to the Colorado Court of Appeals Court of Appeals Case No.
Attorneys for Petitioner/Cross-Respondent: Emeson Law, LLC
Brian S. Emeson Denver, Colorado
Attorneys for Respondent/Cross-Petitioner: Cynthia H.
Coffman, Attorney General Ethan E. Zweig, Assistant Attorney
General Denver, Colorado
JUSTICE EID concurs in part and dissents in part, and JUSTICE
COATS and JUSTICE HOOD join in the concurrence in part and
dissent in part.
First, this case requires us to determine whether a police
officer's testimony that a defendant was under the
influence of methamphetamine was lay or expert testimony.
Because any error in admitting the officer's testimony as
lay testimony was harmless given the otherwise overwhelming
evidence, we decline to answer whether the trial court erred
in admitting the testimony. Next, this case requires us to
determine if Amendment 64 to the Colorado Constitution, which
legalized possession of small amounts of marijuana, deprived
the State of its power to continue to prosecute cases where
there was a conviction for possession of less than one ounce
of marijuana pending on direct appeal when the Amendment
became effective. In light of our holding today in People
v. Boyd, 2017 CO 2, __P.3d__, we hold that it did.
Facts and Procedural History
In March 2010, defendant Brandi Jessica Russell and her
husband brought their infant to a hospital with a broken
femur. A doctor, worried that the child may have been abused,
contacted a social worker who then contacted Grand County
Department of Social Services. A social worker interviewed
Russell and, worried she was on drugs, obtained a court order
for a drug test. The drug test indicated that Russell had
used amphetamine, marijuana, and methamphetamine. When asked
about the results, Russell admitted that she had used
methamphetamine. The police obtained a warrant and searched
Russell's home, finding drug paraphernalia, marijuana,
marijuana concentrate,  and methamphetamine.
The State charged Russell with child abuse resulting in
serious injury, possession of one gram or less of a schedule
II controlled substance (methamphetamine), and possession of
marijuana concentrate. In June 2011, a jury acquitted Russell
of the child abuse charge but found her guilty of the
marijuana concentrate and methamphetamine charges. The jury
also convicted her of possession of less than one ounce of
marijuana, a non-included petty offense that Russell
requested. In August 2011, the trial court sentenced Russell
to two concurrent 4-year terms of supervised probation, 192
hours of community service, and a suspended 90-day jail
Russell filed a timely notice of appeal in September 2011.
Ultimately, she made two challenges. The first challenge was
to a police officer's lay testimony offered at trial in
which the officer testified to his belief that Russell was
using methamphetamine based on his observations of her and
his many contacts with others using methamphetamine. Russell
argued this testimony required the officer to be vetted as an
expert. The court of appeals disagreed with Russell.
People v. Russell, 2014 COA 21M, ¶ 29,
__P.3d__. The second challenge was that Amendment 64, which
became effective on December 10, 2012, and legalized the
possession of up to one ounce of marijuana (defined as
including marijuana concentrate) for personal use, should
vitiate her marijuana convictions. See Colo. Const.
art. XVIII, § 16. The court of appeals agreed with
Russell and reversed on this point. Russell, ¶
20. Russell appealed the expert testimony issue to this
court, and the State appealed the Amendment 64 issue to this
court. We granted certiorari.
Any error in allowing the officer's testimony as lay
testimony was harmless.
Russell argues that it was error for the trial court to allow
a police officer to testify, as a lay witness, to whether or
not Russell was using methamphetamine based on the
officer's observations of Russell. This court reviews a
trial court's rulings on evidentiary issues for an abuse
of discretion. People v. Stewart, 55 P.3d 107, 122
(Colo. 2002). "A trial court ...