Peo v. Simmons

22CA1243 Peo v Simmons 07-31-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1243
El Paso County District Court No. 20CR1819
Honorable Marcus S. Henson, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Leo Simmons,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV
Opinion by JUDGE FREYRE
Gomez and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced July 31, 2025

Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Tillman Clark, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Leo Simmons, appeals his jury convictions of four

counts of possession of a controlled substance with the intent to

distribute, one count of unlawful possession of a controlled

substance, and one count of possession of drug paraphernalia. We

affirm.

I. Background

¶2 Police officers observed a parked car that did not have “any

front or rear plates” and a silver minivan in a parking lot at

Memorial Park in Colorado Springs. After briefly speaking with the

driver of the minivan, officers approached Simmons, who was

seated in the driver’s seat of his parked car. Upon approaching the

car, officers noticed a “cigarette box that was laying right

underneath the driver’s door.” The two police officers then

instructed Simmons to exit his vehicle. As Simmons exited, he

looked down at the cigarette box with “an emphasis on not stepping

on the box, [and] kind of walking around it,” which prompted the

officers to collect the cigarette box from the ground.

¶3 Upon further examination, officers observed that the cigarette

box had been “recently opened or recently used” and “was pretty

much intact.” It was not “crumpled” or “ran over” or “soiled by the

1
weather conditions.” Inside the box, officers found “some plastic

baggies containing a rock-like substance.” Police officers then

conducted a search of Simmons’ car and found “suspected

prescription narcotics.” During a pat-down search, officers found

“baggies” in Simmons’ pocket that were “similar to the baggies that

had the white substance in the [cigarette box].” In total, the officers

recovered 4.62 grams of cocaine, 3.49 grams of oxycodone, and

0.22 grams of amphetamine from Simmons and the area around his

car.

¶4 A jury convicted Simmons as charged, and the prosecution

dismissed the added habitual criminal counts before sentencing.

The trial court sentenced him to community corrections.

II. Substitute Counsel

¶5 Simmons contends that his Sixth Amendment right to conflict-

free counsel was violated when the trial court declined to assign

him a new attorney. He argues that a conflict of interest existed

between him and trial counsel because (1) counsel refused to

collaterally attack his prior convictions and (2) counsel’s scheduled

surgery impaired counsel’s ability to provide effective

representation. We are not persuaded.

2
A. Additional Facts

¶6 At a pretrial hearing, Simmons told the trial court that he

wanted new counsel. He said he wanted a lawyer who would “fight

his priors,” but that his counsel said he was “appointed on this case

and not his priors.” The trial court asked Simmons if he wanted a

conflict hearing, to which Simmons responded yes.

¶7 At the conflict hearing, Simmons explained that he wanted his

counsel to “fight his priors” because he believed his prior

convictions could be used to enhance his sentence. Trial counsel

responded that he had looked into Simmons’ prior convictions and

discovered that in his most recent conviction, all the issues had

been litigated, the Colorado Supreme Court had denied certiorari,

and final judgment had entered. Counsel said that he had

previously had “at-length discussions with [Simmons] about his

criminal history” and how there was nothing the public defender’s

office could do with his previous convictions considering that his

most recent conviction “was affirmed through our highest court”

and his cases from 1990, 1996, and 1997 were time barred. The

trial court told Simmons that certain strategic decisions were within

3
his counsel’s discretion and that collateral attacks of prior

convictions were “not always easily litigated” or successful.

¶8 The trial court determined that Simmons did not have an

actual conflict with counsel but rather a “legal dilemma” regarding

his prior convictions. Simmons insisted that his most recent case

was “remanded back to the lower courts” but was “never taken care

of.” The trial court verified that Simmons’ most recent conviction

was affirmed and never remanded. After continuous requests for

substitute counsel and subsequent denials, Simmons proceeded

pro se.

¶9 Shortly before trial, Simmons moved for appointment of

counsel other than the public defender. The court explained that it

could only appoint the same attorney and that Simmons was not

entitled to court-appointed counsel of his choice. Simmons

declined the reappointment of the public defender and told the

court that he needed to “get a deposition” from witnesses and asked

how to do so. The court said it would not appoint advisory counsel

since Simmons had declined the public defender’s representation,

and it reset the trial date to allow Simmons to have more time to

prepare.

4
¶ 10 On the morning trial was scheduled to begin, Simmons said he

needed help with deposing a witness from one of his prior

convictions because he did not “want to approach the person

without the proper authorities being around.” Simmons waived his

right to a speedy trial, and the court granted a continuance so he

could subpoena the alleged witness.

¶ 11 At the next status conference, the court and the prosecutor

expressed concern about Simmons proceeding to trial pro se.

Simmons told the court there was “a possibility [that he needed] to

rethink it.” Simmons asked the court to appoint alternate defense

counsel, but the court denied this request and reminded Simmons

that his only option was his previous counsel because there was no

actual conflict.

¶ 12 At the next hearing, Simmons requested another continuance

to seek private counsel and again waived his right to a speedy trial.

The trial court reset the trial date and reminded Simmons that if he

remained indigent and applied for court-appointed counsel, the

court could only appoint previous counsel. Simmons said he

understood.

5
¶ 13 At the next hearing, Simmons appeared without counsel after

being unable to secure private counsel, and the court reappointed

prior counsel upon his request.

¶ 14 On the first day of trial, counsel told the court that he had a

previously scheduled surgery at the end of the week and that he

believed Simmons’ trial could be finished within the day. Counsel

also said that if the court waited until later in the week to begin the

trial, he did not feel comfortable moving forward.

¶ 15 Simmons’ trial lasted four days. Counsel represented

Simmons through the trial and to the beginning of jury

deliberations. On the final day of trial, another public defender

substituted for trial counsel, due to the scheduled surgery, and

received the jury’s verdict with Simmons.

B. Standard of Review and Applicable Law

¶ 16 The parties dispute preservation. While acknowledging that

Simmons’ contention regarding his request for substitute counsel is

preserved, the People assert that his argument concerning counsel’s

scheduled surgery was never raised below and is not preserved. We

agree that any conflict regarding counsel’s surgery was not properly

preserved and review that portion of Simmons’ contention for plain

6
error. See People v. Arzabala, 2012 COA 99, ¶ 83. An error is plain

if it is obvious and substantial and so undermines the fundamental

fairness of the trial as to cast serious doubt on the reliability of the

judgment of conviction. Hagos v. People, 2012 CO 63, ¶ 14.

¶ 17 We review a trial court’s decision to deny substitute counsel

for an abuse of discretion. People v. Weeks, 2015 COA 77, ¶ 101. A

trial court abuses its discretion when its ruling is manifestly

arbitrary, unreasonable, or unfair, or when it misapplies the law.

See People v. Johnson, 2021 CO 35, ¶ 16.

¶ 18 Although an indigent criminal defendant has a constitutional

right to counsel, they do not have a right to their counsel of choice.

U.S. Const. amends. VI, XIV; Colo. Const. art. II, § 16; see also

People v. Arguello, 772 P.2d 87, 92 (Colo. 1989). Moreover, the right

to counsel includes the effective assistance of counsel, “and does

not necessarily include ‘a meaningful attorney-client relationship.’”

Arguello, 772 P.2d at 92 (quoting Morris v. Slappy, 461 U.S. 1, 14

(1983)).

¶ 19 A conflict of interest exists when the attorney’s ability to

represent a client is materially limited by the attorney’s own

interests. People v. Stroud, 2014 COA 58, ¶ 38. To prove an actual

7
conflict of interest, a defendant must “identify something that

counsel chose to do or not do . . . and must show that the course

taken was influenced by that conflict.” Id. at ¶ 40 (quoting People v.

Kenny, 30 P.3d 734, 745 (Colo. App. 2000)).

¶ 20 Courts consider four factors in evaluating the constitutional

implications of a request for substitute counsel, including (1) the

timeliness of the defendant’s motion, (2) the adequacy of the court’s

inquiry, (3) whether the conflict between the defendant and their

attorney was so great that it resulted in a total lack of

communication or otherwise prevented an adequate defense, and

(4) whether the defendant substantially and unreasonably

contributed to the conflict with their attorney. People v. Bergerud,

223 P.3d 686, 695 (Colo. 2010); see also People v. Session, 2020

COA 158, ¶ 15.

¶ 21 As relevant here, on issues of trial strategy, defense counsel is

generally the “captain of the ship.” Arko v. People, 183 P.3d 555,

558 (Colo. 2008) (quoting Steward v. People, 498 P.2d 933, 934

(1972)). However, there are several constitutional limitations on

defense counsel’s ability to direct a trial, including whether to waive

a jury trial, whether the defendant will testify, whether the

8
defendant will plead guilty, and whether the defendant wishes to

appeal. Bergerud, 223 P.3d at 694-95. Such decisions are for the

defendant alone to make. Id.

C. Analysis

¶ 22 Concerning Simmons’ preserved conflict argument, we discern

no abuse of discretion in the court’s ruling for three reasons. We

further conclude that there is no plain error flowing from Simmons’

unpreserved argument regarding counsel’s scheduled surgery.

¶ 23 First, the record shows that counsel stated he had investigated

the prior convictions and told the court at the conflict hearing that

he saw no irregularities in them. Likewise, the record shows that

all of Simmons’ prior convictions became final judgments between

1989 and 2015. Thus, collateral attacks as to all of the convictions

were time barred under section 16-5-402(1), C.R.S. 2024, absent a

showing of excusable neglect or justifiable excuse. Simmons

alleged he had newly discovered evidence in the form of a state’s

witness who had changed her testimony. But he failed to identify

the witness, discuss the new statements, identify to which prior

conviction(s) the testimony pertained, or explain how such

testimony would have resulted in a different outcome. To warrant

9
suppression of a prior conviction, the accused must make a prima

facie showing of some constitutional violation. People v. Lemons,

824 P.2d 56, 57 (Colo. App. 1991) (citing People v. Romero, 767 P.2d

782 (Colo. App. 1988)). We conclude that Simmons failed to meet

this burden.

¶ 24 Second, Simmons has not demonstrated an actual conflict of

interest. A lawyer has a conflict of interest when their loyalties are

divided. See Colo. RPC 1.7, 1.9. An actual conflict of interest is

one that is real and substantial, whereas a potential conflict is one

that is possible, is nascent, or in all probability will arise. People v.

Kelling, 151 P.3d 650, 657 (Colo. App. 2006) (citing People v.

Harlan, 54 P.3d 871, 878 (Colo. 2002)). Neither the existence of

animosity between Simmons and counsel nor the pair’s asserted

strategic disagreements over Simmons’ prior convictions constitute

an actual conflict of interest requiring the appointment of substitute

counsel. See People v. Garcia, 64 P.3d 857, 864 (Colo. App. 2002)

(finding that the conflict between the defendant and his counsel

was a disagreement over strategy and thus did not require

appointment of new counsel); People v. Apodaca, 998 P.2d 25, 28

(Colo. App. 1999) (counsel’s personal disbelief of the defendant’s

10
version of the facts did not require court to appoint substitute

counsel based on an alleged conflict of interest).

¶ 25 Third, to the extent Simmons alleges a complete breakdown in

communications with counsel, we are not persuaded. Mere

communication difficulties do not demonstrate a complete

breakdown in communication. See People v. Thornton, 251 P.3d

1147, 1151 (Colo. App. 2010) (refusing to find a complete

breakdown in communication requiring substitute counsel even

though counsel admitted to “a lot of communication breakdowns”

because he assured the court he was in contact with the defendant

and continued to represent his interests); People v. Jenkins, 83 P.3d

1122, 1126 (Colo. App. 2003) (a complete breakdown in

communication was not established even where counsel met with

the defendant only once in nine months and had not discussed

potential witnesses with him or given him copies of discovery). The

record shows that Simmons and counsel continued to meet and to

argue over whether to collaterally attack the prior convictions,

demonstrating that a line of communication existed between the

two. See Bergerud, 223 P.3d at 693 (“On issues of trial strategy,

11
defense counsel is ‘captain of the ship.’” (quoting Arko, 183 P.3d at

558)).

¶ 26 Finally, we discern no prejudice flowing from counsel’s

scheduled surgery. The record shows that counsel completed the

trial before his scheduled surgery and that another public defender

appeared with Simmons to take the jury’s verdict the following day.

To the extent Simmons challenges the effectiveness of counsel due

to the pending surgery, this issue is best raised in a postconviction

proceeding hearing and not on direct appeal. See Kelling, 151 P.3d

at 655 (“[B]ecause of the need for a developed factual record, an

ineffective assistance of counsel claim should ordinarily be raised in

a postconviction proceeding, not on direct appeal.”). Under these

circumstances, we conclude there was no error, let alone plain

error.

III. Sufficiency of Evidence

¶ 27 Simmons next contends there is insufficient evidence to

support his convictions. In particular, he argues there is

insufficient evidence that links him to the cigarette box found under

his car. We disagree.

12
A. Standard of Review and Applicable Law

¶ 28 We review the record de novo to determine whether the

evidence before the jury was sufficient in both quantity and quality

to sustain a defendant’s conviction. Clark v. People, 232 P.3d 1287,

1291 (Colo. 2010). We must determine “‘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.’”

Id. (quoting People v. Bennett, 515 P.2d 466, 469 (1973)). In

making this determination, we must give the prosecution “the

benefit of every reasonable inference that might be fairly drawn

from the evidence.” People v. McIntier, 134 P.3d 467, 471 (Colo.

App. 2005).

¶ 29 As relevant here, to obtain a conviction for unlawful

possession of a controlled substance, the prosecution must prove

beyond a reasonable doubt that the defendant knowingly possessed

a controlled substance. See § 18-18-403.5(1), (2)(a), C.R.S. 2024.

“The ‘knowing’ element applies both to knowledge of possession and

to knowledge that the thing possessed is a controlled substance.”

13
People v. Perea, 126 P.3d 241, 244 (Colo. App. 2005) (citations

omitted). “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

circumstances exists.” § 18-1-501(6), C.R.S. 2024.

¶ 30 To prove possession, the prosecution must show that the

“defendant had ‘immediate and knowing control over’ the drugs.”

People v. Poe, 2012 COA 166, ¶ 15 (quoting Patton v. People, 35

P.3d 124, 131 (Colo. 2001)); see also People v. Villapando, 984 P.2d

51, 54 (Colo. 1999) (a defendant possesses a controlled substance

when (1) the defendant knows of the substance’s presence, (2) the

substance is immediately accessible, and (3) the defendant

exercises dominion or control over the substance). “A finding of

possession may be based on the jury’s reasonable inferences from

the evidence, including circumstantial evidence.” Poe, ¶ 15.

¶ 31 “A conviction for unlawful possession of a controlled

substance may be predicated on circumstantial evidence. The

controlled substance need not be found on the person of the

defendant, as long as it is found in a place under his or her

14
dominion and control.” People v. Atencio, 140 P.3d 73, 75 (Colo.

App. 2005).

B. Analysis

¶ 32 Simmons argues on appeal, as he did at trial, that he did not

have exclusive possession or control of the drugs, that other people

were in or near his car immediately before the police contacted him,

and that only circumstantial evidence was produced by the

prosecution. In essence, he alleges that his “mere presence” by the

drugs is insufficient to sustain his conviction. While we agree that

mere presence is insufficient to sustain a conviction without an

additional link in the evidence, we conclude the trial evidence,

including Simmons’ testimony, provided that additional link. See

Poe, ¶¶ 16-20 (where the defendant’s friend testified that she

brought drugs to his apartment without his knowledge, evidence

that the drugs were found in a one-bedroom apartment rented by

the defendant and conflicting testimony that there was no evidence

of a houseguest were sufficient to sustain a conviction for

possession); see also Richardson v. People, 25 P.3d 54, 58 (Colo.

2001).

15
¶ 33 Viewing the evidence and all reasonable inferences therefrom

in the light most favorable to the prosecution, we conclude the

following evidence adduced at trial supports Simmons’ convictions:

• The cigarette box containing cocaine was recovered below

the driver’s door of Simmons’ car.

• A police officer described Simmons’ awareness of the

cigarette box as he exited the car, looked to the ground,

and made a concerted effort to avoid stepping on it.

• The cigarette box looked recently opened, was unsoiled,

was not crushed, and appeared to have been recently

placed in its location.

• The unmarked plastic “baggies” recovered from Simmons’

pocket were similar to the “baggies” containing drugs

found inside the cigarette box. See People v. Valdez, 56

P.3d 1148, 1151 (Colo. App. 2002) (finding that the

defendant was in possession in part because “[t]he

evidence established that the pills beside the bed were

wrapped together in cellophane cigarette packaging

material similar to the packaging of the codeine tablets

discovered in a shirt in [the] defendant’s closet”).

16
• Prescription pills and a pill splitter were recovered from

Simmons’ car.

• Approximately $230 in various denominations were

recovered from Simmons.

¶ 34 To the extent Simmons contends he was not the “lone suspect”

in the parking lot and was therefore not in exclusive control of the

cigarette pack, we are not persuaded. “Possession need not be

exclusive, and the substance can be possessed jointly by a person

and another without a showing that the person had actual physical

control thereof.” Petty v. People, 447 P.2d 217, 220 (Colo. 1968);

see also People v. Stark, 691 P.2d 334, 339 (Colo. 1984).

¶ 35 Accordingly, we conclude that sufficient evidence supports

Simmons’ convictions.

IV. Prior Drug Convictions

¶ 36 Simmons contends that the trial court erred by allowing the

prosecution to introduce evidence of his prior felony convictions to

impeach his testimony after he introduced an officer’s body camera

video containing his hearsay statements to police. We discern no

error.

17
A. Additional Facts

¶ 37 During trial, Simmons’ counsel introduced body camera

footage from one of the arresting officers to impeach the officer’s

testimony. The prosecutor reminded counsel that if counsel

introduced the entire video (which included Simmons’ statements),

they would seek to introduce Simmons’ prior felony convictions to

impeach Simmons’ statements.

¶ 38 After the video was played to the jury, the prosecutor filed a

motion to introduce Simmons’ prior convictions as impeachment

evidence under CRE 806. The court granted the motion and

reasoned that although prior drug convictions are highly

prejudicial, “the strategic decisions of the parties in the course of

how they present the evidence sometimes puts us in a position

where it makes it possible to have admitted evidence that is

incredibly detrimental.”

¶ 39 The parties agreed that the court could take judicial notice of

the prior convictions, and the court instructed the jury as follows:

The Court takes judicial notice of the following
cases involving People vs. Leo Simmons:

18
In 1989CR155, the defendant was convicted of
distribution of an imitation controlled
substance, a felony, on July 25, 1989.

In 1990CR3210, the defendant was convicted
of distribution of an imitation controlled
substance on October 7, 1991.

In 1996CR1971, the defendant was convicted
of conspiracy to commit possession of a
Schedule II controlled substance, a felony.
Conviction occurred on March 12, 1998.

In 1997CR1674, the defendant was convicted
of distribution of an imitation controlled
substance, a felony. Conviction entering
March 12, 1998.

In 2007CR1196, the defendant was convicted
of possession of a controlled substance, a
felony, with a conviction entering June 12,
2008.

¶ 40 During the defense’s case, Simmons testified about the

circumstances of the present case and answered questions

concerning his prior convictions.

¶ 41 The jury was further instructed that it “may consider

testimony or evidence of a previous conviction only in determining

the credibility of the defendant as a witness and for no other

purpose.”

19
B. Standard of Review and Applicable Law

¶ 42 Trial courts have considerable discretion in deciding questions

concerning the admissibility of evidence. People v. Ibarra, 849 P.2d

33, 38 (Colo. 1993); see also People v. Hardy, 677 P.2d 429, 431

(Colo. App. 1983) (“Further examination into the details of prior

convictions is within the trial court’s discretion, provided that such

details are relevant pursuant to CRE 401.”). We will affirm a trial

court’s evidentiary rulings absent an abuse of that discretion.

Ibarra, 849 P.2d at 38.

¶ 43 A prior felony conviction may be used to impeach a witness’

statements. § 13-90-101, C.R.S. 2024; see also CRE 806. A trial

court has no discretion to foreclose the use of a prior felony

conviction for purposes of impeachment. People v. Gallegos, 950

P.2d 629, 631 (Colo. App. 1997) (citing Lacey v. People, 442 P.2d

402, 405 (1968)). While a court has discretion to limit cross-

examination concerning the facts of a prior conviction, People v.

Bueno, 516 P.2d 434, 435 (1973), when a defendant exercises their

statutory privilege of testifying, all prior felony convictions may be

used to impeach their testimony. See § 13-90-101; see also CRE

806.

20
C. Analysis

¶ 44 Simmons asks us to modify the Colorado rule allowing

impeachment with a prior felony conviction regardless of its age.

He urges us to follow the federal rule, as well as the rules in a

majority of states, which only permit impeachment with prior

convictions that are no more than ten years old, and notes that

numerous law review articles that have studied the issue support

this time restriction. He argues, under CRE 403, that the probative

value of convictions older than ten years is substantially

outweighed by the prejudicial effect of such convictions.

¶ 45 We decline his invitation, however, because it is well settled in

Colorado that a defendant may be impeached with a prior felony

conviction regardless of its age, that due process is not violated

when this occurs, and that a defendant’s hearsay testimony may be

impeached with prior felony convictions. See Gallegos, 950 P.2d at

631 (evidence of a felony conviction is admissible to impeach the

credibility of a witness); People v. Griffith, 595 P.2d 231, 232 (Colo.

1979) (“We find no constitutional infirmity in section 13-90-

101 . . . .”); People v. Krueger, 2012 COA 80, ¶ 63 (finding that when

a defendant chooses to introduce their own hearsay, CRE 806

21
permits that statement’s impeachment with the defendant’s prior

felony convictions). We are bound by our supreme court’s

precedent and may not alter it. See People v. Novotny, 2014 CO 18,

¶ 26 (The supreme court “alone can overrule [its] prior precedents

concerning matters of state law.”); see also People v. Gladney, 250

P.3d 762, 768 (Colo. App. 2010) (“[The Court of Appeals is] bound to

follow supreme court precedent.”).

¶ 46 We are not persuaded otherwise by Simmons’ reliance on

People v. Williams, 2020 CO 78, ¶ 15, in which the supreme court

criticized the admission of prior criminal conduct under CRE 403.

The court expressed this criticism in the context of the admission of

CRE 404(b) evidence, not in the context of using prior convictions to

impeach credibility. Therefore, we find Simmons’ reliance on this

case misplaced.

¶ 47 Accordingly, we discern no error in the trial court’s admission

of Simmons’ prior convictions to impeach his hearsay statements or

his direct testimony.

V. Cumulative Error

¶ 48 Simmons contends that the introduction of his prior

convictions and the cumulative effect of the alleged errors that

22
occurred during his trial denied him his constitutional right to a fair

trial. We disagree.

¶ 49 The cumulative error doctrine applies when “the cumulative

effect of [multiple] errors and defects substantially affected the

fairness of the trial proceedings and the integrity of the fact-finding

process.” Howard-Walker v. People, 2019 CO 69, ¶ 24 (alteration in

original) (quoting People v. Lucero, 615 P.2d 660, 666 (Colo. 1980)).

However, because we have found no errors, we necessarily conclude

that the cumulative error doctrine does not apply and thus

Simmons was not denied a constitutionally fair trial. See People v.

Villa, 240 P.3d 343, 359 (Colo. App. 2009) (cumulative error

analysis is required only when multiple errors have been identified).

VI. Disposition

¶ 50 The judgment is affirmed.

JUDGE GOMEZ and JUDGE MEIRINK concur.

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