     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                  May 3, 2018

                                2018COA60

No. 14CA1390, People v. Kessler — Constitutional Law —
Searches and Seizures — Warrantless Search — Search Incident
to Arrest — Motor Vehicles

     A division of the court of appeals considers whether the trial

court should have suppressed evidence of cocaine recovered from

defendant’s car after he was arrested for driving under the influence

because the police lacked sufficient grounds to search the car once

they seized a half-empty bottle of schnapps.

     The majority concludes that officers may search the passenger

compartment of a vehicle where the circumstances give rise to a

reasonable, articulable suspicion that the vehicle might contain

evidence of the crime for which they had probable cause to arrest.

The majority further concludes that the police officers’ reasonable

suspicion that defendant’s car contained evidence of alcohol did not
evaporate once the officers found some alcohol in the car. Thus, it

affirms the trial court’s denial of the motion to suppress.

     The partial dissent disagrees and concludes that the police

lacked the requisite reasonable suspicion to further search the car

for alcohol once they recovered a half-empty bottle of schnapps.
COLORADO COURT OF APPEALS                                           2018COA60


Court of Appeals No. 14CA1390
Grand County District Court No. 13CR58
Honorable Mary C. Hoak, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Daniel Steven Kessler,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                    Division II
                         Opinion by JUDGE MÁRQUEZ*
                               Navarro, J., concurs
                 Dailey, J., concurs in part and dissents in part

                            Announced May 3, 2018


Cynthia H. Coffman, Attorney General, Paul Koehler, First Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Jessica A. Pitts, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Defendant, Daniel Steven Kessler, appeals the judgment of

 conviction entered on jury verdicts finding him guilty of possession

 of a controlled substance (cocaine), driving under the influence,

 possessing an open container of alcohol in a motor vehicle,

 operating a motor vehicle without a license, and speeding. We

 affirm.

                            I.   Background

¶2    Kessler, who lived in Fraser, borrowed his father’s car to drive

 to Denver to see his girlfriend. On his return, he was stopped by

 police between Winter Park and Fraser for driving sixty-seven miles

 per hour in a fifty-five mile per hour zone. Upon approaching the

 car with a flashlight, the officer spotted a half-empty 375 milliliter

 bottle1 of schnapps on the floor behind the passenger’s seat. The

 officer asked Kessler for his license, registration, and proof of

 insurance multiple times before Kessler responded by presenting

 only the registration and proof of insurance; Kessler admitted that

 he did not have a valid driver’s license.



 1This is a pint. Glenn E. Rohrer et al., Calculation of Blood Alcohol
 Concentration in Criminal Defendants, 22 Am. J. Trial Advoc. 177,
 184 (1998).


                                    1
¶3    Noticing that Kessler had watery, bloodshot eyes, slurred

 speech, and an odor of alcohol on his breath, the officer asked him

 to step out of the car. Kessler needed to use the car door for

 support to get out of the car. When the officer asked if he had been

 drinking, Kessler initially told the officer that he had not;

 eventually, though, Kessler told him that he had drunk from the

 bottle of schnapps. The officer then administered a roadside

 sobriety examination of Kessler. After Kessler performed most of

 the maneuvers unsatisfactorily,2 the officer administered a

 preliminary breath test (PBT), which registered .154 g/210L, before

 arresting him for driving under the influence (DUI) and placing him

 in the back of a police car.

¶4    Two other officers searched the vehicle for further evidence of

 alcohol consumption. Upon lifting the armrest over the center

 console in the front seat, they discovered a bag containing a white

 powdery substance that they suspected was, and which turned out

 to be, cocaine.


 2 Kessler recited the alphabet satisfactorily but showed signs of
 alcohol impairment in the horizontal gaze nystagmus, walk and
 turn, and one-legged stand parts of the standardized roadside
 maneuvers.

                                    2
¶5         Approximately three hours after Kessler’s arrest, a deputy

 sheriff at the Grand County Jail administered a breath test as

 Kessler had requested. The test results showed that he had a blood

 alcohol content of 0.097g/210L.

¶6         At trial, Kessler testified that although he had been drinking,

 he was not drunk, and that the cocaine found in his car did not

 belong to him. It could have been put there, he posited, by others

 (i.e., his girlfriend and a panhandler) who had been in the car

 earlier that day.

¶7         The jury found Kessler guilty as charged.

     II.   Sufficiency of Evidence: Possession of a Controlled Substance

¶8         Kessler contends that the evidence was insufficient to convict

 him of possessing a controlled substance (cocaine). We disagree.

¶9         As an initial matter, we reject the People’s position that this

 issue was not properly preserved for appeal. Although Kessler did

 not offer a precise argument, he did move for a judgment of

 acquittal on this and all the other counts. In response, the

 prosecution addressed each count in turn, including possessing a

 controlled substance. The trial court then denied Kessler’s motion

 after, like the prosecution, addressing each count and its specific


                                        3
  evidence. Because the trial court specifically addressed the count

  that Kessler challenges on appeal, the issue is properly preserved.

  People v. McFee, 2016 COA 97, ¶ 31 (“Where, despite imprecision in

  the objection, the trial court actually rules on the claim raised on

  appeal, and makes findings of fact and conclusions of law, the claim

  is sufficiently preserved.”).

¶ 10   Turning to the merits, we note Kessler was convicted under

  section 18-18-403.5(1), C.R.S. 2017, which provides, “it is unlawful

  for a person knowingly to possess a controlled substance.” Here,

  Kessler asserts that there was insufficient evidence from which a

  jury could find that he possessed, or knowingly possessed, the

  cocaine because he borrowed the car from his father, he was not in

  exclusive control of the car on the date in question, and he denied

  knowing the cocaine was in the car. In support of his assertion, he

  advances two contentions — namely, that (1) where a person is not

  in exclusive control of the area in which drugs are found, the

  inference of possession may not be drawn unless statements or

  other circumstances buttress that inference; and (2) the mere

  presence of a drug does not, in and of itself, prove knowing

  possession of it, see People v. Poe, 2012 COA 166, ¶ 16.


                                     4
¶ 11   A flaw in Kessler’s arguments is their premises — that is, that

  he was not in exclusive possession of the car (because others had

  ridden in it that day) and that nothing besides the mere presence of

  the cocaine was presented to show he knowingly possessed it. His

  premises assume that the jury believed his version of events. Such

  an assumption is given no effect, however, in assessing a sufficiency

  of evidence issue.

             When assessing the sufficiency of the evidence
             supporting a conviction, we review the record
             de novo to determine whether the evidence,
             viewed in the light most favorable to the
             prosecution, was both substantial and
             sufficient to support the conclusion by a
             reasonable mind that the defendant was guilty
             beyond a reasonable doubt.

  People v. Griego, 2018 CO 5, ¶ 24.

¶ 12   In analyzing the sufficiency of the evidence, we recognize that

  (1) it is for the fact finder to determine the difficult questions of

  witness credibility and the weight to be given to conflicting items of

  evidence, see People v. Gibson, 203 P.3d 571, 575 (Colo. App. 2008);

  (2) a fact finder is not required to accept or reject a witness’s

  testimony in its entirety; it may believe all, part, or none of a

  witness’s testimony, Gordon v. Benson, 925 P.2d 775, 778-79 (Colo.



                                      5
  1996); (3) an actor’s state of mind is normally not subject to direct

  proof and must be inferred from his or her actions and the

  circumstances surrounding the occurrence, People v. Phillips, 219

  P.3d 798, 800 (Colo. App. 2009); (4) the prosecution must be given

  the benefit of every inference that may fairly be drawn from the

  evidence, People v. Heywood, 2014 COA 99, ¶ 1; (5) “[i]f there is

  evidence upon which one may reasonably infer an element of the

  crime, the evidence is sufficient to sustain that element,” People v.

  Chase, 2013 COA 27, ¶ 50; and (6) “[w]here reasonable minds could

  differ, the evidence is sufficient to sustain a conviction,” People v.

  Bondurant, 2012 COA 50, ¶ 58 (quoting People v. Carlson, 72 P.3d

  411, 416 (Colo. App. 2003)); see People v. Arzabala, 2012 COA 99,

  ¶ 13 (“An appellate court is not permitted to act as a ‘thirteenth

  juror’ and set aside a verdict because it might have drawn a

  different conclusion had it been the trier of fact.”).

¶ 13   Initially, we note that the possibility someone else was in the

  car earlier that day does not change the fact that Kessler was in

  exclusive possession of the vehicle when it was stopped and

  searched, making him subject to the inferences that he knowingly

  possessed the cocaine. See People v. Baca, 109 P.3d 1005, 1007


                                      6
  (Colo. App. 2004) (“[K]nowledge [of drugs] can be inferred from the

  fact that the defendant is the driver and sole occupant of a vehicle,

  irrespective of whether he is also the vehicle’s owner.”); see also

  Goliday v. State, 708 N.E.2d 4, 6 (Ind. 1999) (holding that where the

  defendant was the only person in a borrowed car when stopped, his

  exclusive possession of the car was sufficient to raise a reasonable

  inference of knowledge of the presence of contraband). Moreover,

  as noted above, the jury was not bound to accept Kessler’s

  testimony that others had been in the car that day — yet another

  reason why, for sufficiency of evidence purposes, Kessler could be

  considered to have been in exclusive possession of the car.

¶ 14   Furthermore, one officer testified that the cocaine was, upon

  the simple movement of lifting the armrest, plainly visible — and

  not covered by anything — in the console. This testimony, in

  conjunction with the cocaine’s location just inches from where

  Kessler sat on and off for ten hours that day, and Kessler’s

  testimony that, to his knowledge, no one else had interacted with

  the console, amply supported the inference that Kessler knowingly

  possessed the cocaine. See People v. Warner, 251 P.3d 556, 564




                                     7
  (Colo. App. 2010) (“A conviction for possession of a controlled

  substance may be predicated on circumstantial evidence.”).

   III.    Admission of Evidence Concerning the Cocaine Found in the
                                     Car

¶ 15      On appeal, Kessler contends that the trial court should have

  suppressed evidence related to the recovery of cocaine from his car

  because the police lacked sufficient grounds to search the car once

  they seized the half-empty bottle of schnapps. We disagree.

¶ 16      A district court’s ruling on a motion to suppress evidence

  presents a mixed question of law and fact. People v. Glick, 250 P.3d

  578, 582 (Colo. 2011); People v. Rabes, 258 P.3d 937, 940 (Colo.

  App. 2010). We defer to the court’s findings of fact so long as they

  are supported by competent evidence in the record, but we review

  the court’s legal conclusions de novo. Glick, 250 P.3d at 582.

¶ 17      The Fourth Amendment to the United States Constitution

  protects against unreasonable searches and seizures. People v.

  D.F., 933 P.2d 9, 11-12 (Colo. 1997). Warrantless searches are

  presumptively invalid unless justified by an established exception to

  the warrant requirement. People v. Prescott, 205 P.3d 416, 419

  (Colo. App. 2008). One such exception is the search of a vehicle



                                      8
  incident to a lawful arrest. People v. Coates, 266 P.3d 397 (Colo.

  2011).3

¶ 18   In Arizona v. Gant, 556 U.S. 332 (2009), the United States

  Supreme Court held that “[p]olice may search a vehicle incident to a

  recent occupant’s arrest only if the arrestee is within reaching

  distance of the passenger compartment at the time of the search or

  it is reasonable to believe the vehicle contains evidence of the

  offense of arrest.” Id. at 351.

¶ 19   Here, because Kessler had been removed from the car and

  taken into custody before the search occurred, we are concerned

  only with the second Gant situation — that is, whether it was

  reasonable for the police to believe that Kessler’s vehicle contained

  evidence of the offense of arrest, DUI.

¶ 20   Many state and federal courts hold “either ‘that the “nature of

  the charge” is determinative of whether there exists a reasonable

  basis to search for evidence’ or that reasonableness of belief should



  3 This is the exception on which the parties and the court focused
  in the trial court. Another exception is the automobile exception.
  See People v. Zuniga, 2016 CO 52, ¶ 14. The applicability of the
  automobile exception was not argued in the trial court or on appeal.


                                     9
  be determined ‘based upon common sense factors and the totality of

  the circumstances.’” Rebecca A. Fiss, When “It Depends” Isn’t Good

  Enough: The Problems Caused by the Supreme Court of North

  Carolina’s Decision in State v. Mbacke, 91 N.C. L. Rev. 1404, 1435–

  36 (2013) (footnote omitted) (first quoting Brown v. State, 24 So. 3d

  671, 678 (Fla. Dist. Ct. App. 2009); then quoting United States v.

  Reagan, 713 F. Supp. 2d 724, 728 (E.D. Tenn. 2010)); see State v.

  Eversole, No. 15-17-03, 2017 WL 5127369, at *4 (Ohio Ct. App.

  Nov. 6, 2017) (“Two primary approaches to Gant’s reason-to-believe

  language have developed — the ‘categorical’ approach and the

  ‘reasonableness’ approach.”).

¶ 21   Some courts, using the categorical approach, have held that

  an arrest for DUI in and of itself supplies the reason for a search

  incident to arrest under Gant. See, e.g., People v. Nottoli, 130 Cal.

  Rptr. 3d 884, 903 (Cal. Ct. App. 2011) (“[T]he search of the Acura

  incident to Reid’s arrest for being under the influence was lawful

  under Gant based on the nature of that offense.”); State v. Cantrell,

  233 P.3d 178, 185 (Idaho 2010) (“In this case, Cantrell was arrested

  for DUI, and the DUI supplied the basis for the search.”).




                                    10
¶ 22   Other courts have rejected the categorical approach under

  Gant in DUI situations, looking instead to the totality of the

  circumstances to determine if the officer had a specific, reasonable,

  and articulable suspicion apart from the mere nature of the offense

  to justify a search of a vehicle incident to the arrest. See, e.g.,

  United States v. Taylor, 49 A.3d 818, 824 (D.C. 2012); Taylor v.

  State, 137 A.3d 1029, 1033-34 (Md. 2016).

¶ 23   In People v. Chamberlain, 229 P.3d 1054 (Colo. 2010), the

  supreme court eschewed use of a categorical (or nature of offense)

  approach to determining the validity of a search of a car incident to

  arrest:

             The nature of the offense of arrest is clearly
             intended to have significance, and in some
             cases it may virtually preclude the existence of
             real or documentary evidence, but a broad rule
             automatically authorizing searches incident to
             arrest for all other offenses cannot be
             reconciled with the actual holding of Gant.

  Id. at 1057.

¶ 24   Consequently, “[u]nder the evidence-gathering rationale set

  forth in [Gant], officers may search the passenger compartment of a

  vehicle where the particular circumstances give rise to a reasonable

  articulable suspicion that the vehicle might contain evidence of the


                                     11
  crime for which they had probable cause to arrest.” People v. Crum,

  2013 CO 66, ¶ 2 (emphasis added) (citation omitted).

¶ 25   The reasonable suspicion standard requires “considerably less

  than proof . . . by a preponderance of the evidence and is less

  demanding even than the ‘fair probability’ standard for probable

  cause.” People v. Polander, 41 P.3d 698, 703 (Colo. 2001). It is

  satisfied if the police have specific and articulable facts, greater

  than a mere hunch, to support their belief that evidence of the

  crime for which the defendant was arrested might be in the car.

  See People v. Huynh, 98 P.3d 907, 912 (Colo. App. 2004)

  (discussing “reasonable suspicion” in the investigatory stop

  context); see also People v. McCarty, 229 P.3d 1041, 1046 (Colo.

  2010) (recognizing that, in the search of a vehicle context,

  “reasonable suspicion” must be based on some minimal level of

  objective suspicion, not merely a hunch or intuition, that evidence

  might be found in the arrestee’s vehicle).

¶ 26   “In considering whether reasonable suspicion exists, the court

  looks at the totality of the circumstances, the specific and

  articulable facts known to the officer at the time of the encounter,

  and the rational inferences to be drawn from those facts,” People v.


                                     12
  Garcia, 251 P.3d 1152, 1158 (Colo. App. 2010), in light of the

  officer’s special training and experience, People v. Ortega, 34 P.3d

  986, 994 (Colo. 2001); see United States v. Guerrero, 472 F.3d 784,

  787 (10th Cir. 2007) (“[O]fficers [may] draw on their own experience

  and specialized training to make inferences from and deductions

  about the cumulative information available to them that ‘might well

  elude an untrained person.’” (quoting United States v. Arvizu, 534

  U.S. 266, 273 (2002))).

¶ 27   Here, the trial court determined that the evidence of cocaine

  was admissible because of the following:

           The officer had probable cause to arrest Kessler for

            driving under the influence based on his failure to

            adequately perform the roadside sobriety tests, his

            bloodshot eyes, the odor of alcohol on his breath, and the

            PBT results.

           Kessler’s initial untruthfulness with the officer about

            whether or not he had been drinking made it “reasonably

            likely that they could find additional evidence [to support]

            a criminal investigation in the vehicle.”




                                    13
           One of the two officers who searched the vehicle stated,

             based on his training and experience, it was “more

             common than not” to find bottles of alcohol in a vehicle of

             someone arrested for driving under the influence.

           The first officer had seen a half-empty bottle of schnapps

             on the floor behind the passenger seat as he approached

             the vehicle.

           Kessler’s intoxication, plus the officer’s observation of the

             opened bottle of schnapps, justified the officers’ search of

             the car for more bottles of alcohol.

¶ 28   We agree that the search that uncovered the cocaine was

  justified. By virtue of the first four items identified above, the police

  had more than ample grounds to reasonably suspect that the

  vehicle would contain evidence (i.e., alcohol) related to the offense

  for which Kessler was arrested. And they found that evidence —

  alcohol, in the form of the half-empty bottle of schnapps — in the

  car. The question, though, is did the officers’ reasonable suspicion

  that the car contained alcohol evaporate once the officers found

  some alcohol? In our view, it did not.




                                     14
¶ 29   Our conclusion in this respect is supported by the decision of

  the Wisconsin Court of Appeals in State v. Billips, 807 N.W.2d 32,

  2011 WL 4578555 (Wis. Ct. App. 2011) (unpublished table

  decision), a case that, in all material respects, parallels the

  circumstances of the present case. In Billips, the defendant was

  stopped for speeding. Upon approaching the defendant’s vehicle,

  the officer saw what looked to be an open bottle of alcohol inside

  the vehicle. He removed the opened bottle from the car, had the

  defendant perform roadside sobriety tests, arrested him for

  operating a vehicle while intoxicated (OWI), and searched the car for

  any other open intoxicants. The officer found a marijuana cigar end

  on the center console of the car and more marijuana inside a purse

  on the backseat of the car, and the defendant was charged with

  possession of tetrahydrocannabinols (THC). Unlike in our case, the

  trial court suppressed the evidence of marijuana found in the

  defendant’s vehicle. The State successfully appealed that ruling,

  however.

¶ 30   In concluding that the search of the vehicle for more open

  containers of alcohol was proper, the Wisconsin appellate court

  rejected an argument identical to the one made by Kessler here —


                                     15
  that is, that the police had no ground to search the car further once

  they seized the open bottle of alcohol therefrom:

               [The defendant] contends that at the point of
               her arrest, “it was not reasonable to believe
               there would be any further physical evidence
               of OWI in the vehicle. . . . [I]f [the defendant]
               left intoxicants in plain view in her vehicle, it is
               not reasonable to assume there were others
               stashed away out of the deputy’s sight.” In
               other words, [the defendant] argues that
               because [the officer] had already removed some
               evidence from her vehicle, it was not
               reasonable to believe there would be any
               further physical evidence of OWI in the vehicle.
               This same argument was considered by this
               court in State v. Smiter, 2011 WI App 15, ¶ 16,
               331 Wis. 2d 431, 793 N.W.2d 920, and
               rejected as “nonsensical.” There, the court
               observed, “Gant expressly permits searches for
               evidence relevant to the crime of arrest and
               does not require police to stop that search
               once some evidence is found.” Smiter, 331
               Wis. 2d 431, ¶ 16.

               Here, it was reasonable for [the officer] to
               believe that further evidence related to [the
               defendant’s] OWI arrest might be found in the
               vehicle.

  Id. at *2.

¶ 31    Persuaded by this analysis, we conclude that the search of the

  car and discovery of the cocaine were proper.




                                       16
       IV.   Admissibility of, and the Instruction on, the Breath Test
                                      Results

¶ 32    In two related arguments, Kessler contends that the trial court

  erred in (1) not suppressing the results of a breathalyzer test

  performed outside the two-hour time period prescribed in section

  42-4-1301.1, C.R.S. 2017;4 and (2) accordingly, instructing the jury

  that the delay in testing went to the weight of the evidence.5 We

  conclude that Kessler has waived these issues.

¶ 33    Kessler did not ask the trial court to suppress the results of

  the breath test or otherwise argue to the trial court that they were

  inadmissible. He also did not object to the instruction on the

  ground asserted on appeal — namely, that a delay in testing

  rendered the test results inadmissible.6




  4 Section 42-4-1301.1, C.R.S. 2017, which is commonly referred to
  as the “express consent” statute, allows a driver suspected of
  drinking to choose a method of testing for his blood alcohol level:
  breathalyzer or blood test; but the driver must choose one method
  and may not refuse the test. See § 42-4-1301.1(2)(a)(I).
  5 On appeal, Kessler objects to the part of an instruction that said,

  “[a]ccording to the law, two hours is considered a reasonable time.
  A test taken outside of two hours may affect the weight that should
  be given to results of the test.”
  6 To be sure, defense counsel did object to the instruction — but on

  grounds different from those asserted on appeal. In the trial court,
  he objected to the instruction because it included various

                                     17
¶ 34   So, Kessler has presented a new, or additional, argument on

  appeal. Sometimes, we review a new or additional argument raised

  for the first time on appeal for plain error. People v. Mares, 263

  P.3d 699, 702 (Colo. App. 2011) (“When, as here, a defendant fails

  to object or asserts on appeal a ground different from the ground

  asserted in the trial court, we review for plain error.”).

¶ 35   However, in this case, the new ground (i.e., that the delay in

  conducting the breath test rendered its results inadmissible) for

  both of his appellate arguments was explicitly disavowed by defense

  counsel in the trial court. In prefacing the objection he made to the

  instruction, see supra note 6, defense counsel took the position that

  the tests were admissible and that the only question was the weight

  to be given them: “I do not disagree with the Court in terms of the

  admission of the test . . . . So the test was admitted. We can

  certainly argue the weight.”

¶ 36   By agreeing that the test results were admissible and that the

  delay in conducting the tests affected only their weight, defense

  counsel waived Kessler’s right to argue, as he does here, precisely



  presumptions about blood alcohol levels obtained within a
  “reasonable time frame,” which, he said, “we do not have here.”

                                     18
  the opposite. See, e.g., United States v. Olano, 507 U.S. 725, 733

  (1993) (stating that a waiver occurs when a defendant specifically

  removes claims from the trial court’s consideration by intentionally

  relinquishing or abandoning a known right); United States v.

  Walton, 255 F.3d 437, 441 (7th Cir. 2001) (a “waived” issue is the

  result of an “intentional choice not to assert [a] right” (quoting

  United States v. Cooper, 243 F.3d 411, 416 (7th Cir. 2001))).

¶ 37   Recently, our supreme court held that defense counsel’s

  general acquiescence to the jury instructions did not waive the

  defendant’s appellate claim that the elemental instruction effected a

  constructive amendment of the charge, at least in the absence of

  other indications that counsel was aware of the defect in the

  elemental instruction. See People v. Rediger, 2018 CO 32, ¶¶ 41-

  47. Here, however, an elemental instruction is not at issue, and

  defense counsel did more than generally acquiesce or fail to object.

  Defense counsel explicitly agreed that the specific evidence at issue

  was admissible. So, Kessler, through his counsel, intentionally

  waived the particular point raised on appeal.

¶ 38   Because defense counsel explicitly waived the very claim

  Kessler makes on appeal, there is no issue of error for us to review.


                                     19
  See People v. Abeyta, 923 P.2d 318, 321 (Colo. App. 1996) (stating

  that where a defendant has waived a right, there is no error or

  omission by the court, and thus nothing for an appellate court to

  review), superseded by rule, Crim. P. 35(c), on other grounds as

  recognized in People v. Roy, 252 P.3d 24, 27 (Colo. App. 2010); see

  also Olano, 507 U.S. at 733 (distinguishing between a “waived” and

  a “forfeited” claim of error, and noting that a “waived” claim of error

  presents nothing for an appellate court to review); Walton, 255 F.3d

  at 441 (“[A] waived issue is unreviewable because a valid waiver

  leaves no error to correct and extinguishes all appellate review of

  the issue.”).

          V.      Questioning Kessler About An Officer’s Veracity

¶ 39   At trial, the amount of alcohol in the bottle of schnapps when

  the officer discovered it was contested: the officer said it was half

  full, while Kessler testified it was two-thirds full. During cross-

  examination, the prosecution asked Kessler if the officer “made up”

  the amount of schnapps in the bottle, to which Kessler responded,

  “Yeah. I didn’t say that to him.”

¶ 40   On appeal, Kessler contends that the prosecution’s question

  was improper under Liggett v. People, 135 P.3d 725 (2006), in which


                                      20
  the supreme court held that it is improper to ask a witness to

  comment on the veracity of another witness. Significantly, however,

  defense counsel lodged no objection to the question; consequently,

  reversal is not warranted in the absence of a showing of plain error.

  People v. Ujaama, 2012 COA 36, ¶ 38.

¶ 41   Plain error “provide[s] a basis for relief only on rare occasions,”

  in part because “it is difficult to ‘fault a trial court for failing to rule

  on an issue that had not been presented to it.’” Id. at ¶ 40 (quoting

  United States v. Simmonds, 931 F.2d 685, 688 (10th Cir. 1991)).

  Relief under the plain error doctrine is limited to error that is

  “obvious and substantial.” Hagos v. People, 2012 CO 63, ¶ 14.

¶ 42   Under Liggett, the prosecutor’s question (i.e., asking Kessler if

  the officer “made up” the amount of schnapps in the bottle) would

  ordinarily be improper because it was, in essence, another way of

  asking Kessler whether the officer was “lying.” See Liggett, 135 P.3d

  at 733 (holding questions asking one witness whether another

  witness was “mistaken” are improper).

¶ 43   But the People argue those questions were not improper in this

  case because Kessler had opened the door to such questioning

  when he initiated the exchange by stating that the officer


                                       21
  “exaggerated” when he testified that Kessler admitted to having

  drunk half of the bottle. See, e.g., United States v. Schmitz, 634

  F.3d 1247, 1270 (11th Cir. 2011) (The court “recogniz[ed] that were-

  they-lying questions might be proper ‘if a defendant opened the

  door by testifying on direct that another witness was lying.’”

  (quoting United States v. Harris, 471 F.3d 507, 512 (3d Cir. 2006))).

¶ 44   The problem with the People’s argument, however, is that the

  testimony of Kessler on which they rely was not elicited by him on

  direct examination, but, rather, by them earlier in their cross-

  examination of him. Because a party cannot open its own door to

  create an opportunity for the admission of otherwise inadmissible

  evidence, see State v. Prine, 200 P.3d 1, 11 (Kan. 2009), we

  conclude that, had a proper objection been made, the trial court

  would have erred in allowing the prosecutor to ask Kessler the

  referenced question.

¶ 45   But “[t]o qualify as plain error, an error must generally be so

  obvious that a trial judge should be able to avoid it without the

  benefit of an objection.” Scott v. People, 2017 CO 16, ¶ 16. For an

  error to be “this obvious,” it must ordinarily contravene (1) a clear




                                    22
  statutory command; (2) a well-settled legal principle; or (3) Colorado

  case law. Id.

¶ 46   Here, we have neither a clear statutory command nor on-point

  Colorado case authority. We do, however, have a “well-settled legal

  principle” — namely, that witnesses should not be asked to

  comment on the veracity of other witnesses — as well as a twelve-

  year-old case holding that questions closely analogous to the

  question asked of Kessler (i.e., whether the officer “made up” the

  amount he said was in the bottle of schnapps) are improper. See

  Liggett, 135 P.3d at 733 (holding questions about whether a witness

  was “mistaken” and whether a witness was lying are improper).

  Because the case law establishing and applying the legal principle

  in closely analogous circumstances is well settled, we conclude that

  the error in allowing those two questions should have been

  “obvious” to the trial court.

¶ 47   However, to obtain relief under the plain error rule, it is not

  enough that “obvious” error occurred when the prosecutor was

  allowed to ask Kessler whether the officer “made up” something.

  The error must also be “substantial.” Hagos, ¶ 14.




                                    23
¶ 48   To qualify as “substantial” in this context, an error must be

  “seriously prejudicial” — that is, it must have so undermined the

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

  reliability of the defendant’s conviction. Ujaama, ¶ 43; see also

  Hagos, ¶ 14. For the following reasons, we conclude that the

  “obvious” error occasioned by the prosecutor’s asking Kessler

  whether the officer “made up” the amount of alcohol was not

  “substantial.”

¶ 49   First, the question the prosecutor asked was not only a small

  part of the case, it was also a small part of Kessler’s twenty pages of

  testimony. Cf. People v. Herr, 868 P.2d 1121, 1125 (Colo. App.

  1993) (prosecutor’s “improper comments were isolated ones made

  during a very lengthy summation”).

¶ 50   Second, similar to Liggett — where the court found no plain

  error — an assertion that the officer “made up” things was less

  damaging than a question that would have explicitly asserted that

  the officer was lying. Liggett, 135 P.3d at 735.

¶ 51   Third, the evidence against Kessler was strong. The

  prosecution presented (1) the officer’s testimony regarding Kessler’s

  appearance and unsatisfactory performance in the roadside


                                    24
  maneuvers; (2) Kessler’s blood alcohol level results from the

  breathalyzer test; and (3) Kessler’s own admission that he had

  drunk from the bottle of schnapps. See People v. Cordova, 293 P.3d

  114, 122 (Colo. App. 2011) (because “the evidence of [the]

  defendant’s guilt was strong,” prosecutor’s misconduct was not

  plain error).

¶ 52   In light of these circumstances, we conclude that the

  prosecutor’s question did not cast serious doubt on the reliability of

  Kessler’s conviction. Consequently, the error was not “substantial”

  and does not warrant reversal under the plain error rule.

                            VI.   Conclusion

¶ 53   The judgment of conviction is affirmed.

       JUDGE NAVARRO concurs.

       JUDGE DAILEY concurs in part and dissents in part.




                                    25
       JUDGE DAILEY, concurring in part and dissenting in part.

¶ 54   I agree with all but Part III of the majority’s opinion. Unlike

  the majority, I do not find persuasive the decision in State v. Billips,

  807 N.W.2d 32, 2011 WL 4578555 (Wis. Ct. App. 2011)

  (unpublished table decision). To the contrary, in my view the police

  were required to have a factual basis upon which to support an

  articulable, reasonable suspicion to believe that the vehicle might

  contain one or more bottles of alcohol in addition to the one initially

  observed in and recovered from the car. Accepting that Kessler was

  intoxicated, there is no reason evident in the record to believe that

  he likely consumed more than the observed, half-empty bottle of

  schnapps.

¶ 55   The People argue, however, that the officers’ experience and

  training supported the search for more bottles of alcohol. But the

  officers did not give any details about their training or experience

  with DUI arrests or provide any particularized reason based on that

  experience or training to believe that Kessler’s vehicle might contain

  evidence of even more consumed alcohol than the already recovered

  half-empty bottle of schnapps. In similar circumstances, the

  District of Columbia Court of Appeals said:


                                     26
           As we have explained, [the officer’s] experience
           must be considered as part of the totality of
           the circumstances. In this case, however, “we
           know too little about [the officer’s] experience,”
           Duckett v. United States, 886 A.2d 548, 552
           (D.C. 2005), to place much weight upon his
           conclusory statement that “typically someone
           who is driving under the influence also has an
           open container of alcohol or multiple
           containers of alcohol in their vehicle.” Without
           a great deal more detail, we have no basis for
           determining whether such behavior is indeed
           “typical” of someone driving under the
           influence. Moreover, relying uncritically on that
           experience would amount to endorsing a per se
           rule governing DUI cases. See id. at 553
           (“Whatever [the officer’s] experience in traffic
           stops of others, we think that the necessary
           particularized and objective basis for
           suspecting [the defendant] was absent here.”).

United States v. Taylor, 49 A.3d 818, 827 (D.C. 2012) (emphasis

added); see United States v. Reagan, 713 F. Supp. 2d 724, 732 (E.D.

Tenn. 2010) (holding an officer must have something more than

general prior experience of finding alcoholic beverage containers in

a DUI arrestee’s vehicle to justify a search of the vehicle); see also

State v. Eversole, No. 15-17-03, 2017 WL 5127369, at *10 (Ohio Ct.

App. Nov. 6, 2017) (“[A]lthough a law-enforcement officer’s general

prior experience is one of the common-sense factors to consider

when deciding the reasonableness of his or her belief that evidence



                                   27
  of specific crime is located inside a vehicle’s passenger

  compartment, that general prior experience alone is not enough to

  establish a reasonable belief that evidence of [DUI] is contained in a

  vehicle.”).

¶ 56    I am persuaded by these authorities. And because the record

  contains no reason particularized to Kessler or the circumstances of

  this case, I would conclude that the police lacked the requisite

  reasonable suspicion to further search the car for alcohol once they

  recovered the half-empty bottle of schnapps. See People v. McCarty,

  229 P.3d 1041, 1046 (Colo. 2010) (“[A]lthough it is perhaps

  conceivable that the arrestee’s vehicle might contain some evidence

  of the possession offense for which the officers had probable cause

  to arrest, nothing peculiar to these circumstances supported a

  reasonable suspicion that any additional evidence existed, much

  less that it would reside in the arrestee’s vehicle, rather than on his

  person or elsewhere.”) (emphasis added); cf. People v. Estrada, No.

  B221094, 2011 WL 212826, at *5-6 (Cal. Ct. App. Jan. 25, 2011)

  (unpublished opinion) (rejecting, under Gant, the validity of a

  search of a vehicle, where, following the defendant’s arrest for

  public intoxication, the officer “‘opened the truck, discovered the


                                    28
  container that [the defendant] tossed in there,’ which was . . .

  exactly the type of bottle from which [the officer] believed defendant

  had been drinking,” and “continued to look in the car to see if there

  was [sic] any other alcoholic beverages and what not”; and

  concluding, “[t]o allow a search of a vehicle here would be to permit

  general rummaging”).

¶ 57   Because the search that uncovered the cocaine was illegal, all

  evidence pertaining to the cocaine or its recovery should have been

  suppressed at trial. The error in admitting such evidence could not

  be considered harmless with respect to the count charging Kessler

  with its possession, and Kessler’s conviction on that count should

  be vacated.




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