     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 2, 2019

                                2019COA63

No. 17CA1372, People v. Harrison — Criminal Law —
Affirmative Defenses — Immunity for Persons Who Suffer or
Report an Emergency Drug or Alcohol Overdose Event

     A division of the court of appeals considers whether there was

sufficient evidence to disprove defendant’s immunity under section

18-1-711, C.R.S. 2018, which provides immunity from arrest or

prosecution for those who suffer or report an emergency drug or

alcohol overdose. Interpreting the statute’s plain language for the

first time in a published opinion, the division concludes that section

18-1-711(5) defines an “emergency drug or alcohol overdose event”

under a reasonable person standard, considering what a layperson

would reasonably believe to be a drug or alcohol overdose that

requires medical assistance at the time the 911 call is made. Thus,

the division concludes that neither the subjective belief of the
person reporting the overdose event (as to whether an overdose is in

fact occurring), nor events that occur after the 911 call is made

(such as the defendant’s ultimate need for medical assistance) are

relevant to determining whether the defendant is immune under the

statute.

     Applying the objective definition contained in section 18-1-

711(5) to the facts of this case, the division concludes the

prosecution presented no relevant evidence to disprove that an

emergency drug overdose was reported, leading to defendant’s

arrest. Accordingly, the division finds insufficient evidence to

disprove defendant’s immunity from prosecution under section 18-

1-711 and thus vacates defendant’s convictions.
COLORADO COURT OF APPEALS                                          2019COA63


Court of Appeals No. 17CA1372
Jefferson County District Court No. 16CR3708
Honorable Christopher C. Zenisek, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Brittany Page Harrison,

Defendant-Appellant.


                             JUDGMENT VACATED

                                  Division III
                          Opinion by JUDGE ROMÁN
                          Webb and Freyre, JJ., concur

                            Announced May 2, 2019


Philip J. Weiser, Attorney General, Trina K. Taylor, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica Sommer, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    Defendant, Brittany Page Harrison, appeals the judgment of

 conviction entered after a jury found her guilty of possession of a

 controlled substance and possession of drug paraphernalia.

 Because we conclude the evidence at trial was insufficient to

 disprove the affirmative defense of immunity for persons suffering a

 drug overdose under section 18-1-711, C.R.S. 2018, we vacate the

 judgment.

                           I.   Background

¶2    Defendant and her friend, A.M., entered a Burger King

 restaurant, ordered a meal, and sat down at a booth. About an

 hour and a half later, staff at the restaurant noticed defendant and

 A.M. had not touched their food and were slumped over each other,

 “asleep.” An employee made multiple attempts to wake them by

 yelling at them, shaking them, and banging on the table. Still,

 defendant and A.M. did not move or open their eyes. A short while

 later, the general manager called 911 because she was “concerned

 for their well-being” and worried “something [could] be wrong.”1




 1 The general manager did not specify exactly how much time
 lapsed between her staff’s first attempt to wake defendant and when
 she called 911. However, she testified that after the first attempt,

                                   1
¶3    When a police corporal arrived, defendant and A.M. were still

 unconscious. However, the corporal was able to wake defendant by

 announcing himself and shaking her forcefully. At that point,

 defendant was sluggish and confused. Because A.M. still did not

 wake up, the corporal called paramedics.

¶4    Defendant gave the corporal her identification and told him

 that she had not used drugs that day. But, a second police officer

 arrived on the scene and noticed defendant “looked to be under the

 influence of some substance.”

¶5    Defendant gave the corporal permission to search her purse.

 He found a baggie with a tar-type substance in it, a syringe, a

 spoon, a torch, and tin-foil with burn marks. The substance in the

 baggie later tested positive for heroin.

¶6    Defendant also consented to a search of her backpack, which

 contained two glass pipes, a lighter, butane fluid, two butane

 torches, aluminum foil, and another baggie containing a powdery

 substance that later tested positive for methamphetamine.




 she and her employee “went on a little bit,” then tried to wake them
 again. It was after this second attempt to wake defendant and A.M.
 that the manager called 911.

                                    2
¶7     When paramedics arrived, A.M., who was still unconscious,

  was taken to the hospital. Defendant was taken into custody.

¶8     The prosecution charged defendant with two counts of

  possession of a controlled substance and one count of possession of

  drug paraphernalia.

¶9     The jury convicted defendant as charged.

              II.   Standard of Review and Legal Authority

¶ 10   The prosecution must prove all elements of a crime beyond a

  reasonable doubt to satisfy due process. Montez v. People, 2012 CO

  6, ¶ 21 (citing U.S. Const. amend. XIV, § 1; Colo. Const. art. II,

  § 25). This includes the burden of disproving “issues involved in

  affirmative defenses.” Montoya v. People, 2017 CO 40, ¶ 24; see

  also People v. Pickering, 276 P.3d 553, 555 (Colo. 2011) (noting that

  an affirmative defense “admit[s] the defendant’s commission of the

  elements of the charged act, but seek[s] to justify, excuse, or

  mitigate the commission of the act”). That is, “if presented evidence

  raises the issue of an affirmative defense, the affirmative defense

  effectively becomes an additional element, and . . . the prosecution

  bears the burden of proving beyond a reasonable doubt that the

  affirmative defense is inapplicable.” Pickering, 276 P.3d at 555.


                                     3
¶ 11   Section 18-1-711 provides an affirmative defense, under

  certain circumstances, for persons who suffer or report an

  emergency drug or alcohol overdose. For this affirmative defense to

  apply, the following conditions must be met:

            (1) The person reports in good faith an
                emergency drug or alcohol overdose event
                to a law enforcement officer, to the 911
                system, or to a medical provider;

            (2) The person remains at the scene of the
                event until a law enforcement officer or an
                emergency medical responder arrives or
                the person remains at the facilities of the
                medical provider until a law enforcement
                officer arrives;

            (3) The person identifies himself or herself to,
                and cooperates with, the law enforcement
                officer, emergency medical responder, or
                medical provider; and

            (4) The offense arises from the same course of
                events from which the emergency drug or
                alcohol overdose event arose.

  § 18-1-711(1)(a)-(d). As long as these conditions are met, immunity

  extends to both the person who called 911 and “to the person who

  suffered the emergency drug or alcohol overdose event.” § 18-1-

  711(2).




                                    4
¶ 12   An “emergency drug or alcohol event” is defined as:

             an acute condition including, but not limited
             to, physical illness, coma, mania, hysteria, or
             death resulting from the consumption or use
             of a controlled substance, or of alcohol, or
             another substance with which a controlled
             substance or alcohol was combined, and that a
             layperson would reasonably believe to be a
             drug or alcohol overdose that requires medical
             assistance.

  § 18-1-711(5).

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

  evidence before a jury was sufficient both in quantity and quality to

  sustain a conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo.

  2005). In doing so, we must “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.

¶ 14   “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.” People v.

  Arzabala, 2012 COA 99, ¶ 13 (citation omitted). Instead, we afford

  the prosecution the benefit of every reasonable inference that might


                                     5
  be fairly drawn from the evidence and, where reasonable minds

  could differ, deem the evidence sufficient to sustain a conviction.

  People v. Kessler, 2018 COA 60, ¶ 12.

¶ 15   Issues of statutory construction are also reviewed de novo.

  People v. Smith, 254 P.3d 1158, 1161 (Colo. 2011). When

  interpreting a statute, our primary task is to ascertain and give

  effect to the intent of the General Assembly. People v. Diaz, 2015

  CO 28, ¶ 12. To determine legislative intent, we first examine the

  plain language of the statute. Klinger v. Adams Cty. Sch. Dist. No.

  50, 130 P.3d 1027, 1031 (Colo. 2006). “We read words and phrases

  in context and construe them literally according to common usage

  unless they have acquired a technical meaning by legislative

  definition.” Id. If the language is clear and unambiguous, no

  further analysis is needed. Id.

                            III.    Discussion

¶ 16   It is undisputed that police discovered defendant in possession

  of controlled substances and drug paraphernalia after the manager

  called 911 out of concern for defendant’s well-being. The manager

  testified that her employee banged loudly on the table in an effort to

  wake defendant and A.M., but they did “not even [f]linch.” At that


                                      6
  point, her “motherly instinct” gave her “concerns that something

  was wrong,” and she thought “maybe we need to get help.” She

  “called 911 and explained that . . . [she] could not wake [defendant

  and A.M.] up and [she] was concerned for their well-being.” Based

  on these facts, the trial court agreed to instruct the jury on the

  affirmative defense of immunity for persons who suffer an

  emergency drug or alcohol overdose event. The jury found

  defendant guilty.

¶ 17   On appeal, defendant asserts that there was insufficient

  evidence to support the jury’s verdict because the prosecution failed

  to meet its burden of disproving the applicability of section 18-1-

  711. Specifically, defendant argues the prosecution did not

  disprove any of the following requirements: (1) that the manager

  made a good faith report of an emergency drug overdose event, as it

  is defined under section 18-1-711(5); (2) that the manager remained

  at the scene until police arrived; (3) that the manager cooperated

  with law enforcement; or (4) that the charged offenses arose out of

  the same course of events as the overdose event.

¶ 18   Importantly, only the first element of the immunity statute is

  disputed here. The People do not dispute that the manager called


                                     7
  911 in good faith, remained at the scene, and cooperated with law

  enforcement, nor that defendant’s charges arose from the

  underlying overdose event. Instead, the People argue that the

  evidence was substantial and sufficient to disprove the first

  condition of section 18-1-711(1)(a) — namely, that the manager

  reported an “emergency drug or alcohol overdose event,” as it is

  defined under subsection (5) of the immunity statute.

¶ 19   Even applying the deferential standard in favor of the

  prosecution involved in sufficiency of the evidence review, see

  United States v. Bevans, 117 F.3d 1429 (10th Cir. 1997), we agree

  with defendant that the evidence was insufficient to sustain her

  convictions.

¶ 20   Viewed in the light most favorable to the prosecution, the

  evidence at trial showed the following:

          • When defendant and A.M. entered the Burger King and

            ordered food, nothing about them stood out to the

            manager except that they were young, had backpacks,

            and “looked tired.”




                                    8
         • But, after discovering defendant and A.M. asleep and

            unresponsive, the manager became worried and called

            911.

         • When asked whether she called 911 in “panic mode,” the

            manager testified that she called for assistance because

            she did not know what to do.

         • The manager did not have prior experience with anyone

            on drugs or alcohol and it “never really crossed [her]

            mind” that defendant was experiencing a drug overdose.

         • The call was dispatched to 911 as a “welfare check.”

         • Paramedics were not initially dispatched to the scene,

            and defendant did not receive medical attention.

         • The corporal was able to wake defendant and by the time

            the second officer arrived, defendant was eating a

            hamburger and answering police questions.

         • After police arrived, the manager assumed the situation

            “was okay.”

¶ 21   Drawing every reasonable inference from these facts in the

  light most favorable to the prosecution, we conclude the evidence

  showed that (1) the manager did not subjectively believe an

                                   9
  emergency overdose was occurring when she called 911 and (2)

  defendant did not ultimately require medical attention.

  Nonetheless, we conclude the evidence was insufficient to disprove

  the manager’s report of an emergency overdose event in this case.

¶ 22   First, section 18-1-711(5) defines an “emergency drug or

  alcohol overdose event” objectively, based on what “a layperson

  would reasonably believe to be a drug or alcohol overdose that

  requires medical assistance.” See Black’s Law Dictionary 1624

  (10th ed. 2014) (defining an “objective standard” as “[a] legal

  standard that is based on conduct and perceptions external to a

  particular person” and a “subjective standard” as “[a] legal standard

  that is peculiar to a particular person and based on the person’s

  individual views and experiences”). Therefore, the manager’s

  subjective knowledge or ignorance about the cause of defendant’s

  condition is not relevant to the applicability of section 18-1-711(5).

  See J.D.B. v. North Carolina, 564 U.S. 261, 271 (2011) (holding that

  where police are required to examine circumstances that “‘would

  have affected how a reasonable person’ in the suspect’s position

  ‘would perceive his or her freedom to leave,’ . . . . ‘the ‘subjective

  views harbored by either the interrogating officers or the person


                                      10
  being questioned’ are irrelevant”) (citation omitted). Rather, under

  the statute’s plain language, immunity must apply so long as the

  person reporting the event reports in good faith an “acute condition”

  that a reasonable person would believe to be a drug or alcohol

  overdose.

¶ 23   To read section 18-1-711(5) differently — such as to require

  the person reporting the overdose to subjectively perceive an

  emergency overdose — would necessitate reading terms into the

  statute “that simply are not there.” People v. Benavidez, 222 P.3d

  391, 393-94 (Colo. App. 2009) (emphasizing that “in interpreting a

  statute, we must accept the General Assembly’s choice of

  language”). This is particularly inappropriate given that the

  legislature expressly included a subjective requirement in an

  adjacent section of the immunity statute at issue in this case.

  Specifically, section 18-1-712(2), C.R.S. 2018, grants immunity for

  persons administering an opiate antagonist “to an individual the

  person believes to be suffering an opiate-related drug overdose

  event.” (Emphasis added.) See United States v. Pauler, 857 F.3d

  1073, 1077 (10th Cir. 2017) (“[D]rawing meaning from silence is

  particularly inappropriate . . . [when] Congress has shown that it


                                   11
  knows how to [address an issue] in express terms.” (quoting

  Kimbrough v. United States, 552 U.S. 85, 103 (2007))).2

¶ 24   Second, and likewise, events that occurred after the manager’s

  911 call are irrelevant to the jury’s determination of whether a

  reasonable person would have perceived a drug overdose event at

  the time the 911 call was made. Section 18-1-711(1)(a) only

  requires that the person reporting the overdose event do so “in good

  faith,” based on the caller’s state of mind at the time of the 911 call.

  See Black’s Law Dictionary 808 (10th ed. 2014) (defining “good

  faith” as “[a] state of mind consisting in . . . honesty in belief or

  purpose . . . or . . . absence of intent to defraud or to seek

  unconscionable advantage”); see also People v. Randolph, 4 P.3d

  477, 483 (Colo. 2000) (noting, in the context of the admissibility of




  2 Notably, other states have also chosen to include a subjective
  requirement in their drug overdose immunity statutes. See Conn.
  Gen. Stat. § 21a-267(e)(2) (West 2011) (providing immunity to any
  person “for whom another person, in good faith, seeks medical
  assistance, reasonably believing such person is experiencing an
  overdose”) (emphasis added); Vt. Stat. Ann. tit. 18, § 4254(a)(1)
  (2018) (defining “drug overdose” as “an acute condition resulting
  from or believed to be resulting from the use of a regulated drug
  that a layperson would reasonably believe requires medical
  assistance”) (emphasis added).

                                      12
  evidence seized by police, that a “‘[g]ood faith mistake’ means a

  reasonable judgmental error concerning the existence of facts . . .

  which if true would be sufficient” to meet the legal requirement

  (quoting § 16-3-308, C.R.S. 2018)) (emphasis added). Thus,

  evidence of defendant’s condition after police arrived — including

  that she did not ultimately require medical attention — is not

  sufficient to disprove her immunity as an affirmative defense.

¶ 25   In other words, the only relevant evidence to aid the jury in

  determining whether section 18-1-711 applied was that, at the time

  the manager called 911, defendant had entered the restaurant,

  ordered her food, and then become unconscious and unresponsive

  for a prolonged period. Although the jury was entitled to determine

  whether a reasonable person would perceive a drug overdose event

  under these circumstances, we conclude the evidence was

  insufficient to support a fair-minded conclusion that this element

  was not met. See People v. Perez, 2016 CO 12, ¶ 24 (“Evidence is

  sufficient to sustain a conviction if the quantity and quality of the

  relevant evidence would support a fair-minded jury’s finding ‘that

  the guilt of the accused has been established beyond a reasonable

  doubt with regard to each essential element of the crime.’” (quoting


                                    13
  People v. Gonzales, 666 P.2d 123, 17-28 (Colo. 1983))) (emphasis

  added).

¶ 26   Specifically, even viewing the facts in the prosecution’s favor,

  we conclude a layperson would have reasonably concluded that

  defendant was suffering an acute condition caused by a drug or

  alcohol overdose. Section 18-1-711(5) specifically includes a “coma”

  among the nonexclusive list of acute conditions that can be caused

  by an “emergency drug or alcohol overdose event.” See People v.

  Delgado, 153 Cal. Rptr. 3d 260, 266 (Cal. Ct. App. 2013) (“[A] coma

  is defined as ‘profound unconsciousness caused by disease, injury,

  or poison.’” (quoting Merriam-Webster’s Collegiate Dictionary 246

  (11th ed. 2006))); see also Merriam-Webster’s Dictionary,

  https://perma.cc/66JJ-TNVS (defining “acute” as “characterized by

  sharpness or severity of sudden onset”).

¶ 27   True, other medical conditions may cause unresponsiveness

  such as displayed by defendant and her companion. But the

  prosecution did not present any evidence of the range or prevalence

  of such conditions, especially among young people. Instead, the

  jury was left to consider — unaided by expert testimony — what a

  reasonable person would believe had caused two young people


                                    14
  sitting together to lapse into unconsciousness simultaneously, at

  mid-morning, and in a public place. In an era of chronic opioid

  abuse, the prosecution was required to do more than argue

  inferences. See Centers for Disease Control and Prevention,

  Opioids Portal, https://perma.cc/7SEY-VBVD (noting that drug

  overdoses are “a leading cause of injury-related death in the United

  States” and that “[o]f those deaths, almost 68% involved a

  prescription or illicit opioid”).

¶ 28   For these reasons, we conclude the evidence at trial was

  insufficient to disprove that a reasonable person in the manager’s

  position would have believed that an “emergency drug or alcohol

  overdose event” may be occurring.

¶ 29   Because the prosecution did not meet its burden to prove the

  inapplicability of the affirmative defense of immunity under section

  18-1-711 in this case, we vacate defendant’s convictions. See

  Pickering, 276 P.3d at 555.

¶ 30   In light of this determination, we need not address defendant’s

  remaining contentions on appeal.

                               IV.    Conclusion

¶ 31   The judgment is vacated.


                                       15
JUDGE WEBB and JUDGE FREYRE concur.




                     16
