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                                                                 Electronically Filed
                                                                 Supreme Court
                                                                 SCWC-11-0000097
                                                                 31-MAY-2013
                                                                 09:33 AM




              IN THE SUPREME COURT OF THE STATE OF HAWAI#I

                            ---o0o---
________________________________________________________________

                             STATE OF HAWAI#I,
                      Respondent/Plaintiff-Appellee,

                                       vs.

       GEOFFREY WOODHALL, Petitioner/Defendant-Appellant.
________________________________________________________________

                               SCWC-11-0000097

             CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
                     (CAAP-11-0000097; 3P7-10-00945)

                                 May 31, 2013

              NAKAYAMA, ACOBA, MCKENNA, AND POLLACK, JJ.,
     WITH RECKTENWALD, C.J., CONCURRING AND DISSENTING SEPARATELY

                   OPINION OF THE COURT BY MCKENNA, J.

I.    Introduction

       A medical marijuana patient was arrested for possessing

medical marijuana while passing through airport security at Kona

International Airport.        He was later convicted of Promoting a

Detrimental Drug in the Third Degree.           We are called upon to

determine whether (1) the defendant presented sufficient evidence
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to trigger a medical marijuana affirmative defense in a

stipulated fact trial, in which the parties stipulated that the

defendant possessed a valid medical marijuana certificate and

that the marijuana he possessed was medical marijuana; and (2),

if so, whether the conflict between a statute that allows medical

use of marijuana, including transportation of such marijuana, and

another statute that prohibits transportation of medical

marijuana through any place open to the public, creates an

irreconcilable conflict that must be resolved in favor of the

defendant.

       Based on the analysis below, we answer both questions in the

affirmative.      We therefore vacate the ICA’s Judgment on Appeal,

and remand this case to the district court to enter a judgment of

acquittal, consistent with this opinion.

II.    Background

       A.   The Trial1

       Petitioner/Defendant-Appellant Geoffrey Woodhall

(“Woodhall”) was charged by Complaint with “knowingly

possess[ing] marijuana or a Schedule V substance, that is,

marijuana, in any amount, thereby committing the offense of

Promoting a Detrimental Drug in the Third Degree, in violation of

Section 712-1249(1), Hawai‘i Revised Statutes, as amended.”               HRS


1
       The Honorable Joseph P. Florendo, Jr. presided.

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§ 712-1249(1)(1993) provides, “A person commits the offense of

promoting a detrimental drug in the third degree if the person

knowingly possesses marijuana or any Schedule V substance in any

amount.”2

      The charge stemmed from an incident in which marijuana in a

clear plastic baggie was discovered in Woodhall’s possession at

the Kona International Airport.        Woodhall was arrested and

prosecuted despite presenting a valid Medical Marijuana Registry

Patient Identification Certificate.

      Woodhall apparently filed a Motion to Dismiss the charge

against him, as referenced in the State’s Response to Defendant’s

Motion to Dismiss.      Based on the counter-argument raised by the

State, it would appear that Woodhall argued that an ambiguity in

the medical marijuana statutes required dismissal of the charge

against him.

      In this regard, HRS § 329-121 (2010) provides, with emphasis

added:

            “Medical use” means the acquisition, possession,
            cultivation, use, distribution, or transportation of
            marijuana or paraphernalia relating to the administration of
            marijuana to alleviate the symptoms or effects of a
            qualifying patient’s debilitating medical condition. For
            the purposes of “medical use[,”] the term distribution is


2
      Woodhall was prosecuted under state law. We note that possession of
marijuana is still subject to criminal prosecution and civil penalties under
the federal Controlled Substances Act, 21 U.S.C. §§ 801-971 (1999). In
contrast to numerous state medical marijuana laws, the federal government
continues to list marijuana as a Schedule I controlled substance because it
considers marijuana to have “no currently accepted medical use treatment in
the United States.” 21 U.S.C. §§ 812(b)(1); Schedule I (c)(10).

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          limited to the transfer of marijuana and paraphernalia from
          the primary caregiver to the qualifying patient.

It also appears that Woodhall argued that HRS § 329-121’s

authorization of transportation as a medical use is inconsistent

with HRS § 329-122 (2010)’s prohibition on the medical use of

marijuana in public places, creating an ambiguity in the medical

marijuana laws.    HRS § 329-122 provides, with emphasis added:
          (c) The authorization for the medical use of marijuana in
          this section shall not apply to: . . . .
          (2) The medical use of marijuana:
          (A) In a school bus, public bus, or any moving vehicle;
          (B) In the workplace of one’s employment;
          (C) On any school grounds;
          (D) At any public park, public beach, public recreation
          center, recreation or youth center; or
          (E) Other place open to the public. . . .

It appears that the crux of Woodhall’s argument was that the only

prohibited “use” of marijuana in a public place is “smoking.”

     The State, on the other hand, argued that “medical use” in

HRS § 329-121 includes possession, transportation, and

acquisition, and that the prohibition on medical use in public

places under HRS § 329-122 includes possession, transportation,

and acquisition.    Further, the State argued that Chapter 329,

Part IX generally, and the phrase “medical use” specifically,

should be strictly construed, in line with the legislature’s

stated purpose:    “[T]he legislature does not intend to legalize

marijuana for other than medical purposes.         The passage of this

Act and the policy underlying it does not in any way diminish the

legislature’s strong public policy and laws against illegal drug

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use.”   See 2000 Haw. Sess. Laws Act 228, § 1 at 596.           The Motion

to Dismiss appears to have been denied, as the parties proceeded

to a bench trial.

     In a later filing, a Memorandum of Law Regarding [sic] in

Support of Stipulated Facts for Bench Trial (“Memorandum”),

Woodhall argued he was authorized to possess marijuana for

medical use as a qualifying patient.         He argued that “medical

use” includes transportation; therefore, he should be acquitted

of the charge because he had a medical use of marijuana

affirmative defense.     Second, Woodhall argued that “H.R.S. §§

329-121 and 329-122, when read in concert are ambiguous and

therefore, mak[e] it impossible for defendant to formulate the

required knowing state of mind.”         He argued the following:

           [T]ransportation for medical use is specifically allowed,
           however, a person [cannot] transport medical marijuana in
           any “place open to the public.” A plain meaning reading of
           these two statutory provisions leads to an absurd result
           because it seemingly requires a qualifying patient’s
           marijuana to somehow magically appear wherever he may be so
           that it may be used.

He argued that strict compliance with these ambiguous statutes

produced an absurd result:

           [A] qualifying patient would seemingly always be in
           violation of H.R.S. § 329-122(c)(2)(E) when transporting
           their marijuana unless they were walking/transporting in
           their own home, on private property, etc. How the
           qualifying patient would be able to get their medical
           marijuana to their own home or to private property seems a
           near impossibility since they would arguably have to walk
           somewhere open to the public, such as a sidewalk, to get to
           their home or private property.




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     Woodhall further argued that the “legislative history

does not indicate a specific or general intent to prohibit

the medical use of marijuana in all places open to the

public,” and that there is no specific legislative history

explaining how HRS § 329-122(c)(2)(E)’s “open to the public”

prohibition came about.

     Thus, before trial, the fact that the marijuana was

medical marijuana was accepted by both parties, with the

only issue in dispute being a legal one:         whether Woodhall

could have possessed and transported the marijuana through

Kona International Airport, a place open to the public.

     Therefore, the parties agreed to a bench trial on

stipulated facts.    Their agreement and the stipulated facts

follow:
          Defendant GEOFFREY WOODHALL (“DEFENDANT”), by and through
          and on the advice of counsel SHERI S. LAWSON, Deputy Public
          Defender, having waived his right to trial, and the STATE OF
          HAWAI‘I, by and through JEFFREY BURLESON, Deputy Prosecuting
          Attorney, having agreed with the Defendant to a trial before
          the Court on stipulated facts, do now submit those facts
          which they agree upon and hereby stipulate to as follows:

          1. On the [sic] March 8, 2010 in Kona, County and State of
          Hawaii Geoffrey Woodhall knowingly possessed marijuana
          measuring 2.12 grams at the Kona International Airport. The
          marijuana was contained in a clear plastic baggie.

          2. The Kona International Airport is a place open to the
          public.

          3. The marijuana in Defendant’s possession is marijuana as
          defined pursuant to Hawaii Revised Statutes (“HRS”) 329-1
          and 712-1240.




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            4. Defendant possessed a valid medical marijuana
            certificate, Registration No. MJ14476, on March 8, 2010.
            See Exhibit “A”.3

            5. Defendant possessed the medical marijuana to transport
            it through airport security at the Transportation Security
            Administration (“TSA”) checkpoint. TSA employees discovered
            the medical marijuana in his possession. Defendant provided
            his valid medical marijuana certificate to TSA officials as
            well as Hawaii County Police Department officer David T.
            Matsushima.

            6. Defendant was not smoking, inhaling, or ingesting the
            medical marijuana.

            7. The Defendant has been informed that he has the right to
            have a trial. The Defendant has also been informed that at
            trial he has the right to confront and cross[-]examine the
            witnesses who testify. The Defendant hereby waives his
            right to a trial in this matter and agrees to have the
            question of his guilt or innocence determined by the Court
            alone based upon the above facts, exhibits and subsequent
            submissions of counsel. The Defendant also waives his right
            to cross[-]examine the witnesses and agrees to submit the
            above facts, attached exhibits, and submissions of counsel
            without cross-examination.4

The stipulation called upon the trial court to determine the

legal effect (i.e., whether medical marijuana can be transported

in a place open to the public) of the two facts agreed to by the

parties:    (1) that Woodhall’s marijuana was medical marijuana

(Stipulated Facts 4, 5, and 6); and (2) that the Kona

International Airport was a place “open to the public.”

(Stipulated Fact 2).      The district court continued the matter for

further argument and judgment.

      At the continued hearing, the district court heard closing


3
      A copy of Woodhall’s Medical Marijuana Registry Patient Identification
Certificate was included with the stipulation.
4
      The district court also twice colloquied Woodhall regarding whether his
agreement to enter the Stipulated Facts for trial was knowing and voluntary.

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arguments.   The State did not argue or present any evidence that

the marijuana Woodhall possessed and transported did not qualify

as medical marijuana. The State argued only that the prohibition

on transport in public places should be strictly construed:

          [W]e believe that the statute on medical marijuana regarding
          the permitted use of – medical marijuana is very clear. The
          statutes particularly define what the definition of medical
          use is. It includes things like possession, acquisition,
          distribution, and transportation, and the statutes clearly
          state that those activities are prohibited in places that
          are open to the public like an airport in this case. And I
          don’t think there’s any dispute that the Kona International
          Airport in this case is a place open to the public. It’s a
          stipulated fact. And we believe the statute is restrictive,
          but we believe that it was done purposely and deliberately
          by the legislature.

     Similarly, in closing arguments, the defense focused on

whether transport could be prohibited at the Kona International

Airport, a place open to the public, in light of the ambiguity in

the interrelationship between HRS §§ 329-121 and -122.            Defense

counsel argued the statutes were ambiguous, “because you cannot

allow for transportation under the definition of medical use but

yet have no ability to transport [medical marijuana] anywhere

open to the public.”

     In ruling, however, the court stated that the phrase

“relating to the administration of marijuana to alleviate the

symptoms or effects of the patient’s debilitating medical

condition,” found in HRS § 329-121’s definition of “medical use”

qualified “transportation.”      The court also opined that the term

“distribution” in the phrase “medical use” was further “limited

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to the transfer of marijuana and paraphernalia from the primary

caregiver to the qualifying patient.”        HRS § 329-121.

     Defense counsel seemed taken aback by the district court’s

qualification.    Defense counsel argued that the purpose of

Woodhall’s medical marijuana was to alleviate the symptoms or

effects of the patient’s debilitating medical condition, as

evidenced by his valid medical marijuana license.           Defense

counsel also argued that Woodhall was traveling for personal

purposes with the medical marijuana to treat his condition.

Defense counsel then asked the district court if it would like

Woodhall to testify.     The district court then stated, “I don’t

know.   You submitted me these facts, stipulated facts. . . . And

I’m going to rule based upon these stipulated facts.”

     The district court then concluded that the facts of the case

did not show that Woodhall transported the marijuana to alleviate

the symptoms or effects of a debilitating medical condition (or

that the transport involved a transfer of marijuana from a

primary caregiver to Woodhall).       Accordingly, the district court

adjudged Woodhall guilty, imposed a $50 fine, $30 criminal injury

fee, and $250 drug reduction assessment fee.          The execution of

sentence was stayed pending appeal.

     The district court did allow Woodhall to make a statement.

The following exchange occurred:


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       MR. WOODHALL: Well, I would like to ask how, if someone’s
       diagnosed with this problem and given a license by a doctor
       and the state, how do they ever obtain any medicine to begin
       with if they can never have it brought to them or they can
       never acquire it?

       THE COURT: Maybe you didn’t understand or hear what I was
       saying. Okay? Where do you get your marijuana from?

       MR. WOODHALL:   Actually, I grow it.

       THE COURT: You grow it. Okay. So you’re not – you don’t
       need to transport it from one place to the other. You have
       it at home. I think the statute allows transportation if
       you have to get it from someone else and bring it to your
       home. That’s what I think is a reasonable interpretation of
       the statute. Otherwise, it would be somewhat beyond the
       control of the police if everyone were allowed to transport
       it wherever they wanted, whenever they wanted and --

       MR. WOODHALL: Right. But the day you leave your doctor’s
       office and you have your recommendation and you receive your
       license, how do you actually get the marijuana to begin
       with?

       THE COURT: I don’t know. How do other people get it? You
       know, some people have what they call caregivers. I’ve
       heard of people growing marijuana under permit for other
       people. I don’t think the State of Hawaii has pharmacies
       that hand out prescribed marijuana, but I think that the
       statute, in order for it to be a reasonable interpretation,
       would mean that from your primary caregiver, you could go
       there, get your marijuana, and then take it home and
       transport it home, and that would be okay.

       MR. WOODHALL:   What if you don’t have a caregiver?

       THE COURT: You said you grow it at home.    You don’t have to
       transport it anywhere. It’s there.

       MR. WOODHALL: But at some point during the process of me
       acquiring marijuana, I must have broken the law then. So
       the basis of the law would be how do you get it? Unless the
       stork flies over your house and drops it on your land, how
       would you acquire it legally?

       THE COURT:   Pardon me?

       MR. WOODHALL: I mean you could never go somewhere to get it
       from someone to start the whole process if you’re breaking
       the law just by doing that.

       THE COURT: Okay. Well, I guess I can’t explain myself to
       you, and I’m sorry about that.




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      B.     The ICA Appeal

      Woodhall timely appealed.5         The ICA affirmed the district

court’s Notice of Entry of Judgment and/or Order. Woodhall, SDO

at 7.      The ICA held, “Woodhall failed to carry his burden of

proving, by a preponderance of the evidence, his affirmative

5
      While Woodhall’s appeal was before the ICA, the district court filed its
Findings of Fact, Conclusions of Law, and Judgment (“FOFs/COLs”). The ICA
concluded that the district court lacked jurisdiction to enter its FOFs/COLs
once Woodhall filed his Notice of Appeal. State v. Woodhall, CAAP-11-0000097
(App. Sept. 25, 2012)(SDO), at 5-6. The ICA, therefore, did not address
Woodhall’s challenge to the district court’s Conclusion of Law Number 5, which
stated that as a matter of law, medical marijuana cannot be transported in any
place open to the public. Id. at 2-6.
      At oral argument, the State argued that the district court did have
jurisdiction to enter its FOFs/COLs under Rules of the District Court (“RDCH”)
Rule 21 (2011).
http://www.courts.state.hi.us/courts/oral_arguments/archive/oasc_11_97.html.
That rule provides, in relevant part, “The party who prevails after the
presentation of evidence shall upon request submit to the court proposed
findings of fact and conclusions of law pursuant to Rule 52, District Court
Rules of Civil Procedure.” District Court Rules of Civil Procedure (“DCRCP”)
Rule 52(c)(2011) in turn provides, in relevant part, “Notwithstanding the
filing of the notice of appeal, the court shall retain jurisdiction to make
and file such findings and conclusions and to amend the judgment to conform
thereto, if necessary.”
      These rules do not apply to the instant criminal proceeding. See DCRCP
Rule 1 (2011)(“These rules govern the procedure in the district courts of the
State in all suits of a civil nature. . . .”) The Hawai‘i Rules of Penal
Procedure (“HRPP”) “govern the procedure in the courts of the State in all
penal proceedings. . . .” HRPP Rule 1 (2011). HRPP Rule 23(c)(2011) states:

              In a [bench trial] the court shall make a general finding
              and shall in addition, on request made at the time of the
              general finding, find such facts specially as are requested
              by the parties. Such special findings may be . . . in
              writing at any time prior to sentence.

      In this case, sentencing occurred on January 20, 2011. Although the
FOFs/COLs were dated nunc pro tunc to January 20, 2011, they were filed on
March 17, 2011, nearly two months after sentencing. Therefore, the district
lacked jurisdiction to enter its FOFs/COLs.
      In any event, the district court’s Findings of Fact largely restated the
stipulated facts. Its Conclusions of Law set forth the applicable statutes
and culminated in Conclusion of Law Number 5, which stated, “The Court finds,
as a matter of law, [that] HRS § 712-1249(1) prohibits any person from
possessing any amount of marijuana, and that HRS § 329-122 does not permit the
medical use of marijuana in any place open to the public.” We interpret the
applicable statutes as a question of law in any event, regardless of whether
the district court’s Conclusions of Law were properly filed.

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defense of medical use as defined in HRS § 329-121.”               Id. at 4.

Specifically, the ICA stated that the stipulated facts “do not

specify that Woodhall was transporting marijuana to alleviate

symptoms or the effects of a debilitating medical condition.”

Id.    It further held, “The written certification does not create

a presumption as to Woodhall’s purpose for possessing marijuana

at the Kona Airport.”        Id.   For those reasons, the ICA concluded

that the district court did not clearly err in its January 20,

2011 oral findings of fact.         Id. at 4-5.     Woodhall challenges

only this part of the ICA’s SDO on certiorari.

III.    Discussion

       A.   Statutory Interpretation

       In interpreting a statute, we adhere to certain well

established principles:

             First, the fundamental starting point for statutory
             interpretation is the language of the statute itself.
             Second, where the statutory language is plain and
             unambiguous, our sole duty is to give effect to its plain
             and obvious meaning. Third, implicit in the task of
             statutory construction is our foremost obligation to
             ascertain and give effect to the intention of the
             legislature, which is to be obtained primarily from the
             language contained in the statute itself. Fourth, when
             there is doubt, doubleness of meaning, or indistinctiveness
             or uncertainty of an expression used in a statute, an
             ambiguity exists. And fifth, in construing an ambiguous
             statute, the meaning of the ambiguous words may be sought by
             examining the context, with which the ambiguous words,
             phrases, and sentences may be compared, in order to
             ascertain their true meaning.

State v. Silver, 125 Hawai‘i 1, 4, 249 P.3d 1141, 1144

(2011)(citations omitted).         “In construing an ambiguous statute,


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this court may consider ‘[t]he reason and spirit of the law, and

the cause which induced the legislature to enact it . . . to

discover its true meaning.’”       125 Hawai‘i at 4-5, 249 P.3d at

1144-45   (citation omitted).

     B.   Question Presented

     Woodhall’s sole question presented is:
           The ICA gravely erred in holding that in a prosecution under
           HRS § 712-1249, promoting a detrimental drug in the third
           degree, Woodhall’s valid medical marijuana certification was
           insufficient evidence to prove by a preponderance of the
           evidence that Woodhall possessed the marijuana for medical
           purposes pursuant to HRS §§ 329-122 and 712-1240.1, medical
           use of marijuana and defense to promoting, respectively.

     C.   Woodhall’s Argument

     In support of his argument, Woodhall states the following:

           The stipulation to the valid medical marijuana certificate
           subsumes that Woodhall fulfilled the requirements under HRS
           § 329-122(a)(1) and (a)(2). Specifically, the State agreed
           that Woodhall had been diagnosed by a physician as having a
           debilitating medical condition and that his physician
           certified that the medical use of marijuana would likely
           outweigh the health risks in treating Woodhall’s condition.
           The stipulated facts did not indicate that Woodhall
           possessed the marijuana for any purpose other than for
           medicinal use.

As such, Woodhall argues that it is not necessary for him to

“recite that he was in possession of or transporting the

marijuana ‘to alleviate the symptoms or the effects of a

debilitating medical condition,’” in order to avail himself of

the affirmative defense.      Further, Woodhall argues that the ICA’s

“limited interpretation of the medical marijuana statute is

contrary to the purpose of the law as illuminated by the


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legislative history.”     Specifically, Woodhall points to Section 1

of Act 228, which states that the purpose of Chapter 329, Part IX

was “to ensure that seriously ill people are not penalized by the

State for the use of marijuana for strictly medical purposes when

the patient’s treating physician provides a professional opinion

that benefits of medical use of marijuana would likely outweigh

the health risks for the qualifying patient.”          2000 Haw. Sess.

Laws Act 228, § 1 at 596.      Woodhall argues that his failure to

“utter that he . . . was transporting the marijuana ‘to alleviate

symptoms or effects of the qualifying patient’s debilitating

medical condition’” should not nullify the medical use defense,

which would be an absurd reading of the medical marijuana

statutes that the legislature could not have intended.

     Woodhall also argues that if this court finds that it was

necessary for him to have qualified his transportation of

marijuana as necessary “to alleviate symptoms or effects of the

qualifying patient’s debilitating medical condition,” then he

asks that the rule of lenity be exercised in his favor, “given

the lack of clarity in the statute of this requirement.”

Lastly, Woodhall argues that the State presented no evidence that

Woodhall was transporting the marijuana for any purpose other

than medical use.    In fact, the State stipulated that Woodhall

possessed and was in the process of transporting “medical


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marijuana” with a valid medical marijuana certificate.            In light

of these stipulated facts, Woodhall argues that “the ICA gravely

erred in holding that Woodhall failed to carry his burden” of

proving the medical use affirmative defense.

     D.   Analysis

           1.   The Medical Marijuana Affirmative Defense

     Woodhall’s arguments are persuasive.         Medical use of

marijuana pursuant to Chapter 329, Part IX is an affirmative

defense to HRS § 712-1249, promoting a detrimental drug in the

third degree.    “A defense is an affirmative defense if . . . [i]t

is specifically so designated by the Code or another statute.”

HRS § 701-115(3)(1993).

     The part of the code specifically designating medical use of

marijuana as an affirmative defense is HRS § 712-1240.1(2)(1993 &

Supp. 2000), which provides, “It is an affirmative defense to

prosecution for any marijuana-related offense defined in this

part that the person who possessed or distributed the marijuana

was authorized to possess or distribute the marijuana for medical

purposes pursuant to part IX of chapter 329.”          Another statute

also specifically designates medical use of marijuana as an

affirmative defense.     HRS § 329-125(a)(2010) provides, in

relevant part, “A qualifying patient . . . may assert the medical

use of marijuana as an affirmative defense to any prosecution


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involving marijuana under this [part] or chapter 712; provided

that the qualifying patient . . . strictly complied with the

requirements of this part.”

     “If the defense is an affirmative defense, the defendant is

entitled to an acquittal if the trier of fact finds that the

evidence, when considered in light of any contrary prosecution

evidence, proves by a preponderance of the evidence the specified

fact or facts which negative penal liability.”          HRS § 701-

115(2)(b)(1993).    In this case, the only evidence presented was

Woodhall’s Medical Marijuana Registry Patient Identification

Certificate and the stipulated facts.

     “[I]n any criminal case, the burden of proof falls on the

prosecution to prove each element of the crime for which the

defendant is charged.     It is only after the prosecution meets

this burden that any offered affirmative defense becomes

relevant.”    State v. Pratt, 127 Hawai‘i 206, 212, 277 P.3d 300,

306 (2012).    In this case, Woodhall and the State stipulated to

all of the elements of the offense of Promoting a Detrimental

Drug in the Third Degree, in violation of HRS § 712-1249.             The

elements of that offense are that a person (1) knowingly (2)

possesses any marijuana in any amount.         Stipulated Fact 1 states,

“Woodhall knowingly possessed marijuana measuring 2.12 grams.”




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Thus, the prosecution met its burden and triggered the assertion

of Woodhall’s affirmative defense.

     In determining whether a defendant has proven his

affirmative defense by a preponderance of the evidence, this

court has stated, “The preponderance of the evidence standard

directs the factfinder to decide whether ‘the existence of the

contested fact is more probable than its nonexistence.’”            State

v. Romano, 114 Hawai‘i 1, 8, 155 P.3d 1102, 1109 (2007)(citations

omitted).   “Accordingly, ‘[t]o prevail, [the defendant] need only

offer evidence sufficient to tip the scale slightly in his or her

favor, and [the prosecution] can succeed by merely keeping the

scale evenly balanced.”     Id. (citation omitted).

     In this case, however, the district court preempted any

consideration of Woodhall’s affirmative defense by questioning

facts in the stipulation.      The parties stipulated to the

following facts:    (1) that Woodhall was transporting medical

marijuana; and (2) that the transport occurred at the Kona

International Airport, a place open to the public.           In criminal

cases, “stipulations are ordinarily binding. . . .”           State v.

Murray, 116 Hawai‘i 3, 13, 169 P.3d 955, 965 (2007).           The facts

within a stipulation are taken to be “conclusive . . . [and]

binding upon the parties, the trial judge and [the appellate]

court.”   See Hogan v. Watkins, 39 Haw. 584, 586 (Haw. Terr.


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1952).    Stipulations are particularly useful where the parties

wish to narrow the issues for trial.

     The parties in this case stipulated to the essential

elements of the offense of promoting a detrimental drug in the

third degree so that they could put the affirmative defense

squarely at issue.    They then stipulated that Woodhall’s

marijuana was medical marijuana (presumably to meet the

definition of “medical use” under HRS § 329-121), and that Kona

International Airport was a place open to the public (presumably

to fit the prohibition under HRS § 329-122(c)(E)), in order to

further narrow the issue at trial to the legal effect of those

facts:    should HRS §§ 329-121 and -122 be strictly construed in

favor of the State, or should strict construction of these

statutes be set aside as ambiguous and producing an absurd result

the legislature could not have intended?

     The district court did not give full effect to the

stipulation, however, and re-opened for factual determination

Woodhall’s “medical use” of marijuana under HRS § 329-121.             The

stipulated facts show, however, that the parties intended to be a

conclusive and binding fact that the marijuana was for “medical

use.”    First, the parties stipulated that Woodhall “possessed a

valid medical marijuana certificate.”        This fact indicates, inter

alia, that the “qualifying patient has been diagnosed by a


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physician as having a debilitating medical condition,” and that

the “qualifying patient’s physician has certified in writing

that, in the physician’s professional opinion, the potential

benefits of the medical use of marijuana would likely outweigh

the health risks for the particular qualifying patient.”            HRS §§

329-122(a)(1) and (2).

     Second, the stipulation characterizes the marijuana as

“medical marijuana” numerous times, further indicating the

parties’ intent to satisfy the “medical use” definition.            Lastly,

the amount of marijuana in Woodhall’s possession was 2.12 grams,

or 0.074781 ounces.     2.12 grams is within the three-ounce limit

designated by HRS § 329-121 as an “adequate supply,” or “not more

than is reasonably necessary to assure the uninterrupted

availability of marijuana for the purpose of alleviating the

symptoms or effects of a qualifying patient’s debilitating

medical condition. . . .”       Any amount over three ounces could be

considered not for medical purposes.        Therefore, none of the

stipulated facts suggested that Woodhall possessed the medical

marijuana for any purpose other than a “medical use.”

     As such, Woodhall proved he “was authorized to possess . . .

the marijuana for medical purposes pursuant to part IX of chapter

329,” as HRS § 712-1240.1(2) requires.         There was no contrary

prosecution evidence indicating that the marijuana was not for


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medical use.   Therefore, the district court erred in so finding.

The district court heard no further testimony; the credibility of

witnesses was not at issue.      Under HRS § 701-115(2)(b), then,

Woodhall was “entitled to an acquittal if the trier of fact finds

that the evidence, when considered in light of any contrary

prosecution evidence, proves by a preponderance of the evidence

the specified fact or facts which negative penal liability.”                HRS

§ 701-115(2)(b).

          2.   Transportation of Medical Marijuana

     Having shown that the marijuana he possessed was for

“medical purposes pursuant to part IX of Chapter 329,” Woodhall

still had the burden of proving the rest of his affirmative

defense, by a preponderance of the evidence, under HRS § 329-125,

which requires that “the qualifying patient . . . strictly

complied with the requirements of [Chapter 329, Part IX].”             In

other words, Woodhall still had the burden of proving that his

“medical use,” which includes “transportation” under HRS § 329-

121 could nevertheless take place at the Kona International

Airport, a place “open to the public,” in which, pursuant to HRS

§ 329-122(c), “[t]he authorization of medical use of marijuana

. . . shall not apply. . . .”       In light of the tension between

HRS §§ 329-121 and -122, it is not clear what “strict compliance”

with Chapter 329, Part IX fairly means.


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     Before the ICA, the State argued that Chapter 329, Part IX

should be “restrictively” construed to effect the legislature’s

“strong public policy and laws against illegal drug use.”

However, “[e]ven the rule that penal statutes are to be strictly

construed does not permit a court to ignore the legislative

intent, nor does it require the rejection of that sense of the

words used which best harmonizes with the design of the statute

or the end in view.”     State v. Murray, 63 Haw. 12, 621 P.2d 334

(1980)(citing State v. Prevo, 44 Haw. 665, 669, 361 P.2d 1044,

1047 (1961)); see also HRS § 701-104(1993)(“[I]n order to promote

justice and effect the objects of the law, all of [the Hawai‘i

Penal Code] provisions shall be given a genuine construction,

according to the fair import of the words, taken in their usual

sense, in connection with the context, and with reference to the

purpose of the provision.”).

     In creating Chapter 329, Part IX by Act 288 of the 2000

Legislative Session, the legislature’s “end in view” or “purpose

of the provision” was to protect medical marijuana users from

prosecution:

          [T]he purpose of this Act is to ensure that seriously ill
          people are not penalized by the State for the use of
          marijuana for strictly medical purposes when the patient’s
          treating physician provides a professional opinion that the
          benefits of medical use of marijuana would likely outweigh
          the health risks for the qualifying patient.




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2000 Haw. Sess. Laws Act 228, § 1 at 596.         This purpose seems to

envision protection from prosecution for medical users like

Woodhall, who have valid Medical Marijuana Registry Patient

Identification Certificates.

     Chapter 329, Part IX, as enacted, does not clearly carry out

its purpose, leaving qualified patients vulnerable to

prosecution.   It is especially unclear how medical marijuana is

transported to the homes of qualified patients in the first

instance, or by qualified patients anywhere outside their homes.

First, Chapter 329, Part IX envisions only home cultivation as

the manner in which a qualifying patient obtains medical

marijuana.   HRS § 329-121’s definition of “adequate supply”

demonstrates that medical marijuana comes only from plants

cultivated in the home:

           “Adequate supply” means an amount of marijuana jointly
           possessed between the qualifying patient and the primary
           caregiver that is not more than is reasonably necessary to
           assure the uninterrupted availability of marijuana for the
           purpose of alleviating the symptoms or effects of a
           qualifying patient’s debilitating medical condition;
           provided that an “adequate supply” shall not exceed three
           mature marijuana plants, four immature marijuana plants, and
           one ounce of usable marijuana per each mature plant.

     Second, Chapter 329, Part IX makes no provision for how

medical marijuana would even arrive at the qualifying patient’s

home.   Although HRS § 329-121 defines “medical use” to include

“transportation,” and although HRS § 329-121 defines

“distribution” to mean the “transfer of marijuana and


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paraphernalia from the primary caregiver to the qualifying

patient,” HRS § 329-122(c)(E) prohibits “medical use” (to include

“transportation” and “distribution”) in “place[s] open to the

public.”   Presumably, medical marijuana could not be transported

or distributed on sidewalks, see Hawai‘i County Code § 22-

3.8(2002)(requiring that permitted uses on sidewalk “not impede

or endanger the public’s use”), and on “[a]ll roads, alleys,

streets, ways, lanes, bikeways, bridges, and all other real

property highway related interests in the State, opened, laid

out, subdivided, consolidated, and acquired and built by the

government,” as HRS § 264-1(2007 & Supp. 2008) declares these to

be “public highways,” i.e., places open to the public.            In other

words, a qualifying patient’s medical marijuana cultivation and

consumption can only happen at home, yet there is no mechanism by

statute by which the qualifying patient could ever legally bring

the medical marijuana to his or her home.

     Third, assuming the medical marijuana arrives at a

qualifying patient’s home, Chapter 329, Part IX makes no

provision for its possession outside the home, even though

qualifying patients, like other ordinary people, may be absent

from the home for many hours at a time; travel for extended

periods of time; move residences; reside in more than one

residence; evacuate their homes during emergencies like tsunami


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warnings, floods, and fires; and become homeless.            Chapter 329,

Part IX unrealistically envisions a qualifying patient to be

permanently homebound.6      This is the situation the district court

seemed to accept when he told Woodhall, “You grow it.             Okay.      So

you’re not – you don’t need to transport it from one place to the

other.   You have it at home.”

      The confusion within Chapter 329, Part IX is apparent, such

that the meaning of HRS § 329-125’s requirement of “strict

compliance” is uncertain.       An examination of the legislative

history of Act 228 of the 2000 Legislative Session, which was

later codified as Chapter 329, Part IX, provides little guidance.

The legislative history reveals that home cultivation, transport,

and public medical use of marijuana were debated, but without

resulting clarification of those provisions.           First, multiple

6
      The Concurrence/Dissent acknowledges that “the legislature[’s failure]
to adequately provide a mechanism by which a qualifying patient could receive
their initial supply of marijuana is an absurdity that this court can address,
since failing to do so would completely frustrate the legislature’s purpose in
enacting the statute.” Concurrence/Dissent at 8. The Concurrence/Dissent
also asserts, however, that “there is no absurdity in construing [HRS § 329-
122(c)(2)(E)] as prohibiting transportation for other purposes,” the “other
purposes” being any transportation other than the “transportation through
public places for the purpose of obtaining an initial supply of medical
marijuana. . . .” Concurrence/Dissent at 4, 5. However, the definition of
“medical use” in HRS § 329-121 includes “transportation” in general, and it
would be absurd to limit the medical use of marijuana to one’s home only,
which would in effect require a medical marijuana patient to be completely
homebound, given the many legitimate reasons a seriously ill person might need
his or her medication outside the home. In so observing, we do not, as the
Concurrence/Dissent asserts, “engage[] in policy judgments reserved for the
legislature.” Concurrence/Dissent at 8. We simply note that the same
statutory inconsistency between HRS §§ 329-121 and -122, which would prohibit
the initial transport of medical marijuana to the home, exists with respect to
subsequent acts of transport of medical marijuana from the home. There
appears no rational basis to distinguish between transport to versus transport
from the qualifying patient’s home.

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legislators had misgivings about home cultivation as the sole

means by which qualifying patients obtain medical marijuana.

Representative Whalen stated:

          Distribution is one thing, growing [marijuana] on your
          property is something else. [The bill] limits distribution.
          It doesn’t limit the cultivation of it. To get to the main
          point here, if we really wanted to treat [marijuana] as a
          drug we would treat it just as we treat cocaine, heroine
          [sic], morphine, the opiate families, we would treat it as
          such and allow doctors to prescribe it. But what we are
          doing is we are allowing people to grow their own and smoke
          it if they can get their doctor to sign a piece of paper.

2000 House Journal, at 580 (Statement of Rep. Whalen).            Senator

Anderson also had concerns about home cultivation.           He stated he

would rather “designate a grower from each island . . .

designated as people you could buy from,” as that was the trend

on the mainland.    2000 Senate Journal, at 282 (Statement of Sen.

Anderson).   See also 2000 Senate Journal, at 283 (Statement of

Sen. Anderson)(“[T]he way the bill is written, anybody and his

brother could grow marijuana wherever they wanted to. . . .

That’s why I said we should designate an area and allow someone

to be able to enforce this bill that we have.”); 2000 Senate

Journal, at 556 (Statement of Sen. Anderson).          Senator Matsuura

similarly opposed “only one part of this bill and that is on the

cultivation.”   2000 Senate Journal, at 284 (Statement of Sen.

Matsuura).

     Two other senators challenged how, if home cultivation were

the only method of medical marijuana production, acquisition and


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transport could even occur.      Senator Sakamoto had “questions

[about] planting, cultivation, distribution and how one acquires

marijuana since it’s illegal to grow.”         2000 Senate Journal, at

282-83 (Statement of Sen. Sakamoto).        Senator Inouye echoed

Senator Sakamoto’s questions about how patients were to receive

marijuana plants, stating, “Where are the plants to come from?

Perhaps using the airlines to send the plants over from the Big

Island or Kauai or wherever.      That’s a great concern.”        2000

Senate Journal, at 559 (Statement of Sen. Inouye).           This is the

same concern raised by Woodhall in his exchange with the district

court:
          MR. WOODHALL: But at some point during the process of me
          acquiring marijuana, I must have broken the law then. So
          the basis of the law would be how do you get it? Unless the
          stork flies over your house and drops it on your land, how
          would you acquire it legally? . . . . I mean you could never
          go somewhere to get it from someone to start the whole
          process if you’re breaking the law just by doing that.

     As for the prohibition on medical use in public places, only

two legislators weighed in.      Representative Lee’s comment was

less relevant to the instant appeal.        She stated, “[T]his bill

has inadvertently left out access to marijuana for the sickest

and most needy terminal patients.        Many terminally ill patients

spend their last days in hospice or receiving hospital care.

Marijuana would not be allowed in public places such as these.”

2000 House Journal, at 581 (Statement of Rep. Lee).           Senator Chun

Oakland, however, made a point directly relevant to this appeal.

She stated her understanding was “[a]ny diversion [from the

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cannabis laws then in place] would be punished and smoking

outside of one’s home would not be permitted.”           2000 Senate

Journal, at 553 (Statement of Sen. Chun Oakland)(emphasis added).

      This legislative history reveals that even as Act 228 became

law, many of the details were left to future legislative action

but remained unclear over a decade later.7

      The lack of clarity in the statute is apparent when we

consider what kinds of transport would be permissible under

Chapter 329, Part IX if transport cannot occur in any place open

to the public.     At oral argument, the State argued that Chapter

329, Part IX would permit a qualified patient to transport

medical marijuana on foot (i.e., not utilizing any moving vehicle

like an automobile, airplane, ship, etc.), within the confines of

one’s private residence, on private roads, or through the

backyards of one’s neighbors (i.e., not in any place open to the

public). http://www.courts.state.hi.us/courts/oral_arguments/

archive/oasc_11_97.html       This reading of HRS § 329-125’s strict

compliance requirement results in an impracticability that the

legislature could not have intended.         “[A] departure from a

literal construction of a statute is justified when such

7
      None of the subsequent amendments to Chapter 329, Part IX impacted the
“medical use” definition in HRS § 329-121 or the “public places” limitation in
HRS § 329-122. 2001 Haw. Sess. Laws. Act 55, § 15 at 91 (making punctuation
changes to HRS § 329-122); 2009 Haw. Sess. Laws. Act 11, § 43 at 26
(clarifying definition of “physician” in HRS § 329-121); 2009 Haw. Sess. Laws.
Act 169, § 7 at 674 (same); 2010 Haw. Sess Laws, Act 57, § 4 at 81 (same);
2011 Haw. Sess. Laws, Act 73, § 6 at 193 (amending HRS § 329-123).

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construction would produce an absurd result and . . . is clearly

inconsistent with the purposes and policies of the act. . . .”

Morgan v. Planning Dep’t, 104 Hawai‘i 173, 185, 86 P.3d 982, 994

(2004)(citation omitted).       Accordingly, we conclude only that,

under the circumstances of this case, where the defendant has

proved by a preponderance of the evidence that:

           (1)   he was in possession of medical marijuana;

           (2) the weight of the substance did not exceed an “adequate
           supply” under the law;

           (3) he was in possession of a valid medical marijuana
           certificate;

           (4) the marijuana was not being used, ingested or carried
           in open view at the time it was discovered;

           (5) the marijuana was found in an “other place open to the
           public,” where transportation for medical use might
           legitimately occur; and

           (6) no evidence was adduced that the marijuana was
           transported for anything but a medical use;

the rule of lenity applies.       See State v. Bayly, 118 Hawai‘i 1,

15, 185 P.3d 186, 200 (2008) (“[W]here a criminal statute is

ambiguous, it is to be interpreted according to the rule of

lenity.   Under the rule of lenity, the statute must be strictly

construed against the government and in favor of the accused.”)

(citations omitted).      We do not address whether other




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circumstances may similarly invoke the rule of lenity.8

V.   Conclusion

      We hold that the district court erred in re-determining the

fact of medical use in contrast to the parties’ stipulation, thus

preempting consideration of Woodhall’s affirmative defense.               The

parties stipulated to the fact that Woodhall possessed and

transported “medical marijuana” under a valid Medical Marijuana

Registry Patient Identification Certificate.            The State presented

no contrary evidence showing that the marijuana was for any use

other than a medical use.        Thus, Woodhall proved that he was

authorized to possess the marijuana “for medical purposes

pursuant to part IX of Chapter 329[,]” for purposes of the

affirmative defense under HRS § 712-1240.1(2).

      We further hold that the rule of lenity requires us, under

the specific facts of this case, to construe HRS §§ 329-121,

-122, and -125 against the government, as there is an

irreconcilable inconsistency between the authorized

transportation of medical marijuana under HRS § 329-121, and the

prohibition on transport of medical marijuana through “any . . .

place open to the public” under HRS § 329-122(c)(E).




8
      We specifically do not address whether the rule of lenity would be
triggered if “transportation” were to occur through other locations or modes
of transport listed in HRS § 329-122(c)(2)(A)-(E).

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     Therefore, under HRS § 701-115(2)(b), Woodhall was entitled

to an acquittal because his “evidence, when considered in light

of any contrary prosecution evidence, prove[d] by a preponderance

of the evidence the specified fact or facts which negative[d]

penal liability.”    Accordingly, the ICA’s Judgment on Appeal is

vacated, and this case is remanded to the district court with

instructions to enter a judgment of acquittal, consistent with

this opinion.

Kirsha K. M. Durante                     /s/ Paula A. Nakayama
for petitioner
                                         /s/ Simeon R. Acoba, Jr.
Linda L. Walton
for respondent                           /s/ Sabrina S. McKenna

                                         /s/ Richard W. Pollack




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