COLORADO COURT OF APPEALS                                        2017COA62


Court of Appeals No. 14CA1174
Pueblo County District Court No. 13CR1208
Honorable Larry C. Schwartz, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Valerie Valentina Gonzales,

Defendant-Appellant.


                              JUDGMENT AFFIRMED

                                  Division I
                         Opinion by JUDGE GRAHAM
                       Taubman and Navarro, JJ., concur

                           Announced May 18, 2017


Cynthia H. Coffman, Attorney General, Patrick A. Withers, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellant

Douglas K. Wilson, Colorado State Public Defender, Anne T. Amicarella, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Valerie Valentina Gonzales, appeals the judgment

 of conviction entered on jury verdicts finding her guilty of unlawful

 possession of a schedule II controlled substance (oxycodone) and

 unlawful possession of a schedule III controlled substance

 (hydrocodone). We conclude that in this instance the provision in

 section 18-18-413, C.R.S. 2016, allowing for authorized possession

 of a controlled substance by “a person acting at the direction of the

 legal owner of the controlled substance” is not an affirmative

 defense to a charge of unlawful possession of a controlled

 substance under section 18-18-403.5, C.R.S. 2016. We also reject

 defendant’s remaining contentions. Consequently, we affirm.

¶2    Defendant was charged with simple possession after the police

 found Percocet and Vicodin in her purse for which she did not have

 a prescription. At trial, defendant’s neighbor testified that she had

 prescriptions for both medications and that she had asked

 defendant to hold her prescriptions while they were out that

 evening because her purse was too small and she did not wish to

 leave the medications at home. A jury convicted defendant of

 possession and the trial court sentenced her to probation.




                                   1
                            I.      Instructions

¶3    Defendant contends that she could lawfully possess the

 medications if she was “acting at the direction of the legal owner of

 the controlled substance.” § 18-18-413. She therefore argues that

 the trial court should have given the jury an affirmative defense

 instruction. Defendant further contends the trial court plainly

 erred by not giving an affirmative defense instruction based on the

 prescription exception in section 18-18-302(3)(c), C.R.S. 2016, that

 allows lawful possession by “[a]n ultimate user or a person in

 possession” of the medication “pursuant to a lawful order of a

 practitioner.” We conclude that under the circumstances here,

 section 18-18-413 is not an affirmative defense to unlawful

 possession and that the trial court did not plainly err by failing sua

 sponte to give either instruction.

                       A.        Standard of Review

¶4    “We review de novo the question of whether a jury instruction

 accurately informed the jury of the governing law.” People v.

 Carbajal, 2014 CO 60, ¶ 10. “We review a trial court’s decision to

 give or not to give a particular instruction for an abuse of

 discretion.” People in Interest of J.G., 2016 CO 39, ¶ 33.


                                       2
¶5    Statutory construction is a question of law that we review de

 novo. Marsh v. People, 2017 CO 10M, ¶ 19.

¶6    “Appellate courts review errors that were not preserved by

 objection under a plain error standard.” People v. Davis, 2015 CO

 36M, ¶ 32. Plain error is “obvious and substantial,” Hagos v.

 People, 2012 CO 63, ¶ 14, and must have “so undermined the

 fundamental fairness of the [proceeding] . . . as to cast serious

 doubt on the reliability of the judgment” to merit reversal, People v.

 Miller, 113 P.3d 743, 750 (Colo. 2005) (citation omitted).

¶7    We apply the plain error standard here because defense

 counsel did not request the court to treat section 18-18-413 as an

 affirmative defense or request any instruction based on section

 18-18-302(3)(c).

                         B.   Additional Facts

¶8    At the close of the first day of trial, defense counsel tendered

 an instruction stating as follows: “A person is authorized to possess

 a controlled substance if it has been prescribed to them or if they

 are acting at the direction of the person to whom it has been

 prescribed.” As authority for the instruction, counsel cited sections

 18-18-413 and 18-18-401, C.R.S. 2016.


                                    3
¶9     The prosecutor objected to the instruction, and the court

  agreed to give the instruction over the objection in a modified form

  that more closely tracked the language of section 18-18-413.

  Significant to our review, defense counsel never requested that the

  instruction be tied to the elements of the charged offenses or

  suggested to the court that it was an affirmative defense.1 The trial

  court gave the jury the following instruction:

             A person to whom or for whose use any
             controlled substance has been prescribed or
             dispensed by a practitioner may lawfully
             possess it, but only in the container in which it
             was delivered to him unless he is able to show
             that he is the legal owner or a person acting at
             the direction of the legal owner of the
             controlled substance.

¶ 10   Nor did defense counsel request an affirmative defense

  instruction based on section 18-18-302(3)(c). See People v. Whaley,

  159 P.3d 757, 760 (Colo. App. 2006) (“Because the prescription

  exception . . . is located in a different part of article 18, see

  § 18-18-302(3)(c), we conclude this exception is in reality an


  1 The court asked defense counsel whether she wished to have the
  instruction in the form ultimately given or whether defendant was
  asking for an instruction on a lesser nonincluded offense. Counsel
  elected to have the jury given the instruction as modified by the
  court.

                                       4
  affirmative defense, notwithstanding the fact that the General

  Assembly did not label it as such.”).

                          C.    Law and Analysis

¶ 11   “It is the duty of the trial court to ‘correctly instruct the jury

  on all matters of law for which there is sufficient evidence to

  support giving instructions.’” Carbajal, ¶ 10 (quoting Cassels v.

  People, 92 P.3d 951, 955 (Colo. 2004)).

             When an exception is included in a statutory
             section defining the elements of the offense, it
             is generally the burden of the prosecution to
             prove that the exception does not apply.
             However, when an exception is found in a
             separate clause or is clearly disconnected from
             the definition of the offense, it is the
             defendant’s burden to claim it as an
             affirmative defense.

  People v. Reed, 932 P.2d 842, 844 (Colo. App. 1996); accord

  Whaley, 159 P.3d at 759; see § 18-1-407(1), C.R.S. 2016

  (“‘Affirmative defense’ means that unless the state’s evidence raises

  the issue involving the alleged defense, the defendant, to raise the

  issue, shall present some credible evidence on that issue.”).

¶ 12   The primary goal in statutory interpretation is to ascertain and

  effectuate the General Assembly’s intent, and we begin this task by

  examining the plain meaning of the statutory language. Marsh,


                                      5
  ¶ 20. “We read statutes ‘as a whole in order to accord consistent,

  harmonious, and sensible effects to all their parts.’” People v.

  Adams, 2016 CO 74, ¶ 12 (quoting A.S. v. People, 2013 CO 63,

  ¶ 10).

                           1.   Section 18-18-413

¶ 13   Section 18-18-413 is located within the “offenses and

  penalties” of the Uniform Controlled Substances Act of 2013.

  §§ 18-18-101 to -606, C.R.S. 2016. Section 413 is titled

  “[a]uthorized possession of controlled substances” and states:

             A person to whom or for whose use any
             controlled substance has been prescribed or
             dispensed by a practitioner may lawfully
             possess it, but only in the container in which it
             was delivered to him unless he is able to show
             that he is the legal owner or a person acting at
             the direction of the legal owner of the
             controlled substance. Any person convicted of
             violating this section commits a drug petty
             offense, and the court shall impose a fine of
             not more than one hundred dollars.

¶ 14   Defendant was charged with violating section 18-18-403.5,

  which states in pertinent part that “[e]xcept as authorized by part 1

  or 3 of article 42.5 of title 12, C.R.S., part 2 of article 80 of title 27,

  C.R.S., section 18-1-711, section 18-18-428(1)(b), or part 2 or 3 of




                                       6
  this article, it is unlawful for a person knowingly to possess a

  controlled substance.” § 18-18-403.5(1).

¶ 15   Defendant asks us to consider section 18-18-413 as an

  affirmative defense to section 18-18-403.5. Under the

  circumstances presented here, we are unpersuaded that section

  18-18-413 is an affirmative defense to section 18-18-403.5. Rather,

  section 18-18-413 is itself a separate offense, and the exception for

  “a person acting at the direction of the legal owner of the controlled

  substance” is an element the prosecution must disprove when

  charging someone with a violation of that section. See Reed, 932

  P.2d at 844 (“When an exception is included in a statutory section

  defining the elements of the offense, it is generally the burden of the

  prosecution to prove that the exception does not apply.”).

¶ 16   Defendant relies on Whaley, 159 P.3d at 759, for her

  argument that section 18-18-413 is an affirmative defense available

  to her. In Whaley, the defendant was charged with possession

  under section 18-18-405(1)(a), C.R.S. 2006.2 A division of this



  2After People v. Whaley, 159 P.3d 757 (Colo. App. 2006), was
  decided the General Assembly removed simple possession from
  section 18-18-405 and recodified it as section 18-18-403.5. See

                                     7
court concluded that the “prescription exception” codified in section

18-18-302(3)(c) was an affirmative defense to possession under

section 18-18-405(1)(a), C.R.S. 2006. 159 P.3d at 760. Under

section 18-18-302(3)(c), a “person may ‘lawfully possess controlled

substances under this article’ if he or she is ‘in possession of any

controlled substance pursuant to a lawful order of a practitioner.’”

Id. at 759 (quoting § 18-18-302(3)(c), C.R.S. 2006). Because section

18-18-405, C.R.S. 2006, contained exceptions to a violation of the

statute, id. at 758 (“Except as authorized by part 3 of article 22 of

title 12, C.R.S., or by part 2 or 3 of this article . . . .”), and section

18-18-302(3)(c) was within “part . . . 3 of this article,” the division

concluded that section 18-18-302(3)(c) was an affirmative defense,

id. at 760. The division reasoned that because the defendant

requested, and the trial court refused, to instruct the jury that it

was the prosecution’s burden to disprove beyond a reasonable

doubt evidence that the defendant attempted to gain “possession of




Ch. 259, sec. 3, § 18-18-405, 2010 Colo. Sess. Laws 1164; Ch. 259,
sec. 4, § 18-18-403.5, 2010 Colo. Sess. Laws 1165; People v. Davis,
2015 CO 36M, ¶ 35 n.3.

                                     8
  the controlled substance pursuant to a lawful order of a

  practitioner,” reversal and retrial were necessary. Id.

¶ 17   Whaley does not support defendant’s position. The division in

  Whaley specifically addressed an exception contemplated by the

  possession statute. Here, section 18-18-403.5 considers exceptions

  from “part 1 or 3 of article 42.5 of title 12, C.R.S., part 2 of article

  80 of title 27, C.R.S., section 18-1-711, section 18-18-428(1)(b), or

  part 2 or 3 of this article.” Section 18-18-413 is not included in

  that list. And while we construe statutes as a whole and attempt to

  harmonize them, we are not required to read into a statute an

  affirmative defense that is not there. While the language defendant

  relies on in section 18-18-413 might present a defense to the crime

  of unauthorized possession of a prescribed controlled substance,

  see COLJI-Crim. 18:57 (2015) (describing the elements of the crime

  of unauthorized possession of a prescribed or dispensed controlled

  substance section 18-18-413), it does not present an affirmative

  defense to unlawful possession under section 18-18-403.5.

¶ 18   Furthermore, for the trial court to have reversibly erred in

  failing to tie this instruction to the elemental instructions given to

  the jury, that error would have to have been “plain and obvious.”


                                      9
  Defendant’s proposed construction is neither plain nor obvious.

  Thus, the trial court did not commit plain error by not adopting this

  construction sua sponte. Accordingly, we reject defendant’s

  contention that she should receive a new trial on this basis.

                       2.   Section 18-18-302(3)(c)

¶ 19   Section 18-18-302(3)(c) is an affirmative defense to unlawful

  possession of a controlled substance. Whaley, 159 P.3d at 760.

  Under section 18-18-302(3)(c):

             The following persons . . . may lawfully possess
             controlled substances under this article: [a]n
             ultimate user or a person in possession of any
             controlled substance pursuant to a lawful
             order of a practitioner.

¶ 20   We do not agree that the affirmative defense contained in

  section 18-18-302(3)(c) applies to the charges against defendant.

  Whaley addressed a charge of attempted possession and concluded

  that “the trial court erred by refusing to instruct the jury that it was

  the prosecution’s burden to disprove, beyond a reasonable doubt,

  evidence that defendant attempted to gain ‘possession of the

  controlled substance pursuant to a lawful order of a practitioner.’”

  159 P.3d at 760 (quoting § 18-18-302(3)(c)). Because section

  18-18-302(3)(c) is an affirmative defense to attempted possession, it


                                     10
  is also a defense to possession (the charges against defendant in

  this case). However, the defendant in Whaley was attempting to

  refill a prescription that had been prescribed to him by a

  practitioner. Id. at 758. Here, defendant was charged with

  possessing medications for which she did not have a valid

  prescription from a practitioner. To read Whaley as defendant

  suggests would be to expand section 18-18-302(3)(c) beyond the

  language of the statute and the division’s interpretation in Whaley.

¶ 21   Furthermore, even if we were to assume that the court erred in

  failing to sua sponte give this affirmative defense, that error is only

  reversible if it is “obvious and substantial” because defendant did

  not request that the court give such an instruction. Here, we

  cannot conclude the error was obvious because a reading of section

  18-18-403.5 and 18-18-302(3)(c) does not immediately alert a court

  that section 18-18-302(3)(c) is an affirmative defense to possession.

  Because Whaley was decided under section 18-18-405(1)(a), C.R.S.

  2006, which at the time included simple possession, and because

  simple possession has since been recodified in section 18-18-403.5,

  the application of section 18-18-302(3)(c) to the circumstances here

  was not so clear cut that the court should have been able to avoid it


                                     11
  without the benefit of counsel. See People v. Cardman, 2016 COA

  135, ¶ 87 (“Under the plain error standard, ‘the defendant bears the

  burden to establish that an error occurred, and that at the time the

  error arose, it was so clear cut and so obvious that a trial judge

  should have been able to avoid it without benefit of objection.’”

  (quoting People v. Conyac, 2014 COA 8M, ¶ 54)) (emphasis added),

  cert. granted & judgment vacated, (Colo. No. 16SC789, Apr. 10,

  2017) (unpublished order); cf. People v. Stewart, 55 P.3d 107,

  120-21 (Colo. 2002) (trial court did not commit plain error in failing

  to sua sponte give the jury defendant’s affirmative defense

  instruction); People v. Gorman, 983 P.2d 92, 95 (Colo. App. 1998)

  (“In these circumstances, the trial court’s failure sua sponte to

  instruct the jury on the affirmative defense was not plain error.”),

  aff’d on other grounds, 19 P.3d 662 (Colo. 2000).

                     II.   Prosecutorial Misconduct

¶ 22   Defendant argues that the prosecutor committed reversible

  error by arguing that section 18-18-413 was not an affirmative

  defense to section 18-18-403.5 and by misstating the evidence in

  closing arguments. We disagree.




                                    12
                           A.   Additional Facts

¶ 23   Throughout the trial, the prosecutor argued that defendant

  was guilty because she did not have a prescription for the

  medications in her purse. Defendant argued this was a

  misstatement of law because a defendant may have permission

  from someone with a prescription to hold the medication under

  section 18-18-413. The court allowed the prosecutor to present his

  argument during trial.

¶ 24   During closing arguments, the prosecutor made the following

  three statements defendant argues are misstatements of fact:

          Regarding defendant’s alleged robbery, “[t]he officers

            looked into it, and didn’t find anything.”

          Regarding the neighbor’s purse being too small to hold

            her prescriptions, “I’ve been in the presence of many

            purses, and I can tell you they always seem to have

            either zippers or buttons that allow them to be closed

            fairly securely. So the initial claim . . . as to why this

            happened just doesn’t seem to fly.”

          Regarding the lack of a label on one of the prescription

            bottles, “as anybody can note, these prescriptions are


                                    13
             stuck to these bottles. And it’s very, very difficult to get

             them off. And there doesn’t seem to be any evidence that

             the stickiness was still on that bottle.”

¶ 25   Defendant did not object to these statements.

                         B.    Standard of Review

¶ 26   Defendant objected to the prosecutor’s statement of the law,

  and we therefore review for harmless error. Cider v. People, 186

  P.3d 39, 42 (Colo. 2008). Reversal is mandated only if we conclude

  that error occurred and that there is a reasonable probability that

  the error contributed to the guilty verdict. Id.

¶ 27   Defendant did not object to the prosecutor’s comments on the

  evidence, and, thus, we review for plain error. See People v.

  Ujaama, 2012 COA 36, ¶¶ 37-38. Prosecutorial misconduct

  amounts to plain error when it is flagrant, glaring, or tremendously

  improper. Id. at ¶ 70; People v. Strock, 252 P.3d 1148, 1152 (Colo.

  App. 2010). The misconduct must “so undermine the fundamental

  fairness of the trial as to cast serious doubt on the reliability of the

  judgment of conviction.” People v. Weinreich, 98 P.3d 920, 924

  (Colo. App. 2004), aff’d, 119 P.3d 1073 (Colo. 2005).




                                     14
                                 C.    Law

¶ 28   When considering a claim of prosecutorial misconduct, “the

  reviewing court engages in a two-step analysis.” Wend v. People,

  235 P.3d 1089, 1096 (Colo. 2010). “First, it must determine

  whether the prosecutor’s questionable conduct was improper based

  on the totality of the circumstances and, second, whether such

  actions warrant reversal according to the proper standard of review.

  Each step is analytically independent of the other.” Id. (citation

  omitted). “Plain error review maximizes deference to the trial court,

  but it does not excuse the appellate court from its responsibility to

  address errors that prejudice the defendant.” Id. at 1097.

¶ 29   It is improper for counsel to express his or her personal belief

  regarding the truth or falsity of testimony during final argument

  because the truthfulness of testimony and the credibility of

  witnesses are matters to be determined by the trier of fact, and not

  by the advocates. Wilson v. People, 743 P.2d 415, 418 (Colo. 1987).

  “[A] prosecutor, while free to strike hard blows, is not at liberty to

  strike foul ones.” Domingo-Gomez v. People, 125 P.3d 1043, 1048

  (Colo. 2005) (quoting Wilson, 743 P.2d at 418).




                                      15
                                  D.   Analysis

                          1.     Misstatement of Law

¶ 30   Because we have concluded that under the circumstances

  here section 18-18-413 is not an affirmative defense to section

  18-18-403.5, we discern no error in the prosecutor’s argument both

  during voir dire and closing argument.

                     2.        Misstatement of Evidence

¶ 31   The prosecutor’s statements regarding the robbery, the purse,

  and the prescription bottle were reasonable inferences drawn from

  the evidence presented at trial. While the prosecutor may not give

  his or her personal opinion on the credibility of a witness, he or she

  can “comment on the lack of evidence confirming a defendant’s

  theory of the case,” People v. Liggett, 114 P.3d 85, 89 (Colo. App.

  2005), aff’d, 135 P.3d 725 (Colo. 2006), and can suggest jurors

  draw reasonable inferences from their common knowledge, People v.

  Rodriguez, 794 P.2d 965, 976 (Colo. 1990). Here, the prosecutor’s

  comments were drawn from the evidence presented at trial, but

  even if we were to agree with defendant that the prosecutor struck

  some “foul blows” with his argument, we are unpersuaded that

  these comments rose to the level of plain error. In short, these


                                       16
  statements were neither flagrant, nor glaring, nor tremendously

  improper. See, e.g., id. at 974 (as long as the argument does not

  bring in extrinsic matters, and is not presented in an inflammatory

  manner, it is not objectionable).3

                            III.   Conclusion

¶ 32   The judgment is affirmed.

       JUDGE TAUBMAN and JUDGE NAVARRO concur.




  3 Because we conclude the prosecutor committed no misconduct,
  we reject defendant’s contention that these alleged errors
  cumulatively require reversal. See People v. Thomas, 2014 COA 64,
  ¶ 61 (“To warrant reversal of a conviction based on cumulative
  error, ‘numerous errors [must] be committed, not merely alleged.’”
  (quoting People v. Whitman, 205 P.3d 371, 387 (Colo. App. 2007))
  (alteration in original).

                                       17
