Peo v. Smith

── Peo v. Smith ── Court: Colorado Court of Appeals Date: May 28, 2026 Category: General 24CA0493 Peo v Smith 05-28-2026 COLORADO COURT OF APPEALS Court of Appeals No. 24CA0493 El Paso County District Court No. 23CR2322 Honorable Jill Brady, Judge The People of the State of Colorado, Plaintiff-Appellee, v. Donald Smith, Defendant-Appellant. JUDGMENT AFFIRMED Division IV Opinion by JUDGE LUM Welling and Schock, JJ., concur NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026 Philip J. Weiser, Attorney General, Yaried A. Hailu, Assistant Attorney General Fellow, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Rachel Z. Geiman, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant Donald Smith appeals the judgment of conviction entered after a jury found him guilty of possessing methamphetamine. We affirm. I. Background ¶2 Police officers Robert McGee and Walker Baker observed Smith sleeping in his car in a Days Inn parking lot. They ran the car’s license plate and confirmed that Smith owned the car. They also discovered an outstanding warrant for Smith’s arrest. McGee knocked on the window, asked Smith to step out of the car, and led him to the patrol car. ¶3 As Smith got into the patrol car, McGee saw in Smith’s sweatshirt pocket a couple of bags containing suspected illicit substances. McGee then searched Smith and found additional suspected illicit substances. Testing later confirmed that the substances were methamphetamine and fentanyl. The People charged Smith with two counts of possession of a controlled substance — one for methamphetamine and one for fentanyl. ¶4 At trial, Smith’s counsel argued that the drugs belonged to someone else who had used Smith’s car without his permission. 1  Smith’s brother, David,1 testified that Smith worked at the Days Inn and that his car had broken down. David also testified that he had witnessed other people using the car without Smith’s knowledge. Similarly, Smith’s friend, Tonya Summers, testified that she was staying at the Days Inn around the time that Smith was arrested, and that she witnessed other people “staying, living in [Smith’s] car” without his permission. During closing argument, Smith’s counsel argued the prosecution hadn’t proven that Smith knew that the items found in his pockets contained drugs.2 ¶5 In the People’s closing argument, during a lengthy discussion about the elements of possession of controlled substance, the prosecutor encouraged the jury to re-watch the police officers’ body-worn camera footage of the incident to glean both direct and circumstantial evidence that Smith “knowingly” possessed controlled substances. She emphasized that the footage showed 1 Because Smith and his brother share the same last name, we refer to his brother — David Smith — by his first name. We mean no disrespect in doing so. 2 Smith’s counsel also argued that Smith went to his car, found “stuff” sitting in it, and put it in his pocket. However, the trial court sustained the prosecutor’s objection that this narrative interjected facts not in evidence. 2  that the controlled substances were “right there in his jacket pocket” and “tucked in his jeans pocket” rather than “laying outside of the vehicle” or “even just in [the] vehicle.” ¶6 The prosecutor also said, Not only do we have the direct evidence of [the substances] being pulled out of his pocket, but we have the circumstantial evidence that you can consider equally. You don’t hear the defendant denying that. You don’t hear anything about other people being around. . . . Direct and circumstantial