COLORADO COURT OF APPEALS                                       2017COA34


Court of Appeals No. 15CA0050
El Paso County District Court No. 13CR123
Honorable Robert L. Lowrey, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Randall Eric Leverton,

Defendant-Appellant.


                             JUDGMENT AFFIRMED

                                    Division II
                          Opinion by JUDGE BERGER
                         Dailey and J. Jones, JJ., concur

                           Announced March 23, 2017


Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Katayoun A. Donnelly, Alternative Defense Counsel, Denver, Colorado, for
Defendant-Appellant
¶1    A jury convicted defendant, Randall Eric Leverton, of theft by

 receiving and possession of drug paraphernalia. He appeals,

 contending the trial court erred by (1) joining the two offenses in a

 single trial and not allowing him to plead guilty to the

 paraphernalia charge before joining them and (2) admitting into

 evidence two witnesses’ prior inconsistent statements. He also

 contends that the evidence is insufficient to support his convictions.

 We address and reject these contentions and affirm.

                  I. Relevant Facts and Procedural History

¶2    On a cold evening, the victim started her car and left it

 running while she collected some belongings from inside her home.

 She returned to where the car had been parked a few minutes later

 and saw that the car was gone. She immediately reported the theft

 to the police.

¶3    A few days later, a police officer pulled over the stolen car.

 Leverton was seated in the front passenger side of the car, another

 man was driving, and two women were in the back seat. When

 asked who owned the car, Leverton told the officer that it belonged

 to his girlfriend, the victim. The victim later testified at trial that

 she did not know and had never met Leverton.


                                     1
¶4    The officer searched the vehicle and discovered several small

 baggies which he suspected contained cocaine and

 methamphetamine. All four passengers were patted down,

 arrested, and transported to the police station.1

¶5    Leverton and the other man were transported in the same

 police vehicle. One of the transporting officers testified at trial that

 while the other man apparently slept during the drive to the police

 station, Leverton, who was handcuffed, “started moving around in

 the seat, kind of bending over and just acting not normal.” After

 removing Leverton from the vehicle, the officer searched the back

 seat and discovered a type of pipe commonly used to smoke

 methamphetamine.

¶6    Based on the discovery of the pipe, Leverton was charged with

 possession of drug paraphernalia, a petty offense under section

 18-18-428(2), C.R.S. 2016. Approximately two weeks later, in a

 separate case filed in the same judicial district, Leverton was




 1 Leverton was not charged with any crimes associated with the
 officer’s discovery of these drugs.

                                     2
 charged with theft by receiving, a felony under section 18-4-410(1),

 (4), C.R.S. 2012.2

¶7    The day before trial on the felony theft charge, the prosecution

 moved to amend the complaint to join the paraphernalia charge and

 dismiss the petty offense case. Leverton’s counsel objected, stating

 that his client intended to “enter a straight guilty plea” to the

 paraphernalia charge, and then move to dismiss the felony case “for

 failure to join.” The court granted the prosecution’s motion, stating

 that the prosecution’s dismissal of the paraphernalia case and the

 amendment of the complaint in the felony case “in fact, does join

 [the petty offense case] into [the felony case]” and dismissed the

 petty offense case because “it doesn’t have a count anymore.”

 Leverton pleaded not guilty to both charges.

¶8    At trial, the two women in the back seat of the stolen car

 testified under subpoena. Both women testified that, due to drug

 use, they could not remember the events of that night, nor could

 they remember making any statements to the police. The

 prosecutor questioned both women based on oral statements they

 2Section 18-4-410 has since been repealed, effective June 5, 2013,
 and consolidated with the general theft statute, section 18-4-401,
 C.R.S. 2016.

                                    3
  allegedly had made to the police following their arrests. For

  instance, the prosecutor asked one of the women, “Do you recall

  telling [the police] that Mr. Leverton had had the vehicle for several

  days and that someone had given it to him?”

¶9     Leverton’s counsel objected to these questions because he

  argued that they “essentially just end up being testimony via the

  question itself, particularly when the witness has testified she has

  no recollection.” The court ruled that the questions were proper

  impeachment questions. The witnesses’ oral statements later were

  admitted into evidence over Leverton’s objection through the

  testimony of the two police officers to whom the witnesses made

  their statements.

¶ 10   The jury convicted Leverton as charged and the trial court

  sentenced him to three years of probation and forty-eight hours of

  useful public service.

           II. Joinder of the Theft and Paraphernalia Charges

¶ 11   Leverton argues that the trial court erred when it rejected his

  guilty plea on the paraphernalia charge and then permitted the

  prosecution to add that charge to the complaint. He claims that the

  trial court’s actions violated Colorado’s mandatory joinder statute,


                                     4
  section 18-1-408, C.R.S. 2016, as well as the Double Jeopardy

  Clauses of both the United States and Colorado Constitutions. We

  reject these arguments.

¶ 12   The Attorney General argues that because Leverton did not

  object to the procedure for joining the offenses, but only requested

  that the trial court accept his guilty plea prior to joining them, his

  claims should be reviewed only for plain error. We need not decide

  whether Leverton preserved these claims because we perceive no

  error, plain or otherwise. Cf. Marshall v. People, 2013 CO 51, ¶ 15

  n.5 (declining to address whether the defendant preserved a

  Confrontation Clause challenge because there was no confrontation

  error).

¶ 13   The mandatory joinder statute “seeks to prevent vexatious

  prosecution and harassment of a defendant by a district attorney

  who initiates successive prosecutions for crimes which stem from

  the same criminal episode.” People v. Talarico, 192 Colo. 445, 446,

  560 P.2d 90, 91 (1977); see § 18-1-408(2). The statute requires

  that all such offenses known to the prosecutor which were

  committed in the same judicial district must be prosecuted by

  separate counts in a single prosecution. § 18-1-408(2). Any offense


                                     5
  not joined “cannot thereafter be the basis of a subsequent

  prosecution[.]” § 18-1-408(2).

¶ 14   Whether a trial court properly joined multiple offenses under

  the mandatory joinder statute presents a mixed question of law and

  fact. See People v. Marshall, 2014 COA 42, ¶ 19 (applying the

  “mixed question of law and fact” standard of review to the question

  whether a trial court properly dismissed a criminal case under the

  mandatory joinder statute). The trial court’s interpretation of the

  joinder statute is a question of law we review de novo, People v.

  Garcia, 2016 COA 124, ¶ 6, but we defer to factual findings

  supported by the record, People v. Marshall, ¶ 19.

¶ 15   Leverton argues that the trial court erred in refusing to accept

  his guilty plea in the paraphernalia case and in granting the

  prosecution’s motion to amend the theft complaint because the

  result was that he was effectively charged in two separate cases

  with the same offense. He insists that “the only way the

  prosecution could go forward with charging [him] for both charges

  was to file a motion to join the two cases before the trial.”

  (Emphasis added.)




                                     6
¶ 16   We conclude, as did the trial court, that while the

  prosecution’s motion was styled as a motion to amend, it was

  effectively a motion to join the two offenses. In Jeffrey v. Dist. Court,

  626 P.2d 631, 638-39 (Colo. 1981), the supreme court held that

  “section 18-1-408(2) does not prohibit the court from permitting the

  district attorney to add to a criminal information other counts that

  arise from the same criminal episode as the original count so long

  as the additional counts are filed prior to the jeopardy stage of the

  prosecution.” That holding is dispositive here; the prosecution

  moved to join the offenses prior to Leverton’s attempt to plead guilty

  to the paraphernalia charge. See Jeffrey, 626 P.2d at 636.

¶ 17   Moreover, irrespective of whether the procedure utilized by the

  court complied strictly with the mandatory joinder statute, it

  nevertheless met the statute’s purpose of preventing successive

  prosecutions. Leverton points to no unfair prejudice resulting from

  the procedure used.

¶ 18   The court also did not abuse its discretion in rejecting

  Leverton’s guilty plea. Trial courts have discretion to accept or to

  reject a guilty plea because “[t]here is no absolute right to have a




                                     7
  guilty plea accepted.” People v. Jasper, 17 P.3d 807, 812 (Colo.

  2001) (quoting Santobello v. New York, 404 U.S. 257, 262 (1971)).

¶ 19    Had the court accepted Leverton’s guilty plea on the

  paraphernalia charge prior to joining the two offenses, the

  mandatory joinder statute may have prohibited prosecution of the

  felony theft charge. Indeed, Leverton expressly sought to plead

  guilty to the paraphernalia charge — a petty offense — for the

  purpose of preventing prosecution of the felony charge. While

  neither this court nor the supreme court has addressed such an

  attempt to manipulate the criminal justice system to escape

  additional charges, courts in other jurisdictions have squarely

  rejected it.

¶ 20    In State v. Turner, 980 P.2d 1188, 1190 (Utah Ct. App. 1998),

  the Utah Court of Appeals held that the trial court abused its

  discretion when it accepted the defendant’s guilty plea on a traffic

  violation because doing so effectively nullified the state’s right to

  prosecute the defendant on the more serious charge of negligent

  homicide.

¶ 21    The Wisconsin Supreme Court similarly held that the trial

  court did not err in rejecting a defendant’s guilty plea when the


                                      8
  defendant intended to “create a situation of double jeopardy” to

  protect himself from additional charges. State v. Waldman, 203

  N.W.2d 691, 693 (Wis. 1973).

¶ 22   And in Newsome v. State, 797 N.E.2d 293, 298 (Ind. Ct. App.

  2003), the Indiana Court of Appeals held that “a trial court does not

  abuse its discretion in rejecting a guilty plea where the court

  reasonably could have concluded that the request was a ‘ruse’

  intended to manipulate the system.”

¶ 23   Consistent with these cases, and in view of society’s interest in

  maintaining the integrity of the criminal justice system, People v.

  Wiedemer, 852 P.2d 424, 440 (Colo. 1993), we conclude that the

  court acted within its discretion when it rejected Leverton’s guilty

  plea to the petty offense.

¶ 24   Finally, we reject Leverton’s argument that his constitutional

  right to be free from double jeopardy was somehow violated when

  the theft and paraphernalia charges were joined. The Double

  Jeopardy Clauses comprise “three separate but related prohibitions:

  (1) a rule which bars a reprosecution for the same offense after

  acquittal; (2) a rule barring reprosecution for the same offense after

  conviction, and; (3) a rule barring multiple punishment[s] for the


                                    9
  same offense.” People v. Henderson, 810 P.2d 1058, 1060 (Colo.

  1991) (citation omitted). Leverton does not allege that he was

  reprosecuted for either the paraphernalia or theft offense after he

  was convicted, or that he was sentenced or otherwise punished

  multiple times for those offenses.

¶ 25   Moreover, double jeopardy protection does not attach until the

  jury has been impaneled and sworn (or, in a bench trial, when the

  first witness is sworn), or when the trial court accepts the

  defendant’s guilty plea. Jeffrey, 626 P.2d at 636. Because the

  court had not accepted Leverton’s guilty plea on the paraphernalia

  charge (which, as we have concluded above, was appropriate under

  these circumstances), double jeopardy had not attached, and there

  was no double jeopardy violation.

            III. Admission of Prior Inconsistent Statements

¶ 26   Leverton next argues that the trial court erred in permitting

  the prosecution to examine two witnesses about their prior

  statements to the police. He asserts that the prosecutor’s questions

  exposed the jury to inadmissible evidence and violated his

  confrontation rights. These arguments ignore well-established case

  law and we reject them.


                                    10
                  A. Admissibility Under CRE 613 and
                    Section 16-10-201, C.R.S. 2016

¶ 27   Generally, we review a trial court’s evidentiary rulings for an

  abuse of discretion. People v. Tyme, 2013 COA 59, ¶ 8. But when a

  defendant asserts that the trial court’s evidentiary rulings violated

  his confrontation rights, we review de novo. People v. Brown, 2014

  COA 155M-2, ¶ 18.

¶ 28   CRE 613(a) authorizes impeachment by prior inconsistent

  statement “[w]here the witness denies or does not remember

  making the prior statement[.]” To do so, “the examiner must call

  the attention of the witness to the particular time and occasion

  when, the place where, and the person to whom he made the

  statement” and may give “[t]he exact language of the prior

  statement.” CRE 613(a).

¶ 29   Similarly, section 16-10-201(1), C.R.S. 2016, provides as

  follows:

             Where a witness in a criminal trial has made a
             previous statement inconsistent with his
             testimony at the trial, the previous
             inconsistent statement may be shown by any
             otherwise competent evidence and is
             admissible not only for the purpose of
             impeaching the testimony of the witness, but
             also for establishing a fact to which his


                                    11
            testimony and the inconsistent statement
            relate, if . . . [t]he witness, while testifying, was
            given an opportunity to explain or deny the
            statement or the witness is still available to
            give further testimony in the trial; and . . . [t]he
            previous inconsistent statement purports to
            relate to a matter within the witness’s own
            knowledge.

  Under the statute, a witness’s inability to remember a statement “is

  tantamount to a denial that [s]he made the statement.” People v.

  Baca, 633 P.2d 528, 529 (Colo. App. 1981) (citing People v. Pepper,

  193 Colo. 505, 568 P.2d 446 (1977)). The same result obtains

  under the express language of CRE 613.

¶ 30   Both women testified that they did not remember what

  happened the night the stolen car was pulled over, nor did they

  remember any statements they made to the police. To impeach the

  witnesses, the prosecutor was entitled to confront them with the

  exact language of their prior statements. CRE 613. Indeed, under

  section 16-10-201(1)(a), the prosecutor was required to give the

  witnesses “an opportunity to explain or deny the statement[s]” prior

  to introducing evidence of those statements for purposes of

  impeachment or to prove a matter related to the statement.




                                     12
¶ 31   Leverton argues that because the witnesses testified that they

  did not recall making any statements to the police, they effectively

  did not testify, and therefore their prior statements were not

  admissible as inconsistent with their testimony. But this argument

  was squarely rejected in Baca. In that case, the witness testified

  that he did not remember the testimony he gave in a prior trial, nor

  did he remember the facts underlying his statements at the prior

  trial. Baca, 633 P.2d at 529. This court held the witness’s

  testimony that he could not remember was inconsistent with his

  prior testimony, and therefore his prior testimony was admissible

  under section 16-10-201.

¶ 32   We believe that Baca was correctly decided and we apply it

  here. Because both witnesses’ testimony amounted to a denial that

  they made the statements to the police, the prosecution was

  entitled to impeach the witnesses with the statements, and the

  court properly admitted those statements. See also People v.

  Thomas, 2014 COA 64, ¶ 20 (applying Baca).




                                    13
                        B. Confrontation Clause

¶ 33   We also reject Leverton’s related argument that admission of

  the witnesses’ prior statements violated his right of confrontation

  under the Sixth Amendment.

¶ 34   Out-of-court, testimonial statements by a declarant who is

  unavailable to testify at trial are barred by the Confrontation Clause

  unless the defendant had a prior opportunity to cross-examine the

  declarant. Crawford v. Washington, 541 U.S. 36, 50 (2004).3

¶ 35   Leverton argues that when a witness claims to have no

  memory of either the prior statements or the events that produced

  those statements (or perhaps both), she is not “available” for cross-

  examination within the meaning of the Confrontation Clause and

  thus her prior statements are inadmissible. While Leverton

  acknowledges that United States Supreme Court decisions have

  rejected this argument, he nevertheless argues that these cases




  3Leverton does not make a separate argument that the state
  constitutional confrontation guarantee in article II, section 16 of the
  Colorado Constitution provides greater protection than the Federal
  Confrontation Clause, nor did he raise that argument in the trial
  court. Consequently, we do not further address the Colorado
  Constitution. People v. Ujaama, 2012 COA 36, ¶ 10 n.3.

                                    14
  have been silently overruled by Crawford. Our reading of Crawford

  does not support this argument.

¶ 36   The Supreme Court addressed the effect of a witness’s memory

  loss on a defendant’s right of confrontation in three pre-Crawford

  decisions: California v. Green, 399 U.S. 149 (1970); Delaware v.

  Fensterer, 474 U.S. 15 (1985); and United States v. Owens, 484 U.S.

  554 (1988). Each of these cases rejected the argument that the

  testifying witness was unavailable for confrontation purposes

  because he or she suffered from some memory loss.

¶ 37   In Green, the witness had stated, in both a police interview

  and at a preliminary hearing, that the defendant was his marijuana

  supplier. 399 U.S. at 151. But at trial, the witness testified that he

  could not remember how he had obtained the marijuana because

  he was under the influence of drugs the day it was delivered. Id. at

  151-52. Rejecting his Confrontation Clause challenge, the Court

  concluded that “where the declarant is not absent, but is present to

  testify and to submit to cross-examination, our cases, if anything,

  support the conclusion that the admission of his out-of-court

  statements does not create a confrontation problem.” Id. at 162.




                                    15
¶ 38   In Fensterer, an expert witness presented his opinion at trial,

  but could not recollect the basis of that opinion. The Court held

  that because “[t]he Confrontation Clause includes no guarantee

  that every witness called by the prosecution will refrain from giving

  testimony that is marred by forgetfulness, confusion, or evasion,”

  there was no Confrontation Clause violation. 474 U.S. at 21-22.

¶ 39   Finally, in Owens, the victim had been beaten with a metal

  pipe, resulting in severe memory impairment. 484 U.S. at 556.

  Despite these injuries, the victim identified the defendant as his

  attacker. Id. At trial, however, the victim testified that while he

  remembered telling the police who had attacked him, he had no

  memory that the defendant was his attacker. Id. The defendant

  argued that the victim’s loss of memory on this critical matter

  rendered ineffective any cross-examination of the victim and that as

  a result, he could not confront the witness in violation of his Sixth

  Amendment confrontation right. Id. at 556-57. The Court rejected

  this argument, holding that the defendant’s confrontation rights

  were not violated because “[t]he Confrontation Clause guarantees

  only ‘an opportunity for effective cross-examination, not cross-

  examination that is effective in whatever way, and to whatever


                                    16
  extent, the defense might wish.’” Id. at 559 (citation omitted).

  Because “the traditional protections of the oath, cross-examination,

  and opportunity for the jury to observe the witness’ demeanor” were

  satisfied, there was no Confrontation Clause violation. Id. at 560.

¶ 40   Leverton does not contend that Crawford expressly overruled

  Owens and nothing in Crawford would support such a contention.

  Instead, Leverton claims that several words buried in one of

  Crawford’s footnotes silently overruled Owens.

¶ 41   Footnote nine of Crawford states as follows: “[t]he

  [Confrontation] Clause does not bar admission of a statement so

  long as the declarant is present at trial to defend or explain it.” 541

  U.S. at 59 n.9 (emphasis added). From these italicized words,

  Leverton argues that if a witness claims some memory loss, she

  cannot “defend or explain” her prior statements and thus is

  unavailable for confrontation purposes.

¶ 42   Virtually every court that has addressed this argument has

  rejected it and has squarely held that the physical presence of the

  witness at trial avoids any confrontation issue. See, e.g., State v.

  Real, 150 P.3d 805, 807 (Ariz. Ct. App. 2007); State v. Pierre, 890

  A.2d 474, 502 (Conn. 2006); People v. Bryant, 909 N.E.2d 391, 399


                                    17
  (Ill. App. Ct. 2009); Smith v. State, 25 So. 3d 264, 270 (Miss. 2009);

  State v. Legere, 958 A.2d 969, 977 (N.H. 2008); Woodall v. State,

  336 S.W.3d 634, 644 (Tex. Crim. App. 2011); Abney v.

  Commonwealth, 657 S.E.2d 796, 802 (Va. Ct. App. 2008); State v.

  Price, 146 P.3d 1183, 1191 (Wash. 2006).

¶ 43   Two courts have taken a more nuanced view. In Cookson v.

  Schwartz, 556 F.3d 647, 651 (7th Cir. 2009), relying on footnote

  nine’s language, the Seventh Circuit held that Crawford’s statement

  that “when the declarant appears for cross-examination at trial, the

  Confrontation Clause places no constraints at all on this use of his

  prior testimonial statements” is not dispositive of whether a witness

  suffering from total memory loss is “available” for confrontation

  purposes. The court entertained the possibility that total, extreme

  memory loss could render a witness unavailable for Confrontation

  Clause purposes. Still, noting that the witness remembered at least

  some of the underlying events described in her out-of-court

  statements, the court concluded that the defendant had had “ample

  opportunity to confront his accuser at trial,” and thus his

  confrontation rights were not violated. Id. at 652.




                                    18
¶ 44   The Mississippi Supreme Court relied on Cookson in

  construing the Mississippi Constitution’s confrontation clause in

  Goforth v. State, 70 So. 3d 174 (Miss. 2011). After the witness made

  his statement to the police, but before the trial, he was injured in

  an automobile accident that “substantially impaired his physical

  and mental conditions,” and he testified that he “could not

  remember anything that had occurred two years prior to the wreck.”

  Id. at 182. The court, observing that the witness’s “total loss of

  memory” was undisputed, held that the witness, “though physically

  present at trial, did not have the requisite, minimal ability or

  capacity” under the Mississippi Constitution to be cross-examined.

  Id. at 186.4

¶ 45   This case does not require us to determine whether total

  memory loss coupled with extreme physical disabilities could ever




  4 Although Goforth v. State, 70 So. 3d 174 (Miss. 2011), analyzed
  both Crawford v. Washington, 541 U.S. 36 (2004), and United States
  v. Owens, 484 U.S. 554 (1988), its holding was predicated on the
  Mississippi Constitution’s confrontation clause, not the federal
  clause. As a result, it provides little, if any, support for the federal
  constitutional argument made by Leverton.

                                    19
  render a witness unavailable under the Confrontation Clause and

  we express no opinion on that question.5

¶ 46   Though both witnesses claimed at trial that they had no

  memory of the night in question or of any of the statements they

  made to the police, their actual trial testimony belied those claims.

  Both witnesses testified that they remembered their car being

  pulled over, that they remembered being arrested, and both were

  able to identify who was in the car at the time. Thus, like in

  Cookson, the witnesses were able to recall at least some of the

  events underlying their statements to the police, and, unlike in

  Goforth, neither witness suffered from “total loss of memory.”

¶ 47   Though Leverton claims that he could not effectively

  cross-examine the witnesses, in fact he did so, emphasizing the

  witnesses’ alleged drug-induced memory loss in an effort to

  discredit their testimony. As the Court observed in Owens, 484

  U.S. at 559, attacking a witness’s memory is often one of the prime

  objectives of cross-examination. Leverton was able to do so in this

  case and that dooms his Confrontation Clause argument.

  5We note that the Supreme Court recognized such a possibility
  both in California v. Green, 399 U.S. 149, 168-69 (1970), and
  Delaware v. Fensterer, 474 U.S. 15, 20 (1985).

                                    20
¶ 48   We also observe that a rule that a witness is unavailable for

  Confrontation Clause purposes based entirely upon the witness’s

  testimony that she suffers from memory loss is unworkable.

  Memory loss may be real or feigned. It may be total or partial.

  Sometimes lost memory may be refreshed in whole or in part. To

  permit a witness to unilaterally control the admission into evidence

  of the witness’s prior relevant statements merely by professing a

  lack of memory is intolerable to the criminal justice system.

¶ 49   For similar reasons, we reject Leverton’s analogy of a witness’s

  exercise of his Fifth Amendment right not to incriminate himself or

  herself to a witness’s professed lack of memory.

¶ 50   These situations are not analogous. In the Fifth Amendment

  context, the witness has a constitutional right not to testify; so long

  as that Fifth Amendment right has not been waived, the right is

  absolute. A court cannot overrule the exercise of the right on the

  basis that the testimony is essential, and no inquiry into the

  reasons for the exercise of the right is permissible (other than

  whether testimony on the subject might tend to incriminate the

  witness). People v. Razatos, 699 P.2d 970, 976 (Colo. 1985). Thus,

  a witness who exercises her Fifth Amendment right not to testify is


                                    21
  unavailable for Confrontation Clause purposes. United States v.

  Smalls, 605 F.3d 765, 776 (10th Cir. 2010). In contrast, the

  availability inquiry in the memory loss context depends on a

  multitude of factors beyond simply an assertion of constitutional

  rights.

¶ 51   For all of these reasons, we hold that Leverton’s right to

  confrontation was not violated.

                     IV. Sufficiency of the Evidence

¶ 52   Leverton argues that the prosecution did not present sufficient

  evidence to prove beyond a reasonable doubt that he committed

  theft or possessed drug paraphernalia. We disagree.

¶ 53   “The due process clauses of the United States and Colorado

  Constitutions prohibit the criminal conviction of any person except

  on proof of guilt beyond a reasonable doubt.” Kogan v. People, 756

  P.2d 945, 950 (Colo. 1988), abrogated on other grounds by Erickson

  v. People, 951 P.2d 919 (Colo. 1998). A reviewing court faced with a

  sufficiency challenge 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 person that the defendant


                                    22
  is guilty of the charge beyond a reasonable doubt. Dempsey v.

  People, 117 P.3d 800, 807 (Colo. 2005); People v. Gonzales, 666

  P.2d 123, 127 (Colo. 1983).

¶ 54   In determining whether the evidence is sufficient to sustain a

  conviction, “[t]he prosecution is entitled to the benefit of every

  reasonable inference that may fairly be drawn from the evidence,

  even if the record also contains evidence to the contrary.” People v.

  Thornton, 251 P.3d 1147, 1149 (Colo. App. 2010).

¶ 55   The determination of the credibility of witnesses is solely

  within the province of the jury, as is the specific weight to be

  accorded to that testimony. People v. Sprouse, 983 P.2d 771, 778

  (Colo. 1999); see also People v. Duncan, 109 P.3d 1044, 1045-46

  (Colo. App. 2004).

¶ 56   We review the record de novo to determine whether the

  evidence is sufficient to sustain a criminal conviction. Dempsey,

  117 P.3d at 807.6


  6Relying on People v. Lacallo, 2014 COA 78, ¶¶ 4-23, the Attorney
  General argues that because Leverton did not raise the issue of
  sufficiency in the trial court, we should review only for plain error.
  We need not resolve that issue here because we conclude that
  sufficient evidence supported Leverton’s convictions. People v.
  Sena, 2016 COA 161, ¶ 8.

                                     23
                                 A. Theft

¶ 57   “[A] person commits theft by receiving when he receives,

  retains . . . or disposes of anything of value of another, knowing or

  believing that said thing of value has been stolen, and when he

  intends to deprive the lawful owner permanently of the use or

  benefit of the thing of value.” § 18-4-410(1), C.R.S. 2012.

¶ 58   A few days after the car had been reported stolen, the police

  found Leverton sitting in the car’s front passenger seat. Though

  Leverton told the police that the car had been given to him by the

  victim, his statement was directly refuted by the victim’s testimony

  that she had never met him. Evidence also was presented at trial

  that Leverton himself drove the vehicle to a gas station.

¶ 59   Based on all of this evidence, we conclude that the jury was

  entitled to infer that Leverton intended to permanently deprive the

  owner of the car of the rights of ownership. Thus, sufficient

  evidence supported the theft by receiving conviction.

                     B. Possession of Paraphernalia

¶ 60   “[A] person commits possession of drug paraphernalia if he or

  she possesses drug paraphernalia and knows or reasonably should

  know that the drug paraphernalia could be used under


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  circumstances in violation of the laws of this state.” § 18-18-

  428(1)(a).

¶ 61   The prosecution presented evidence that, prior to placing

  Leverton into the police vehicle, a police officer searched the

  vehicle’s back seat and found nothing. While Leverton was being

  transported to the police station, he was fidgeting. After removing

  Leverton from the vehicle, the officer discovered in the back seat

  where Leverton had been sitting a pipe of the sort commonly used

  to smoke methamphetamine. The pipe contained a white residue

  which the officer testified was consistent with methamphetamine.

¶ 62   Leverton argues that no jury rationally could have concluded

  that the pipe belonged to him because if he had had the pipe on his

  person, it would have been discovered when he was patted down

  before he was placed into the police vehicle. He also argues that the

  pipe could have belonged to the driver of the stolen car, who rode in

  the police vehicle with him. But the fact that the officer did not find

  the pipe during the pat-down search goes to the weight of the

  officer’s testimony, an inquiry that is irrelevant in determining

  sufficiency. Sprouse, 983 P.2d at 778. And while the pipe might




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  have belonged to the other man, it was the jury’s role to decide to

  whom the pipe belonged.

¶ 63   Viewing the evidence in the light most favorable to the

  prosecution, we conclude that there was sufficient evidence for the

  jury to convict Leverton of possession of drug paraphernalia.

                         V. Guilt by Association

¶ 64   Leverton also contends that “the trial court erred by allowing

  the prosecution to seek Mr. Leverton’s convictions on the basis of

  guilt by association.” We have held that the prosecution presented

  sufficient evidence for the jury to conclude that every element of the

  charged crimes was proved beyond a reasonable doubt. Leverton’s

  convictions were not based on his association with other persons;

  they were based on evidence that proved that Leverton, not some

  other person, committed the crimes.

¶ 65   To the extent that Leverton asserts a back-door Fourth

  Amendment argument ― that the police officer’s search of the police

  vehicle after Leverton exited the vehicle was unreasonable ― we

  reject it for two reasons: (1) it was not sufficiently developed and we

  do not address skeletal arguments, People v. Simpson, 93 P.3d 551,

  555 (Colo. App. 2003); and (2) it was not raised in the trial court


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  and thus was waived, People v. Cordova, 293 P.3d 114, 120 (Colo.

  App. 2011).

                            VI. Conclusion

¶ 66   The judgment of conviction is affirmed.

       JUDGE DAILEY and JUDGE J. JONES concur.




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