Court Opinions: Colorado Court of Appeals Opinions for Jan. 13

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.

People v. Mario Antonio Gamboa-Jimenez

Mario Gamboa-Jimenez was convicted by a jury for possession of a controlled substance and possession with intent to distribute. When driving with a friend through Colorado from Las Vegas, Gamboa-Jimenez was pulled over for a traffic infraction near the Utah border. Suspecting the two men were involved in criminal activity, the officer used a drug sniffing dog to search the car and found more than a kilogram of cocaine. 

Gamboa-Jimenez moved to suppress evidence recovered from the car and argued it was obtained with an unconstitutional search and seizure. The trial court denied the motion and at trial Gamboa-Jimenez said he did not know there was cocaine in the car.

Prosecutors introduced only three witnesses at the two-day trial and most testimony was provided by the trooper who pulled Gamboa-Jimenez over. The trooper acted as an eyewitness and also as a “drug interdiction” expert. The trooper told the jury several things make him suspicious that someone is a drug courier: close obedience of traffic laws when law enforcement is close, the smell of air fresheners or other things to mask odors, unusual travel plans, use of a vehicle owned by someone else, traveling east to west along interstates, putting lots of mileage on a car in a short period of time, having multiple cell phones and possessing religious iconography. Gamboa-Jimenez had almost all of those “indicators” or “behaviors” when pulled over, the trooper testified. 

On appeal, Gamboa-Jimenez argued the trooper’s testimony was “improper drug courier expert testimony.” A division of the Colorado Court of Appeals agreed. 

Looking for plain error, the Court of Appeals found Gamboa-Jimenez was “strikingly similar” to the Colorado Supreme Court’s 2000 decision in Salcedo v. People. 

In Salcedo, an arresting detective testified to jurors as both an eye witness and an expert on drug courier profiles. The state supreme court found that the detective’s “cause for concern” was based on a subjective review of the defendant’s behaviors and characteristics and added that the grounds for suspicion weren’t specific to drug traffickers. The Colorado Supreme Court added that by intermingling expert testimony over drug courier behaviors with eyewitness testimony about the defendant, the detective could have prejudiced the jury to believe the defendant showed all signs of suspicion. 

Like Salcedo, the Court of Appeals found that the trooper intermingled his eyewitness testimony with expert testimony that “consisted of him explaining, without reference to any sort of objective, widely recognized profile, the things that make him suspicious that someone is a drug courier.” The Court of Appeals added that prosecutors didn’t offer any evidence that adhering to the trooper’s profile is a reliable indication of guilt and the profile testimony was irrelevant. 

Ruling that including the trooper’s testimony was an obvious error, the Court of Appeals added that it was substantial since the testimony “tied the case together for the jury” and was used to refute Gamboa-Jimenez’s defense that he did not know there was cocaine in the car. 

The court addressed two alternate appeal arguments that the motion to suppress evidence should have been suppressed. Specifically, Gamboa-Jimenez argued that the trooper didn’t have reasonable suspicion to extend the traffic stop and that by jumping into the open car, the drug dog executed an illegal search. The Court of Appeals rejected both arguments and affirmed the denied motion to suppress. 

The Colorado Court of Appeals reversed Gamboa-Jimenez’s conviction and remanded his case for a new trial. 

People v. Pedro Rodriguez

Pedro Rodriguez was pulled over on a traffic stop by Officer Chase Gardner on Sept. 5, 2017. Rodriguez got out of his car and ran along the highway pursued by Gardner and two other officers who came to assist with the stop. During the pursuit, a plastic bag with white powder fell out of Rodriguez’s pocket and was later picked up by Gardner who handed it to his superior officer at the scene. 

At trial, Gardner testified that he had not seen the bag until the trial when he positively identified it as the bag that fell out of Rodriguez’s pocket. A police chemist testified that he picked up the bag from the Colorado Springs Police Department’s evidence section and found it had 28 grams of cocaine. Rodriguez’s defense unsuccessfully objected that a sufficient “chain of custody” was not established by prosecutors who did not ask the supervising officer, who presumably brought the bag from the scene to the police department, to testify. Rodriguez was found guilty by a jury for possession with intent to distribute a controlled substance and obstruction of a peace officer

On appeal, Rodriguez argued that the trial court erroneously admitted the bag of cocaine as evidence since prosecutors did not establish a sufficient chain of evidence custody. The Colorado Court of Appeals agreed. 

The court found no evidence to account for the bag taken from the scene after Gardner handed it to his supervisor. “The jury had no basis to determine, and so could only have speculated, that the powder in Exhibit 1, whose origin was unknown, was the same powder that Rodriguez had possessed before discarding it during the traffic stop,” explained the court opinion. 

The Court of Appeals further found that the error was not harmless, but disagreed with Rodriguez that his conviction should be vacated, and remanded the case for a new trial. The Court ruled that two other appeals related to his conviction for obstructing a peace officer lacked merit and affirmed that conviction. 

People In Interest of E.W.

El Paso County Department of Human Services filed a dependency and neglect petition for a nine-month-old child, E.W. Police had responded to a domestic violence dispute between E.W.’s mother and father and found the home to be unsanitary. The infant was diagnosed with failure to thrive at a hospital. 

E.W. was adjudicated dependent and neglected and both parents adopted treatment plans to address their struggles with drug use and mental health. With the Interstate Compact on the Placement of Children, E.W. relocated to Montana to stay with “family-like kin.” A couple of months later, both parents also moved to Montana. 

Almost a year after the move, the Colorado juvenile court terminated the parent’s rights. 

On appeal, E.W. ‘s mother and father argue the judgment to terminate their parental rights must be reversed because the Colorado court lost subject matter jurisdiction of the case under the Uniform Child Custody Jurisdiction and Enforcement Act when E.W. and the parents moved to Montana. Even though the case began in Colorado, the parents argued, the court did not move to terminate parental rights until E.W. had lived in Montana for six months and the termination was a new child custody proceeding under the UCCJEA. 

Looking at the purpose of the UCCJEA, the Colorado Children’s code and the case facts, the Colorado Court of Appeals disagreed and ruled the Colorado juvenile court had jurisdiction when it terminated parental rights. 

The Colorado Court of Appeals held that filing a termination motion doesn’t start a new proceeding when determining home state jurisdiction under the UCCJEA and that Montana needed to attempt to acquire jurisdiction of the case for Colorado to lose it. Those factors combined meant that “the Colorado court maintained its exclusive, continuing jurisdiction,” the court ruled. 

The Court of Appeals found the father did not adequately preserve an inconvenient forum objection to raise it on appeal and rejected the father’s argument that the juvenile court erred by not finding less drastic alternatives. The court also found that the mother did not adequately preserve a change venue issue for appeal. 

The Colorado Court of Appeals affirmed the termination of parental rights. 

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