Summary
The defendant was convicted of selling a narcotic drug with the intent to induce and aid another to unlawfully use and possess the drug. However, the evidence was insufficient to sustain the conviction under the 'hard sale' statute. The court reversed the conviction and remanded for resentencing under the 'soft sale' statute. The defendant was found guilty of the lesser included offense of unlawful sale of a narcotic drug.
Topics
Practice areas
Questions Presented
- Whether the evidence was sufficient to prove the specific intent required for conviction under Colorado's hard-sale statute.
- Whether the evidence nevertheless established the lesser included offense of unlawful sale of a narcotic drug under the soft-sale statute.
- Whether marijuana's classification as a narcotic drug invalidated the conviction under the soft-sale statute.
Holdings
- The evidence was insufficient to establish that Bourg specifically intended to induce and aid another to unlawfully use and possess marijuana because the undercover agents initiated and solicited the purchases and no affirmative act showed that Bourg solicited, persuaded, or induced them to buy.
- The record conclusively established that Bourg unlawfully sold marijuana, so the conviction could be reduced to the lesser included soft-sale offense.
- The challenge to marijuana's classification as a narcotic drug did not require dismissal because the Colorado Supreme Court had upheld the narcotic statute against similar constitutional challenges and had rejected comparable attacks on convictions based on the former classification of marijuana.
Key quotations
“This evidence, as a whole, even when viewed in a light most favorable to the prosecution, does not establish that defendant had the specific intent to induce and aid another to unlawfully use and possess the drug.” (552 P.2d at 505)
“In order to satisfy this "specific intent" requirement of the "hard sale" statute, the prosecution must prove that the defendant initiated and solicited the sale.” (552 P.2d at 505)
“However, the record irrefutably supports the conclusion that the defendant actually sold marijuana on the date alleged in the information.” (552 P.2d at 506)
Factual background
Two undercover agents went to an apartment intending to purchase marijuana. After discussing a possible future purchase of approximately 100 pounds, one agent asked Bourg whether he could sell two small quantities, or "two lids," and Bourg sold them for $30. The agents did not make the larger purchase, and a forensic chemist testified that the two lids were cannabis weighing less than an ounce.
Procedural history
A jury convicted Bourg under C.R.S. 1963, 48-5-20(1)(a) and (c). On appeal, he challenged the sufficiency of the evidence and argued that marijuana could not constitutionally be classified as a narcotic drug. The Supreme Court reversed the hard-sale conviction, directed entry of judgment for the lesser included soft-sale offense, and remanded for sentencing under that statute.
Remand instructions
Reverse the trial-court judgment, enter judgment against Bourg for violation of section 12-22-302, C.R.S. 1973, the soft-sale statute, and sentence him under that statute.