Peo v. Wagoner

23CA0252 Peo v Wagoner 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0252
Mesa County District Court No. 22CR329
Honorable Richard T. Gurley, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Phillip Dean Wagoner,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE GOMEZ
Freyre and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 29, 2025

Philip J. Weiser, Attorney General, Austin R. Johnston, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Claire Pakis, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Phillip Dean Wagoner, appeals the judgment of

conviction entered upon jury verdicts finding him guilty of unlawful

possession of a controlled substance (methamphetamine) and

possession of drug paraphernalia. Specifically, Wagoner contends

that the trial court abused its discretion by declining to impose

harsher sanctions on the prosecution for its discovery violations.

We disagree and, therefore, affirm the judgment.

I. Background

¶2 Early one morning, a Mesa County patrol deputy pulled over a

car for failing to signal for a turn and having a brake light out.

There were three people inside the car, including Wagoner, who was

sitting in the rear passenger seat.

¶3 During the traffic stop, another officer shined his flashlight

into the car and noticed a small plastic bag in the back seat. At

that point, the deputy asked everyone to step out of the car. Upon

looking into the car, the deputy saw three bags filled with a white

powdery substance: a small bag on the back seat where Wagoner

had been sitting, a medium bag on the floor where Wagoner’s feet

had been, and a large bag under the front passenger seat. A search

of the car also revealed a glass pipe under the passenger seat.

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Because the officers were unsure whom the items belonged to, they

arrested all three people from the car.

¶4 Later testing confirmed that all three bags contained

methamphetamine: the small bag contained less than one gram, the

medium bag contained about fourteen grams, and the large bag

contained about sixty-five grams.

¶5 Wagoner was charged with possession of a controlled

substance with intent to distribute and possession of drug

paraphernalia. The prosecution theorized that all three bags of

methamphetamine and the pipe belonged to Wagoner. Wagoner’s

theory of defense was that, given the evidence of other

methamphetamine bags, drug paraphernalia, and a bundle of

empty bags found on the front passenger’s person and in her purse,

the methamphetamine and pipe at issue were likely hers.

¶6 Less than a week before trial, defense counsel learned that the

front passenger of the car had pleaded guilty several weeks earlier

to possession of a controlled substance with intent to distribute —

potentially including, according to the defense, some of the same

bags of methamphetamine at issue in this case. The prosecution

hadn’t disclosed that plea. It also hadn’t disclosed other evidence

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relating to the passenger, including discovery regarding her prior

convictions and other pending charges.

¶7 The next day, defense counsel moved for dismissal of the case

against Wagoner as a discovery sanction. The trial court

determined that the prosecution had indeed committed discovery

violations but declined to dismiss the case against Wagoner

because that was “too extreme” of a sanction. However, just before

the start of trial, the court indicated that “there are other options

available to the [c]ourt” and inquired whether the defense wanted to

make “any other request.” Defense counsel asked for only two

specific sanctions: a modification to Wagoner’s bond, which the

court granted, and a jury instruction, which the court took under

advisement. The court later declined to give Wagoner’s tendered

jury instruction.

¶8 At the close of trial, the court granted Wagoner’s motion for

judgment of acquittal on the possession with intent to distribute

count but let the lesser included offense of unlawful possession go

to the jury. The jury convicted Wagoner of both remaining offenses,

finding that all three methamphetamine bags and the pipe belonged

to him.

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II. Sanctions for Discovery Violations

¶9 On appeal, Wagoner contends that the trial court abused its

discretion by not imposing harsher sanctions on the prosecution for

its discovery violations. Specifically, Wagoner asserts that the court

should have dismissed the case against him or, alternatively,

provided the jury with his tendered instruction. We set forth the

relevant legal standards and then address each contention in turn.

A. Legal Standards

¶ 10 Under Brady v. Maryland, 373 U.S. 83, 87 (1963), and Crim.

P. 16(I)(a)(2), the prosecution is obligated to disclose any

information within its possession or control that tends to negate the

defendant’s guilt of a charged offense. As the trial court recognized,

this obligation encompasses impeachment evidence. See People v.

Lincoln, 161 P.3d 1274, 1280 (Colo. 2007). The prosecution must

disclose such information “as soon as practicable but not later than

35 days before trial.” Crim. P. 16(I)(b)(3).

¶ 11 If the prosecution fails to comply with these discovery

obligations, the trial court may order such sanctions as it “deems

just under the circumstances.” Crim. P. 16(III)(g). Because the core

purpose of the discovery process is to “advance the search for

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truth,” People v. Dist. Ct., 793 P.2d 163, 168 (Colo. 1990), the court

must shape remedies with an eye toward “protecting the integrity of

the truth-finding process and deterring discovery-related

misconduct,” People v. Whittington, 2024 CO 65, ¶ 19 (quoting

People v. Lee, 18 P.3d 192, 196 (Colo. 2001)).

¶ 12 Sanctions generally should be curative, meaning the court’s

goal in imposing a sanction should be to cure any prejudice from

the discovery violation and “to ‘restore a “level playing field,”’

without affecting the evidence or the merits of the case.” People v.

Mendez, 2017 COA 129, ¶ 33 (quoting Lee, 18 P.3d at 196). But,

where “willful misconduct or a pattern of neglect demonstrat[es] a

need for modification of a party’s discovery practices,” sanctions

may also be deterrent or punitive. Lee, 18 P.3d at 196; see also

Whittington, ¶ 19; People v. Tippet, 2023 CO 61, ¶ 53.

¶ 13 Either way, a court should impose “the least severe sanction

that will ensure that there is full compliance with the court’s

discovery orders.” People v. Cobb, 962 P.2d 944, 949 (Colo. 1998)

(quoting Dist. Ct., 793 P.2d at 168).

¶ 14 We review a trial court’s resolution of discovery issues and

imposition of sanctions for an abuse of discretion. Tippet, ¶ 34.

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Therefore, we won’t disturb a court’s choice of discovery sanction

unless the sanction is manifestly arbitrary, unreasonable, or unfair

or is based on an erroneous view of the law. See id. at ¶ 35.

B. Case Dismissal

¶ 15 Wagoner contends that the trial court abused its discretion by

declining to dismiss the case against him because the prosecution’s

discovery violations constituted willful misconduct and a pattern of

neglect. We disagree.

¶ 16 Dismissal may be a proper remedy to deter future discovery-

related misconduct if a party has engaged in willful misconduct or a

pattern of neglect regarding its discovery obligations. See Lee, 18

P.3d at 196-97. However, in the absence of such misconduct,

“dismissal as a sanction for a discovery violation is usually beyond

the discretion of the trial court.” People v. Daley, 97 P.3d 295, 298

(Colo. App. 2004).

¶ 17 In its ruling, the trial court reasoned,

Defendant maintains that the District
Attorney’s failure to provide impeachment
information in the form of the [passenger’s]
plea agreement and attendant documents was
willful while the District Attorney maintains
the failure to provide them was an inadvertent
oversight. The requests for information from

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the District Attorney were explicit and the
District Attorney admitted to there being a
discovery violation by not providing the plea
agreement and the amended complaint in the
[passenger’s] case.

....

The court finds violations to the extent that
th[e] [requested] information has not been
previously timely provided. When weighing the
panoply of sanctions available to the court, the
court believes that the outright dismissal of
the charges in this case to be too extreme.
Consequently, the only explicit request made
of the court of dismissal of the case with
prejudice is denied.

¶ 18 While the court found that the prosecution had indeed

committed discovery violations, it didn’t make a finding as to

whether those violations were the result of any willful misconduct

or pattern of neglect. Wagoner presents facts about the defense’s

repeated requests for information about the passenger’s criminal

cases, the prosecutor’s personal knowledge of the status of the

passenger’s related case due to his active role in that case, and the

prosecutor’s failure to provide some of the requested information

until the first day of trial — all of which might support such

findings. Meanwhile, the People present other facts indicating that

the discovery violation was inadvertent, militating against such

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findings. Regardless, it is not our role to make such findings;

instead, our role is only to “consider[] ‘whether the trial court’s

decision fell within a range of reasonable options.’” Tippet, ¶ 64

(quoting Churchill v. Univ. of Colo., 2012 CO 54, ¶ 74).

¶ 19 Absent a finding of willful misconduct or a pattern of neglect,

we cannot conclude that the court abused its discretion by refusing

to dismiss the case against Wagoner. See Whittington, ¶¶ 23-24 (a

court abused its discretion by imposing a serious discovery

sanction without having found any willful misconduct or pattern of

discovery violations); see also Tippet, ¶ 68 (“[A] complete dismissal

of the case would have been the most severe sanction, and . . .

would not have served the truth-seeking purpose of the criminal

justice system.”). Nor can we say that declining to dismiss the case

as a sanction fell outside the range of reasonable options before the

trial court, particularly where other sanctions — such as a

continuance — likely could have cured any prejudice. See Lee, 18

P.3d at 198 (a court abused its discretion by ordering a severe

discovery sanction where “there was no indication that a . . .

continuance would have been inadequate to compensate for any

violation or would have unfairly prejudiced the defendant”).

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C. Jury Instruction

¶ 20 Alternatively, Wagoner contends that the trial court abused its

discretion by declining to give his tendered jury instruction about

the prosecution’s discovery violations. Again, we disagree.

¶ 21 During the trial, defense counsel submitted the following

proposed instruction:

In every criminal case in Colorado, the
prosecution is required to disclose evidence
and information to the defense within certain
time frames. Further, the prosecution is
always required to turn over material that is
exculpatory, or favorable, to someone accused
of any crime in Colorado that is within their
possession and control.

In this case, the prosecution has made grave
mistakes by repeatedly failing to timely
disclose information to the defense. Further,
the prosecution has not turned over
exculpatory evidence within their possession
and control to Mr. Wagoner in a timely
manner. The government’s failure to timely
comply with its constitutional obligations can
lead you to find reasonable doubt as to the
guilt of Mr. Wagoner.

¶ 22 Defense counsel asserted that this instruction was an

appropriate remedy for the discovery violations because she didn’t

have sufficient time to explore whether to call the passenger as a

witness at trial. The prosecution didn’t call the passenger as a

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witness. In questioning conducted outside the presence of the jury,

the passenger acknowledged the methamphetamine, drug

paraphernalia, and empty bags found on her person and in her

purse but said the three bags of methamphetamine at issue in this

case were not hers. Thereafter, the defense opted not to call her as

a witness.

¶ 23 After some consideration, the court declined to give the

defense’s instruction, even in modified form, explaining that the

instruction “doesn’t really point the jury to any particular evidence,”

and thus “kind of just hangs there,” and that “all [the] evidence

related to impeachment materials for witnesses who did not testify.”

¶ 24 We cannot conclude that the court abused its discretion by

declining to give Wagoner’s tendered instruction. It was within the

court’s discretion to decline to give an instruction that would’ve

lacked any context. In particular, given that the passenger didn’t

testify at trial, it was reasonable for the court to conclude that the

proposed instruction was out of place and unwarranted. In that

regard, it was reasonable to conclude that the instruction wouldn’t

have cured any prejudice from the discovery violation and wouldn’t

have “‘restore[d] a “level playing field,”’ without affecting the

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evidence or the merits of the case.” Mendez, ¶ 33 (quoting Lee, 18

P.3d at 196).

¶ 25 Finally, to the extent that Wagoner complains that the trial

court failed to remedy the harm caused by the prosecution’s late

disclosure, we note that the court could only rule on the specific

sanctions requests in front of it. Some other sanction — such as a

continuance — may have remedied the harm, but Wagoner didn’t

ask for any other sanctions. Indeed, Wagoner expressly asked that

the trial not be continued, arguing that “a continuance of this case

would only further prejudice Mr. Wagoner” and that “[w]hile a

continuance does provide Mr. Wagoner a remedy for his counsel to

be fully prepared, it rewards [the prosecutor] for his misconduct by

giving him more time to prepare for the trial as well.” Thus,

Wagoner concluded, “[t]his egregious conduct cannot be rewarded

by providing the prosecution more time to investigate and prepare

their case for trial.” Having not requested the one remedy most

likely to cure any harm caused by the discovery violation, Wagoner

cannot now fault the trial court for not imposing a curative remedy.

III. Disposition

¶ 26 The judgment is affirmed.

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JUDGE FREYRE and JUDGE MEIRINK concur.

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