Peo v. Ramsey

23CA0111 Peo v Ramsey 12-12-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0111
Arapahoe County District Court No. 21CR2035
Honorable Ben L. Leutwyler III, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Adrien Jabrie Ramsey,

Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division VII
Opinion by JUDGE PAWAR
Tow and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 12, 2024

Philip J. Weiser, Attorney General, Jessica E. Ross, Assistant Solicitor General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, John P. Finnegan, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Adrien Jabrie Ramsey, appeals the judgment of

conviction entered on jury verdicts finding him guilty of three

counts of possession of a controlled substance with intent to sell or

distribute (fentanyl, cocaine, and psilocin1) and driving under

restraint. He raises multiple trial errors and asserts that reversal of

his psilocin conviction is required by the Natural Medicine Health

Act of 2022 as enacted by the voters in the November 2022 election.

See Proposition 122, 2023 Colo. Sess. Laws 3591-3607 (Prop 122).

We reject Ramsey’s claims predicated on trial error, but we agree

that Prop 122 applies. Accordingly, we affirm Ramsey’s convictions

for possession with intent to sell or distribute fentanyl and cocaine

and for driving under restraint, but we reverse his conviction for

possession with intent to sell or distribute psilocin.

I. Background

¶2 Ramsey was driving with a passenger, Robert Banks, when

police pulled him over for weaving and having an expired license

plate. After Ramsey was arrested for having an active warrant, an

officer asked Banks to exit the car so he could perform a protective

1 Psilocin is the active ingredient in psylocibin, or psychedelic

mushrooms.

1
search. The officer found a gun under Banks’s seat;2 cocaine,

fentanyl, and psilocin in the center console; and a scale and inositol

powder — a cutting agent — in the glove box.

¶3 The prosecution charged Ramsey with driving under restraint;

possession with intent to sell or distribute fentanyl, cocaine, and

psilocin; and a traffic infraction. After the prosecution dismissed

the traffic infraction on the morning of trial, a jury found him guilty

on all remaining counts. The trial court sentenced him to an

aggregate term of ten years in the custody of the Department of

Corrections.

¶4 Ramsey appeals, asserting that the trial court erred by

(1) denying his Batson challenge to one of the prosecutor’s

peremptory strikes; (2) denying his motion to suppress evidence;

(3) denying his request to admit evidence under the rule of

completeness; and (4) admitting improper expert testimony. He

also asks us to vacate his conviction related to psilocin based on

legislation enacted after his trial.

2 Banks admitted to owning the gun.

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II. Batson Challenge

A. Applicable Law

¶5 The Equal Protection Clause of the Fourteenth Amendment

precludes use of a peremptory challenge to strike a juror based on

race. Batson v. Kentucky, 476 U.S. 79, 86 (1986). Batson provides

a three-step process for evaluating whether a juror was improperly

struck on the basis of race. People v. Johnson, 2024 CO 35, ¶ 17

(Johnson II) (reversing People v. Johnson, 2022 COA 118 (Johnson

I)).

¶6 Ramsey challenges only the trial court’s step two finding. At

Batson’s step two, the proponent of the strike must offer a race-

neutral explanation for the strike — an explanation based on

something other than the juror’s race. Id. at ¶ 19.

¶7 We review a trial court’s step two determination de novo.

People v. Ojeda, 2022 CO 7, ¶ 30.

B. Additional Facts

¶8 During voir dire, the prosecutor asked the prospective jurors,

“Is there anyone here who doesn’t like police officers?” Juror K, a

Black woman, said,

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I do respect them and what they do. But yes,
I’m highly suspicious of some of the officers
based on certain times, with George Floyd.
And I’ve also been in certain instances that
were questionable just by, you know, the color
of my skin . . . . And I’ve also had certain
family that have gone through certain things.
And so it may be a little harder, you know,
with that.

Juror K agreed with the prosecutor that not all law enforcement

officers are dishonest people, but she continued, “I also agree that

not all of them are fully honest, and over the course of history

they’ve been put in place . . . to keep certain people in their place,

or to put more of us in jail, more than needs to be. So, no, . . . I’m

not fully trustworthy of them.”

¶9 The prosecutor used a peremptory strike to excuse Juror K.

Defense counsel raised a Batson challenge, arguing that Juror K

appeared to be of African American descent and her distrust for

police was based on her cultural experiences.

¶ 10 The prosecutor explained, as its step two race-neutral reason,

that he struck Juror K because she expressed that it would be

difficult for her to evaluate police witnesses’ testimony fairly, “and

she would not give the police officers the same credence that she

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would a regular lay witness testifying.” The trial court found this

was a race-neutral reason and denied the Batson challenge.

¶ 11 Defense counsel initially declined the trial court’s invitation to

offer further argument, but he later argued that the peremptory

strike was race-based under Johnson I. The trial court maintained

its ruling.

C. Discussion

¶ 12 Relying heavily on Johnson I, Ramsey argues the trial court

erred at step two by concluding that the prosecutor’s reason for

excusing Juror K was race-neutral. He argues the prosecutor’s

stated reason for the strike — Juror K’s distrust of police — was

race-based because it explicitly stemmed from her racial identity.

But the supreme court has since issued Johnson II, reversing

Johnson I and expressly rejecting Ramsey’s argument.

¶ 13 In Johnson II, the supreme court clarified that the facial

neutrality of a prosecutor’s step two reason must be evaluated

based on “the striking party’s stated reasons for the strike” and not

“the source of the juror’s potential bias.” Johnson II, ¶ 42

(“Although a juror’s bias may derive from her experiences as a

person of color . . . that doesn’t convert the striking party’s reason

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for excusing her into a [race-based] reason.”). In his reply brief,

Ramsey acknowledges the holding in Johnson II but argues that

Juror K was more explicit about the impact her race had on her

view of police than the prospective juror in that case. That may be,

but the step two inquiry focuses on the prosecution’s stated reason,

not the basis for the juror’s bias, even when that bias is “closely

linked to (or because of)” the juror’s race. Id. (emphasis added); see

also People v. Austin, 2024 CO 36, ¶¶ 17-18 (a division of this court

misconstrued Batson when it concluded that a strike based on a

juror’s racially charged experiences with police was race-based).

¶ 14 As in Johnson II and Austin, the prosecutor’s stated reason for

striking Juror K was not based on race, or “an assumption that, as

a person of color, [Juror K] would inherently be biased against law

enforcement.” Austin, ¶ 19. “Rather, the prosecutor struck [Juror

K] based on the life experiences she had shared and the

prosecutor’s concern that those experiences might affect her ability

to receive evidence from police officers impartially.” Id.; see also

Johnson II, ¶ 44 (“[A] challenge based solely on the prospective

juror’s race is different from a challenge ‘which may find its roots in

part [in] the juror’s attitude . . . which may be race related.’”)

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(alterations in original) (citation omitted). Accordingly, the trial

court did not err in its step two determination under Batson.

III. Suppression of Drug Evidence

A. Applicable Law

¶ 15 The United States and Colorado Constitutions protect against

unreasonable searches and seizures. U.S. Const. amend IV; Colo.

Const. art. II, § 7. A warrantless search or seizure is presumptively

unreasonable and unconstitutional absent an exception. People v.

Diaz, 53 P.3d 1171, 1175 (Colo. 2002).

¶ 16 The automobile protective search doctrine is one such

exception. Michigan v. Long, 463 U.S. 1032, 1034-35 (1983).

Under the doctrine, if after making a valid traffic stop, “the police

have an articulable and objectively reasonable belief that a person

in the car may be armed and dangerous, they may conduct a

protective search of the person and the passenger area of the car.”

People v. Brant, 252 P.3d 459, 462 (Colo. 2011). The test for

determining the reasonableness of a protective search is objective,

rather than subjective. People v. Altman, 938 P.2d 142, 146 (Colo.

1997).

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¶ 17 A ruling on a motion to suppress is a mixed question of law

and fact. People v. Pitts, 13 P.3d 1218, 1221-22 (Colo. 2000). We

defer to a trial court’s factual findings if competent evidence in the

record supports them. Brant, 252 P.3d at 462. We review the

court’s application of the law to those facts de novo. Id.

B. Discussion

¶ 18 Ramsey argues the trial court erred by denying his motion to

suppress evidence obtained as a result of the protective search of

his car. He argues that although the officer who conducted the

search testified that Banks (Ramsey’s passenger) was nervous and

fidgety, that did not give rise to a reasonable fear for officer safety.

¶ 19 At a pretrial hearing on the motion, the officer who conducted

the search testified that he did so after observing that Banks was

“very nervous, . . . his lip was quivering, and he was fidgeting a lot.

He was visibly sweating.” But he also testified that Banks “was

unable to sit still for any period of time. He was moving around

frequently and reaching places, . . . like between his legs . . .

between the passenger seat and the center console, and between

the passenger seat and the . . . passenger’s door.”

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¶ 20 Viewed objectively, we conclude that Banks’s act of reaching

his hands between his legs and on either side of the passenger seat

gave rise to an objectively reasonable belief that he may be armed

and dangerous. See Brant, 252 P.3d at 462; see also Altman, 938

P.2d at 147 (suspect’s “furtive action” of leaning over and making

motions toward the bottom of his seat provided reasonable basis for

protective search). While Ramsey argues that Banks’s gestures

were not furtive because they were made in plain view of the officer,

the officer testified that he could “only see [Banks’s] lap.” And even

though Banks may not have been obviously attempting to hide

something, as was the case in Brant, his act of reaching between

his legs and between the seats — places the officer could not see —

gave rise to a reasonable belief that he may be attempting to access

a weapon. See Brant, 252 P.3d at 464 (protective search was

justified because place where suspect reached “could contain a

dangerous weapon”). We therefore conclude the trial court properly

denied Ramsey’s motion to suppress.3

3 Because the search was constitutional under the protective search

exception, we need not address whether the evidence in this case
was also admissible under the doctrine of inevitable discovery.

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IV. Rule of Completeness

A. Applicable Law

¶ 21 The rule of completeness provides that, “[w]hen a statement or

part thereof is introduced by a party, an adverse party may require

introduction of any other part or any other statement which ought

in fairness to be considered contemporaneously with it.” CRE 106.

Its purpose is to “avoid creating a misleading impression by taking

evidence out of context or otherwise creating a distorted picture by

the selective introduction of evidence.” People v. Medina, 72 P.3d

405, 410 (Colo. App. 2003); see also People v. McLaughlin, 2023 CO

38, ¶ 31 (the touchstone of a completeness inquiry is fairness).

¶ 22 We review a trial court’s evidentiary rulings for an abuse of

discretion. McLaughlin, ¶ 22. A trial court abuses its discretion

when it misapplies the law or when its decision is manifestly

arbitrary, unreasonable, or unfair. Id.

B. Discussion

¶ 23 In a statement recorded on the arresting officers’ body

cameras, Ramsey told police that he was trying to sell his car and

was showing Banks that it runs. Before trial, the prosecution

informed the court that it did not plan to introduce Ramsey’s

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additional statement that he had “just purchased [the car]

yesterday,” and the statement was redacted from the body camera

recording. Defense counsel did not object.

¶ 24 At trial, one of the arresting officers testified that Ramsey said

he was “showing [Banks that the car] runs.” He continued to

explain that it was his understanding that Ramsey “was considering

selling this vehicle to his passenger.” In response, Ramsey sought

to compel the prosecution to introduce other statements he made to

the officer, specifically: “I’m showing Mr. Banks this car that I just

bought yesterday; it’s not running the way I would like, and I was

seeing if Mr. Banks would be interested in purchasing it.” The trial

court denied the request.

¶ 25 Ramsey argues the trial court abused its discretion because

his additional statement was necessary to clarify the officer’s

testimony. He argues that the admission of his redacted statement,

without additional context, was unfair because it allowed the

prosecution to argue that he had possession of the car, without the

clarification that he had only owned the car for a day. We are not

persuaded.

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¶ 26 To be sure, Ramsey’s indication that he only owned the car for

one day supported his defense that the drugs did not belong to him.

The trial court recognized as much before denying his request to

compel admission of the additional statement. But the rule of

completeness does not give the declarant of an otherwise

inadmissible out-of-court statement “an automatic right to insist

that other parts be admitted too, simply because they are favorable

to his position.” People v. Murray, 2018 COA 102, ¶ 38 (citation

omitted), overruled on other grounds by People v. Vanderpauye,

2023 CO 42. Rather, the test is whether the excluded statement

“ought in fairness to be considered contemporaneously with”

admitted evidence. CRE 106.

¶ 27 Here, the court properly recognized that whether the

additional statement should be admitted depended on whether it

was necessary to provide context. This case is therefore unlike

McLaughlin, ¶ 34, and People v. Montoya, 2024 CO 20, ¶ 52, where

the trial courts abused their discretion by misapplying the law.

Indeed, the trial court here applied the correct legal standard. In

doing so, it determined that — for purposes of fairness — Ramsey’s

statement that he just bought the car “yesterday” was not

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necessary to “cure any misimpression” for the jury and his

statement that he was thinking of selling it was complete in and of

itself. Affording, as we must, a great measure of deference to the

trial court’s determination of admissibility under Rule 106, see

Montoya, ¶ 57, we conclude the court did not abuse its discretion in

making that factual determination.

V. Expert Opinion Testimony

¶ 28 Ramsey next contends the trial court erred by admitting expert

testimony that “the narcotics that were located in [his] vehicle were

for possession with intent to distribute and not for personal use.”

He asserts this testimony was improper because it usurped the

function of the jury. We disagree.

A. Preservation

¶ 29 We review a preserved challenge to a trial court’s admission of

expert testimony for an abuse of discretion and reverse only if the

error is not harmless. People v. Baker, 2021 CO 29, ¶¶ 29, 38. We

review issues that were not preserved at trial for plain error. See

Hagos v. People, 2012 CO 63, ¶ 14. We only reverse under the

plain error standard when the error is obvious and substantial. Id.

An error is obvious when it contravenes Colorado case law. People

13
v. Pollard, 2013 COA 31M, ¶ 40. It is substantial when it so

undermined the fundamental fairness of the trial that it cast

serious doubt on the reliability of the conviction. Id. at ¶ 43.

¶ 30 The parties disagree whether this issue is preserved. Because

Ramsey’s pretrial objection was based on different grounds than

those raised on appeal, we conclude it is not. See People v. Ujaama,

2012 COA 36, ¶ 37 (an issue is not preserved if the defendant does

not object, objects on different grounds than those raised on appeal,

or objects on unspecific grounds that do not alert the court to the

particular issue for which review is sought).

¶ 31 Before trial, Ramsey moved to exclude the expert’s testimony

under CREs 701 and 702 on the basis that it would not be “helpful

for the jury.” On appeal, he asserts that the expert’s testimony was

inadmissible because it usurped the function of the jury. Ramsey

asserts that because the testimony usurped the function of the jury

it necessarily was not helpful and therefore his appellate argument

is preserved. We disagree. Whether proposed testimony would be

helpful to the jury presents an entirely different question than

whether it usurps the jury’s function. Because Ramsey’s objection

did not state the grounds for reversal he urges on appeal, the trial

14
court never had an opportunity to rule on its propriety. See id. at ¶

37. We therefore review for plain error. See Hagos, ¶ 14.

B. Applicable Law and Discussion

¶ 32 Although an expert witness may provide testimony that

embraces an ultimate issue of fact, an expert can’t tell the jury what

result to reach. Baker, ¶¶ 33-34; CRE 704. Thus, an expert

opinion is improper if it applies the facts of the case to a particular

legal standard in a way that tells the jury that the legal standard

has been satisfied. People in Interest of J.R., 2021 COA 81, ¶ 31.

¶ 33 To determine whether expert testimony has crossed the line,

our supreme court has directed us to consider the nonexhaustive

list of factors from People v. Rector, 248 P.3d 1196, 1203 (Colo.

2011), including whether (1) the testimony was clarified on cross-

examination, (2) the testimony expressed an opinion of the

applicable law or legal standards thereby usurping the function of

the court, (3) the jury was properly instructed on the law and that it

may accept or reject the expert’s opinion, and (4) the expert opined

that the defendant committed the crime or that there was a

particular likelihood that the defendant did so. Baker, ¶ 32

(applying the Rector factors).

15
¶ 34 We initially conclude that some of the Rector factors weigh

against the testimony’s admissibility. Factor one suggests an error

occurred because the expert’s testimony was not clarified on cross-

examination. While the expert was cross-examined, the

examination did not clarify the difference between his factual

opinion and the legal conclusion that the drugs were possessed

with the “intent to distribute.” See J.R., ¶ 31 (an expert diagnosed

the victim with “sexual abuse,” but the “difference between legal

and medical definitions of sexual abuse” was never clarified).

¶ 35 As to factor two, we believe it is a close call as to whether the

testimony strayed into the realm of legal opinion. On the one hand,

the expert opined three times that the drugs in the car were for

“possession with intent to distribute.” In so doing, he arguably

testified that the evidence met the legal standard of “with intent.”

On the other hand, he did not (and was not asked to) read the legal

definition of intent or to expressly apply the constellation of facts he

had identified as supporting his opinion to that legal definition.

¶ 36 Even so, the question before us is not whether the testimony

itself, when reviewed in isolation outside of relevant context, may

have been improper. Instead, we must decide whether the

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testimony, considered in light of the totality of the nonexhaustive

factors, usurped the function of the jury. We conclude it did not.

¶ 37 To reach that conclusion, we first conclude that factors three

and four weigh against a finding of error. The court correctly

instructed the jury on the legal definition of intent, as well as the

fact that it could accept or reject an expert witness’s testimony. See

Lawrence v. People, 2021 CO 28, ¶ 53. Likewise, despite the

expert’s use of statutory language indicating that one element of

possession with intent to distribute was met, nothing in his

testimony suggested that Ramsey possessed the narcotics found in

his vehicle or that he did so knowingly — both required elements

under section 18-18-405(1)(a), C.R.S. 2024.

¶ 38 Moreover, although the expert used statutory language in

rendering his opinion, the substance of his testimony was properly

based on the evidence. The expert testified that, based on his

expertise, the value of the drugs and the presence of cash, a scale,

and a cutting agent in the car were common to see “in the drug

distribution world.” See People v. Atencio, 140 P.3d 73, 76 (Colo.

App. 2005) (expert opinion testimony is admissible regarding facts

that are “not necessarily within the scope of the ordinary layman’s

17
knowledge and experience,” including the quantity of drugs one

would generally possess for personal use). To be sure, the better

practice would have been for the prosecution to ask whether the

evidence was “consistent with” an intent to distribute, as opposed to

eliciting direct testimony that this element was met. But Rector’s

totality of the circumstances test does not require the use of

talismanic language to ensure expert opinion does not usurp the

jury’s function. Considering all of the factors together, we cannot

conclude the expert’s testimony strayed so far from factual opinion

as to constitute error under Rector.

¶ 39 In reaching this conclusion, we recognize that some of the

factors Rector instructs us to consider are events that occur after

the disputed testimony and the trial court’s assessment of

admissibility. These factors are seemingly relevant not to whether

there was error in the first instance, but to whether the error is

reversible. In any event, while we conclude there was no error

because the jury’s function was not usurped in this case, we also

conclude that any impropriety cannot have been plain error. In

addition to the relevant circumstances discussed above, the expert

also acknowledged on cross-examination that certain facts he

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considered were not necessarily indicative of drug distribution.4

Moreover, the prosecutor did not rely on or even reference the

disputed testimony during closing argument. Instead, he properly

focused on the expert’s testimony that there was “over a thousand

dollars’ worth of drugs in [the] car,” arguing that it didn’t make

sense that someone other than Ramsey would have left them there.

Accordingly, any impropriety in the expert’s testimony did not cast

serious doubt on the reliability of Ramsey’s conviction. See Hagos,

¶ 14.

VI. Natural Medicine Health Act

¶ 40 Finally, we agree with Ramsey that Prop 122 requires reversal

of his psilocin conviction. Enacted in 2022, after Ramsey was

convicted, Prop 122 provided that it is not an offense under state

law for a person twenty-one years of age or older to possess psilocin

for personal use or to give it away without remuneration to a person

twenty-one years of age or older. Sec. 1, § 12-170-109(1)(a), 2023

Colo. Sess. Laws 3602. Prop 122 further provided that “[t]he

4 For example, he testified that “a W-2 isn’t necessarily indicative

that [a] person isn’t working”; that mushrooms, fentanyl pills, and
cocaine can be consumed without paraphernalia; and that no small
baggies for distribution were found in Ramsey’s car.

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removal and reduction of criminal penalties by this act is intended

to have retroactive effect.” Sec. 1, § 12-170-115, 2023 Colo. Sess.

Laws 3605.5

¶ 41 The Attorney General argues that the retroactive removal and

reduction of penalties under Prop 122’s section 12-170-115 do not

apply to Ramsey’s conviction because the legislature later repealed

that provision. See Ch. 249, sec. 14, § 12-170-115, 2023 Colo

Sess. Laws 1388 (repealing section 12-170-115 and reenacting

language not addressing retroactivity). But the repeal and

reenactment of this language was expressly prospective and does

not apply to offenses committed before July 1, 2023. Ch. 249, sec.

45, 2023 Colo. Sess. Laws 1424. As noted, Prop 122 expressly

applied retroactively. Prop 122 became law upon the Governor

issuing the proclamation of the vote on the measure, which

5 Though the voters approved Prop 122 in the November 2022

election, the General Assembly repealed and reenacted the
provisions during the next legislative session, expanding and
relocating many of its significant elements. See Ch. 249, 2023
Colo. Sess. Laws 1372-1424. Due to the timing of these changes,
the language of Prop 122 was never codified in either the 2023 or
2024 versions of the Colorado Revised Statutes. Hence, all citations
to the language of Prop 122 are to the Colorado Session Laws where
it can be found.

20
occurred on December 27, 2022. 2023 Colo. Sess. Laws 3607.

Thus, as of that date, individuals (like Ramsey) whose convictions

involving psilocin were not yet final were entitled to the ameliorative

effect of the new statute. People v. Stellabotte, 2018 CO 66, ¶ 38.

And the General Assembly’s subsequent removal of that

ameliorative effect expressly applies only to defendants who

possessed psilocin after July 1, 2023.

¶ 42 In sum, while “the general rule is that the date of the offense

governs the applicable statute to be applied in charging the

offense,” Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007), this

rule does not apply at the expense of the statute’s plain language.

See People v. Butler, 2017 COA 117, ¶ 25 (where a statute’s plain

language is clear and unambiguous, we must apply it as written).

¶ 43 Accordingly, we conclude that Prop 122 retroactively applies to

Ramsey’s psilocin conviction and, because finality has not yet

attached to it, he is entitled to the benefit of that statute.

¶ 44 The Attorney General argues that possession of psilocin with

intent to sell or distribute for remuneration is still a crime, even

under Prop 122. That is true. See § 18-18-405(1)(a); § 18-18-

434(5)(c)(II), C.R.S. 2024. But provided the person is over twenty-

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one years old, possession with intent to distribute psilocin without

remuneration is no longer an offense. § 18-18-434(5)(a). As it

relates to the original charges, distribution means with or without

remuneration, and the jury was so instructed. Thus, whether

Ramsey intended to give away the psilocin found in his car (as

opposed to sell it) is a question of fact that has not been decided.

And Ramsey’s inability to assert such a defense cannot have been

harmless. We therefore reverse Ramsey’s psilocin conviction and

remand for a new trial.6

VII. Disposition

¶ 45 The judgment is affirmed in part and reversed in part, and the

case is remanded with directions.

JUDGE TOW and JUDGE SCHUTZ concur.

6 We express no opinion regarding what evidence may be introduced

or how it may be argued on retrial.

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