Murphy v. Com.

• Court: Virginia Court of Appeals
• Writing for the Court: ANNUNZIATA.
• Citation: Murphy v. Com., 521 S.E.2d 301, 31 Va. App. 70 (Va. App. 1999)
• Decision Date: 23 November 1999
• Docket Number: Record No. 1459-98-4.
• Parties: Brian Joseph MURPHY v. COMMONWEALTH of Virginia.

521 S.E.2d 301

31 Va. App. 70

Brian Joseph MURPHY v. COMMONWEALTH of Virginia.

Record No. 1459-98-4.

Court of Appeals of Virginia, Alexandria.

November 23, 1999.

John Kenneth Zwerling (Zwerling & Kemler, P.C., on briefs), Alexandria, for appellant.

Michael T. Judge, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BENTON and ANNUNZIATA, JJ., and DUFF, Senior Judge.

ANNUNZIATA, Judge.

Brian J. Murphy ("appellant") was tried by jury for manufacturing marijuana for his own use, in violation of Code § 18.2-248.1(c). Appellant was acquitted of the charge but convicted of possession of marijuana. The jury fixed his punishment at thirty days in jail and a fine of $250. He contends on appeal that the trial court erred when it declined to find applicable to the charge of possession of marijuana the common law defense of necessity and erred in refusing a jury instruction on the issue. We find, as a matter of law, that under the circumstances of this case, the common law defense of necessity is not available to an individual accused of simple possession of marijuana and affirm appellant's conviction.

Upon the execution of a search warrant at appellant's home in September 1997, a Fair-fax County police officer found cultivated marijuana plants and seized them as evidence in support of charges subsequently lodged against appellant. Appellant admitted he possessed the marijuana, but contended it was for his personal use to alleviate debilitating migraine headaches he suffers as a result of an accident which occurred while he was serving in the Navy. Appellant was prescribed numerous medications in substitution for the marijuana but found none to be as effective or free of serious side effects. On the ground that he used the illegal drug for medicinal purposes for which there was no effective substitute, and which posed a lesser risk to his health than conventional legal medications, appellant requested the trial court to instruct the jury on necessity. The instruction was denied.¹

The first statute criminalizing the possession of marijuana in Virginia was enacted in 1936. 1936 Va. Acts at 361 (codified at § 1693a, Code of Virginia (1936)).² Notwithstanding its enactment of criminal penalties for the possession of "cannabis and mariahuana [sic]," the General Assembly permitted doctors to use the drug for medicinal purposes.³

Subsequently, the General Assembly significantly curtailed the medicinal use of marijuana. Code § 18.2-251.1 allows the possession of marijuana only "pursuant to a valid prescription issued by a medical doctor in the course of his professional practice" and only "for the treatment of cancer or glaucoma." By specifying the two permitted medicinal uses of the drug, the legislature excluded all other uses from the scope of the statute. See Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d 886, 887 (1992) ("mention of a specific item in a statute implies that omitted items were not intended to be included within the scope of the statute").

We must presume that legislative amendments are intended to effect a change in the law. See Burke v. Commonwealth, 29 Va.App. 183, 188, 510 S.E.2d 743, 746 (1999) (citing Wisniewski v. Johnson, 223 Va. 141, 144, 286 S.E.2d 223, 224-25 (1982)). "When a legislative enactment limits the manner in which something can be done, the enactment also evinces the intent that it should not be done another way." Grigg v. Commonwealth, 224 Va. 356, 364, 297 S.E.2d 799, 803 (1982). Although the legislature once permitted doctors generally to use marijuana "for medicinal purposes," Code § 18.2-251.1 now allows for possession of marijuana only "pursuant to a valid prescription issued by a medical doctor in the course of his professional practice" and only "for [the] treatment of cancer or glaucoma." The basic tenets of statutory construction require us to "'ascertain and give effect to legislative [intent,]"' Commonwealth v. Wallace, 29 Va.App. 228, 233, 511 S.E.2d 423, 425 (1999) (quoting Branch v. Commonwealth, 14 Va.App. 836, 839, 419 S.E.2d 422, 424 (1992)), and "`effect rather than defeat a legislative purpose evident from the history of the legislation.'" Adkins v. Commonwealth, 27 Va.App. 166, 170, 497 S.E.2d 896, 897 (1998) (quoting Ambrogi v. Koontz, 224 Va. 381, 389, 297 S.E.2d 660, 664 (1982)). In so doing, the "plain, obvious, and rational meaning of a statute is always preferred to any curious, narrow or strained construction ." Branch, 14 Va. App. at 839,419 S.E.2d at 424.

Code § 18.2-251.1 makes clear that the legislature has narrowly limited the permissible use of marijuana to the specific situations enumerated, viz., to when a doctor issues a prescription for the use of marijuana to treat either cancer or glaucoma.

As noted in Long v. Commonwealth, 23 Va.App. 537, 478 S.E.2d 324 (1996), "[t]he defense of necessity is available only in situations wherein the legislature has not itself, in its criminal statute, made a determination of values. If it has done so, its decision governs." Id. at 543, 478 S.E.2d at 327 (citation omitted). "[W]here it is apparent that the legislature has made a value judgment with respect to certain behavior, it follows that the legislature intended to abrogate, to that extent, the common law defense of necessity which, if not abrogated, would, within limits, allow individuals to make their own value judgments with respect to that behavior." Id. at 544, 478 S.E.2d at 327.

In short, the legislative history of the statute manifests that the General Assembly has significantly limited the availability of the defense of necessity for individuals who use marijuana for medicinal purposes. In restricting the legitimate medicinal use of marijuana to cases involving cancer or glaucoma, the legislature evinced its intent...