v. Torline

2020 COA 160, 487 P.3d 1284

• Court: Colorado Court of Appeals
• Decided: November 12, 2020
• Docket: 18CA1156, People
• Status: Published

Opinion

The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.

SUMMARY November 12, 2020

2020COA160

No. 18CA1156, People v. Torline — Constitutional Law — First Amendment — Freedom of Religion; Crimes — Uniform Controlled Substances Act of 2013 — Offenses Relating to Marijuana and Marijuana Concentrate

The defendant, an ordained minister in a cannabis ministry,

challenges his convictions for growing and dispensing marijuana on

the ground that he uses marijuana for religious purposes. A

division of the court of appeals concludes that applying Colorado’s

law criminalizing the possession and growing of marijuana to a

person who conducts such activities for religious reasons does not

violate the person’s rights under the Free Exercise Clauses of the

United States and Colorado Constitutions. Therefore, the division

affirms the defendant’s convictions. COLORADO COURT OF APPEALS 2020COA160

Court of Appeals No. 18CA1156 Mesa County District Court No. 16CR6064 Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Aaron Snyder Torline,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VII Opinion by JUDGE NAVARRO Tow and Lipinsky, JJ., concur

Announced November 12, 2020

Philip J. Weiser, Attorney General, Shelby Krantz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Tanja Heggins, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant ¶1 As a matter of first impression, we conclude that applying a

Colorado statute criminalizing the possession and growing of

marijuana to a person who conducts such activities for religious

reasons does not violate the person’s rights under the Free Exercise

Clauses of the United States and Colorado Constitutions. As a

result, we affirm the judgment of conviction entered against

defendant, Aaron Snyder Torline.

I. Factual and Procedural History

¶2 In July 2016, Mesa County police officers noticed Torline and

another person walking in and out of a garage and loading trash

bags into the bed of a pickup truck, which the other person then

drove away. Officers stopped the truck for a traffic infraction. A

police dog alerted to the presence of drugs, and police discovered

that the trash bags contained marijuana.

¶3 Officers contacted Torline, who said there was a marijuana

growing operation inside the garage. Torline consented to a search

and explained his operation. He estimated that he was growing

approximately one hundred and fifteen plants, and that he

processed about ten plants per month with a yield of about two

ounces per plant.

1 ¶4 The prosecution charged Torline with cultivation of marijuana,

thirty or more plants, and possession with intent to manufacture or

distribute marijuana or marijuana concentrate, more than five

pounds but not more than fifty pounds. See § 18-18-406(2)(b)(I),

(2)(b)(III)(B), (3)(a)(I), C.R.S. 2016.1 Torline’s counsel expressed his

wish to raise an “affirmative defense” to the charges on the ground

that section 18-18-406 violates Torline’s constitutional rights

because he engaged in the charged conduct pursuant to a sincerely

held religious belief. Defense counsel also asked the trial court to

instruct the jury on that defense.

¶5 In support, Torline’s attorney argued the following. Torline is

an ordained minister with the Hawaii Cannabis Ministry, an

organization professing the belief that the cannabis plant is a gift

from God and can aid in the experience of spirituality. The ministry

incorporates cannabis into its religious practices, including its

prayers, rituals, and sacraments. It has registered members, a

hierarchy, a system of beliefs, and holy days. As a “ganja minister,”

1 The statute has since been amended; we cite the provisions in effect at the time of Torline’s charged conduct.

2 Torline provides marijuana to members of his congregation, which

numbers approximately thirty people in Grand Junction.

¶6 The trial court concluded that Colorado law does not support

Torline’s proposed defense and denied his motion to instruct the

jury on the defense. Torline then waived his right to a jury trial,

was tried by the court, and was convicted as charged.

II. The Free Exercise Clauses

¶7 Torline contends that section 18-18-406 was

“unconstitutionally applied to him” in violation of the Free Exercise

Clauses of the Federal and State Constitutions. Relatedly, he

argues that the trial court erred by declining to instruct the jury on

his defense that his conduct was privileged under the

Constitutions.

A. Standard of Review and Foundational Principles

¶8 The constitutionality of a statute is a legal question that we

review de novo. People v. Graves, 2016 CO 15, ¶ 9. Statutes are

presumed to be constitutional, and the challenger bears the burden

to prove their unconstitutionality beyond a reasonable doubt. Id.

¶9 The Free Exercise Clause of the First Amendment provides,

“Congress shall make no law . . . prohibiting the free exercise

3 [of religion].” U.S. Const. amend. I. The Free Exercise Clause has

been made applicable to the states by incorporation into the

Fourteenth Amendment. Emp’t Div., Dep’t of Human Res. v. Smith,

494 U.S. 872, 876-77 (1990). Article II, section 4 of the Colorado

Constitution provides, in pertinent part, as follows:

The free exercise and enjoyment of religious profession and worship, without discrimination, shall forever hereafter be guaranteed; and no person shall be denied any civil or political right, privilege or capacity, on account of his opinions concerning religion; but the liberty of conscience hereby secured shall not be construed to . . . justify practices inconsistent with the good order, peace or safety of the state. . . . Nor shall any preference be given by law to any religious denomination or mode of worship.

Because the federal and state constitutional provisions embody

similar values, we look for guidance in applying the Colorado

provision to the body of law developed in the federal courts with

respect to the meaning and application of the First Amendment.

Conrad v. City & Cty. of Denver, 656 P.2d 662, 670-71 (Colo. 1982).

¶ 10 “The free exercise of religion means, first and foremost, the

right to believe and profess whatever religious doctrine one

4 desires.” Smith, 494 U.S. at 877. The exercise of religion can also

involve the “performance of (or abstention from) physical acts.” Id.

¶ 11 The Free Exercise Clause is not so limited in scope as to

protect only those beliefs that are tenets of a traditional or

“established religion.” Martinez v. Indus. Comm’n of Colo., 618 P.2d

738, 740 (Colo. App. 1980). If a person’s religious beliefs are

“sincere and meaningful,” they fall within the ambit of First

Amendment protection. United States v. Seeger, 380 U.S. 163, 166

(1965). A person’s claim “that his belief is an essential part of a

religious faith must be given great weight.” Id. at 184; Martinez,

618 P.2d at 740.

B. Analysis

¶ 12 At the time of Torline’s conduct, section 18-18-406(3)(a)

provided that, with exceptions not applicable here, “[i]t is unlawful

for a person to knowingly cultivate, grow, or produce a marijuana

plant or knowingly allow a marijuana plant to be cultivated, grown,

or produced on land that the person owns, occupies, or controls.”

Section 18-18-406(2)(b)(1) provided that, with exceptions not

applicable here, “it is unlawful for a person to knowingly dispense,

5 sell, distribute, or possess with intent to manufacturer, dispense,

sell, or distribute marijuana or marijuana concentrate . . . .”

¶ 13 Torline acknowledges that sections 18-18-406(3)(a) and 18-18-

406(2)(b) are neutral laws of general applicability. Still, he

maintains that applying them to his charged conduct violates his

rights under the Free Exercise Clause because the laws “prohibit

conduct that was undertaken for religious reasons.” He also

asserts that less restrictive means exist to enforce “the

government’s compelling interest in marijuana laws.” (He does not,

however, identify any other means.) Torline is mistaken.

¶ 14 The Free Exercise Clause proscribes laws that “single out the

religious for disfavored treatment.” Trinity Lutheran Church of

Columbia, Inc. v. Comer, 582 U.S. ___, ___, 137 S. Ct. 2012, 2020

(2017). The Free Exercise Clause, however, does not excuse a

person from “compliance with an otherwise valid law prohibiting

conduct that the State is free to regulate.” Smith, 494 U.S. at 878-

79. In other words, while the protection for religious belief and the

profession of that belief is absolute, the protection for religious

conduct is not. Cantwell v. Connecticut, 310 U.S. 296, 303-04

(1940); Sanderson v. People, 12 P.3d 851, 853 (Colo. App. 2000).

6 ¶ 15 To illustrate, in Smith, 494 U.S. at 874, two men were denied

unemployment benefits after their employment was terminated for

using peyote, a controlled substance. They challenged that decision

on the ground that they had ingested the peyote for sacramental

purposes at a Native American church to which they belonged. Id.

Like Torline, they contended that “their religious motivation for

using peyote places them beyond the reach of a criminal law that is

not specifically directed at their religious practice, and that is

concededly constitutional as applied to those who use the drug for

other reasons.” Id. at 878.

¶ 16 The Supreme Court rejected that argument, holding that

neutral laws of general applicability do not offend the Free Exercise

Clause even when they have an incidental effect on religious

practices. Id.; see also Sanderson, 12 P.3d at 853 (recognizing this

holding of Smith). Hence, the right of free exercise does not relieve a

person from complying with a “valid and neutral law of general

applicability on the ground that the law proscribes (or prescribes)

conduct that his religion prescribes (or proscribes).” Smith, 494

U.S. at 879 (citation omitted). The Court reasoned that to make a

person’s obligation to obey such a law “contingent upon the law’s

7 coincidence with his religious beliefs . . . permit[s] him, by virtue of

his beliefs, ‘to become a law unto himself.’” Id. at 885 (citation

omitted).

¶ 17 Section 18-18-406 is similar to the law challenged in Smith.

Because, as in Smith, the statute is a neutral law of general

applicability, we have no trouble rejecting Torline’s free exercise

challenge. The statute advances the legitimate interests of public

health and safety and is rationally related to that end. See Colo.

Const. art. XVIII, § 16(1)(b) (finding that regulation of marijuana is

in the interest of public health and safety); Town of Dillon v. Yacht

Club Condos. Home Owners Ass’n, 2014 CO 37, ¶ 31 (noting a

legitimate interest in public health and safety). Therefore, the

availability of less burdensome alternatives, if any exist, is

irrelevant. See Yacht Club Condos., ¶ 31.

¶ 18 Moreover, although there can be circumstances where a

facially neutral law violates the Free Exercise Clause, Torline does

not allege or identify any such circumstances surrounding section

18-18-406. Cf. Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 536-40 (1993) (holding that a facially

neutral law banning animal sacrifice was unconstitutional because

8 its exceptions for secular conduct and the surrounding

circumstances showed that the city adopted the ordinance because

of animus toward the Santería church). He does not argue that the

legislature enacted section 18-18-406 with the object of restricting

religious practices. Nor are we aware of circumstances suggesting

that the legislation was motivated by religious animus.

¶ 19 As a result, we join the many jurisdictions that have rejected

cannabis ministries’ members’ free-exercise challenges to marijuana

convictions. See Guam v. Guerrero, 290 F.3d 1210, 1216 (9th Cir.

2002); United States v. Meyers, 95 F.3d 1475, 1481 (10th Cir.

1996); Hutchinson v. Maine, 641 F. Supp. 2d 40, 47 (D. Me. 2009);

Rheuark v. State, 601 So. 2d 135, 139 (Ala. Crim. App. 1992);

People v. Trippet, 66 Cal. Rptr. 2d 559, 565 (Ct. App. 1997); Nesbeth

v. United States, 870 A.2d 1193, 1198 (D.C. 2005); State v.

Sunderland, 168 P.3d 526, 534 (Haw. 2007); State v. Fluewelling,

249 P.3d 375, 379 (Idaho 2011); State v. Venet, 797 P.2d 1055,

1057 (Or. Ct. App. 1990); Burton v. State, 194 S.W.3d 686, 688

(Tex. App. 2006).

¶ 20 We also note that Colorado is friendlier than most states to

marijuana use. Unlike the absolute prohibition in Smith, the

9 statutes under which Torline was convicted are subject to article

XVIII, section 16 of the Colorado Constitution, which permits a

person to possess, grow, and use marijuana in small amounts for

personal use and authorizes a person to conduct larger-scale

activities with a license. The Free Exercise Clause does not require

a further exception for all religiously motivated uses of marijuana.

See Smith, 494 U.S. at 890 (noting that, although states may create

statutory exemptions for religious uses of controlled substances,

they are not required to do so).

¶ 21 In sum, the incorporation of marijuana and marijuana

concentrate into religious rituals is subject to regulation on equal

terms with secular marijuana use. Colorado law does not penalize

such conduct because of its religious character. See Lyng v. Nw.

Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988) (finding

no free-exercise violation where governmental action did not

“penalize religious activity by denying any person an equal share of

the rights, benefits, and privileges enjoyed by other citizens”). We

therefore hold that the Free Exercise Clause does not excuse people

and organizations from complying with section 18-18-406.

10 ¶ 22 Because applying section 18-18-406 to Torline’s conduct does

not violate his constitutional rights, there was no legal basis for his

proposed defense. So the trial court correctly rejected the defense,

his jury instructions, and his proffered evidence in support of the

defense. See Hoggard v. People, 2020 CO 54, ¶ 27 (noting that a

trial court has a duty to instruct the jury correctly on the applicable

law); People v. Smith, 77 P.3d 751, 756 (Colo. App. 2003) (“[A] trial

court may refuse to give a defendant’s theory of the case instruction

that misstates the law . . . .”); see also CRE 402 (“Evidence which is

not relevant is not admissible.”); People v. Evans, 710 P.2d 1167,

1169 (Colo. App. 1985) (holding that evidence of the defendant’s

personal religious belief was irrelevant to the charge of distribution

of marijuana to others).

III. Proof that the Offense Was Committed In Colorado

¶ 23 Finally, Torline contends that the prosecution did not prove

that his conduct occurred within Colorado. See § 18-1-201(1)(a),

C.R.S. 2019.

¶ 24 We review the record de novo to determine whether the

evidence presented was sufficient in both quantity and quality to

sustain a defendant’s conviction. McCoy v. People, 2019 CO 44,

11 ¶ 63. We consider whether the relevant evidence, both direct and

circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is substantial and sufficient to support

a conclusion by a reasonable mind that the defendant is guilty of

the charge beyond a reasonable doubt. Id.

¶ 25 Two officers testified that they investigated Torline’s conduct

“here in Mesa County.” Torline contends that this evidence was

sufficient to prove that the offenses occurred in Mesa County but

not to prove that they occurred in Colorado. We are not persuaded.

¶ 26 “Here” referred to the place where the witnesses were

testifying. Torline’s trial was held in the District Court of Mesa

County, Colorado (also known as the Twenty-First Judicial District

Court). It is therefore clear from the context of the testimony that

“here in Mesa County” was referring to Mesa County, Colorado.

Consequently, sufficient evidence supports the court’s finding that

the charged conduct occurred in Colorado.

IV. Conclusion

¶ 27 The judgment of conviction is affirmed.

JUDGE TOW and JUDGE LIPINSKY concur.