State v. Balzer, 21805-4-II

• Decision Date: 17 April 1998
• Docket Number: No. 21805-4-II,21805-4-II
• Citation: 954 P.2d 931,91 Wn.App. 44
• Parties: STATE of Washington, Appellant, v. Gene R. BALZER, Respondent.
• Court: Washington Court of Appeals

Page 44

91 Wn.App. 44

954 P.2d 931

STATE of Washington, Appellant, v. Gene R. BALZER, Respondent.

No. 21805-4-II.

Court of Appeals of Washington Division 2.

April 17, 1998.

Robert Mason Quillian, Thomas Edward Doyle, (Court Appointed), Olympia, for Respondent

William J. Halstead, Thurston County Prosecuting Attorney, Jon Tunheim, Thurston County Deputy Prosecuting Attorney, Olympia, for Petitioner State.

HOUGHTON, Chief Judge.

The State charged Gene Balzer with two counts of unlawful possession of a controlled substance, marijuana and cocaine, and one count of unlawful possession with intent to deliver (marijuana). Balzer notified the trial court that he planned to assert an affirmative defense under the Religious Freedom Restoration Act (RFRA), specifically, that he possessed the marijuana for religious purposes. ¹ The trial court held a hearing to determine whether the defense applied, and after hearing testimony from Balzer and the arresting officer, ruled that Balzer had established a prima facie case for the defense and that the jury would be instructed accordingly.

Balzer also asserted unwitting possession as an affirmative defense to the charge of possession of cocaine. In its jury instructions, the trial court ruled the State would have to prove the absence of unwitting possession beyond a reasonable doubt.

During the lunch hour recess, the State petitioned this court for emergency interlocutory review of the trial court's jury instructions. While a commissioner of this court considered the request, the trial court instructed the jury and partial summations were presented. The commissioner granted review and stayed further trial proceedings.

The State contends that the trial court erred in: (1)

instructing the jury on Balzer's affirmative defense that his possession and possession with intent to deliver marijuana was based upon religious free exercise, and (2) instructing the jury that the State had to prove the absence of the unwitting possession defense beyond a reasonable doubt. We agree and reverse on both grounds.

FACTS

Background

On November 24, 1996, an Olympia police officer, Donald Heinze, stopped Balzer for a traffic infraction. Upon approaching Balzer's car, Officer Heinze noticed a strong aroma of fresh marijuana emanating from inside the car. The officer asked Balzer several times if he had marijuana in the vehicle but Balzer consistently replied no. A search of the car revealed a black canvas bag on the passenger side floor. Another officer who arrived at the scene arrested Balzer. Balzer did not tell the officers at this time that he possessed of marijuana for religious purposes.

After placing Balzer under arrest, the officers continued searching the car. They opened the large black canvas bag and found a large plastic bag inside, which contained numerous smaller zip-loc bags. Seven of these small plastic bags contained marijuana, while several other bags contained only trace amounts. The marijuana discovered weighed less than a kilogram.

The officers also found $404, a day-planner sheet with the phrase "People Who Dogged Me" written at the top with several names and numbers written below, and a small plastic container of cocaine in the ashtray. The officers then took Balzer to the police station, where he voluntarily gave a statement and for the first time told them that he possessed the marijuana for religious purposes.

On November 27, 1996, the State charged Balzer with unlawful possession of more than 40 grams of a controlled substance. On February 14, 1997, Balzer filed notice of his intent to rely upon an affirmative defense under the RFRA.

The State also filed an amended information adding a count of unlawful possession of a controlled substance (cocaine) and possession of marijuana with intent to deliver.

Evidentiary Hearing

On the morning of trial, the court held a hearing to determine whether Balzer could assert a religious free exercise defense under the RFRA. At the hearing, Balzer testified that he has been a member of the Rainbow Tribe Church of Living Light (Rainbow Tribe Church) for 22 years and is currently a high priest. ² Balzer proffered a photocopy of a page from the Encyclopedia of American Religions recognizing the Rainbow Tribe Church as an established religion that allows use of psychoactive drugs and plants in prayer ceremonies. Balzer also testified that he has been a member of the Rastafarian religion for the past five years, which, like his other faith, utilizes marijuana as a sacrament during ceremonies.

Balzer stated that he uses religious sacraments, including marijuana, in practicing both religions. Specifically, he stated that he uses these plants during ceremonial prayer circles with other church members for the purpose of achieving a "higher group consciousness." The group ingests psychoactive plants during the prayer circles, Balzer explained, to "create more of a positive vibration and radiate it out" to people who need it for "healing purposes" and "guidance." According to Balzer, ingestion of marijuana "enhances the higher reasoning side of the mind and the higher self. It frees the spirit to reach to reach its highest potential in deep meditation or prayer, and it helps us commune with our creator."

Furthermore, the group does not ingest such plants, Balzer testified, simply for "getting high or getting loaded or Officer Heinze testified that during his 11 years in law enforcement, he had considerable experience dealing with drug possession and trafficking. He stated that he investigated and witnessed "devastation in families, children, car crashes, suicide" and a host of other tragedies all in which narcotics have played a significant role. In his view, the use of drugs has become "more and more dangerous" to society.

                loafing around."   He insisted the practice is "a very high spiritual matter" and that the group uses the psychoactive plants solely for religious purposes.  Balzer said that church members "try to stay within [their] ... tribe" and do not share the drugs with children or encourage use by other younger individuals.  Finally, Balzer said his religion is "very personal" and that he used marijuana believing his practices were protected under the RFRA
                

Pre-trial Ruling

Based upon Balzer's testimony, the trial court determined, by a preponderance of the evidence, that Balzer had established a prima facie case for his "religious use" defense, and was therefore entitled to a jury instruction corresponding to his defense. Relying upon United States v. Bauer, 75 F.3d 1366 (9th Cir.1995), and the "accepted scholarship of The Encyclopedia of American Religions," the court concluded that Balzer's use of marijuana was for religious purposes, and that his religious beliefs were sincerely held and central to his religious practices. The court also referred to Munns v. Martin, 131 Wash.2d 192, 930 P.2d 318 (1997), noting Washington's constitutional religious protections, and concluded the State had not shown a compelling interest justifying the regulation of marijuana or that application of the laws were the least restrictive means for achieving that interest.

Trial Testimony and Jury Instructions

During trial, Balzer gave testimony similar to his testimony Regarding the cocaine, Balzer testified that the cocaine found in the ashtray belonged to a friend to whom he lent his car earlier that day. The first time Balzer learned of the cocaine, he asserted, was at the time the officers discovered the substance while searching his car.

at the evidentiary hearing regarding his use of marijuana. But he added that he has studied the use of marijuana in religious practices, listing numerous books he has read. Balzer also explained that he drew significantly from other religions using marijuana, such as the Native American and Rastafarian churches.

At the close of trial, the court ruled that Balzer could assert his religious practices as an affirmative defense with regard to possession of marijuana as well as possession with intent to deliver. Concerning the unwitting possession defense instruction as to the cocaine, the trial court ruled the State would have to disprove Balzer's affirmative defense beyond a reasonable doubt.

ANALYSIS

I. RELIGIOUS FREE EXERCISE

Applying the factors set forth in State v. Gunwall, 106 Wash.2d 54, 720 P.2d 808 (1986), Balzer seeks protection under the Free Exercise Clause of the Washington Constitution, which, he contends, affords him greater protection than under the federal constitution.

Religious free exercise embraces two concepts: the freedom to believe and the freedom to act. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940). The first is absolute while the second, by the nature of our democracy, cannot be. Cantwell, 310 U.S. at 303-04, 60 S.Ct. at 903. An individual's conduct, therefore, remains subject to regulation for the protection of society. Cantwell, 310 U.S. at 304, 60 S.Ct. at 903. The freedom to act must have appropriate definition to preserve the enforcement of that protection, and, in turn, exercise of the power to regulate must not unduly impose on protected freedom. Cantwell, 310 U.S. at 304, 60 S.Ct. at 903.

Constitutional protection for religious free exercise under state law embodies these principles. Article I, § 11 of the Washington Constitution provides in pertinent part that:

[a]bsolute freedom of conscience in all matters of religious sentiment, belief and worship, shall be guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion; but the liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the state.

As the Supreme Court noted in First Covenant Church v. Seattle, 120 Wash.2d 203, 226, 840 P.2d 174 (1992), Article I, § 11 of our Constitution is more protective...