v. Cox, 2021 COA 68

Defendant David Lawrence Cox was charged with unlawful cultivation of marijuana and asserted the medical-marijuana affirmative defense in the Colorado Constitution.
At trial the court instructed the jury that "marijuana does not include industrial hemp" and declined the prosecutor's requested additions to the constitutional affirmative-defense elements (requirements that plants be grown in an enclosed, locked space; that a caregiver carry a registry card; and that a caregiver maintain a patient list).
The district attorney appealed post-acquittal under § 16-12-102(1), which permits only questions of law on appeal by the prosecutor.
The Colorado Supreme Court previously held in an interlocutory appeal in this case that the definition of marijuana excludes industrial hemp.
The Court of Appeals addressed whether the trial court erred in (1) the hemp-related jury instruction and (2) refusing to supplement the constitutionally defined affirmative defense with statutory elements enacted by the General Assembly.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether "marijuana" includes industrial hemp for jury instruction	Trial court erred by instructing marijuana excludes industrial hemp; instruction was incorrect	Hemp is excluded; instruction was correct	Instruction correct; marijuana excludes industrial hemp (followed People v. Cox)
Whether legislature can add substantive elements to the constitutional medical-marijuana affirmative defense	Statutory provisions (enclosed/locked space; card possession; patient list) validly limit/define the defense; trial court should have included them	Constitution defines the defense; legislature may adopt procedural prerequisites but cannot add substantive elements that narrow the constitutional defense	Legislature cannot add substantive elements to the constitutionally defined affirmative defense; trial court properly limited instruction to constitutional elements

People v. Cox, 2018 CO 88 (concluded Colorado Constitution excludes industrial hemp from definition of marijuana)
People v. Garcia, 113 P.3d 775 (Colo. 2005) (identifying elements-of-an-affirmative-defense as a question of law)
People v. Hampton, 696 P.2d 765 (Colo. 1985) (legislature may impose procedural prerequisites without infringing constitutional rights)
Glenelk Ass’n v. Lewis, 260 P.3d 1117 (Colo. 2011) (upholding procedural conditioning for exercising constitutional rights)
Krueger v. Ary, 205 P.3d 1150 (Colo. 2009) (pattern jury instructions are not binding law)
In re Senate Bill No. 9, 56 P. 173 (Colo. 1899) (the constitution is supreme law and cannot be overridden by conflicting statutes)