People v. Clendenin

imminently impending the occurrence of an

injury.” Id. at 678-79. Application

C. speculative

Brante’s fears that and her im

departure of Shannon sons was

minent, they might Egypt, be harmed in

or that he would unable to find them after

they departed, do not rise to the level of an

impending injury demanding ac immediate People Handy,

tion. See 198 Colo. (“The (1979) threats definite, specific,

must be shown to be

imminent; speculation enough.”); mere (“Evidence

Brandyberry, 812 P.2d at 679

generalized injury fear of future is not suffi

cient to warrant the invocation of a choice of defense.”).

evils

Accordingly, we conclude that the trial refusing

court did not err to instruct the

jury on the choice evils defense. is affirmed.

JUDGE ROMÁN and BER- JUDGE

NARD concur. Colorado,

The PEOPLE of the State of

Plaintiff-Appellee,

Stacy CLENDENIN, Defendant-

Appellant.

No. 08CA0624. Appeals,

Colorado Court of

Div. VI.

Oct. 2009.

Rehearing Denied Dec. 2009. Suthers, General, Attorney

John W. John Lee, General, Denver, Attorney T. Assistant Colorado, Plaintiff-Appellee. for Jr., Denver, Colorado, Corry, Robert J. Defendant-Appellant. by Judge

Opinion HAWTHORNE. case, In this we conclude that to “primary caregiver” under Colorado Con- stitution article manage must do more to patient debilitating who has a medical condi- merely supply tion than Accordingly, we affirm the defendant, against Stacy conviction entered Clendenin, jury finding guilty on verdicts marijuana, possession of cultivation of marijuana, possession intent to distribute concentrate, possession of mari- more, juana eight possession ounces or — drug paraphernalia. Background I. Facts and Procedural Longmont police tip detective received a from an informant defendant’s residence go” obtaining had traffic. After “come utility property and assessor records for the similarly-sized nearby and several resi- dences, power usage he discovered that the greater four at defendant’s house was times comparable than that of houses between September except for one June month, higher. when it was three times De- power usage fendant’s was also three times higher previous than the resident’s. The inspection detective conducted a solid waste marijuana stalks in- and found three located a trash can in front of defendant’s house. side information, patient primary care-giver charged [A] on this he obtained Based warrant. with a violation of the search state’s criminal laws related to the medical use of mar- warrant, executed the When the detective ijuana will be deemed to have established opened door and defendant identified allegation an affirmative defense to such strong scent of mari- herself. He smelled where: juana her that he had a war- and informed (I) patient previously The diagnosed was rant to search the residence. Defendant es- by physician having a debilitating as a corted the detective to the basement where condition; medical rooms,” “grow she had two and told the (II) marijuana grew detective she four kinds of patient was advised his or her purposes for medical because she suffered physician, in the context of a bona fide migraine During from headaches. physician-patient relationship, pa- that the search, forty-four the detective found mari- might tient benefit from the medical use bedroom, juana plants, in defendant’s marijuana in debilitating $572 connection awith jewel- sixty-seven zip condition; and medium-sized lock medical bags. er’s (III) patient his or her caregiver collectively possession were in trial, suppress Prior to defendant moved to marijuana only permitted amounts of as search, during arguing evidence seized under this section. that the affidavit for the search warrant probable Const, lacked cause. The trial court con- XVIII, 14(2)(a). § Colo. art. marijuana cluded stalks found “Primary care-giver” per- is defined “a as utility trash can and the bill information es- son, patient other than the and the probable tablished cause. The court also physician, eighteen years age who is ruled that the evidence was admissible under significant older responsibility and has good exception, faith and denied defen- managing patient a who dant’s motion. debilitating a has medical condition.” Colo. Const, presume prop- Because we the trial court 14(l)(f) XVIII, § art. (emphasis add- erly suppress denied defendant’s motion to ed). below, for the reasons discussed in Part III Defendant maintains that she begin analysis by addressing we our her “primary caregiver” a under the Colorado argument that the trial court erred limit- provision Constitution because “the of medi- ability present her to affirmative defens- itself, marijuana, cal ‘sig- ... constitutes the es. responsibility’ nificant required to be a care- and, thus, giver,” she was entitled assert II. Affirmative Defenses provided the affirmative defense in section Defendant trial contends the court erred 14(2)(a). rejected The trial court defendant’s limiting ability present “primary law, argument, ruling care-giver” and “end user” affirmative de- grower personal who has no contact with provided fenses under Colorado Constitution patients satisfy “primary does not care- XVIII, 14(2)(a), article section and section definition, giver” only and therefore allowed 18-18-302(3), C.R.S.2009, respectively. We testimony from witnesses with whom defen- discern no error. personal dant had contact. We re- likewise ject argument, defendant’s but on a basis Primary A. Care-Giver different from the trial court’s rationale. We qualify “primary conclude that to interpretation review de novo as a care- We giver” merely do provision. constitutional must Danielson v. Dennis, (Colo.2006); supply patient debilitating who has a 690-91 medi- Rocky cal condition Mtn. Animal with v. Colo. Div. Def. Wildlife, (Colo.App.2004). concluding, guided by so we are tradi- part,

In relevant the Colorado principles interpreta- Constitution tional of constitutional provides: ordinary language tion. We afford the its every with similar to our meaning give effect to other states statutes and common provisions have addressed this term contained therein. word and concluded that an individual must issue Rodriguez, 112 P.3d patient meaning simply supply do more than plain, its language When involved, “primary medical clear, absurdity is constitu- and no Mentch, care-giver.” People See enforced as written. provisions must be tional Cal.Rptr.3d Cal.4th P.3d Id. Mullins, (2008); Wash.App. State guided also section 18-18- We are (2005). acknowledge We C.R.S.2009, 406.3(1), titled “Medical use “primary Washington’s and California’s marijuana by persons diagnosed with debili statutory care-giver” provisions are not iden- conditions,” tating which became ef 14(l)(f). tical to article These provides, in in and relevant fective specifically states’ statutes delineate the part: required qualify “primary tasks as a care- (b) 14 of article of the state Section XVIII contrast, provi- in giver”; our constitutional exceptions limited constitution creates requires primary care-giver sion a have patients, of this state for the criminal laws significant responsibility managing for the givers, physicians care con- primary However, patient’s well-being. both states’ marijuana by use of a cerning the medical statutes, Constitution, like Colorado’s ad- appropriately diag- an patient to alleviate requisite degree responsibility dress the of condition; debilitating nosed medical patient’s necessary qualify for a care as a care-giver. they primary are suffi- of the state (g) ciently analysis. Section of article XVIII to inform our similar assembly requires general the constitution Washington’s Marijuana Medical Use of penalties and enact criminal to determine in at time of the Act effect the Mullins specific for acts described the constitu- primary care-giver a a decision defined provision; tional older; years ... age respon “18 of (h) provisions interpreting the of sec- health, housing, sible the or care the for con- 14 of article XVIII of the state tion designated writing by ... patient; and the stitution, general assembly ... has the patient perform primary the duties give the ... words of the attempted to Mullins, caregiver.” (citing 116 P.3d at 444 plain provision their mean- constitutional former version of Wash. Rev.Code ing; added). 69.51A.010(2))(emphasis § In Mul (i) considered This section reflects lins, rejected claim the court the defendant’s assembly regard- general of the that he as a implementation ing meaning supplied patient he with medical because provisions of section 14 of article XVIII of marijuana. Id. at 446. The court reasoned the state constitution. although “arguably the defendant was providing a service in so far as he basic law This section is consistent with our case drugs supplied patient] with the neces [the concerning interpretation. See condition,” sary to his he “was treat medical Further, Rodñguez, 112 P.3d at 696. only aspect pa responsible [the for one power to define criminal conduct and to es- perform primary care” and did not a tient’s] legal components for criminal lia- tablish the care-giver’s statutory duties. Id. Assembly, bility is vested with the General empowered to formulate crimi- which is also Similarly, Supreme Court California and, responsibility principles nal within con- concluded that the defendant did limitations, to defenses to stitutional restrict primary care-giver, defined as “the indi as a Low, People v. particular crimes. designated by person exempted vidual 622, 627 consistently who has as under this section health; housing, responsibility “primary care-giver” sumed The constitutional for Mentch, safety person.” 85 Cal. ap- definition has not been reviewed However, (quoting Cal. Rptr.3d 195 P.3d at pellate courts in Colorado. courts 11362.5(e)) Therefore, (empha § Safety we conclude that the act of Health & Code added). use, supplying court reasoned that Califor for medical it sis nia, Colorado, self, caregiver ex significant limits “the is insufficient to like constitute by using higher standard for the ception management responsibility for responsibility relationship and well-being, consequently nature of the is insufficient to at 1069 n. 8. The court there constitutionally assumed.” Id. qualify person doing so as a primary caregiver fore held that “a must care-giver.” “primary responsibility satisfies the establish he or she Moreover, Colorado, the acts of ac independent evidence clause based on quiring, possessing, producing, using, or marijuana.” of medical Id. at administration transporting included 1068; Hochanadel, see also constitutional amendment’s “medical use” Cal.App.4th Cal.Rptr.3d Const, definition. art. Colo. (2009) (storefront marijuana dispen 14(l)(b). Thus, § had the amendment’s au sary operators “primary caregiv were not thors intended to define care despite being designated ers” as such giver significant who had someone re patients because no evidence showed an ex sponsibility managing for “medical use” isting, relationship established marijuana by patient with a debilitat health, patients’ housing, safety inde condition, they could have done so. Cf pendent administering marijuana). of In re Great Outdoors Colorado Trust Fund, (Colo.1996) (intent 533, 913 P.2d 540 courts, Like these two we conclude proponents adequately of initiative not ex that affirmative de pressed language will measure not apply provision fense does “where the of govern interpretation court’s amend marijuana is the substance of itself the rela ment). Mentch, 480, tionship.” Cal.Rptr.3d 85 195 P.3d at 1070. urges interpretation Defendant a circular primary caregiver affirmative defense. persuaded We are not defendant’s ar definition, According proposed anyone to her gument providing marijuana for medical provides marijuana who for medical use to a “significant responsibili use itself constitutes validly registered patient qualifies pri aas ty managing well-being patient.” for of a mary construction, care-giver. Under that contexts, In other divisions of this court have separate “pri there would be no need for a interpreted “significant” “deserving to mean mary caregiver” definition the affir because considered; important; E.g., to be notable.” apply anyone mative defense would dis D-2, Aurora, City Z.J. L.L.C. v. 93 Gifts tributing marijuana for medical use to such a 633, (Colo.App.2004) (quoting P.3d 639-40 Likewise, patient. anyone distributing mari Webster’s New Third International Dictio juana for qualify medical use would as a 2116); nary City Springs Colorado v. Mentch, “primary care-giver.” See 85 Cal. Comm’rs, 1105, County Board 895 P.2d 480, Rptr.3d (“[Primary 195 P.3d at 1068 Thus, (Colo.App.1994). “significant caregiver requires] simply provid responsibility” contemplated by article XVI ing marijuana. Otherwise, 14(l)(f) there would be no II, being involves more than caregiver reason to have the definition of a just aspect patient’s accountable for one aof anybody because who would addition, well-being. responsibility and related would services must be assumed a care caregiver[,] giving as a therefore them a giver accountability, is more than mere but very activity defense to the that’s requires managing otherwise also well-be court)). illegal.” ing. (quoting trial Defendant’s Supreme has Colorado Court inter direct, control, interpretation preted “manage” to mean leads absurd results and is “to administer, govern, contrary statutory oversee.” Trozzo v. Peo construction rules. See 323, 334, (1911) AviComm, ple, 51 Colo. Inc. Public P. v. Colorado Utilities Comm’n, (Colo.1998) (“a Johnson, (quoting Commonwealth v. 144 Pa. (1891)). statutory 22 A. interpretation leg defeats “Significant responsibility managing for leads to an absurd result islative intent or followed”). patient” means assist- will not be activities, ing patient daily including interpretation also informed Our transportation, but not limited to house- for 2000 elec Book distributed the Blue keeping preparation shopping or meal tion, the medical use of making any necessary arrangement passed by the voters. was amendment provi- care or access to medical services sion medical interpreting constitutional amend- When 2(A)(n)-(iii), Regs. Reg. 5 Code Colo. 1006-2. ment, may explanatory look to the [courts] Legislative Council of publication of the However, already had because defendant Assembly, otherwise General the Colorado regulation been tried and convicted when this not bind- known as the Blue Book. While 30, 2009, August became effective on this provides important in- ing, the Blue Book regulatory inapplicable definition is to this understanding of sight into the electorate’s case. we need not address whether passed it was the amendment when “primary care-giver” defendant public’s adopt- intentions in also shows the definition, under this nor need we decide ing the amendment. comports definition whether with the “primary care-giver” definition. (Colo. Dean, Grossman Hamilton, Macravey App.2003); reject see We also contention that defendant’s (Colo.1995) (the Blue Book is a lenity applies P.2d 1076 the rule of here. rule of helpful equivalent lenity provides to the source that courts must resolve am amendment). history proposed biguities the defendant’s favor. See Peo Leske, ple v. provided: The Blue Book apply It is a rule of last resort and does not criminal Current Colorado and federal where, here, applicable provi to cases distribution, possession, prohibits law unambiguous. People sion is See v. Sum proposal and use of does mers, (Colo.2009)(rule lenity 208 P.3d 251 laws, federal criminal but not affect only ais rule of last resort invoked after legal- amends the Colorado Constitution to ascertaining legislature’s other means marijuana pa- ize the medical use of failed); People, intent have Frazier v. 90 registered with the tients who have (Colo.2004) 807, (“application P.3d 811 proposal state.... Because the does not lenity rule of is a last resort and will not be law, change current distribution mari- applied when we are to discern able juana illegal in will still be Colorado. Assembly”); intent of the General see also registry (rule Patients on the are allowed to Leske, lenity “may 957 P.2d at 1042 use, legally acquire, possess, grow, and clearly expressed not be used to frustrate marijuana par- transport and intent”); Terry People, aphernalia. (Colo.1999) 145, (“giving statutory 151 words meaning their full the context Council, Legislative Research Pub. Colorado they are used does not violate the rule of 475-6, Analysis No. An 2000 Ballot Pro Court, lenity” (quoting People v. Dist. 713 (2000) added). posals 1 (emphasis (Colo.1986))). 918, P.2d distinguishes The Blue Book between ac- hand, quisition possession on the one B. “End User” Defense Instruction distribution on the other. This distinction contends the trial court Defendant further bolsters our conclusion that to rejecting erred her “end user” affirmative aas under our constitu- qualified un defense instruction because she requires merely supplying tion registration exceptions provided in der the patient. to a 18-18-302, We will not C.R.S.2009. following ruling De- disturb the court’s because defendant Defendant maintains adequate partment provided and Environment has not us with an record of Public Health guide interpretation: our to review her claim. definition should Constitutionality pro the burden of IV. of Possession Defendant bears reviewing adequate with an viding court with Intent to Distribute appellate forth his or her record sets Finally, defendant contends that sec People v. underpinnings. factual See claims’ 18-18-406(8)(b)(I), C.R.S.2009, defining tion (Colo.1996)(the Rodriguez, 914 P.2d possession the crime of with intent to distrib desig appellant responsibility to “bears the ute, unconstitutionally vague because it appeal and to ensure its nate the record on quantity required permit fails to state the court”). Ab appellate transmission to the possessor the inference that the intended to record, adequate presume we sent an distribute the controlled substance. We con findings trial court’s and conclusions are cor clude statute is constitutional. 126, 127, People, Till v. 196 Colo. rect. presumed Statutes constitutional. (1978). P.2d (Colo. McCullough, provided Because defendant has not us 2000). party challenging a statute’s va transcripts, with trial we are unable to deter lidity proving carries burden of unconsti presented any whether mine she evidence tutionality beyond a reasonable doubt. Peo tending to her affirma establish “end user” (Colo. Hickman, ple v. correspond requiring tive defense and thus 1999). Garcia, People instruction. See Accordingly, P.3d we vagueness law is void for where its presume trial court did not err con prohibitions clearly are not defined and it is cluding any present that defendant failed to reasonably susceptible of more than one in- supporting evidence affirma “end-user” terpretation person of common intelli- Till, tive defense instruction. See 196 Colo. gence. Vague give Id. at 643. laws fail to at 581 P.2d at 299. prohibited fair notice of the conduct and do supply -adequate prevent standards

III. Search Warrant arbitrary discriminatory enforcement. Defendant trial contends the court Id. suppressing erred in not evidence obtained 18—406(8)(b)(I) part, relevant section 18— when her home was searched. Because the provides any “it is unlawful for know part affidavit and search warrant are not manufacture, ingly sell, dispense, distrib appeal, presume the record on we the trial ute, manufacture, possess with intent to properly court denied defendant’s motion. sell, dispense, mari[j]uana.” or distribute The United States and Colorado Constitu phrase The “intent to distribute” is a term prohibit issuing tions a search warrant ex ordinary intelligence that a can cause, cept probable supported by on oath or quantity required per understand. The particularly describing affirmation place the possessor mit the fact finder to infer that the things be searched and the to be seized. intended to distribute a controlled substance Pacheco, (Colo. 94 “evidentiary in necessarily nature and de 2006). Probable cause must be established pends upon all the facts and circumstances of

within an affidavit’s four corners. Id. ... the case and mention thereof in the entirely unnecessary.” statute is United Any appearing facts not in the record can- (10th King, States v. 485 F.2d Cir. Wells, People not be reviewed. 1973) (rejecting argument defendant’s Here, the affidavit and § prohibits which manufactur U.S.C. search warrant are not the record on ing, distributing, dispensing, possessing appeal. reviewing presumes court controlled substances with intent to distrib portions material omitted from the record ute, vagueness). is void for support judgment. would the Id. We there- presume properly fore the trial court denied is affirmed. suppress, defendant’s motion to affi- and the proba- davit and search warrant established Judge LICHTENSTEIN concurs. Colo, Till, ble cause. See at Judge specially P.2d at 299. LOEB concurs. majority, concurring. by ers. As noted the when inter- Judge specially LOEB amendment, preting a constitutional courts majority’s disposition and agree the I publication explanatory often look to the respect to all issues in this reasoning with Legislative the Council of the Colorado Gen- However, separately with I write re- case. Assembly, the eral otherwise known as Blue primary care-giver issue to ex- spect to the Here, background Book. Id. in the section of anomaly my practical about a press concern analysis the Blue of the medical mari- Book’s medi- regarding application Colorado’s amendment, juana it states that because the amendment, marijuana constitutional cal proposed change amendment “does not cur- which, view, my cries out law, marijuana will still rent distribution action. illegal Legis- Colorado.” See Colorado legal The fundamental issue we called Council, 475-6, lative Research Pub. No. An appeal resolve in this is whether to on to (2000). Analysis Proposals Ballot “primary care-giver” under Colo qualify Further, describing arguments against rado Constitution article amendment, proposed the Blue Book not- 14(l)(f), person manage must do more to ed, proposal provide any does “[T]he merely than qualifying patient’s legal by patient may means which a obtain supply marijuana. resolving In that issue of law, marijuana. Under state criminal it will interpretation, we should strive illegal marijuana marijuana still be to sell give to ascertain and effect to the intent of individual, plants including pa- to another adopted those who the amendment. See registry.” tient on the state Id. at 2. (Colo. Dean, Grossman v. so, App.2003). To do we “must determine sys- the amendment has created a language what the voters believed qualifying patients tem and their it, they approved amendment meant when primary care-givers legally can use medical giving language popular the natural and (which marijuana acquir- includes the act of meaning usually understood the voters.” it) they acquire but still have to it from analysis, Applying plain language Id. this by selling someone who will violate the law concludes, majority agree, and I my to them. “primary care-giv constitutional definition of view, absurd, may while result this not be something simply sup er” means and, indeed, appears exactly to be what the plying qualifying patient with medical mari amendment, in passing voters intended it juana. poses practical anomaly a bizarre order —in result, practical problem with this amendment, purpose to effectuate the however, is that the medical con- namely, provide an affirmative defense or adopted by stitutional amendment voters immunity prosecution patients truly from years ago essentially almost ten closes its marijuana, in need of medical it forces such eyes reality qualifying patient to the that a persons primary care-givers or their to en- (as or his or her defined (at gage in illegal an transaction least from in interpreted the amendment and in the standpoint supplier) of the to obtain the majority opinion) engage must in somehow marijuana in place. the first This is because initial acquire marijua- an transaction to any subsequent neither the amendment nor person pro- na from some other who is legislation passed Assembly the General prosecution tected from criminal and convic- (such any sets forth mechanism as state li- any tion or constitutional amendment dispensaries) by patients censed Thus, legislative although quali- enactment. caregivers acquire marijua- their can medical fying patients primary caregivers may any na. Nor make does amendment protected liability, nothing be from criminal distinguish attempt types sup- to between protects original sup- the amendment their pliers drug dealers of deal- pliers prosecution from or conviction on grows er on the street and a who drug-related charges. marijuana plants solely in his or her home Indeed, very appears purpose it this was the intent for the it to amendment, same; patients presented to the vot- medical are treated the both subject prosecution and con- to criminal medical to a they provide if viction care-

qualifying patient or his or system provide to

giver. this seems acquire patients need to

disincentive for certainly provides marijuana, and it

medical incentive, monetary gain, pure than

no other anyone provide medical to a to primary care-giver.

qualifying patient or extent, anomaly suspect I this is

To some vagaries and weaknesses in

the result of the process in Colorado. It is

the voter initiative nearly pro-

probably impossible to draft amendment that could

posed constitutional

anticipate provide for all conceivable

practical problems may actually arise in

applying implementing the amendment. obviously political recognize

I there are as-

pects proposed to constitutional initiatives as

well; initiatives, may proponents of such here, will make

have been case conces- compromises pro-

sions and in the ultimate

posal submitted the voters in order getting passed. it

maximize the chances of province

It is not the court this policy legislative

involve itself consider-

ations, express opinion and I no whatsoever original

on the wisdom of the practical anomaly or how the

amendment My might

discussed herein be alleviated. writing separately

purpose simply

identify perceive the flaw I in the current

system suggest and to that some required salutary if

action will be

purposes fully are to amendment

effectuated. COLUCCI, Plaintiff-Appellant,

Richard VAIL, Defendant-Appellee.

TOWN OF

No. 09CA0006. Appeals,

Colorado Court of A.

Div.

Oct. 2009.

Case Details

Case Name: People v. Clendenin

Court Name: Colorado Court of Appeals

Date Published: Oct 29, 2009

Citation: 2009 Colo. App. LEXIS 1864

Docket Number: 08CA0624

Court Abbreviation: Colo. Ct. App.