Court upholds pot-grow conviction

Man got fair trial, justices conclude

A man previously convicted on charges of marijuana cultivation and possession this week had his convictions upheld by the Colorado Court of Appeals, who did not agree with his argument that the trial court erred by not allowing one of his witnesses to testify as a medical marijuana expert.

Lawyers for Darren Wayne English had sought to include testimony from the manager of a medical marijuana dispensary, Cody Mayasich, as an expert in “the legalized production and distribution of medical marijuana …” The trial court determined Mayasich was not qualified as an expert, and did not allow him to testify as one.

English, a primary caregiver for three patients, was convicted after officers in 2012 found 35 marijuana plants, and more than 24 ounces of marijuana plant material — both totals that exceed amounts allowed by state statute.

English’s defense centered on the idea that 15 of the plants were in fact “clones,” or cuttings taken from other plants and planted or put into a small cup. He also contends that the plant material found was “trim,” or waste from the plant.

Mayasich was expected to help the jury resolve two issues: whether 15 of the “clones” found were considered marijuana plants, and whether the material found indeed constituted “usable medical marijuana.”

The appeals court unanimously found that Mayasich was properly excluded as an expert witness, and that English got a fair shake. As part of their analysis, the court found that state regulations consider clones as marijuana plants, and trim as usable medical marijuana.

Even if English could have proven that the 15 clones were not marijuana plants, he still would have been in possession of more than he’s allowed as a medical marijuana caregiver, 18, or six for each of his three patients.

But, he was ultimately prosecuted on a charge of cultivation of between seven and 29 plants. Without including the clones, his total was 20 plants.

The appeals court noted that the record does not indicate why the prosecution chose to charge English in that specific plant-number range.


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