People v. Iversen

• Citation: 2013 COA 40
• Decision Date: 28 March 2013
• Docket Number: Court of Appeals No. 11CA0553
• Parties: The People of the State of Colorado,Plaintiff-Appellee, v. Vincent J. Iversen,Defendant-Appellant.
• Court: Court of Appeals of Colorado

2013 COA 40

The People of the State of Colorado,Plaintiff-Appellee,
v.
Vincent J. Iversen,Defendant-Appellant.

Court of Appeals No. 11CA0553

COLORADO COURT OF APPEALS

Announced March 28, 2013

Mesa County District Court No. 09CR1594

Honorable Thomas M. Deister, Judge

JUDGMENT AFFIRMED Division III Opinion by JUDGE DAILEY Furman and Booras, JJ., concur

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Rachel C. Funez, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

¶ 1 Defendant, Vincent J. Iversen, appeals the judgment of conviction entered upon a jury verdict finding him guilty of attempting to introduce marijuana concentrate into a detention facility in violation of section 18-8-203(1)(a), C.R.S. 2012. We affirm.

I. Background

¶ 2 While detained in a community corrections facility, defendant fell off his bed (top bunk), breaking his hip and injuring his back. To deal with his pain, defendant (1) visited a doctor, who issued him written documentation (hereafter, “certificate”) recommending the use of medical marijuana; and (2) used the certificate to purchase marijuana concentrate (in the form of “Garlic Butter, For Medicinal Use Only”) from the doctor’s office, Nature’s Alternative, which also functioned as a medical marijuana dispensary. Upon his return to the community corrections facility, facility officials seized the jar of marijuana concentrate.

¶ 3 Defendant was charged with the above-mentioned offense. Before trial, the prosecution filed a motion in limine to exclude evidence of defendant’s appointment with the doctor.

¶ 4 At a hearing on the motion, the following evidence was presented:

• Defendant had received, and was familiar with, a community corrections handbook;
• The handbook provided that inmates are not allowed to possess any drug unless it is prescribed by a licensed physician and the inmate has permission of a community corrections staff member;
• All prescribed drugs must be turned over to the community corrections staff, who would keep them in a locked cabinet and supervise their administration;
• Defendant had been approved by community corrections to see the doctor at Nature’s Alternative, to take money out of his account to pay for the visit, and for a facility ride to Nature’s Alternative;
• Defendant was given a ride to Nature’s Alternative by community corrections officials and was later picked up by them and returned to community corrections;
• The certificate given to defendant by the doctor was “a recommendation” for use of medical marijuana, “not a prescription”;¹
• A person was not eligible to get medical marijuana simply by receiving or signing a certificate; instead the person was required to fill out, and have notarized, an application for a medical marijuana registry identification card (which defendant had not done); and
• Although “there was supposed to be a [thirty-five-day] waiting period,” because the State was “approximately 70,000 applications behind” in processing medical marijuana registry identification cards, the “norm of the day” was to go straight to a dispensary once a person had a doctor’s certificate.

¶ 5 Defendant argued that, because his visit to the doctor was relevant to show why he thought he could lawfully possess marijuana concentrate in the facility, the exclusion of that evidence would impinge his constitutional right to present a defense.

¶ 6 The trial court granted the State’s motion to exclude this evidence, concluding that (1) defendant had illegally possessed marijuana in any form, because he had not followed the proper procedures to secure a medical marijuana registry identification card ; and (2) whether or not defendant knew he was violating the law was irrelevant.² Consequently, the court prohibited the parties from introducing “any evidence of the Defendant’s possession of medical marijuana paperwork, as well as his consultation with [the doctor].”

¶ 7 At trial, defendant essentially claimed he had been entrapped by community corrections personnel. To this end, he testified that (1) before his doctor’s appointment, he spoke with his case manager about his medical situation and asked “what was allowed and not allowed in Community Corrections as medication-wise”; (2) he spoke with one of the security officers about the “things that [he] can and cannot do”; (3) community corrections personnel had approved his doctor’s appointment and his withdrawal of money from his account to pay for the doctor’s appointment; (4) community corrections personnel had escorted him to and from Nature’s Alternative, where he visited the doctor and purchased the medicinal “garlic butter”; (5) the community corrections officer who picked defendant up noticed “small green plants” depicted on the outside of the building housing Nature’s Alternative; and (6) upon entering the community corrections facility, he opened up his backpack and handed the jar of marijuana concentrate, along with the doctor’s certificate, to a corrections official.

¶ 8 At one point, the prosecution objected that, in allowing, or even eliciting, some of this evidence, the court had violated its own pretrial ruling excluding evidence. (Indeed, the only additional evidence which defendant appears to have wanted to elicit was that concerning the doctor’s issuance of the medical marijuana certificate to him.)

¶ 9 The prosecution’s witnesses related that defendant had not volunteered the marijuana concentrate. Rather, it had been found in a search of defendant’s backpack, without defendant’s having told officials of its presence, despite ample opportunity to do so.

¶ 10The jury found defendant guilty as charged, and the trial court sentenced him to ninety days incarceration, four years probation, and 600 hours of community service.

II. Exclusion of Defense Evidence

¶ 11Defendant contends that, in excluding evidence of his receipt of a doctor’s medical marijuana certificate, the trial court impermissibly infringed on his constitutional right to present a defense. The excluded evidence, he says, would have supported a legitimate theory of defense, that is, that he was not guilty because he did not know that his conduct in attempting to introduce marijuana into the detention facility violated the law. For the following reasons, we are not persuaded.

¶ 12Few rights are more fundamental than the right of the accused to put before the jury evidence that might influence the determination of guilt. People v. Richards, 795 P.2d 1343, 1345 (Colo. App. 1989). However, the right to present a defense is not absolute; it requires only that the accused be permitted to introduce all relevant and admissible evidence. People v. Harris, 43 P.3d 221, 227 (Colo. 2002); see Taylor v. Illinois, 484 U.S. 400, 410, 108 S.Ct. 646, 653, 98 L.Ed.2d 798 (1988) (“The accused does not have an unfettered right to offer [evidence] that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.”).

¶ 13Evidence is relevant if it tends to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence. CRE 401.

¶ 14Here, the relevance of the proffered evidence turns on whether, to have committed a crime, defendant had to know he was violating the law in introducing marijuana into the community corrections facility.

¶ 15“Generally speaking, where the law imposes criminal liability for certain conduct, the scienter element requires ‘no more than that the person charged with the duty knows what he is doing. It does not mean that, in addition, he must suppose that he is breaking the law.’” People v. Holmes, 959 P.2d 406, 414 (Colo. 1998) (quoting United States v. Dashney, 937 F.2d 532, 538 (10th Cir. 1991)). “This general rule is based on the deeply-rooted principle that ignorance of the law or mistake of law is no defense to criminal prosecution.” Id.; see, e.g., Cheek v. United States, 498 U.S. 192, 199, 111 S.Ct. 604, 609, 112 L.Ed.2d 617 (1991); Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1957). “Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law.” Cheek, 498 U.S. at 199, 111 S.Ct. at 609 (emphasis added).

¶ 16A person is not relieved of criminal liability due to a mistake of law unless permitted by statute, administrative regulation, or an official written interpretation. § 18-1-504(2), C.R.S. 2012; see People v. Bossert, 722 P.2d 998, 1008 (Colo. 1986) (“A sincere but mistaken belief as to whether particular conduct constitutes an offense is not a defense to prosecution for such conduct under this statute unless the conduct is in fact permitted by statute, administrative regulation or judicial decision.”).

¶ 17In this case, whether defendant could be relieved of criminal liability because of a mistake of law turns on the culpable mental state required by the statute under which he was prosecuted. Pursuant to section 18-8-203(1)(a), “[a] person commits introducing contraband in the first degree if he or she knowingly and unlawfully . . . [i]ntroduces or attempts to introduce . . . marijuana . . . into a detention facility.” Id.

¶ 18The critical part...