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People v. Montante

Court of Appeals of Colorado, Seventh Division

April 9, 2015

The People of the State of Colorado, Plaintiff-Appellee,
v.
Joseph Robert Montante, Defendant-Appellant

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Larimer County District Court No. 12CR402. Honorable Daniel J. Kaup, Judge.

JUDGMENT AFFIRMED.

Cynthia H. Coffman, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Schaden & Cassinis, PLLC, Richard F. Schaden, Casey Schaden Cassinis, Broomfield, Colorado, for Defendant-Appellant.

Opinion by JUDGE BERGER. Navarro and Ney[*], JJ., concur.

OPINION

BERGER, Judge

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[¶1] Defendant, Joseph Robert Montante, appeals the judgment of conviction entered on a jury verdict finding him guilty of attempt to influence a public servant. Defendant contends that (1) the trial court erred in denying his motion to dismiss on the theory that the medical marijuana registry fraud statute bars prosecution under a general criminal statute; (2) the court erred in rejecting a lesser nonincluded offense instruction on medical marijuana registry fraud; (3) the attempt to influence a public servant statute is unconstitutional as applied to him; (4) the court erred in denying his motion to suppress a recording of his interview with police; and (5) the court erred in admitting expert testimony on medical examinations and establishing a physician-patient relationship. We address and reject each of these contentions and thus affirm.

I. Relevant Facts and Procedural History

[¶2] Defendant worked as a contract physician at a medical marijuana clinic in Loveland. Posing as a patient named " Nick Moser," an undercover police detective was examined by defendant and obtained from him a " Physician Certification" stating that Moser suffered from a debilitating medical condition and might benefit from the medical use of marijuana. The Physician Certification is part of the application that an applicant must submit to the Colorado Department of Public Health and Environment (Department) to qualify for a medical marijuana identification card. Colo. Const. art. XVIII, § 14(3); § 25-1.5-106(3), C.R.S. 2014. Moser did not submit the Physician Certification he obtained from defendant to the Department.

[¶3] At trial, the prosecution introduced evidence that defendant's consultation with Moser did not meet the legal requirements for a Physician Certification recommending medical marijuana. In a recording of the consultation that was admitted as evidence and played for the jury, Moser stated that he did not have a medical condition but " just kinda want[ed] to get legit" with his marijuana use. Moser stated that he could " put down an ankle" he had injured in high school, although it currently did not cause him any problems. When defendant examined Moser's ankle, Moser reiterated that he had no pain, tenderness, or restriction of movement.

[¶4] Defendant then offered to check Moser's back, stating " [m]aybe that's off." After stating that Moser's back looked tight on the right side, although Moser said he had no pain or any issues with his back, defendant stated that he would " put down" low back. At some point during the consultation, defendant stated that " the way [he] look[ed] at it," Moser had " a constitutional right to use marijuana" and defendant was " just a go-to."

[¶5] Based on this and similar evidence, the prosecution asserted that the statements in the Physician Certification that defendant (1) had " a bona fide physician-patient relationship with [Moser]" ; (2) had " fully assessed [Moser's] medical history and [his] medical condition" ; and (3) had diagnosed him with a " debilitating condition" consisting of " severe pain" in his lower back that " may be alleviated by the medical use of marijuana" were false. The prosecution alleged that these false statements constituted an attempt to influence, by means of deceit, a public official at the Department, with the intent thereby to affect the decision to issue Moser a medical marijuana identification card, in violation of section 18-8-306, C.R.S. 2014.

[¶6] A jury convicted defendant and the trial court sentenced him to thirty days in jail and three years of probation.

II. The Medical Marijuana Registry Fraud Statute Does Not Bar Prosecution Under the Attempt to Influence a Public Servant Statute

[¶7] Defendant argues that, because the legislature proscribed and directed punishment for his conduct in the specific medical marijuana registry fraud statute, the

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legislature precluded prosecution for that conduct under more general criminal laws, such as the attempt to influence a public servant statute. He thus contends that the trial court erred in denying his pretrial motion to dismiss.

[¶8] Section 18-18-406.3(2)(a), C.R.S. 2014, provides that " [a]ny person who fraudulently represents a medical condition to a physician, the [D]epartment, or a state or local law enforcement official for the purpose of falsely obtaining a marijuana registry identification card from the [D]epartment . . . commits a class 1 misdemeanor." The trial court denied defendant's motion to dismiss because it determined that this statute was not applicable to defendant's alleged conduct. It concluded that " the legislature has made no specific provision governing a physician's false recommendation of medical marijuana that might supplant the general prohibition against influencing a public servant by means of deceit."

[¶9] We review de novo the trial court's denial of defendant's motion to dismiss because it involves an issue of statutory interpretation. People v. Van De Weghe, 2012 COA 204, ¶ ¶ 7, 9. " When interpreting a statute, we endeavor to give effect to the legislative intent . . . . To discern the legislative intent, we look to the statute's language and give its words and phrases their plain and ordinary meaning." Id. at ¶ 8. " If the language is unambiguous and intent appears with reasonable certainty, there is no need to resort to other rules of statutory construction." People v. Davis, 218 P.3d 718, 723 (Colo. App. 2008).

[¶10] We disagree with the trial court that the medical marijuana registry fraud statute could not apply to a physician's recommending medical marijuana. Section 18-18-406.3(2)(a) provides that the offense of medical marijuana registry fraud may be committed by " [a]ny person who fraudulently represents a medical condition to . . . the [D]epartment . . . for the purpose of falsely obtaining a marijuana registry identification card." (Emphasis added.) Although it is the patient who submits the Physician Certification to the Department, the Physician Certification contains representations by the physician. Thus, a submitted Physician Certification includes representations made by the physician to the Department for the purpose of obtaining a marijuana registry identification card for the patient. The plain language of section 18-18-406.3(2)(a) criminalizes such conduct by physicians if done fraudulently and for the purpose of someone else falsely obtaining an identification card.

[¶11] However, we may affirm the trial court's denial of the motion to dismiss on any ground supported by the record. People v. Aarness, 150 P.3d 1271, 1277 (Colo. 2006). We conclude that the court did not err in denying defendant's motion to dismiss because the legislature's enactment of the medical marijuana registry fraud statute does not preclude prosecution for defendant's conduct under the attempt to influence a public servant statute.

[¶12] " [A] single transaction may give rise to the violation of more than one [criminal] statute." People v. James, 178 Colo. 401, 404, 497 P.2d 1256, 1257 (1972). Subject to limitations not applicable here, " [w]hen any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense." § 18-1-408(1), C.R.S. 2014. If the same conduct is proscribed by " different enactments or in different sections of [the criminal] code, the [defendant] may be prosecuted under any one or all of the sections or enactments." § 18-1-408(7). In that situation, the prosecutor has discretion to determine the statute(s) under which to prosecute the defendant. James, 178 Colo. at 404, 497 P.2d at 1258.

[¶13] It follows, as explained by the Colorado Supreme Court, that " enactment by the General Assembly of a specific criminal statute does not preclude prosecution under a general criminal statute unless a legislative intent is shown to limit prosecution to the special statute." People v. Bagby, 734 P.2d 1059, 1061 (Colo. 1987).

[¶14] Conversely, the General Assembly, by enacting a specific criminal statute, can preclude prosecution under a more general criminal statute if " clear legislative

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intent" is shown to limit prosecution to the specific statute. People v. Smith, 938 P.2d 111, 115 (Colo. 1997); see also People v. Clanton, 2015 COA 8, ¶ 11. The determination of whether there is a clear legislative intent to limit prosecution in this manner turns on whether: (1) " the statute invokes the full extent of the state's police powers" ; (2) " the specific statute is part of an act creating a comprehensive and thorough regulatory scheme to control all aspects of a substantive area" ; and (3) " the act carefully defines different types of offenses in detail." Smith, 938 P.2d at 116 (citing Bagby, 734 P.2d at 1062; People v. Warner, 930 P.2d 564, 568 (Colo. 1996)); see also People v. Tow, 992 P.2d 665, 667 (Colo. App. 1999).

[¶15] In Bagby, the supreme court held that the General Assembly intended to limit prosecution for Liquor Code violations to the specific punishment provisions set forth in the Liquor Code itself. 734 P.2d at 1062. Addressing the first factor of the three-factor test, the supreme court focused on the fact that " the General Assembly has declared that the Liquor Code is adopted as 'an exercise of the police powers of the state for the protection of the economic and social welfare and the health, peace and morals of the people of the state.'" Id. (quoting § 12-47-102(1), C.R.S. 2014)). The supreme court explained that " [t]his broad language suggests that in adopting specific penal provisions in the Liquor Code, the General Assembly exercised ...


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