104 P.3d 604 (Or.App. 2005), A116636, State v. Miles

Docket Nº:0103-31747; A116636.
Citation:104 P.3d 604, 197 Or.App. 86
Opinion Judge:ORTEGA, J.
Party Name:STATE of Oregon, Respondent, v. Bryan Gene MILES, Appellant.
Attorney:David C. Degner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter A. Ozanne, Executive Director, Office of Public Defense Services. Robert B. Rocklin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorn...
Case Date:January 12, 2005
Court:Court of Appeals of Oregon
 
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Page 604

104 P.3d 604 (Or.App. 2005)

197 Or.App. 86

STATE of Oregon, Respondent,

v.

Bryan Gene MILES, Appellant.

Nos. 0103-31747; A116636.

Court of Appeals of Oregon.

January 12, 2005.

Argued and Submitted Jan. 29, 2004

Page 605

[197 Or.App. 87] David C. Degner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter A. Ozanne, Executive Director, Office of Public Defense Services.

Robert B. Rocklin, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.

[197 Or.App. 88] ORTEGA, J.

Defendant appeals a judgment convicting him of manufacturing a controlled substance, marijuana, contending that the trial court erred in barring him from asserting the "medical marijuana" defense provided in ORS 475.319(1) and the "choice-of-evils" defense provided in ORS 161.200. We affirm.

We review the record to determine whether defendant presented any evidence to support the defenses he sought to assert and evaluate that evidence in the light most favorable to defendant. State v. Brown, 306 Or. 599, 605, 607, 761 P.2d 1300 (1988).

In November 2000, police officers searched defendant's residence and found dried marijuana, three small marijuana plants, smoking devices, and related paraphernalia, including grow lights. Based on that evidence, defendant was charged the following March with manufacturing a controlled substance.

Before trial, the state moved to preclude defendant from asserting the medical marijuana defense and the choice-of-evils defense. At an evidentiary hearing regarding those issues, defendant asserted--and the state does not dispute--that defendant suffers from several debilitating medical conditions that cause him significant abdominal and bladder pain and nausea. Although defendant takes several prescribed medications for those conditions, he maintains that the medications produce adverse side effects that marijuana does not produce and that the medications do not relieve his pain and nausea as effectively as marijuana does. He testified that at one point he went without marijuana for three months, but his symptoms grew more severe and he had to take more pain medication. Because he believes the pain medication is addictive, he prefers marijuana.

In December 1998 and again in June 1999, defendant asked his longstanding primary care physician, Dr. Zukowski, to write a letter recommending marijuana use for treatment of his symptoms. Zukowski declined on both [197 Or.App. 89] occasions and, according to defendant's testimony, told defendant that marijuana was "not appropriate" for his medical condition and specifically advised him against

Page 606

using it. A gastroenterologist and a urologist who treated defendant likewise declined to endorse defendant's use of marijuana.

In April 2001--several months after the search of his residence that led to these proceedings--defendant mailed a packet of materials to Dr. Leveque, an osteopathic physician and forensic toxicologist who testified that his practice was limited to "forensic toxicology and also to helping people get medical marijuana cards." The packet contained defendant's own written statement of his medical history and letters from two of his doctors describing his medical condition. Based solely on the written materials that defendant sent him, Leveque signed a statement supporting defendant's application for a registry identification card provided for under ORS 475.309 as part of the Oregon Medical Marijuana Act (OMMA), which excepts medical use of marijuana from criminal prosecution under certain conditions. At the time of the hearing, Leveque had helped 890 people obtain their registry identification cards.

Defendant had not succeeded in obtaining a card at the time of the hearing in September 2001. He claimed that he had not applied for a card earlier because his doctors were "too paranoid" to fill out the physician's statement necessary for an application and that his urologist had told him that Kaiser Permanente, his health insurance provider, had a policy not to allow physicians to sign such statements. However, Zukowski testified that Kaiser Permanente had no such policy. Defendant...

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