August 22, 2019

Colorado Court of Appeals: Evidence of Intent to Distribute Marijuana Sufficient Despite Medical Use

The Colorado Court of Appeals issued its opinion in People v. Douglas on Thursday, October 22, 2015.

Marijuana Possession and Intent to Distribute—Sufficiency of Evidence—Medical Marijuana Affirmative Defense—Expert Testimony From Lay Witnesses.

Common law spouses Crawford and Douglas were the subject of a drug activity investigation. On a tip, officers searched trash from the property and found marijuana leaves. A police SWAT team then executed a search warrant on the home, where they found 28 marijuana plants, a safe with four firearms, $1,000 in cash, drying marijuana and bags with smaller amounts of marijuana, and medical marijuana application forms.

Each spouse was charged with one count of possession with intent to manufacture or distribute less than five pounds of marijuana and one special offender count based on the firearms. They were tried jointly, and each asserted an affirmative defense under sections 14(2)(a) and 14(4)(b) of the Medical Marijuana Amendment. Each was convicted on the possession with intent to manufacture or distribute charge but acquitted of the special offender charge. Douglas was sentenced to two years’ intensive supervision probation.

On appeal, Douglas argued that the evidence was insufficient to prove that she possessed or attempted to possess with intent to manufacture or distribute marijuana. The Court of Appeals disagreed. Prosecution’s theory was that the spouses were fraudulently using their medical marijuana licenses to illegally distribute marijuana. They based the theory on the amount of marijuana found at the residence, the sophistication of the grow operation, and the presence of guns and cash at the residence. Although the evidence was not overwhelming, it was sufficient to support the convictions.

The Court also rejected Douglas’s contention that the prosecution’s evidence was insufficient to disprove her medical marijuana affirmative defense beyond a reasonable doubt. It was uncontested at the time of the offense that defendants possessed more plants than permitted by the terms of their medical certifications.

The Court agreed with Douglas that the trial court erred in admitting, as lay opinion testimony, what was actually expert testimony from two police officers who were not properly qualified under CRE 702. However, because the issues were not properly preserved for appeal, the Court reviewed for plain error, and concluded that the error did not meet this standard. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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