The People of the State of Colorado, Plaintiff-Appellee, v. Zvarrez Malik Keaton, Defendant-Appellant. (2023)

JUDGMENT AFFIRMED AND CASE REMANDED WITH DIRECTIONS

¶ 1 Defendant, Zvarrez Malik Keaton, appeals his convictions for conspiracy to commit robbery and possession of a controlled substance following a bench trial. We affirm.

I. Background

¶ 2 While investigating a two-month string of robberies at convenience, liquor, pharmacy, and jewelry stores in Colorado Springs, police subpoenaed Facebook records of at least three suspects. Each of those suspects had been exchanging Facebook messages with Keaton, and some messages indicated that Keaton had attempted to arrange robbery participants or getaway drivers for “Jay” — a robbery suspect and fellow gang member who was “up there” in the gang.

¶ 3 The crime spree culminated with three jewelry store robberies. Shortly after the last of these, police located some of the stolen jewelry in parolee Nathaniel Gonzales's apartment. Although Keaton was not present at any of the robberies, Facebook records show that he attempted to connect Jay and Gonzales, to “make some easy [bread],” a few weeks before the jewelry store robberies.

¶ 4 When Keaton was arrested, he was wearing a pack around his chest that contained, in an inner pocket, four loose heroin pills. At that time, he gave an interview in which he said, among other things, that (1) he knew about some robberies; (2) he wanted to “keep it cool” with Jay; (3) he had referred known suspects, including Gonzales, to help Jay with robberies; (4) he thought he had referred Gonzales for “the jewelry store”; (5) he had heard that they were going to “take down” a jewelry store; and (6) his girlfriend had asked him to hold the pills in the pack he was wearing when he was arrested. As relevant to this appeal, Keaton was ultimately charged with conspiracy to commit aggravated robbery and possession of a controlled substance.

¶ 5 Keaton's case was tried to the bench. Because the district court found no evidence that Keaton knew guns were being used in the robberies, it found Keaton guilty of the lesser included crime of conspiracy to commit robbery. The court also found Keaton guilty of possession of a controlled substance.

¶ 6 As to the conspiracy charge, the court found that Keaton (1) knew that Jay was committing robberies; (2) had agreed to help Jay commit robberies by connecting Jay with Gonzales and other people to assist Jay with robberies; and (3) committed overt acts by “being the middleman” and getting robbery participants in touch with each other. The court also found that overt acts had been committed by Keaton's co-conspirators.

¶ 7 As to the possession charge, the court found that even if Keaton was holding the pills for his girlfriend, the evidence supported an inference that he knew the pills were an illegal substance.

II. Discussion

¶ 8 On appeal, Keaton contends that the evidence was insufficient to support either conviction. We disagree.

A. Standard of Review

¶ 9 We treat sufficiency challenges after a bench trial the same as those after a jury trial. People v. Tomaske, 2022 COA 52, ¶ 32. We review such challenges de novo to determine whether any rational fact finder could accept the evidence, when viewed in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. Id. at ¶¶ 32-33. In doing so, we give the prosecution and the district court the benefit of every reasonable inference that might fairly be drawn from the evidence, id. at ¶ 33, and we defer to the court's credibility determinations and its resolution of “conflicts, inconsistencies, and disputes in the evidence.” Kogan v. People, 756 P.2d 945, 950 (Colo. 1988), abrogated on other grounds by Erickson v. People, 951 P.2d 919 (Colo. 1998).

¶ 10 Even if we may draw a different conclusion from the evidence presented, and even if there is conflicting evidence, we may not set aside a district court's verdict when the evidence sufficiently supports it. Id.; Stewart v. People, 175 Colo. 304, 307, 487 P.2d 371, 373 (1971).

B. Conspiracy to Commit Robbery ¶ 11 The elements of the crime of conspiracy, as relevant to this appeal, are

¶ 11 The elements of the crime of conspiracy, as relevant to this appeal, are

• that Keaton,

• with the intent to promote or facilitate the commission of the crime of robbery,

• agreed to aid another person or persons in the planning or commission of the crime of robbery, and

• Keaton, or a co-conspirator, performed an overt act to pursue the conspiracy.

§ 18-2-201(1), C.R.S. 2022; see COLJI-Crim. G2:05 (2022).

¶ 12 Palmer v. People, 964 P.2d 524, 527 (Colo. 1998), clarified that “intent” in the context of conspiracy requires two distinct mental states: (1) the specific intent to agree to commit a particular crime — here, a robbery; and (2) the conscious objective to cause the specific result of the crime that is the subject of the agreement — here, the taking of a thing of value by the use of force, threats, or intimidation. See §§ 18-1-501(5), 18-4-301(1), C.R.S. 2022. Keaton contends that there was insufficient evidence of only the second mental state, because the evidence shows that Keaton's objective was to “keep it cool” with Jay. He does not argue that the evidence is insufficient with respect to any other element of the crime.

¶ 13 We recognize that conspiracy is a covert crime and that the evidence of conspiracy is typically circumstantial. See People v. LeFebre, 190 Colo. 307, 310, 546 P.2d 952, 954 (1976). The finder of fact may therefore infer the requisite mental states from circumstantial evidence indicating that the conspirators, by their acts, pursued the same objective with a view toward achieving a common goal. See People v. Cabus, 626 P.2d 1159, 1160 (Colo. App. 1980).

¶ 14 We discern sufficient evidence for a fact finder to reasonably infer beyond a reasonable doubt that Keaton intended for takings by force to occur to satisfy the second intent element based on the following:

• Facebook evidence that Keaton attempted to arrange for other individuals to give rides to Jay, with the promise of easy money, before the jewelry store robberies occurred;

• Facebook evidence that Keaton tried to connect Gonzales and Jay on two separate days;

• Keaton's admissions, corroborated by Facebook evidence, that he knew Jay had targeted stores during business hours (when employees were present);

• Keaton's admission that he referred Gonzales and others to Jay to help with robberies; and

• Keaton's statement that he thought he had referred Gonzales “for the jewelry store.”

¶ 15 From this evidence, a fact finder could fairly infer that Keaton knew that Jay intended to commit robberies, knew Jay intended to conspire with others to achieve that unlawful objective, and intended to help Jay succeed by providing people who would assist with jewelry store robberies. This is enough.¹ See § 18-2-204(1), C.R.S. 2022 (“Conspiracy is a continuing course of conduct which terminates when the crime or crimes which are its object are committed ․”); United States v. Broce, 488 U.S. 563, 570–71 (1989) (“A single agreement to commit several crimes constitutes one conspiracy.”); People v. Rodriguez, 914 P.2d 230, 283 (Colo. 1996) (applying the same principle); cf. United States v. Falcone, 311 U.S. 205, 210-11 (1940) (a person providing legal supplies for a crime, without knowledge of a criminal object for those supplies, is not a conspirator).

¶ 16 We are not persuaded otherwise by Keaton's argument that some evidence shows his referrals were motivated by an interest in maintaining relationships and “keeping it cool” with Jay. Keaton's intent to maintain his standing with Jay and his intent to cause takings by the use of force are not mutually exclusive. It is also reasonable to infer that, in order to maintain his status with Jay, Keaton did not merely want to make referrals, but he also wanted the people he referred to successfully assist Jay in achieving Jay's objective. And on review, we grant the prosecution the benefit of all reasonable inferences that may be fairly drawn from the evidence, and we defer to the district court's resolution of conflicting evidence. See Tomaske, ¶ 33; Kogan, 756 P.2d at 950.

¶ 17 For these reasons, we affirm Keaton's conspiracy conviction.

C. Possession of a Controlled Substance

¶ 18 Keaton next contends that the evidence presented was insufficient to support his conviction for possession of a controlled substance because the prosecution did not establish that he knew the four pills in his possession contained a controlled substance. We are not persuaded.

¶ 19 Based on the unrefuted evidence of Keaton's exclusive possession of pills marked as oxycodone — a schedule II controlled substance under section 18-18-204(2)(a)(I)(N), C.R.S. 2022 — the district court could reasonably infer that he knew the pills contained a controlled substance. See People v. Stark, 691 P.2d 334, 339 (Colo. 1984) (fact finder may infer knowledge of a drug's character from evidence of its exclusive possession); see also People v. Perea, 126 P.3d 241, 245 (Colo. App. 2005) (the defendant need not know what precise controlled substance is possessed). Moreover, the court could infer Keaton's guilty knowledge from his attempts to claim that the pills belonged to his girlfriend. See People v. Alemayehu, 2021 COA 69, ¶ 20. We therefore affirm Keaton's conviction for possession of a controlled substance.

III. Correction of the Mittimus

¶ 20 We note, nostra sponte, that the mittimus reflects that Keaton was not tried and instead pleaded guilty. The mittimus should be corrected to show that he was found guilty by the district court. See People v. Brown, 2014 COA 155M-2, ¶ 40.

IV. Disposition

¶ 21 The judgment is affirmed, and the case is remanded for correction of the mittimus.

FOOTNOTES

1.   Evidence that Keaton was not aware of the particular details of any of the individual robberies does not defeat this conclusion. See Blumenthal v. United States, 332 U.S. 539, 557 (1947) (conspiratorial agreement does not require “evidence of knowledge of all [of the crime's] details”).

Opinion by JUDGE LUM

Dailey and Johnson, JJ., concur JUDGE DAILEY and JUDGE JOHNSON concur.