v. Cox , 2021 COA 68 ( 2021 )

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
May 13, 2021
2021COA68
No. 19CA2085, People v. Cox — Colorado Constitution —
Affirmative Defenses — Medical Use of Marijuana
As a matter of first impression, a division of the court of
appeals holds that the elements of the medical marijuana
affirmative defense are prescribed by article XVIII, section 14(2)(a) of
the Colorado Constitution and are not supplemented by additional
elements purportedly added in later-enacted Colorado statutes.
COLORADO COURT OF APPEALS 2021COA68
Court of Appeals No. 19CA2085
Mesa County District Court No. 17CR1974
Honorable Brian J. Flynn, Judge
The People of the State of Colorado,
Plaintiff-Appellant,
v.
David Lawrence Cox,
Defendant-Appellee.
RULINGS APPROVED
Division I
Opinion by JUDGE BERGER
Dailey and Tow, JJ., concur
Announced May 13, 2021
Daniel P. Rubinstein, District Attorney, George Alan Holley II, Senior Deputy
District Attorney, Grand Junction, Colorado, for Plaintiff-Appellant
Flanders, Elsberg, Herber & Dunn, LLC, Mark A. Herber, Elizabeth A. Raba,
Longmont, Colorado, for Defendant-Appellee
¶1 This is an appeal by the district attorney under section 16-12-
102(1), C.R.S. 2020, after a jury acquitted defendant, David
Lawrence Cox, of marijuana offenses. The district attorney
contends that the trial court erroneously (1) instructed the jury
regarding the definition of marijuana and (2) refused to supplement
the elements of the constitutionally defined affirmative defense of
medical marijuana cultivation with three additional elements
contained in Colorado statutes. As a matter of first impression, we
hold that the elements of the medical marijuana affirmative defense
are prescribed by article XVIII, section 14(2)(a) of the Colorado
Constitution and cannot be supplemented by additional elements
purportedly added in later-enacted Colorado statutes. Therefore,
we approve the trial court’s rulings.
I. Jurisdiction
¶2 Section 16-12-102(1) authorizes an appeal by the district
attorney in a criminal case, but only as to questions of law. See
People v. Ross, 2021 CO 9, ¶ 14. As the authorizing statute makes
clear, “[n]othing in this section shall authorize placing the
defendant in jeopardy a second time for the same offense.” § 16-12-
102(1). Therefore, all we can do is approve or disapprove the trial
1
court’s rulings. People v. Moore, 226 P.3d 1076, 1092 (Colo. App.
2009).
II. Issues on Appeal
¶3 The district attorney frames the two issues on appeal as
follows: “First, did the trial court err when it incorrectly ruled
[section] 18-18-406(3.5) and [section] 18-18-406(3)(b)(I), C.R.S.
[2020,] unconstitutional[?] And second, did the trial court err when
it incorrectly ruled [section] 18-18-102(18)(a)[, C.R.S. 2020,]
unconstitutional?”1
¶4 The initial difficulty with this appeal is that nowhere in the
record on appeal did the trial court declare any of these statutes
unconstitutional. In fact, the trial court expressly stated that it was
not declaring any of these statutes unconstitutional. At one point,
1 Because the district attorney claims that the trial court
invalidated two, or maybe three, statutes, we raised on our own
motion whether we have appellate jurisdiction. We do not have
appellate jurisdiction when a trial court declares a Colorado statute
unconstitutional. § 13-4-102(1)(b), C.R.S. 2020; see Lobato v. State,
2013 CO 30, ¶ 10. Accordingly, we transferred this case to the
Colorado Supreme Court. That court declined to accept
jurisdiction, so the case is back before us. Under these
circumstances, when the supreme court declines jurisdiction, that
is a conclusive determination that this court has appellate
jurisdiction. Barela v. Beye, 916 P.2d 668, 673 (Colo. App. 1996).
2
after framing the issues, the district attorney appears to concede
that the trial court never expressly declared the statutes
unconstitutional but argues that it implicitly did so.
¶5 Despite the framing of the issues on appeal, we think the
district attorney presents two questions of law. The first is whether
the trial court erred by instructing the jury that marijuana “does
not include industrial hemp.” The second is whether the trial court
erred by refusing to instruct the jury that the medical marijuana
affirmative defense includes three elements not contained in the
Colorado Constitution.
III. Standard of Review
¶6 We review questions of law de novo. See People v. Garcia, 113
P.3d 775, 780 (Colo. 2005). Identifying the elements of an
affirmative defense is a question of law. See id.IV. The Definition of Marijuana
¶7 The first question presented is whether marijuana includes
industrial hemp. This precise question was decided by the supreme
court in an interlocutory appeal in this very case. People v. Cox,
2018 CO 88. There, relying on article XVIII, section 16(2)(f) of the
Colorado Constitution, the supreme court stated, “Amendment 64
3
makes clear that the definition of marijuana ‘does not include
industrial hemp.’” Cox, ¶ 1 n.2 (quoting Colo. Const. art. XVIII,
§ 16(2)(f)). Given the supreme court’s determination in this very
case, we cannot conclude that the trial court erred by instructing
the jury that marijuana does not include industrial hemp.
¶8 Both this court and the trial court are bound by supreme
court decisions. See In re Estate of Ramstetter, 2016 COA 81, ¶ 40.
Therefore, we approve the trial court’s definitional instruction.
V. Medical Marijuana Affirmative Defense
¶9 The second question requires more analysis. Cox was charged
with unlawful cultivation of marijuana under section 18-18-
406(3)(a)(I). He asserted the medical marijuana affirmative defense
contained in article XVIII, section 14(2)(a)(I)-(III) of the Colorado
Constitution and asked the court to instruct the jury on the
elements of that affirmative defense.
¶ 10 The Colorado Constitution prescribes the specific elements of
the medical marijuana affirmative defense:
a patient or primary care-giver charged with a
violation of the state’s criminal laws related to
the patient’s medical use of marijuana will be
deemed to have established an affirmative
defense to such allegation where:
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(I) The patient was previously diagnosed by a
physician as having a debilitating medical
condition;
(II) The patient was advised by his or her
physician, in the context of a bona fide
physician-patient relationship, that the patient
might benefit from the medical use of
marijuana in connection with a debilitating
medical condition; and
(III) The patient and his or her primary care-
giver were collectively in possession of
amounts of marijuana only as permitted under
this section.
Colo. Const. art. XVIII, § 14(2)(a).
¶ 11 Nothing in the constitutional provision creating the affirmative
defense expressly authorizes the General Assembly to add
additional substantive elements to the defense.
¶ 12 Nevertheless, the General Assembly enacted section 18-18-
406(3)(b)(I), which provides that it is not a violation of section 18-
18-406(3)(a)(I) if “[t]he person is lawfully cultivating medical
marijuana pursuant to the authority granted in section 14 of article
XVIII of the state constitution in an enclosed and locked space.”
(Emphasis added.)
5
¶ 13 Section 18-18-406(3.5) further provides that a person is
subject to the offenses and penalties of subsection (3) unless he “is
in compliance with the requirements of section 25-1.5-106.”
Section 25-1.5-106, C.R.S. 2020, provides, in pertinent part, that a
primary caregiver “shall maintain a list of his or her patients” and
“shall have his or her registry identification card in his or her
possession at all times that he or she is in possession of any form of
medical marijuana.” § 25-1.5-106(8)(a)(II), (9)(a).
¶ 14 Relying on these statutory provisions, the prosecutor
requested that the medical marijuana affirmative defense
instruction include three additional elements not contained in the
constitution. The elements requested were that the defendant must
(1) have his caregiver registration card in his possession; (2)
maintain a list of his patients; and (3) grow the marijuana plants in
an enclosed and locked space. The trial court denied the
prosecutor’s request and instructed the jury only on the elements
set forth in the constitution.
¶ 15 It is well established that the General Assembly has authority
to enact statutory procedural prerequisites for the enforcement of
rights granted in the Colorado Constitution.
6
¶ 16 Thus, in the criminal context, the supreme court has held that
a statute requiring a defendant to make timely pretrial disclosure of
alibi witnesses, or lose the chance to call those witnesses, did not
infringe on the defendant’s constitutional right to call witnesses in
his own defense. People v. Hampton, 696 P.2d 765, 774 (Colo.
1985).
¶ 17 And in the civil context, the court has upheld statutes that
condition the enforcement of the constitutionally created right of
condemnation of land on the satisfaction of a variety of procedural
prerequisites. Glenelk Ass’n v. Lewis, 260 P.3d 1117, 1121 (Colo.
2011); see Colo. Const. art. II, § 14.
¶ 18 But the district attorney has not cited, and we have not found,
any case that authorizes the legislature to substantively dilute
rights expressly granted in the constitution. It is elemental law that
the Colorado Constitution establishes the supreme law of the State
of Colorado. In re Senate Bill No. 9, 26 Colo. 136, 139, 56 P. 173,
174 (1899) (per curiam). Therefore, a statute that purports to add
substantive elements to a defense defined in the constitution
cannot trump the constitution.
7
The constitution is the supreme law of the
state, solemnly adopted by the people, which
must be observed by all departments of
government; and if any of its provisions
seemingly impose too great a limitation, they
must be remedied by amendment, and cannot
be obviated by the enactment of laws in
conflict with them.
Id.¶ 19 The addition of substantive elements to an affirmative defense
makes it more difficult for a defendant to establish the defense. See
Garcia, 113 P.3d at 784. Therefore, when, as here, the Colorado
Constitution specifically prescribes and defines an affirmative
defense and does not authorize the General Assembly to add
additional substantive elements, courts must apply the constitution
as written.
¶ 20 The Colorado Supreme Court Committee on Model Criminal
Jury Instructions carefully considered this precise question with
respect to the enclosed and locked space statutory requirement.
COLJI-Crim. H:68 cmt. 6 (2020). It concluded that because the
“constitutional defense applies regardless of whether the space is
enclosed or locked — and because the statute cannot
constitutionally narrow the breadth of this defense —” the model
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instruction would not include this element. Id.2 We are not bound
by any determinations by the Committee on Model Criminal Jury
Instructions. “[P]attern jury instructions are not law, not
authoritative, and not binding . . . .” Krueger v. Ary, 205 P.3d 1150,
1154 (Colo. 2009). Nevertheless, we conclude that the Committee’s
analysis in this respect is sound.
¶ 21 Because subsections (3)(b)(I) and (3.5) of section 18-18-406
purport to add substantive elements to the constitutionally created
and defined affirmative defense, we approve the trial court’s
instruction on the elements of the defense set forth in the Colorado
Constitution.
VI. Conclusion
¶ 22 We approve the trial court’s challenged rulings.3
2 Regarding the bookkeeping and card-carrying requirements, the
Supreme Court Committee on Model Criminal Jury Instructions
expressed no opinion on “whether section 18-18-406(3.5)[, C.R.S.
2020,] validly limits the affirmative defense” set forth in the
constitution. COLJI-Crim. H:68 cmt. 7 (2020).
3 We do not condone the deprecatory and sarcastic statements that
the senior deputy district attorney directed at the trial judge in his
opening brief. The record is clear that the trial court was
unfailingly polite to the deputy district attorney. The court carefully
considered all arguments made by the deputy district attorney and,
in fact, accepted many of them throughout the course of this
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JUDGE DAILEY and JUDGE TOW concur.
protracted case. The fact that the court made a ruling (that was
entirely consistent with the Colorado Supreme Court pattern jury
instructions) that displeased the district attorney is not a warrant to
make sarcastic and snide remarks about the judge in this court.
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