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PRIOR HISTORY: [***1]
Appeal from Clallam Superior Court. Docket No: 07-1-00107-6. Judgment or order under review. Date filed: April 17, 2008. Judge signing: Honorable S Brooke Taylor, George Wood.
State v. Otis, 151 Wn. App. 572, 213 P.3d 613, 2009 Wash. App. LEXIS 1980 (Wash. Ct. App., 2009)


CASE SUMMARY

PROCEDURAL POSTURE: The Clallam Superior Court, Washington, convicted defendant of manufacturing marijuana. Defendant appealed.

OVERVIEW: On review, defendant contended the trial court erred by: (1) prohibiting her from presenting a "designated primary caregiver" affirmative defense under the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A and, she was entitled to assert a medical marijuana defense under Wash. Rev. Code § 69.51A.050(2). The appellate court held that defendant was not entitled to present an affirmative defense as a "designated primary caregiver" under former Wash. Rev. Code § 69.51A.040 (1999) as she failed to provide any documentation that the patient had designated her as his primary caregiver under the Act; defendant did not assert that such documentation existed, and the record only contained evidence of the co-defendant's designation as the patient's primary caregiver. However, the appellate court agreed that there was sufficient evidence to find that defendant was entitled to present a defense under Wash. Rev. Code § 69.51A.050(2) that she could not be convicted of manufacturing marijuana based solely on her being in the presence or vicinity of medical marijuana.

OUTCOME: Defendant's conviction was vacated and remanded for a new trial.


CORE TERMS: marijuana, caregiverâ?�, designated, affirmative defense, patient's, qualifying, documentation, vicinity, conclusions of law, manufacturing, provider, retrial, limine, new trial, inside, Medical Use of Marijuana Act, designation, manufacture, asserting, Use Act, smoking, offer of proof, supplemental brief, debilitating, accomplice, presenting, addressing, initiative, terminal, quantity

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Defenses > Burdens of Proof
HN1Go to the description of this Headnote. A defendant raising an affirmative defense must offer sufficient admissible evidence to justify using the defense. In evaluating whether the defendant has met this burden, the trial court must interpret the evidence most strongly in favor of the defendant.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN2Go to the description of this Headnote. Wash. Rev. Code ch. 69.51A, Washington's Medical Use of Marijuana Act, created an affirmative defense that allowed qualifying patients and their designated providers to avoid criminal prosecution based on their possession of marijuana under specific circumstances. Former Wash. Rev. Code § 69.51A.040(1).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN3Go to the description of this Headnote. See former Wash. Rev. Code § 69.51A.040 (1999).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN4Go to the description of this Headnote. See former Wash. Rev. Code § 69.51A.010(2) (1999).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN5Go to the description of this Headnote. Former Wash. Rev. Code § 69.51A.040(1) of Washington's Medical Use of Marijuana Act establishes that the Act's affirmative defense is available solely to individuals who have a documented, well defined "primary caregiver" status under the Act. The first sentence of former Wash. Rev. Code § 69.51A.040(1) provides that the affirmative defense for marijuana possession is available to only two specific classes of individuals: (1) any qualifying patient who is engaged in the medical use of marijuana; or (2) any designated primary caregiver who assists a qualifying patient. Former Wash. Rev. Code § 69.51A.040(4)(a), (c) also emphasize that the person claiming "designated primary caregiver" status under the Act must (1) meet all criteria for status as a primary caregiver to a qualifying patient, and (2) present evidence of designated to act as primary caregiver by the patient.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN6Go to the description of this Headnote. The plain language of Washington's Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, makes clear that the affirmative "caregiver" defense is not available to anyone other than the person whom a qualifying patient expressly designates as his or her caregiver. Conversely, the Act's plain language does not, in any way, purport to extend this affirmative defense to anyone who might happen to be associated with a person who may be a named qualified primary caregiver under the Act.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN7Go to the description of this Headnote. Wash. Rev. Code § 69.51A.050(2) prohibits the State from prosecuting a person based solely on her being present in the vicinity of medical marijuana.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN8Go to the description of this Headnote. See Wash. Rev. Code § 69.51A.050(2).


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SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: Prosecution for unlawful manufacture of a controlled substance, marijuana.

Superior Court: After granting the State's motion in limine precluding the defendant from asserting the defense that she was a designated primary caregiver of medical marijuana, the Superior Court for Clallam County, No. 07-1-00107-6, George L. Wood, J., on April 17, 2008, entered a judgment of guilty following a bench trial on stipulated facts.

Court of Appeals: Holding that the trial court properly denied the defendant's primary caregiver defense but erred by denying her right to assert the defense that she was only in the vicinity of the medical marijuana, the court reverses the judgment, vacates the conviction, and remands the case for further proceedings.


HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES


WA(1)[1] Criminal Law â?? Affirmative Defense â?? Proof â?? Interpretation of Evidence. A criminal defendant raising an affirmative defense must offer sufficient admissible evidence to justify using the defense. In evaluating whether a defendant has met this burden, a trial court must interpret the evidence most strongly in favor of the defendant.

WA(2)[2] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? In General. The Medical Use of Marijuana Act (ch. 69.51A RCW) acknowledges that some patients with terminal or debilitating illnesses may benefit from the medical use of marijuana. This legislation creates an affirmative defense available to qualifying patients and primary caregivers for otherwise criminal possession or use of marijuana under specific circumstances.

WA(3)[3] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Designated Primary Caregiver â?? Necessity â?? What Constitutes â?? Association With Designated Caregiver â?? Sufficiency. The primary caregiver defense to a marijuana-related charge under former RCW 69.51A.040(1) (1999) is available solely to individuals who have a documented, well defined â??primary caregiverâ?� status under the act. The statute specifies only two classes of individuals who may be entitled to the defense: (1) a qualifying patient who is engaged in the medical use of marijuana or (2) a designated primary caregiver who assists a qualifying patient. A person claiming â??designated primary caregiverâ?� status under the statute must (1) meet all criteria for status as a primary caregiver to a qualifying patient and (2) present evidence of designation to act as primary caregiver by the patient. The defense is not available to anyone other than the person whom a qualifying patient expressly designates as his or her caregiver. The statute does not allow implied or transferred designated caregiver status; nor does the statute extend the defense to one who is associated with a person having the status of a primary caregiver.

WA(4)[4] Appeal â?? Disposition of Cause â?? Affirmance on Other Grounds â?? In General. An appellate court may affirm a trial court's ruling on any basis supported by the record.

WA(5)[5] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Presence in Vicinity of Marijuana â?? In General. RCW 69.51A.050(2) prohibits the State from prosecuting a person based solely on the person's presence in the vicinity of medical marijuana.

WA(6)[6] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Presence in Vicinity of Marijuana â?? Manufacturing Charge â?? Home Shared With Primary Caregiver of Medical Marijuana â?? State's Burden. Under the Medical Use of Marijuana Act (ch. 69.51A RCW) when the State charges a defendant with manufacturing marijuana in a home the defendant shares with a primary caregiver of medical marijuana, the State must prove that the defendant was more than just present in the vicinity of the medical marijuana, even if the State is proceeding on an accomplice theory of criminal liability.

WA(7)[7] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Presence in Vicinity of Marijuana â?? Burden of Proof. The burden of establishing the â??presence in the vicinity of medical marijuanaâ?� defense to a marijuana-related charge under RCW 69.51A.050(2) is on the defendant asserting the defense.

WA(8)[8] Criminal Law â?? Affirmative Defense â?? Proof â?? Burden of Proof â?? Likelihood of Satisfying Burden of Proof â?? Necessity. A criminal defendant who has presented sufficient evidence to establish an affirmative defense is entitled to present the defense without regard to the likelihood of success in meeting the burden of proving the defense.

WA(9)[9] Criminal Law â?? Trial â?? By Court â?? Findings of Fact â?? Conclusions of Law â?? Failure To Enter â?? New Trial â?? Effect. An appellate court may decline to remand a criminal case for the trial court to remedy its failure to have entered findings of fact and conclusions of law as required by CrR 6.1(d) if the appellate court has reversed the trial court's judgment and remanded the case for a new trial.

COUNSEL: Eric J. Nielsen (of Nielsen, Broman & Koch, PLLC), for appellant.

Deborah S. Kelly, Prosecuting Attorney, and Brian P. Wendt, Deputy, for respondent.

JUDGES: Authored by J. Robin Hunt. Concurring: Christine Quinn-Brintnall, Elaine Houghton.

OPINION BY: J. Robin Hunt

OPINION

[*354] [**1037] ¶1 Hunt, J. â?? Stephanie Leann McCarty appeals her marijuana manufacture conviction, following a stipulated-facts bench trial. She argues that we should reverse and remand for retrial because the trial court erred when it (1) prohibited her (and her codefendant, Earl Otis) from presenting a â??designated primary caregiverâ?� affirmative defense under the Washington State Medical Use of Marijuana Act (the Act), chapter 69.51A RCW; and, alternatively, (2) failed to enter written findings of fact and conclusions of law required under CrR 6.1(d). In her supplemental brief, which we requested, she further argues that we should reverse her conviction because she was entitled to assert a medical marijuana defense under RCW 69.51A.050(2), which [***2] prohibits prosecution for any criminal offense â??solely for being in the presence or vicinity of medical marijuana or its useâ?� as authorized under the Act. The State concedes that remand for entry of CrR 6.1(d) findings of fact and conclusions of law is required.

¶2 We hold that (1) McCarty is not entitled to present an affirmative defense as a â??designated primary caregiverâ?� under former [**1038] RCW 69.51A.040 (1999) of the Act because she is not a named designated caregiver; and (2) nevertheless, McCarty is entitled to present a defense under RCW 69.51A.050(2)â??that she cannot be convicted of manufacturing marijuana based solely on her being in the presence or vicinity of medical marijuana. 1 We agree with both parties that this case would normally require remand for entry of findings of fact and conclusions of law under CrR 6.1(d). But [*355] because we vacate McCarty's conviction and remand for a new trial in which she may present a RCW 69.51A.050(2) defense, we do not remand for entry of such findings and conclusions because they would be superfluous.

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1 We recognize that in asserting an affirmative defense as a designated primary caregiver under former RCW 69.51A.040 at trial, McCarty did not articulate [***3] that she was also entitled to present a medical marijuana defense under RCW 69.51A.050(2). But once the trial court ruled that neither Otis nor McCarty was entitled to present a medical marijuana defense under RCW 69.51A.040, it would have been futile for McCarty to assert a defense under RCW 69.51A.050(2), which would have been dependent on Otis's being able to establish his status as a â??designated primary caregiverâ?� under former RCW 69.51A.040, a possibility the trial court had foreclosed.

We further note that McCarty's ability to raise the RCW 69.51A.050(2) defense on retrial will depend on whether she or Otis can establish his defense under former RCW 69.51A.040 for purposes of all the marijuana that they were charged with manufacturing illegally.

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FACTS
I. Medical Marijuana Primary Caregiver Documentation

¶3 On March 10, 2007, the police executed a search warrant 2 at 3070 Eden Valley Road, Port Angeles, Washington. Stephanie Leann McCarty and Earl Otis were home when the officers conducted the search; they had lived together at the residence for two years. During the search, the officers discovered (1) approximately 75 marijuana plants in varying stages of maturity; (2) several smoking [***4] devices that contained marijuana residue, some in the master bedroom and some inside the bed's headboard; (3) a safe containing a scale; and (4) posters and magazines â??that promoted marijuana smoking.â?�

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2 The original search warrant was not related to the marijuana grow operation. After the officers discovered the marijuana plants during the initial search, they obtained a second warrant.

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¶4 Otis provided the officers with a letter from RK 3 authorizing Otis to be his (RK's) designated caregiver under the Act. This letter stated:

I, [RK], am terminally ill with the AIDS VIRUS. And I am designating Earl Otis as my caregiver. In accordance with Chapter 69.51A.040 RCW. On this day Monday November 14th, 2005.

Clerk's Papers (CP) at 45. Otis also provided the officers with an October 20, 2005 document on Virginia Mason Medical Center letterhead from Dr. Robert Rakita, stating:

To Whom it May Concern:

RE: [RK]

[*356] [RK] should be able to use marijuana for appetite stimulation. He has tried Marinol, but it is not effective for him and he has lost weight.

CP at 42.


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3 We use RK's initials to protect his privacy.

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II. Procedure

¶5 The State charged McCarty and Otis with manufacturing marijuana. They proceeded to a bench [***5] trial.
A. State's Motion in Limine

¶6 The State moved in limine to preclude McCarty and Otis from asserting a medical-marijuana designated-primary-caregiver defense. The State argued that Dr. Rakita's October 20, 2005 note did not qualify as â??valid documentationâ?� under the Act because the note did not state that the potential benefits of medical marijuana use would likely outweigh the health risks to RK. 4

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4 The State also argued that the defendants possessed more than a 60-day supply of marijuana. Ruling that quantity was a factual issue, the trial court did not further address this issue while considering the State's motion in limine. Later, the trial court assured defense counsel it was not considering the number of plants in deciding whether the defendants were entitled to a medical marijuana defense. The only other time quantity was mentioned was during Otis's sentencing.

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[**1039] ¶7 McCarty and Otis objected to the State's motion in limine, arguing that (1) the necessary statutory language was implied, and (2) the court should allow them to establish that the note was adequate at trial or through an offer of proof. Otis and McCarty offered additional documentation that they had not presented to [***6] the officers at the time of the search. These documents included a second letter from Dr. Rakita and portions of RK's medical records that Otis and McCarty used to attempt to clarify Dr. Rakita's October 20, 2005 note. Otis and McCarty argued that these additional documents â??adequately support[ed] the thesis that the standards for primary caregiver for this case under former RCW 69.51A.040 have been met.â?� CP at 67. But [*357] none of these documents mentioned McCarty or otherwise stated that RK had designated her as his caregiver; they named only Otis.

¶8 After considering Otis and McCarty's offer of proof, the trial court ruled that they failed to present valid documentation under the Act to the requesting law enforcement officials at the time of the search. The trial court granted the State's motion in limine, precluding McCarty and Otis from asserting a medical-marijuana designated-primary-caregiver defense.
B. Bench Trial

¶9 Based on stipulated police reports facts, a different superior court judge found McCarty and Otis guilty of manufacturing marijuana. In its oral ruling, the trial court emphasized that the officers had (1) found a considerable amount of marijuana inside the residence, (2) [***7] found marijuana and marijuana smoking devices throughout the residence, (3) found marijuana and marijuana smoking devices inside the bed's headboard in the bedroom Otis and McCarty shared, (4) found a set of scales and some packaged marijuana inside the residence, (5) smelled both fresh and smoked marijuana inside the residence, and (6) stated that it did not believe Otis's assertion to officers that he was solely responsible for the grow operation. The trial court found that both Otis and McCarty â??were engaged in the manufacture of marijuana in a residence over which they exercised exclusive control for a period of at least two years.â?� Report of Proceedings (Apr. 17, 2007) at 14. But the trial court did not explain the specific factual basis on which it found that McCarty had participated in the manufacture. 5 Nor did it enter written findings of fact or conclusions of law explaining its reasoning.

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5 In its oral ruling, the trial court seemed to emphasize the presence of the drugs and, impliedly, the manufacturing process throughout the home, which the two defendants shared. Although the trial court did not articulate that these facts rendered McCarty more than a mere passive observer, [***8] these facts appear to be the basis for its reasoning. Again, without written findings of fact and conclusions of law, we cannot discern the trial court's reasoning with any precision.

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[*358] ¶10 McCarty filed an appeal. 6 We later requested and received supplemental briefing from the parties addressing whether McCarty is entitled to assert codefendant Otis's medical marijuana defense where she is not also a named designated primary caregiver for RK.

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6 Otis has filed a separate appeal, which we have linked with McCarty's appeal. See State v. Otis, 151 Wn. App. 572, 213 P.3d 613 (2009).

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ANALYSIS
I. Affirmative Caregiver Defense Unavailable to McCarty

¶11 McCarty argues that the trial court erred (1) in precluding her raising a designated-primary-caregiver defense under the Act; and (2) in determining that neither Dr. Rakita's October 20, 2005 note nor the doctor's supplemental letter amounted to â??valid documentationâ?� under the Act. 7

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7 More specifically, McCarty contends that (1) Dr. Rakita's October 20, 2005 note authorizing RK's use of medical marijuana was adequate under the 2007 amendments to the Act, which amendments she asserts operate retroactively; (2) the trial court erred [***9] when it held that Dr. Rakita's October 20, 2005 note was not â??valid documentationâ?� under the statutes in effect at the time of the offense; and (3) the trial court erred when it failed to find that the documentation she and Otis provided in their offer of proof cured any potential defect in Dr. Rakita's October 20, 2005 note. We do not address these arguments because these documents name only Otis as the primary caregiver; none name McCarty.

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[**1040] A. Standard of Review

WA(1)[1] ¶12 HN1Go to this Headnote in the case.A defendant raising an affirmative defense must offer sufficient admissible evidence to justify using the defense. State v. Ginn, 128 Wn. App. 872, 879, 117 P.3d 1155 (2005) (citing State v. Janes, 121 Wn.2d 220, 236-37, 850 P.2d 495 (1993)), review denied, 157 Wn.2d 1010 (2006). In evaluating whether the defendant has met this burden, â??the trial court must interpret the evidence most strongly in favor of the defendant.â?� Id.
[*359] B. Medical Use of Marijuana Act's Affirmative Statutory Defense

WA(2)[2] ¶13 In November 1998, Washington voters passed Initiative 692, which â??authorized patients with terminal or debilitating illnesses to use marijuana for medical purposes based on their treating physicians' professional medical [***10] judgment and discretion.â?� State v. Butler, 126 Wn. App. 741, 748, 109 P.3d 493 (2005). â??The legislature codified this initiative in chapter 69.51A RCW, the Medical Use of Marijuana Act, thereby acknowledging that some patients with terminal or debilitating illnesses may benefit from the medical use of marijuana.â?� Id. HN2Go to this Headnote in the case.The Act created an affirmative defense that allowed qualifying patients and their designated providers to avoid criminal prosecution based on their possession of marijuana under specific circumstances. See id. (citing former RCW 69.51A.040(1)).

¶14 Former RCW 69.51A.040, the statute in effect at the time of this offense, established the affirmative defense as follows:

HN3Go to this Headnote in the case.(1) If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated primary caregiver who assists a qualifying patient in the medical use of marijuana, will be deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter. Any person meeting the requirements appropriate to his or her status under this chapter shall [***11] be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.

â?¦ .

(4) The designated primary caregiver shall:

(a) Meet all criteria for status as a primary caregiver to a qualifying patient;

â?¦ .

(c) Present a copy of the qualifying patient's valid documentation required by this chapter, as well as evidence of designation [*360] to act as primary caregiver by the patient, to any law enforcement official requesting such information.

(Emphasis added.) Former RCW 69.51A.010(2) (1999) defined â??primary caregiverâ?� as follows:

HN4Go to this Headnote in the case.â??Primary caregiverâ?� means a person who:

(a) Is eighteen years of age or older;

(b) Is responsible for the housing, health, or care of the patient;

(c) Has been designated in writing by a patient to perform the duties of primary caregiver under this chapter.

(Emphasis added.) 8


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8 Former RCW 69.51A.040(1) and the current version of the statute, RCW 69.51A.040(2), read the same except that the legislature replaced the former phrase â??designated primary caregiverâ?� with the new phrase â??designated provider.â?� Laws of 2007, ch. 371, § 5. Under the 2007 amendments, a person claiming to be [***12] a designated provider must still establish that a qualified patient has designated him or her as the provider in writing. RCW 69.51A.010(1)(b). Thus, even assuming, without addressing or deciding, that the 2007 amendments apply retroactively, these amendments would not alter our analysis.

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C. McCarty Not a â??Designated Primary Caregiverâ?�

WA(3)[3] ¶15 At no time did McCarty present documentation that RK had designated her as his primary caregiver under the Act. Nor has McCarty asserted that such documentation exists. On the contrary, the record [**1041] shows that RK designated only Otis as a primary caregiver. Instead, McCarty assumes that Otis's designation as RK's caregiver somehow confers on her the same potential status and defense, if he can meet the statutory prerequisites. But the law does not allow such implied or transferred designated caregiver status.

¶16 The plain language of HN5Go to this Headnote in the case.former RCW 69.51A.040(1) establishes that the Act's affirmative defense is available solely to individuals who have a documented, well defined â??primary caregiverâ?� status under the Act. The first sentence of former RCW 69.51A.040(1) provides that the affirmative [*361] defense for marijuana possession 9 is available to only two specific [***13] classes of individuals: (1) any qualifying patient who is engaged in the medical use of marijuana; or (2) any designated primary caregiver who assists a qualifying patient. Former RCW 69.51A.040(4)(a) and (c) also emphasize that the person claiming â??designated primary caregiverâ?� status under the Act must (1) â??[m]eet all criteria for status as a primary caregiver to a qualifying patient,â?� and (2) present â??evidence of designated to act as primary caregiver by the patient.â?�

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9 Former RCW 69.51A.040(1) was worded in the singular, stating, â??Any person meeting the requirements appropriate to his or her status under this chapter shall be considered to have engaged in activities permitted by this chapter and shall not be penalized in any manner, or denied any right or privilege, for such actions.â?� (Emphasis added.)

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¶17 HN6Go to this Headnote in the case.The Act's plain language makes clear that the affirmative â??caregiverâ?� defense is not available to anyone other than the person whom a qualifying patient expressly designates as his or her caregiver. Conversely, the Act's plain language does not, in any way, purport to extend this affirmative defense to anyone who might happen to be associated with a person who may be a named qualified [***14] primary caregiver under the Act. Thus, for this statutory affirmative â??caregiverâ?� defense to be available to McCarty, the Act requires her to show that RK had designated her as his caregiver. 10 But the record contains evidence of only Otis's designation as RK's primary caregiver; there is no evidence that RK also designated McCarty. And regardless of whether Dr. Rakita's later note qualified as â??valid documentation,â?� neither this note nor any other documentation McCarty offered at trial named her as RK's primary caregiver. Thus, as a matter of law, McCarty was not entitled to present this statutory affirmative defense of designated caregiver.

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10 Based on this clear statutory language, we also reject McCarty's related argument that she can raise this caregiver/provider defense as Otis's â??accomplice,â?� assuming, without deciding, that Otis is able to establish such a defense on his own behalf on retrial.

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WA(4)[4] ¶18 Although the parties below did not address this issue and the trial court did not consider or decide the [*362] motion in limine on this basis, we may affirm the trial court on any ground the record supports. State v. Michielli, 132 Wn.2d 229, 242-43, 937 P.2d 587 (1997) (citing Tropiano v. City of Tacoma, 105 Wn.2d 873, 876, 718 P.2d 801 (1986)). [***15] Accordingly, we hold that the trial court did not err when it precluded McCarty from presenting the Act's â??qualified primary caregiverâ?� defense.
II. Presence or in Vicinity of Medical Marijuana

WA(5)[5] ¶19 In her supplemental brief, McCarty argues that she was/is also entitled to raise an affirmative defense under HN7Go to this Headnote in the case.RCW 69.51A.050(2), which prohibits the State from prosecuting her based solely on her being present in the vicinity of medical marijuana. We agree.

¶20 RCW 69.51A.050(2) provides:

HN8Go to this Headnote in the case.No person shall be prosecuted for constructive possession, conspiracy, or any other criminal offense solely for being in the presence or vicinity of medical marijuana or its use as authorized by this chapter.

(Emphasis added.) When the trial court ruled that Otis and McCarty could not present a medical marijuana defense, the parties tried the case to the bench based on stipulated police reports; consequently, the record is not fully developed. Nevertheless, based on the stipulated facts, there is sufficient evidence, or lack of evidence, to support [**1042] McCarty's entitlement to present a defense under RCW 69.51A.050(2). 11


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11 The voters enacted this statute by initiative in 1999; it has not been amended since. We find no [***16] published cases addressing RCW 69.51A.050 for any purpose.

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WA(6)[6-8] ¶21 The State charged McCarty with manufacturing the marijuana in the home she shared with Otis. To establish her guilt on retrial, even under an accomplice theory, the burden will be on the State to prove more than her mere presence. But as McCarty's counsel acknowledged during oral argument, the burden under RCW 69.51A.050(2) will be on McCarty to prove to the finder of fact that she [*363] meets the requirements of this affirmative defense. 12 These are issues for the trier of fact to consider, and McCarty is entitled to present her defense without regard to the likelihood of her success in meeting her burden.

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12 For example, as the State notes in its supplemental brief, the burden of establishing any type of medical marijuana defense involves proving that the quantity of marijuana being manufactured is appropriate for the named patient's medical purposes under the Act. See Suppl. Br. of Resp't at 8 (citing State v. Shepherd, 110 Wn. App. 544, 550, 41 P.3d 1235, review denied, 147 Wn.2d 1017 (2002)). Also, as discussed at oral argument, there was evidence of private use of marijuana in the defendants' home, which might jeopardize [***17] their medical marijuana defense. See Suppl. Br. of Resp't at 8 (citing State v. Mullins, 128 Wn. App. 633, 639-40, 116 P.3d 441 (2005)).

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III. Written Findings of Fact and Conclusions of Law

WA(9)[9] ¶22 As an alternative to reversing her conviction and remanding for retrial, McCarty asks us to remand for entry of written findings of fact and conclusions of law for the stipulated bench trial, as required under CrR 6.1(d). The State concedes this error and agrees. We, too, agree that ?[r]emand for entry of written findings and conclusions is the proper course� when such a defect occurs. State v. Head, 136 Wn.2d 619, 622, 964 P.2d 1187 (1998) (citing State v. Mallory, 69 Wn.2d 532, 533-34, 419 P.2d 324 (1966)).

¶23 But because we reverse and remand for a new trial to allow McCarty to present a defense under RCW 69.51A.050(2), it would waste judicial resources to remand for entry of written findings and conclusions of law for the bench trial, which resulted in a verdict that we now reverse. Therefore, we do not exercise our option under RAP 9.10 to require entry of findings of fact and conclusions of law on remand.

¶24 We vacate McCarty's conviction 13 and remand for a new trial, at which McCarty [***18] will be entitled to present a [*364] defense under RCW 69.51A.050(2); 14 she will not be entitled to present an affirmative defense as a â??designated primary caregiverâ?� under former RCW 69.51A.040.

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13 We note that without entry of written findings of fact and conclusions of law, it is arguable that there is no formal conviction to vacate. See Head, 136 Wn.2d at 622 (trial court's oral opinion and memorandum opinion are not formal orders and have no final or binding effect (citing Mallory, 69 Wn.2d at 533-34)). But we further note that McCarty asks first for reversal and retrial and only alternatively for remand to enter findings of fact and conclusions of law. Because we agree with McCarty that disallowing her affirmative defense was reversible error, we do not further address this alternative remedy.14 Again, we acknowledge that in order to establish this statutory defense, McCarty must show that she was in the presence of medical marijuana â??authorizedâ?� by the Act. RCW 69.51A.050(2). In establishing this defense she must establish the legality of the marijuana manufacture by a designated care provider under former RCW 69.51A.040 of the Act. In Otis's linked appeal, we held that it was reversible [***19] error for the trial court to prohibit his presenting a defense under this designated care provider statute. See State v. Otis, 151 Wn. App. 572, 213 P.3d 613 (2009).

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Houghton and Quinn-Brintnall, JJ., concur.

May 5, 2009, Oral Argument
August 11, 2009, Filed

SUBSEQUENT HISTORY: Related proceeding at State v. McCarty, 2009 Wash. App. LEXIS 2348 (Wash. Ct. App., Sept. 15, 2009)

PRIOR HISTORY: [***1]
Appeal from Clallam Superior Court. Docket No: 07-1-00108-4. Judgment or order under review. Date filed: May 1, 2008. Judge signing: Honorable S Brooke Taylor, George Wood, Kenneth Williams, Gary Sund.


CASE SUMMARY

PROCEDURAL POSTURE: Defendant appealed a judgment of the Clallam County Superior Court, Washington, which convicted defendant of manufacturing marijuana in violation of Wash. Rev. Code § 69.50.401(1).

OVERVIEW: Defendant argued that the trial court erred when it granted the State's motion to preclude him from asserting a medical marijuana caregiver affirmative defense - that he was legally growing marijuana as a caregiver for a qualifying patient under the Washington Medical Use of Marijuana Act. The instant court concluded that reversal of the judgment was required because the trial court failed to enter written findings of fact and conclusions of law as required for a bench trial under Wash. Super. Ct. Crim. R. 6.1. It further concluded that defendant presented sufficient evidence to raise the affirmative defense. Defendant gave police officers a letter written by a physician. The letter stated that the patient should be able to use marijuana for appetite stimulation. The physician was not required to express his personal opinion using the specific language in the statute. Although given evidence showing the extent of defendant's grow operation, it was unlikely that his affirmative defense would be successful, his documentation was sufficient to meet the prima facie threshold to allow him to present a medical marijuana primary caregiver defense under the statute.

OUTCOME: The judgment was reversed, and the case was remanded for a new trial.


CORE TERMS: marijuana, patient, documentation, caregiver, affirmative defense, qualifying, conclusions of law, review denied, professional opinion, outweigh, sentence, health risks, appetite, medical records, potential benefits, manufacturing, prescription, debilitating, medication, terminal, illness, grow, state law, right to present, legislative intent, physician's statement, confidentialityâ??, preponderance, convey, Medical Use of Marijuana Act

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Trials > Bench Trials
HN1Go to the description of this Headnote. See Wash. Super. Ct. Crim. R. 6.1(d).


Criminal Law & Procedure > Trials > Bench Trials
Criminal Law & Procedure > Appeals > Procedures > Records on Appeal
HN2Go to the description of this Headnote. Because written findings and conclusions facilitate appellate review, reviewing courts will generally refuse to address issues raised on appeal in the absence of such findings and conclusions. But where the record is sufficient to facilitate review, the appellate court may decide issues raised on appeal in the absence of written findings and conclusions.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN3Go to the description of this Headnote. The Washington Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, provides patients and caregivers who meet the Act's requirements with an affirmative defense when charged by the State with possessing or manufacturing marijuana.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN4Go to the description of this Headnote. See former Wash. Rev. Code § 69.51A.040(1) (1999).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence
HN5Go to the description of this Headnote. In order to affirmatively defend a criminal prosecution for possessing or manufacturing marijuana, a defendant must show by a preponderance of evidence that he or she has met the requirements of the Washington Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A.


Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence
HN6Go to the description of this Headnote. Preponderance of the evidence means that considering all the evidence, the proposition asserted must be more probably true than not true.


Criminal Law & Procedure > Jury Instructions > Particular Instructions > Theory of Defense
Criminal Law & Procedure > Appeals > Reversible Errors > Jury Instructions
HN7Go to the description of this Headnote. In general, a trial court must instruct on a party's theory of the case if the law and the evidence support it; the failure to do so is reversible error.


Criminal Law & Procedure > Trials > Defendant's Rights > General Overview
Evidence > Procedural Considerations > General Overview
Evidence > Relevance > General Overview
HN8Go to the description of this Headnote. A defendant has the right to present a defense but may not do so by introducing irrelevant or inadmissible evidence.


Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Jury Instructions > Particular Instructions > General Overview
Evidence > Procedural Considerations > Weight & Sufficiency
HN9Go to the description of this Headnote. A defendant raising an affirmative defense must offer sufficient admissible evidence to justify giving an instruction on the defense. In evaluating whether the evidence is sufficient to support such an instruction, the trial court must interpret the evidence most strongly in favor of the defendant.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN10Go to the description of this Headnote. In order for a defendant to establish a primary caregiver affirmative defense under the Washington Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, he or she must present a copy of the qualifying patient's valid documentation as well as evidence of designation to act as primary caregiver by the patient, to any law enforcement official requesting such information. Former Wash. Rev. Code § 69.51A.040(4)(c). Former Wash. Rev. Code § 69.51A.010(5)(a) defines "valid documentation" as a statement signed by a qualifying patient's physician, or a copy of the qualifying patient's pertinent medical records, which states that, in the physician's professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for a particular qualifying patient.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN11Go to the description of this Headnote. Under former Wash. Rev. Code § 69.51A.010(2) of the Washington Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, a primary caregiver must be 18 years of age or older, responsible for the housing, health, or care of the patient, and must be designated in writing by a patient to perform the duties of primary caregiver. Additionally, under former Wash. Rev. Code § 69.51A.040(4)(b), (d), and (e), the primary caregiver shall possess no more marijuana than is necessary for the patient's personal medical use, not exceeding the amount necessary for a 60-day supply; be prohibited from consuming marijuana obtained for the personal medical use of the patient for whom the individual is acting as primary caregiver; and be the primary caregiver to only one patient at any one time.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN12Go to the description of this Headnote. Nothing in the Washington Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, requires "valid documentation" to contain the exact language of the statute. Instead, the statute merely requires that the physician's statement convey the physician's professional opinion that the potential benefits of the medical use of marijuana would likely outweigh the health risks for a particular qualifying patient.


Governments > Legislation > Interpretation
HN13Go to the description of this Headnote. A fundamental rule of statutory construction is that the court must interpret legislation consistently with its stated goals. To ascertain legislative intent, a court looks to the statute's declaration of purpose.


Hide Headnotes / Syllabus


SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: Prosecution for unlawful manufacture of a controlled substance: marijuana.

Superior Court: After granting the State's motion in limine to preclude the defendant from asserting a medical marijuana primary caregiver defense, the Superior Court for Clallam County, No. 07-1-00108-4, George L. Wood, J., entered a judgment of guilty on May 1, 2008.

Court of Appeals: Holding that the judgment and sentence must be reversed because the trial court failed to enter written findings of fact and conclusions of law as required by court rule for a bench trial and that the defendant presented sufficient documentation to raise a medical marijuana primary caregiver defense, the court reverses the judgment and remands the case for further proceedings.


HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES


WA(1)[1] Criminal Law â?? Trial â?? By Court â?? Findings of Fact â?? Conclusions of Law â?? Failure To Enter â?? Remedy â?? Reversal. A trial court's failure to enter written findings of fact and conclusions of law in support of a criminal judgment and sentence following a bench trial as required by CrR 6.1(d) requires that the judgment and sentence be reversed and the case remanded.

WA(2)[2] Criminal Law â?? Review â?? Findings and Conclusions â?? Absence â?? Record Sufficient for Review. While a reviewing court generally will refuse to address issues raised on appeal of a criminal judgment and sentence entered following a bench trial in the absence of written findings of fact and conclusions of law, where the record is sufficient to facilitate review, a reviewing court may decide issues raised on appeal in the absence of written findings and conclusions.

WA(3)[3] Criminal Law â?? Defense â?? Affirmative Defense â?? Right To Present â?? Supporting Evidence â?? Interpretation. A criminal defendant has a right to present an affirmative defense if the defense is supported by relevant admissible evidence. In evaluating whether the evidence is sufficient to raise the defense, the trial court must interpret the evidence most strongly in favor of the defendant.

WA(4)[4] Statutes â?? Construction â?? Purpose â?? In General. A statute must be interpreted consistently with its stated goals.

WA(5)[5] Statutes â?? Construction â?? Legislative Intent â?? Purpose â?? Statement of Purpose. To ascertain the legislative intent of a statute, a court looks to the statute's declaration of purpose.

WA(6)[6] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? â??Valid Documentationâ?� â?? Averment of Benefits Outweighing Risks â?? Sufficiency â?? Test. The valid documentation required by former RCW 69.51A.040(4)(c) (1999) and defined by former RCW 69.51A.010(5)(a) (1999) to establish the medical marijuana primary caregiver defense to a marijuana-related charge may be satisfied by a physician's statement that, by a fair reading, generally conveys the physician's professional opinion that the benefits of a qualifying patient's medical use of marijuana outweigh the risks to the patient. The statutory scheme does not necessarily require â??valid documentationâ?� to contain the exact language set forth in former RCW 69.51A.010(5)(a).

COUNSEL: Manek R. Mistry and Jodi R. Backlund (of Backlund & Mistry), for appellant.

Deborah S. Kelly, Prosecuting Attorney, and Brian P. Wendt, Deputy, for respondent.

JUDGES: Authored by Christine Quinn-Brintnall. Concurring: Elaine Houghton, J. Robin Hunt.

OPINION BY: Christine Quinn-Brintnall

OPINION

[*573] [**614] ¶1 Quinn-Brintnall, J. â?? At a bench trial on stipulated facts, the trial court found Earl Gordon Otis, Jr., guilty of manufacturing marijuana, contrary to RCW 69.50.401(1). Otis appeals his conviction, arguing that the trial court erred when it granted the State's motion to preclude him from asserting a medical marijuana caregiver affirmative defenseâ??that Otis was legally growing marijuana as a caregiver for a qualifying patient under the Washington State Medical Use of Marijuana Act (Act), chapter 69.51A RCW. Because the trial court failed to enter written findings of fact and conclusions of law as required for a bench trial under CrR 6.1, we reverse Otis's judgment and sentence. Additionally, [***2] we hold that Otis presented sufficient [*574] evidence to raise the affirmative defense. Accordingly, we reverse Otis's conviction and remand for a new trial.
FACTS

¶2 On March 10, 2007, Port Angeles police officers, assisted by Clallam County sheriff deputies, executed a search warrant for a juvenile residing at 3070 Eden Valley Road, Port Angeles, Washington. Otis and Stephanie McCarty were at home when the officers conducted their search. While executing the warrant, officers saw a marijuana grow operation 1 that included approximately 75 plants in varying stages of maturity, smoking devices with marijuana residue located throughout the house, a safe containing a scale, and posters and magazines â??that promoted marijuana smoking.â?� Clerk's Papers (CP) at 30. Officers arrested Otis and McCarty and read them their Miranda 2 rights. Otis and McCarty both stated that they understood their rights and were willing to talk about the grow operation.

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1 The original search warrant was not related to the marijuana grow operation. Officers obtained a second warrant after discovering marijuana during their initial search.2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

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[**615] ¶3 Otis told officers [***3] that he was lawfully growing marijuana for medicinal purposes as a caregiver for R.K. 3 He gave officers a letter dated October 20, 2005, written and signed by Dr. Robert Rakita of Virginia Mason Medical Center. The letter, written on stationary with Virginia Mason Medical Center letterhead, stated:

To Whom it may concern:

Re: [R.K.]

[R.K.] should be able to use marijuana for appetite stimulation. He has tried Marinol, but it is not effective for him & he has lost weight.

CP at 50.


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3 We use R.K.'s initials to protect his privacy.

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[*575] ¶4 Otis also gave officers a note signed by R.K. and Otis that stated:

I [R.K.] am Terminally Ill with the [acquired immune deficiency syndrome (AIDS)] VIRUS. And I am designating Earl Otis as my Caregiver. In accordance with Chapter 69.51A.040 RCW. On this day Monday November 14th 2005.

CP at 53. On March 14, 2007, the State charged Otis and McCarty with manufacturing marijuana in violation of RCW 69.50.401(1).

¶5 The trial court joined Otis and McCarty as codefendants and both sought to assert a medical marijuana defense at trial. Before trial, the State filed a motion in limine to preclude Otis and McCarty from asserting a medical marijuana defense. Otis filed a response [***4] to the State's motion on August 22, 2007. On December 21, 2007, Otis filed an offer of proof pursuant to the trial court's December 4, 2007 memorandum. 4 Otis's offer of proof included a December 21, 2007 letter from Dr. Rakita that stated:

To Whom It May Concern:

RE: [R.K.]

[R.K.] has been a patient of mine, off and on, since 2000. A question has been raised regarding his use of marijuana for medical purposes. As can be seen from his medical records, we had discussed this on multiple occasions in 2000, and again in 2005. He indicated that this was very helpful to improve his appetite and reduce his nausea. For him, the medical benefits outweighed the risks.

Sincerely,

Robert Rakita, MD

CP at 78. Otis also presented the trial court with some of R.K.'s medical records that extensively chronicled R.K.'s unsuccessful use of traditional prescription medications to treat his AIDS symptoms and how medical marijuana [*576] effectively treated those symptoms when prescription medications failed.


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4 The trial court's December 4, 2007 memorandum is not in the record on appeal.

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¶6 On December 31, 2007, the trial court issued its memorandum opinion and order granting the State's motion to preclude Otis and McCarty [***5] from presenting a medical marijuana primary caregiver defense. The trial court found the October 20, 2005 letter presented to police by Otis did not conform to the statutory definition of â??valid documentation.â?� 5 The trial court also found Otis could not bring the letter into conformity through the testimony of Dr. Rakita because the medical marijuana statute required a signed written statement. Finally, the trial court found that because a caregiver must possess valid documentation in advance of questioning or request by law enforcement and must present the valid documentation to law enforcement at the time of the request, the trial court would not consider Rakita's December 21, 2007 letter or R.K.'s medical records discussing his medicinal marijuana use.

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5 The trial court's memorandum opinion states that the parties agreed the October 20, 2005 letter did â??not completely conform to the statutory definition.â?� CP at 70. But nothing in the record shows such an agreement.

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¶7 Otis and McCarty waived their right to a jury trial and elected to proceed on a stipulated bench trial. Based on the stipulated facts, the trial court found Otis guilty of manufacture of marijuana. On May 1, 2008, the trial [***6] court sentenced Otis to 4 months incarceration with 30 days converted to 240 hours of community restitution, and 12 months of community custody. The trial court did not enter written findings of fact and conclusions of law. Otis timely appeals.
[**616] ANALYSIS

WA(1)[1] ¶8 As an initial matter, the trial court's failure to enter written findings of fact and conclusions of law following a criminal bench trial requires we reverse Otis's judgment and sentence and remand. State v. Head, 136 Wn.2d 619, 620-21, 964 P.2d 1187 (1998). CrR 6.1(d) states:

[*577] HN1Go to this Headnote in the case.In a case tried without a jury, the court shall enter findings of fact and conclusions of law. In giving the decision, the facts found and the conclusions of law shall be separately stated. The court shall enter such findings of fact and conclusions of law only upon 5 days' notice of presentation to the parties.

WA(2)[2] ¶9 HN2Go to this Headnote in the case.Because written findings and conclusions facilitate appellate review, reviewing courts will generally refuse to address issues raised on appeal in the absence of such findings and conclusions. See Head, 136 Wn.2d at 624. But where the record is sufficient to facilitate review, we may decide issues raised on appeal in the absence of written findings and [***7] conclusions. See State v. Denison, 78 Wn. App. 566, 897 P.2d 437 (vacating judgment and remanding for entry of findings and conclusions but deciding issues that did not require findings of fact for their resolution), review denied, 128 Wn.2d 1006 (1995). Here, Otis challenges only the trial court's grant of the State's pretrial motion to preclude him from presenting an affirmative defense and the record is adequate to address his challenge.

¶10 Otis argues that the trial court erred by precluding him from raising a medical marijuana defense because Dr. Rakita's October 20, 2005 letter qualified as â??valid documentationâ?� under former RCW 69.51A.010(5)(a) (1999). We agree.
Medical Use of Marijuana Act

¶11 In November 1998, the citizens of Washington enacted Initiative 692, the Medical Use of Marijuana Act. The Act is codified in chapter 69.51A RCW. HN3Go to this Headnote in the case.The Act provides patients and caregivers who meet the Act's requirements with an affirmative defense when charged by the State with possessing or manufacturing marijuana.

¶12 Under former RCW 69.51A.040(1) (1999):

HN4Go to this Headnote in the case.If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated [***8] primary caregiver who assists a qualifying patient in the medical use of marijuana, will be [*578] deemed to have established an affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter.

¶13 HN5Go to this Headnote in the case.In order to affirmatively defend a criminal prosecution for possessing or manufacturing marijuana, a defendant must show by a preponderance of evidence that he has met the requirements of the Act. State v. Ginn, 128 Wn. App. 872, 878, 117 P.3d 1155 (2005), review denied, 157 Wn.2d 1010 (2006). HN6Go to this Headnote in the case.Preponderance of the evidence means that considering all the evidence, the proposition asserted must be more probably true than not true. Ginn, 128 Wn. App. at 878.

¶14 Here, we are not asked to decide whether Otis proved a primary caregiver defense by a preponderance of the evidence. Instead, we are asked whether Otis presented sufficient evidence to allow a jury to consider his defense.

WA(3)[3] ¶15 HN7Go to this Headnote in the case.In general, a trial court must instruct on a party's theory of the case if the law and the evidence support it; the failure to do so is reversible error. State v. May, 100 Wn. App. 478, 482, 997 P.2d 956 (citing State v. Birdwell, 6 Wn. App. 284, 297, 492 P.2d 249, review denied, [***9] 80 Wn.2d 1009, cert. denied, 409 U.S. 973 (1972)), review denied, 142 Wn.2d 1004 (2000). HN8Go to this Headnote in the case.Defendants have the right to present a defense but may not do so by introducing irrelevant or inadmissible evidence. State v. Thomas, 123 Wn. App. 771, 778, 98 P.3d 1258 (2004), review denied, 154 Wn.2d 1026 (2005). HN9Go to this Headnote in the case.A defendant raising an affirmative defense must offer sufficient admissible evidence to justify giving an instruction on the defense. State v. Janes, 121 Wn.2d 220, 237, [**617]
850 P.2d 495 (1993). In evaluating whether the evidence is sufficient to support such an instruction, the trial court must interpret the evidence most strongly in favor of the defendant. May, 100 Wn. App. at 482.

[*579] Primary Caregiver

¶16 In addition to other requirements under the Act not at issue here, 6 HN10Go to this Headnote in the case.in order for Otis to establish a primary caregiver affirmative defense he must

[p]resent a copy of the qualifying patient's valid documentation â?¦ as well as evidence of designation to act as primary caregiver by the patient, to any law enforcement official requesting such information.

Former RCW 69.51A.040(4)(c) (emphasis added). Former RCW 69.51A.010(5)(a) defines â??valid documentationâ?� as

[a] statement signed by a qualifying [***10] patient's physician, or a copy of the qualifying patient's pertinent medical records, which states that, in the physician's professional opinion, the potential benefits of the medical use of marijuana would likely outweigh the health risks for a particular qualifying patient. [7]


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6 HN11Go to this Headnote in the case.Under former RCW 69.51A.010(2), a â??primary caregiverâ?� must be 18 years of age or older, responsible for the housing, health, or care of the patient, and must be designated in writing by a patient to perform the duties of primary caregiver. Additionally, under former RCW 69.51A.040(4)(b), (d), and (e), the primary caregiver shall possess no more marijuana than is necessary for the patient's personal medical use, not exceeding the amount necessary for a 60-day supply; be prohibited from consuming marijuana obtained for the personal medical use of the patient for whom the individual is acting as primary caregiver; and be the primary caregiver to only one patient at any one time.7 Recent amendments to the Act lessen the documentation burden for caregivers to raise the affirmative defense. Effective July 22, 2007, the legislature amended former RCW 69.51A.010(5)(a) by replacing â??the potential benefits of the medical [***11] use of marijuana would likely outweigh the health risks for a particular qualifying patientâ?� with â??the patient may benefit from the medical use of marijuana.â?� RCW 69.51A.010(5)(a). But former RCW 69.51A.010(5)(a) applies here because it was the statute in effect at the time of Otis's offense. State v. Schmidt, 143 Wn.2d 658, 673-74, 23 P.3d 462 (2001).

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¶17 Here, Otis presented some evidence that he provided investigating officers with â??valid documentationâ?� as required under the Act. The State asserts that Dr. Rakita's October 2005 letter does not meet the Act's definition of â??valid documentationâ?� because it does not â??strictly adhere to the language set forth in the statute.â?� Br. of Resp't at 4. But contrary to the State's assertion, HN12Go to this Headnote in the case.nothing in the Act requires â??valid documentationâ?� to contain the exact language [*580] of the statute. Instead, the statute merely requires that the physician's statement convey the physician's professional opinion that the potential benefits of the medical use of marijuana would likely outweigh the health risks for a particular qualifying patient.

¶18 The State's reliance on State v. Shepherd, 110 Wn. App. 544, 41 P.3d 1235, review denied, 147 Wn.2d 1017 (2002), is misplaced. [***12] In Shepherd, Division Three of this court found a physician's statement insufficient to meet the requirements of â??valid documentationâ?� where the statement read:

I have diagnosed and am treating the above named patient for a terminal illness or debilitating condition as defined in RCW 69.51A.010 (should the conditions be listed, a check list? I think not as it may be seen as violating physician-patient confidentiality).

I have advised the above named patient about the potential risks and benefits of the medical use of marijuana. I have assessed the above named patient's medical history and medical condition. It is my medical opinion that the potential benefits of the medical use of marijuana may outweigh the health risks for this patient.

110 Wn. App. at 547 (emphasis added).

¶19 Division Three of this court found â??may outweigh the health risksâ?� to be insufficient because the statute requires a stronger showing on necessity than simply â??may.â?�

The required proof is tantamount to the level of certainty required of expert opinions [**618] in courts. And a well-developed body of law in this state sets out the requirements for admission of professional opinions when the expert must express an opinion on [***13] a â??more likely than notâ?� basis. Expert testimony should express â??a reasonable probability rather than mere conjecture or speculation.â?�

Shepherd, 110 Wn. App. at 551 (internal quotation marks omitted) (quoting Davidson v. Mun. of Metro. Seattle, 43 Wn. App. 569, 571, 719 P.2d 569, review denied, 106 Wn.2d 1009 (1986)).

[*581] WA(4)[4-6] ¶20 Nothing in Shepherd suggests the narrow reading of the Act's requirements for â??valid documentationâ?� that the State suggests. Instead, Shepherd held that the Act required â??valid documentationâ?� to contain a physician's professional opinion on a â??more likely than notâ?� basis. 110 Wn. App. at 551. Here, unlike in Shepherd, a fair reading of R.K.'s physician's note is that R.K. had tried prescription medication unsuccessfully to increase his appetite and stop life-threatening weight loss and that because of the failure of prescription medications to counter his weight loss, R.K. â??should be able to use marijuana for appetite stimulation.â?� 8 CP at 50.

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8 While it is not clear from the face of Dr. Rakita's October 2005 letter how the medical use of marijuana to stimulate appetite was beneficial to R.K., the plain language of the Act does not require â??valid documentationâ?� to list the patient's condition, here AIDS wasting [***14] syndrome. We interpret â??valid documentationâ?� not to require such disclosure as this may conflict with one or more purposes of the patient-physician confidentiality statute. RCW 5.60.060(4); Carson v. Fine, 123 Wn.2d 206, 213, 867 P.2d 610 (1994) (â??One purpose of the statutory privilege is to surround patient-physician communications with a â??cloak of confidentialityâ?? to promote proper treatment by facilitating full disclosure of information. Another purpose of the privilege is to protect the patient from embarrassment or scandal which may result from revelation of intimate details of medical treatment.â?� (citations omitted)).

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¶21 Furthermore, the State's narrow reading of the Act's requirements for â??valid documentationâ?� runs counter to the stated purpose of the Act. Former RCW 69.51A.005 (1999) sets forth the purpose and intent of the Act:

The people of Washington state find that some patients with terminal or debilitating illnesses, under their physician's care, may benefit from the medical use of marijuana. â?¦

The people find that humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, [***15] individual decision, based upon their physician's professional medical judgment and discretion.

Therefore, the people of the state of Washington intend that:

Qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a [*582] crime under state law for their possession and limited use of marijuana;

Persons who act as primary caregivers to such patients shall also not be found guilty of a crime under state law for assisting with the medical use of marijuana.

¶22 HN13Go to this Headnote in the case.â??A fundamental rule of statutory construction is that the court must interpret legislation consistently with its stated goals.â?� Tunstall v. Bergeson, 141 Wn.2d 201, 211, 5 P.3d 691 (2000) (citing Weyerhaeuser Co. v. Tri, 117 Wn.2d 128, 140, 814 P.2d 629 (1991)), cert. denied, 532 U.S. 920 (2001). To ascertain legislative intent, we look to the statute's declaration of purpose. Donohoe v. State, 135 Wn. App. 824, 844, 142 P.3d 654 (2006). Consistent with the Act's stated purpose, we hold that â??valid documentationâ?� merely requires a written statement that generally conveys a physician's professional opinion that the benefits [***16] of the medical use of marijuana outweigh the risks for a particular patient, without requiring the physician to express his or her professional opinion using the specific language in the statute.

¶23 Although given evidence showing the extent of Otis's grow operation, it is unlikely that his affirmative defense will be successful; his documentation was sufficient to meet the prima facie threshold to allow him to present a medical marijuana primary caregiver [**619] defense under the statute. Accordingly, we reverse Otis's judgment and sentence and remand for a new trial.

Houghton and Hunt, JJ., concur.

PRIOR HISTORY: [***1]
Appeal from Benton Superior Court. Docket No: 06-1-00899-9. Judgment or order under review. Date filed: May 10, 2007. Judge signing: Honorable Robert G Swisher.


CASE SUMMARY

PROCEDURAL POSTURE: Defendant appealed a judgment of the Benton County Superior Court, Washington, which convicted him for maintaining a dwelling for controlled substances.

OVERVIEW: Defendant argued that the trial court erred in prohibiting him from raising a primary caregiver defense under the Washington Medical Marijuana Act. The instant court concluded that defendant produced sufficient evidence to raise the defense. The record established that defendant obtained the proper documentation designating him a primary caregiver for a patient well in advance of law enforcement contact. However, the trial court refused to admit these documents, concluding that defendant's presentation of the documents a year and a half after his contact with law enforcement was too late. Defendant did not dispute that the Act required presentment of valid documentation when requested by police, but pointed out that due to his arrest away from home, he was never given a chance to obtain the documents in his possession. Given that defendant possessed the appropriate authorizing documents at the time of his arrest and was cooperative with police, there was nothing to suggest that he would not have provided such documents if requested by law enforcement. The trial court erred in refusing to allow defendant to present his authorizing documents.

OUTCOME: The judgment was reversed, and the case was remanded.


CORE TERMS: marijuana, caregiver, documentation, patient's, affirmative defense, designated, qualifying, law enforcement, arrest, controlled substances, jail, prima facie, authorization, Medical Use of Marijuana Act, law enforcement, sufficient evidence, marijuana-related, designation, questioning, doctors, times, Criminal Law, presentation, possessed, dwelling, arrested, garage, laws relating, prima facie, failed to satisfy

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Conclusions of Law
HN1Go to the description of this Headnote. With respect to whether the trial court erred in prohibiting a defendant from presenting the primary caregiver affirmative defense under the Washington Medical Marijuana Act, Wash. Rev. Code ch. 69.51A, an appellate court is required to determine whether the trial court's factual findings are adequate to support its conclusion that the defendant failed to satisfy the requirements of the Act. To the extent that the trial court interpreted the Act, appellate review is de novo.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN2Go to the description of this Headnote. The Washington Medical Marijuana Act, Wash. Rev. Code ch. 69.51A, protects people who supply marijuana to qualified patients. Wash. Rev. Code § 69.51A.005. The Act provides an affirmative defense for patients and caregivers against Washington laws relating to marijuana.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN3Go to the description of this Headnote. See former Wash. Rev. Code § 69.51A.040(1).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN4Go to the description of this Headnote. See former Wash. Rev. Code § 69.51A.040(4).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN5Go to the description of this Headnote. In order to raise the primary caregiver affirmative defense under the Washington Medical Marijuana Act, Wash. Rev. Code ch. 69.51A, a defendant is required to obtain his authorizing documentation in advance of law enforcement questioning. Further, a caregiver must be designated by a qualified patient before arrest or seizure. To raise the defense, a defendant need only make a prima facie showing.


Hide Headnotes / Syllabus


SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: Prosecution for maintaining a dwelling for controlled substances.

Superior Court: The Superior Court for Benton County, No. 06-1-00899-9, Robert G. Swisher, J., on May 10, 2007, entered a judgment of guilty on stipulated facts.

Court of Appeals: Holding that the defendant provided sufficient evidence to raise a â??primary caregiverâ?� affirmative defense under the Medical Use of Marijuana Act, the court reverses the judgment and remands the case for further proceedings.


HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES


WA(1)[1] Criminal Law â?? Affirmative Defense â?? Instruction â?? Necessity â?? Interpretation of Evidence. In evaluating whether the evidence offered by a criminal defendant is sufficient to raise an affirmative defense, a trial court must view the evidence in the defendant's favor.

WA(2)[2] Criminal Law â?? Affirmative Defense â?? Instruction â?? Necessity â?? Prima Facie Proof. A criminal defendant is entitled to an instruction on an affirmative defense if the defendant presents sufficient evidence to prima facie establish the defense.

WA(3)[3] Criminal Law â?? Affirmative Defense â?? Statutory Defense â?? Denial â?? Review â?? Standard of Review. An appellate court reviewing a trial court's denial of a criminal defendant's request for an instruction on a statutory affirmative defense must determine whether the trial court's findings of fact are adequate to support its conclusion that the defendant failed to satisfy the requirements of the statute.

WA(4)[4] Statutes â?? Construction â?? Review â?? Standard of Review. An appellate court reviews de novo a trial court's interpretation of a statute.

WA(5)[5] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Designated Primary Caregiver â?? In General. RCW 69.51A.040 of the Medical Use of Marijuana Act provides an affirmative defense to marijuana-related charges for designated primary caregivers in possession of marijuana for a qualifying patient's personal medical use when â??valid documentationâ?� can be produced.

WA(6)[6] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Designated Primary Caregiver â?? Written Designation â?? Timeliness. The primary caregiver defense to a marijuana-related charge under RCW 69.51A.040 of the Medical Use of Marijuana Act requires the primary caregiver to have obtained authorizing documentation in advance of law enforcement questioning and to have been designated by a qualified patient before arrest or seizure.

WA(7)[7] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Designated Primary Caregiver â?? Instruction â?? Prima Facie Case â?? Necessity. A defendant charged with a marijuana-related offense may raise the primary caregiver defense under RCW 69.51A.040 of the Medical Use of Marijuana Act if the defendant offers sufficient evidence to prima facie establish the defense.

WA(8)[8] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Designated Primary Caregiver â?? Instruction â?? Prima Facie Case â?? Sufficiency. A defendant charged with a marijuana-related offense is entitled to an instruction on the primary caregiver defense under RCW 69.51A.040 of the Medical Use of Marijuana Act if the evidence shows that the defendant obtained the proper authorizing documents well in advance of law enforcement contact and was unable to timely present the documents to law enforcement officers due to the circumstances of the arrest and subsequent detention.

WA(9)[9] Controlled Substances â?? Marijuana â?? Medical Use of Marijuana Act â?? Designated Primary Caregiver â?? â??Valid Documentationâ?� â?? Presentation â?? Continuous Possession â?? Necessity. The Medical Use of Marijuana Act (chapter 69.51A RCW) does not require a primary caregiver to carry authorizing documentation on his or her person at all times. RCW 69.51A.040(3)(c) simply requires a primary caregiver to provide a copy of the qualifying patient's valid documentation and evidence that the caregiver is a primary caregiver when a request is made by law enforcement for such documentation.

COUNSEL: Janet G. Gemberling and Julia A. Dooris (of Gemberling & Dooris, PS), for appellant.

Andrew K. Miller, Prosecuting Attorney, and Arthur J. Bieker, Deputy, for respondent.

JUDGES: Authored by John A. Schultheis. Concurring: Kevin M. Korsmo, Dennis J. Sweeney.

OPINION BY: John A. Schultheis

OPINION

[*233] [**1058] ¶1 Schultheis, C.J. â?? Timothy Adams appeals his conviction of maintaining a dwelling for controlled substances, claiming the trial court erred in prohibiting him from raising a â??primary caregiverâ?� defense under the Washington State Medical Use of Marijuana Act (Medical Marijuana Act or Act), chapter 69.51A RCW. We conclude that Mr. Adams produced sufficient evidence to raise the defense and therefore reverse and remand.
FACTS

¶2 In March 2005, Kennewick police officers received a tip that Mr. Adams was growing marijuana at his house in Kennewick. On March 12, while Mr. Adams was at work, police searched his home and garage. A medical marijuana permit not pertinent to this appeal was posted on the door of the garage. Inside the garage, officers found approximately [***2] 40 marijuana plants.

¶3 After the initial search, police officers Stan Howard and Lee Cooper drove to Mr. Adams' workplace in Pasco. Officer Howard immediately arrested and handcuffed Mr. Adams, who explained that he had a medical marijuana permit. Officers did not ask any follow-up questions or request documentation. Mr. Adams was transported directly to the Benton County Jail.

[**1059] ¶4 At the jail, Mr. Adams told Officer Cooper that he had medical use permits from two Portland doctors authorizing his medical use of marijuana. Officer Cooper did not follow up on this information or ask for any documentation.

¶5 The State charged Mr. Adams with maintaining a dwelling for controlled substances. Mr. Adams later filed a motion to allow the primary caregiver affirmative defense under the Medical Marijuana Act. In support of his motion, Mr. Adams submitted a November 27, 2004 letter, in which Ryan Ward appointed Mr. Adams as his medical marijuana caregiver; a verification that Dr. Thomas Orvald, Mr. Ward's authorizing physician, was licensed to practice in the state of Washington; and a 2004 medical authorization [*234] from Dr. Orvald for Mr. Ward's medical use of marijuana. The validity of these documents is [***3] not at issue.

¶6 At the outset of the hearing on the motion, the court noted that Mr. Adams had a â??heavyâ?� burden of proof. Report of Proceedings (Feb. 22, 2007) at 2. Mr. Adams argued that he should be allowed to use the primary caregiver defense under the Act because he possessed valid authorizing documents at the time of his arrest but was never allowed to retrieve them.

¶7 The court initially granted Mr. Adams' motion, noting that Mr. Adams possessed the appropriate documentation prior to charging and that the Act was not clear as to when a person must provide such documents. The State moved for reconsideration of the decision, arguing that Mr. Adams' presentation of the documents was not timely and that a medical marijuana authorization is akin to a driver's license that should be carried at all times.

¶8 The court reversed its previous ruling, concluding:

1. March 12, 2005 was the date the defendant was questioned by law enforcement regarding his medical use of marijuana within the meaning of [former] RCW 69.51A.040(2)[(c)] and (4)(c) [(1999)].

2. March 12, 2005 was the date the defendant had the duty to present his authorization as a qualifying patient or designation as a caregiver under [former] [***4] RCW 69.51A.040(2)[(c)] and (4)(c).

3. The defendant at that time presented, by mentioning and directing officers to authorization documents from Doctor Dodge. Doctor Dodge was not a qualified physician, because he was not, at the time the authorization was signed, licensed to practice under RCW 18.71 as a Washington Physician. â?¦

4. The documents the defendant provided approximately a year and a half after his contact with law enforcement are not admissible under RCW Chapter 69.51A, because they were not provided nor mentioned when the defendant was questioned regarding his use of marijuana.

[*235] 5. The defense motion, previously granted, is reconsidered, and the medical marijuana defense is hereby stricken.

Clerk's Papers at 74.

¶9 Mr. Adams was convicted on stipulated facts of maintaining a dwelling for controlled substances. He appeals the trial court's refusal to allow him to raise the medical marijuana defense.
ANALYSIS

¶10 We first address Mr. Adams' claim that the trial court applied the wrong standard in evaluating his request to raise the affirmative defense under the Act. He argues that the court's remark at the first hearing regarding the â??heavyâ?� burden of proof is evidence that the trial [***5] court failed to view the evidence in the light most favorable to him.

WA(1)[1, 2] ¶11 Mr. Adams is correct that in evaluating the sufficiency of the evidence to raise an affirmative defense under the Act, the trial court must view the evidence in favor of the defendant. State v. Ginn, 128 Wn. App. 872, 882, 117 P.3d 1155 (2005). However, we find no evidence the court failed to do so. Notwithstanding the court's comment, it ultimately ruled in Mr. Adams' favor at the first hearing. Although the court reversed its decision upon reconsideration, the State correctly pointed out during [**1060] the hearing that Mr. Adams need only make a prima facie case to raise the defense. We find nothing in the record to indicate that the court required Mr. Adams to make any more than a prima facie showing that he was an authorized caregiver under the Act.

WA(3)[3, 4] ¶12 We now turn to the primary issueâ??HN1Go to this Headnote in the case.whether the trial court erred in prohibiting Mr. Adams from presenting the primary caregiver affirmative defense under the Act. This requires us to determine whether the court's factual findings are adequate to support its conclusion that Mr. Adams failed to satisfy the requirements of the Act. State v. Hanson, 138 Wn. App. 322, 325-26, 157 P.3d 438 (2007). [***6] To the extent that the court interpreted the Act, our review is de novo. State v. Shepherd, 110 Wn. App. 544, 550, 41 P.3d 1235 (2002).

[*236] WA(5)[5] ¶13 HN2Go to this Headnote in the case.The Medical Marijuana Act protects people who supply marijuana to qualified patients. RCW 69.51A.005. â??The Act provides an affirmative defense for patients and caregivers against Washington laws relating to marijuana.â?� Shepherd, 110 Wn. App. at 549; former RCW 69.51A.040(2).

¶14 Under former RCW 69.51A.040(1):

HN3Go to this Headnote in the case.If charged with a violation of state law relating to marijuana, any qualifying patient who is engaged in the medical use of marijuana, or any designated primary caregiver who assists a qualifying patient in the medical use of marijuana, will be deemed to have established the affirmative defense to such charges by proof of his or her compliance with the requirements provided in this chapter.

¶15 HN4Go to this Headnote in the case.A caregiver must satisfy the following requirements:

(a) Meet all criteria for status as a primary caregiver to a qualifying patient;

(b) Possess, in combination with and as an agent for the qualifying patient, no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply;

(c) Present a copy of [***7] the qualifying patient's valid documentation required by this chapter, as well as evidence of designation to act as primary caregiver by the patient, to any law enforcement officer requesting such information.

Former RCW 69.51A.040(4).

WA(6)[6, 7] ¶16 HN5Go to this Headnote in the case.A defendant is required to obtain his authorizing documentation in advance of law enforcement questioning. State v. Butler, 126 Wn. App. 741, 750-51, 109 P.3d 493 (2005). Further, a caregiver must be designated by a qualified patient before arrest or seizure. State v. Phelps, 118 Wn. App. 740, 745, 77 P.3d 678 (2003). As discussed above, to raise the defense, a defendant need only make a prima facie showing. Butler, 126 Wn. App. at 744; Ginn, 128 Wn. App. at 878-79.

WA(8)[8] ¶17 Here, the record establishes that Mr. Adams obtained the proper documentation designating him a primary [*237] caregiver for Mr. Ward well in advance of law enforcement contact. However, the trial court refused to admit these documents, concluding that Mr. Adams' presentation of the documents a year and a half after his contact with law enforcement was too late. Mr. Adams does not dispute that the Act requires presentment of valid documentation when requested by police but points out that due to his [***8] arrest away from home, he was never given a chance to obtain the documents in his possession.

¶18 We agree. Given that Mr. Adams possessed the appropriate authorizing documents at the time of his arrest and was cooperative with police, we find nothing to suggest that Mr. Adams would not have provided such documents if requested by law enforcement. He simply was not given the chance to do so. Officer Howard's police report states that upon arrival at Mr. Adams' workplace, he immediately arrested Mr. Adams, who spontaneously told him that he had a medical marijuana permit. Officer Howard did not ask any follow-up questions or request any documentation. Instead, Mr. Adams was taken directly to jail. During the drive to the jail, police did not ask Mr. Adams any questions. The court faults Mr. Adams for failing to provide the documents at the time of his arrest but fails to explain [**1061] how he could have retrieved them given the fact he was arrested away from home and immediately taken to jail.

¶19 Once at the jail, Mr. Adams was not given any opportunity to retrieve his documents. In fact, the record indicates that Officer Cooper was not interested in any such documents, focusing his questioning on [***9] Mr. Adams' knowledge of other suspected marijuana growers in the area. The four-page documentation of Officer Cooper's interview with Mr. Adams does not once reference Mr. Adams' marijuana permits or the circumstances of his marijuana possession. The trial court faults Mr. Adams for failing to reference the marijuana permits in the written statement, but the record is clear that he was never asked about them.

WA(9)[9] ¶20 The State suggests that Mr. Adams should have carried the permit at all times, but nothing in the Act [*238] indicates that this was the intent of the legislature. Former RCW 69.51A.040(4)(c) simply requires a defendant to provide a copy of the qualifying patient's valid documentation and evidence that the defendant is a primary caregiver to law enforcement upon request.
CONCLUSION

¶21 Viewed in the light most favorable to Mr. Adams, we conclude that he produced sufficient evidence to raise the primary caregiver defense. He obtained the required documents well in advance of his arrest but was never asked to provide them. Had officers shown any interest in obtaining the documents or assisted Mr. Adams in retrieving them, and had Mr. Adams been unwilling or unable to do so, then he would not [***10] have satisfied the requirements of the statute. But that is not the case here. The trial court erred in refusing to allow Mr. Adams to present his authorizing documents. We therefore reverse the conviction and remand for proceedings consistent with this opinion.

Sweeney and Korsmo, JJ., concur.

January 8, 2008, Filed

SUBSEQUENT HISTORY: Review granted by State v. Fry, 164 Wn.2d 1002, 190 P.3d 55, 2008 Wash. LEXIS 776 (Wash., Aug. 5, 2008)

PRIOR HISTORY: [***1]
Appeal from SUPERIOR COURT STEVENS COUNTY. Superior Court No: 05-1-00023-1. Date filed in Superior Court: 9/19/06. Superior Court Judge signing: ALLEN C. NIELSON.

DISPOSITION: Affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: The Superior Court, Stevens County (Washington), denied defendant's motion to suppress, granted the State's motion in limine excluding evidence of defendant's medical use of marijuana defense, and convicted him on stipulated facts of possession of over 40 grams of marijuana. Defendant appealed.

OVERVIEW: The appellate court found that the officers had probable cause to search defendant's house even after he produced his marijuana use authorization because the affirmative defense of medical use of marijuana did not negate probable cause. The State was authorized to investigate further. Additionally, whether the affirmative defense of medical use of marijuana under former Wash. Rev. Code § 69.51A.040(1) (1999) of the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, was viable was an issue for trial. Defendant's physician authorized the use of marijuana to treat his severe anxiety and anger. Although former Wash. Rev. Code § 69.51A.010(4)(d) (1991) permitted the Washington State Medical Quality Assurance Commission to approve conditions in addition to those listed in former Wash. Rev. Code § 69.51A.010(4) (1991), defendant's severe anxiety and anger was not among them. Therefore, as a matter of law, defendant was not a qualifying patient, and could not avail himself of the medical use of marijuana defense. Therefore, the appellate court concluded that the trial court did not err in prohibiting defendant from presenting the medical use defense.

OUTCOME: The appellate court affirmed the trial court's judgment.


CORE TERMS: marijuana, affirmative defense, probable cause, authorization, debilitating, self-defense, qualifying, patient, probable cause, â??â??terminal, anxiety, severe, Use Act, de novo, search warrant, medical condition, suppression, manufacture, odor, grams, law enforcement, criminal activity, probable cause, assurance, Probable, seizure, negated, anger, Criminal Law, Medical Use of Marijuana Act

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Pretrial Motions & Procedures > Suppression of Evidence
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Motions to Suppress
HN1Go to the description of this Headnote. An appellate court reviews conclusions of law in an order pertaining to a motion to suppress evidence de novo.


Criminal Law & Procedure > Appeals > Reviewability > Waiver > General Overview
HN2Go to the description of this Headnote. Where a defendant does not challenge a trial court's findings of fact, they are verities on appeal.


Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General Overview
HN3Go to the description of this Headnote. A search warrant may be issued only upon a finding of probable cause.


Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Search & Seizure > Search Warrants > Affirmations & Oaths > General Overview
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > General Overview
HN4Go to the description of this Headnote. Probable cause supports a search warrant if an affidavit contains sufficient facts and circumstances to establish that a defendant is probably involved in criminal activity and that evidence of a crime will be found at the place to be searched.


Constitutional Law > Bill of Rights > Fundamental Rights > Search & Seizure > Probable Cause
Criminal Law & Procedure > Search & Seizure > Search Warrants > Probable Cause > Sensory Perceptions
HN5Go to the description of this Headnote. When a trained officer smells marijuana, that alone provides probable cause for a search.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN6Go to the description of this Headnote. Medical authorization for marijuana use is an affirmative defense under the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A. Former Wash. Rev. Code § 69.51A.040(1) (1999).


Criminal Law & Procedure > Defenses > General Overview
HN7Go to the description of this Headnote. Affirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
HN8Go to the description of this Headnote. Whether a trial court allows a defendant's medical marijuana defense is a question of law, which an appellate court reviews de novo.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN9Go to the description of this Headnote. See Former Wash. Rev. Code § 69.51A.040(1) (1999).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN10Go to the description of this Headnote. Under former Wash. Rev. Code § 69.51A.010(3) of the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, a qualifying patient means a person who: (a) is a patient of a licensed physician; (b) has been diagnosed by that physician as having a terminal or debilitating medical condition; (c) is a resident of the State of Washington at the time of that diagnosis; (d) has been advised by that physician about the risks and benefits of the medical use of marijuana; and (e) has been advised by that physician that he or she may benefit from the medical use of marijuana.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
HN11Go to the description of this Headnote. Under former Wash. Rev. Code § 69.51A.010(4) (1999) of the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A, a terminal or debilitating medical condition includes (a) cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or (b) intractable pain, limited for the purpose of Wash. Rev. Code ch. 69.51A to mean pain unrelieved by standard medical treatments and medications; or (c) glaucoma; or (d) any other medical condition duly approved by the Washington state medical quality assurance board commission as directed in Wash. Rev. Code ch. 69.51A.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Defenses > General Overview
Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence
HN12Go to the description of this Headnote. A defendant is required to show by a preponderance of the evidence that he has met the requirements of the Washington State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A.


Hide Headnotes / Syllabus


SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY

Nature of Action: Prosecution for unlawful manufacture of a controlled substance and unlawful possession of more than 40 grams of marijuana.

Superior Court: After denying the defendant's motion to suppress evidence, granting the State's motion in limine to exclude the defendant's medical use of marijuana defense, and dismissing the charge of unlawful manufacture, the Superior Court for Stevens County, No. 05-1-00023-1, Allen Nielson, J., entered a judgment of guilty on September 19, 2006.

Court of Appeals: Holding that the defendant's production of a marijuana use authorization did not negate a determination of probable cause for the issuance of the warrant to search his residence and that the defendant was not a qualifying patient and could not avail himself of the affirmative defense of medical use of marijuana, the court affirms the judgment.


HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES


WA(1)[1] Criminal Law â?? Evidence â?? Suppression â?? Conclusions of Law â?? Review â?? Standard of Review. A trial court's conclusions of law entered in support of a ruling on a motion to suppress evidence in a criminal trial are reviewed de novo.

WA(2)[2] Criminal Law â?? Evidence â?? Suppression â?? Findings of Fact â?? Failure To Assign Error â?? Effect. Unchallenged findings of fact entered by a trial court in support of a ruling on a motion to suppress evidence in a criminal trial are verities on appeal.

WA(3)[3] Searches and Seizures â?? Warrant â?? Probable Cause â?? Determination â?? In General. A search warrant may issue only upon a magistrate's finding of probable cause based on averments made by affidavit of sufficient facts and circumstances establishing that criminal activity is occurring and that evidence of such criminal activity will be found at the place to be searched.

WA(4)[4] Searches and Seizures â?? Warrant â?? Probable Cause â?? Determination â?? Odor of Marijuana. The detection of the odor of marijuana by a police officer who is trained and experienced in marijuana detection is sufficient, by itself, to establish probable cause for the issuance of a warrant to search for evidence of marijuana possession or manufacture.

WA(5)[5] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? In General. Medical authorization for marijuana use is an affirmative defense under former RCW 69.51A.040(1) (1999) of the Medical Use of Marijuana Act.

WA(6)[6] Criminal Law â?? Defense â?? Affirmative Defense â?? Stage of Proceeding. Affirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings.

WA(7)[7] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Negation of Probable Cause for Search â?? Investigation by State. A person's mere production of a document purporting to be a marijuana use authorization does not provide automatic protection against a reasonable police investigation and search into suspected marijuana possession or manufacture and does not prohibit further investigation by the State.

WA(8)[8] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Stage of Proceeding. The viability of the affirmative defense of medical use of marijuana is an issue for trial and is not an issue for police officers to consider in the course of investigating suspected marijuana possession or manufacture.

WA(9)[9] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Issues of Law â?? Review â?? Standard of Review. Questions of law concerning the affirmative defense of medical use of marijuana are reviewed de novo.

WA(10)[10] Controlled Substances â?? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Burden of Proof â?? Degree of Proof. A defendant asserting the affirmative defense of medical use of marijuana must show by a preponderance of the evidence that he or she meets the requirements of the Medical Use of Marijuana Act (ch. 69.51A RCW).

WA(11)[11] Controlled Substances ? Marijuana â?? Medical Use Act â?? Affirmative Defense â?? Qualifying Patient â?? Severe Anxiety or Anger. Under the Medical Use of Marijuana Act (ch. 69.51A RCW) and the rules adopted by the State Medical Quality Assurance Commission in furtherance of the act, severe anxiety and anger are not qualifying conditions for the lawful use of marijuana.

COUNSEL: William D. Edelblute, for appellant.

John G. Wetle, Prosecuting Attorney, and John A. Troberg, Deputy, for respondent.

JUDGES: Schultheis, J. WE CONCUR: Sweeney, C.J., Brown, J.

OPINION BY: Schultheis

OPINION

[*458] [**1259] ¶1 Schultheis, J. â?? Following the denial of a suppression motion, Jason Lee Fry was convicted on stipulated facts of possession of over 40 grams of marijuana. On appeal, he contends his production of an authorization for medical use of marijuana negated probable cause to search his house. He also asserts the trial court erred in rejecting his proposed defense under the Washington State Medical Use of Marijuana Act (Act), chapter 69.51A RCW. We affirm.
FACTS

¶2 The facts are undisputed. On December 20, 2004, Stevens County sheriff's deputies went to Mr. Fry's house after obtaining information that he was growing marijuana. As officers approached the front porch, they could smell marijuana. When Mr. Fry opened the front door, the odor of marijuana was even stronger. Mr. Fry told the officers he had a prescription [***2] for marijuana and asked them to leave. His wife produced a document entitled â??Documentation of Medical Authorization to Possess Marijuana for Medical Purposes in Washington Stateâ?� for Mr. Fry. Clerk's Papers (CP) at 8. The authorization stated that marijuana may help Mr. Fry's â??severe anxiety, rage, & depression related to childhood.â?� CP at 9.

¶3 Officers obtained a search warrant and found several containers of marijuana and numerous marijuana plants. [*459] The seized amount totaled more than two pounds (911 grams). The State charged Mr. Fry with manufacturing marijuana and possession of more than 40 grams of marijuana.

¶4 Mr. Fry moved to suppress the evidence, arguing that once the officers were shown the medical use document, probable cause for the search no longer existed. The State countered that medical use of marijuana under the Act is an affirmative defense for trial, not a defense to probable cause.

¶5 The court denied Mr. Fry's motion, finding the odor of marijuana provided probable cause to search his home and any evidence found as a result could either support or refute the medical marijuana affirmative defense. It also found that an affirmative defense does not negate probable cause, reasoning [***3] that such defenses are for the trier of fact not for earlier stages in the proceedings. The court granted Mr. Fry's request for a stay pending his motion for discretionary review. A commissioner of this court denied Mr. Fry's motion for discretionary review.

¶6 The State moved in limine to exclude the medical use defense, arguing that Mr. Fry was not a qualifying patient under the Act because severe anxiety is not a terminal or debilitating condition as defined by the Act. The trial court excluded use of the defense. Following a bench trial on stipulated facts, Mr. Fry was convicted of possession of over 40 grams of marijuana. The manufacture of marijuana charge was dismissed.
DISCUSSION

¶7 We first address Mr. Fry's contention that the trial court erred in ruling that officers had probable cause to search his house after he produced medical authorization for marijuana use. Mr. Fry argues that his production of a medical use certificate negated probable cause for the search. Citing McBride v. Walla Walla County, 95 Wn. App. 33, 40, 975 P.2d 1029, 990 P.2d 967 (1999), the State [*460] counters that the medical use affirmative defense does not negate probable cause. Rather, the defense is to be determined [***4] by a judge or jury at trial, not law enforcement.

WA(1)[1, 2] ¶8 HN1Go to this Headnote in the case.We review conclusions of law in an order pertaining to suppression of evidence de novo. State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001). HN2Go to this Headnote in the case.Mr. Fry does not challenge the trial court's findings of fact; therefore they are verities on appeal. State v. O'Neill, 148 Wn.2d 564, 571, 62 P.3d 489 (2003).

WA(3)[3, 4] ¶9 HN3Go to this Headnote in the case.A search warrant may be issued only upon a finding of probable cause. State v. Thein, 138 Wn.2d 133, 140, 977 P.2d 582 (1999). HN4Go to this Headnote in the case.Probable cause supports a search [**1260] warrant if the affidavit contains sufficient facts and circumstances to establish that the defendant is probably involved in criminal activity and that evidence of a crime will be found at the place to be searched. Id. It is well settled that HN5Go to this Headnote in the case.when a trained officer smells marijuana, this alone provides probable cause for a search. State v. Olson, 73 Wn. App. 348, 356, 869 P.2d 110 (1994).

WA(5)[5-8] ¶10 HN6Go to this Headnote in the case.Medical authorization for marijuana use is an affirmative defense under the Act. Former RCW 69.51A.040(1) (1999). HN7Go to this Headnote in the case.Affirmative defenses are evaluated at trial, not by law enforcement at earlier stages of the proceedings. McBride, 95 Wn. App. 33. The issue in McBride was whether the affirmative defense [***5] of self-defense negated probable cause to arrest the defendant for assault. The defendant did not dispute hitting the victim but claimed officers lacked probable cause to arrest him because they had information he was acting in self-defense. In concluding that the self-defense claim did not weaken probable cause, the court reasoned:

Self-defense is an affirmative defense which can be asserted to render an otherwise unlawful act lawful. But the arresting officer does not make this determination. The officer is not judge or jury; he does not decide if the legal standard for self-defense is met. Moreover, [the arresting officer] had only one side of the story. Mr. McBride's claim of self-defense was [*461] then a mere assertion, not fact. The self-defense claim did not vitiate probable cause.

Id. at 40.

¶11 This reasoning applies here. Information relating to the validity of a suspect's medical use defense will almost always be within the defendant's knowledge. The defendant's assertion of the defense is not necessarily a fact; further development of the facts at trial may well show that the medical use defense is not viable. Therefore, the mere production of a document purporting to be a marijuana [***6] use authorization does not prohibit further investigation by the State. Here, probable cause to search Mr. Fry's house existed as soon as officers smelled marijuana. His production of a medical use document did not provide automatic protection against a reasonable police investigation and search. Whether the affirmative defense of medical use of marijuana was viable was an issue for trial.

WA(9)[9] ¶12 Next, we address whether the trial court erred in disallowing Mr. Fry's medical marijuana defense. Again, because HN8Go to this Headnote in the case.this involves a question of law, our review is de novo. Ross, 106 Wn. App. at 880.

¶13 HN9Go to this Headnote in the case.Former RCW 69.51A.040(1) states, â??any qualifying patient who is engaged in the medical use of marijuana â?¦ will be deemed to have established an affirmative defense to â?¦ charges [of violating marijuana law] by proof of his or her compliance with the requirements provided in this chapter.â?� HN10Go to this Headnote in the case.Under this statute, a qualifying patient means a person who:

(a) Is a patient of a [licensed] physician â?¦ ;

(b) Has been diagnosed by that physician as having a terminal or debilitating medical condition;

(c) Is a resident of the state of Washington at the time of such diagnosis;

(d) Has been advised by that physician [***7] about the risks and benefits of the medical use of marijuana; and

(e) Has been advised by that physician that they may benefit from the medical use of marijuana.

RCW 69.51A.010(3).

[*462] ¶14 The trial judge prevented Mr. Fry from bringing the defense on the ground that his condition was not a terminal or debilitating medical condition under the Act. HN11Go to this Headnote in the case.A terminal or debilitating medical condition includes:

(a) Cancer, human immunodeficiency virus (HIV), multiple sclerosis, epilepsy or other seizure disorder, or spasticity disorders; or

(b) Intractable pain, limited for the purpose of this chapter to mean pain unrelieved by standard medical treatments and medications; or

(c) Glaucoma â?¦ ;

(d) Any other medical condition duly approved by the Washington state medical [**1261] quality assurance board [commission] as directed in this chapter.

Former RCW 69.51A.010(4) (1999) (second alteration in original).

WA(10)[10] ¶15 HN12Go to this Headnote in the case.Mr. Fry is required to show by a preponderance of the evidence that he has met the requirements of the Act. State v. Shepherd, 110 Wn. App. 544, 550, 41 P.3d 1235 (2002). He fails to do so. Relying primarily on Shepherd, Mr. Fry claims that because that court found the defendant was a â??qualifying patientâ?� under the Act even though his medical [***8] use document did not specify his terminal or debilitating condition, Mr. Fry must qualify because his physician determined that he had a debilitating condition.

¶16 But Mr. Fry's reliance on Shepherd is misplaced. In that case, the defendant suffered from a debilitating spine condition. His physician's authorization for medical use stated that he was treating the defendant for a â??â??terminal illness or debilitating condition as defined in RCW 69.51A.010â??â?� but declined to specify the condition. Id. at 547. However, the Shepherd court was not asked to determine whether Mr. Shepherd's condition qualified under the Act. In fact, it appears the parties did not dispute that the defendant suffered from a debilitating condition. Shepherd is not instructive here.

WA(11)[11] ¶17 Mr. Fry's physician authorized the use of marijuana to treat Mr. Fry's severe anxiety and anger. Although [*463] former subsection (4)(d) of the Act permits the Washington State Medical Quality Assurance Commission to approve conditions in addition to those listed in former RCW 69.51A.010(4), Mr. Fry's condition is not among them. Therefore, as a matter of law, Mr. Fry is not a qualifying patient and cannot avail himself of the medical marijuana defense. [***9] We conclude the trial court did not err in prohibiting Mr. Fry from presenting the medical use defense.

¶18 Affirmed.

Sweeney, C.J., and Brown, J., concur.

Review granted at 164 Wn.2d 1002 (2008).

PRIOR HISTORY: [***1]
Appeal from SUPERIOR COURT. WHITMAN COUNTY. Superior Court No: 04-1-00137-9. Date filed in Superior Court: 12/16/05. Superior Court Judge signing: JOHN DAVID FRAZIER.


CASE SUMMARY

PROCEDURAL POSTURE: Defendant stipulated that he knowingly manufactured marijuana but argued that he satisfied the requirements of the Medical Marijuana Act and moved to dismiss the prosecution. The State moved to exclude his physician's authorization. The Superior of Whitman County (Washington) refused to admit the physician's authorization. Defendant was found guilty of manufacturing a controlled substance, marijuana. Defendant appealed.

OVERVIEW: The judge held that the authorization came too late because it was not at the motel at the time of the raid. Defendant argued that he met the definition of a qualifying patient and that when prompted for his â??valid documentationâ?� he presented it. He argued that the Washington State Medical Use of Marijuana Act (Medical Marijuana Act or Act), Wash. Rev. Code ch. 69.51A required no more. The State responded that defendant's authorization came too late since it followed the seizure. Defendant obtained a formal written authorization to use marijuana the day after the police raided his motel but before they charged him. Defendant was not present at the time of the raid. The court of appeals held that defendant satisfied the requirements of a qualifying patient under the Act. Defendant had to present his valid documentation â??to any law enforcement official who questions the patient regarding his or her medical use of marijuana.â?� Defendant satisfied that requirement by going to the police station the day after the raid and presenting the police with a valid authorization. That seemed all the Act required. The appellate court found no requirement that the authorization had to be posted.

OUTCOME: The conviction was reversed and the prosecution was dismissed.


CORE TERMS: marijuana, controlled substance, patientâ?�, Medical Marijuana Act, classification, documentationâ?�, affirmative defense, authorization, â??qualifying, repeal, debilitating, pharmacy, raid, manufacturing, supervision, terminal, de novo, illness, treaty, law enforcement, subject matter, state board, certain conditions, statutory scheme, disfavored, posted, Medical Use of Marijuana Act, Use of Marijuana Act, admit, motel

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
Governments > Legislation > Interpretation
HN1Go to the description of this Headnote. Appellate review of statutory interpretation is de novo.


Criminal Law & Procedure > Appeals > Standards of Review > General Overview
Governments > Legislation > Interpretation
HN2Go to the description of this Headnote. Where the parties do not suggest any ambiguity in a statutory scheme, the appellate court applies the plain language of the statute.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN3Go to the description of this Headnote. To be a â??qualifying patientâ?� under the Medical Marijuana Act, a person must: (1) be a patient of a licensed physician; (2) have been diagnosed with a debilitating disease; (3) be a resident of the state at the time of diagnosis; (4) been advised of the risks and benefits of the medical use of marijuana; and (5) have been advised by his physician that he may benefit from its use. Wash. Rev. Code § 69.51A.010(3).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN4Go to the description of this Headnote. In order to render a defendant's marijuana possession legal under the Medical Marijuana Act, the defendant needs to obtain and to possess documentation from his personal physician in advance of law enforcement's questioning his medical use and possession. And the statute requires that a qualifying patient shall present his or her valid documentation to any law enforcement official who questions the patient regarding his or her medical use of marijuana. Wash. Rev. Code § 69.51A.040(2)(c).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN5Go to the description of this Headnote. The Court of Appeals of Washington, Division Three finds nothing in the Medical Marijuana Act that requires that the documentation be posted or that the qualifying patient obtain the documentation in advance of questioning by a law enforcement officer, although that is no doubt a preferable practice.


Governments > Legislation > Effect & Operation > General Overview
Governments > State & Territorial Governments > Legislatures
HN6Go to the description of this Headnote. Repeal by implication is strongly disfavored in Washington. The legislature is presumed to be aware of its own enactments. Repeal by implication can occur in two ways. First, the subject matter of the subsequent legislation must cover the entire scope of the earlier one. Or second, the legislative acts can be so inconsistent that they cannot be reconciled to give effect to both.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN7Go to the description of this Headnote. The subject matter of the Medical Marijuana Act does not cover the entire scope of Wash. Rev. Code ch. 69.50, the Uniform Controlled Substances Act, nor was it meant to. Wash. Rev. Code §§ 69.51A.005 and 69.50.204(c)(14).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Healthcare Law > Treatment > General Overview
HN8Go to the description of this Headnote. Wash. Rev. Code § 69.50.204(c)(14) lists marijuana as a schedule I controlled substance. Schedule I controlled substances are designated as such because either the state board of pharmacy has found that it: (1) has high potential for abuse; (2) has no currently accepted medical use in treatment in the United States; and (3) lacks accepted safety for use in treatment under medical supervision or if the substance is controlled under schedule I of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol. Wash. Rev. Code § 69.50.203. Marijuana is listed as a schedule I controlled substance in Wash. Rev. Code § 69.50.204(c)(14).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
HN9Go to the description of this Headnote. See Wash. Rev. Code § 69.50.203.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
HN10Go to the description of this Headnote. The legislature listed marijuana as a schedule I controlled substance as part of the Uniform Controlled Substances Act. Wash. Rev. Code ch. 69.50. The Uniform Controlled Substances Act then allows the board of pharmacy to change the designation based on a number of statutory factors.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
HN11Go to the description of this Headnote. See Wash. Rev. Code § 69.50.201(a)(1).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
Healthcare Law > Treatment > General Overview
HN12Go to the description of this Headnote. No one has asked the pharmacy board to revisit the classification of marijuana as a controlled substance and it has apparently not seen fit to do so. Wash. Rev. Code § 69.50.204(c)(14). The classification of marijuana as a schedule I controlled substance reflects a legislative choice. One that reflects a federal classification pursuant to an international treaty. 21 U.S.C.S. § 801(a)(2) and Wash. Rev. Code § 69.50.203. The decision to change the classification, then, is hardly a judicial decision. Wash. Rev. Code § 69.50.201. Nor has the classification been repealed by implication since neither of the factors has been satisfied. First, the Medical Marijuana Act does not cover the entire scope of schedule I controlled substance designations nor was it meant to. Wash. Rev. Code §§ 69.51A.005, .020, 69.50.203, and .204(c)(14). It simply provides that marijuana use â??mayâ?� provide some relief for some diseases. Wash. Rev. Code § 69.51A.005. And therefore use is permitted if specific legislative procedures are followed. Second, the Medical Marijuana Act only provides an affirmative defense to the drug crime. Wash. Rev. Code § 69.51A.040(1). It is not, then, inconsistent with the schedule I classification. An affirmative defense does not negate the elements of a crime. It excuses the conduct.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Delivery, Distribution & Sale > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN13Go to the description of this Headnote. See Wash. Rev. Code § 69.51A.020.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN14Go to the description of this Headnote. The Court of Appeals of Washington, Division Three does not read the Medical Marijuana Act and the Uniform Controlled Substances Act as inconsistent. Indeed, the Medical Marijuana Act never addresses whether marijuana has a currently accepted medical use. It only states that some patients may benefit from medical marijuana. Wash. Rev. Code § 69.51A.005. It also states that it may be beneficial for certain conditions. There has been no specific finding in the Medical Marijuana Act that marijuana actually benefits patients who suffer from certain conditions, or that it is now safe for use in treatment.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN15Go to the description of this Headnote. See Wash. Rev. Code § 69.51A.005.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN16Go to the description of this Headnote. The Medical Marijuana Act recognizes that there are still inherent risks in using marijuana. It requires that patients be advised of these specific risks. Wash. Rev. Code § 69.51A.010(3)(d). The Medical Marijuana Act and the Uniform Controlled Substances Act are easily read together. Wash. Rev. Code ch.. 69.51A and Wash. Rev. Code §§ 69.50.203, and .204(c)(14).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Healthcare Law > Treatment > General Overview
HN17Go to the description of this Headnote. The Court of Appeals of Washington, Division Three will not read an affirmative defense (medical use of marijuana) as inconsistent with the state's interest in regulating the use of the drug, particularly when the specific legislative intent is to the contrary.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Governments > State & Territorial Governments > Legislatures
Healthcare Law > Treatment > General Overview
HN18Go to the description of this Headnote. The debate over the proper classification of marijuana belongs in the political arena. And the board of pharmacy, pursuant to its authority under Wash. Rev. Code § 69.50.201, has seen fit to continue marijuana as a schedule I controlled substance.


Hide Headnotes / Syllabus


SUMMARY:
WASHINGTON OFFICIAL REPORTS SUMMARY

Brown, J., dissents by separate opinion

Nature of Action: Prosecution for unlawful manufacture of a controlled substance, marijuana. The defendant obtained a formal written authorization to use marijuana from his physician the day after police officers raided his motel room and discovered growing marijuana plants. The defendant, who was not present during the raid, went to the police station the day after the raid and presented the police with the authorization before they had an opportunity to question him.

Superior Court: The Superior Court for Whitman County, No. 04-1-00137-9, David Frazier, J., entered a judgment of guilty on December 16, 2005.

Court of Appeals: Holding that the defendant satisfied the statutory requirements for the affirmative defense of medical use of marijuana and that the classification of marijuana as a schedule I controlled substance was not repealed by implication by the Washington State Medical Use of Marijuana Act, the court reverses the judgment and dismisses the prosecution.


HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES
Brown, J., dissents by separate opinion.

WA(1)[1] Statutes â?? Construction â?? Review â?? Standard of Review. The interpretation of a statute is reviewed de novo.

WA(2)[2] Statutes â?? Application to Facts â?? Review â?? Standard of Review. The application of a statute to a set of facts is reviewed de novo.

WA(3)[3] Statutes â?? Construction â?? Unambiguous Language â?? Plain Meaning â?? In General. Absent ambiguity, a statute is applied according to its plain meaning.

WA(4)[4] Controlled Substances â?? Marijuana â?? Medical Use of Marijuana Act â?? Affirmative Defense â?? Documentation â?? Timeliness. A person charged with a marijuana-related offense satisfies the valid documentation element of the affirmative defense of medical use of marijuana under RCW 69.51A.040 if the person presents the documentation required by the act at the first moment that a law enforcement officer questions the person regarding his or her use and possession of marijuana. The statute does not require that the documentation be posted or that the person obtain the documentation in advance.

WA(5)[5] Statutes â?? Repeal â?? By Implication â?? Disfavored Status. The repeal of a statute by implication is strongly disfavored.

WA(6)[6] Statutes â?? Repeal â?? By Implication â?? Test. A later-enacted statute does not repeal an earlier-enacted statute by implication unless (1) the subject matter of the later-enacted statute covers the entire scope of the earlier-enacted statute or (2) the statutes are so inconsistent that they cannot be reconciled to give effect to both.

WA(7)[7] Controlled Substances â?? Marijuana â?? Medical Use of Marijuana Act â?? Purpose. The purpose of the Washington State Medical Use of Marijuana Act (chapter 69.51A RCW) is to allow a patient with a terminal or debilitating illness to legally use marijuana when authorized by a physician.

WA(8)[8] Controlled Substances â?? Marijuana â?? Classification â?? Legislative or Judicial Function. The classification of marijuana as a schedule I controlled substance under RCW 69.50.204(c)(14) of the Uniform Controlled Substances Act (chapter 69.50 RCW) reflects a legislative choice. Whether the classification should be changed also is a matter of legislative choice and is not a decision for the courts to make.

WA(9)[9] Statutes â?? Construction â?? Meaning of Words â?? â??Mayâ?� â?? In General. The word â??mayâ?� in a statute implies permissive conduct.

WA(10)[10] Controlled Substances â?? Marijuana â?? Medical Use of Marijuana Act â?? Affirmative Defense â?? Necessity of Marijuana Use â?? Scope. The Washington State Medical Use of Marijuana Act (chapter 69.51A RCW) acknowledges that some patients with terminal or debilitating illnesses may benefit from the medical use of marijuana. There is no specific finding in the statute that marijuana actually benefits patients who suffer from certain conditions or that it is now safe for use in treatment.

WA(11)[11] Criminal Law ? Affirmative Defense â?? Effect â?? Negation of Element of Crime â?? Excusing Conduct. An affirmative defense to a crime does not negate the elements of the crime but, rather, excuses the conduct.

WA(12)[12] Statutes â?? Construction â?? Unambiguous Language â?? Effect. A statute that is clear on its face needs no judicial construction.

WA(13)[13] Controlled Substances â?? Marijuana â?? Classification â?? Implied Repeal â?? Medical Use of Marijuana Act. The classification of marijuana as a schedule I controlled substance under RCW 69.50.204(c)(14) of the Uniform Controlled Substances Act (chapter 69.50 RCW) was not repealed by implication by the Washington State Medical Use of Marijuana Act (chapter 69.51A RCW), which provides an affirmative defense to qualifying patients against marijuana-related charges.

COUNSEL: Patrick K. Stiley and Frank L. Cikutovich (of Stiley & Cikutovich), for appellant.

Denis P. Tracy, Prosecuting Attorney, and Byron Bedirian, Deputy, for respondent.

JUDGES: Author: DENNIS J. SWEENEY. Concurring: KENNETH H. KATO. Dissenting: STEPHEN M. BROWN.

OPINION BY: DENNIS J. SWEENEY

OPINION

[**439] [*324] ¶1 Sweeney, C.J. â?? This appeal follows a conviction for manufacturing marijuana. The defendant admits he grew the marijuana. He assigns error to the trial judge's refusal to admit his physician's authorization for the use of marijuana. And he assigns error to the judge's refusal to accept his affirmative defense that he used the drug for medical purposes within the requirements of the Washington State Medical Use of Marijuana Act (Medical Marijuana Act or Act), chapter 69.51A RCW. He obtained a formal written authorization to use marijuana the day after the police raided his motel but before they charged him. We conclude that the defendant satisfied the requirements of a qualifying patient under the Medical Marijuana Act. He presented the valid documentation necessary [***2] under the Act when required. We therefore reverse his conviction and dismiss the prosecution.
[*325] FACTS

¶2 The police executed a search warrant on Loren Hanson's motel on August 24, 2004. He was not present. So no one could question him about whether he had the necessary authorization to use marijuana. Police seized 34 growing marijuana plants. The next day, Mr. Hanson obtained a valid authorization from his physician to use marijuana for medical purposes. The authorization is on an appropriate Washington State Medical Association form.

¶3 The State and Mr. Hanson submitted the case to the court on stipulated facts. Mr. Hanson stipulated that he knowingly manufactured marijuana. He argued, nonetheless, that he satisfied the requirements of the Medical Marijuana Act and moved to dismiss the prosecution based on that statutory affirmative defense. The State moved to exclude his physician's authorization because it came after the raid. The judge agreed that it came too late, and the authorization was not at the motel at the time of the raid. The judge, therefore, refused to admit the authorization.

¶4 The court then found Mr. Hanson guilty of manufacturing a controlled substance, marijuana.
DISCUSSION

¶5 Mr. [***3] Hanson argues that he meets the definition of a qualifying patientâ??that requires no documentation. Next, he says that when prompted for his â??valid documentation,â?� he presented it. He says the statute requires no more.

¶6 The State responds that Mr. Hanson's authorization comes too late since it followed the seizure. And the authorization fails to satisfy the statutory requirements anyway since it does not show that the benefits and hazards of marijuana use were explained to Mr. Hanson.

WA(1)[1-3] ¶7 The question presented is a question of law. Specifically, the issue is whether the trial judge's factual findings support his conclusion that Mr. Hanson failed to satisfy the requirements of the Medical Marijuana Act. [*326] And, of course, we must interpret and apply the Act. Our HN1Go to this Headnote in the case.review is then de novo. State v. Shepherd, 110 Wn. App. 544, 550, 41 P.3d 1235 (2002). And here no one HN2Go to this Headnote in the case.suggests any ambiguity in the statutory scheme. So we apply the plain language of the Act. State v. Hahn, 83 Wn. App. 825, 832, 924 P.2d 392 (1996).
Qualifying Patient

¶8 Mr. Hanson says that he was a qualifying patient and that his status as a qualifying [**440] patient did not require documentation, valid or otherwise. HN3Go to this Headnote in the case.To be a â??qualifying [***4] patientâ?� under the Medical Marijuana Act, Mr. Hanson must:

â?¢ be a patient of a licensed physician,

â?¢ have been diagnosed with a debilitating disease,

â?¢ be a resident of the state at the time of diagnosis,

â?¢ have been advised of the risks and benefits of the medical use of marijuana,

â?¢ and have been advised by his physician that he may benefit from its use.

RCW 69.51A.010(3).

¶9 WA(4)[4] The authorization rejected by the trial court satisfies these requirements. And, moreover, the State did not challenge in the trial court and does not challenge here on appeal Mr. Hanson's status as a â??qualifying patient.â?� The State's objection and the trial court's decision rests on the fact that the authorization came the day after the raid. But by its clear language, to be a â??qualifying patientâ?� under the Medical Marijuana Act does not require the authorization form. Mr. Hanson only has to present the form when asked by the police. RCW 69.51A.040(2)(c).
Qualifying Patient's Affirmative Defense

¶10 To establish the affirmative defense, Mr. Hanson must:

â?¢ be a qualifying patient,

â?¢ possess no more marijuana than necessary for his personal, medical use and not exceed a 60-day supply,

[*327] â?¢ and present his valid documentation [***5] â??to any law enforcement official who questions the patient regarding his or her medical use of marijuana.â?�

RCW 69.51A.040(2) (emphasis added).

¶11 Again, the only issue here is whether he satisfied this last requirement. Mr. Hanson went to the police station the day after this raid and presented the police with a valid authorization. That seems to be all the Medical Marijuana Act requires. The court's findings suggest that the authorization must be posted. Clerk's Papers at 20 (Finding of Fact 12). But we do not find that requirement in the statutes.

¶12 In State v. Butler, Division Two of this court held that HN4Go to this Headnote in the case.â??[i]n order to render [a defendant's] marijuana possession legal under the Act, [the defendant] needed to obtain and to possess â?¦ documentation from his personal physician in advance of law enforcement's questioning his medical use and possession.â?� State v. Butler, 126 Wn. App. 741, 750-51, 109 P.3d 493 (2005) (emphasis omitted). And the statute requires that a qualifying patient shall â??[p]resent his or her valid documentation to any law enforcement official who questions the patient regarding his or her medical use of marijuana.â?� RCW 69.51A.040(2)(c). But again, we HN5Go to this Headnote in the case.find nothing [***6] in the statute that requires that the documentation be posted or that the qualifying patient obtain the documentation in advance, although that is no doubt a preferable practice. Had Mr. Hanson been present on the day of this raid and had he been asked to present valid documentation, he would not have been able to do so and would not, then, have satisfied the requirements of the statute. But that did not happen here.

¶13 On this record, Mr. Hanson was questioned when he went to the police station the day after the raid. He went to the police voluntarily and provided valid documentation. That was the first day police â??questionedâ?� him regarding his medical marijuana use. He then satisfied the provisions of the Medical Marijuana Act. RCW 69.51A.040.

¶14 Mr. Hanson â??obtain[ed] and â?¦ possess[ed] documentation from his personal physician in advance of law [*328] enforcement's questioning his medical use and possession.â?� Butler, 126 Wn. App. at 750-51.
Marijuanaâ??Schedule I Controlled Substance

¶15 Mr. Hanson also argues that the legal effect of the Medical Marijuana Act was to implicitly repeal a statutory classification of marijuana as a schedule I controlled substance. He asserts that this is because [***7] the classification requires a finding that the substance â??has no currently accepted medical use in treatmentâ?� and â??lacks accepted safety [**441] for use in treatment under medical supervision.â?� RCW 69.50.203(a)(2), (3). And he argues that the Medical Marijuana Act reflects the implicit conclusion that marijuana has, or may have, some medical use.

¶16 The State urges a more limited view of the doctrine of repeal by implication. The State would require a clear and irreconcilable conflict in the two statutory schemes or some clear indication of legislative intent to repeal the classification of marijuana as a schedule I controlled substance.

WA(5)[5-13] ¶17 We review a trial court's interpretation of statutes de novo. Shepherd, 110 Wn. App. at 550; State v. Hurt, 107 Wn. App. 816, 822, 27 P.3d 1276 (2001). HN6Go to this Headnote in the case.Repeal by implication is strongly disfavored in Washington. Amalgamated Transit Union Legislative Council of Wash. State v. State, 145 Wn.2d 544, 552, 40 P.3d 656 (2002); Tollycraft Yachts Corp. v. McCoy, 122 Wn.2d 426, 439, 858 P.2d 503 (1993). â??The legislature is presumed to be aware of its own enactments.â?� Amalgamated, 145 Wn.2d at 552.

¶18 Repeal by implication can occur in two ways. Id. First, the subject matter [***8] of the subsequent legislation must cover the entire scope of the earlier one. Id. (quoting Abel v. Diking & Drainage Improvement Dist. No. 4, 19 Wn.2d 356, 363, 142 P.2d 1017 (1943)). Or second, the legislative acts can be so inconsistent that they cannot be reconciled to give effect to both. Id. (quoting Abel, 19 Wn.2d at 363).

¶19 Here, HN7Go to this Headnote in the case.the subject matter of the Medical Marijuana Act does not cover the entire scope of chapter 69.50 RCW [*329] (Uniform Controlled Substances Act), nor was it meant to. RCW 69.51A.005; 1 RCW 69.50.204(c)(14). 2 The purpose of the Medical Marijuana Act is to allow patients with terminal or debilitating illness to legally use marijuana when authorized by their physician. RCW 69.51A.005; Shepherd, 110 Wn. App. at 549.

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1 RCW 69.51A.005 sets out the purpose and intent of the Medical Marijuana Act: some patients with terminal or debilitating medical problems may benefit from the medical use of marijuana if under their physician's care and supervision.2 HN8Go to this Headnote in the case.RCW 69.50.204(c)(14) lists marijuana as a schedule I controlled substance.

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¶20 A schedule I controlled substance is designated as such because either the State Board of Pharmacy has found that it â??(1) has high potential for abuse; [***9] (2) has no currently accepted medical use in treatment in the United States; and (3) lacks accepted safety for use in treatment under medical supervisionâ?� or â??the substance is controlled under schedule I of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol.â?� RCW 69.50.203. 3 Marijuana is listed as a schedule I controlled substance in RCW 69.50.204(c)(14).

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3

(a) HN9Go to this Headnote in the case.The state board of pharmacy shall place a substance in Schedule I upon finding that the substance:

(1) has high potential for abuse;

(2) has no currently accepted medical use in treatment in the United States; and

(3) lacks accepted safety for use in treatment under medical supervision.

(b) The board may place a substance in Schedule I without making the findings required by subsection (a) of this section if the substance is controlled under Schedule I of the federal Controlled Substances Act by a federal agency as the result of an international treaty, convention, or protocol.

RCW 69.50.203.

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¶21 HN10Go to this Headnote in the case.The legislature listed marijuana as a schedule I controlled substance as part of the Uniform Controlled Substances Act. Ch. 69.50 RCW; Seeley v. State, 132 Wn.2d 776, 784, 940 P.2d 604 (1997). [***10] The Uniform Controlled Substances Act then allows the board of pharmacy to [*330] change the designation based on a number of statutory factors:

(i) HN11Go to this Headnote in the case.the actual or relative potential for abuse;

(ii) the scientific evidence of its pharmacological effect, if known;

(iii) the state of current scientific knowledge regarding the substance;

(iv) the history and current pattern of abuse;

(v) the scope, duration, and significance of abuse;

(vi) the risk to the public health;

[**442] (vii) the potential of the substance to produce psychic or physiological dependence liability; and

(viii) whether the substance is an immediate precursor of a controlled substance.

RCW 69.50.201(a)(1); see Seeley, 132 Wn.2d at 784.

¶22 HN12Go to this Headnote in the case.No one has asked the pharmacy board to revisit the classification, and it has apparently not seen fit to do so. RCW 69.50.204(c)(14); Seeley, 132 Wn.2d at 784-85. The classification of marijuana as a schedule I controlled substance reflects a legislative choice, State v. Martin, 14 Wn. App. 717, 721-22, 544 P.2d 750 (1976), one that reflects a federal classification pursuant to an international treaty. 21 U.S.C. § 801a(2); RCW 69.50.203; Martin, 14 Wn. App. at 721. The decision to change the classification, [***11] then, is hardly a judicial decision. RCW 69.50.201; Seeley, 132 Wn.2d at 814.

¶23 Nor has the classification been repealed by implication since neither of the factors has been satisfied. First, the Medical Marijuana Act does not cover the entire scope of schedule I controlled substance designations, nor was it meant to. RCW 69.51A.005, .020; RCW 69.50.203, .204(c)(14). It simply provides that marijuana use â??mayâ?� provide some relief for some diseases. RCW 69.51A.005. And therefore use is permitted if specific legislative procedures are followed.

¶24 Second, the Medical Marijuana Act only provides an affirmative defense to the drug crime. RCW 69.51A.040(1). [*331] It is not, then, inconsistent with the schedule I classification. An affirmative defense does not negate the elements of a crime. It excuses the conduct. State v. Ginn, 128 Wn. App. 872, 878, 117 P.3d 1155 (2005).

¶25 Finally, on this point the legislative intent is clear: HN13Go to this Headnote in the case.â??[n]othing in this chapter shall be construed to supersede Washington state law prohibiting the acquisition, possession, manufacture, sale or use of marijuana for non-medical purposes.â?� RCW 69.51A.020.

¶26 We HN14Go to this Headnote in the case.do not read the Medical Marijuana Act and the Uniform Controlled Substances [***12] Act as inconsistent. Indeed, the Medical Marijuana Act never addresses whether marijuana has a currently accepted medical use. It only states that some patients may benefit from medical marijuana. RCW 69.51A.005. 4 It also states that it may be beneficial for certain conditions. Id. There has been no specific finding in the Medical Marijuana Act that marijuana actually benefits patients who suffer from certain conditions or that it is now safe for use in treatment. See id.

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4 RCW 69.51A.005 states the purpose and intent of the Medical Marijuana Act. It states that some patients with terminal or debilitating medical problems may benefit from the medical use of marijuana if under their physician's care and supervision. ?HN15Go to this Headnote in the case.Some of the illnesses for which marijuana appears to be beneficial include chemotherapy-related nausea and vomiting in cancer patients; AIDS wasting syndrome; severe muscle spasms associated with multiple sclerosis and other spasticity disorders; epilepsy; acute or chronic glaucoma; and some forms of intractable pain.â?� RCW 69.51A.005.

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¶27 HN16Go to this Headnote in the case.The Medical Marijuana Act recognizes that there are still inherent risks in using marijuana. It requires that patients be advised of these [***13] specific risks. RCW 69.51A.010(3)(d). The Medical Marijuana Act and the Uniform Controlled Substances Act are easily read together. Ch. 69.51A RCW; RCW 69.50.203, .204(c)(14).

¶28 We HN17Go to this Headnote in the case.will not read an affirmative defense (medical use) as inconsistent with the state's interest in regulating the use of the drug, particularly when the specific legislative intent is to the contrary. RCW 69.51A.020 states that the Medical Marijuana Act does not supersede Washington [*332] state law on the manufacture, sale, possession, or use of marijuana for nonmedical purposes.

¶29 Mr. Hanson argues that the rule of lenity requires that we read these statutory schemes in a way that implies that the one (the Medical Marijuana Act) repeals the earlier one (classification of marijuana as a schedule I controlled substance). Both statutes are clear. And we may not, therefore, engage in our own construction of the Medical Marijuana Act. Hahn, 83 Wn. App. at 832. The Medical Marijuana Act was never intended to supersede existing [**443] Washington law regarding marijuana use for nonmedical purposes. RCW 69.51A.020. And the classification of marijuana in Washington is based upon a federal classification pursuant to an international treaty. [***14] 21 U.S.C. § 801a(2).

¶30 Finally, HN18Go to this Headnote in the case.â??[t]he debate over the proper classification of marijuana belongs in the political arena.â?� Seeley, 132 Wn.2d at 814. And the board of pharmacy, pursuant to its authority under RCW 69.50.201, 5 has seen fit to continue marijuana as a schedule I controlled substance. Seeley, 132 Wn.2d at 784-85.

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5 Under RCW 69.50.201(a), the State Board of Pharmacy â??may add substances to or delete or reschedule substances,â?� including marijuana. In other words, it has the authority to change schedules of controlled substances. RCW 69.50.201.

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¶31 We reverse the conviction and dismiss the prosecution.

Kato, J. Pro Tem., concurs.


DISSENT BY: Brown

DISSENT

¶32 Brown, J. (dissenting) â?? While compassionate to persons possibly benefiting from the medical use of marijuana, I would hold the trial court did not err in ruling Loren Hanson's after-acquired medical authorization was legally insufficient to support the affirmative defense to this controlled substance manufacturing prosecution. The facts do not show Mr. Hanson was necessarily a â??qualifying patientâ?� as defined by RCW 69.51A.010(3) during the admitted material time, summer 2004 to August 24, 2004.

¶33 Mr. Hanson offered exhibit 1, dated August 25, [***15] 2004, in an attempt to establish the affirmative defense. We need [*333] not decide if exhibit 1 is â??valid documentationâ?� under RCW 69.51A.010(5), because it was produced after the fact. We do not know at what point, if any, during the material time his doctor may have assembled the pertinent medical records satisfying the requirements of RCW 69.51A.010(5)(a). Stipulations aside, considering his admitted use and the 34 plants found, this record is insufficient to show Mr. Hanson possessed no more marijuana than necessary for his personal medical use in any 60-day period during his manufacturing, as required in RCW 69.51A.040(2).

¶34 Even if exhibit 1 was germane to when the admitted manufacturing took place, I respectfully disagree with dismissing this case. The remedy would be to remand to allow a hearing after reversal, because the evidence is sufficient to support guilt before considering the affirmative defense. Accordingly, I dissent.

September 19, 2006, Decided

SUBSEQUENT HISTORY: Review denied by State v. Soper, 161 Wn.2d 1004, 2007 Wash. LEXIS 652 (Wash., Sept. 5, 2007)


CASE SUMMARY

PROCEDURAL POSTURE: Defendant appealed a judgment of the Superior Court of Kitsap County (Washington) convicting him of manufacturing marijuana and possession of marijuana with intent to manufacture or deliver.

OVERVIEW: Defendant was convicted after police officers found an outdoor marijuana grow operation on his property. At trial, defendant claimed that he was a qualified patient under the Medical Marijuana Act (Act). On appeal, the court held that the trial court did not abuse its discretion by striking defendant's physician's testimony because even after viewing all the foundation evidence in the light most favorable to defendant, no reasonable juror could find more probably than not that the physician was licensed in Washington as required by the Act, and therefore defendant failed to make a prima facie showing that the primary evidence of him as a qualified patient under the Act was relevant. The physician testified that he was not licensed in Washington but rather had only a temporary license. Any error in instructing the jury that ignorance of the law was no excuse for criminal conduct was harmless because by including that jury instruction, the trial court simply duplicated another jury instruction, albeit with the old rule. The trial court did not err by finding that his convictions were not the same criminal conduct for sentencing purposes.

OUTCOME: Defendant's convictions were affirmed.


CORE TERMS: marijuana, licensed, patient, criminal conduct, affirmative defense, primary evidence, jury instruction, license, relevance, ignorance, qualifying, deliver, manufacture, proponent, harmless, offender, score, Criminal Law, controlled substance, introduce, fulfillment, prejudicial, sentencing, admit, review denied, abuse of discretion, possession of marijuana, manufacturing, medicine, sentence

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Substance Schedules > Hashish & Marijuana
Criminal Law & Procedure > Defenses > General Overview
HN1Go to the description of this Headnote. Codified at Wash. Rev. Code ch. 69.51A, the Medical Marijuana Act ensures that qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana. Wash. Rev. Code § 69.51A.005.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Substance Schedules > Hashish & Marijuana
Criminal Law & Procedure > Defenses > General Overview
HN2Go to the description of this Headnote. See Wash. Rev. Code § 69.51A.010(3).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Substance Schedules > Hashish & Marijuana
Criminal Law & Procedure > Defenses > General Overview
HN3Go to the description of this Headnote. See Wash. Rev. Code § 69.51A.040(2).


Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > Evidence
HN4Go to the description of this Headnote. An appellate court reviews a trial court's admission of evidence and ruling on a motion to strike for an abuse of discretion. A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Substance Schedules > Hashish & Marijuana
Criminal Law & Procedure > Defenses > General Overview
HN5Go to the description of this Headnote. In order to meet the definition of a qualifying patient under the Medical Marijuana Act, a defendant first must prove that he is a patient of a physician licensed under Wash. Rev. Code ch. 18.71 or 18.57 Wash. Rev. Code § 69.51A.010(3)(a).


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Substance Schedules > Hashish & Marijuana
Criminal Law & Procedure > Defenses > General Overview
HN6Go to the description of this Headnote. Given the language of Wash. Rev. Code ch. 18.71, there is only one reasonable interpretation of the term "licensed." Washington's licensing scheme differentiates between physicians who are licensed in the state and those who are licensed in another state but who are permitted to practice medicine in Washington. As used in ch. 18.71, then, the term "licensed" is not synonymous with "permitted" or "allowed." Rather, physicians "licensed" under ch. 18.71 met the qualifications of Washington's regulatory guidelines and received a license from the State of Washington. Accordingly, only those physicians validly licensed in Washington may prescribe medical marijuana to persons in Washington.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Substance Schedules > Hashish & Marijuana
Criminal Law & Procedure > Defenses > General Overview
Evidence > Procedural Considerations > Burdens of Proof > Preponderance of Evidence
HN7Go to the description of this Headnote. In order to affirmatively defend a criminal prosecution for possessing or manufacturing marijuana, a defendant must show by a preponderance of evidence that he has met the requirements of the Medical Marijuana Act. Preponderance of the evidence means that, considering all the evidence, the proposition asserted must be more probably true than not true.


Evidence > Procedural Considerations > Preliminary Questions > Admissibility of Evidence > Witness Qualifications
Evidence > Relevance > Relevant Evidence
Evidence > Testimony > General Overview
HN8Go to the description of this Headnote. See Wash. R. Evid. 104(a).


Evidence > Relevance > Relevant Evidence
HN9Go to the description of this Headnote. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. Wash. R. Evid. 104(b). In any case, Rule 104(b) establishes no fixed rules about the order of proof. The proponent may, of course, lay the foundation first and then introduce the primary evidence. But for reasons of necessity, convenience, or tactics, a party may find it desirable to introduce evidence that is irrelevant before introducing the evidence that will make it relevant. If a party attempts to introduce evidence that is only conditionally relevant and an objection is made, the proponent will typically request the court's permission to "connect up" the evidence later with other evidence that demonstrates its relevance. Rule 104(b) gives the court the discretion to either admit the primary evidence subject to connecting up or to refuse to admit the primary evidence until its relevance is shown by the foundation evidence.


Evidence > Relevance > Relevant Evidence
HN10Go to the description of this Headnote. Upon introduction of the foundation evidence, whether it is introduced before or after the primary evidence, the judge's role is a limited one. The judge determines only whether the proponent has made a prima facie showing that the primary evidence is relevant. The evidence should be admitted if the foundation evidence is sufficient to support a finding of the fulfillment of the condition. It is generally held that the foundation evidence should be deemed sufficient if, after viewing all of the evidence in the light most favorable to the proponent, a reasonable juror could find the condition to be more probably true than not.


Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > Jury Instructions
HN11Go to the description of this Headnote. An appellate court reviews the adequacy of jury instructions de novo, evaluating it in the context of the instructions as a whole. Jury instructions are sufficient if they are supported by substantial evidence; allow the parties to argue their theories of the case; and, when read as a whole, properly inform the jury of the applicable law. It is prejudicial error to submit an issue to the jury that is not warranted by the evidence.


Criminal Law & Procedure > Defenses > Ignorance & Mistake of Law
HN12Go to the description of this Headnote. Ignorance of the law is no excuse.


Criminal Law & Procedure > Jury Instructions > General Overview
HN13Go to the description of this Headnote. See Wash. Const. art. IV, § 16.


Criminal Law & Procedure > Jury Instructions > General Overview
HN14Go to the description of this Headnote. Wash. Const. art. IV, § 16 prohibits a judge from conveying to the jury his personal attitudes toward the merits of a case. Judicial comments are presumed to be prejudicial.


Criminal Law & Procedure > Appeals > Procedures > Briefs
HN15Go to the description of this Headnote. Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.


Criminal Law & Procedure > Sentencing > Appeals > General Overview
Criminal Law & Procedure > Sentencing > Imposition > General Overview
Criminal Law & Procedure > Appeals > Reviewability > Preservation for Review > Exceptions to Failure to Object
HN16Go to the description of this Headnote. A challenge to an offender score calculation may be raised for the first time on appeal because the sentencing court acts without statutory authority when it imposes a sentence based on a miscalculated offender score.


Criminal Law & Procedure > Sentencing > Appeals > General Overview
Criminal Law & Procedure > Sentencing > Imposition > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > Abuse of Discretion > General Overview
Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
HN17Go to the description of this Headnote. Although an appellate court reviews a trial court's calculation of an offender score de novo, it reviews the trial court's determination of same criminal conduct for abuse of discretion.


Criminal Law & Procedure > Sentencing > Imposition > General Overview
HN18Go to the description of this Headnote. Under Wash. Rev. Code § 9.94A.589(1)(a), a trial court has the discretion to count two or more current offenses as the same criminal conduct for calculating a convicted defendant's offender score. This same criminal conduct requires that the offenses (1) had the same objective criminal intent; (2) were committed at the same time and place; and (3) involved the same victim. If any one of these elements is missing, multiple offenses cannot be considered to be the same criminal conduct; the court must count these crimes separately in calculating the offender score.


Hide Headnotes / Syllabus


SUMMARY: [***1] Nature of Action: Prosecution for one count of unlawful manufacture of a controlled substance (marijuana) and one count of unlawful possession of a controlled substance with intent to manufacture or deliver (marijuana).

Superior Court: The Superior Court for Kitsap County, No. 04-1-01513-6, Leonard W. Costello, J., on April 29, 2005, entered a judgment on a verdict of guilty.

Court of Appeals: Holding that the trial court properly excluded the testimony of a physician who would have testified in support of the affirmative defense of medical use of marijuana, that the jury instruction that ignorance of the law is no excuse for criminal conduct was harmless and was not an impermissible judicial comment on the evidence, and that the offenses did not constitute the same criminal conduct for sentencing purposes, the court affirms the judgment.


HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES


WA[1][1] Evidence -- Review -- Standard of Review A trial court's admission of evidence is reviewed for an abuse of discretion. A trial court abuses its discretion if its decision is manifestly unreasonable or is based on untenable grounds.

WA[2][2] Motions -- Motion To Strike -- Review -- Standard of Review A trial court's ruling on a motion to strike is reviewed for an abuse of discretion. A trial court abuses its discretion if its decision is manifestly unreasonable or is based on untenable grounds.

WA[3][3] Controlled Substances -- Marijuana -- Medical Use Act -- Affirmative Defense -- Burden of Proof -- Degree of Proof In order to establish the affirmative defense for the possession and limited use of marijuana under the Medical Use of Marijuana Act (chapter 69.51A RCW), a defendant must show, by a preponderance of the evidence, that he or she meets the statutory requirements of RCW 69.51A.040.

WA[4][4] Controlled Substances -- Marijuana -- Medical Use Act -- Affirmative Defense -- Qualifying Patient -- Patient of Licensed Physician -- Proof -- Necessity In order to meet the definition of a qualifying patient under the Medical Use of Marijuana Act (chapter 69.51A RCW), a defendant must prove that he or she is a patient of a physician licensed under chapter 18.71 or 18.57 RCW.

WA[5][5] Controlled Substances -- Marijuana -- Medical Use Act -- Affirmative Defense -- Qualifying Patient -- Patient of Licensed Physician -- Licensed in Washington -- Necessity Under the Medical Use of Marijuana Act (chapter 69.51A RCW) and RCW 69.51A.010(3), a person is not a "qualifying patient" if he or she is not a patient of a physician validly licensed in Washington; i.e., only a physician validly "licensed" in Washington, as opposed to one who is only "permitted to practice medicine in Washington," may prescribe medical marijuana to persons in this state.

WA[6][6] Evidence -- Relevance -- Conditional Relevance -- Foundation -- Order of Proof ER 104(b) establishes no fixed rules about the order of proof when the relevance of evidence depends upon the fulfillment of a condition of fact. A proponent may lay the foundation first and then introduce the primary evidence, but for reasons of necessity, convenience, or tactics, it may be desirable to introduce evidence that is irrelevant before evidence is introduced that will make it relevant. If a party attempts to introduce evidence that is only conditionally relevant and an objection is made, the proponent will typically request the court's permission to connect up the evidence later with other evidence that demonstrates its relevance. ER 104(b) gives the court the discretion either to admit the primary evidence subject to connecting up or to refuse to admit the primary evidence until its relevance is shown by the foundation evidence.

WA[7][7] Evidence -- Relevance -- Conditional Relevance -- Foundation -- Role of Trial Court Upon the introduction of foundation evidence for establishing the relevance of primary evidence, whether introduced before or after the primary evidence is introduced, the court's role is a limited one. The court determines only whether the proponent has made a prima facie showing that the primary evidence is relevant. The evidence should be admitted if the foundation evidence is sufficient to support a finding of the fulfillment of the condition.

WA[8][8] Evidence -- Relevance -- Conditional Relevance -- Foundation -- Sufficiency Foundation evidence for establishing the relevance of primary evidence is sufficient if, after viewing all of the evidence in the light most favorable to a proponent, a reasonable juror could find the condition to be more probably true than not true.

WA[9][9] Controlled Substances -- Marijuana -- Medical Use Act -- Affirmative Defense -- Qualifying Patient -- Patient of Licensed Physician -- Licensed in Washington -- Proof -- Sufficiency In a prosecution for unlawful possession of marijuana, the trial court does not abuse its discretion by excluding a physician's testimony offered by the defendant in support of the affirmative defense of medical use of marijuana under RCW 69.51A.040 if no reasonable juror could find from the evidence, under the more- probable-than-not standard of proof, that the physician was licensed under chapter 18.71 or 18.57 RCW.

WA[10][10] Trial -- Instructions -- Review -- Standard of Review Jury instructions are reviewed de novo.

WA[11][11] Trial -- Instructions -- Review -- Considered as a Whole -- Context The validity of a jury instruction is evaluated in the context of the instructions as a whole.

WA[12][12] Trial -- Instructions -- Sufficiency -- Test Jury instructions are sufficient if they are supported by substantial evidence; allow the parties to argue their theories of the case; and, when read as a whole, properly inform the jury of the applicable law.

WA[13][13] Criminal Law -- Trial -- Instructions -- Evidence in Support -- Absence -- Prejudice -- Presumption In a criminal trial, an instruction that is unsupported by substantial evidence in the record is presumed to be prejudicial unless it affirmatively appears to be harmless beyond a reasonable doubt.

WA[14][14] Criminal Law -- Ignorance of Law -- Instruction -- Propriety In a criminal trial, an instruction that ignorance of the law is no excuse for criminal conduct generally is unwarranted if the defendant has not asserted ignorance of the law.

WA[15][15] Criminal Law -- Ignorance of Law -- Instruction -- Harmless Error In a criminal trial, an instruction stating that "[i]t is not a defense to a criminal charge that the defendant believed his or her conduct was lawful" and that "[i]gnorance of the law is no excuse for criminal conduct" is harmless beyond a reasonable doubt if it merely duplicates the language of another instruction defining "knowledge" in the language of Washington Practice: Washington Pattern Jury Instructions: Criminal 10.02 as "[a] person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime."

WA[16][16] Trial -- Comment on Evidence -- Prohibition -- Purpose Const. art. IV, § 16 prohibits a judge from conveying to the jury any personal attitudes toward the merits of a case.

WA[17][17] Criminal Law -- Trial -- Comment on Evidence -- Prejudice -- Presumption In a criminal trial, improper judicial comments under Const. art. IV, § 16 are presumed to be prejudicial.

WA[18][18] Appeal -- Assignments of Error -- Argument -- Necessity -- In General Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.

WA[19][19] Criminal Law -- Punishment -- Sentence -- Criminal History -- Offender Score -- Review -- Standard of Review A trial court's offender score calculation is reviewed de novo.

WA[20][20] Criminal Law -- Punishment -- Sentence -- Criminal History -- "Same Criminal Conduct" -- Review -- Standard of Review A trial court's determination that separate crimes do not encompass the "same criminal conduct" for sentencing purposes under RCW 9.94A.589(1)(a) is reviewed for an abuse of discretion.

WA[21][21] Criminal Law -- Punishment -- Sentence -- Criminal History -- "Same Criminal Conduct" -- Test Under RCW 9.94A.589(1)(a), two or more offenses do not constitute the "same criminal conduct" for sentencing purposes unless they (1) were the product of the same objective criminal intent, (2) were committed at the same time and place, and (3) involved the same victim. All three elements must be satisfied in order for multiple offenses to be counted as one offense when calculating a defendant's offender score.

WA[22][22] Criminal Law -- Punishment -- Sentence -- Criminal History -- "Same Criminal Conduct" -- Objective Intent -- Controlled Substances Crimes -- Manufacture -- Possession With Intent To Deliver Unlawful manufacture of marijuana and unlawful possession of marijuana with intent to manufacture or deliver do not constitute the "same criminal conduct" for sentencing purposes within the meaning of RCW 9.94A.589(1)(a) where the objective intent underlying the unlawful manufacture charge was to grow the marijuana and the objective intent underlying the unlawful possession charge was to deliver marijuana to third persons.

COUNSEL: Suzanne L. Elliott, for appellant.

Russell D. Hauge, Prosecuting Attorney, and Jeremy A. Morris, Deputy, for respondent.

JUDGES: Written By: Bridgewater, J. Concurred In By: Houghton, P.J., Hunt, J.

OPINION BY: BRIDGEWATER

OPINION

[**337] [*93] P1 Bridgewater, J. -- Ricky Lee Soper appeals his convictions of one count of manufacturing marijuana and one count of possession of marijuana with intent to manufacture or deliver. We hold that: (1) Soper failed to prove the foundation necessary to invoke the affirmative defense of the Medical Use of Marijuana Act (Act) 1 when he failed to present evidence that he was a patient of a physician licensed under chapter 18.71 or 18.57 RCW and (2) the trial court properly used ER 104(b) when it struck an out-of-state physician's testimony, which the trial court had admitted subject to the introduction of his Washington physician's license, as no longer relevant.

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1 Ch. 69.51A RCW.

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[***2] P2 Having failed to prove that he was entitled to invoke the affirmative defense, Soper's other arguments fail as well: (1) Soper's argument concerning the definition of marijuana under the Act was meritless because he failed to bring himself within the ambit of the affirmative defense, (2) any instructional error regarding "ignorance of the law being no excuse" was harmless and was not an impermissible judicial comment on the evidence, and (3) the convictions were not the "same criminal conduct" because Soper's intent to grow marijuana differed from his intent to deliver the finished product to others. Thus, we affirm.

FACTS

P3 On August 2, 2004, the West Sound Narcotics Enforcement Team observed an outdoor marijuana grow operation [*94] on Soper's property. After an investigation, the officers found the following: (1) 39 marijuana plants growing in a small shed, (2) 57 marijuana plants growing in several outdoor locations, (3) 5.7 ounces of "harvested" marijuana in a small shed, and (4) 102 packets of marijuana seeds in the residence. Report of Proceedings (RP) (Mar. 14, 2005) at 126.

P4 Soper acknowledged that he was growing marijuana. He also acknowledged that he planned to distribute the [***3] 102 packets of marijuana seeds at "Hemp Fest." RP (Mar. 14, 2005) at 126. Yet he also discussed with the officers his belief that he was a "qualified patient" under the Act. 2 RP (Mar. 14, 2005) at 134.

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2 Upon request from the officers, Soper even presented "paperwork" from his physician. RP (Mar. 14, 2005) at 134, 136.

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P5 Ultimately, the State charged Soper with one count of manufacturing marijuana and one count of possession of marijuana with intent to manufacture or deliver. 3 At trial, Soper sought to invoke the affirmative defense of the Act, under which a "[q]ualif[ied] patient[]" and/or a "primary caregiver[]" "shall not be found guilty of a crime under state law for their possession and limited use of marijuana." RCW 69.51A.005.

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3 The State also charged Soper with one count of delivery of marijuana. But the jury never returned a verdict on this charge.

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[***4] P6 As part of this defense, Soper sought to present testimony regarding the various characteristics of different parts of the marijuana plant. The State objected each time, arguing that the Act already defined marijuana for the purposes of the affirmative defense. According to the State, any other definition of marijuana would be confusing and improper. The trial court agreed with the State and concluded, "If you are attempting to use a different definition of what marijuana is, than is outlined in RCW 69.50.101(q), the objection will be sustained." RP (Mar. 14, 2005) at 150.

P7 As part of this defense, Soper also sought to present the testimony of Dr. David L. Dodge, his physician. But the [*95] State objected to Dr. Dodge's testimony because Soper never showed that Dr. Dodge was a physician licensed under chapter 18.71 RCW, as required by the Act. Ultimately, the trial [**338] court allowed Dr. Dodge to testify, contingent on proof of his Washington license. When the trial court did not receive proof of his Washington license, it granted the State's motion to strike Dr. Dodge's testimony in its entirety.

P8 After striking Dr. Dodge's testimony, the trial court [***5] read the jury instructions to the jury. Over Soper's objection, the trial court included the following jury instruction: "It is not a defense to a criminal charge that the defendant believed his or her conduct was lawful. Ignorance of the law is no excuse for criminal conduct." Clerk's Papers (CP) at 103. Based on this and the other jury instructions, the jury found Soper guilty on both counts. The trial court then sentenced Soper to 60 days in jail. Soper timely appealed.

ANALYSIS

I. Statutory Overview

P9 HN1Go to this Headnote in the case. Codified at chapter 69.51A RCW, the Act ensures that "[q]ualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana." RCW 69.51A.005. 4

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4 The Act also ensures that "[p]ersons who act as primary caregivers to such patients shall also not be found guilty of a crime under state law for assisting with the medical use of marijuana." RCW 69.51A.005, .010(2), .040(4).

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P10 HN2Go to this Headnote in the case.To meet the definition of a qualifying patient, the defendant must prove that he:

(a) Is a patient of a physician licensed under chapter 18.71 or 18.57 RCW;

(b) Has been diagnosed by that physician as having a terminal or debilitating medical condition;

[*96] (c) Is a resident of the state of Washington at the time of such [***6] diagnosis;

(d) Has been advised by that physician about the risks and benefits of the medical use of marijuana; and

(e) Has been advised by that physician that they may benefit from the medical use of marijuana.

RCW 69.51A.010(3).

P11 HN3Go to this Headnote in the case.A qualifying patient may then assert an affirmative defense to prosecution, provided he shall:

(a) Meet all criteria for status as a qualifying patient;

(b) Possess no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply; and

(c) Present his or her valid documentation to any law enforcement official who questions the patient regarding [***7] his or her medical use of marijuana.

RCW 69.51A.040(2).

II. ER 104-preliminary Questions and Striking Dr. Dodge's Testimony

P12 Soper argues that the trial court deprived him of his constitutional right to present a defense when the trial court struck Dr. Dodge's testimony. We disagree and examine the issue under ER 104.

WA[1][1] WA[2][2] P13 HN4Go to this Headnote in the case.We review a trial court's admission of evidence and ruling on a motion to strike for an abuse of discretion. State v. Pirtle, 127 Wn.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S. Ct. 2568 (1996); King County Fire Prot. Dist. No. 16 v. Hous. Auth., 123 Wn.2d 819, 826, 872 P.2d 516 (1994). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. State v. Perrett, 86 Wn. App. 312, 319, 936 P.2d 426, review denied, 133 Wn.2d 1019 (1997).

WA[3][3] WA[4][4] WA[5][5] P14 HN5Go to this Headnote in the case.In order to meet the definition of a qualifying patient under the Act, Soper first must prove that he is a patient of a physician licensed under chapter 18.71 or 18.57 RCW. 5 [*97] RCW 69.51A.010(3)(a) [***8] . Chapter 18.71 RCW [**339] details Washington's licensing procedures for physicians. 6 After analyzing these procedures in a previous case, we stated:

HN6Go to this Headnote in the case.Given the language of chapter 18.71 RCW, there is only one reasonable interpretation of the term "licensed." Our licensing scheme differentiates between physicians who are licensed in the state and those who are licensed in another state but who are permitted to practice medicine in Washington. As used in chapter 18.71 RCW, then, the term "licensed" is not synonymous with "permitted" or "allowed." Rather, physicians "licensed" under chapter 18.71 RCW met the qualifications of our regulatory guidelines and received a license from the State of Washington.

Accordingly, we hold that only those physicians validly licensed in Washington may prescribe medical marijuana to persons in this state.

State v. Tracy, 128 Wn. App. 388, 397, 115 P.3d 381 (2005), review granted, 156 Wn.2d 1030 (2006). 7


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5 HN7Go to this Headnote in the case."In order to affirmatively defend a criminal prosecution for possessing or manufacturing marijuana, a defendant must show by a preponderance of evidence that he has met the requirements of the Act." State v. Ginn, 128 Wn. App. 872, 878, 117 P.3d 1155 (2005), review denied, 157 Wn.2d 1010 (2006). Preponderance of the evidence means that, considering all the evidence, the proposition asserted must be more probably true than not true. State v. Shepherd, 110 Wn. App. 544, 550, 41 P.3d 1235, review denied, 147 Wn.2d 1017 (2002). [***9] 6 Chapter 18.57 RCW addresses the practice of osteopathy. Because nothing indicates that Dr. Dodge practiced osteopathy and because this chapter contains provisions similar to chapter 18.71 RCW, we confine our analysis to chapter 18.71 RCW. See State v. Tracy, 128 Wn. App. 388, 396 n.12, 115 P.3d 381 (2005), review granted, 156 Wn.2d 1030, 133 P.3d 474 (2006).7 In Tracy, we considered whether Dr. David Dodge, an Oregon doctor, and presumably the same Dr. Dodge in this case, was validly licensed in Washington. Tracy, 128 Wn. App. at 395-97. We ultimately concluded that "nothing indicates that Dr. Dodge holds a license to practice medicine in Washington." Tracy, 128 Wn. App. at 397 n.14.

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P15 We refer to the evidence Soper ultimately sought to offer as the primary evidence. 5 Karl B. Tegland, Washington Practice: Evidence Law and Practice § 104.6, at 99 (4th ed. 1999). And we refer to the evidence Soper offered for the purpose of demonstrating the relevance of the primary evidence as the foundation evidence. 5 Tegland, Supra, § 104.6, [***10] at 99. Thus, Soper's primary evidence was that he was a [*98] qualifying patient under the Act. Soper's foundation evidence was that Dr. Dodge was a physician licensed under chapter 18.71 RCW.

WA[6][6] WA[7][7] WA[8][8] P16 In deciding whether to admit this evidence, the trial court used the procedure under ER 104. In pertinent part, ER 104(a) states: HN8Go to this Headnote in the case."Preliminary questions concerning the qualification of a person to be a witness . . . shall be determined by the court, subject to the provisions of section (b)." Here, the trial court was called on to determine whether Dr. Dodge was a physician licensed under chapter 18.71 RCW such that Soper could employ the affirmative defense of the Act.

P17 HN9Go to this Headnote in the case. "When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition." ER 104(b). In any case,

Rule 104(b) establishes no fixed rules about the order of proof. The proponent may, of course, "lay the foundation" first and then introduce the primary evidence. But for reasons of necessity, convenience, [***11] or tactics, a party may find it desirable to introduce evidence that is irrelevant before introducing the evidence that will make it relevant. If a party attempts to introduce evidence that is only conditionally relevant and an objection is made, the proponent will typically request the court's permission to "connect up" the evidence later with other evidence that demonstrates its relevance.

Rule 104(b) gives the court the discretion to either admit the primary evidence subject to connecting up, or to refuse to admit the primary evidence until its relevance is shown by the foundation evidence.

5 Tegland, Supra, § 104.6, at 99.

HN10Go to this Headnote in the case.Upon introduction of the foundation evidence, whether it is introduced before or after the primary evidence, the judge's [role] is a limited one. The judge determines only whether the proponent has made a prima facie showing that the primary [**340] evidence is relevant. The evidence should be admitted if the [*99] foundation evidence is "sufficient to support a finding of the fulfillment of the condition."

5 Tegland, Supra, § 104.7, at 100 (footnote omitted). "It is generally held that the foundation evidence should be deemed sufficient if, after viewing all of [***12] the evidence in the light most favorable to the proponent, a reasonable juror could find the condition to be more probably true than not." 5 Tegland, Supra, § 104.7, at 100-01.

P18 During the trial, in an offer of proof, Soper sought to introduce foundation evidence that Dr. Dodge was a physician licensed under chapter 18.71 or 18.57 RCW. In response to a question about whether he possessed a medical license as required by chapter 18.71 or 18.57 RCW, Dr. Dodge stated, "I was a--that was a temporary license." RP (Mar. 15, 2005) at 249. Dr. Dodge explained, "Well, I decided not to get a Washington license, because between this job, covering Oregon, I thought one state was enough. Basically that's it. And I didn't go through the full application for the Washington license, but I have a good standing license in Oregon; also California." RP (Mar. 15, 2005) at 249.

P19 During cross-examination, Dr. Dodge admitted that he had only "a temporary license. I never finished the application. I was functioning, because I have an Oregon license and California license." RP (Mar. 15, 2005) at 251. Furthermore, Dr. Dodge did not know under which statute he was licensed.

[***13] P20 In response, the trial court stated:

It's up to the defense to prove that he is licensed, and based upon what I can see of those documents and my reading of RCW 18.71 is that there's not a showing that he is licensed to practice medicine pursuant to RCW 18.71 . . . . And in the absence of that showing, he's not going to be allowed to testify about that particular aspect of this treatment of this patient.

RP (Mar. 15, 2005) at 254.

P21 Nevertheless, Dr. Dodge's supervisor testified that Dr. Dodge had the ability to practice medicine in Washington and that Dr. Dodge possessed a temporary medical [*100] license from Washington. But Dr. Dodge's supervisor stated, "I don't have it here. But we have it in our files. And I can provide that, via fax, if you would like." RP (Mar. 15, 2005) at 259. The trial court allowed Dr. Dodge to testify to the primary evidence.

P22 The following day, the trial court asked whether Dr. Dodge's supervisor had provided a copy of Dr. Dodge's temporary medical license from Washington. Upon learning that no one had provided a copy of this license to the trial court, the trial court stated:

My belief is that in order for the testimony [***14] of the doctor to be relevant, he must be qualified to testify, and there is not--the court has to make that determination. The jury doesn't make the determination, whether or not he is qualified to testify, and under the a--as I read the statute and my conclusion is that there is not testimony, sufficient testimony, even viewed most favorably to the defense, that Dr. Dodge is licensed to practice pursuant to RCW 18.71. Therefore his testimony is stricken and I will advise the jury.

RP (Mar. 16, 2005) at 313.

WA[9][9] P23 Here, the trial court did not abuse its discretion in striking Dr. Dodge's testimony. Even after viewing all the foundation evidence in the light most favorable to Soper, no reasonable juror could find more probably true than not that Dr. Dodge was a physician licensed in Washington under chapter 18.71 RCW. In other words, the foundation evidence was not "sufficient to support a finding of the fulfillment of the condition." ER 104(b). And therefore, Soper failed to make a prima facie showing that the primary evidence of him as a qualified patient under the Act was relevant. Because the primary evidence of Soper as a qualified patient under [***15] the Act was not relevant, it was not admissible. SeeER 401 andER 402. 8

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8 Regardless, the trial court instructed the jury as to the affirmative defense. Because Soper failed to show that Dr. Dodge was a physician licensed under chapter 18.71 RCW, the better course for the trial court would have been to rule that Soper presented insufficient evidence to allow the jury to consider his affirmative defense.

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[*101] [**341] P24 Because Soper could not avail himself of the Act's affirmative defense, his arguments concerning the definition of marijuana and the 60-day supply under the Act are meritless and we do not need to discuss them.

III. Jury Instruction 14

P25 First, Soper argues that the trial court erred in instructing the jury that ignorance of the law is no excuse for criminal conduct. If error was committed, we hold that it was harmless.

WA[10][10] WA[11][11] WA[12][12] WA[13][13] WA[14][14] WA[15][15] P26 HN11Go to this Headnote in the case.We review the adequacy of jury instructions de novo, evaluating it in the context of the instructions as a whole. Pirtle, 127 Wn.2d at 656. Jury [***16] instructions are sufficient if they are supported by substantial evidence; allow the parties to argue their theories of the case; and, when read as a whole, properly inform the jury of the applicable law. State v. Riley, 137 Wn.2d 904, 908 n.1, 909, 976 P.2d 624 (1999). It is prejudicial error to submit an issue to the jury that is not warranted by the evidence. State v. Clausing, 147 Wn.2d 620, 56 P.3d 550 (2002); State v. Fernandez-Medina, 141 Wn.2d 448, 455, 6 P.3d 1150 (2000).

P27 The applicable law is thatHN12Go to this Headnote in the case. ignorance of the law is no excuse. See State v. Warfield, 103 Wn. App. 152, 159, 5 P.3d 1280 (2000); State v. Reed, 84 Wn. App. 379, 384, 928 P.2d 469 (1997); State v. Patterson, 37 Wn. App. 275, 282, 679 P.2d 416, review denied, 103 Wn.2d 1005 (1984).

P28 At trial, the State argued, "I think [this instruction as to ignorance of the law] applies to the affirmative defense â?¦. You have to be--you can't be guessing about the elements of the affirmative defense." RP (Mar. 16, 2005) at 305-06.

P29 Yet Soper objected. And on appeal, Soper argues that [***17] "the instruction was irrelevant and not supported by the facts presented at trial." Br. of Appellant at 16. He claims that he was not ignorant of the Act's requirements but instead that "[he] made every attempt to comply with [*102] them." Br. of Appellant at 16. He suggests that the evidence indicates a mistake of fact, not a mistake of law. 9

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9 At trial, Soper's counsel denied that Soper was invoking an ignorance of the law defense. Soper's counsel also claimed that the jury instructions, without any instruction as to ignorance of the law, adequately instructed the jury.

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P30 Assuming, without deciding, that jury instruction 14 is not supported by substantial evidence because Soper never asserted ignorance of the law, we assume error. Thus, this instructional error is presumed to be prejudicial unless it affirmatively appears to be harmless. Clausing, 147 Wn.2d at 628.

P31 Regardless of the prejudicial presumption, we hold that the instructional error was harmless beyond a reasonable doubt. After [***18] all, jury instruction 14 stated, "It is not a defense to a criminal charge that the defendant believed his or her conduct was lawful. Ignorance of the law is no excuse for criminal conduct." CP at 103. Similarly, jury instruction 12 stated:

A person knows or acts knowingly or with knowledge when he or she is aware of a fact, circumstance or result which is described by law as being a crime, whether or not the person is aware that the fact, circumstance or result is a crime.

If a person has information which would lead a reasonable person in the same situation to believe that facts exist which are described by law as being a crime, the jury is permitted but not required to find that he or she acted with knowledge.

Acting knowingly or with knowledge also is established if a person acts intentionally.

CP at 101 (emphasis added). 10 In fact, the Washington Pattern Jury Instructions explain that "[t]he phrase 'whether or not the person is aware that the fact, circumstance or result is a crime' was added to the end of [**342] the first paragraph of this instruction to state the old rule that 'ignorance of the law is no excuse.'" 11 Washington Practice: Washington Pattern Jury [***19] Instructions: Criminal 10.02, cmt. at 151 (2d ed. 1994). By including jury instruction 14, the [*103] trial court simply duplicated jury instruction 12, albeit with the "old rule." Although the trial court could have been more careful in its choice of language and number of instructions, its error was harmless beyond a reasonable doubt.


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10 The trial court submitted instruction 12 to the jury in order to define knowledge, an element of the crime of manufacturing a controlled substance.

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P32 Second, Soper claims that jury instruction 14 was an impermissible judicial comment on the evidence in violation of the Washington Constitution. We do not agree.

WA[16][16] WA[17][17] P33 Article IV, section 16 of the Washington Constitution states:HN13Go to this Headnote in the case. "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." HN14Go to this Headnote in the case.This provision prohibits a judge from conveying to the jury his personal attitudes toward the merits of a case. State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995); State v. Foster, 91 Wn.2d 466, 481, 589 P.2d 789 (1979). [***20] Judicial comments are presumed to be prejudicial. Lane, 125 Wn.2d at 838.

WA[18][18] P34 Soper simply claims that jury instruction 14 "conveyed the trial judge's determination that Soper's defense was not credible and had no applicability." Br. of Appellant at 17. But Soper does not explain how this instruction had the potential effect of suggesting to the jury that his defense was not credible. HN15Go to this Headnote in the case.Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration. State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992). Without more, we hold that jury instruction 14 was not an impermissible judicial comment on the evidence.

IV. Same Criminal Conduct

P35 Finally, Soper argues that the trial court erred in finding that his conviction for manufacturing marijuana and his conviction for possession of marijuana with intent to manufacture or deliver were not the "same criminal [*104] conduct" for sentencing purposes. 11 Br. of Appellant at 18. We disagree.

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11 Soper raises this argument for the first time on appeal. HN16Go to this Headnote in the case.A challenge to an offender score calculation may be raised for the first time on appeal because the sentencing court acts without statutory authority when it imposes a sentence based on a miscalculated offender score. See State v. Ford, 137 Wn.2d 472, 477, 973 P.2d 452 (1999).

While our Supreme Court has not addressed whether the same criminal conduct issue may be raised for the first time on appeal, Division One and Division Three of this court have permitted review where the defendant did not ask the trial court to consider whether his crimes constituted the same criminal conduct. See Statev. Nitsch, 100 Wn. App. 512, 521, 997 P.2d 1000, review denied, 141 Wn.2d 1030 (2000).

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[***21] WA[19][19] WA[20][20] P36 HN17Go to this Headnote in the case.Although we review the trial court's calculation of an offender score de novo, we review the trial court's determination of same criminal conduct for abuse of discretion. State v. Tili, 139 Wn.2d 107, 122-23, 985 P.2d 365 (1999) (quoting State v. Walden, 69 Wn. App. 183, 188, 847 P.2d 956 (1993)); State v. Roche, 75 Wn. App. 500, 513, 878 P.2d 497 (1994).

WA[21][21] P37 HN18Go to this Headnote in the case.Under RCW 9.94A.589(1)(a), 12 a trial court has the discretion to count two or more current offenses as the same criminal conduct for calculating a convicted defendant's offender score. This same criminal conduct requires that the offenses: (1) had the same objective criminal intent, (2) were committed at the same time and place, and (3) involved the same victim. RCW 9.94A.589(1)(a); Walden, 69 Wn. App. at 187-88. If any one of these elements is missing, multiple offenses cannot be considered to be the same criminal conduct; the court must count these crimes separately in calculating the offender score. State v. Garza-Villarreal, 123 Wn.2d 42, 47, 864 P.2d 1378 (1993).

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12 Effective July 1, 2001, the legislature recodified RCW 9.94A.400 to RCW 9.94A.589. Laws of 2001, ch. 10, § 6.

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[***22] P38 Here, Soper does not dispute that his offenses involved the same victim, namely the public at large. See Garza-Villarreal, 123 Wn.2d at 47. And Soper does not dispute that his offenses were committed at the same time and place, as the officers found all the marijuana at his property and on the same day.

[**343] [*105] WA[22][22] P39 Rather, Soper disputes whether his crimes involved the same objective criminal intent. He argues that the evidence shows his intent as to both crimes was the same: an intent "to grow marijuana for medicinal medical marijuana purposes." Br. of Appellant at 20.

P40 But Soper did not have the same objective criminal intent. One objective was to grow the marijuana; the other objective was to deliver it to third persons. As our Supreme Court stated in a similar case:

The growing marijuana in the garage showed intent (in the past and present) to "manufacture" a controlled substance, whereas the marijuana found in the house in plastic baggies showed the defendant's intent to deliver the drugs in the future. Hence, the trial court did not abuse its discretion in refusing to treat the two crimes as the "same criminal conduct" for sentencing purposes.

State v. Maxfield, 125 Wn.2d 378, 403, 886 P.2d 123 (1994) [***23] (footnote omitted).

P41 Here, as in Maxfield the growing marijuana showed Soper's intent (in the past and present) to manufacture marijuana; the 102 packets of marijuana seeds, along with Soper's admission that he intended to distribute the seeds at "Hemp Fest," showed Soper's intent to deliver the drugs in the future. RP (Mar. 14, 2005). Therefore, the trial court did not abuse its discretion in determining same criminal conduct.

P42 Affirmed.

Houghton and Hunt, JJ., concur.

Review denied at 161 Wn.2d 1004 (2007).

November 20, 2007, Filed

NOTICE: RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.

PRIOR HISTORY: [*1]
Superior Court County: WHITMAN. Docket No(s): 04-1-00178-6. Judge signing: JOHN D. FRAZIER. Date filed: January 18, 2005 (Suppression), November 18, 2005 (Trial).
State v. Barber, 141 Wn. App. 1039, 2007 Wash. App. LEXIS 3140 (2007)

DISPOSITION: Affirmed.


CASE SUMMARY

PROCEDURAL POSTURE: In the Whitman County Superior Court (Washington), defendant was convicted under the Uniform Controlled Substances Act, Wash. Rev. Stat. ch. 69.50, for manufacture of a controlled substanceâ??marijuana. Defendant appealed.

OVERVIEW: Defendant argued that the warrantless entry into an apartment by police officers constituted an invalid search. However, the appellate court held that the officers clearly had reason to investigate a possible burglary and enter the apartment without a warrant under either the emergency or exigent circumstances exceptions to the Fourth Amendment to the United States Constitution and article I, section 7 of the Washington Constitution. Their inadvertent discovery of a marijuana grow operation provided probable cause for a subsequent search warrant. Defendant contended that his conviction had to be reversed because the Medical Use of Marijuana Act, Wash. Rev. Stat. ch. 69.51A, had effectively repealed the designation of marijuana as a schedule I controlled substance, but the appellate court held that the Medical Use of Marijuana Act was not intended to supersede existing Washington law regarding marijuana. Defendant was not a â??qualifying patientâ?� under that act because his purported medical marijuana authorization was signed by a doctor who was licensed in Oregon, not Washington.

OUTCOME: The trial court's judgment was affirmed.


CORE TERMS: marijuana, apartment, Medical Use of Marijuana Act, patientâ?�, door, controlled substanceâ??, â??qualifying, emergency, glass, police officers', authorization, suppress, burglary, exigent circumstances, designation, neighbor, licensed, broken, grow, arrived, marijuana plants, review denied, warrant requirement, affirmative defense, manufacture, repealed, warrantless entry, search warrant, probable cause, classification

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Search & Seizure > Warrantless Searches > General Overview
HN1Go to the description of this Headnote. The Fourth Amendment to the United States Constitution and Wash. Const. art. I, § 7 prohibit unreasonable searches and seizures. Although warrantless searches are per se unreasonable, the warrant requirement is subject to narrowly drawn exceptions. The State has the burden of proving one of these exceptions applies.


Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Exigent Circumstances > General Overview
HN2Go to the description of this Headnote. Exigent circumstances may establish an exception to the search warrant requirement where there is probable cause to believe a crime is being or has been committed and it is impractical to obtain a search warrant. There are six elements to aid in determining when a justification exists for warrantless police entry into a home: (1) a grave offense, particularly a crime of violence, is involved; (2) the suspect is reasonably believed to be armed; (3) there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) the suspect is likely to escape if not swiftly apprehended; and (6) the entry is made peaceably.


Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Community Caretaking
HN3Go to the description of this Headnote. The emergency exception to the search warrant requirement recognizes the community caretaking function of police officers, and it exists so officers can assist citizens and protect property. This emergency doctrine justifies a warrantless entry when: (1) the officer subjectively believed that someone likely needed assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe that there was a need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place searched.


Criminal Law & Procedure > Search & Seizure > Warrantless Searches > Exigent Circumstances > Protection of Officers & Others
HN4Go to the description of this Headnote. It is reasonable for officers, responding to a request for police assistance and with probable cause to believe that an open, unsecured dwelling has been recently burglarized, to immediately enter the dwelling without a warrant for the limited purposes of investigating the crime, rendering aid to any possible victims of the felony, protecting the occupant's property, and searching for remaining suspects.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Substance Schedules > Hashish & Marijuana
Healthcare Law > Treatment > General Overview
HN5Go to the description of this Headnote. The designation of marijuana as a schedule I controlled substance under the Uniform Controlled Substances Act was not repealed by implication by the Medical Use of Marijuana Act, as the two statutes are not inconsistent, for: (1) the Medical Use of Marijuana Act does not cover the entire scope of schedule I controlled substances; (2) the Medical Use of Marijuana Act only provides an affirmative defense to certain drug crimes and is not inconsistent with marijuana's schedule I classification; and (3) the legislative intent of the Medical Use of Marijuana Act makes clear that the statute shall not be construed to supersede Washington state law prohibiting the acquisition, possession, manufacture, sale or use of marijuana for nonmedical purposes.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Healthcare Law > Treatment > General Overview
HN6Go to the description of this Headnote. The Medical Use of Marijuana Act ensures that qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana. Wash. Rev. Code § 69.51A.005. To be considered a "qualifying patient" under the act, the defendant must prove that he or she: (a) is a patient of a physician licensed under chapter 18.71 or 18.57 of Wash. Rev. Code; (b) has been diagnosed by that physician as having a terminal or debilitating medical condition; (c) is a resident of the state of Washington at the time of such diagnosis; (d) has been advised by that physician about the risks and benefits of the medical use of marijuana; and (e) has been advised by that physician that they may benefit from the medical use of marijuana. Wash. Rev. Code § 69.51A.010(3). Only patients of physicians validly licensed in Washington qualify for this defense.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > General Overview
Healthcare Law > Treatment > General Overview
HN7Go to the description of this Headnote. Under the Medical Use of Marijuana Act, once an individual is deemed a "qualifying patient," he or she may then assert the affirmative defense to prosecution, provided that he or she shall: (a) meet all criteria for status as a qualifying patient; (b) possess no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply; and (c) present his or her valid documentation to any law enforcement official who questions the patient regarding his or her medical use of marijuana. Wash. Rev. Code § 69.51A.040(2).


Healthcare Law > Treatment > General Overview
HN8Go to the description of this Headnote. In order for a person to be considered a "qualifying patient" for purposes of the Medical Use of Marijuana Act, the authorization has to come from a Washington licensed physician.


JUDGES: Written by: DEBRA L. STEPHENS. Concurred by: DENNIS J. SWEENEY & STEPHEN M. BROWN.

OPINION BY: Debra L. Stephens

OPINION

¶1 Stephens, J. â?? James Edward Barber Jr. 1 appeals his conviction for manufacture of a controlled substanceâ??marijuana. He contends the court erred by denying his motion to suppress evidence found following police officers' warrantless entry into his home. He also contends his conviction must be reversed because the enactment of the Medical Use of Marijuana Act, chapter 69.51A RCW, effectively repealed the designation of marijuana as a schedule I controlled substance under the Uniform Controlled Substances Act, chapter 69.50 RCW.

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1 Mr. Barber is also known as James Edward Barber-Bishop. Clerk's Papers at 14. For purposes of this opinion, we shall refer to the appellant as Mr. Barber.

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¶2 In his statement of additional grounds for review, Mr. Barber contends the court erred by finding that he was not a â??qualifying patientâ?� for purposes of the Medical Use of Marijuana Act. We affirm.
FACTS

¶3 On September 7, 2004, Washington State [*2] University Police Officer Joe Ederer and Sergeant George McGinty were dispatched to an apartment to investigate a possible burglary. When they arrived at the scene, Officer Ederer spoke with a witness who said that he was awakened by the sound of breaking glass in an apartment located directly above his apartment. The witness said that he saw someone breaking glass and putting the glass into a trash can outside of the apartment. He also said that he saw someone walking to the apartment after he heard the breaking glass. A witness saw the suspect leaving the area.

¶4 Sergeant McGinty left to look for any fleeing suspects, while Officer Ederer went to confirm damage to the apartment. When Officer Ederer arrived at the apartment, he noticed a trash can outside the residence and broken glass. The door was propped open with a pair of slippers and there were pry marks on the door. Officer Ederer contacted Sergeant McGinty and asked him to come to the apartment so that they could enter the apartment together for safety reasons. When the Sergeant arrived, the officers knocked on the door twice, identified themselves and commanded that anyone inside the apartment come out. Hearing no response, [*3] the officers then entered the apartment with their guns drawn, and conducted a security sweep of any areas large enough to contain a person hiding or injured.

¶5 The officers were in the apartment for less than two minutes when Sergeant McGinty saw a marijuana grow operation. The officers then left the apartment and contacted the Pullman Police Department about the marijuana. Officers from the Pullman Police Department obtained a search warrant and seized plant-growing chemicals, 15 marijuana plants, several copies of a purported authorization for Mr. Barber to use medical marijuana, dried marijuana leaves, hydroponic plant growers, water bongs, knives and scissors containing green and black residue, a shot glass with numerous marijuana joint butts, a vacuum sealer and bags, grow lights, sheets of Mylar reflective material, a power converter, two circulation fans, a digital temperature control box and marijuana seeds.

¶6 While police officers were at the apartment, Mr. Barber arrived and asked the officers what was going on. Mr. Barber told the officers that he was watching the apartment for his friend. He said the marijuana and equipment belonged to him and that he was growing the marijuana [*4] for medical use. He then showed the officers a medical marijuana authorization form signed by Dr. David Dodge, an Oregon-licensed physician. Mr. Barber was arrested and charged with one count of manufacture of a controlled substanceâ??marijuana.

¶7 On November 18, Mr. Barber filed a motion to dismiss the charge. He argued that the facts did not establish a prima facie case and that he met the requirements of the affirmative defense under the Medical Use of Marijuana Act, chapter 69.51A RCW. Mr. Barber also filed a motion to suppress evidence obtained during the search of the apartment. He argued that the police officers lacked legal grounds to initiate a search of the property, because medical marijuana authorization paperwork was posted throughout the apartment.

¶8 On January 18, 2005, the court denied Mr. Barber's motion to dismiss. The court determined that there was sufficient evidence to support the crime of manufacture of a controlled substanceâ??marijuana, and that there was no evidence that Mr. Barber met the requirements of the Medical Use of Marijuana Act, because he was not a â??qualifying patientâ?� under the statute. Clerk's Papers at 92. The court also denied the motion to suppress, [*5] finding that the police officers' initial entry into the apartment was valid pursuant to the emergency and exigency exceptions to the warrant requirement.

¶9 Mr. Barber was found guilty as charged at a bench trial. This appeal follows.
ANALYSIS
A. Motion to Suppress

¶10 Mr. Barber contends the court erred by denying his motion to suppress. He argues the warrantless entry into the apartment constituted an invalid search and did not meet the requirements for the exigent circumstances and emergency exceptions to the warrant requirement.

¶11 HN1Go to this Headnote in the case.The Fourth Amendment to the United States Constitution and article I, section 7 of the Washington State Constitution prohibit unreasonable searches and seizures. State v. Johnson, 104 Wn. App. 409, 414, 16 P.3d 680, review denied, 143 Wn.2d 1024 (2001). Although warrantless searches are per se unreasonable, the warrant requirement is subject to narrowly drawn exceptions. Id. The State has the burden of proving one of these exceptions applies. State v. Kull, 155 Wn.2d 80, 85, 118 P.3d 307 (2005).

¶12 HN2Go to this Headnote in the case.Exigent circumstances may establish an exception to the search warrant requirement where there is probable cause to believe a crime is being or has been committed and it is [*6] impractical to obtain a search warrant. State v. Muir, 67 Wn. App. 149, 152, 835 P.2d 1049 (1992). Our Supreme Court has enumerated six elements to aid in determining when a justification exists for warrantless police entry into a home: â??(1) a grave offense, particularly a crime of violence, is involved; (2) the suspect is reasonably believed to be armed; (3) there is reasonably trustworthy information that the suspect is guilty; (4) there is strong reason to believe that the suspect is on the premises; (5) the suspect is likely to escape if not swiftly apprehended; and (6) the entry is made peaceably.â?� State v. Terrovona, 105 Wn.2d 632, 644, 716 P.2d 295 (1986).

¶13 Likewise, HN3Go to this Headnote in the case.the emergency exception to the warrant requirement â??recognizes the community caretaking function of police officers, and exists so officers can assist citizens and protect property.â?� State v. Menz, 75 Wn. App. 351, 353, 880 P.2d 48 (1994), review denied, 125 Wn.2d 1021 (1995). This emergency doctrine justifies a warrantless entry when: â??(1) the officer subjectively believed that someone likely needed assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe that [*7] there was a need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place searched.â?� State v. Gocken, 71 Wn. App. 267, 276-77, 857 P.2d 1074 (1993), review denied, 123 Wn.2d 1024 (1994).

¶14 We find State v. Campbell, 15 Wn. App. 98, 547 P.2d 295 (1976), and State v. Bakke, 44 Wn. App. 830, 723 P.2d 534 (1986), review denied, 107 Wn.2d 1033 (1987) instructive here.

¶15 In Campbell, 15 Wn. App. at 99, the defendant's neighbor summoned the police after observing a burglary in progress and watching a suspect flee the scene. Upon arrival, the police spoke with the neighbor and discovered a broken window and a wide-open door at the burglarized apartment. Id. The officer immediately entered the apartment without a warrant â??to investigate the recent crime, to look for possible participants in the burglary, to search for evidence of the burglary, and to aid any victims.â?� Id. During the search, seven marijuana plants were discovered. Id. Division One of this court found the search to be valid, concluding that it met the emergency or exigent circumstances exception. Id. at 100. The court stated:

HN4Go to this Headnote in the case.It is reasonable for officers, responding to a request for [*8] police assistance and with probable cause to believe that an open, unsecured dwelling has been recently burglarized, to immediately enter the dwelling without a warrant for the limited purposes of investigating the crime, rendering aid to any possible victims of the felony, protecting the occupant's property, and searching for remaining suspects.

Id.

¶16 Similarly, in Bakke, 44 Wn. App. at 831, 842, Division One reversed a suppression order and dismissal of charges in a case in which the defendant's neighbor summoned the police to respond to a burglary in progress. The neighbor had seen two juveniles running from the back door of the defendant's home. Id. at 831. Upon arrival, the police spoke with neighbors and discovered that the window in the back door to the defendant's house had been broken and that the hole was large enough to accommodate a juvenile's body. Id. The police also noted that fresh muddy footprints extended from the back door through an enclosed porch to an interior door that had been broken from the door jamb. Id.

¶17 Without a warrant, the officers entered the house â??to locate any suspects and secure the safety of the house and its contents.â?� Id. at 832. They found no suspects [*9] but saw two marijuana plants and some grow paraphernalia. Id. Based on these facts, the officers obtained a warrant to search the house. Id. During the follow-up search, they found several marijuana plants and a grow light. Id. The trial court suppressed this evidence, concluding that the initial search was illegal and that the warrant was issued on the basis of evidence found in an illegal search. Id. On review, Division One reversed concluding that exigent circumstances justified the warrantless search. Id. at 841-42.

¶18 Here, Officer Ederer and Sergeant McGinty were responding to a report from a third party who had witnessed a possible burglary in progress. When they arrived, Officer Ederer was told by the witness that the suspect was seen leaving the area. Sergeant McGinty left to look for any fleeing suspects while Officer Ederer stayed at the apartment. Officer Ederer noticed broken glass, the door to the apartment was open and there were pry marks on the door. There was no response when the officers knocked and announced themselves, so the officers entered the apartment to conduct a security sweep to look for possible victims. Taking all of these facts together, the officers clearly [*10] had reason to investigate the situation and enter the apartment without a warrant under either the emergency or exigent circumstances exceptions. Their inadvertent discovery of a marijuana grow operation provided probable cause for the subsequent warrant. The court did not err in denying Mr. Barber's motion to suppress evidence found during this search.
B. Repeal of Schedule I Designation by the Medical Use of Marijuana Act

¶19 Mr. Barber contends his conviction must be reversed because the Medical Use of Marijuana Act, chapter 69.51A RCW, has effectively repealed the designation of marijuana as a schedule I controlled substance under the Uniform Controlled Substances Act, chapter 69.50 RCW. He argues that marijuana now has an accepted medical use so that the continued classification of the substance under schedule I is inconsistent and cannot be reconciled with the Medical Use of Marijuana Act. We have already addressed the issue raised by Mr. Barber. State v. Hanson, 138 Wn. App. 322, 157 P.3d 438 (2007).

¶20 In Hanson, we held that HN5Go to this Headnote in the case.the schedule I classification was not repealed by implication by the Medical Use of Marijuana Act, as the two statutes are not inconsistent. Id. at 330-31. We reasoned [*11] that (1) the Medical Use of Marijuana Act does not cover the entire scope of schedule I controlled substances; (2) the Medical Use of Marijuana Act only provides an affirmative defense to certain drug crimes and is not inconsistent with marijuana's schedule I classification; and (3) the legislative intent of the Medical Use of Marijuana Act makes clear that the statute shall not be construed to supersede Washington state law prohibiting the acquisition, possession, manufacture, sale or use of marijuana for nonmedical purposes. Id.

¶21 Under Hanson, therefore, the Medical Use of Marijuana Act was not intended to supersede existing Washington law regarding marijuana use for nonmedical purposes and has not repealed the schedule I designation of marijuana under the Uniform Controlled Substances Act. Id. Reversal of Mr. Barber's conviction is not warranted on this basis.
C. Statement of Additional Grounds for Review

¶22 In his statement of additional grounds for review, Mr. Barber contends the court erred by finding that he was not a â??qualifying patientâ?� under the affirmative defense in the Medical Use of Marijuana Act.

¶23 HN6Go to this Headnote in the case.The Medical Use of Marijuana Act ensures that â??[q]ualifying patients with terminal [*12] or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana.â?� RCW 69.51A.005. To be considered a â??qualifying patientâ?� under the act, the defendant must prove that he:

(a) Is a patient of a physician licensed under chapter 18.71 or 18.57 RCW;

(b) Has been diagnosed by that physician as having a terminal or debilitating medical condition;

(c) Is a resident of the state of Washington at the time of such diagnosis;

(d) Has been advised by that physician about the risks and benefits of the medical use of marijuana; and

(e) Has been advised by that physician that they may benefit from the medical use of marijuana.

RCW 69.51A.010(3). Only patients of physicians validly licensed in Washington qualify for this defense. State v. Tracy, 158 Wn.2d 683, 690, 147 P.3d 559 (2006).

¶24 HN7Go to this Headnote in the case.Once an individual is deemed a â??qualifying patient,â?� he may then assert the affirmative defense to prosecution, provided that he shall:

(a) Meet all criteria for status as a qualifying patient;

(b) Possess no more marijuana than is necessary for the patient's personal, [*13] medical use, not exceeding the amount necessary for a sixty-day supply; and

(c) Present his or her valid documentation to any law enforcement official who questions the patient regarding his or her medical use of marijuana.

RCW 69.51A.040(2).

¶25 Here, Mr. Barber's medical marijuana authorization was signed by Dr. David Dodge, who is licensed in Oregon, not Washington.HN8Go to this Headnote in the case. In order for Mr. Barber to be considered a â??qualifying patientâ?� for purposes of the Medical Use of Marijuana Act, the authorization had to come from a Washington licensed physician. Tracy, 158 Wn.2d at 690. The court did not err in concluding that Mr. Barber was not a â??qualifying patientâ?� under the act.
CONCLUSION

¶26 We hold Officer Ederer and Sergeant McGinty were justified in their entry into the apartment without a warrant under both the emergency and exigent circumstances exceptions. We also hold that the Medical Use of Marijuana Act does not repeal the schedule I designation of marijuana under the Uniform Controlled Substances Act, and that Mr. Barber was not a â??qualifying patientâ?� under the act because his medical marijuana authorization was not signed by a Washington licensed physician.

¶27 Affirmed.

¶28 A majority of the panel has [*14] determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Sweeney, C.J., and Brown, J., concur.

Reconsideration denied January 24, 2008.

November 22, 2006, Filed

PRIOR HISTORY: State v. Tracy, 128 Wn. App. 388, 115 P.3d 381, 2005 Wash. App. LEXIS 1635 (2005)


CASE SUMMARY

PROCEDURAL POSTURE: Defendant was convicted, before a Washington trial court, of manufacturing and possessing marijuana. Defendant appealed.

OVERVIEW: A detective smelled an odor of marijuana in defendant's home, and the stepdaughter revealed that defendant smoked marijuana regularly. Defendant claimed that she possessed a medical marijuana card that was issued in California by a California doctor. Defendant also possessed an authorization from an Oregon doctor. Wash. Rev. Code ch. 69.51A created a compassionate use defense against prosecution for marijuana related crimes, but only for "qualifying patients." At issue on appeal was whether defendant was a "qualifying patient" of a "qualifying doctor." Pursuant to Wash. Rev. Code § 69.51A.010(3), among other things, a "qualifying patient" was required to be a patient of a "qualifying doctor." California and Oregon doctors were not formally licensed in Washington under Wash. Rev. Code ch. 18.71 The supreme court concluded that defendant did not establish she was a "qualifying patient" entitled to present a compassionate use defense under § 69.51A.010(3). Also, the absence of a California medical marijuana card from the record prevented the supreme court from reaching defendant's full faith and credit arguments. The trial court did not err by excluding the defense.

OUTCOME: The supreme court affirmed defendant's convictions.


CORE TERMS: marijuana, patient, licensed, qualifying, initiative, doctor, compassionate, voter, card, debilitating, voters pamphlet, authorization, medicine, terminal, illnesses, affirmative defense, license, full faith and credit, detective's, resident, pain, out-of-state, prescription, amici, elections, suffering, authorize, ballot, medical conditions, medical license

LexisNexis® Headnotes Hide Headnotes


Criminal Law & Procedure > Appeals > Standards of Review > De Novo Review > General Overview
HN1Go to the description of this Headnote. When only questions of law are before the supreme court, review is de novo.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > Simple Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Defenses > Necessity
HN2Go to the description of this Headnote. See Wash. Rev. Code § 69.51A.005.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Defenses > Necessity
HN3Go to the description of this Headnote. Only qualifying patients are entitled to use the compassionate use of marijuana defense. This limits it to: Qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana. Wash. Rev. Code § 69.51A.005.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Defenses > Necessity
HN4Go to the description of this Headnote. See Wash. Rev. Code § 69.51A.010(3).


Criminal Law & Procedure > Trials > Burdens of Proof > Defense
Criminal Law & Procedure > Defenses > General Overview
Evidence > Procedural Considerations > Burdens of Proof > General Overview
HN5Go to the description of this Headnote. A defendant asserting an affirmative defense, such as the compassionate use defense, bears the burden of offering sufficient evidence to support that defense.


Governments > State & Territorial Governments > Licenses
Healthcare Law > Business Administration & Organization > Licenses > General Overview
HN6Go to the description of this Headnote. Wash. Rev. Code ch. 18.71 establishes the statutory system which regulates physicians. It does two things. It licenses physicians to practice medicine in Washington, and it authorizes licensed physicians from other jurisdictions to practice medicine in Washington so long as they do not open an office, establish a place to meet with patients, or receive calls within Washington. Wash. Rev. Code § 18.71.021, .030(6).


Governments > State & Territorial Governments > Licenses
Healthcare Law > Business Administration & Organization > Licenses > General Overview
Healthcare Law > Business Administration & Organization > Licenses > Requirements
HN7Go to the description of this Headnote. Becoming a licensed doctor in Washington is a formal affair. Requirements include successful completion of an examination administered by the Washington Medical Quality Assurance Commission, or passing an exam in another state and completing specific procedural requirements. Wash. Rev. Code §§ 18.71.070, .090, .095.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > Necessity
Governments > State & Territorial Governments > Licenses
Healthcare Law > Business Administration & Organization > Licenses > Requirements
HN8Go to the description of this Headnote. Wash. Rev. Code § 18.71.030(6) does not include all out-of-state physicians for every purpose; it merely permits out-of-state physicians temporarily within the state, but without an office or similar professional connections, to practice their calling while in Washington. Wash. Rev. Code § 18.71.030(6). The State Medical Use of Marijuana Act, Wash. Rev. Code ch. 69.51A could have, but did not, define a qualifying doctor as one with a valid license from any state. Instead, it defined qualifying doctors as those licensed under Washington law.


Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Manufacture > General Overview
Criminal Law & Procedure > Criminal Offenses > Controlled Substances > Possession > General Overview
Criminal Law & Procedure > Defenses > General Overview
Criminal Law & Procedure > Defenses > Necessity
HN9Go to the description of this Headnote. Among other things, qualifying patients for the compassionate use defense against prosecution for the use of marijuana must be patients of qualifying doctors. Wash. Rev. Code § 69.51A.010(3).


Civil Procedure > Appeals > Records on Appeal
HN10Go to the description of this Headnote. It is an appellant's responsibility as a petitioner to provide an adequate record for appellate review of her claims.


Hide Headnotes / Syllabus


SUMMARY: Nature of Action: Prosecution for unlawful manufacture of marijuana and unlawful possession of marijuana. At the time of the alleged offenses, the defendant possessed a medical marijuana card issued by a physician licensed in California. Before trial, the defendant also obtained a medical marijuana authorization from an Oregon physician.

Superior Court: The Superior Court for Skamania County, No. 03-1-00050-5, E. Thompson Reynolds, J., entered a judgment of guilty on January 12, 2004.

Court of Appeals: The court affirmed the judgment at 128 Wn. App. 388, 115 P.3d 381 (2005), holding that only those physicians validly licensed in Washington may authorize medical marijuana use in Washington and that the trial court properly excluded as irrelevant and unduly prejudicial the defendant's out-of-state medical marijuana authorizations.

Supreme Court: Holding that the defendant was not a qualifying patient because she was not authorized to use marijuana by a physician licensed in this state and that the record was inadequate to consider a full faith and credit argument, the court affirms the decision of the Court of Appeals.


HEADNOTES
WASHINGTON OFFICIAL REPORTS HEADNOTES


WA[1][1] Appeal -- Review -- Issues of Law -- Standard of Review Questions of law are reviewed de novo.

WA[2][2] Controlled Substances -- Marijuana -- Medical Use Act -- Affirmative Defense -- Qualifying Patient -- Necessity Under RCW 69.51A.040, only "qualifying patients" within the meaning of RCW 69.51A.010(3) are entitled to the compassionate use defense to a prosecution for a marijuana related crime.

WA[3][3] Controlled Substances -- Marijuana -- Medical Use Act -- Affirmative Defense -- Burden of Proof -- In General The compassionate use defense to a prosecution for a marijuana related crime under chapter 69.51A RCW is an affirmative defense that places on the defendant the burden of offering sufficient evidence to satisfy the statutory requirements, including at least some evidence that he or she is a qualified patient of a qualified physician. Failing such proof, the defense fails.

WA[4][4] Controlled Substances -- Marijuana -- Medical Use Act -- Affirmative Defense -- Qualifying Patient -- Patient of Licensed Physician -- Licensed in Washington -- Necessity. A person does not qualify for the compassionate use defense to a prosecution for a marijuana related crime under chapter 69.51A RCW if the person is not a patient of a physician licensed under Washington State law.

WA[5][5] Appeal -- Review -- Constitutional Issues -- Record on Appeal -- Duty To Complete A party seeking appellate review of a constitutional claim has the burden of providing a record sufficient to permit review of the issues raised.

WA[6][6] Appeal -- Record on Appeal -- Insufficiency -- Effect An appellate court may decline to consider a claim or argument if it has not been provided with an adequate record for review.

COUNSEL: [***1] David Schultz, for petitioner.

Peter S. Banks, Prosecuting Attorney, for respondent.

Suzanne Lee Elliott on behalf of Washington Association of Criminal Defense Lawyers, amicus curiae.

Andrew W. Ko and Alison C. Holcomb, on behalf of American Civil Liberties Union of Washington, amicus curiae.

Pamela B. Loginsky and Seth A. Fine on behalf of Washington Association of Prosecuting Attorneys, amicus curiae.

JUDGES: AUTHOR: Justice Tom Chambers. WE CONCUR: Chief Justice Gerry L. Alexander, Justice Charles W. Johnson, Justice Susan Owens, Justice Mary E. Fairhurst, Justice Bobbe J. Bridge. Justice James M. Johnson dissents by separate opinion. Justice Barbara A. Madsen and Justice Richard B. Sanders concur with the dissent.

OPINION BY: CHAMBERS , J.

OPINION

En Banc. [*685] P1 [**560] Chambers, J. -- In 1998, Washington voters passed Initiative 692 (I-692). I-692 created a compassionate use defense against prosecution for marijuana related crimes, but only for "qualifying patients." Ch. 69.51A RCW. Sharon Lee Tracy challenges her convictions for manufacturing and possessing marijuana on the theory that she was improperly prevented from presenting this defense. We conclude that she did not establish she was a "qualifying patient" entitled to present a compassionate use defense under RCW 69.51A.010(3). We also conclude that the absence of the California medical marijuana card from the record prevents us from reaching her full faith and credit arguments. We affirm [***2] the Court of Appeals.

FACTS

P2 After interviewing Tracy's stepdaughter Aimee Tracy, while investigating a domestic violence complaint, Detective [*686] Brett Robison accompanied Aimee to the Tracy home to collect some clothes, apparently to facilitate Aimee staying elsewhere. While at the Tracy home, Detective Robison smelled marijuana. Aimee disclosed that her stepmother used it regularly.

P3 Detective Robison returned with a search warrant. About 40 grams of marijuana, four marijuana plants, and a California medical marijuana card were found and confiscated. Tracy admitted the marijuana was hers and stated that no one else in the house used it. About two months after this, Tracy saw an Oregon doctor who agreed with her California physician that she would benefit from the use of medical marijuana.

P4 After being charged with possession and manufacture of marijuana, Tracy informed the prosecution that she intended to present a compassionate use defense based on both the California medical marijuana card she had in her possession on the day her home was searched and on the subsequent authorization she received from the Oregon doctor. 1 A hearing was conducted to determine whether she possessed [***3] "valid documentation" under RCW 69.51A.010(5)(a), providing an evidentiary basis for such a defense. There is no dispute that Tracy possessed a valid California medical marijuana card on the date of her arrest, May 7, 2003. It is also undisputed that no physician who was formally licensed to practice medicine in Washington State had authorized Tracy to use marijuana.

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1 We note that the trial court entered a finding that the authorization received by the Oregon doctor, David L. Dodge, met Washington's requirements. His reasoning is not on the record. See Clerk's Papers at 36. According to the Department of Health website, no David L. Dodge is licensed to practice medicine in Washington State. See Wash. State Dep't of Health, Med. Quality Assurance Comm'n, https://www.fortress.wa.gov/doh/hpqa...ion/Credential Search/ profile.asp (search for David Dodge) (last visited Nov. 16, 2006). Tracy does not argue that her California doctor was formally licensed in Washington.

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[***4] P5 The case proceeded to a bench trial on stipulated facts. The trial court concluded [**561] that the evidence Tracy presented did not meet the statutory prerequisites for asserting a compassionate use defense, effectively preventing [*687] her from arguing her theory of the case. Subsequently, Tracy was convicted of possession and manufacture of marijuana. The Court of Appeals affirmed. State v. Tracy, 128 Wn. App. 388, 115 P.3d 381 (2005). We accepted review. State v. Tracy, noted at 156 Wn.2d 1030, 133 P.3d 474 (2006).

ANALYSIS

WA[1][1] HN1Go to this Headnote in the case. P6 Only questions of law are before us. Our review is de novo. Dep't of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9, 43 P.3d 4 (2002). 2

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2 The State has made a motion to strike exhibits and arguments from an amici brief filed by the Washington Association of Criminal Defense Attorneys and American Civil Liberties Union. The materials in question relate to amici's argument that prosecutors and courts have interpreted the Washington State Medical Use of Marijuana Act, chapter 69.51A, so over technically as to effectively deny those suffering from serious illnesses (such as AIDS (acquired immune deficiency syndrome), cancer, and chronic pain) the intended benefits of the act. Amici may be correct that the benefits of the act have not been as great as people intended, but we only address the question before us, and many of amici's arguments are best made to the legislature. Since we do not reach the arguments presented, the motion is denied as moot.

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[***5] 1. Qualifying Patients

P7 We surmise that Tracy's life has not been an easy one. The Skamania detective's visit to her home was part of a child welfare investigation prompted when Tracy's stepdaughter reported that her father had become enraged and smashed a chair. Tracy herself was staying at a domestic violence shelter at the time of the detective's initial visit with Aimee.

P8 Tracy has also struggled with chronic pain since the 1970s. The record suggests that her medical conditions include a hip deformity, migraine headaches, a series of eight corrective surgeries following a ruptured colon, and bowel conditions. As a result of these persistent health problems, Tracy has been disabled since 1998. Over the years, Tracy has been prescribed a number of different drugs, including Vicodin and Soma. While visiting family [*688] in California, Tracy obtained a California doctor's authorization to possess marijuana for medical purposes.

P9 Tracy may have been exactly the kind of patient the voters of this state had in mind when they enacted the medical marijuana initiative, I-692, in 1999. See ch. 69.51A RCW, the "Washington State Medical Use of Marijuana Act." Under the act:

HN2Go to this Headnote in the case.The people find that humanitarian [***6] compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision, based upon their physician's professional medical judgment and discretion.

RCW 69.51A.005.

WA[2][2] WA[3][3] WA[4][4] P10 But HN3Go to this Headnote in the case.only qualifying patients are entitled to use the defense. This limits it to:

Qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana.

Id. (emphasis added). The act defines "qualifying patient" as one who:

HN4Go to this Headnote in the case.(a) Is a patient of a physician licensed under chapter 18.71 or 18.57 RCW;

(b) Has been diagnosed by that physician as having a terminal or debilitating medical condition;

(c) Is a resident of the state of Washington at the time of such diagnosis;

(D) Has been advised by that physician about the risks and benefits of the medical use of marijuana; and

(e) Has been advised by that physician that they may benefit from the medical use of marijuana.

RCW 69.51A.010(3) [***7] (emphasis added). It appears that the trial judge prevented Tracy from bringing the defense on the ground that she was not a patient of a "qualified physician" because her California physician was not licensed [*689] under chapter 18.71 or 18.57 RCW. 3 [**562] It also appears that the trial judge excluded the authorization received from the Oregon doctor on the ground that it was not received until after the fact. 4


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3 Chapter 18.57 RCW concerns osteopaths and is not before us.4 We note that this likely accords with the statutory scheme. A defendant seeking to present compassionate use as an affirmative defense must present valid documentation to any officer who questions the presence of marijuana. RCW 69.51A.040(2)(c). However, we need not reach whether the trial judge correctly excluded the Oregon doctor's authorization on review on those grounds, given our disposition of the central issue in the case.

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P11HN5Go to this Headnote in the case. A defendant asserting an affirmative defense, such as the compassionate use [***8] defense, bears the burden of offering sufficient evidence to support that defense. State v. Janes, 121 Wn.2d 220, 236-37, 850 P.2d 495 (1993). Tracy bore the burden of producing at least some evidence that she was a qualified patient of a qualified physician before she could assert the compassionate use defense. Cf. Janes, 121 Wn.2d at 237; State v. McCullum, 98 Wn.2d 484, 488, 656 P.2d 1064 (1983).

P12 We turn to the meaning of "qualified physician" under the statute. HN6Go to this Headnote in the case.Chapter 18.71 RCW establishes the statutory system which regulates physicians. Relevantly, it does two things. It licenses physicians to practice medicine in Washington, and it authorizes licensed physicians from other jurisdictions to practice medicine in Washington so long as they do not open an office, establish a place to meet with patients, or receive calls within the state. RCW 18.71.021, .030(6).

P13 HN7Go to this Headnote in the case.Becoming a licensed doctor in this state is a formal affair. Requirements include successful completion of an examination administered by the Washington Medical Quality Assurance Commission or passing an exam in another state and completing [***9] specific procedural requirements. RCW 18.71.070, .090, .095. Tracy's California and Oregon doctors are not formally "licensed" in Washington under chapter 18.71 RCW. The State contends that our inquiry can end here. Since Tracy was not a patient of a qualifying physician, it argues, she is not entitled to present the defense.

[*690] P14 Tracy argues that the courts below were not sufficiently expansive in interpreting the voters' intent. She reasons that since out-of-state physicians have licenses recognized under chapter 18.71 RCW, we should treat the physicians as being licensed under chapter 18.71 RCW. Cf. RCW 18.71.021 ("No person may practice . . . medicine without first having a valid license to do so.") (emphasis added)) (recognizing validity of licenses from other states); RCW 18.71.030(6) ("Nothing in this chapter shall be construed . . . to prohibit . . . [t]he practice of medicine by any practitioner licensed by another state . . . ." (emphasis added)) (explicitly recognizing that other states can license).

P15 But the exception relied upon by Tracy HN8Go to this Headnote in the case.does not include all out-of-state [***10] physicians for every purpose; it merely permits out-of-state physicians temporarily within the state, but without an office or similar professional connections, to practice their calling while in Washington. RCW 18.71.030(6). The initiative could have, but did not, define a qualifying doctor as one with a valid license from any state. Instead, it defined qualifying doctors as those licensed under Washington law. This was a deliberate choice, and Tracy gives us no statutory reason to find that the language does not mean what it appears to say.

P16 Only qualifying patients are entitled to the defense under the act. RCW 69.51A.005. HN9Go to this Headnote in the case.Among other things, qualifying patients must be patients of qualifying doctors. RCW 69.51A.010(3). Since Tracy was not a patient of a qualifying doctor, she is not entitled to assert the defense. 5

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5 We thank our dissenting colleague for his review of the history and purpose of initiatives. He is certainly correct that the stirring policy statement for I-692 did not tell the reader which physicians could authorize their patients to use marijuana. But the initiative did. RCW 69.51A.010(3)(a).

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[***11] 2. Record

P17 We turn now to whether Tracy has provided us with an adequate record to address her argument that the full faith and credit clause of the United States Constitution [**563] requires that she be allowed to present her compassionate [*691] use defense. She did not include a copy of her California medical marijuana card. While the omission is not explained, it appears likely that the card was never returned to her after the police seized it at the time of the original search. Since it was not admitted into evidence, even under some sort of reservation, it was not made part of the record at trial.

WA[5][5] WA[6][6] P18 While we are not without sympathy, HN10Go to this Headnote in the case.it is Tracy's responsibility as a petitioner to provide an adequate record for appellate review of her claims. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988). The appeals court below declined to hear her full faith and credit claim on the ground that the California medical marijuana card was not included in the record. In addition to not knowing what the card said or by whom it was signed or what limitations it may have, we note that a "qualifying patient" may be broader under California law.

P19 We decline to reach the full [***12] faith and credit claim based upon the record before us. 6

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6 In addition to an inadequate record, Tracy fails to develop the law relevant to her full faith and credit claim. Although amici attempt to do so, this issue is best left for another time. This issue may be best raised by a true visitor. A true visitor would not be either a former resident of another state who is now a Washington resident nor a Washington resident who has obtained a foreign medical marijuana card, but the resident of another state who is temporarily traveling within Washington and relying on a medical marijuana authorization from her state of residence. We note that the Supreme Court of Hawaii recently touched upon this very issue in State v. Adler, 108 Haw. 169, 118 P.3d 652 (2005) and found it unnecessary to analyze the full faith and credit issue.

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CONCLUSION

P20 In I-692, Washington voters created a compassionate use defense against marijuana charges. The voters also limited that defense to qualifying patients. Among [***13] other things, a qualifying patient must be a patient of a qualifying doctor. RCW 69.51A.010(3). Tracy's evidence did not establish she was, and therefore the trial court did not err by excluding it. We find the record inadequate to reach her full faith and credit claim.

[*692] P21 We affirm Sharon Lee Tracy's convictions.

Alexander, C.J., and C. Johnson, Bridge, Owens, and Fairhurst, Jj., concur.


DISSENT BY: James M. Johnson

DISSENT

M. Johnson, J. (dissenting) -- The Official Ballot Title submitted to the people for Initiative 692 (I-692) in 1998 asked: "Shall the medical use of marijuana for certain terminal or debilitating conditions be permitted, and physicians authorized to advise patients about medical use of marijuana?" State of Washington Voters Pamphlet, General Election 8 (Nov. 3, 1998). By overwhelming vote, the people of Washington enacted the law. Because today's majority decision deprives Sharon Tracy of the protections afforded by the people through this legislation, and allows her to be convicted of a crime for exercising that privilege, [***14] I dissent.

Article II, section 1 of the Washington Constitution provides the people the power to adopt such laws:

The legislative authority of the state of Washington shall be vested in the legislature . . . but the people reserve to themselves the power to propose bills, laws, and to enact or reject the same at the polls, independent of the legislature . . . .

. . . The first power reserved by the people is the initiative. . . .

P24Washington Constitution article II, section 1 was amended to provide that power early in the 20th century when demand grew for direct participation in lawmaking. In 1912, the people ratified the seventh amendment to article II, section 1, which "reserved" to the people the powers of initiative and referendum. 7 Fritz v. Gorton, 83 Wn.2d 275, 281, 517 P.2d 911 (1974). Several [**564] subsequent amendments clarified the mechanisms by which these powers were exercised. Most important for this case is the thirty-sixth amendment, a constitutional mandate for a voters pamphlet, which the secretary of state must distribute to each residence. Each [*693] pamphlet must include the full initiative and a section describing [***15] the legal effect of the proposed measure, written by the state attorney general, as well as arguments for and against by proponents and opponents. As a consequence, we have informed voters.

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7 The same year, voters ratified the eighth amendment (approved Nov. 1912) to Washington Constitution article I, section 33, allowing recall of all elective public officers, except judges.

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P25 This court recently reiterated our starting point for considering initiatives when dismissing a pre-election challenge to one proposed initiative: "the right of initiative is nearly as old as our constitution itself, deeply ingrained in our state's history, and widely revered as a powerful check and balance on the other branches of government. Accordingly, this potent vestige of our progressive era past must be vigilantly protected by our courts." Coppernoll v. Reed, 155 Wn.2d 290, 296-97, 119 P.3d 318 (2005) (citing In re Estate of Thompson, 103 Wn.2d 292, 294-95, 692 P.2d 807 (1984)).

P26 Pursuant to [***16] their initiative power, the people of Washington passed I-692, approving the use of marijuana by qualifying patients for enumerated medical purposes. State v. Butler, 126 Wn. App. 741, 748, 109 P.3d 493 (2005). The initiative has since been codified at chapter 69.51A RCW. The official ballot title communicated state permission for medical marijuana, with doctor advice. The constitutionally-required voters pamphlet also included I-692's statement of purpose: to allow persons suffering from specified medical conditions to use marijuana as part of their physician-directed treatment regimens without running the risk of prosecution for a drug crime. The voters pamphlet contained the following statement of purpose and intent:

The People of Washington state find that some patients with terminal or debilitating illnesses, under their physician's care, may benefit from the medical use of marijuana. . . .

The People find that humanitarian compassion necessitates that the decision to authorize the medical use of marijuana by patients with terminal or debilitating illnesses is a personal, individual decision, based upon their physician's professional medical judgment and [***17] discretion.

[*694] Therefore, The people of the state of Washington intend that:

Qualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, would benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana . . . .

Voters Pamphlet, supra, at 17 (codified at RCW 69.51A.005). Note that nowhere in this statement of policy was "physician" defined or restricted to those licensed by this state.

P27 I-692 was passed by a margin of 59 percent to 41 percent of the vote. 8 The present case turns on whether, in enacting I-692, the people of Washington provided protection from prosecution for Ms. Tracy and others in her circumstance. It is hard to conclude to the contrary, as does the majority.

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8 Wash. Sec'y of State, Previous Election, https://www.secstate.wa.gov/elections/ previous_elections.aspx (follow "Election Results Search" hyperlink; then search "Ballot Measures" and "1998 General").

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[***18] Factual Background

P28 In 2002, while living part time in California to care for her terminally ill mother, Ms. Tracy visited a California physician regarding her own health. State v. Tracy, 128 Wn. App. 388, 391, 115 P.3d 381 (2005). Ms. Tracy sought treatment for chronic pain, which she has suffered for decades as a result of a hip deformity, migraine headaches, and a series of corrective surgeries. Majority at 687. To relieve her pain and lessen her dependence on addictive prescription painkillers, Ms. Tracy's California-licensed physician provided written authorization to possess and use marijuana in accordance with that state's comparable law. Cal. Health & Safety Code §§ 11362.5, 11362.7 [**565] (Dering); Tracy, 128 Wn. App. at 391. 9

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9 I-692 applies to persons suffering from a variety of "debilitating illnesses," including "some forms of intractable pain." RCW 69.51A.005.

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[*695] P29 After receiving this doctor's authorization, [***19] Ms. Tracy purchased and used marijuana for medical purposes during the time she spent in California with her mother. Tracy, 128 Wn. App. at 391. She also continued to use this marijuana when she returned to her home in Skamania County, Washington. Ms. Tracy never purchased or sold marijuana in Washington. Id. However, after returning to Washington on a more permanent basis, Ms. Tracy did keep four marijuana plants at her home to grow marijuana for personal use. Id.

P30 In March 2003, while visiting Ms. Tracy's home for an unrelated purpose, Detective Brett Robison became aware of Ms. Tracy's marijuana use. Id. at 390-91. When questioned, Ms. Tracy readily admitted to possessing and using marijuana for medical purposes. Id. She also provided the police with her California medical marijuana card. Majority at 686. Ms. Tracy explained that she had not yet obtained a Washington medical marijuana card because she had not found a Washington doctor who "'believed in prescribing medical marijuana.'" Tracy, 128 Wn. App. at 391 (quoting clerk's papers).

P31 Ultimately, Ms. Tracy was charged with one count of manufacturing marijuana and one [***20] count of possessing more than 40 grams of marijuana. Id. at 390. The trial court granted the State's motion in limine to bar Ms. Tracy from raising a medical marijuana defense under I-692, over Ms. Tracy's objection. Id. at 392. Ms. Tracy was then convicted on both counts, following a bench trial on stipulated facts. Id. at 393. Division Two of the Court of Appeals affirmed this conviction, as does a majority of this court.

P32 The majority, like the Court of Appeals and the trial court, concludes that Ms. Tracy is not entitled to raise an affirmative defense pursuant to I-692 because she is not a "'qualifying patient.'" Majority at 685. In particular, the majority finds that Ms. Tracy does not come within the definition of "qualifying patient" because she has not been treated by "a physician licensed under chapter 18.71 or [*696] 18.57 10 RCW." RCW 69.51A.010(3)(a) (emphasis added); majority at 689-90; Tracy, 128 Wn. App. at 396-97.

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10 Chapter 18.57 RCW covers osteopathic physicians and surgeons and is not relevant for purposes of this case.

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[***21] P33 The majority adopts a strict reading of the phrase "licensed under chapter 18.71 RCW." Namely, the majority concludes that a patient only qualifies if treated by a physician who possesses a Washington state medical license. Majority at 689-90. In adopting this definition, the court rejects Ms. Tracy's argument that the term "licensed under chapter 18.71" should be interpreted broadly, and as understood by the voters, to include doctors with Washington state licenses and also physicians validly licensed to practice medicine by other states and thus exempted from the licensing requirements of chapter 18.71 RCW. See RCW 18.71.030(6). 11

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11 RCW 18.71.030 provides, in relevant part:

Nothing in this chapter shall be construed to apply to or interfere in any way with the practice of religion or any kind of treatment by prayer; nor shall anything in this chapter be construed to prohibit:

. . . .

(6) The practice of medicine by any practitioner licensed by another state or territory in which he or she resides, provided that such practitioner shall not open an office or appoint a place of meeting patients or receiving calls within this state . . . .


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[***22] P34 Essentially, Ms. Tracy proposes that "licensed" be interpreted by this court as the voters understood it, and in accordance with its commonly accepted definition, to mean having permission or authority to act. 12 Under her reading of the statute, Ms. Tracy's physician in California would be considered "licensed," assuming he acted in compliance with RCW 18.71.030(6).

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12 Webster's Third New International Dictionary 1304 (2002).

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P35 Ms. Tracy correctly points out that initiatives susceptible to reasonable alternative [**566] interpretations, such as I-692, are to be construed in order to effectuate the intent of the electorate. State ex rel. Public Disclosure Comm'n v. Wash. Educ. Ass'n, 156 Wn.2d 543, 554, 130 P.3d 352 (2006). Moreover, remedial statutes are to be construed liberally to [*697] further their remedial purposes. State v. Grant, 89 Wn.2d 678, 685, 575 P.2d 210 (1978).

P36 Because initiatives are not accompanied by the usual sources of legislative history, [***23] such as committee files and bill reports, courts look to the constitutionally-required voters pamphlet to determine the meaning and purposes of the measures. Wash. Educ. Ass'n, 156 Wn.2d at 554; Wash. State Dep't of Revenue v. Hoppe, 82 Wn.2d 549, 552, 512 P.2d 1094 (1973). As noted above, the ballot title of I-692 clearly covers Ms. Tracy and others like her. The purpose language contained in the voters pamphlet for I-692 (see supra) also includes broad statements in favor of providing access to medical marijuana for patients suffering from certain terminal or debilitating illnesses.

P37 Finally, the description of the legal effect of I-692, written by the attorney general for the voters pamphlet, describes qualifying patients as those treated by "physicians" or "licensed physicians"--it does not restrict this legislation to physicians with Washington medical licenses. Accordingly, the phrase "licensed under chapter 18.71" should be given a reasonable interpretation, which protects all patients whom the people of Washington intended to protect when they adopted the law.

P38 Today, as when I-692 was enacted, Washington law permits out-of-state physicians, [***24] who are licensed in their home states, to treat patients who are residents of the state of Washington without obtaining a Washington medical license. See RCW 18.71.030(6); see also RCW 69.41.030 (recognizing legend drug prescriptions from physicians "licensed . . . in any state of the United States"). The treatment of patients includes the administration of drugs. RCW 18.71.011(2). Had Ms. Tracy's California physician given her a prescription for Vicodin, 13 one of the addictive pain medications which she was trying to avoid with the help of small amounts of marijuana, that prescription would be [*698] legal, and she could have filled the prescription at any Washington pharmacy. See RCW 69.50.101(w)(3) RCW 69.50.308(b).

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13 Tracy, 128 Wn. App. at 391 n.4 ("Vicodin is a narcotic similar to codeine." (citing Physicians' Desk Reference 525 (58th ed. 2004))).

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[***25] P39 The majority offers no persuasive rationale for holding that the people of Washington understood, let alone intended, that an otherwise qualified patient would be excluded from protection by I-692 simply because the patient's treating physician was licensed in California or Oregon rather than Washington. Thus, it contradicts established canons of statutory construction to interpret I-692 in the manner advocated by the majority. The majority also violates special canons for initiative interpretation. "In determining intent from the language of the statute, the court focuses on the language as the average informed voter voting on the initiative would read it." Amalgamated Transit Union Local 587 v. State, 142 Wn.2d 183, 205, 11 P.3d 762 (2000).

P40 The majority may believe that permitting out-of-state physicians to prescribe marijuana to otherwise qualified patients under Washington law is an unwise policy (or that medical marijuana is a bad policy). However, "'[i]t is not the prerogative nor the function of the judiciary to substitute what they may deem to be their better judgment for that of the electorate in enacting initiatives . . . unless the errors in judgment [***26] clearly contravene state or federal constitutional provisions.'" Id. 206 (second alteration in original) (quoting Fritz, 83 Wn.2d at 287). No such constitutional violation is threatened by Ms. Tracy's common sense interpretation of I-692.

P41 The majority concedes that "Tracy may have been exactly the kind of patient the voters of this state had in mind when they enacted the medical marijuana initiative, I-692, in 1999." Majority at 688. Because I-692 may be reasonably interpreted to effectuate [**567] the people's intent to protect people like Ms. Tracy and because I believe it is this court's duty to respect and protect the people's constitutional [*699] right to make such decisions through the initiative process, I respectfully dissent.

Madsen and Sanders, JJ., concur with J.M. Johnson, J.

October 20, 2009, Filed

NOTICE: RULES OF THE WASHINGTON COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE WASHINGTON RULES OF COURT.

SUBSEQUENT HISTORY: Reported at Worthington v. Wash. State Patrol, 2009 Wash. App. LEXIS 2717 (Wash. Ct. App., Oct. 20, 2009)

PRIOR HISTORY: [*1]
Appeal from Thurston Superior Court. Docket No: 08-2-01410-7. Judgment or order under review. Date filed: December 30, 2008. Judge signing: Honorable H Christopher Wickham.

CORE TERMS: task force, summary judgment, reconsideration, minutes, specific facts, declaration, narcotics, detective, material fact, public records, genuine issue, responsive, written records, search warrant, assigned, manuals, state agencies, discovered evidence, reasonable diligence, moving party, newly, rebut, computer system, board meeting, participated, requesting, stored, order granting, nonmoving party, abuse of discretion


COUNSEL: John Worthington, Appellant, Appearing Pro se, Renton, WA.

Counsel for Respondent(s): Shannon Elizabeth Inglis, Attorney General's Ofc/Criminal Justice, Seattle, WA; Shelley Anne Williams, Attorney General Office, Seattle, WA.

JUDGES: Authored by Joel Penoyar. Concurring: Christine Quinn-Brintnall, J. Robin Hunt.

OPINION BY: Joel Penoyar

OPINION

¶1 Penoyar, A.C.J. â?? John Worthington appeals the trial court's order granting summary judgment in favor of Washington State Patrol (WSP). Worthington sued WSP under the Public Records Act (PRA), chapter 42.56 RCW, alleging that WSP failed to provide him with public records after a narcotics task force searched his residence. WSP argues that it has no records that are responsive to Worthington's request. We affirm.
FACTS

¶2 On January 12, 2007, Detective Roy Alloway, a Bremerton police officer and Kitsap County deputy sheriff assigned to the West Sound Narcotics Enforcement Team (WestNET), obtained a warrant to search Worthington's home for marijuana, drug paraphernalia, and other specified items. Alloway has [*2] never worked for WSP.

¶3 According to Worthington, WSP Officer Fred Bjornberg participated in the search, identified himself as a United States Drug Enforcement Administration (DEA) agent, confiscated Worthington's medical marijuana plants, and referred the case to federal court.

¶4 On January 22, 2008, Worthington submitted a PRA request to WSP. Worthington's request states:

1. I am requesting the written records of WSP Officer Fred Bjornberg regarding a knock and talk procedure, and follow up search warrant that was executed at my address at 4500 se 2nd Pl Renton Wa.98059 [sic] on January 12[,] 2007.

2. I am asking for all materials given to [WestNET] Detective Roy Alloway that was used [sic] to get a search warrant by telephone, from Kitsap County Judge Theodore Spearman for my residence on January 12[,] 2007.

3. I am also requesting any copies of Medical records that were seized at my house on January 12[,] 2007.

Clerk's Papers (CP) at 31.

¶5 On February 15, 2008, WSP's Public Records Manager Gretchen Dolan informed Worthington that WSP had no responsive records. Dolan advised Worthington to contact the United States Department of Justice (DOJ), the agency that oversees the DEA, to obtain records [*3] related to the search. On June 11, 2008, Worthington filed suit against WSP for withholding responsive records.

¶6 On November 6, 2008, WSP moved for summary judgment. WSP submitted supporting declarations by (1) Bjornberg, a retired detective sergeant in the narcotics section of WSP's Investigative Assistance Division (IAD); (2) Timothy P. Braniff, an IAD captain; (3) Marc Lamoreaux, a captain in WSP's Human Resources Division; (4) Dolan; and (5) Richard Wiley, an IAD lieutenant. IAD provides detectives, technical support, and training to WSP and other law enforcement agencies.

¶7 Bjornberg stated in his declaration that he was assigned to, and co-supervised, a DEA task force in January 2007. The record refers to the DEA task force as both the Tacoma Regional Task Force and the Tahoma Narcotics Enforcement Team (TNET). Bjornberg stated:

All reports and other records that are generated as part of the task force are created and stored on the DEA's computer system. Task force records are never created or stored on an officer's home agency computer system, and are not provided to the officer's home agency.

CP at 15. Bjornberg did not recall generating any records related to the investigation of [*4] Worthington but stated that the DEA would have any records that he created.

¶8 In his declaration, Braniff described WSP's participation in the Tacoma Regional Task Force and WestNET. DEA is the lead agency for the Tacoma Regional Task Force and maintains the task force's records. Kitsap County Sheriff's Office is the lead agency for WestNET and maintains WestNET's records. According to Wiley, task forces share general intelligence information about narcotics enforcement, drug trends, trafficking, and methods. However, task forces generally do not share police reports from specific cases with other agencies and do not share information or police reports from every case in which they participate.

¶9 In response to WSP's summary judgment motion, Worthington submitted a personal declaration and 23 exhibits. The trial court granted WSP's motion for summary judgment on December 5, 2008.

¶10 On or about December 11, 2008, Worthington filed a motion for reconsideration. Worthington submitted several new exhibits, including redacted Tacoma Regional Task Force Executive Board meeting minutes and other records that he obtained from state agencies, including WSP, through PRA requests. The minutes demonstrate [*5] that WSP employees, including Bjornberg, Wiley, and Braniff, were present at the Executive Board's meetings. The trial court denied Worthington's motion after a hearing on December 30, 2008. The trial court stated:

I am not persuaded that there is, in the language of the rule, newly discovered evidence material for the party making the application which he could not with reasonable diligence have discovered if produced at the trial. I am not persuaded that there is any of that that would permit the Court to reconsider its decision, and I am still not persuaded, despite participation in this task force, that the State Patrol has the records that he is requesting.

Report of Proceedings (RP) (Dec. 30, 2008) at 9-10.

¶11 Worthington now appeals the trial court's ruling granting WSP's summary judgment motion and denying his motion for reconsideration.
ANALYSIS

¶12 The PRA requires state agencies to make all public records available for public inspection and copying upon request unless the record falls within a specific exemption. RCW 42.56.070(1). We liberally construe the PRA's disclosure provisions and narrowly construe the PRA's exemptions. See Lindeman v. Kelso Sch. Dist. No. 458, 162 Wn.2d 196, 201, 172 P.3d 329 (2007). [*6] An agency does not have a duty to create or produce a record that does not exist. Sperr v. City of Spokane, 123 Wn. App. 132, 136-37, 96 P.3d 1012 (2004) (citing Smith v. Okanogan County., 100 Wn. App. 7, 13-14, 994 P.2d 857 (2000)).
I. Summary Judgment
A. Standard of Review

¶13 We review summary judgment orders de novo. Oltman v. Holland Am. Line USA, Inc., 163 Wn.2d 236, 243, 178 P.3d 981 (2008). Summary judgment is appropriate only if â??the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.â?� CR 56(c). We consider facts and reasonable inferences in the light most favorable to the nonmoving party. McNabb v. Dep't of Corrs., 163 Wn.2d 393, 397, 180 P.3d 1257 (2008).

¶14 Affidavits submitted in support of summary judgment motions â??shall set forth such facts as would be admissible in evidence.â?� CR 56(e). Affidavits must be based on the affiant's personal knowledge. CR 56(e); Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359, 753 P.2d 517 (1988). Mere allegations, argumentative assertions, conclusory [*7] statements and speculation do not raise issues of material fact that preclude a grant of summary judgment. See Grimwood, 110 Wn.2d at 360; Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).

¶15 Once the moving party meets its burden to show that there is no genuine issue as to any material fact, the nonmoving party must set forth specific facts rebutting the moving party's contentions and disclosing that a genuine issue as to a material fact exists. Strong v. Terrell, 147 Wn. App. 376, 384, 195 P.3d 977 (2008) (citing Seven Gables Corp., 106 Wn.2d at 13) review denied 165 Wn.2d 1051 (2009).
B. WSP Officer Fred Bjornberg's Records

¶16 Worthington requested â??the written records of WSP Officer Fred Bjornbergâ?� regarding the â??knock and talk procedureâ?� and subsequent search of Worthington's house on January 12, 2007. CP at 31. At the time of the search, Bjornberg co-supervised the Tacoma Regional Task Force, a DEA task force. Bjornberg did not recall creating any records, but conceded that he might have done so. He indicated that the DEA would have any records responsive to Worthington's request since DEA task force records are â??never created or stored on an officer's home [*8] agency computer system, and are not provided to the officer's home agency.â?� CP at 15.

¶17 Bjornberg's sworn statements clearly show that WSP does not possess the requested records. The burden shifted to Worthington to set forth specific facts that Bjornberg generated written records that are in WSP's possession. In this summary judgment context, we assume that Bjornberg created written records related to the search of Worthington's home since he conceded in his affidavit that he may have created such records. See McNabb, 163 Wn.2d at 397. However, a thorough review of Worthington's declaration and exhibits reveals that he has presented no specific facts that rebut WSP's assertion that it does not possess Bjornberg's records. 1 Four pages in Worthington's 23 exhibits mention Bjornberg, but these records merely demonstrate that Bjornberg worked as a WSP employee in 2007, a fact that Bjornberg also revealed in his affidavit.

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1 Despite the fact that Worthington frequently fails to provide clear references to relevant parts of the record in his brief as RAP 10.3(a)(6) requires, we have thoroughly reviewed his exhibits.

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¶18 In arguing the summary judgment issue, Worthington also relies on exhibits submitted [*9] in support of his motion for reconsiderationâ??especially the Executive Board Meeting Minutes of the Tacoma Regional Task Force and two WSP policy and procedure manualsâ??to assert that WSP has Bjornberg's records. These exhibits were not before the trial court on the summary judgment motion and are therefore irrelevant to our summary judgment analysis.
C. WestNET Detective Roy Alloway's Records

¶19 Worthington also asked WSP to provide â??all materials given to [WestNET] Detective Roy Allowayâ?� in order to obtain a search warrant for his residence. CP at 31. As of January 12, 2007, Alloway was a Bremerton police officer and Kitsap County deputy sheriff assigned to WestNET, a narcotics task force in which WSP also participated. WSP offered evidence that it lacked responsive records because Alloway had never been a WSP employee and the Kitsap County Sheriff's Office maintains WestNET records. This evidence was sufficient to meet WSP's initial burden of production on its summary judgment motion.

¶20 Worthington again provides no specific facts to rebut WSP's evidence. He does not dispute the fact that Alloway works for the city of Bremerton and Kitsap County. Nor does he dispute the fact that the Kitsap [*10] County Sheriff's Office maintains all WestNET records. Alloway's complaint for search warrant, which Worthington submitted as an exhibit in opposition to WSP's summary judgment motion, does not reference any materials that WSP provided to Alloway. Worthington never articulates why WSP would possess these records other than the fact that WSP participated in the same task force in which Alloway served as a detective. This is insufficient to create a genuine issue of material fact.
D. Worthington's Medical Records

¶21 Worthington also asked WSP for â??any copies of Medical records that were seized at my house on January 12[,] 2007.â?� CP at 31. As noted above, the declarations that WSP submitted indicate that all records from individual investigations by the Tacoma Regional Task Force and WestNET are maintained by other agencies. Worthington cites no specific facts to contradict WSP's evidence, and there is no contradictory evidence in the record.
E. Worthington's Other Contentions

¶22 Worthington makes numerous additional arguments to support his contention that WSP withheld the specified records. He argues that WSP must have these records because he was able to obtain TNET administrative records, board [*11] meeting minutes, and a list of TNET arrests from WSP in subsequent PRA requests. He notes that a DEA agent must give a monthly report to TNET's Executive Boardâ??of which WSP is a memberâ??about TNET's functions, accomplishments and problems. He recounts WSP's reporting and records retention policies in thorough detail.

¶23 None of Worthington's arguments create a genuine issue of material fact that WSP possesses the records that he requests. Worthington's observation that WSP has some TNET informationâ??namely, administrative records, meeting minutes and arrest listsâ??is consistent with Wiley's testimony that task forces share general intelligence information about narcotics enforcement, drug trends, trafficking, and methods. The DEA agent's monthly briefing of TNET's Executive Board is also consistent with Wiley's testimony. Evidence of general information sharing between WSP and TNET does not, without more, suggest that WSP possesses the disputed records.

¶24 The trial court's ruling granting summary judgment was proper. WSP submitted declarations that clearly established that it does not possess the records that Worthington requested. Worthington fails to rebut WSP's evidence with specific [*12] facts and instead relies on argumentative and speculative assertions, which are insufficient to preclude summary judgment. See Seven Gables Corp., 106 Wn.2d at 13.
II. Motion for Reconsideration
A. Standard of Review

¶25 We review a trial court's denial of a motion for reconsideration for abuse of discretion. Lilly v. Lynch, 88 Wn. App. 306, 321, 945 P.2d 727 (1997). A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds. Weyerhauser Co. v. Commercial Union Ins. Co., 142 Wn.2d 654, 683, 15 P.3d 115 (2000).
B. Trial Court's Ruling

¶26 A party may move for reconsideration on several grounds, including irregularity, misconduct, accident, newly discovered evidence, and errors of law. CR 59(a). The basis for Worthington's motion is not entirely clear, but the trial court considered it a motion based on newly discovered evidence. To succeed on the motion, Worthington had to submit material evidence that he could not have discovered with reasonable diligence prior to the summary judgment hearing. See CR 59(a)(4).

¶27 Even assuming that Worthington could not have discovered the evidence he submitted with reasonable diligence prior to the summary judgment [*13] hearing, the trial court did not abuse its discretion by denying his motion. The exhibits that Worthington submitted with his motion for reconsideration included Tacoma Regional Task Force Executive Board meeting minutes and other records that he obtained from state agencies, including WSP, through PRA requests. The board meeting minutes included the names of WSP officers in attendance, prompting the trial court to note that â??[i]t appeared from the minutes that material was going from the task force to at least one member of the State Patrol â?¦ .â?� RP (Dec. 30, 2008) at 9. Ultimately, however, the trial court reasonably determined that WSP's participation in the task force did not demonstrate that WSP had the specific records that Worthington requested.

¶28 Worthington also argues that two WSP policy and procedure manuals prove that WSP IAD officers like Bjornberg keep their own records â??no matter which participating agency instigates the case.â?� Appellant's Br. at 10. In particular, he cites the WSP's Assistance Division Manual, which applies to commissioned IAD employees like Bjornberg. These WSP manuals contain general reporting and records retention provisions, but they do not provide [*14] specific facts that suggest that investigating officers who are assigned to multi-jurisdictional task forces keep the records that they generate with the task force.

¶29 Worthington's other exhibits are either cumulative of the evidence that he presented to oppose summary judgment or irrelevant. The trial court's decision to deny the motion for reconsideration was not an abuse of discretion.

¶30 We affirm the trial court's order granting WSP's motion for summary judgment and its order denying Worthington's motion for reconsideration.

¶31 A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Hunt and Quinn-Brintnall, JJ., concur.

I use to bang the shit out of Judge Costello's daughters in the old days.
"The Superior Court for Kitsap County, No. 04-1-01513-6, Leonard W. Costello, J."
They were big potheads themselves.lol