The Colorado Court of Appeals issued its opinion in People v. Boyd on Thursday, August 13, 2015.
Marijuana—Possession—Presumption of Innocence—Burden of Proof—Voir Dire—Amendment 64—Retroactive Application.
An undercover police officer approached defendant and her boyfriend while they were in the boyfriend’s van. The officer purchased marijuana from the boyfriend. The boyfriend put the cash received from the officer on the van’s dashboard. Defendant and her boyfriend then drove away. Other police officers stopped the van and arrested defendant and her boyfriend. The officers found a small amount of marijuana and the cash from the undercover officer in defendant’s pocket. A jury convicted defendant of possession of marijuana and attempted distribution of marijuana.
Defendant contended, for the first time on appeal, that certain comments by the trial court during voir dire incorrectly instructed the prospective jurors, including those ultimately seated, regarding the presumption of innocence. Although the trial court’s comments were not a good statement of the law, they were not instructions and did not reflect adversely on defendant or on the issue of her innocence. The written jury instructions correctly stated the burden of proof and the presumption of innocence. Therefore, the comments did not constitute plain error in this case.
Defendant also argued that Amendment 64 applies retroactively to decriminalize her possession of marijuana, and consequently, her conviction for possession of less than one ounce of marijuana should be vacated. Section 16(3) provides that possession of one ounce or less of marijuana and certain other acts “are not unlawful.” Convicted criminal defendants are entitled to receive the “benefit of amendatory legislation which became effective at any time before the conviction became final on appeal.” Defendant was found guilty on August 8, 2012, and sentenced and convicted on November 14, 2012. Thus, because her appeal remains pending, her conviction for possession of less than one ounce of marijuana was vacated.