State v. Stoner

365 Mont. 465

285 P.3d 402

2012 MT 162

STATE of Montana, Plaintiff and Appellee,

v.Shawn M. STONER, Defendant and Appellant.

No. DA 11–0435.

Supreme Court of Montana.

Submitted on Briefs June 12, 2012.

Decided July 31, 2012.

For Appellant: Wade Zolynski, Chief Appellate Defender; Colin M. Stephens, Assistant Appellate Defender; Missoula, Montana.

For Appellee: Steve Bullock, Montana Attorney General; Tammy A. Hinderman, Assistant Attorney General; Helena, Montana, Gina Dahl, Hill County Attorney; Havre, Montana.

Justice BETH BAKER delivered the Opinion of the Court.

¶ 1 Shawn Stoner appeals the order of the Twelfth Judicial District Court, Hill County, denying his motion to dismiss several marijuana charges against him. We affirm. The sole issue on appeal is whether the District Court erred in denying Stoner's motion to dismiss after he acquired a medical marijuana card.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 2 On July 10, 2009, Tri–Agency Safe Trails Task Force Agent Pete Federspeil applied for and received a search warrant for Stoner's residence from Havre City Court. Task force agents and officers from the Havre Police Department executed the search warrant and found five marijuana plants and additional harvested marijuana in the residence. The agents and officers also located other marijuana paraphernalia, including growing equipment, pipes, a digital scale, and a marijuana crusher. The officers seized all of the evidence along with over $1,400 in cash that they believed to be the proceeds of marijuana sales.

¶ 3 Three days later, Agent Federspeil contacted the Montana Department of Public Health and Human Services (DPHHS) and was notified that Stoner had not obtained a medical marijuana registry identification card as a qualifying patient or caregiver.

¶ 4 On July 22, 2009, the State charged Stoner with Criminal Production or Manufacture of Dangerous Drugs, Use or Possession of Property Subject to Criminal Forfeiture, Criminal Possession of Dangerous Drugs with Intent to Distribute, and Criminal Possession of Drug Paraphernalia. Stoner pled not guilty to the charges. At his omnibus hearing on September 11, 2009, Stoner did not raise a defense pursuant to the Medical Marijuana Act (MMA), nor did he indicate any intention to file a motion to dismiss the charges against him based on the MMA.

¶ 5 On September 30, 2009, DPHHS issued a qualifying patient registry identification card to Dustin Malley naming Stoner as his caregiver. On October 21, 2009, Stoner filed a motion to allow him to raise an affirmative defense under § 50–46–206, MCA (2007),¹ which was in effect at the time of his alleged offense. That statute allowed an affirmative defense to “any criminal offense involving marijuana,” provided three criteria were satisfied. One requirement included proof that a physician had conducted “a full assessment of the person's medical history and current medical condition” and determined “the potential benefits of medical marijuana would likely outweigh the health risks for the person.” In his motion, Stoner indicated he had scheduled an appointment with a physician who may, at the time of trial, testify in support of his affirmative defense. The State objected, arguing that Stoner had failed to assert the defense in a timely manner and, in any event, the defense was not applicable when a defendant obtained an MMA card after the offense for which he sought to use it. The court did not immediately rule on the matter.

¶ 6 On December 3, 2009, DPHHS issued a qualifying patient registry identification card to Stoner under the MMA. Stoner listed Malley as his caregiver. The cards issued to Malley and Stoner contained expiration dates approximately one year after their issue dates. Both parties renewed their patient and caregiver cards shortly after the expiration dates.

¶ 7 On March 28, 2011, Stoner filed a motion to dismiss. Stoner's brief in support of his motion consisted almost entirely of portions of the MMA. Stoner cited § 50–46–201, MCA (stating the circumstances under which a person using marijuana “may not be arrested, prosecuted, or penalized in any manner”) and § 50–46–206, MCA (describing when an affirmative defense may be asserted for an offense involving marijuana). The only legal argument Stoner provided was: “The case should be dismissed based upon Mr. Stoner's affirmative defense as a matter of law as there is no factual dispute regarding this issue.” The State objected and repeated that Stoner did not obtain a registry card until after he was charged. The State further argued the affirmative defense was inapplicable because Stoner had not provided a physician's opinion justifying his use of the marijuana at the time of his offenses.

¶ 8 The District Court held a hearing on the motion to dismiss at which Stoner was the only witness to testify. He said he began seeing a doctor when he was twelve for scoliosis but stated, “I didn't see the medical marijuana doctor until I believe it was September of 2009.” Stoner acknowledged that he was charged with the marijuana offenses in July 2009. In summation, Stoner asserted that the MMA did not require a person to possess a registration card at the same time he possessed marijuana. He also argued that even if the requirements of the law were hazy, the rule of lenity should apply and the statute should be construed in his favor. Though acknowledging the statute was “pretty vague,” the County Attorney argued that, because it was undisputed that Stoner did not possess a card at the time he was charged, the jury should decide whether the affirmative defense had been met. The District Court denied the motion to dismiss, stating it would not give Stoner “a get-out-of-jail free card.” The court ruled the affirmative defense could go to the jury but Stoner's burden of proof would be “fairly high.”

¶ 9 Stoner entered into a plea agreement with the State, reserving his right to appeal the ruling on his motion to dismiss. This appeal followed. As denial of Stoner's motion is the only issue raised on appeal, we do not address the District Court's ruling on the availability to Stoner of the affirmative defense provided in § 50–46–206, MCA.

STANDARD OF REVIEW

¶ 10 “We review the denial of a motion to dismiss in a criminal case de novo.” State v. Updegraff, 2011 MT 321, ¶ 24, 363 Mont. 123, 267 P.3d 28. A district court's statutory interpretation constitutes a conclusion of law, which this Court reviews for correctness. State v. Shively, 2009 MT 252, ¶ 13, 351 Mont. 513, 216 P.3d 732.

DISCUSSION

¶ 11 Montana voters approved the MMA as a ballot initiative in November 2004. The portion of the 2007 MMA pertinent to this discussion is § 50–46–201, MCA, which states:

Medical use of marijuana—legal protections—limits on amount—presumption of medical use. (1) A qualifying patient or caregiver who possesses a registry identification card issued pursuant to 50–46–103 may not be arrested, prosecuted, or penalized in any manner ... if the qualifying patient or caregiver possesses marijuana not in excess of the amounts allowed in subsection (2).

(2) A qualifying patient and that qualifying patient's caregiver may not possess more than six marijuana plants and 1 ounce of usable marijuana each.

(3)(a) A qualifying patient or caregiver is presumed to be engaged in the medical use of marijuana if the qualifying patient or caregiver:

(i) is in possession of a registry identification card; and

(ii) is in possession of an amount of marijuana that does not exceed the amount permitted under subsection (2).

(b) The presumption may be rebutted by evidence that the possession of marijuana was not for the purpose of alleviating the symptoms or effects of a qualifying patient's debilitating medical condition.

The MMA defined “qualifying patient” as “a person who has been diagnosed by a physician as having a debilitating medical condition.”

Section 50–46–102(7), MCA. “Debilitating medical condition” also was defined in the law. Section 50–46–102(2), MCA.

¶ 12 The 2011 Legislature repealed the former MMA and replaced it with the Montana Marijuana Act. Section 50–46–301(1), MCA (2011). The new Act makes clear that its provisions “relating to protection from arrest or prosecution do not apply to an individual unless the individual has obtained a registry identification card prior to an arrest or the filing of a criminal charge.” Section 50–46–319(7), MCA (2011). Nonetheless, § 50–46–201, MCA, governs our decision as we apply “the law in effect at the time the crime was committed.” Med. Marijuana Growers Ass'n v. Corrigan, 2012 MT 146, ¶ 20, 365 Mont. 346, 281 P.3d 210 (quoting State v. Daniels, 2003 MT 30, ¶ 17, 314 Mont. 208, 64 P.3d 1045).

¶ 13 On appeal, the State concedes that the amount of marijuana Stoner possessed did not exceed what was permitted under the MMA. Stoner acknowledges that the District Court ruled in his favor by permitting him to assert an affirmative defense at trial, but contends he should have been afforded complete immunity from prosecution under § 50–46–201, MCA. Accordingly, we must determine whether the legal protections provided by that statute were available to a defendant who obtained a registry identification card after he was charged with the offenses.

¶ 14 Stoner argues that the plain language of § 50–46–201, MCA, is sufficient to answer this question in the affirmative. He notes the statute did not specifically state that immunity from prosecution applies only to acts committed after an individual obtains a registry identification card. He argues that this Court should not insert such a limitation. Stoner points to the new statute, which makes explicit that its legal protections do not apply unless a registry identification card is obtained before an arrest. He contends this modification is a clear indication that the prior version of the MMA lacked such qualification.

¶ 15 The State argues that inherent in the MMA is the requirement that marijuana be...