                                                               FILED
                                                            MARCH 12, 2019
                                                      In the Office of the Clerk of Court
                                                     WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

STATE OF WASHINGTON,                           )         No. 35029-1-III
                                               )
                       Respondent,             )
                                               )
                v.                             )         PUBLISHED OPINION
                                               )
GABRIEL RUELAS, JR.,                           )
                                               )
                       Appellant.              )

       LAWRENCE-BERREY, C.J. — Gabriel Ruelas appeals his conviction for possession

of marijuana over 40 grams. At trial, he asserted it was necessary for him to provide the

marijuana for his mother, who was in pain and dying of cancer. Mr. Ruelas requests a

new trial and argues the trial court erred in three ways: (1) in admitting his postarrest, pre-

Miranda1 statements, (2) in requiring a medical expert witness for his necessity defense,

and (3) by precluding his medical expert witness from testifying because his proposed

testimony was first disclosed after the State rested. Finding no error, we affirm.




       1
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).
No. 35029-1-III
State v. Ruelas


                                           FACTS

       On November 10, 2015, Sergeant Oscar Garcia stopped Mr. Ruelas for speeding.

Mr. Ruelas rolled down his window and gave Sergeant Garcia his license and registration.

Sergeant Garcia smelled marijuana coming from the pickup truck. He asked Mr. Ruelas

about the smell and asked him to roll down his rear window. Mr. Ruelas complied, and

Sergeant Garcia saw a large garbage bag containing marijuana. Sergeant Garcia then

arrested Mr. Ruelas for felony possession of marijuana.

       Before advising Mr. Ruelas of his Miranda rights, Sergeant Garcia processed

paperwork to impound the truck. He asked Mr. Ruelas who owned the truck. Mr. Ruelas

answered, “‘My sister.’” Clerk’s Papers (CP) at 40. Mr. Ruelas then explained that he

was returning to his home in Edwall, Washington, after having cleaned the marijuana. He

explained in detail how the marijuana was packaged to make clear to Sergeant Garcia that

he was not selling or trafficking it. Mr. Ruelas said he had a medical marijuana card but

did not provide one. Sergeant Garcia asked Mr. Ruelas where he had cleaned the

marijuana. Mr. Ruelas answered that he grew the marijuana at his home, had taken it to

his sister’s to clean it, and was in the process of taking it back home. Sergeant Garcia

then read Mr. Ruelas his Miranda rights.




                                             2
No. 35029-1-III
State v. Ruelas


       On February 26, 2016, the State charged Mr. Ruelas with one count of possession

of marijuana over 40 grams. Trial was set for May 24, 2016. On May 9, 2016, the parties

agreed to continue the trial for Mr. Ruelas to review an offer and prepare motions.

       On June 13, 2016, the trial court held a CrR 3.5 hearing. The court found that Mr.

Ruelas’s initial pre-Miranda statement was the result of a routine processing question and

that his additional statements were made either spontaneously and not in response to a

question likely to produce an incriminating response. The court denied Mr. Ruelas’s

suppression motion.

       After the court’s ruling, Mr. Ruelas requested a continuance to find an expert

witness. Mr. Ruelas informed the court:

               Judge, we’re anticipating that there’s a medical marijuana defense on
       this particular case. And so the Court’s aware, there’s still the necessity
       defense and we have an expert witness that I have to retain yet, but who will
       testify that the amounts that my client had were consistent with the use for
       the—for himself and the two other people he was providing for.

Report of Proceedings (RP) at 29. Trial was reset for August 23, 2016.

       On July 20, 2016, Mr. Ruelas requested a second continuance to retain an expert

witness, and explained:




                                            3
No. 35029-1-III
State v. Ruelas


              We are requesting one more continuance of trial. . . . I think you
       understand that this is a medical marijuana case. We do plan on putting on
       the defense of necessity for going over the allowed limit. We have been in
       contact or trying to get in contact with Greg Carter. He is going to be our
       expert witness hopefully to testify at trial; however, he is medical director at
       St. Luke’s and he’s very difficult to get in contact with.

RP at 36-37. Trial was reset for October 25, 2016.

       On October 7, 2016, Mr. Ruelas requested a third continuance. He explained,

“There are some medical issues that I think will be coming to light at trial for which we

will require an expert.” RP at 44. He continued, “If this is indeed going to be ramping up

for trial then our search for an expert will actually be fruitful at this point. There was no

point in hiring an expert when we were anticipating a possible resolution.” RP at 45. The

trial court denied Mr. Ruelas’s third continuance.

       On October 18, 2016, Mr. Ruelas filed his final witness list. The list did not

include a medical expert.

       Trial began on October 25, 2016. The court addressed motions in limine and

questioned Mr. Ruelas about his defense of medical necessity. Mr. Ruelas explained that

he was asserting the common law defense of medical necessity, not the statutory defense

under the Washington State Medical Use of Cannabis Act, chapter 69.51A RCW.2 The


       2
       The Medical Use of Marijuana Act was changed to the Washington State
Medical Use of Cannabis Act in 2011. RCW 69.51A.900.

                                              4
No. 35029-1-III
State v. Ruelas


State objected to the defense on the basis that Mr. Ruelas could not lay a proper

foundation without having a medical expert testify. The court agreed, and reasoned:

               [Pittman3] says, “The defendant will be required to show that there is
       no equally effective legal drug.” You would have to have, I believe,
       medical knowledge as to what legal drugs are out there on the market that
       may or may not be as effective as to treat the symptoms that marijuana has
       in the case. I feel that that element and perhaps one of the others would
       require the expert testimony.

RP at 140.

       The State put on its evidence and rested. Mr. Ruelas then told the court that

Dr. Carter was available to testify telephonically, possibly at noon. Mr. Ruelas

said that Dr. Carter had reviewed Mr. Ruelas’s mother’s medical records, and

would testify, “given [her] medical condition [that she was dying of cancer] . . .

there was no other alternative . . . for treating [her] symptoms . . . .” RP at 217-18.

       The State objected:

       [Mr. Ruelas has] had eight months with the case. We have no discovery
       with regards to this potential witness being even an option or that he’s
       going to testify. . . .
              ....
              . . . The fact that he’s not available to come in and testify, that’s
       another issue. The State would object to any telephonic testimony. . . .
              ....



       3
           See State v. Pittman, 88 Wn. App. 188, 196, 943 P.2d 713 (1997).

                                              5
No. 35029-1-III
State v. Ruelas


              So the fact he has in his possession 1800 grams of marijuana, . . . it is
       quite shocking that he wants to throw this name out and surprise the second
       day of trial.

RP at 219-20.

       Mr. Ruelas responded:

       I’m not inviting this, but I think the appropriate remedy is not the exclusion
       of the witnesses [sic], that might be viewed as being an extraordinary
       remedy and should not be taken. I think the Government, if they need time
       to prepare for this witness, can ask for a continuance to adequately prepare
       for the witness. . . .

RP at 221.

       The court weighed whether to continue the trial or to preclude Dr. Carter

from testifying:

       [W]e just heard about this doctor this morning, day two of trial, and I do
       think it’s significantly late. The case was filed . . . eight months ago. . . .
               ....
               . . . And I appreciate this witness is key to the defense and if the
       witness could testify as to what I’ve been told he’ll testify. That would
       make that defense available. The necessity defense.
               And I do think [the late disclosure is] a big problem and I don’t think
       the Court has any alternative but to exclude this witness. I appreciate that
       would . . . prejudice the defendant’s ability to present a defense, but it’s not
       any type of an unfair prejudice to the defendant because he and his counsel
       have had a long time with which to get the witnesses [sic] . . . . And it
       would . . . impose an extreme burden on the Court to have a delay and it
       would result in substantial delay.
               ....
               . . . The problem is there’s two sides in the case that should have a
       right to a fair trial, and that would include the prosecution. The

                                              6
No. 35029-1-III
State v. Ruelas


      prosecution . . . may want to bring in their own witness. They may want to
      think about after they talk to this witness, what he says, and conduct some
      discovery to see whether there may be some other witness that might
      disagree with this Dr. Carter.
              And to allow the witness to testify and to proceed with trial is unfair
      to the prosecution in the case here. . . . And I don’t know what the Court of
      Appeals will do . . . .
              . . . [But reversing under these circumstances] would almost render it
      impossible for a Trial Court to effectively manage a court calendar and do
      their job. It would, I think, encourage lawyers to not do their job.
              So I’m excluding the witness. . . .

RP at 224, 229-32 (emphasis added).

      The trial resumed, closing arguments were given, and the jury found Mr.

Ruelas guilty. He appealed, and we granted oral argument.

      During oral argument, Mr. Ruelas conceded the first issue on appeal. Mr.

Ruelas conceded that his pre-Miranda statements to Sergeant Garcia were not

prejudicial. The statements were consistent with his theory of the case—that the

marijuana was for his mother who was dying of cancer. Mr. Ruelas even

emphasized these statements during his cross-examination of Sergeant Garcia.

                                   ANALYSIS

      A.     THE NECESSITY DEFENSE REQUIRED MEDICAL TESTIMONY

      Mr. Ruelas argues the trial court denied him his constitutional right to present a

defense when it erroneously ruled that a medical expert was required for him to assert the


                                             7
No. 35029-1-III
State v. Ruelas


defense of necessity. Mr. Ruelas’s constitutional argument fails because the trial court

correctly determined that his necessity defense required medical testimony.

        “Generally, necessity is available as a defense when the physical forces of nature

or the pressure of circumstances cause the accused to take unlawful action to avoid a

harm which social policy deems greater than the harm resulting from a violation of the

law.” State v. Diana, 24 Wn. App. 908, 913, 604 P.2d 1312 (1979). The common law

defense of necessity is available even though Washington has legalized marijuana. State

v. Kurtz, 178 Wn.2d 466, 476-77, 309 P.3d 472 (2013).

        A defendant asserting the necessity defense must prove four elements by a

preponderance of the evidence. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN

JURY INSTRUCTIONS: CRIMINAL (WPIC) 18.02, at 292 (4th ed. 2016). The four elements

are: (1) the defendant reasonably believed the commission of the crime was necessary to

avoid or minimize the harm, (2) the harm sought to be avoided was greater than the harm

resulting from a violation of the law, (3) the threatened harm was not brought about by

the defendant, and (4) no reasonable legal alternative was available that is as effective as

marijuana.4 Id.; see also Pittman, 88 Wn. App. at 194. Only the fourth element is at issue

here.


        4
            WPIC 18.02 states the last element as: “no reasonable legal alternative existed.”

                                                8
No. 35029-1-III
State v. Ruelas


       The history of the medical necessity defense for marijuana in Washington had been

in flux until about five years ago.5 But when addressed, courts have stated that expert

medical testimony is required to prove the fourth element. The medical necessity defense

for marijuana was first recognized in Diana. Diana, 24 Wn. App. at 916. There, the

defendant was charged with possession of marijuana but argued the defense of medical

necessity. Id. at 909, 912. The court remanded to the trial court to determine if the

defense applied, largely using the four element test described above. Id. at 916. The

court went on to state, “To support the defendant’s assertions that he reasonably believed

his actions were necessary to protect his health, corroborating medical testimony is

required.” Id.

       In Williams, the defendant was charged with unlawful manufacturing of marijuana,

possession with intent to deliver, and possession of marijuana. State v. Williams, 93 Wn.


That has been modified for marijuana cases per Pittman, 88 Wn. App. at 194.
       5
         See, e.g., Diana, 24 Wn. App. at 916 (establishing the necessity defense); State v.
Cole, 74 Wn. App. 571, 578, 874 P.2d 878 (1994) (adopting Diana’s reasoning); Pittman,
88 Wn. App. at 195-96 (adopting Diana’s reasoning); State v. Williams, 93 Wn. App.
340, 345-46, 968 P.2d 26 (1998) (holding that, with respect to schedule I drugs, a
common law medical necessity defense does not exist), abrogated by Kurtz, 178 Wn.2d
466; State v. Butler, 126 Wn. App. 741, 750, 109 P.3d 493 (2005) (holding that the
statutory affirmative defense in the Medical Use of Cannabis Act superseded the common
law medical necessity defense), abrogated by Kurtz, 178 Wn.2d 466; Kurtz, 178 Wn.2d at
477 (holding the common law defense of medical necessity is still available even after the
Medical Use of Cannabis Act).

                                             9
No. 35029-1-III
State v. Ruelas


App. 340, 343, 968 P.2d 26 (1998). The defendant asserted the defense of medical

necessity. Id. Although Williams ultimately held that there is not a defense of medical

necessity with respect to schedule I drugs, it first analyzed the medical necessity defense.

Id. at 346-47. In its analysis, the Williams court recognized the test established by Diana

and later adopted by Cole. Id. at 346. The Williams court also adopted Diana’s reasoning

that corroborating medical evidence is required to satisfy the test. Id. The court held:

       [T]here would also have to be corroborating medical evidence that no other
       legal drugs were as effective in minimizing the effects of the disease.
       Although this element was not stated in the prior case law, it would make
       sense that this element be expressed by an expert who knew the qualities of
       other drugs, not just the preference of the defendant.

Id. at 347. Although part of Williams’ holding has been overruled, this part has yet to be

changed. And its reasoning is sound. We conclude the trial court did not err in

determining that Mr. Ruelas’s necessity defense required medical expert testimony.6

       B.     NO ABUSE OF DISCRETION FOR PRECLUDING WITNESS TESTIMONY




       6
         Mr. Ruelas also argues he did not need to obtain an expert witness to assert the
statutory defense under the Medical Use of Cannabis Act. We do not address this
argument because Mr. Ruelas clearly represented to the trial court that he was asserting
his necessity defense based on the common law application, not the Medical Use of
Cannabis Act. “Arguments or theories not presented to the trial court will generally not
be considered on appeal.” Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 290, 840 P.2d
860 (1992).

                                             10
No. 35029-1-III
State v. Ruelas


       Mr. Ruelas argues the trial court erred in precluding Dr. Carter from testifying.

We disagree.

       A trial court may sanction a criminal defendant under CrR 4.7(h)(7)(i) for failing

to comply with discovery deadlines by excluding the testimony of a defense witness.

State v. Hutchinson, 135 Wn.2d 863, 881, 959 P.2d 1061 (1998). But exclusion of

evidence is an extraordinary remedy, one that must be applied narrowly. Id. at 882. We

review a trial court’s choice of CrR 4.7 sanctions for an abuse of discretion. Id.

       In order to preclude witness testimony because of a discovery violation, the court

must weigh four factors:

       (1) the effectiveness of less severe sanctions; (2) the impact of witness
       preclusion on the evidence at trial and the outcome of the case; (3) the
       extent to which the prosecution will be surprised or prejudiced by the
       witness’s testimony; and (4) whether the violation was willful or in bad
       faith.

Id. at 883.

       Effectiveness of less severe sanctions: The trial court found that a less severe

sanction, such as a substantial trial continuance, would not be effective. The court

determined that a substantial trial continuance would burden the court’s ability to manage

its own trial schedule and encourage late witness disclosures. We note that the jury had

been empaneled and it had heard most of the evidence. A substantial trial continuance


                                             11
No. 35029-1-III
State v. Ruelas


would have required the jury to return weeks or months later after the State interviewed

Dr. Carter and then procured its own medical expert. By that time, the jury likely would

have forgotten much of the evidence the State presented. The trial court reasonably

concluded that a lesser sanction would not be effective.

       Impact of witness preclusion on evidence and case outcome: The trial court found

that precluding Dr. Carter from testifying would prevent Mr. Ruelas from presenting his

necessity defense. The court further concluded that this prejudice was not unfair because

Mr. Ruelas had eight months to obtain a medical expert. We agree. We also question

whether precluding Dr. Carter from testifying impacted the outcome of the case.

Although Dr. Carter would have testified that marijuana was medically necessary for Mr.

Ruelas’s mother, Mr. Ruelas would have been hard-pressed to justify why she needed

1,800 grams of it.

       Prosecution surprise or prejudice: The trial court found that the State was both

surprised and prejudiced by Dr. Carter’s proposed testimony. Mr. Ruelas never formally

disclosed Dr. Carter as a witness until the second day of trial. The State had no reason to

obtain its own medical expert for the trial. Had the trial court allowed Dr. Carter to

testify, the State likely would have needed a substantial trial continuance, which risked

the jury forgetting much of the testimony it heard in the State’s case.


                                             12
No. 35029-1-III
State v. Ruelas


        Culpability of violation: The trial court did not make a finding whether Mr.

Ruelas' s late disclosure was willful/bad faith. Our review of the record convinces us that

Mr. Ruelas did not act willfully or in bad faith. Mr. Ruelas explained that it was difficult

to obtain his mother's medical records, which Dr. Carter needed to review. Mr. Ruelas

also expressed difficulty in communicating with Dr. Carter, who he described as very

busy.

        Nevertheless, the weight of the first three factors are such that we conclude the

trial court did not abuse its discretion when it precluded Dr. Carter from testifying. Mr.

Ruelas does not cite any authority that holds that a trial court abuses its discretion when it

precludes an expert disclosed during trial from testifying. We presume there is no

authority. See Oregon Mut. Ins. Co. v. Barton, 109 Wn. App. 405,418, 36 P.3d 1065

(2001).

        Affirmed.


                                                    l.-... . . '"'"' (.,... ~1.N\. c..1 , C.. ~.
                                                   Lawrence-Berrey, C.J.

WE CONCUR:




                                                   Fearing, J.



                                              13
