Peo v. Alarcon - Criminal Conviction Affirmed

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March 26, 2026 Get Citation Alerts Download PDF Add Note

Peo v. Alarcon

Colorado Court of Appeals

• Citations: None known
• Docket Number: 23CA0712

• Precedential Status: Non-Precedential

• Opinion

• Authorities (22)

• Cited By (0)

• Summaries (0)

• Similar Cases (88.5K)

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Combined Opinion

23CA0712 Peo v Alarcon 03-26-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0712
Larimer County District Court No. 21CR722
Honorable Stephen J. Jouard, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Cruz Victor Alarcon,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division II
Opinion by JUDGE KUHN
Fox and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced March 26, 2026

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

Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Cruz Victor Alarcon, was convicted of two counts of

possession with intent to distribute a controlled substance. He

appeals his judgment of conviction, seeking a new trial. We affirm.

I. Background

¶2 In January 2021, law enforcement received an anonymous tip,

alleging that Alarcon and his partner, Sarah Sewolt, were “engaged

in the sale and distribution of methamphetamine and fentanyl from

their home.” The tip prompted Sergeant Josiah Thiemann to surveil

Alarcon and his home.

¶3 On April 23, Sergeant Thiemann was surveilling the home.

Around 5:25 p.m., he saw a dark blue or purple truck arrive with a

woman driving and a man in the passenger seat. The man was

later identified as Marcelino Moreno, Alarcon’s nephew. The woman

remained in the truck while Moreno met Alarcon in the backyard.

Alarcon and Moreno then went into a shed for approximately five

minutes and came out with no tools in hand. Moreno and Alarcon

were seen looking down the street and over their shoulders.

Sergeant Thiemann characterized this behavior as being consistent

with “countersurveillance.”

1
¶4 Moreno returned to the truck, which was still running with the

woman in the driver’s seat. As the two drove away, Sergeant

Thiemann observed Moreno looking in the mirrors “harder than

normal.” Sergeant Thiemann communicated the truck’s description

to Deputy Kyle Ryan, who then started following the truck. Deputy

Ryan observed Moreno turning around in the truck and “looking at

his surroundings.” The truck then pulled into a gas station and

stopped at a gas pump, but neither Moreno nor the woman pumped

any gas. A short time later, Moreno moved the truck from the gas

pump to the air station. Moreno picked up the air tube and

checked the tires, but he did not fill any of the tires with air.

¶5 During this time, Sergeant Thiemann was still surveilling

Alarcon’s home. He saw Alarcon and Sewolt leave the house in

their SUV around 6:18 p.m. The two headed in the direction of the

gas station while Sergeant Thiemann followed them. When Alarcon

and Sewolt arrived at the gas station, they parked next to the truck.

Moreno got out of the truck and entered Alarcon’s SUV with a

backpack. Alarcon’s SUV then pulled out of the gas station.

Sergeant Thiemann and Deputy Ryan followed behind Alarcon’s

SUV until Deputy Ryan could initiate a traffic stop.

2
¶6 Deputy Ryan identified all the passengers in the SUV. He then

had them get out of the SUV so that a K-9 unit’s trained drug dog

could do an initial drug sniff around the outside of the SUV. Based

on the results of the dog’s sniff, Deputy Ryan concluded that there

was probable cause to search the SUV. In the SUV, he found a

backpack with a Ziplock baggie containing what appeared to be

meth and a grocery bag with a “large quantity of small blue pills”

consistent with fentanyl. Deputy Ryan also found a cell phone in

the center console. Alarcon was placed under arrest and later

charged with two counts of possession with intent to distribute a

controlled substance. See § 18-18-405(1)(a), (2)(a)(I)(B), (2)(c)(I),

C.R.S. 2025.

¶7 Before trial, Alarcon moved to suppress the drug evidence

obtained during the traffic stop, arguing that officers did not have

reasonable articulable suspicion to justify stopping Alarcon’s SUV

and detaining its passengers. The trial court denied the motion,

and the evidence was admitted at trial. The prosecution also

introduced evidence at trial that Alarcon had previously sold meth

and fentanyl. Ultimately, the jury found Alarcon guilty as charged,

and he was convicted and sentenced to concurrent sentences of

3
twelve years on the first count and six years on the second count in

the custody of the Department of Corrections.

¶8 Alarcon now appeals.

II. Analysis

¶9 Alarcon contends that (1) the trial court erred when it denied

his motion to suppress because police officers did not have

reasonable suspicion to conduct an investigatory stop; (2) his prior

statements and text messages were admitted in violation of CRE

404(b) and CRE 403; and (3) Deputy Ryan’s testimony usurped the

function of the jury when he opined on Alarcon’s likelihood of guilt.

We see no basis for reversal.

A. Police Officers Had Reasonable
Suspicion to Stop Alarcon’s Car

¶ 10 Alarcon argues that the officers lacked reasonable suspicion to

pull him over because none of the anonymous tip, Alarcon’s

behavior by the shed, or Moreno’s behavior at the gas station

constituted reasonable suspicion.

¶ 11 If a police officer has a reasonable suspicion that criminal

activity is afoot, they may conduct a brief investigatory stop. People

v. Brown, 2019 CO 63, ¶ 10. An officer has a reasonable suspicion

4
when they “have ‘a specific and articulable basis in fact for

suspecting that criminal activity has occurred, is taking place, or is

about to take place.’” Id. (quoting People v. Perez, 690 P.2d 853,

855 (Colo. 1984)). To determine whether a police officer had

reasonable suspicion to conduct an investigatory stop, “courts look

to the totality of the circumstances, keeping in mind that ‘[a]n

officer is entitled to draw reasonable inferences from all the

circumstantial evidence.’” Id. at ¶ 11 (alteration in original) (quoting

People v. Threlkel, 2019 CO 18, ¶ 20).

¶ 12 As the People point out, the Colorado Supreme Court has

already evaluated whether there was reasonable suspicion for the

stop challenged here. In People v. Moreno, 2022 CO 19, the

prosecution also charged Moreno, Alarcon’s nephew, with intent to

distribute the controlled substances found during the stop of

Alarcon’s car. Id. at ¶ 8. Moreno moved to suppress the evidence of

the meth and fentanyl found in the backpack, and the trial court

granted the motion. Id. at ¶¶ 8-9. The People then filed an

interlocutory appeal to the supreme court, which ultimately

reversed the trial court’s suppression order.

5
¶ 13 The supreme court held that “under the totality of the

circumstances, the officers had reasonable suspicion to conduct the

stop.” Id. at ¶ 1. First, the court stated that the original tip about

Alarcon and Sewolt may have been “problematic” because it was

stale at three months old. Id. at ¶ 19. The court noted that while

that fact is “certainly a factor, it is not dispositive; instead, the

totality of the circumstances must be considered.” Id. (quoting

People v. Brown, 2019 CO 63, ¶ 13). The court then detailed the

factors supporting the officer’s suspicion: the detailed nature of the

tip, Moreno’s and Alarcon’s “strange” and “hypervigilant” behavior

while at Alarcon’s home, and Moreno’s continued strange behavior

at the gas station. Id. at ¶¶ 20-21.

¶ 14 Alarcon argues that none of these facts, considered

individually, amount to reasonable suspicion. And the supreme

court agreed with that point in Moreno. Id. at ¶ 23 (“[A]ny one of

these facts by itself would be insufficient to give rise to reasonable

suspicion.”). But as it also noted, courts must determine whether

reasonable suspicion exists based on the totality of the

circumstances, not individual facts in isolation. Id. at ¶ 15. After

considering the totality of the circumstances, the supreme court

6
concluded that the facts discussed above “established reasonable

suspicion” to conduct an investigatory stop. Id. at ¶ 23.

¶ 15 In spite of this holding, Alarcon argues that we should reach a

different conclusion when we evaluate the stop. In support, he

asserts that in Moreno the supreme court relied on Moreno’s actions

after he left Alarcon’s house. He argues that, in this case, we

should consider only Alarcon’s actions. Finally, he asserts that

once we exclude Moreno’s actions, “the totality of the circumstances

here could not establish reasonable suspicion to stop Alarcon’s car

and detain him.”

¶ 16 But only one stop is challenged in both cases. And the

question before the supreme court in Moreno was whether officers

had reasonable suspicion to stop Alarcon’s car. See id. at ¶ 7 (“The

second officer in the patrol car then stopped [Alarcon’s] SUV on

suspicion of drug trafficking activity.”). In reaching its conclusion

in that case, the supreme court didn’t rely on facts that only

involved Moreno. To the contrary, several of the key facts

underpinning its decision directly involved Alarcon, including the

detailed and corroborated tip and his interaction with Moreno at his

house. So in considering the totality of the circumstances justifying

7
the stop of Alarcon’s SUV, the supreme court relied on Alarcon’s

behavior and his interactions with Moreno, as well as Moreno’s

later suspicious behavior.

¶ 17 We also don’t agree with the premise of Alarcon’s argument

that we should exclude Moreno’s behavior when considering the

totality of the circumstances around the stop and subsequent

detention. Moreno’s behavior at the gas station was relevant to the

challenged traffic stop. But even if we only considered the tip about

Alarcon and Sewolt, Alarcon’s interaction with Moreno at the house,

and their later interaction at the gas station, we would conclude

that there was reasonable suspicion to stop the car and temporarily

detain Alarcon and Moreno.

¶ 18 Consequently, whether we were to treat the supreme court’s

decision in Moreno as binding precedent, see People v. Allen, 111

P.3d 518, 520 (Colo. App. 2004), or persuasive in light of Alarcon’s

different factual arguments, we would reach the same conclusion.

We perceive no error in the trial court’s denial of Alarcon’s motion to

suppress.

8
B. Alarcon’s Prior Statements and Text Messages
Did Not Violate Rule 404(b) and Rule 403

¶ 19 Alarcon next argues that the trial court erred when it admitted

his prior statements and text messages about past drug activity.

He claims that admitting the evidence violated Rule 404(b) and

People v. Spoto, 795 P.2d 1314, 1318 (Colo. 1990). Alarcon also

claims that the prosecutor engaged in misconduct by mentioning

this evidence during closing arguments. We disagree.

1. Applicable Law and Standard of Review

¶ 20 Rule 404(b)(1) prohibits admitting “[e]vidence of any other

crime, wrong, or act . . . to prove a person’s character in order to

show that on a particular occasion the person acted in conformity

with the character.” However, this type of evidence can be admitted

for other purposes, such as to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack

of accident.” CRE 404(b)(2). To determine if prior act evidence can

be admitted under one of these exceptions, courts apply a four-part

Spoto analysis. Spoto, 795 P.2d at 1318.

¶ 21 First, we must determine whether the evidence “relates to a

material fact.” Id. Second, if the evidence relates to a material fact,

9
we then ask whether the evidence is “logically relevant, i.e., does it

have ‘any tendency to make the existence of [the material fact] more

probable or less probable.’” Id. (quoting CRE 401) (alteration in

original). Third, “[i]f the evidence is logically relevant, we then must

determine whether the logical relevance is independent of the” bad

character inference prohibited under Rule 404(b). Id. Fourth, we

evaluate “whether the probative value of the evidence is

substantially outweighed by the danger of unfair prejudice,” which

would violate Rule 403. Id.

¶ 22 We review evidentiary rulings for an abuse of discretion.

People v. Quillen, 2023 COA 22M, ¶ 14. A court abuses its

discretion when “its ruling is manifestly arbitrary, unreasonable, or

unfair, or if it misconstrues or misapplies the law.” Id.

¶ 23 Alarcon does not challenge the first two prongs, so we focus on

prongs three and four of Spoto.

1. Additional Background

¶ 24 At trial, the prosecution introduced a number of text message

exchanges extracted from a cell phone Alarcon possessed at the

time of his arrest. These text messages suggested that Alarcon was

buying and selling meth and fentanyl. The prosecution also

10
introduced statements that Alarcon made to Deputy Ryan when he

was interviewed after his arrest. Alarcon said that he had (1) traded

a vehicle for $6,000 worth of meth a few months before the arrest

and (2) received about three pounds of meth in the trade.

1. The Logical Relevance of Past Drug Distribution Is Independent of the Bad Character Inference Prohibited Under Rule 404(b)

¶ 25 Alarcon argues that admitting this evidence violated the third

prong of Spoto because it was relevant only to establish his bad

character and allowed the jury to infer that he committed the

charged offenses here because he acted in conformity with that bad

character. We disagree.

¶ 26 The evidence consisted of statements that Alarcon had

purchased or traded for meth in the past, and the text messages

suggested that Alarcon had previously sold meth and fentanyl in

the months leading up to the charges. The trial court concluded

that this evidence was relevant to show Alarcon’s intent to

distribute the drugs. This theory of relevance is independent of the

prohibited bad character inference. In other words, the jury did not

have to rely on the inference that Alarcon committed a bad act on

this occasion because he had committed a bad act on a prior

11
occasion. Instead, the jury could evaluate the evidence that he had

previously sold drugs to decide whether he intended to sell the

drugs he was caught with on this occasion. This theory of

relevance is independent of the prohibited character inference and

satisfies prong three. See People v. Salyer, 80 P.3d 831, 838 (Colo.

App. 2003) (“[E]vidence of defendant’s prior drug dealing qualified

for admission because it tended to show, apart from any prohibited

inference of bad character, that defendant possessed the marijuana

recovered by the sheriff’s officers with [the] intent to distribute it.”).1

We therefore perceive no abuse of discretion in the trial court’s

ruling.

1. The Probative Value of the Prior Statements and Text Messages Was Not Outweighed by the Danger of Unfair Prejudice

¶ 27 Alarcon argues that the evidence fails to satisfy the fourth

prong of Spoto because “[t]he very nature of the statements and text

1 Alarcon argues that People v. Salyer, 80 P.3d 831, 838 (Colo. App.

2003), differs from the case at hand because the CRE 404(b) issue
in Salyer was unpreserved. We note that, as Alarcon acknowledges,
the division in Salyer didn’t find “error, much less plain error,”
when resolving the case. Id. The evidence of prior drug dealing in
Salyer was admissible and relevant to prove intent, “apart from any
prohibited inference of bad character.” Id.

12
messages [were] inflammatory and likely incited the jury to convict

Alarcon on an improper basis . . . because of the nature of the

substances referenced[:] meth and fentanyl.” We are not convinced.

¶ 28 “Evidence is unfairly prejudicial if it has ‘some undue

tendency to suggest a decision on an improper basis, commonly an

emotional basis, such as bias, sympathy, hatred, contempt,

retribution, or horror.’” People v. Gonzales, 2019 COA 30, ¶ 34

(quoting People v. Cardenas, 2014 COA 35, ¶ 52), aff’d, 2020 CO

71. Rule “403 ‘strongly favors the admission of relevant evidence.’”

People v. Schnorenberg, 2025 CO 43, ¶ 42 (quoting People v.

Greenlee, 200 P.3d 363, 367 (Colo. 2009)). “Accordingly, a

reviewing court must afford the evidence its maximum probative

value and minimum prejudicial effect.” Id. “Evidence is not

unfairly prejudicial ‘simply because it damages the defendant’s

case.’” People v. Dominguez, 2019 COA 78, ¶ 30 (quoting People v.

Dist. Ct., 785 P.2d 141, 147 (Colo. 1990)).

¶ 29 While meth and fentanyl may elicit a negative or

“inflammatory” reaction, Alarcon does not explain how these

potentially damaging qualities make the evidence of past

distribution unfairly prejudicial. This is particularly true given that

13
the jury heard testimony about how Alarcon was found in

possession of a pound of meth and about 100 fentanyl pills. Given

these facts, we don’t see — and Alarcon doesn’t explain — how the

evidence that he had previously dealt these two drugs was unfairly

prejudicial. Accordingly, the trial court didn’t err by concluding

that the probative value of Alarcon’s prior statements and text

messages about past drug distribution was not outweighed by the

danger of unfair prejudice.

1. The Prosecution Did Not Engage in Prosecutorial Misconduct

¶ 30 In his opening brief, Alarcon contends that the prosecution

engaged in misconduct because the prosecutor used Alarcon’s prior

statements and text messages to make propensity arguments

during closing arguments. In his reply brief, Alarcon clarifies that

this alleged prosecutorial misconduct exacerbated the impact of the

error in admitting the evidence, rendering its admission not

harmless. But because we hold that the trial court did not err by

admitting the evidence in the first place, we conclude there is no

harm to analyze.

14
¶ 31 To the extent that Alarcon intended to argue that the

prosecutor’s alleged misconduct in closing argument independently

entitles him to relief, we conclude that this argument is

underdeveloped. Alarcon does not identify any prosecutorial

misconduct legal standards, let alone explain how those standards

apply here. We therefore decline to address that contention further.

See People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining

to address arguments presented in a perfunctory or conclusory

manner).

C. Deputy Ryan’s Testimony Does Not Require Reversal

¶ 32 Finally, Alarcon argues that the trial court erred when it

admitted certain expert testimony from Deputy Ryan. Alarcon

argues that Deputy Ryan’s statements usurped the function of the

jury because he weighed the evidence in the case and testified that

Alarcon was likely guilty of possession with intent to distribute.

1. Applicable Law and Standard of Review

¶ 33 Testimony that merely “embraces an ultimate issue” is not

objectionable, however, “an expert witness can’t tell the jury what

result to reach or form conclusions for the jurors that they are

competent to reach on their own.” People v. Baker, 2019 COA 165,

15
¶ 14, aff’d, 2021 CO 29. For example, an expert cannot opine on

and weigh the evidence in the case, as this is a matter “for the jury

alone.” Id. at ¶ 16.

¶ 34 We consider “a number of factors when determining whether

[an] expert[’s] testimony usurped the function of the jury.” People v.

Rector, 248 P.3d 1196, 1202 (Colo. 2011). These factors include

whether “the testimony was clarified on cross-examination, . . .

whether the expert’s testimony expressed an opinion of the

applicable law or legal standards thereby usurping the function of

the court, . . . whether [the] jury was properly instructed on the law

and that it may accept or reject the expert’s opinion[, and] . . .

whether an expert opined that the defendant committed the crime

or that there was a particular likelihood that the defendant

committed the crime.” Id. at 1203 (citations omitted).

¶ 35 Though we review evidentiary rulings for an abuse of

discretion, Quillen, ¶ 14, if the issue is “not preserved by

objection[,]” we will only reverse if there was plain error, Hagos v.

People, 2012 CO 63, ¶ 14. “Plain error is obvious and substantial[,]

. . . [and] permit[s] an appellate court to correct ‘particularly

egregious errors.’” Hagos, ¶ 14 (quoting Wilson v. People, 743 P.2d

16
415, 420 (Colo. 1987)). To rise to the level of plain error, the error

“must be so clear-cut, so obvious, that a trial judge should be able

to avoid it without the benefit of objection.” People v. Pollard, 2013

COA 31M, ¶ 39. An error is ordinarily this obvious if it violates

“(1) a clear statutory command; (2) a well-settled legal principle; or

(3) Colorado case law.” Scott v. People, 2017 CO 16, ¶ 16 (quoting

Pollard, ¶ 40). An error is substantial, warranting reversal, “only if

[it] ‘so undermined the fundamental fairness of the trial itself so as

to cast serious doubt on the reliability of the judgment of

conviction.’” Hagos, ¶ 14 (quoting People v. Miller, 113 P.3d 743,

750 (Colo. 2005)).

1. Deputy Ryan’s Testimony About the Text Messages

¶ 36 Alarcon challenges Deputy Ryan’s answers to a series of

questions about the text messages on Alarcon’s phone indicating he

was selling drugs:

[Prosecutor]: In your experience and review of
the text messages, do these messages support
that Mr. Alarcon had the opportunity to
distribute controlled substances in April of
2021?

[Defense Counsel]: Objection to foundation.

THE COURT: Overruled. I’ll allow that.

17
DEPUTY RYAN: Yes. The text messages
support that.

....

[Prosecutor]: [I]n your expert opinion, do these
messages provide evidence that Mr. Alarcon
had the knowledge to distribute controlled
substances in April of 2021?

DEPUTY RYAN: Yes, they do.

[Prosecutor]: In your expert review of these
messages, do these messages provide evidence
that in April 2021 Mr. Alarcon did not possess
these drugs by accident?

DEPUTY RYAN: Yes. In my expert review of the
messages, I reach a conclusion it appears the
user of this phone was both seeking[,]
purchasing[,] and distributing controlled
substances.

[Prosecutor]: Based on your experience in drug
distribution investigations, do these te[x]t
messages provide evidence that proves that
Mr. Alarcon had the intent to sell or distribute
controlled substances in April 2021?

DEPUTY RYAN: Yes.

¶ 37 Most of these questions are not problematic. In them, the

prosecutor asked whether the text messages supported or provided

evidence that Alarcon had knowledge, opportunity, or intent to

possess and distribute controlled substances. These are all

appropriate subjects for expert testimony.

18
¶ 38 But as noted above, an expert witness cannot opine on and

weigh the evidence in a case. Baker, ¶ 16. The last two questions

in this series run afoul of this rule. Deputy Ryan testified that he

had concluded that Alarcon was seeking, purchasing, and

distributing controlled substances. And Deputy Ryan responded

affirmatively when the prosecutor asked if the text messages proved

that Alarcon had the intent to distribute drugs. In giving these

answers, Deputy Ryan weighed the evidence of the text messages

and opined that it proved intent.

¶ 39 But even if this testimony was inadmissible, we conclude that

any error wasn’t “so clear-cut, so obvious, that a competent trial

judge should [have been] able to avoid it without [the] benefit of [an]

objection.” People v. Beilke, 232 P.3d 146, 152 (Colo. App. 2009).

The two questions occurred near the middle of sixty-eight transcript

pages of Deputy Ryan’s testimony. As noted, they occurred in a

series of questions that neither called for nor contained

inappropriate testimony. During Deputy Ryan’s testimony, defense

counsel actively and frequently objected to questions or resulting

answers, including the questions immediately surrounding the ones

Alarcon challenges on appeal. And the trial court sustained many

19
of those objections. Yet defense counsel did not object to these two

questions. And even if we didn’t reach this conclusion, this

testimony was, at least in part, cumulative of other witness

testimony. Given all of these facts, we don’t perceive these two

questions as “cast[ing] serious doubt on the reliability of the

judgment of conviction.” See Pollard, ¶ 43 (quoting Hagos, ¶ 14).

We therefore conclude that the trial court did not plainly err by not

sua sponte striking the answers to these two questions.

1. Deputy Ryan’s Testimony About the Amount of Drugs

¶ 40 Deputy Ryan also testified that Alarcon “had been in a vehicle

with a significant amount of controlled substances, an amount of

controlled substances that [Deputy Ryan] suspected, based on [his]

training and experience, to be only possessed for the purposes of

distribution.” He testified that in his experience, someone carrying

around a pound of meth was inconsistent with “here-and-there

usage.”

¶ 41 Applying the Rector factors, we see no error. Deputy Ryan did

not opine that Alarcon likely committed the crime because of the

amount of drugs found in the car. Rector, 248 P.3d at 1202.

20
Instead, he merely opined that the amount of drugs Alaron

possessed was inconsistent with personal use based on his years of

experience. Though Deputy Ryan’s testimony was not clarified on

cross-examination, the jury was properly instructed. Id. It was told

that it was “not bound by the testimony of witnesses who . . .

testified as experts; the credibility of an expert’s testimony [was] to

be considered as that of any other witness. [And the jury was

allowed to] . . . believe all of an expert witness’s testimony, part of it,

or none of it.” Moreover, Deputy Ryan did not opine as to the legal

standard the court should apply.

¶ 42 Considering the Rector factors, we conclude that Deputy Ryan

did not usurp the function of the jury. The trial court did not err by

not sua sponte excluding this testimony.

III. Disposition

¶ 43 The judgment of conviction is affirmed.

JUDGE FOX and JUDGE SULLIVAN concur.

21