People v. Mollaun

194 P.3d 411, 2008 Colo. App. LEXIS 807, 2008 WL 2053442
CourtColorado Court of Appeals
DecidedMay 15, 2008
Docket06CA1025
StatusPublished
Cited by16 cases

This text of 194 P.3d 411 (People v. Mollaun) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Mollaun, 194 P.3d 411, 2008 Colo. App. LEXIS 807, 2008 WL 2053442 (Colo. Ct. App. 2008).

Opinions

Opinion by

Judge J. JONES.

Defendant, Roger Mollaun, appeals the judgment of conviction entered on jury verdicts finding him guilty of unlawful possession of a schedule II controlled substance, a class four felony, and possession of drug paraphernalia, a petty offense. We affirm.

I. Background

The People charged defendant with unlawful possession of a schedule II controlled substance (specifically, methamphetamine), unlawful use of a schedule II controlled substance, and possession of drug paraphernalia arising out of a traffic stop of a vehicle in which defendant was a passenger. At trial, the district court dismissed the unlawful use count. A jury convicted defendant of the two remaining charges. The district court sentenced defendant to four years in the custody of the Department of Corrections on the conviction for unlawful possession of a schedule II controlled substance and fined him $100 on the conviction for possession of drug paraphernalia.

IL Sufficiency of the Evidence

Defendant asserts that the evidence was insufficient to convict him of possession of a schedule II controlled substance, and therefore the district court erred in denying his motion for judgment of acquittal at the close of the prosecution's case. We disagree.

We review a district court's denial of a motion for judgment of acquittal based on allegedly insufficient evidence de novo. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). The test we apply is "whether any rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt." People v. McIntier, 134 P.3d 467, 471 (Colo.App.2005) (citing People v. Sprouse, 983 P.2d 771, 777 (Colo.1999), and Kogan v. People, 756 P.2d 945, 950 (Colo.1988)); see also Dempsey, 117 P.3d at 807. In applying this test, we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence. Determinations of witness eredi-bility as well as the weight given to all parts of the evidence are solely within the province of the fact finder. Accordingly, we eannot sit as a thirteenth juror and set aside a verdict simply because we might have reached a different conclusion. McIntier, 134 P.3d at 471-72.

Here, the prosecution introduced evidence that at the time of the traffic stop, defendant and the driver were in the car together. When the deputy approached the vehicle, defendant lit a cigarette, which the deputy testified individuals often do to mask the smell of illegal drugs or alcohol. Defendant was fidgeting and sweating. The deputy asked defendant if he could see the back of [414]*414his tongue. Defendant complied, and the deputy observed raised blisters, a common sign of methamphetamine use.

The deputy then asked the driver for his driver's license, vehicle registration, and proof of insurance. The driver retrieved documents from the glove compartment located in front of defendant. After looking at the documents, the deputy asked the driver to step out of the car. The deputy ran a check on the driver's Heense and registration, and asked him if he had anything illegal in the car. The driver said there was nothing illegal in the car. The deputy then asked the driver for permission to search the car. While the driver was considering whether to consent to a search, the deputy walked to the passenger side of the car and asked defendant if there was anything illegal in the car. Defendant responded by inviting the deputy to search the car. The deputy then returned to where the driver was standing. The driver shouted at defendant asking whether he had any marijuana in the car. Defendant got out of the car and said, "no." The driver then consented to a search of the car.

During the search, the deputy saw a red vinyl bag in the glove compartment that he had not seen earlier when the driver was retrieving documents. The deputy opened the bag, which contained methamphetamine and drug paraphernalia. The deputy also found a bag of methamphetamine on the floorboard behind the front passenger seat. The driver testified that the methamphetamine belonged to defendant, and that they had both smoked some before they were stopped.

Considering all of the evidence, and the inferences which reasonably can be drawn therefrom, in the light most favorable to the prosecution, we conclude that it was sufficient for a jury to convict defendant on the charge of possession of a schedule II controlled substance. The deputy found the methamphetamine close to where defendant was sitting, defendant had the opportunity to put the red vinyl bag in the glove compartment when the deputy was talking to the driver, and the driver testified the methamphetamine belonged to defendant. Therefore, the district court did not err in denying defendant's motion for judgment of acquittal.

III. Unruly J uror-

Defendant also contends that the district court erred by not questioning a juror about her ability to deliberate fairly after learning that at one point in the deliberations the juror was emotionally upset and refusing to deliberate. Thus, defendant asserts, he was denied his right to a fair trial by an impartial jury. We are not persuaded.

On the morning of the second day of the trial, immediately prior to jury deliberations, the court discharged the alternate juror. Jury deliberations began some time before noon. At about 8:00 p.m., the court received a note from the jury foreman stating as follows:

During the [course] of discussion, one of the jurors shut down, became isolated, and began to draw.
Onee confronted, she became emotional and declared "she didn't care anymore." We as a group said this was not an option, at which point she became emotional, stood up[,] declared herself bipolar and locked herself in the bathroom.
She seem{s] capable of agreeing with the majority in order to avoid more conflict.
What are the options available including the alternate juror[?]

The bailiff told the court that at some point the juror in question had locked herself in the bathroom, but had later come out and the jury had decided to take a break. According to the bailiff, after the break the juror seemed to be agreeable to going forward with deliberating. At about 3:80 p.m., the court discussed the matter with the attorneys and informed them of the note and related events. Defendant's counsel moved for a mistrial, to which the prosecutor objected.

At 3:40 p.m., the court sent a note back to the foreman stating:

Please advise the Court whether anything has changed since the Court received this note. Specifically, please advise the Court as to whether all 12 of the jurors are able to proceed with deliberations.

[415]*415l‘ | | I 1 |. |

Ten minutes later, the foreman responded: "At this point all 12 jurors seem to be fine and are proceeding."

Defendant's counsel renewed his motion for a mistrial. The court denied the motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Peo v. Stevens
Colorado Court of Appeals, 2026
Peo v. Graciano
Colorado Court of Appeals, 2026
People v. Martinez
Colorado Court of Appeals, 2026
Peo v. Albayero
Colorado Court of Appeals, 2025
State Of Washington, V. Robert Jesse Hill
495 P.3d 282 (Court of Appeals of Washington, 2021)
People v. Sparks
2018 COA 1 (Colorado Court of Appeals, 2018)
People v. Douglas
2015 COA 155 (Colorado Court of Appeals, 2015)
People in the Interest of D.I
2015 COA 136 (Colorado Court of Appeals, 2015)
People v. Clark
2015 COA 44 (Colorado Court of Appeals, 2015)
Beren v. Goodyear (In re Estate of Beren)
412 P.3d 487 (Colorado Court of Appeals, 2012)
People v. Ramos
2012 COA 191 (Colorado Court of Appeals, 2012)
People v. Pena-Rodriguez
412 P.3d 461 (Colorado Court of Appeals, 2012)
People v. Bondurant
2012 COA 50 (Colorado Court of Appeals, 2012)
People v. Robles
302 P.3d 269 (Colorado Court of Appeals, 2011)
Kendrick v. Pippin
222 P.3d 380 (Colorado Court of Appeals, 2009)
People v. McNeely
222 P.3d 370 (Colorado Court of Appeals, 2009)
People v. Mollaun
194 P.3d 411 (Colorado Court of Appeals, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
194 P.3d 411, 2008 Colo. App. LEXIS 807, 2008 WL 2053442, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mollaun-coloctapp-2008.