v. Cox

v
     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:


                                      4
             (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



                                    8
  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


                                       9
     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.

                                  10

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