State v. Hardesty

• Decision Date: 31 July 2008
• Docket Number: No. 1 CA-CR 06-0966.,1 CA-CR 06-0966.
• Citation: 204 P.3d 407
• Parties: STATE of Arizona, Appellee, v. Danny Ray HARDESTY, Appellant.
• Court: Arizona Court of Appeals

204 P.3d 407

STATE of Arizona, Appellee, v. Danny Ray HARDESTY, Appellant.

No. 1 CA-CR 06-0966.

Court of Appeals of Arizona, Division 1, Department E.

July 31, 2008.

Review Granted January 6, 2009.

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section and Joseph L. Parkhurst, Assistant Attorney General, Tucson, Attorneys for Appellee.

DeRienzo & Williams P.L.L.C. by Daniel J. DeRienzo, Prescott Valley, Attorneys for Appellant.

OPINION

WEISBERG, Judge.

¶ 1 Danny Ray Hardesty ("Defendant") appeals his convictions and sentences for possession of marijuana and possession of drug paraphernalia. Defendant contends that the trial court erred in refusing to recognize his religious practice defense based on the free exercise clauses of the United States and Arizona Constitutions and the Arizona statutory provisions related to such protections. For reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 On April 15, 2005, a law enforcement officer stopped Defendant after observing a burned out headlight on his van. Upon approaching the driver's door, the officer smelled burnt marijuana emanating from inside the van. When questioned about the smell, Defendant initially denied having any marijuana but then admitted that he had been smoking a "joint," which he had thrown out the window. The officer found the joint, and Defendant identified it as his. The officer also seized a baggy of marijuana from a backpack inside the van. Both the joint and the baggy contained usable amounts of marijuana.

¶ 3 Defendant was charged with possession of marijuana and possession of drug paraphernalia, each a class 6 felony. Ariz.Rev. Stat. ("A.R.S.") §§ 13-3405(A)(1) (2001) and -3415 (2001). Before trial, he moved to dismiss the charges on the ground that the use of marijuana was part of the practice of his religion. The State opposed the motion, arguing that the Rules of Criminal Procedure do not permit one to raise a fact-based defense prior to trial. The State also asserted that the subject drug statutes did not violate Defendant's right to the free exercise of religion because they were laws of general applicability.

¶ 4 At a hearing on the motion, Defendant conceded that the State had a compelling governmental interest to regulate marijuana but argued that it did not use the least restrictive means of furthering that interest.¹ Defendant testified that he has been a practicing member of the Church of Cognizance since 1993. Defendant presented testimony from Michael Senger, an officer or "Cogniscenti" of the Church, who explained that the Church was founded in 1991 and is based on Neo-Zoroastrian tenets. According to Senger, marijuana or "Haoma" is the main religious sacrament of the Church and its use provides a connection to the divine mind and spiritual enlightenment.² Following the hearing, the trial court denied Defendant's motion because it was not authorized by the Rules of Criminal Procedure.

¶ 5 At the final pretrial conference, the trial court granted the State's motion in limine to preclude the admission of evidence related to Defendant's free exercise of religion defense based on its finding that the defense was not cognizable under Arizona law. Defendant then waived his right to a jury trial, and the matter was tried before the trial court, which found Defendant guilty as charged.³

¶ 6 At sentencing, the court placed Defendant on probation for eighteen months. The court stated, without ruling on whether the Church of Cognizance constituted a "religion" for purposes of the free exercise clause, that Defendant's claim for a religious use of marijuana was not made "in bad faith" and that it was something that Defendant was "sincerely professing at the time."

¶ 7 Defendant filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2001), and 13-4033(A)(1) (2001).

DISCUSSION

¶ 8 Defendant argues that the Arizona statutes prohibiting the possession of marijuana and drug paraphernalia violate his federal and state constitutional rights, as well as state statutory rights to religious freedom. The Free Exercise Clause of the First Amendment provides: "Congress shall make no law respecting the establishment of religion, or prohibiting the free exercise thereof. . . ." This provision is applicable to the states through the Fourteenth Amendment. Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).

¶ 9 The free exercise of religion encompasses two concepts: "the right to believe and profess whatever religious doctrine one desires" and the right to perform or abstain from physical acts for religious reasons. Employment Div., Dep't of Human Res. v. Smith, 494 U.S. 872, 877, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), superseded by statute, Religious Freedom Restoration Act of 1993 ("RFRA"), Pub.L. No. 103-141, 107 Stat. 1488. "The first is absolute but, in the nature of things, the second cannot be." Cantwell, 310 U.S. at 303-04, 60 S.Ct. 900. Thus, the government cannot regulate the right to believe and profess whatever religious doctrine one desires, nor may the government penalize or discriminate against individuals or groups because of their religious views. See Sherbert v. Verner, 374 U.S. 398, 402, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). But, the right to engage in actions or conduct prompted by religious beliefs or principles "is not totally free of legislative restrictions." Id. at 403, 83 S.Ct. 1790 (quoting Braunfeld v. Brown, 366 U.S. 599, 603, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961)). "Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection." Cantwell, 310 U.S. at 304, 60 S.Ct. 900 (footnote omitted).

¶ 10 Here, the charges against Defendant involve the use and possession of marijuana and drug paraphernalia in violation of A.R.S. §§ 13-3405(A)(1) and -3415(A). His free exercise claim therefore concerns conduct, not belief, and accordingly may be subject to governmental regulation. See id.

Burden Upon a Sincere Religious Belief

¶ 11 Individuals who assert an unconstitutional governmental infringement on their right to religious freedom must show that a governmental regulation burdens a sincere conviction that "is rooted in religious belief," Wisconsin v. Yoder, 406 U.S. 205, 215-16, 220, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), "rather than personal or secular considerations." In re Marriage of Gove, 117 Ariz. 324, 327, 572 P.2d 458, 461 (App.1977). Whether a statute presents an unconstitutional burden on religious practice is an issue we review de novo. See Ariz. Dep't of Pub. Safety v. Superior Court, 190 Ariz. 490, 494, 949 P.2d 983, 987 (App.1997) (reviewing de novo statute's constitutionality, presuming law to be constitutional, and giving challenger burden to establish otherwise).

¶ 12 In a case before the District Court of New Mexico, members of the same Church of Cognizance argued that the pending marijuana charges constituted a substantial burden on exercise of their religion because use of marijuana was a means of worship. United States v. Quaintance, 471 F.Supp.2d 1153, 1155 (D.N.M.2006). To determine whether the Church of Cognizance was a "religion," the court appropriately examined the church's "(1) ultimate ideas, (2) metaphysical beliefs, (3) moral or ethical system, (4) comprehensiveness of beliefs, and (5) accoutrements of religion." Id. at 1165. After considering these factors, it held that the defendants failed to demonstrate that their beliefs were "religious." Id. at 1156-70. The court also found, based on the evidence presented, that the defendants did not sincerely hold their beliefs. Id. at 1171-74. Accordingly, the court denied the defendants' motion to dismiss the indictment. Id. at 1174.

¶ 13 Here, the State failed to challenge the sincerity of Defendant's religious beliefs, and the trial court did not rule on the issue. Notwithstanding, during sentencing the court off-handedly remarked that it believed Defendant's claim that use of marijuana was a religious practice was sincere and not made in bad faith.

¶ 14 On appeal, the State concedes that Defendant's beliefs are sincere and that the Church of Cognizance is a "religion" within the free exercise clauses of the federal and state constitutions. Accordingly, for purposes of this appeal, we accept that Defendant has made a sufficient showing that his use of marijuana is a sincere religious practice and that he therefore may assert a free exercise of religion claim. See Int'l Soc'y for Krishna Consciousness, Inc. v. Barber, 650 F.2d 430, 439 (2d Cir.1981) (considering person's beliefs that were "arguably religious" as "religious" for purpose of constitutional analysis).

Federal Free Exercise of Religion Claim

¶ 15 Prior to 1990, a government was required to justify the imposition of a substantial burden on a religious practice with a compelling state interest. See, e.g., Sherbert, 374 U.S. at 403, 83 S.Ct. 1790; Yoder, 406 U.S. at 214, 92 S.Ct. 1526. When applying this standard, courts considered: 1) whether the law interfered with the free exercise of a sincere religious belief; 2) whether the law was "essential to accomplish an overriding governmental" objective; and 3) whether accommodating the religious conduct would "unduly interfere with fulfillment of the governmental interest."⁴ United States v. Lee, 455 U.S. 252, 256-59, 102 S.Ct. 1051, 71 L.Ed.2d 127 (1982).

¶ 16 For example, the United States Supreme Court in Yoder addressed whether the state's compulsory school attendance laws violated the First Amendment rights of members of the Amish religion. 406 U.S. at 207, 92 S.Ct. 1526. There, Amish parents refused to send their children to school after the eighth grade. Id. The state asserted that the compulsory school attendance laws, which...