Opinion
A. L. Herrmann, Jr., Dist. Atty., Francis C. Jackson, III, Deputy Dist. Atty., Golden, for petitioner-appellee.
John T. Dugan, Denver, for respondents-appellants.
PIERCE, Judge.
In February 1972, petitions were filed by the Jefferson County Sheriff's Office alleging that M.T. and G. McL. were delinquent children in that they did unlawfully possess not more than one-half ounce of Cannabis sativa L., contrary to C.R.S.1963, 48--5--2. In April 1972, these petitions were amended to include allegations that M.T. and G. McL. had also used and were under the influence of Cannabis sativa L., contrary to C.R.S.1963, 48--5--20(5), on the date of the incident in question.
The matter was tried to a jury. However, at the close of the People's case, the allegations as to possession of the drug and being under the influence of the drug were dismissed by the court on the grounds that there was inadequate evidence. The issue of use was submitted to the jury, and a verdict was returned that both M.T. and G. McL. did unlawfully use Cannabis sativa L., as charged in the petition. Both were adjudicated to be delinquents.
This appeal is brought by the children contending that the evidence indicated that, at most, each was guilty of taking only one puff on a marijuana cigarette, and that, thus, the proof was insufficient to sustain a delinquency petition. We do not agree with their contention that the facts are so restricted. While there is evidence that at the time they were arrested in the automobile, they may have only had one puff on the cigarette that was being passed around at that time, there is further evidence that a marijuana cigarette had been consumed prior to the lighting of the one in question, and that one of the children bringing this appeal had contributed to the purchase of the cigarettes that were being consumed at the time of the arrest. The total fact situation, especially when viewed in light of the obvious lack of candor on the part of these children while on the witness stand, indicates an involvement by these children far beyond their contention that they were in the position of innocent bystanders who casually took a single puff of the prohibited cigarette.
The Colorado Children's Code, 1967 Perm.Supp., C.R.S.1963, 22--1--3(17)(a), provides that a delinquent child is any child ten years of age or older who has violated any federal or state law. C.R.S.1963, 48--5--20(5), provides that any person using narcotic drugs, which term is defined to include Cannabis sativa L., is a disorderly person and can be convicted and confined to jail.
While the statute in question does not prescribe limits on the word 'use,' the total fact situation presented here is sufficient to indicate that these children were, indeed, using the drug in violation of state law, and, therefore, the evidence sustains a finding that these children violated C.R.S.1963, 48--5--20(5). Therefore, by the provisions of the Colorado Children's Code, it was proper to adjudicate them to be delinquents.
The appellants argue that the result reached by the district court was unduly harsh. While the trial judge might have elected to use the adjudicatory option available under 1971 Perm.Supp., C.R.S.1963, 22--3--6(3), this is a matter within his discretion. In addition to hearing the evidence, he was in a position to observe the demeanor of the accused before him, and was in a far better position than we to determine what adjudication was most appropriate. Where our examination of the record does not indicate any abuse of discretion on his part in choosing the adjudicatory option, we will not disturb his determination.
Judgment affirmed.
COYTE and DWYER, JJ., concur.