State v. Thayer

• Decision Date: 06 October 2010
• Docket Number: No. 08–415.,08–415.
• Citation: 14 A.3d 231,2010 VT 78
• Parties: STATE of Vermontv.Sue C. THAYER.
• Court: Vermont Supreme Court

14 A.3d 231
2010 VT 78

STATE of Vermont
v.
Sue C. THAYER.

No. 08–415.

Supreme Court of Vermont.

Aug. 20, 2010.Motion for Reargument Denied Oct. 6, 2010.

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Peter R. Neary, Rutland County Deputy State's Attorney, Rutland, for Plaintiff–Appellee.Daniel M. Sedon of Law Office of Sedon & Ericson, PC, Chelsea, for Defendant–Appellant.Present: REIBER, C.J., DOOLEY, JOHNSON, SKOGLUND and BURGESS, JJ.BURGESS, J.

¶ 1. In this interlocutory appeal, defendant challenges the trial court's denial of her right to present a necessity defense to the jury. Defendant is charged with knowingly and unlawfully cultivating more than twenty-five marijuana plants in violation of 18 V.S.A. § 4230(a)(4). Before trial, defendant moved for a jury instruction on the defense of necessity, asserting she used marijuana medicinally for her son, whose wasting symptoms are recognized under the state's therapeutic use of cannabis act. 2003, No. 135 (Adj.Sess.), § 1; see 18 V.S.A. § 4472(2)(B). The trial court denied defendant's motion, holding (1) that she failed to establish a prima facie case on each of the elements required for a necessity defense, and (2) that the legislative law precluded the necessity defense in this case through its “deliberate choice as to the values at issue concerning the legal growth of marijuana.” We granted defendant's request for interlocutory review of the trial court's ruling, and affirm.

¶ 2. The trial court accepted the following facts as true. In the summer of 2003, defendant, a Master Gardener, began growing marijuana on her property to treat her ailing son TT, who was battling leukemia. After several bone-marrow transplants and repeated bouts of chemotherapy, TT used marijuana to ease his nausea, improve his appetite, and eventually return to school. Although TT passed away in May 2005, defendant noted how effectively marijuana alleviated his symptoms. She continued growing marijuana to treat her youngest son, MT, who was experiencing wasting symptoms, including chronic nausea and loss of appetite, due to scarred kidneys resulting from a medical emergency when he was an infant. Marijuana greatly improved his condition.

¶ 3. Each summer since 2003, defendant grew marijuana outside of her home. In the spring, defendant would normally seed fifty-to-one-hundred plants indoors and select the most vigorous of those seedlings to

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plant outdoors in June. To ensure an adequate supply of marijuana, each season she grew fifty-to-seventy percent more plants than she needed to compensate for natural crop losses.

¶ 4. On August 2, 2007, following a tip from Vermont's Marijuana Eradication Reduction Team, police seized thirty semi-mature marijuana plants growing in defendant's backyard. Defendant conceded that neither she nor her son were registered with the state, as required by statute, as patients or caregivers authorized to grow and use medicinal marijuana. See 18 V.S.A. §§ 4473–4474. The pending felony drug charge resulted.

¶ 5. Defendant argues the trial court erred in denying her request to present the affirmative defense of necessity. Recognized by this Court in both criminal and tort litigation, the necessity defense “admits the criminal act, but claims justification.” State v. Pollander, 167 Vt. 301, 308, 706 A.2d 1359, 1363 (1997) (quotation omitted). It is a classic defense of “confession and avoidance.” State v. Warshow, 138 Vt. 22, 24, 410 A.2d 1000, 1001 (1979). To avoid conviction, defendant need not refute the elements of the underlying felony drug charge, but bears the burden of proving by a preponderance of the evidence that her admitted criminal acts were necessary under certain circumstances defined by common law. State v. Baker, 154 Vt. 411, 419, 579 A.2d 479, 483 (1990). The immediate inquiry, however, is not whether the necessity defense would have been persuasive, but whether the trial court erred in denying the jury the opportunity to consider the defense at all. Defendant needed only to make a prima facie presentation from which a “reasonable juror could find that the requirements of the necessity defense were satisfied” to be entitled to her requested instruction. State v. Cram, 157 Vt. 466, 469, 600 A.2d 733, 734 (1991).

¶ 6. In determining whether a reasonable juror could find that the elements of necessity were satisfied, we first examine the four requirements of the defense:

(1) there must be a situation of emergency arising without fault on the part of the actor concerned;

(2) this emergency must be so imminent and compelling as to raise a reasonable expectation of harm, either directly to the actor or upon those he was protecting;

(3) this emergency must present no reasonable opportunity to avoid the injury without doing the criminal act; and

(4) the injury impending from the emergency must be of sufficient seriousness to outmeasure the criminal wrong.

State v. Shotton, 142 Vt. 558, 560–61, 458 A.2d 1105, 1106 (1983) (citing Warshow, 138 Vt. at 24, 410 A.2d at 1001–02).

¶ 7. Defendant must make a minimally sufficient case for every element to be entitled to the instruction. State v. Knapp, 147 Vt. 56, 59, 509 A.2d 1010, 1011 (1986). Consequently, the trial court may deny a necessity defense instruction if it finds insufficient evidence for any one of the elements. See Warshow, 138 Vt. at 25, 410 A.2d at 1002 (finding trial court's denial of a necessity defense sound because defendants failed to show the danger was “imminent and compelling”). If the court finds that the facts offered by defendant, taken as true, are “insufficient to sustain the defense, the trial court should deny use of the defense.” Cram, 157 Vt. at 469, 600 A.2d at 734. In the instant case, the trial court ruled correctly that defendant's proffer was insufficient to establish the third element of her defense: that she had no reasonable alternative except to violate the law. Since this failure is clear and

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disposes of the entire question before the Court, we proceed directly to that analysis.

¶ 8. The third element of the necessity defense requires defendant to show that her emergency presented “no reasonable opportunity to avoid the injury without doing the criminal act.” Shotton, 142 Vt. at 560–61, 458 A.2d at 1106. This element is “governed by defendant's belief, and that belief must be reasonable.” Cram, 157 Vt. at 469, 600 A.2d at 735. Defendant must therefore present enough evidence to raise a question of fact as to whether she reasonably believed she had no opportunity to alleviate her son's symptoms without committing the outlawed act of growing more than twenty-five marijuana plants. See Shotton, 142 Vt. at 561, 458 A.2d at 1106 (“[T]he jury could have concluded that defendant reasonably believed she was confronted with a medical emergency ... and that her need for treatment, as she conceived it to be, outweighed the criminal wrong of driving under the influence.”). Since, before defendant's arrest, Vermont had legalized medicinal use of marijuana under certain circumstances and then expanded its exemption from criminal penalties, a brief look at the law's provisions lends guidance as to the reasonableness of defendant's conduct.

¶ 9. Three years before defendant's arrest, in May 2004, Vermont passed Public Act 135, “An Act Relating to Marijuana Use by Persons with Severe Illness.” 2003, No. 135 (Adj.Sess.). Although the Act legalized therapeutic use of marijuana, the Legislature crafted its permission narrowly. Individuals wishing to grow marijuana must be “registered patients” with a qualifying medical condition, or assume the role of “registered caregiver” to grow for another qualified patient. 18 V.S.A. § 4472(6) & (7). The Act provided that marijuana grown for symptom relief may be cultivated only in a “secure indoor facility.” Id. § 4472(8). It limited possession to “no more than one mature plant, two immature plants, and two ounces of usable marijuana.” Id. § 4472(4) (2005). The Legislature did not alter its pre-existing penalties for more ambitious marijuana possession, including jail terms of up to five and ten years for cultivating more than ten and more than twenty-five plants, respectively. Id. § 4230(a)(3)-(a)(4). In 2007, the Legislature amended the Act to increase the cultivation limit to two mature plants and seven immature plants per grower, again leaving the felony penalties in place. 2007, No. 58, § 1; see 18 V.S.A. §§ 4472(5), 4230(a)(3), 4230(a)(4). Vermont law has thus required registered legal growers of medicinal marijuana to do so indoors, with a maximum of nine plants, since May 2004.

¶ 10. Defendant posits that her belief in the necessity of unlawful outdoor marijuana cultivation was reasonable because she needed to maintain a constant supply for her son. According to the proffer, defendant was “dismayed” to learn, in July 2007, of the indoor growing requirement of Vermont's amended medicinal marijuana law, which was, in her opinion, its “worst provision.” In the four years during which defendant grew marijuana, she refused to grow indoors and failed to observe either the three or seven plant maximum. She insists that thirty plants were necessary to ensure an adequate supply of marijuana to compensate for “the constant risks of loss to frost, drought, too much rain, deer, woodchucks, moles, grouse, mold and disease” and argues that these outdoor growing problems necessitated planting substantially more marijuana than she would actually harvest. Defendant asserts that she was attempting to comply with Vermont's medicinal marijuana law just before her arrest, but lacked sufficient time after the 2007 amendments to research indoor

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growing or to build indoor growing facilities. Defendant's argument fails for two reasons.

¶ 11. First, defendant proffered nothing to actually demonstrate that indoor cultivation was impossible or impractical for her, or that it would not have cured the need to grow more marijuana than authorized by...