The Colorado Court of Appeals issued its opinion in People v. Montante on Thursday, April 9, 2015.
Physician—Medical Marijuana—Attempt to Influence a Public Servant—Lesser Non-Included Offense—Jury Instructions—Unconstitutionally Vague—First Amendment—Motion to Suppress—Expert Witness.
Defendant worked as a contract physician at a medical marijuana clinic. Defendant issued “Nick Moser,” an undercover police detective, a Physician Certification stating that Moser suffered from a debilitating medical condition and might benefit from the medical use of marijuana despite the fact that Moser did not suffer from any medical conditions. Defendant was charged and convicted of attempt to influence a public servant.
On appeal, defendant argued that the trial court erred in denying his pretrial motion to dismiss the charge because the legislature proscribed and directed punishment for his conduct in the specific medical marijuana registry fraud statute. Although the statute could apply to a physician’s recommending medical marijuana in a Physician Certification, it does not preclude prosecution for defendant’s conduct under the attempt to influence a public servant statute.
Defendant argued that the trial court erred in denying his request for a lesser non-included offense jury instruction on medical marijuana registry fraud under CRS § 18-18-406.3(2)(a). There was no evidentiary basis on which the jury rationally could have convicted defendant of medical marijuana registry fraud but acquitted him of attempt to influence a public servant. Consequently, the jury could not rationally have convicted defendant of the lesser offense and acquitted him of the greater. Accordingly, the trial court did not err in rejecting defendant’s tendered instruction.
Defendant argued that the attempt to influence a public servant statute is unconstitutional because it is vague as applied to him and violates his free speech rights under the First Amendment. The statute was sufficiently clear that it prohibited defendant’s alleged conduct. Furthermore, false representations such as those made by defendant are not protected by the First Amendment.
Defendant argued that the trial court erred in denying his motion to suppress because the trial court incorrectly concluded that he was not in custody at the time the statements were made. The interview took place at defendant’s clinic, he was not coerced, and the statements were made voluntarily. Therefore, defendant was not in custody when the interview took place and Miranda warnings were not required.
Defendant argued that the trial court erred in admitting the prosecution’s expert testimony on general medical assessments, examinations of patients, and establishing a bona fide physician-patient relationship. The physician was qualified as an expert, and his testimony could have assisted the jury in determining whether defendant’s representations were false. Therefore, the trial court did not abuse its discretion in determining that the testimony met the requirements of CRE 702 and was not excludable under CRE 403. The judgment was affirmed.