People v. Douglas

• Decision Date: 22 October 2015
• Docket Number: Court of Appeals No. 14CA0135
• Citation: 412 P.3d 785
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Susan Gail DOUGLAS, Defendant–Appellant.
• Court: Colorado Court of Appeals

412 P.3d 785

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Susan Gail DOUGLAS, Defendant–Appellant.

Court of Appeals No. 14CA0135

Colorado Court of Appeals, Div. I.

Announced October 22, 2015

Rehearing Denied December 10, 2015

Cynthia H. Coffman, Attorney General, Jay C. Fisher, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

The Noble Law Firm, LLC, Antony Noble, Ruchi Kapoor, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE HARRIS

¶ 1 Susan Gail Douglas appeals her conviction of possession with intent to manufacture or distribute less than five pounds of marijuana. Her primary contention on appeal is that the evidence was insufficient to prove the elements of the offense or to disprove her affirmative defense. She further contends that the district court erred in excluding the testimony of her expert witness and in admitting expert testimony from two police officers who testified as lay witnesses.

¶ 2 We affirm.

I. Background

¶ 3 In June 2011, the Federal Heights Police Department received a tip regarding drug activity at the trailer home of common law spouses Michael Crawford and Susan Douglas. Officers conducted a search of trash removed from the property and found suspected marijuana leaves. A police SWAT team executed a search warrant on the home, where they found twenty-eight marijuana plants. Police also discovered a safe containing four firearms, $1000 in cash, recently-harvested marijuana that was in the process of drying, and bags with jars containing smaller amounts of marijuana. An additional firearm was found outside the safe, and another bag of marijuana was found in the kitchen pantry.

¶ 4 The officers found medical marijuana application forms, approved by the Colorado Department of Public Health and Environment (the health department), for both Ms. Douglas and Mr. Crawford. The accompanying physician's statement indicated that each patient required twelve plants—twice the presumptive maximum under Colorado law—because they preferred to ingest marijuana through edibles rather than smoke it. Before trial, defendants obtained new physician's statements which indicated that each patient required eighteen plants.

¶ 5 Both Ms. Douglas and Mr. Crawford were 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 found in the home. They were tried jointly in October 2013.

¶ 6 Based on their status as medical marijuana patients registered with the health department, the defendants asserted an affirmative defense under sections 14(2)(a) and 14(4)(b) of the Medical Marijuana Amendment (Amendment), article XVIII of the Colorado Constitution. Both defendants were convicted of possession with intent to manufacture or distribute, but were acquitted of the special offender charge, with the jury specially finding that neither defendant "used, displayed, possessed on [his or] her person or within [his or] her immediate reach a deadly weapon at the time of the commission of the offense." Ms. Douglas was sentenced to two years' intensive supervision probation.

II. Sufficiency of the Evidence

¶ 7 Ms. Douglas contends that the evidence was insufficient to prove the elements of possession with intent to manufacture or distribute marijuana or to disprove her medical marijuana affirmative defense. We disagree.

¶ 8 We review the record de novo to determine if the evidence was sufficient to support a conviction. Dempsey v. People, 117 P.3d 800, 807 (Colo.2005). In reviewing the sufficiency of the evidence, we determine whether the evidence, viewed as a whole and in the light most favorable to the prosecution, is both "substantial and sufficient" to support the defendant's guilt beyond a reasonable doubt. Id. In applying this test, "we must give the prosecution the benefit of every reasonable inference that might fairly be drawn from the evidence." People v. Atencio, 140 P.3d 73, 75 (Colo.App.2005).

A. Sufficiency of the Evidence to Prove the Elements of Intent to Distribute

¶ 9 To obtain a conviction for the offense of possession with intent to manufacture or distribute less than five pounds of marijuana, the prosecution had to prove beyond a reasonable doubt that Ms. Douglas (1) knowingly; (2) possessed, or attempted to possess, with intent to manufacture or distribute; (3) marijuana. Only the second element was seriously disputed at trial.

¶ 10 The prosecution's theory was that Ms. Douglas and Mr. Crawford were fraudulently using their medical marijuana licenses to illegally distribute marijuana. In support of the theory, the prosecution pressed three primary arguments: that the amount of marijuana found at the residence was more consistent with distribution than with personal use; that the sophistication of the defendants' marijuana grow¹ demonstrated that plants were being grown for distribution, not medical, purposes; and that the presence of guns and cash at the residence strongly suggested that the defendants were engaged in illegal distribution activities.

¶ 11 The evidence underlying these arguments was not overwhelming, but we conclude that it was sufficient. With respect to the amount of marijuana, the prosecution established that Ms. Douglas and Mr. Crawford together possessed twenty-eight marijuana plants, which, according to the jury instructions, was more than twice the presumptive number permitted for medical use, and nearly twenty percent more than the number of plants allowed under their physician's certification.²

¶ 12 The freshly-cut marijuana recovered from the defendants' home, once dried, weighed approximately two and one-half pounds, inclusive of all parts of the plant. In contrast, the presumptive amount permitted as medical marijuana is two ounces per person. Based on their combined prescriptions, which authorized each of them to possess twice the legal limit, Ms. Douglas and Mr. Crawford could legally possess a total of eight ounces of marijuana.

¶ 13 The amount of usable marijuana in the bag was disputed. Mr. Crawford testified that he and Ms. Douglas did not use the leaves of the plants, while one of the prosecution's witnesses, Detective Patrick Murphy, testified that people commonly use the leaves of the marijuana plant to make edibles. But the jury instructions appeared to resolve the issue, defining "useable form of marijuana" as "the seeds, leaves, buds, and flowers" of a marijuana plant, but not "the plant's stalks, stems, and roots." A reasonable juror, therefore, was obliged to conclude that all parts of the dried marijuana plant in the bag, other than the stems, stalks, and roots, were usable marijuana for purposes of determining the quantity possessed by Ms. Douglas and Mr. Crawford. Although the prosecution did not provide the jury with any estimate of the weight of the usable portion of the marijuana, viewing the evidence in the light most favorable to the prosecution, the jury could reasonably have determined that much of the two and one-half pounds of plant material in the bag was useable, distributable marijuana.

¶ 14 Additional marijuana was found in the house, as well. A sizeable bag of dried marijuana was recovered from the pantry, and at least two smaller bags, which included jars labeled with the names of different marijuana strains, were found in the safe.

¶ 15 In addition, the prosecution undercut the defendants' position that the large quantities of marijuana were necessary for making edibles. Detective John Browning testified that he searched the house for edibles, though not thoroughly, and found none.

¶ 16 Based on this evidence, a reasonable jury could have concluded that the amount of marijuana in the house was more consistent with distribution than with personal use. See Atencio, 140 P.3d at 76 (possession of a large amount of controlled substances supported inference of intent to distribute).

¶ 17 The prosecution also presented evidence that the defendants' marijuana grow was sophisticated and elaborate. The jury viewed a videotape of the execution of the search warrant, which depicted plants at different stages of development growing in several areas of the house. A large proportion of the space appeared to be devoted to growing marijuana. The defendants had set up an irrigation system, fans, special lighting, and a venting system all within the small residence. The video highlighted that the plants were labeled and organized, and that Ms. Douglas and Mr. Crawford appeared to be keeping notes about the grow operation on a white board in one of the rooms.

¶ 18 In addition, Detective Murphy testified that the grow operation at Ms. Douglas's residence was not consistent with legitimate medical marijuana grow operations. He explained that generally medical marijuana grows were confined to one area of a residence, usually outside in a garage or shed, and that it was unusual for a medical marijuana grow to include separate areas designated for plants at different stages of development.

¶ 19 The prosecution acknowledged the absence of distribution materials, like scales, baggies, and multiple cell phones, but introduced testimony that drug distributors commonly maintain separate production and distribution facilities.

¶ 20 The jury could reasonably have concluded that Ms. Douglas's marijuana grow was more consistent with a marijuana grow operated for distribution purposes than one operated for medical purposes.

¶ 21 Finally, the prosecution emphasized the recovery of three operable guns and $1000 in cash from the residence. According to the prosecution, the $1000 in cash represented nearly a tenth of the defendants' total earnings in the preceding year and the guns were likely used to protect the defendants' illegal drug operation and their cash profits from their marijuana business.

¶ 22 The jurors did not have to accept these arguments, and they clearly rejected the prosecution's theory that Ms. Douglas used, displayed, or possessed a...