State v. Jones
| Decision Date | 26 June 2018 |
| Docket Number | No. 1 CA-CR 16-0703,1 CA-CR 16-0703 |
| Citation | 424 P.3d 447 |
| Parties | STATE of Arizona, Appellee, v. Rodney Christopher JONES, Appellant. |
| Court | Arizona Court of Appeals |
Arizona Attorney General’s Office, Phoenix, By Michael Valenzuela, Dominic Emil Draye, Counsel for Appellee
Craig Williams, Attorney at Law, PLLC, Prescott Valley, By Craig Williams, Counsel for Appellant
Arizona Attorneys for Criminal Justice, By Sarah L. Mayhew, Amicus Curiae
¶ 1 Rodney Jones appeals his convictions and sentences for one count each of possession of the narcotic drug cannabis and possession of drug paraphernalia. Jones asserts the trial court erred in denying his pretrial motion to dismiss after determining he was not immune from prosecution under the Arizona Medical Marijuana Act (AMMA), Ariz. Rev. Stat. (A.R.S.) §§ 36–2801 to –2819 (2014). We hold that AMMA does not immunize Jones from prosecution for the use and possession of cannabis under the circumstances presented here, and affirm Jones’s convictions and sentences.
¶ 2 The relevant facts are undisputed. In March 2013, Jones was found in possession of a jar containing 0.050 ounces of hashish. At the time, Jones was a registered qualifying patient using marijuana for medicinal purposes. Jones was later indicted on one count each of possession of the narcotic drug cannabis and possession of drug paraphernalia—the jar containing the cannabis. He moved to dismiss the charges, arguing the indictment was deficient as a matter of law because his valid AMMA card provided an absolute defense.
The motion was denied following an evidentiary hearing.
¶ 3 Jones waived his right to a jury trial and, in September 2016, was convicted as charged. The following month, Jones was sentenced as a non-dangerous, non-repetitive offender to concurrent presumptive terms of 2.5 years’ imprisonment for possession of a narcotic drug and one year for possession of drug paraphernalia and given credit for 366 days’ presentence incarceration. Jones timely appealed, and this Court has jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) (2018), 13–4031 (2010), and 13–4033(A)(1) (2010).
¶ 4 Jones appeals the trial court’s order denying his motion to dismiss. We review an order denying a motion to dismiss criminal charges for an abuse of discretion and will reverse if the court "misapplies the law or exercises its discretion based on incorrect legal principles." State v. Smith , 242 Ariz. 98, 104, ¶ 22, 393 P.3d 159, 165 (App. 2017) (citing State v. Mangum , 214 Ariz. 165, 167, ¶ 6, 150 P.3d 252, 254 (App. 2007) ) (quoting State v. Slover , 220 Ariz. 239, 242, ¶ 4, 204 P.3d 1088, 1091 (App. 2009) ). We review the interpretation and application of statutes de novo . State v. Nixon , 242 Ariz. 242, 243, ¶ 5, 394 P.3d 667, 668 (App. 2017) (citing State v. Carver , 227 Ariz. 438, 441, ¶ 8, 258 P.3d 256, 259 (App. 2011) ). Because AMMA was voter-initiated, our primary objective is "to give effect to the intent of the electorate." Reed–Kaliher v. Hoggatt , 237 Ariz. 119, 122, ¶ 6, 347 P.3d 136, 139 (2015) (quoting State v. Gomez , 212 Ariz. 55, 57, ¶ 11, 127 P.3d 873, 875 (2006) ); see also Pedersen v. Bennett , 230 Ariz. 556, 558, ¶ 7, 288 P.3d 760, 762 (2012) () (quoting Kromko v. Superior Court , 168 Ariz. 51, 58, 811 P.2d 12, 19 (1991) ).
¶ 5 In construing a statute, we read its words in context and will ascribe a meaning that gives effect to all relevant provisions and avoids an unconstitutional result. See Stambaugh v. Killian , 242 Ariz. 508, 509, ¶ 7, 398 P.3d 574, 575 (2017) (citing David C. v. Alexis S. , 240 Ariz. 53, 55, ¶ 9, 375 P.3d 945, 947 (2016) ; J.D. v. Hegyi , 236 Ariz. 39, 40–41, ¶ 6, 335 P.3d 1118, 1119–20 (2014) ); State v. Lindner , 227 Ariz. 69, 70, ¶ 6, 252 P.3d 1033, 1034 (App. 2010). "If the statute is subject to only one reasonable interpretation, we apply it without further analysis." Stambaugh , 242 Ariz. at 509, ¶ 7, 398 P.3d at 575 (quoting Wade v. Ariz. State Ret. Sys. , 241 Ariz. 559, 561, ¶ 10, 390 P.3d 799, 801 (2017) ).
¶ 6 The parties agree hashish is a form of cannabis distinguishable from the green leafy substance commonly referred to as marijuana.2 They likewise agree cannabis is classified as a narcotic drug and that its possession is generally prohibited under Arizona’s criminal code. See A.R.S. §§ 13–3401(20)(w) (); –3408(A)–(B) (proscribing the knowing possession or use of a narcotic drug as a class four felony); Bollander , 110 Ariz. at 87, 515 P.2d at 332. The parties also acknowledge AMMA generally protects a registered qualifying patient from arrest, prosecution, or penalty arising out of the medical use of "marijuana" if that patient does not possess more than the allowable amount—2.5 ounces of "usable marijuana." See A.R.S. §§ 36–2801(1)(a)(i), (8), –2811(B)(1). Useable marijuana is statutorily defined as "the dried flowers of the marijuana plant, and any mixture or preparation thereof, but does not include the seeds, stalks and roots of the plant." A.R.S. § 36–2801(15).
¶ 7 The parties disagree as to whether hashish is included within AMMA’s immunities.3 Jones argues hashish is a preparation of the marijuana plant and, because he possessed less than 2.5 ounces of hashish, he was immune from prosecution for its possession.4 The State argues possession and use of cannabis is not protected by AMMA because it is neither marijuana nor a preparation thereof, but "is merely [the] separati[on] [of] one part of the plant from another."
¶ 8 Under the AMMA:
A registered qualifying patient ... is not subject to arrest, prosecution or penalty in any manner, or denial of any right or privilege ... [f]or the registered qualifying patient’s medical use of marijuana pursuant to this chapter, if the registered qualifying patient does not possess more than the allowable amount of marijuana.
A.R.S. § 36–2811(B)(1) ; see also Reed–Kaliher , 237 Ariz. at 122, ¶ 8, 347 P.3d at 139. AMMA defines marijuana to include "all parts of any plant of the genus cannabis, whether growing or not, and the seeds of such plant." A.R.S. § 36–2801(8).
¶ 9 The State argues that by not specifically including extracted resin within its description of immunized marijuana, AMMA adopts the "preexisting law distinguishing between cannabis and marijuana." We agree. We construe statutory language in light of existing understanding. "Technical words and phrases and those which have acquired a peculiar and appropriate meaning in the law shall be construed according to such peculiar and appropriate meaning." A.R.S. § 1–213 (2016). "When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate the administrative and judicial interpretations as well." Bragdon v. Abbott , 524 U.S. 624, 645, 118 S.Ct. 2196, 141 L.Ed.2d 540 (1998) ; see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts , 322 (2012) ("If a statute uses words or phrases that have already received authoritative construction ... they are to be understood according to that construction."); id. at 327 ().
¶ 10 According to our supreme court, hashish is " ‘the resin extracted’ from the marijuana plant," criminalized as cannabis, a narcotic drug, and distinct from marijuana. Bollander , 110 Ariz. at 87, 515 P.2d at 332. "[T]he legislature has recognized hashish and marijuana as two distinct forms of cannabis.... but marijuana alone has been singled out for separate treatment under our statutes." Id. We have held that our legislature’s differing treatment of hashish and marijuana is to be attributed to the great potency of the former, rendering it "susceptible to serious and extensive abuse." State v. Floyd, 120 Ariz. 358, 360, 586 P.2d 203, 205 (App. 1978).
¶ 11 AMMA is silent as to hashish. Prior understanding of the pertinent words strongly indicates that AMMA in no way immunizes the possession or use of hashish.
¶ 12 That AMMA immunizes medical use of a mixture or preparation of the marijuana plant does not immunize hashish. "Mixture or preparation" means the combining of marijuana with non-marijuana elements to make "consumables" such as brownies and the like. A.R.S. § 36–2801(15). Hashish, by contrast, is processed from the separated or extracted resin.
¶ 13 The dissent, citing State ex rel. Montgomery v. Woodburn ex rel. Cty. of Maricopa , 231 Ariz. 215, 216, 292 P.3d 201, 202 (App. 2012), notes that the language of a voter initiative is determinative if it is clear and unequivocal. There is, in AMMA, no clear and unequivocal language immunizing hashish. If the drafters wanted to immunize the possession of hashish they should have said so.5 We cannot conclude that Arizona voters intended to do so.
¶ 14 We cannot speculate that the voters, in allowing the limited use of marijuana to ameliorate patients’ suffering and distress, would, if they also intended to similarly immunize the use of hashish, have allowed the same quantity of narcotics as of the relatively benign flowers of the marijuana plant.
¶ 15 Jones’s convictions and sentences are affirmed.
¶ 16 The AMMA immunizes the medicinal use of "marijuana" by registered qualifying patients. The specific definition of marijuana, found within the AMMA, clearly encompasses all forms of the marijuana plant, including its resin, and is consistent with the spirit and purpose of the AMMA....
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State v. Jones
...a divided opinion, holding that AMMA did not immunize his possession of cannabis. State v. Jones , 245 Ariz. 46, 49–50 ¶¶ 9–15, 424 P.3d 447, 450–456 (App. 2018). We granted review to determine whether AMMA immunizes cannabis, a recurring issue of statewide importance. We have jurisdiction ......