State v. Soper

• Decision Date: 19 September 2006
• Docket Number: No. 33238-8-II.,33238-8-II.
• Citation: 143 P.3d 335,135 Wn. App. 89
• Parties: STATE of Washington, Respondent, v. Ricky Lee SOPER, Appellant.
• Court: Washington Court of Appeals

143 P.3d 335

135 Wn. App. 89

STATE of Washington, Respondent, v. Ricky Lee SOPER, Appellant.

No. 33238-8-II.

Court of Appeals of Washington, Division 2.

September 19, 2006.

COPYRIGHT MATERIAL OMITTED

Suzanne Lee Elliott, Attorney at Law, Seattle, WA, for Appellant.

Jeremy Aaron Morris, Kitsap County Prosecutor's Office, Port Orchard, WA, for Respondent.

BRIDGEWATER, J.

¶ 1 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 Marijuana Act¹ 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.

¶ 2 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

¶ 3 On August 2, 2004, the West Sound Narcotics Enforcement Team observed an outdoor marijuana grow operation 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.

¶ 4 Soper acknowledged that he was growing marijuana. He also acknowledged that he planned to distribute the 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.

¶ 5 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 "qualif[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.

¶ 6 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.

¶ 7 As part of this defense, Soper also sought to present the testimony of Dr. David L. Dodge, his physician. But the 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 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.

¶ 8 After striking Dr. Dodge's testimony, the trial court 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

¶ 9 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

¶ 10 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;

(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).

¶ 11 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 his or her medical use of marijuana.

RCW 69.51A.040(2).

II. ER 104 — PRELIMINARY QUESTIONS AND STRIKING DR. DODGE'S TESTIMONY

¶ 12 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.

¶ 13 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 Wash.2d 628, 648, 904 P.2d 245 (1995), cert. denied, 518 U.S. 1026, 116 S.Ct. 2568, 135 L.Ed.2d 1084 (1996); King County Fire Prot. Dist. No. 16 v. Hous. Auth., 123 Wash.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 Wash.App. 312, 319, 936 P.2d 426, review denied, 133 Wash.2d 1019, 948 P.2d 387 (1997).

¶ 14 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 RCW 69.51A.010(3)(a). Chapter 18.71 RCW details Washington's licensing procedures for physicians.⁶ After analyzing these procedures in a previous case, we stated:

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 Wash.App. 388, 397, 115 P.3d 381 (2005), review granted, 156 Wash.2d 1030, 133 P.3d 474 (2006).⁷

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, § 104.6, at 99. Thus, Soper's primary evidence was that he was a qualifying patient under the Act. Soper's foundation evidence was that Dr. Dodge was a physician licensed under chapter 18.71 RCW.

¶ 16 In deciding whether to admit this evidence, the trial court used the procedure under ER 104. In pertinent part, ER 104(a) states: "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.

¶ 17 "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, 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,...