v McBride

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 23, 2020

                               

No. 17CA2249, People v McBride — Regulation of Vehicles and
Traffic — Equipment — Tail Lamps and Reflectors

      A division of the court of appeals considers whether section

42-4-206(1), C.R.S. 2019, which requires motor vehicles to be

equipped with tail lamps emitting red light, prohibits tail lamps

from emitting some white light along with red light. The division

concludes that it does, as the statute requires taillights to shine

only red light. Therefore, the division affirms the judgment for this

traffic infraction and affirms the use of the infraction as justification

for a traffic stop.

      The division further considers whether section 42-4-903(1),

C.R.S. 2019, which requires the use of a turn signal before turning

or moving right or left upon a roadway, requires drivers to signal

when navigating a roundabout. The division concludes that it does
not, as the statute does not apply to roundabouts. Therefore, the

division reverses the judgment for this traffic infraction.

     Finally, the division considers whether the prosecution

presented sufficient evidence to establish that the defendant

knowingly possessed a firearm as a prior offender. The division

concludes that the prosecution did not and therefore reverses the

defendant’s conviction for the possession charge.
COLORADO COURT OF APPEALS                                      

Court of Appeals No. 17CA2249
Mesa County District Court No. 17CR190
Honorable Valerie J. Robison, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Timothy Robert McBride,

Defendant-Appellant


                       JUDGMENT AFFIRMED IN PART
                         AND REVERSED IN PART

                                  Division V
                          Opinion by JUDGE GOMEZ
                       J. Jones and Welling, JJ., concur

                           Announced July 23, 2020


Philip J. Weiser, Attorney General, John T. Lee, Senior Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1    In this criminal case, we address two issues of first impression

 in this state: (1) whether section 42-4-206(1), C.R.S. 2019, which

 requires motor vehicles to be equipped with tail lamps emitting red

 light, prohibits tail lamps from emitting some white light along with

 red light; and (2) whether section 42-4-903(1), C.R.S. 2019, which

 requires the use of a turn signal before turning or moving right or

 left upon a roadway, requires drivers to signal when navigating a

 roundabout. We conclude that the answer to the first question is

 “yes” and the answer to the second is “no.” We also conclude that

 the evidence doesn’t support a finding that the defendant, Timothy

 R. McBride, knew about the gun found in the car he was driving.

 Accordingly, we affirm Mr. McBride’s traffic infraction for a tail lamp

 violation but reverse his traffic infraction for failure to signal and

 his conviction for possession of a weapon by a previous offender

 (POWPO).

                            I.    Background

¶2    One night, while sitting in an unmarked police car surveilling

 a hotel for illicit drug activity, a sheriff’s deputy saw a Lincoln Town

 Car with two people in it pull into the parking lot, park for less than

 ten minutes without anyone getting into or out of the car, and drive

                                     1
 away. He relayed his observations to another deputy, who followed

 the Lincoln from another unmarked police car.

¶3    The second deputy, as she followed the Lincoln, noticed that

 both of the car’s tail lamps were broken and that, although the

 lamps had been patched with red tape, the tape was melted and the

 bulbs emitted some white light along with red light. The deputy

 also observed the Lincoln navigate a roundabout without signaling

 and continue straight on the same road. She radioed a third

 deputy in a marked patrol car to stop the Lincoln and investigate

 the two traffic infractions.

¶4    The third deputy pulled the Lincoln over and identified the

 driver as Mr. McBride and his passenger as M.S. Additional officers

 and a police dog arrived at the scene. The officers arrested

 Mr. McBride on an outstanding warrant. Meanwhile, the dog

 alerted to the presence of illegal narcotics in the car. Upon

 searching the car, officers found a bag of methamphetamine

 between the floorboards and a handgun wedged between the driver

 and front passenger seats under M.S.’s purse. M.S. also had drug

 paraphernalia on her person.



                                   2
¶5      The prosecution charged Mr. McBride with five offenses:

 (1) possession of a controlled substance; (2) a special offender

 sentence enhancement for possession of a firearm; (3) POWPO; (4) a

 traffic infraction for an improper tail lamp; and (5) a traffic

 infraction for failure to signal for a turn.1

¶6      Mr. McBride filed a motion to suppress evidence of the drugs

 and the gun as fruits of an illegal traffic stop. After a hearing, the

 court denied the motion, ruling that there was reasonable suspicion

 to stop Mr. McBride for the two traffic infractions.

¶7      Mr. McBride’s defense at trial was that the drugs and gun

 belonged to his passenger, M.S., and that he didn’t see them or

 know they were in the car. The jury convicted him of POWPO and

 the two traffic offenses. It acquitted him of the drug possession

 charge, which mooted the special-offender enhancer. The court

 imposed a two-year prison sentence for the POWPO offense (an

 aggravated sentence due to the court’s finding that Mr. McBride

 was on probation at the time of the offense) and assessed monetary

 penalties for the traffic offenses.



 1   M.S. was separately charged with related offenses.
                                       3
                              II.   Analysis

¶8    Mr. McBride raises four issues on appeal: (1) the evidence

 doesn’t support the traffic offenses for a tail lamp infraction and

 failure to signal; (2) the trial court erred by denying the motion to

 suppress; (3) the evidence doesn’t support the conviction for

 POWPO; and (4) the enhancement of his sentence based on his

 probationary status at the time of the offense was illegal. On the

 first issue, we conclude that there is sufficient evidence to support

 the tail lamp infraction but not the failure to signal infraction. On

 the second, we conclude that, because of the tail lamp infraction,

 officers had reasonable suspicion for the traffic stop. And on the

 third, we conclude that there is insufficient evidence to support the

 POWPO conviction. Our conclusion on the third issue moots the

 fourth, and therefore we don’t address it.

                         A.   Traffic Infractions

¶9    Mr. McBride contends that there is insufficient evidence to

 support the two traffic infractions. We disagree as to the tail lamp

 infraction but agree as to the failure to signal infraction.




                                    4
                            1.    Standard of Review

¶ 10   We review sufficiency of the evidence challenges de novo,

  applying the substantial evidence test. People v. McCoy, 

, ¶ 37, aff’d on other grounds, 

. Under this test, we

  consider whether the evidence, viewed as a whole and in the light

  most favorable to the prosecution, is sufficient to support a rational

  conclusion that the defendant is guilty of the offense beyond a

  reasonable doubt. 

¶ 11   Where a sufficiency of the evidence challenge requires our

  interpretation of a statute, our goal is to effectuate the General

  Assembly’s intent. Id. at ¶ 38. To determine that intent, we start

  with the language of the statute, giving words and phrases their

  plain and ordinary meanings. Id. We must read and consider the

  statutory scheme as a whole, giving consistent, harmonious, and

  sensible effects to all of its parts. Id. If the language is clear and

  ambiguous, we will apply it as written, without resorting to further

  statutory analysis. Id.




                                      5
                          2.     Tail Lamp Infraction

¶ 12   Mr. McBride’s sufficiency challenge to the tail lamp infraction

  turns on interpretation of the applicable statute. That statute,

  section 42-4-206(1), provides that

             [t]o be operated on a road, every motor vehicle
             . . . must be equipped with at least one tail
             lamp mounted on the rear, which, when
             lighted as required in section 42-4-204, emits
             a red light plainly visible from a distance of five
             hundred feet to the rear . . . .

  (Emphasis added.) The statute further provides that vehicles

  manufactured after 1958, like the vehicle in this case, “must be

  equipped with at least two tail lamps mounted on the rear . . .

  which . . . comply with this section.” Id. Section 42-4-204, C.R.S.

  2019, in turn, requires vehicles to display lighted lamps between

  sunset and sunrise and at other times when conditions are

  unfavorable.

¶ 13   The parties dispute whether section 42-4-206(1) requires that

  tail lamps shine only red light, or whether it simply requires that

  lamps shine red light without prohibiting lamps from also shining

  other colors. We conclude, for several reasons, that the statute

  requires tail lamps to shine only red light.


                                      6
¶ 14   First, giving the words their plain and ordinary meanings, the

  statute signifies that tail lamps must shine only red. The statute

  doesn’t say a tail lamp must shine red, along with any other colors.

  It only says “red.” Further, allowing the use of additional colors

  would detract from uniformity and uniform enforcement of the law.

  If tail lamps had red light mixed with a host of other colors, there

  would no longer be uniformity in tail lamps shining as red. And if a

  tail lamp shone a lot of white light with a smidge of red but could be

  perceived as faintly red at a 500-foot distance, that would introduce

  subjectivity on the part of police. Therefore, to promote uniformity

  and apply the plain language of the statute, “red” must mean “red”

  and only “red.” See People v. Wright, 

, 321 n.7 (Colo.

  1987) (“In Colorado, the legislature has expressly stated that, as a

  matter of policy, traffic laws and enforcement throughout the state

  should be uniform.” (citing § 42-4-102, C.R.S. 2019)).

¶ 15   Second, another subsection of section 42-4-206 requires “a

  tail lamp or a separate lamp” to illuminate the rear registration

  plate “with a white light.” § 42-4-206(3). This provision suggests

  that tail lamps can include white lights, but only for the purpose of

  illuminating the rear plate.

                                     7
¶ 16   Third, other provisions of the traffic code allow or require

  lamps in colors other than red. For instance, section 42-4-215(1),

  C.R.S. 2019, requires vehicles to have stop lamps on the rear that

  “display a red or amber light, or any shade of color between red and

  amber” when the driver applies the brake. Section 42-4-215(2)

  requires vehicles to have flashing turn signal lamps in the front

  “display[ing] a white or amber light, or any shade of color between

  white and amber” and in the rear “display[ing] a red or amber light,

  or any shade of color between red and amber.” Section 42-4-215(7)

  permits vehicles to have hazard lights on the front flashing “white

  or amber lights, or any shade of color between white and amber”

  and on the rear flashing “amber or red lights, or any shade of color

  between amber and red.” Section 42-4-215(8) permits vehicles to

  have up to three identification lamps in the front and up to three

  such lamps in the rear, with any front lamps “emit[ting] an amber

  light” and any rear lamps “emit[ting] a red light.” And section 42-

  12-204, C.R.S. 2019, permits street-rod or custom vehicles to use




                                    8
  “blue dot tail lights” (red lamps with blue or purple inserts) for stop

  lamps, rear turn signal lamps, and rear hazard lamps.2

¶ 17   Collectively, these provisions suggest that when the legislature

  says “red” it means only “red” and when it says “amber” or “white” it

  means only “amber” or “white.” They also suggest that where more

  than one color is permitted, the legislature says so — for instance in

  permitting any shade of color between white and amber or between

  red and amber for certain types of lamps and permitting the use of

  blue dot tail lights for certain lamps on certain vehicles. But in

  enacting section 42-4-206(1), the legislature chose to say only “red

  light,” suggesting that red is the only permissible light color for tail

  lamps. See Cain v. People, 

 (“Under the rule of

  interpretation expressio unius exclusio alterius, the inclusion of

  certain items implies the exclusion of others.” (quoting Beeghly v.

  Mack, 

 (Colo. 2001))).

¶ 18   And fourth, as these various provisions demonstrate, specific

  colored lights on a vehicle carry significance. Cf. Tidwell ex rel.

  Tidwell v. City & Cty. of Denver, 

 (Colo. 2003)


  2 This is by no means an exhaustive list of the statutory provisions
  regarding lamp colors. It is meant only to be illustrative.
                                      9
  (explaining the significance of the use of red, blue, and white

  rotating “stage two” lights on police cars). Front lights are generally

  white or amber, and rear lights are generally red (or sometimes

  amber). The only white lights on the rear of a car are generally the

  small license plate lamp and backup lamps (which illuminate only

  when a driver is backing up).3 This uniformity of lighting helps

  drivers ascertain what direction a car is facing and whether it is

  backing up. Permitting vehicles to emit white light (even if mixed

  with red) from tail lamps could therefore lead to confusion and

  accidents. See Gallagher Transp. Co. v. Giggey, 

,

  

 (1937) (a driver has a right to assume other

  vehicles will be lawfully lighted).

¶ 19   Our interpretation is consistent with the majority view in other

  jurisdictions to have considered similar statutory provisions. See,

  e.g., Williams v. State, 

 (Alaska Ct. App. 1993)


  3 Although state law doesn’t require backup lamps to be any
  specific color, § 42-4-215(6), C.R.S. 2019, federal standards and
  regulations have required white backup lamps since the late 1960s.
  See David W. Moore & Kåre Rumar, Historical Development and
  Current Effectiveness of Rear Lighting Systems 11-12, 38-39 (Univ.
  of Mich. Transp. Research Institute Oct. 1999),
  https://perma.cc/WTY3-2FEH; see also 

(S7.6)
  & tbl. I-a (2019).
                                        10
  (“We . . . interpret [the statute] to require that taillights emit only

  red light.”); Robinson v. State, 

 (Ark. 2014)

  (“Th[e] statute does not contemplate a taillight that displays a white

  light in addition to a red light.”); State v. Patterson, 

 (Idaho Ct. App. 2004) (“Based upon the plain reading of [the

  statutory sections, the defendant] violated Idaho law by driving with

  taillights that emit light of a color other than red.”); People v. Allen,

  

, 759 (App. Div. 2011) (“We hold that the statute

  requires a tail light to display only red light.”). But see Vicknair v.

  State, 

 (Tex. App. 1984) (a taillight complies

  with state statute so long as it emits red light visible at the required

  distance, even if it also emits white light), aff’d on other

  grounds, 

 (Tex. Crim. App. 1986).

¶ 20   Our interpretation also comports with People v. Brant, 

 (Colo. 2011), in which our supreme court said that

  an investigatory stop for a violation of section 42-4-206 was

  justified when a vehicle had a broken tail lamp. Although we

  acknowledge that the statute regulates color, not brokenness, Brant

  supports our interpretation that a broken tail lamp that emits some

  white light along with red light violates the statute.

                                      11
¶ 21   Accordingly, we affirm the traffic infraction for an improper tail

  lamp.

                         3.    Turn Signal Infraction

¶ 22   Mr. McBride’s sufficiency challenge to the turn signal

  infraction also turns on interpretation of the applicable statute.

  That statute, section 42-4-903, provides, in relevant part:

            (1) No person shall turn a vehicle at an
            intersection . . . , or turn a vehicle to enter a
            private road or driveway, or otherwise turn a
            vehicle from a direct course or move right or left
            upon a roadway unless and until such
            movement can be made with reasonable safety
            and then only after giving an appropriate
            signal in the manner provided in sections 42-
            4-608 and 42-4-609.

            (2) A signal of intention to turn right or left
            shall be given continuously during not less
            than the last one hundred feet traveled by the
            vehicle before turning in urban or metropolitan
            areas and shall be given continuously for at
            least two hundred feet on all four-lane
            highways and other highways where the prima
            facie or posted speed limit is more than forty
            miles per hour.

  (Emphasis added.) The referenced sections 42-4-608 and 42-4-609,

  C.R.S. 2019, describe signaling via lamps or hands and arms when

  such signals are required by statute.



                                    12
¶ 23   The parties dispute whether these provisions require a driver

  to signal when navigating a roundabout.4

¶ 24   Notably, only one traffic code provision expressly addresses

  roundabouts. That provision, section 42-4-1006(2), C.R.S. 2019,

  says “[a] vehicle passing around a rotary traffic island shall be

  driven only to the right of such island.”

¶ 25   The question, then, is whether any of the actions described in

  section 42-4-903(1) — turning at an intersection, turning to enter a

  private road or driveway, otherwise turning from a direct course,

  and moving right or left upon a roadway — encompass driving

  through a roundabout. The People focus largely on the provision

  requiring signaling when moving right or left upon a roadway,

  urging that drivers necessarily move right or left upon the roadway

  when they drive through a roundabout.

¶ 26   Two other jurisdictions have addressed this issue under

  similar statutory provisions: Alaska and Indiana. Both held that


  4 Although the People argued in the trial court and on appeal that
  signaling is required only when exiting a roundabout — not when
  entering one — neither the information nor the verdict form or
  mittimus so specified. Accordingly, we consider any signaling
  requirements for either entering or exiting a roundabout.

                                    13
  their statutes regarding the use of turn signals don’t apply to

  roundabouts.5 We find their reasoning persuasive and conclude for

  the same reasons that section 42-4-903(1) doesn’t require a driver

  to signal when entering or exiting a roundabout.

¶ 27   In Noble v. State, the Alaska Court of Appeals gave several

  reasons for its decision that the state’s traffic laws don’t require

  drivers to use a turn signal when entering or exiting a roundabout.

  

 (Alaska Ct. App. 2015). Those same

  reasons apply equally here.

¶ 28   First, the court cited the state laws expressly applying to

  roundabouts. 

. As with Colorado’s laws, none of the

  provisions addressed signaling. 

¶ 29   Next, the court turned to the general provisions on signaling.

  

. Although not identical to Colorado’s laws, these

  provisions similarly require the use of a signal when a motorist

  turns or moves right or left upon, off, or on a roadway. 

.



  5 In a third case, the Eighth Circuit declined to decide whether state
  law required drivers to signal in a roundabout; the court held only
  that a traffic stop based on failure to signal was reasonable because
  the officer could reasonably have believed it was a violation. United
  States v. Gadson, 

, 909 (8th Cir. 2016).
                                     14
  They also similarly require continuous use of a signal for the last

  hundred feet before turning. Id. at 1202-03. (Colorado’s law differs

  in that this 100-foot requirement applies only in urban or

  metropolitan areas and that a longer, 200-foot requirement applies

  on any highway that is four-laned and/or has a posted speed limit

  exceeding forty miles per hour. § 42-4-903(2).)

¶ 30   The Noble court noted that Alaska’s provisions mirror those of

  the 1969 Uniform Vehicle Code, which was drafted before

  roundabouts became widespread. 

. It further

  noted that the uniform code had last been amended in 2000, and

  that none of the 2000 amendments mentioned roundabouts. 

 It

  cited sources indicating that, as of 1997, a few years before the

  most recent amendments, there were only three dozen roundabouts

  in the entire nation. 

 Although none of those was in Alaska,

  according to one of the cited sources, ten were in Colorado. Transp.

  Research Bd., Modern Roundabout Practice in the United States 14

  (1998), https://perma.cc/5S4M-JN7P.

¶ 31   The point, the court explained, is that the uniform code

  provisions cannot be readily applied to roundabouts because they

  were drafted at a time when roundabouts weren’t common. Noble,

                                    15
  

. This limitation applies equally to Colorado’s

  signaling provisions, which likewise are based on and similar to the

  model code provisions. See § 42-4-102 (legislative declaration

  stating a purpose of “conforming, as nearly as possible, certain of

  the traffic laws of this state with the recommendations of the

  national committee of uniform traffic laws and ordinances as set

  forth in the committee’s ‘Uniform Vehicle Code’”); see also Nat’l

  Comm. of Unif. Traffic Laws & Ordinances, Uniform Vehicle Code

  and Model Traffic Ordinance § 11-604(a)-(b) (1969),

  https://perma.cc/TW3U-QQUJ (uniform code provisions nearly

  identical to those in section 42-4-903(1)-(2)).

¶ 32   The Noble court further elaborated on why existing signaling

  laws don’t readily apply to roundabouts. 

. For

  instance, the court explained, while one could view movement into a

  roundabout as movement right or left upon a roadway (for which a

  turn signal is required), it was more accurate to view such

  movement as following a curve in the roadway (for which a turn

  signal is not required). 

 And so “[i]t seems counter-intuitive to

  require all motorists to activate their right-turn signals when

  entering a roundabout if they simply wish to drive around the

                                    16
  center island and continue in their original direction of travel.” 

  Moreover, “if a motorist did activate their right-turn signal, this

  right-turn signal might well confuse other motorists who were

  already inside the roundabout, or who were waiting to enter the

  roundabout from a different direction,” and who “might easily

  suppose that the signaling motorist actually intended to turn right

  (onto an intersecting road) rather than continuing straight through

  the roundabout.” 

¶ 33   Because of such difficulties with applying existing law to

  roundabouts, the court went on, some states had enacted new laws

  or created websites or informational pamphlets directly addressing

  the issue. Id.; see also Nickerson v. Portland Police Bureau, No. CIV.

  08-217-HU, 

, at *5 (D. Or. Sept. 30, 2008)

  (unpublished order) (reviewing a challenge to an Oregon law directly

  addressing signaling in roundabouts). In Alaska, the legislature

  hadn’t passed any laws on point, the department of transportation

  hadn’t provided any guidance, and a university website had

  indicated that motorists on campus “will want to” signal when they

  exit a roundabout. Noble, 

. “The result is that no

  one can determine, with any degree of surety, what rules apply.” 

                                     17
  So, too, in Colorado, where there are no laws or departmental

  guidance directly on point and the driver handbook doesn’t indicate

  whether signaling is required in roundabouts. See Colo. Dep’t of

  Rev., Div. of Motor Vehicles, Colorado Driver Handbook 19 (2017),

  https://perma.cc/763H-TPYS (stating, as to roundabouts, only that

  drivers should “[y]ield to traffic already within the rotary island” and

  “[d]rive to the right and watch for directional signs and signals”).

¶ 34   Finally, the Noble court remarked that the required signaling

  distance of 100 feet can’t readily be applied to roundabouts, where

  entrances and exits are often less than 100 feet apart. 

. As a result, signaling for that length of time at a roundabout

  could be confusing and potentially dangerous. 

 This concern

  similarly applies to Colorado, where signaling distances, though not

  applicable in rural areas, are generally 100 feet (or 200 feet for any

  roundabouts that may exist on four-lane highways or highways

  with posted limits above forty miles per hour).

¶ 35   For all these reasons, the court in Noble concluded that there

  was “no clear way to apply the signaling provisions of [state law] to

  roundabouts.” 

 And because any attempt at clarification would

  amount to “creating new rules, based on a weighing of facts and

                                    18
  policies that is normally entrusted to legislatures or executive

  agencies,” the court declined to stretch the language of the statute

  to try to make it apply to roundabouts. 

 Instead, the court

  encouraged the legislature or department of public safety to address

  the issue if they feel it appropriate to do so. 

¶ 36   The Indiana Court of Appeals recently applied similar

  reasoning in considering this same issue under its state’s laws.

  State v. Davis, 

, 347-49 (Ind. Ct. App. 2020). The

  Davis court noted that the state’s traffic laws expressly addressing

  roundabouts don’t touch on signaling; its general provisions on

  signaling were enacted before roundabouts became widespread in

  the state; motorists entering a roundabout are simply following the

  curve of the road, which would make use of a signal “nonsensical”;

  requiring the use of a signal for exiting a roundabout would be

  “problematic” because it would be unclear how and when the

  motorist would need to signal; and, with the multitude of

  roundabout configurations across the state, it would be difficult to

  ascertain just how to apply existing law. 

 And, like the Alaska

  court, it ultimately concluded that state law on signaling doesn’t

  apply to roundabouts and that it is up to the legislature, not the

                                     19
  court, to promulgate rules for roundabouts if it chooses to do so.

  Id. at 349.

¶ 37   We find the analysis in Noble and Davis persuasive and

  conclude for the same reasons that section 42-4-903(1) does not

  apply to motorists entering or exiting a roundabout.

¶ 38   The one notable difference in Colorado is that a failed bill in

  2017 would have expressly provided that turn signals are not

  required in roundabouts. S.B. 17-059, 71st Gen. Assemb., 1st Reg.

  Sess. The bill summary suggests that its proponents believed

  existing law does require signaling in roundabouts. See S.B.

  17-059, 71st Gen. Assemb., 1st Reg. Sess. (as introduced),

  https://perma.cc/6LPB-573N (“Currently, a person must signal an

  intention to turn before turning or changing lanes while driving a

  vehicle. The bill exempts motor vehicles that are using a

  roundabout unless otherwise posted.”). But the bill died in the

  Senate and was never introduced in the House. See S. Journal,

  71st Gen. Assemb., 1st Reg. Sess. 178 (Feb. 10, 2017).

¶ 39   This unsuccessful legislative proposal doesn’t affect our

  interpretation of existing law. “[T]he ‘interpretation placed upon an

  existing statute by a subsequent group of [legislators] who are

                                    20
  promoting legislation and who are unsuccessful has no persuasive

  significance.’” Minto v. Sprague, 

 (Colo. App.

  2005) (quoting United States v. Wise, 

 (1962)); see

  also In re Marriage of Heupel, 

, 570 n.10 (Colo. 1997)

  (“[W]hile ‘unsuccessful attempts to amend proposed legislation

  during the process of enactment’ is relevant in interpreting the

  adopted measure, the same does not hold true for ‘unsuccessful

  attempts to amend a measure passed by a previous legislative

  session.’” (quoting Tahoe Reg’l Planning Agency v. McKay, 

 (9th Cir. 1985))).

¶ 40   Accordingly, we reverse the traffic infraction for failure to

  signal.

             B.   Reasonable Suspicion for the Traffic Stop

¶ 41   Mr. McBride next contends that the officers lacked probable

  cause for the traffic stop. We disagree.

¶ 42   A trial court’s order on a motion to suppress presents a mixed

  question of law and fact. People v. Burnett, 

. We

  accept the trial court’s factual findings if they are supported by

  competent evidence on the record, but we assess the legal



                                    21
  significance of those facts de novo. 

 We also review related

  issues of statutory interpretation de novo. 

¶ 43   The trial court denied the motion to suppress based on a

  finding that officers had reasonable suspicion to conclude that

  Mr. McBride violated two traffic provisions — the tail lamp provision

  and the signaling provision. The evidence presented at the

  suppression hearing, like the evidence at trial, established that the

  Lincoln’s tail lamps emitted both red and white light. Because we

  have concluded that this violates section 42-4-206(1), there was

  sufficient basis for the stop. Accordingly, although Mr. McBride

  didn’t violate the signaling provision, we needn’t consider whether

  officers nonetheless had a reasonable basis for concluding he may

  have done so.

                              C.   POWPO

¶ 44   Finally, Mr. McBride contends that the evidence was

  insufficient to support the POWPO conviction — specifically, the

  required element that he knowingly possessed a firearm. We agree.




                                    22
                        1.     Additional Facts

¶ 45   When Mr. McBride was pulled over in the Lincoln, he was

  riding with a passenger, M.S., seated in the front passenger seat.

  The car wasn’t registered to either of them.

¶ 46   The arresting officer didn’t see Mr. McBride or M.S. make any

  furtive movements, as if to hide evidence, while Mr. McBride was

  pulling the car over. Nor did the officer see any guns when he

  looked into the car upon making initial contact with Mr. McBride or

  upon returning to the car to arrest Mr. McBride (after discovering

  the outstanding warrant). Mr. McBride didn’t attempt to flee but

  cooperated with officers during the arrest.

¶ 47   Later, in a full search of the car, officers found a handgun in

  the crevice between the driver and front passenger seats, under

  M.S.’s purse. The inside of the car was messy, with items strewn

  about, making it difficult to discern specific items. And the gun

  wasn’t visible, even from inside the car, until the purse was moved.

¶ 48   There was no evidence that the gun was registered or

  otherwise belonged to Mr. McBride or that it was stolen. There was




                                   23
  also no evidence that Mr. McBride’s fingerprints or DNA were found

  on the gun or on any other items in the car.6

                        2.     Standard of Review

¶ 49   In reviewing a sufficiency of the evidence challenge, we review

  the record de novo to determine whether the evidence presented

  was sufficient in both quantity and quality to sustain the

  defendant’s conviction. Clark v. People, 

 (Colo.

  2010); see also McCoy, ¶ 37.

¶ 50   Under the applicable substantial evidence test, we consider

  “whether the relevant evidence, both direct and circumstantial,

  when viewed as a whole and in the light most favorable to the

  prosecution, is substantial and sufficient to support a conclusion

  by a reasonable mind that the defendant is guilty of the charge

  beyond a reasonable doubt.” Clark, 

 (quoting

  People v. Bennett, 

, 

 (1973)).

  The relevant question under this test is “whether, after viewing the

  evidence in the light most favorable to the prosecution, a rational


  6 One of the officers testified that at one point during the traffic stop
  M.S. pretended to cry and claimed everything in the car belonged to
  Mr. McBride. But M.S. didn’t testify at trial, and the People don’t
  rely on this evidence to support the POWPO conviction.
                                     24
  trier of fact could have found the essential elements of the crime

  beyond a reasonable doubt.” 

 “[W]e must give the prosecution

  the benefit of every reasonable inference which may be fairly drawn

  from the evidence.” Id. at 1292. However, “there must be a logical

  and convincing connection between the facts established and the

  conclusion inferred.” Id. “If the evidence is such that reasonable

  jurors must necessarily have a reasonable doubt, then the evidence

  is insufficient to sustain the defendant’s conviction.” Id.

                            3.     Application

¶ 51   A person commits the crime of POWPO if that person

  “knowingly possesses, uses, or carries upon his or her person a

  firearm . . . subsequent to the person’s conviction for a felony . . .

  under Colorado or any other state’s law or under federal law.”

  § 18-12-108(1), C.R.S. 2019.

¶ 52   The question in this case is whether the prosecution presented

  sufficient evidence to prove, beyond a reasonable doubt, that

  Mr. McBride knowingly possessed the handgun found in the car he

  was driving. We conclude that it did not.

¶ 53   “‘[P]ossession,’ as it is used in [POWPO], is the actual or

  physical control of the firearm.” People v. Allgier, 

,

                                     25
  ¶ 65 (quoting Beckett v. People, 

 (Colo. 1990)). “[A]

  defendant need not have had exclusive control of the firearm to be

  found guilty of possessing it.” Id. at ¶ 66.

¶ 54   Nonetheless, the possession must be “knowing.” See People v.

  Tenorio, 

, 

 (1979) (“To convict

  one of possessing a weapon, the jury must find, not mere

  possession, but that the defendant ‘knowingly’ possessed the

  weapon and that he understood that the object possessed was a

  weapon.”); see also People v. Van Meter, 

  (trial court didn’t plainly err by instructing the jury that

  “[p]ossession constitutes a voluntary act if the actor was aware of

  his physical possession or control thereof for a sufficient period to

  have been able to have terminated it”). “A person acts ‘knowingly’

  . . . with respect to conduct or to a circumstance described by a

  statute defining an offense when he is aware that his conduct is of

  such nature or that such circumstance exists.” § 18-1-501(6),

  C.R.S. 2019.

¶ 55   In the related context of knowing possession of controlled

  substances, it is well settled that “the ‘controlled substance need

  not be found on the person of the defendant, as long as it is found

                                     26
  in a place under his or her dominion and control.’” People v.

  Yeadon, 

, ¶ 24 (quoting People v. Atencio, 

 (Colo. App. 2005)), aff’d on other grounds, 

. “If a

  ‘defendant has exclusive possession of the premises in which drugs

  are found, the jury may infer knowledge from the fact of

  possession.’” 

 at ¶ 25 (quoting People v. Baca, 

 (Colo. App. 2004)). For instance, “[k]nowledge can be inferred

  from the fact that the defendant is the driver and sole occupant of a

  vehicle, irrespective of whether he is also the vehicle’s owner.” 

  (quoting Baca, 

). “Conversely, ‘where a person is

  not in exclusive possession of the premises in which drugs are

  found, such an inference may not be drawn ‘unless there are

  statements or other circumstances tending to buttress the

  inference.’” 

 at ¶ 26 (quoting People v. Stark, 

  (Colo. 1984)).

¶ 56   Thus, it is clear, in the context of knowing possession of a

  controlled substance, that where a defendant is not in exclusive

  possession of a car or premises in which an illegal object is found,

  “[m]ere presence without another additional link in the evidence will

  not sustain a conviction for possession.” 

 (quoting Feltes v.

                                    27
  People, 

, 

 (1972)). We find

  this equally true in the context of knowing possession of a firearm

  and, therefore, we apply the same standards here.

¶ 57   Indeed, in both contexts, divisions of this court have applied

  similar reasoning in affirming convictions for knowing possession

  where the prosecution presented evidence of something more than a

  defendant’s mere proximity to a gun or drugs. See, e.g., People v.

  Kessler, 

 (the defendant sat in a car for

  much of the day just inches away from the cocaine found uncovered

  and plainly visible in the console); Yeadon, ¶ 28 (the defendant was

  in direct proximity to a visible bag of methamphetamine in the

  driver’s side door compartment of the car he’d been driving before

  he fled); People v. Warner, 

 (Colo. App. 2010)

  (the defendant exercised dominion and control over the residence

  where two guns were found, he was seen holding one of the guns

  the day before it was seized and later sitting at a table inside the

  residence with the same gun, and he owned the safe where the

  second gun was found); People v. Jackson, 

 (Colo.

  App. 2004) (the victim identified the gun as belonging to the

  defendant); People v. Tramaglino, 

 (Colo.

                                    

) (eyewitness testified that the defendant had the gun in

  his possession, and it was later found in his car).

¶ 58   Here, however, the prosecution didn’t offer evidence of that

  “something more.” For instance, there was no evidence that

  Mr. McBride owned or had exclusive possession of the car, that he

  owned or had stolen the gun, that he had ever touched the gun,

  that when officers approached he tried to flee or made furtive

  movements in an effort to hide the gun, that the gun was in plain

  view in the car, or that he made any statements indicating his

  knowledge of the gun’s presence in the car.

¶ 59   In this circumstance, where the defendant is not in exclusive

  possession of the car or premises in which an object is found and

  there is no evidence aside from mere proximity linking the

  defendant to that object, a conviction premised on knowing

  possession cannot stand. This is because any finding that the

  defendant knowingly possessed the object would necessarily be

  based on speculation. But “verdicts in criminal cases may not be

  based on guessing, speculation, or conjecture,” and “a modicum of

  relevant evidence will not rationally support a conviction beyond a



                                    29
  reasonable doubt.” People v. Sprouse, 

 (Colo.

  1999).

¶ 60   That critical difference is what distinguishes this case from

  People v. Rivera, 

 (Colo. App. 1988), rev’d on other

  grounds, 

 (Colo. 1990), on which the People rely. In

  Rivera, the defendant accompanied his wife when she bought the

  gun in question and then was found in his home with the gun in

  plain view within arm’s reach. Id. at 628. No such facts are

  present here. In particular, no evidence suggests that Mr. McBride

  had any prior knowledge of the gun or that the gun was in his plain

  view when it was discovered.

¶ 61   That difference also sets this case apart from People v. Donald,

  in which our supreme court recognized that “[k]nowledge . . . may

  be inferred from circumstantial evidence.” 

. The

  question in Donald was whether the prosecution could establish the

  required element of knowledge — in that case, knowledge of the bail

  condition prohibiting the defendant from leaving the state without

  permission — through stacked inferences. Id. at ¶¶ 3-11, 26. The

  court held that inference stacking is not prohibited but is simply



                                   30
  one factor a court may consider in determining whether evidence

  satisfies the substantial evidence test. Id. at ¶¶ 26-31.

¶ 62   Applying this framework, the court in Donald held that

  (1) sufficient evidence supported an inference that the defendant

  signed his bond paperwork, including the bondsperson’s testimony

  that only by accident would anyone be released from jail without

  signing the paperwork, defense counsel’s concession that the

  defendant signed the paperwork, and a copy of the signed

  paperwork; and (2) sufficient evidence supported an inference that

  the defendant saw and was aware of the bond condition, including

  the fact that the bond paperwork consisted of a single page and that

  the subject condition was the first condition listed under a bolded

  heading of additional conditions. Id. at ¶¶ 38-41.

¶ 63   Here, the issue is not one of stacked inferences — just a single

  inference that lacks any direct or circumstantial evidence, aside

  from mere proximity, to support it. Still, some of the reasoning

  from Donald might apply if, for instance, the gun had been found in

  plain view or if the car had been in Mr. McBride’s exclusive

  possession. Then there could be a question whether Mr. McBride

  had actual knowledge of the gun’s presence, and Donald could

                                    31
  support an inference of actual knowledge based on those

  circumstances. But no such circumstances exist here.

¶ 64   Indeed, in similar cases, other courts have reversed

  firearm-related convictions where the prosecution didn’t establish

  anything more than the defendant’s mere proximity to the firearm

  in a car. For instance, in Commonwealth v. Snow, which is

  remarkably similar to this case, the defendant was driving a car

  that wasn’t his, there were other passengers in the car, no one

  made any furtive movements as the car was being pulled over, and

  police ultimately found a gun that was not plainly visible but was

  tucked between the driver’s seat and the front console. 

 (Mass. App. Ct. 2010). Under those circumstances, the

  court held that “[t]he evidence was insufficient ‘to warrant a

  reasonable inference of personal knowledge of the presence of the

  gun,’ and the conviction [for firearm offenses] cannot stand.” 

 (citation omitted).

¶ 65   Other cases are in accord. See, e.g., United States v. Hishaw,

  

 (10th Cir. 2000) (evidence showed only that a

  gun was found under the passenger’s seat of a car the defendant

  didn’t own but was driving); Jones v. State, 

, 675-76

                                    32
  (Ind. Ct. App. 2010) (evidence showed only that the defendant was

  test-driving a customer’s car in which a gun was found under the

  driver’s seat and that he made furtive gestures that appeared to be

  related to hiding alcohol in the car); State v. Harris, 

 (Minn. 2017) (evidence showed only that the defendant

  was driving a car he didn’t own with two passengers, he continued

  driving for a few blocks after an officer activated his vehicle lights

  and siren, the officer saw movement in the car, a gun was

  eventually found in a void between the headlining and roof of the

  car near the sunroof, where it wasn’t immediately visible, and DNA

  testing on the gun was inconclusive); Hancock v. Commonwealth,

  

 (Va. Ct. App. 1995) (evidence showed only

  that the defendant was riding in the back seat of a car in which a

  firearm was found in front of him under the driver’s seat and “[n]o

  evidence established that [he] ever held the firearm, saw it, knew it

  was present, or exercised any dominion and control over it”).

¶ 66   The facts here demand the same result. Accordingly, we

  conclude that the evidence is insufficient to support the POWPO

  conviction, and we reverse that conviction.



                                     33
                             III.   Conclusion

¶ 67   We affirm the traffic infraction for the tail lamp violation but

  reverse the traffic infraction for failure to signal and the judgment of

  conviction for POWPO.

       JUDGE J. JONES and JUDGE WELLING concur.




                                     34