raised below and is not preserved. We
agree that any conflict regarding counsel’s surgery was not properly
preserved and review that portion of Simmons’ contention for plain
6 error. See People v. Arzabala, 2012 COA 99, ¶ 83. An error is plain
if it is obvious and substantial and so undermines the fundamental
fairness of the trial as to cast serious doubt on the reliability of the
judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14.
¶ 17 We review a trial court’s decision to deny substitute counsel
for an abuse of discretion. People v. Weeks, 2015 COA 77, ¶ 101. A
trial court abuses its discretion when its ruling is manifestly
arbitrary, unreasonable, or unfair, or when it misapplies the law.
See People v. Johnson, 2021 CO 35, ¶ 16.
¶ 18 Although an indigent criminal defendant has a constitutional
right to counsel, they do not have a right to their counsel of choice.
U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; see also
People v. Arguello, 772 P.2d 87, 92 (Colo. 1989). Moreover, the right
to counsel includes the effective assistance of counsel, “and does
not necessarily include ‘a meaningful attorney-client relationship.’”
Arguello, 772 P.2d at 92 (quoting Morris v. Slappy, 461 U.S. 1, 14
(1983)).
¶ 19 A conflict of interest exists when the attorney’s ability to
represent a client is materially limited by the attorney’s own
interests. People v. Stroud, 2014 COA 58, ¶ 38. To prove an actual
7 conflict of interest, a defendant must “identify something that
counsel chose to do or not do . . . and must show that the course
taken was influenced by that conflict.” Id. at ¶ 40 (quoting People v.
Kenny, 30 P.3d 734, 745 (Colo. App. 2000)).
¶ 20 Courts consider four factors in evaluating the constitutional
implications of a request for substitute counsel, including (1) the
timeliness of the defendant’s motion, (2) the adequacy of the court’s
inquiry, (3) whether the conflict between the defendant and their
attorney was so great that it resulted in a total lack of
communication or otherwise prevented an adequate defense, and
(4) whether the defendant substantially and unreasonably
contributed to the conflict with their attorney. People v. Bergerud,
223 P.3d 686, 695 (Colo. 2010); see also People v. Session, 2020
COA 158, ¶ 15.
¶ 21 As relevant here, on issues of trial strategy, defense counsel is
generally the “captain of the ship.” Arko v. People, 183 P.3d 555,
558 (Colo. 2008) (quoting Steward v. People, 498 P.2d 933, 934
(1972)). However, there are several constitutional limitations on
defense counsel’s ability to direct a trial, including whether to waive
a jury trial, whether the defendant will testify, whether the
8 defendant will plead guilty, and whether the defendant wishes to
appeal. Bergerud, 223 P.3d at 694-95. Such decisions are for the
defendant alone to make. Id.
C. Analysis
¶ 22 Concerning Simmons’ preserved conflict argument, we discern
no abuse of discretion in the court’s ruling for three reasons. We
further conclude that there is no plain error flowing from Simmons’
unpreserved argument regarding counsel’s scheduled surgery.
¶ 23 First, the record shows that counsel stated he had investigated
the prior convictions and told the court at the conflict hearing that
he saw no irregularities in them. Likewise, the record shows that
all of Simmons’ prior convictions became final judgments between
1989 and 2015. Thus, collateral attacks as to all of the convictions
were time barred under section 16-5-402(1), C.R.S. 2024, absent a
showing of excusable neglect or justifiable excuse. Simmons
alleged he had newly discovered evidence in the form of a state’s
witness who had changed her testimony. But he failed to identify
the witness, discuss the new statements, identify to which prior
conviction(s) the testimony pertained, or explain how such
testimony would have resulted in a different outcome. To warrant
9 suppression of a prior conviction, the accused must make a prima
facie showing of some constitutional violation. People v. Lemons,
824 P.2d 56, 57 (Colo. App. 1991) (citing People v. Romero, 767 P.2d
782 (Colo. App. 1988)). We conclude that Simmons failed to meet
this burden.
¶ 24 Second, Simmons has not demonstrated an actual conflict of
interest. A lawyer has a conflict of interest when their loyalties are
divided. See Colo. RPC 1.7, 1.9. An actual conflict of interest is
one that is real and substantial, whereas a potential conflict is one
that is possible, is nascent, or in all probability will arise. People v.
Kelling, 151 P.3d 650, 657 (Colo. App. 2006) (citing People v.
Harlan, 54 P.3d 871, 878 (Colo. 2002)). Neither the existence of
animosity between Simmons and counsel nor the pair’s asserted
strategic disagreements over Simmons’ prior convictions constitute
an actual conflict of interest requiring the appointment of substitute
counsel. See People v. Garcia, 64 P.3d 857, 864 (Colo. App. 2002)
(finding that the conflict between the defendant and his counsel
was a disagreement over strategy and thus did not require
appointment of new counsel); People v. Apodaca, 998 P.2d 25, 28
(Colo. App. 1999) (counsel’s personal disbelief of the defendant’s
10 version of the facts did not require court to appoint substitute
counsel based on an alleged conflict of interest).
¶ 25 Third, to the extent Simmons alleges a complete breakdown in
communications with counsel, we are not persuaded. Mere
communication difficulties do not demonstrate a complete
breakdown in communication. See People v. Thornton, 251 P.3d
1147, 1151 (Colo. App. 2010) (refusing to find a complete
breakdown in communication requiring substitute counsel even
though counsel admitted to “a lot of communication breakdowns”
because he assured the court he was in contact with the defendant
and continued to represent his interests); People v. Jenkins, 83 P.3d
1122, 1126 (Colo. App. 2003) (a complete breakdown in
communication was not established even where counsel met with
the defendant only once in nine months and had not discussed
potential witnesses with him or given him copies of discovery). The
record shows that Simmons and counsel continued to meet and to
argue over whether to collaterally attack the prior convictions,
demonstrating that a line of communication existed between the
two. See Bergerud, 223 P.3d at 693 (“On issues of trial strategy,
11 defense counsel is ‘captain of the ship.’” (quoting Arko, 183 P.3d at
558)).
¶ 26 Finally, we discern no prejudice flowing from counsel’s
scheduled surgery. The record shows that counsel completed the
trial before his scheduled surgery and that another public defender
appeared with Simmons to take the jury’s verdict the following day.
To the extent Simmons challenges the effectiveness of counsel due
to the pending surgery, this issue is best raised in a postconviction
proceeding hearing and not on direct appeal. See Kelling, 151 P.3d
at 655 (“[B]ecause of the need for a developed factual record, an
ineffective assistance of counsel claim should ordinarily be raised in
a postconviction proceeding, not on direct appeal.”). Under these
circumstances, we conclude there was no error, let alone plain
error.
III. Sufficiency of Evidence
¶ 27 Simmons next contends there is insufficient evidence to
support his convictions. In particular, he argues there is
insufficient evidence that links him to the cigarette box found under
his car. We disagree.
12 A. Standard of Review and Applicable Law
¶ 28 We review the record de novo to determine whether the
evidence before the jury was sufficient in both quantity and quality
to sustain a defendant’s conviction. Clark v. People, 232 P.3d 1287,
1291 (Colo. 2010). We must 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.’”
Id. (quoting People v. Bennett, 515 P.2d 466, 469 (1973)). In
making this determination, we must give the prosecution “the
benefit of every reasonable inference that might be fairly drawn
from the evidence.” People v. McIntier, 134 P.3d 467, 471 (Colo.
App. 2005).
¶ 29 As relevant here, to obtain a conviction for unlawful
possession of a controlled substance, the prosecution must prove
beyond a reasonable doubt that the defendant knowingly possessed
a controlled substance. See § 18-18-403.5(1), (2)(a), C.R.S. 2024.
“The ‘knowing’ element applies both to knowledge of possession and
to knowledge that the thing possessed is a controlled substance.”
13 People v. Perea, 126 P.3d 241, 244 (Colo. App. 2005) (citations
omitted). “A person acts ‘knowingly’ . . . with respect to conduct or
to a circumstance described by a statute defining an offense when
he is aware that his conduct is of such nature or that such
circumstances exists.” § 18-1-501(6), C.R.S. 2024.
¶ 30 To prove possession, the prosecution must show that the
“defendant had ‘immediate and knowing control over’ the drugs.”
People v. Poe, 2012 COA 166, ¶ 15 (quoting Patton v. People, 35
P.3d 124, 131 (Colo. 2001)); see also People v. Villapando, 984 P.2d
51, 54 (Colo. 1999) (a defendant possesses a controlled substance
when (1) the defendant knows of the substance’s presence, (2) the
substance is immediately accessible, and (3) the defendant
exercises dominion or control over the substance). “A finding of
possession may be based on the jury’s reasonable inferences from
the evidence, including circumstantial evidence.” Poe, ¶ 15.
¶ 31 “A conviction for unlawful possession of a controlled
substance may be predicated on circumstantial evidence. The
controlled substance need not be found on the person of the
defendant, as long as it is found in a place under his or her
14 dominion and control.” People v. Atencio, 140 P.3d 73, 75 (Colo.
B. Analysis
¶ 32 Simmons argues on appeal, as he did at trial, that he did not
have exclusive possession or control of the drugs, that other people
were in or near his car immediately before the police contacted him,
and that only circumstantial evidence was produced by the
prosecution. In essence, he alleges that his “mere presence” by the
drugs is insufficient to sustain his conviction. While we agree that
mere presence is insufficient to sustain a conviction without an
additional link in the evidence, we conclude the trial evidence,
including Simmons’ testimony, provided that additional link. See
Poe, ¶¶ 16-20 (where the defendant’s friend testified that she
brought drugs to his apartment without his knowledge, evidence
that the drugs were found in a one-bedroom apartment rented by
the defendant and conflicting testimony that there was no evidence
of a houseguest were sufficient to sustain a conviction for
possession); see also Richardson v. People, 25 P.3d 54, 58 (Colo.
2001).
15 ¶ 33 Viewing the evidence and all reasonable inferences therefrom
in the light most favorable to the prosecution, we conclude the
following evidence adduced at trial supports Simmons’ convictions:
• The cigarette box containing cocaine was recovered below
the driver’s door of Simmons’ car.
• A police officer described Simmons’ awareness of the
cigarette box as he exited the car, looked to the ground,
and made a concerted effort to avoid stepping on it.
• The cigarette box looked recently opened, was unsoiled,
was not crushed, and appeared to have been recently
placed in its location.
• The unmarked plastic “baggies” recovered from Simmons’
pocket were similar to the “baggies” containing drugs
found inside the cigarette box. See People v. Valdez, 56
P.3d 1148, 1151 (Colo. App. 2002) (finding that the
defendant was in possession in part because “[t]he
evidence established that the pills beside the bed were
wrapped together in cellophane cigarette packaging
material similar to the packaging of the codeine tablets
discovered in a shirt in [the] defendant’s closet”).
16 • Prescription pills and a pill splitter were recovered from
Simmons’ car.
• Approximately $230 in various denominations were
recovered from Simmons.
¶ 34 To the extent Simmons contends he was not the “lone suspect”
in the parking lot and was therefore not in exclusive control of the
cigarette pack, we are not persuaded. “Possession need not be
exclusive, and the substance can be possessed jointly by a person
and another without a showing that the person had actual physical
control thereof.” Petty v. People, 447 P.2d 217, 220 (Colo. 1968);
see also People v. Stark, 691 P.2d 334, 339 (Colo. 1984).
¶ 35 Accordingly, we conclude that sufficient evidence supports
Simmons’ convictions.
IV. Prior Drug Convictions
¶ 36 Simmons contends that the trial court erred by allowing the
prosecution to introduce evidence of his prior felony convictions to
impeach his testimony after he introduced an officer’s body camera
video containing his hearsay statements to police. We discern no
17 A. Additional Facts
¶ 37 During trial, Simmons’ counsel introduced body camera
footage from one of the arresting officers to impeach the officer’s
testimony. The prosecutor reminded counsel that if counsel
introduced the entire video (which included Simmons’ statements),
they would seek to introduce Simmons’ prior felony convictions to
impeach Simmons’ statements.
¶ 38 After the video was played to the jury, the prosecutor filed a
motion to introduce Simmons’ prior convictions as impeachment
evidence under CRE 806. The court granted the motion and
reasoned that although prior drug convictions are highly
prejudicial, “the strategic decisions of the parties in the course of
how they present the evidence sometimes puts us in a position
where it makes it possible to have admitted evidence that is
incredibly detrimental.”
¶ 39 The parties agreed that the court could take judicial notice of
the prior convictions, and the court instructed the jury as follows:
The Court takes judicial notice of the following cases involving People vs. Leo Simmons:
18 In 1989CR155, the defendant was convicted of distribution of an imitation controlled substance, a felony, on July 25, 1989.
In 1990CR3210, the defendant was convicted of distribution of an imitation controlled substance on October 7, 1991.
In 1996CR1971, the defendant was convicted of conspiracy to commit possession of a Schedule II controlled substance, a felony. Conviction occurred on March 12, 1998.
In 1997CR1674, the defendant was convicted of distribution of an imitation controlled substance, a felony. Conviction entering March 12, 1998.
In 2007CR1196, the defendant was convicted of possession of a controlled substance, a felony, with a conviction entering June 12, 2008.
¶ 40 During the defense’s case, Simmons testified about the
circumstances of the present case and answered questions
concerning his prior convictions.
¶ 41 The jury was further instructed that it “may consider
testimony or evidence of a previous conviction only in determining
the credibility of the defendant as a witness and for no other
purpose.”
19 B. Standard of Review and Applicable Law
¶ 42 Trial courts have considerable discretion in deciding questions
concerning the admissibility of evidence. People v. Ibarra, 849 P.2d
33, 38 (Colo. 1993); see also People v. Hardy, 677 P.2d 429, 431
(Colo. App. 1983) (“Further examination into the details of prior
convictions is within the trial court’s discretion, provided that such
details are relevant pursuant to CRE 401.”). We will affirm a trial
court’s evidentiary rulings absent an abuse of that discretion.
Ibarra, 849 P.2d at 38.
¶ 43 A prior felony conviction may be used to impeach a witness’
statements. § 13-90-101, C.R.S. 2024; see also CRE 806. A trial
court has no discretion to foreclose the use of a prior felony
conviction for purposes of impeachment. People v. Gallegos, 950
P.2d 629, 631 (Colo. App. 1997) (citing Lacey v. People, 442 P.2d
402, 405 (1968)). While a court has discretion to limit cross-
examination concerning the facts of a prior conviction, People v.
Bueno, 516 P.2d 434, 435 (1973), when a defendant exercises their
statutory privilege of testifying, all prior felony convictions may be
used to impeach their testimony. See § 13-90-101; see also CRE
806.
20 C. Analysis
¶ 44 Simmons asks us to modify the Colorado rule allowing
impeachment with a prior felony conviction regardless of its age.
He urges us to follow the federal rule, as well as the rules in a
majority of states, which only permit impeachment with prior
convictions that are no more than ten years old, and notes that
numerous law review articles that have studied the issue support
this time restriction. He argues, under CRE 403, that the probative
value of convictions older than ten years is substantially
outweighed by the prejudicial effect of such convictions.
¶ 45 We decline his invitation, however, because it is well settled in
Colorado that a defendant may be impeached with a prior felony
conviction regardless of its age, that due process is not violated
when this occurs, and that a defendant’s hearsay testimony may be
impeached with prior felony convictions. See Gallegos, 950 P.2d at
631 (evidence of a felony conviction is admissible to impeach the
credibility of a witness); People v. Griffith, 595 P.2d 231, 232 (Colo.
1979) (“We find no constitutional infirmity in section 13-90-
101 . . . .”); People v. Krueger, 2012 COA 80, ¶ 63 (finding that when
a defendant chooses to introduce their own hearsay, CRE 806
21 permits that statement’s impeachment with the defendant’s prior
felony convictions). We are bound by our supreme court’s
precedent and may not alter it. See People v. Novotny, 2014 CO 18,
¶ 26 (The supreme court “alone can overrule [its] prior precedents
concerning matters of state law.”); see also People v. Gladney, 250
P.3d 762, 768 (Colo. App. 2010) (“[The Court of Appeals is] bound to
follow supreme court precedent.”).
¶ 46 We are not persuaded otherwise by Simmons’ reliance on
People v. Williams, 2020 CO 78, ¶ 15, in which the supreme court
criticized the admission of prior criminal conduct under CRE 403.
The court expressed this criticism in the context of the admission of
CRE 404(b) evidence, not in the context of using prior convictions to
impeach credibility. Therefore, we find Simmons’ reliance on this
case misplaced.
¶ 47 Accordingly, we discern no error in the trial court’s admission
of Simmons’ prior convictions to impeach his hearsay statements or
his direct testimony.
V. Cumulative Error
¶ 48 Simmons contends that the introduction of his prior
convictions and the cumulative effect of the alleged errors that
22 occurred during his trial denied him his constitutional right to a fair
trial. We disagree.
¶ 49 The cumulative error doctrine applies when “the cumulative
effect of [multiple] errors and defects substantially affected the
fairness of the trial proceedings and the integrity of the fact-finding
process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (alteration in
original) (quoting People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).
However, because we have found no errors, we necessarily conclude
that the cumulative error doctrine does not apply and thus
Simmons was not denied a constitutionally fair trial. See People v.
Villa, 240 P.3d 343, 359 (Colo. App. 2009) (cumulative error
analysis is required only when multiple errors have been identified).
VI. Disposition
¶ 50 The judgment is affirmed.
JUDGE GOMEZ and JUDGE MEIRINK concur.