Opinion
No. 76-480
Decided March 17, 1977. Rehearing denied May 5, 1977. Certiorari denied August 29, 1977.
Convicted of attempted possession of a narcotic drug and conspiracy to possess narcotic drug, defendant appealed.
Affirmed
1. CRIMINAL LAW — Attempt — Amended Statute — Broadened Crime — Attempted Possession — Narcotic Drug — Not Defined — Drug Act — Immaterial. By 1975 amendment to the criminal attempt statute, the General Assembly manifested its intent to broaden the crime of criminal attempt to felonies other than those defined in the Criminal Code; thus, since attempted possession of narcotic drug with which defendant was charged occurred after the effective date of that amendment, the offense was clearly encompassed by the criminal attempt statute, and it is therefore immaterial that offense of attempted possession of a narcotic drug is not proscribed by the narcotics act.
2. Attempted Possession — Narcotics — Single Inference by Jury — Supported — Circumstances Proven. Where evidence showed that unknown individual stopped his car in an alley, did something in the bushes along that alley, and a pill bottle containing heroin was found immediately thereafter in those bushes, and where shortly thereafter, defendant also stopped his car in the same place the previous car had stopped, then got out, and went to the same place in the bushes and made rustling noises in the leaves, the jury properly found defendant guilty of attempted possession of a narcotic drug based upon the single inference that the defendant intended to possess a narcotic drug and that he was in the alley in furtherance of this scheme.
3. Narcotics — Conspiracy to Possess — Evidence Supports Conviction. Where evidence indicated that unknown individual stopped his car in an alley, did something in the bushes along that alley, and immediately thereafter a pill bottle containing heroin was discovered in those bushes, and where, shortly thereafter, defendant also stopped his car in the alley in the same place the previous car had stopped and went to the same place in the bushes, the jury properly concluded that the necessary agreement existed to engage in conduct constituting a crime; thus, viewing the evidence as a whole in the light most favorable to the People's case, the conviction of defendant for conspiracy to possess a narcotic drug was justified.
4. Jury Instructions — Defendant's Tendered Instruction — No Duty — Call Witnesses — Produce Evidence — Properly Refused — Substance — Covered by Instructions Given. In prosecution for attempted possession of narcotic drug, the trial court's refusal of defendant's instruction stating that he had no burden to call any witness or produce any evidence was not error inasmuch as the substance and spirit of that instruction were adequately covered by those instructions actually given.
Appeal from the District Court of the County of El Paso, Honorable William M. Calvert, Judge.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, James S. Russell, Assistant Attorney General, for plaintiff-appellee.
Darol C. Biddle, for defendant-appellant.
Defendant Maciel appeals his conviction of attempted possession of a narcotic drug and conspiracy to possess a narcotic drug, for which he was sentenced to identical concurrent terms not to exceed five years. The defendant contends that there is no such crime as attempted possession of a narcotic drug, that there was insufficient evidence to support his convictions, and that the trial court erred in refusing his tendered instruction. We affirm.
The defendant's argument that there is no such crime as attempted possession of a narcotic drug rests primarily on the absence of legislative provision for such an offense in the narcotics act and on the holding in Denver v. Quick, 190 Colo. 171, 544 P.2d 629 (1976), that "the narcotics act is not governed by the definitions in the Criminal Code." However, since the conclusion in Quick was based on the absence of any "indication that the legislature, in enacting the new Criminal Code, intended to change the culpability element of possession of a narcotic drug," we do not regard that decision as dispositive of the issue before us.
[1] The General Assembly manifested its intent to broaden the crime of criminal attempt to include felonies other than those defined in the Criminal Code when it amended § 18-2-101(5), C.R.S. 1973, in Colo. Sess. Laws 1975, ch. 167 § 18-2-101 at 617. The amended statute provides:
"(5) Criminal attempt to commit a felony which is defined by any statute other than one contained in this title and for which no penalty is specifically provided is a class 5 felony." (emphasis added)
Since the attempted possession of a narcotic drug with which the defendant was charged occurred on September 20, 1975, after the effective date of this amendment, the offense was plainly encompassed by the statute. It is therefore immaterial that the offense of attempted possession of a narcotic drug is not proscribed by the narcotics act.
The defendant also contends that his convictions must be reversed for insufficient evidence. The evidence shows that at about 2:30 in the afternoon, Devin Mikles observed a white automobile drive into the alley behind his residence and stop just beyond the shed located on the opposite side of the alley. A man got out of the car, bent down and "did something in the bushes," which were growing in front of a fence running from the shed to the alley. The man then returned to his car and drove away. Mikles promptly investigated, and found a pill bottle in the leaves on the ground under the bushes. The contents of this bottle were later identified as heroin.
Mikles called law enforcement authorities, and the deputy sheriff who later arrived also investigated the leaves under the bushes. He found another pill bottle. This bottle was also later found to contain heroin. While the two men were in Mikles' backyard, the defendant drove his car into the alley and stopped at the same place the previous car had stopped. The defendant got out of his car and, in a crouched position, proceeded toward the bushes by the shed, where he could be heard making rustling motions in the leaves. The defendant was arrested as he was getting back into his vehicle.
[2] The defendant argues that the jury could not have found him guilty unless it predicated an inference that he had the specific intent to possess heroin upon the inference that he was searching for drug containers. We do not agree. Specific intent may be inferred from the facts and circumstances of the transaction. Peterson v. People, 133 Colo. 516, 297 P.2d 529 (1956). The jury indulged in a single inference when, from the evidence before it, it concluded that the defendant intended to possess a narcotic drug and that he was in the alley in furtherance of this scheme.
The defendant also argues that this same inference upon an inference is required to prove a necessary element of criminal conspiracy, that is, the intent to accomplish a crime. This is the same argument defendant made in respect to the attempt charge and the same analysis applies. It is true that another, independent, inference is required to support the conspiracy conviction, but this second inference may itself be drawn directly from the evidence without reliance upon the first. People v. Wilkinson, 192 Colo. 386, 555 P.2d 1167 (1976).
[3] It was within the province of the jury to conclude that the evidence of both cars stopping where they did and the defendant's search of the same area in which the heroin was found established the necessary agreement to engage in conduct constituting a crime. Thus, viewing the evidence as a whole and in the light most favorable to the People's case, People v. Goff, 187 Colo. 57, 530 P.2d 512 (1974), we conclude the actions of the defendant while parked in the alley were sufficiently supportive of the verdicts to justify the convictions.
[4] Finally, the defendant contends that the trial court erred in refusing his tendered instruction that he has no burden to call any witnesses or produce any evidence. We find no error in the refusal of this instruction because its substance and spirit were adequately covered by those instructions actually given. People v. Marlott, 191 Colo. 304, 552 P.2d 491 (1976).
Judgment affirmed.
JUDGE ENOCH concurs.
JUDGE RULAND specially concurs.