People v. Iversen

2013 COA 40, 321 P.3d 573, 2013 WL 1245334, 2013 Colo. App. LEXIS 445
CourtColorado Court of Appeals
DecidedMarch 28, 2013
DocketCourt of Appeals No. 11CA0553
StatusPublished
Cited by8 cases

This text of 2013 COA 40 (People v. Iversen) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Iversen, 2013 COA 40, 321 P.3d 573, 2013 WL 1245334, 2013 Colo. App. LEXIS 445 (Colo. Ct. App. 2013).

Opinion

Opinion by

JUDGE DAILEY

[ 1 Defendant, Vincent J. Iversen, appeals the judgment of conviction entered upon a jury verdiet finding him guilty of attempting to introduce marijuana concentrate into a detention facility in violation of section 18-8-208(1)(a), C.R.S8.2012. We affirm.

I. Background

2 While detained in a community corree-tions 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.

1 3 Defendant was charged with the above-mentioned offense. Before trial, the prosecution filed a motion in limine to exelude evidence of defendant's appointment with the doctor.

T4 At a hearing on the motion, the following evidence was presented:

e Defendant had received, and was familiar with, a community corrections handbook;
e 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;
e All prescribed drugs must be turned over to the community corrections staff, who would keep them in a locked cabinet and supervise their administration;
'e 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;
e 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 onee 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 martjua-na concentrate in the facility, the exclusion of [576]*576that evidence would impinge his constitutional right to present a defense.

T6 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]."

17 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"; (8) community corrections personnel had approved his doe-tor'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.)

T9 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.

T10 The 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

11 Defendant contends that, in exeluding evidence of his receipt of a doctor's medical marijuana certificate, the trial court imper-missibly infringed on his constitutional right to present a defense. The excluded evi-denee, 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.

112 Few 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 [577]*577inadmissible under standard rules of evidence.").

{13 Evidence 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.

{14 Here, 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.

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Cite This Page — Counsel Stack

Bluebook (online)
2013 COA 40, 321 P.3d 573, 2013 WL 1245334, 2013 Colo. App. LEXIS 445, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-iversen-coloctapp-2013.