People v. Clendenin, Court of Appeals No. 08CA0624 (Colo. App. 10/29/2009)
| Decision Date | 29 October 2009 |
| Docket Number | No. 08CA0624.,08CA0624. |
| Parties | The People of the State of Colorado, Plaintiff-Appellee, v. Stacy Clendenin, Defendant-Appellant. |
| Court | Court of Appeals of Colorado |
John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Robert J. Corry, Jr., Denver, Colorado, for Defendant-Appellant.
Opinion by JUDGE HAWTHORNE
Accordingly, we affirm the judgment of conviction entered against defendant, Stacy Clendenin, on jury verdicts finding her guilty of cultivation of marijuana, possession with intent to distribute marijuana, possession of marijuana concentrate, possession of marijuana — eight ounces or more, and possession of drug paraphernalia.
A Longmont police detective received a tip from an informant that defendant's residence had "come and go" traffic. After obtaining utility and assessor records for the property and several similarly-sized nearby residences, he discovered that the power usage at defendant's house was four times greater than that of comparable houses between June and September 2006 except for one month, when it was three times higher. Defendant's power usage was also three times higher than the previous resident's. The detective conducted a solid waste inspection and found three marijuana stalks located inside a trash can in front of defendant's house. Based on this information, he obtained a search warrant.
When the detective executed the warrant, defendant opened the door and identified herself. He smelled a strong scent of marijuana and informed her that he had a warrant to search the residence. Defendant escorted the detective to the basement where she had two "grow rooms," and told the detective she grew four kinds of marijuana for medical purposes because she suffered from migraine headaches. During the search, the detective found forty-four marijuana plants, $572 in defendant's bedroom, and sixty-seven medium-sized zip lock jeweler's bags.
Prior to trial, defendant moved to suppress evidence seized during the search, arguing that the affidavit for the search warrant lacked probable cause. The trial court concluded that the marijuana stalks found in the trash can and the utility bill information established probable cause. The court also ruled that the evidence was admissible under the good faith exception, and denied defendant's motion.
Because we presume the trial court properly denied defendant's motion to suppress for the reasons discussed in Part III below, we begin our analysis by addressing her argument that the trial court erred in limiting her ability to present affirmative defenses.
Defendant contends the trial court erred in limiting her ability to present the "primary care-giver" and "end user" affirmative defenses provided under Colorado Constitution article XVIII, section 14(2)(a), and section 18-18-302(3), C.R.S. 2009, respectively. We discern no error.
We review de novo the interpretation of a constitutional provision. Danielson v. Dennis, 139 P.3d 688, 690-91 (Colo. 2006); Rocky Mtn. Animal Def. v. Colo. Div. of Wildlife, 100 P.3d 508, 513 (Colo. App. 2004).
In relevant part, the Colorado Constitution provides:
[A] patient or primary care-giver charged with a violation of the state's criminal laws related to the patient's medical use of marijuana will be deemed to have established an affirmative defense to such allegation where:
(I) The patient was previously diagnosed by a physician as having a debilitating medical condition (II) The patient was advised by his or her physician, in the context of a bona fide physician-patient relationship, that the patient might benefit from the medical use of marijuana in connection with a debilitating medical condition; and
(III) The patient and his or her primary care-giver were collectively in possession of amounts of marijuana only as permitted under this section.
Colo. Const. art. XVIII, § 14(2)(a).
"Primary care-giver" is defined as "a person, other than the patient and the patient's physician, who is eighteen years of age or older and has significant responsibility for managing the well-being of a patient who has a debilitating medical condition." Colo. Const. art. XVIII, § 14(1)(f) (emphasis added).
Defendant maintains that she qualified as a "primary care-giver" under the Colorado Constitution because "the provision of medical marijuana, itself, . . . constitutes the `significant responsibility' required to be a caregiver," and, thus, she was entitled to assert the affirmative defense provided in section 14(2)(a). The trial court rejected defendant's argument, ruling that by law, a marijuana grower who has no personal contact with patients does not satisfy the "primary care-giver" definition, and therefore only allowed testimony from witnesses with whom defendant had personal contact. We likewise reject defendant's argument, but on a basis different from the trial court's rationale. We conclude that to qualify as a "primary care-giver" a person must do more than merely supply a patient who has a debilitating medical condition with marijuana.
In so concluding, we are guided by traditional principles of constitutional interpretation. We afford the language its ordinary and common meaning to give effect to every word and term contained therein. People v. Rodriguez, 112 P.3d 693, 696 (Colo. 2005). When the language is plain, its meaning clear, and no absurdity is involved, constitutional provisions must be enforced as written. Id.
We are also guided by section 18-18-406.3(1), C.R.S. 2009, titled "Medical use of marijuana by persons diagnosed with debilitating medical conditions," which became effective in 2001, and provides, in relevant part:
(b) Section 14 of article XVIII of the state constitution creates limited exceptions to the criminal laws of this state for patients, primary care givers, and physicians concerning the medical use of marijuana by a patient to alleviate an appropriately diagnosed debilitating medical condition;
. . .
(g) Section 14 of article XVIII of the state constitution requires the general assembly to determine and enact criminal penalties for specific acts described in the constitutional provision;
(h) In interpreting the provisions of section 14 of article XVIII of the state constitution, the general assembly . . . has attempted to give the . . . words of the constitutional provision their plain meaning;
(i) This section reflects the considered judgment of the general assembly regarding the meaning and implementation of the provisions of section 14 of article XVIII of the state constitution.
This section is consistent with our case law concerning constitutional interpretation. See Rodriguez, 112 P.3d at 696. Further, the power to define criminal conduct and to establish the legal components for criminal liability is vested with the General Assembly, which is also empowered to formulate criminal responsibility principles and, within constitutional limitations, to restrict defenses to particular crimes. People v. Low, 732 P.2d 622, 627 (Colo. 1987).
The constitutional "primary care-giver" definition has not been reviewed by the appellate courts in Colorado. However, courts in other states with statutes similar to our constitutional provisions have addressed this issue and concluded that an individual must do more than simply supply a patient with medical marijuana to qualify as a "primary care-giver." See People v. Mentch, 195 P.3d 1061 (Cal. 2008); State v. Mullins, 116 P.3d 441 (Wash. Ct. App. 2005). We acknowledge that Washington's and California's "primary care-giver" statutory provisions are not identical to article XVIII, section 14(1)(f). These states' statutes specifically delineate the tasks required to qualify as a "primary care-giver"; in contrast, our constitutional provision requires that a primary care-giver have significant responsibility for managing the patient's well-being. However, both states' statutes, like Colorado's Constitution, address the requisite degree of responsibility for a patient's care necessary to qualify as a primary care-giver. Thus, they are sufficiently similar to inform our analysis.
Washington's Medical Use of Marijuana Act in effect at the time of the Mullins decision defined a primary care-giver as a person "18 years of age or older; . . . responsible for the housing, health, or care of the patient; and . . . designated in writing by the patient to perform the duties of primary caregiver." Mullins, 116 P.3d at 444 () (emphasis added). In Mullins, the court rejected the defendant's claim that he qualified as a primary care-giver because he supplied the patient with medical marijuana. Id. at 446. The court reasoned that although the defendant "arguably was providing a basic service in so far as he supplied [the patient] with the drugs necessary to treat his medical condition," he "was responsible for only one aspect of [the patient's] care" and did not perform a primary care-giver's statutory duties. Id.
Similarly, the California Supreme Court concluded that the defendant did not qualify as a primary care-giver, defined as "the individual designated by the person exempted under this section who has consistently assumed responsibility for the housing, health, or safety of that person." Mentch, 195 P.3d at 1067 (quoting Cal. Health & Safety Code § 11362.5(e)) (emphasis added). The court reasoned that California, like Colorado, limits "the caregiver exception by...
To continue reading
Request your trial