People v. Paulsen, No. 28338

• Docket Nº: No. 28338
• Citation: 601 P.2d 634, 198 Colo. 458
• Case Date: October 22, 1979
• Court: Supreme Court of Colorado

Page 634

601 P.2d 634 198 Colo. 458 The PEOPLE of the State of Colorado, Plaintiff-Appellant,
v.
Gary Wayne PAULSEN, Defendant-Appellee. No. 28338. Supreme Court of Colorado, En Banc. Oct. 22, 1979.

[198 Colo. 459]

Page 635

Nolan L. Brown, Dist. Atty., John R. Barksdale, Deputy Dist. Atty., Golden, for plaintiff-appellant.

C. J. Berardini, Denver, for defendant-appellee.

ROVIRA, Justice.

This is an appeal by the People from a judgment of acquittal entered by the trial court at the close of the People's case. The defendant was charged in an information with the crime of "possession with intent to dispense a dangerous drug . . . in violation of 12-22-404, C.R.S. 1973." The issues raised by this appeal are: (1) whether the trial court erred as a matter of law in granting the defendant's motion for judgment of acquittal on the basis that section 12-22-404, C.R.S. 1973 (1978 Repl.Vol. 5), did not proscribe the crime charged; and (2) whether jeopardy attached. We disapprove of the trial court's granting of the motion for judgment of acquittal, but rule that the defendant has been in jeopardy.

I.

The trial court based its judgment of acquittal on its determination that the statute cited in the information, section 12-22-404, does not define the crime of possession of a dangerous drug with intent to dispense. The People argue that the crime is validly defined in section 12-22-412(3), C.R.S. 1973 (1978 Repl.Vol. 5). We agree.

It is true that section 12-22-404, standing alone, does not define the crime in question. However, section 12-22-412(3), labeled "Violations penalties," at the time relevant to this appeal, provided as follows:

[198 Colo. 460] "Any person who has in his possession any dangerous drug with the intent to dispense said drug in violation of the provisions of section 12-22-404 . . . is guilty of a felony . . .."

People v. Shortt, 192 Colo. 183, 557 P.2d 388 (1976), is dispositive of this issue. In Shortt, we held that the trial court had acted improperly in dismissing an information which charged the crime of possession of cannabis with intent to sell. The inclusion of that crime within section 12-22-412(3), read in the context of the entire Colorado Dangerous Drug Act, was an adequate specification of the proscribed conduct, and the subheading, "Violations penalties," since not a part of the text of the statute, would not defeat the otherwise clear legislative proscription of conduct. This court also held in People v. Marion,...