People v. Russell

• Citation: 396 P.3d 71
• Decision Date: 13 March 2014
• Docket Number: Court of Appeals No. 11CA1929
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Brandi Jessica RUSSELL, Defendant–Appellant.
• Court: Court of Appeals of Colorado

396 P.3d 71

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

v.Brandi Jessica RUSSELL, Defendant–Appellant.

Court of Appeals No. 11CA1929

Colorado Court of Appeals, Div. I.

Announced March 13, 2014

As Modified on Denial of Rehearing May 8, 2014

John W. Suthers, Attorney General, Ethan E. Zweig, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Emeson Law, LLC, Brian S. Emeson, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE MILLER

¶ 1 Defendant, Brandi Jessica Russell, appeals the judgment of conviction entered upon a jury verdict for possession of methamphetamine, possession of marijuana concentrate, and possession of less than an ounce of marijuana. We affirm in part, reverse in part, and remand with directions.

¶ 2 In Part II, we hold, as a matter of first impression, that Colorado Constitution article XVIII, section 16 (popularly known as Amendment 64), which decriminalized possession of one ounce or less of marijuana for personal use, applies retroactively to defendants whose convictions under those provisions were subject to appeal or postconviction motion on the effective date of the amendment. We also conclude, in Part III, that the trial court did not err in allowing a police officer to testify, based on his own experience, regarding the physical effects of methamphetamine and therefore uphold defendant's conviction on the methamphetamine charge.

I. Background

¶ 3 In March 2010, defendant and her husband (father) brought their infant son to the hospital in Granby. Father reported that, while lying in bed, he rolled over onto the infant's leg, "heard a pop," and the infant began to cry. A doctor ordered an x-ray of the infant's leg which revealed that the infant had a spiral fracture on his left femur. The doctor recommended transporting the infant to Children's Hospital (Children's) in Denver for further treatment and care. The doctor was concerned and "a little suspicious" regarding the type of injury as well as the behavior of the infant and parents. The doctor contacted another physician at the emergency department at Children's to report the infant's condition and his suspicion that the infant had been abused.

¶ 4 A social worker from Children's contacted the Grand County Department of Social Services (DSS). A DSS social worker interviewed defendant at Children's and was concerned that the infant's injury was not consistent with defendant's report. The social worker also noted that defendant appeared to be under the influence of a substance. The social worker obtained a court order to perform a urinalysis on defendant to test for drug use.

¶ 5 Defendant's test indicated that she had amphetamine, marijuana, and methamphetamine in her urine. The police searched defendant's home pursuant to a warrant and seized several items, including drug paraphernalia, miscellaneous containers containing marijuana, marijuana concentrate, and methamphetamine.

¶ 6 Defendant was charged with child abuse resulting in serious bodily injury, possession of one gram or less of a schedule II controlled substance (methamphetamine), and possession of marijuana concentrate. Following a jury trial, she was acquitted of the child abuse charge, but found guilty of the remaining charges and of possession of less than one ounce of marijuana, a non-included petty offense included in the jury instructions and verdict forms at defendant's request. In August 2011, the trial court sentenced defendant to 2 concurrent 4–year terms of supervised probation, 192 hours of community service, and a suspended sentence of 90 days in jail.

II. Retroactive Application of Amendment 64

¶ 7 Defendant contends that Amendment 64 should be applied retroactively and that her convictions for possession of marijuana concentrate and possession of less than one ounce of marijuana should be vacated. We agree.

A. Standard of Review

¶ 8 We review de novo the interpretation of a constitutional provision, Bruce v. City of Colorado Springs, 129 P.3d 988, 992 (Colo.2006) (addressing constitutional amendment enacted by voter initiative); People v. Clendenin, 232 P.3d 210, 212 (Colo.App.2009) (same), and of a statute. Larson v. Sinclair Transp. Co., 2012 CO 36, ¶ 7, 284 P.3d 42. We use general rules of statutory construction in construing citizen-initiated measures. Huber v. Colo. Mining Ass'n, 264 P.3d 884, 889 (Colo.2011). Our primary task is to give effect to the will of the people in construing a constitutional provision, id. and the intent of the General Assembly in construing a statute, Larson, ¶ 8. In doing so, we first look to the language of the constitutional provision or statute. Huber, 264 P.3d at 889. If the language is ambiguous we look to the constitutional or statutory provision's legislative history, the consequences of a given construction, and the overall goal of the constitutional or statutory scheme to determine the proper interpretation. See Sperry v. Field, 205 P.3d 365, 367 (Colo.2009).

B. Analysis

¶ 9 In November 2012, Amendment 64 was adopted by the vote of the people. It provides, in pertinent part:

In the interest of the efficient use of law enforcement resources, enhancing revenue for public purposes, and individual freedom, the people of the state of Colorado find and declare that the use of marijuana should be legal for persons twenty-one years of age or older and taxed in a manner similar to alcohol.

Colo. Const. art. XVIII, § 16 (1)(a). As relevant here, the amendment further provides:

[T]he following acts are not unlawful and shall not be an offense under Colorado law ... for persons twenty-one year of age or older:

(a) Possessing ... one ounce or less of marijuana.

Colo. Const. art. XVIII, § 16 (3)(a). Amendment 64 defines "marijuana" to include all parts of the cannabis plant, as well as marijuana concentrate. Colo. Const. art. XVIII, § 16 (2)(f).

¶ 10 Section 16(9) of the amendment provides, "[u]nless otherwise provided by this section, all provisions of this section shall become effective upon official declaration of the vote hereon by proclamation of the governor, pursuant to section 1(4) of article V." Colo. Const. art. XVIII, § 16 (9) (emphasis added). The governor made the proclamation on December 10, 2012. 2013 Colo. Sess. Laws 3300. The question before us is whether section 16 (2)(f) applies to defendant's conduct, which occurred twenty months before Amendment 64's effective date.

¶ 11 In general, when construing a constitutional amendment, unless its terms clearly show intent that the amendment be retroactively applied, "we presume the amendment has prospective application only." Huber, 264 P.3d at 889 (citing Jackson v. State, 966 P.2d 1046, 1052 (Colo.1998) ; In re Interrogatories on Great Outdoors Colo. Trust Fund, 913 P.2d 533, 539 (Colo.1996) ; Bolt v. Arapahoe Cnty. Sch. Dist. No. Six, 898 P.2d 525, 533 (Colo.1995) ); cf. § 2–4–303, C.R.S.2013 ("The repeal, revision, amendment, or consolidation of any statute ... shall not have the effect to release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such statute, unless the ... act so expressly provides....").

¶ 12 Here, the language of Amendment 64 does not clearly express an intent for retroactive application of section 16 (3)(a).¹ The general presumption of prospective application, however, is subject to a doctrine established by our General Assembly and supreme court enabling a defendant to benefit retroactively from a significant change in the law. Section 18–1–410(1)(f)(I), C.R.S.2013, permits a defendant to request postconviction relief if "there has been significant change in the law, applied to the applicant's conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard." Thus, a defendant is entitled to seek the benefits of amendatory legislation that mitigates the penalties for crimes when he files a motion for postconviction relief. People v. Thomas, 185 Colo. 395, 395, 525 P.2d 1136, 1138 (1974). The supreme court extended this doctrine to defendants seeking relief on direct appeal. People v. Thornton, 187 Colo. 202, 203, 529 P.2d 628, 628 (1974). Amendment 64, by decriminalizing the personal use or possession of one ounce or less of marijuana, meets the statutory requirement for "a significant change in the law" and eliminates and thus mitigates the penalties for persons convicted of engaging in such conduct.

¶ 13 This case is therefore similar to People v. Bloom, 195 Colo. 246, 577 P.2d 288 (1978). There, the defendant was convicted of possession of marijuana under a 1963 statute that provided for imprisonment from two to fifteen years; the trial court sentenced him to five to twelve years. Id. at 251–52, 577 P.2d at 292. However, after he had committed the offense,² the legislature amended the statute to reduce the offense to a misdemeanor with a maximum sentence of one year. Id. at 251, 577 P.2d at 292. Applying Thomas, the court held that the defendant, on direct appeal, was entitled to the benefits of the amendatory legislation that mitigated the penalty for the possession offense. Id. Although Bloom involved a mitigating statute, we see no reason to reach a different result when the mitigation is accomplished by constitutional amendment. See Huber, 264 P.3d at 889 (applying statutory construction principles to constitutional amendment); Bickel v. City of Boulder, 885 P.2d 215, 228 n. 10 (Colo.1994) (same).

¶ 14 Further, we note that in Bloom , the court construed Thomas as holding "that a defendant is entitled, whenever constitutionally permissible, to the benefits of amendatory legislation which mitigates the penalty for a crime." 195 Colo. at 251, 577 P.2d at 292 ("[t]he legislature intended the changed legal standards to apply wherever constitutionally permissible."); see alsoThomas , 185 Colo. at 391, 525 P.2d at 1137.

¶ 15 Citing Riley v. People , 828 P.2d 254, 258 ...