                    IN THE SUPREME COURT OF THE STATE OF IDAHO
                                   Docket No. 43332


                                                          )
    STATE OF IDAHO,                                       )   Boise, November 2016 Term
                                                          )
         Plaintiff-Respondent,                            )   2017 Opinion No. 11
                                                          )
    v.                                                    )   Filed: February 3, 2017
                                                          )
    DOUGLAS EARL MEYER,                                   )   Stephen W. Kenyon, Clerk
                                                          )
         Defendant-Appellant.                             )
                                                          )

__________________________________

          Appeal from the district court of the Fourth Judicial District of the State
          of Idaho, Ada County. Hon. Richard D. Greenwood, District Judge.

          The district court’s judgment of conviction is affirmed.

          Eric D. Fredericksen, State Appellant Public Defender, Boise, attorneys
          for appellant. Brian R. Dickson argued.

          Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, attorney
          for respondent. Jessica M. Lorello argued.

W. JONES, Justice
                                         I. NATURE OF THE CASE
          Appellant, Douglas Earl Meyer (“Meyer”), appeals his felony conviction for possession
of over three ounces of marijuana. Meyer asserts on appeal that the district court erred when it
denied his request for a jury instruction on the necessity defense. Meyer is a Washington State
resident who has a prescription for medical marijuana and is the designated medical marijuana
provider 1 for one, Tammy Lee Rose. 2 He was arrested while driving through Idaho on his way to
California with over three ounces of marijuana in his vehicle. He argues that the district court
was required to provide a necessity defense jury instruction because he had made a prima facie

1
  In accordance with RCW 69.51A.005, medical marijuana patients in the state of Washington may identify a
“designated provider” who is permitted to sell medical marijuana to them.
2
  Tammy Lee Rose lives at the same residence as Meyer. She was planning to meet Meyer in California and did not
travel to Idaho with him.

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showing of each of the elements of that defense: (1) he will suffer pain if he does not use
marijuana; (2) he was not the cause of his medical condition; (3) marijuana is an effective
medication for him where other medications have not been effective; and (4) any harm caused by
violating the law is less than the harm that he would have suffered if he did not use marijuana.
The State responds that Meyers did not make a showing of each of the elements of the necessity
defense because: (1) Meyer’s use of marijuana to treat chronic pain does not constitute a specific
threat of harm; and (2) Meyer could have avoided violating the law altogether by driving through
Oregon instead of Idaho. The State further asserts that to the extent that Idaho Supreme Court
precedent set forth in State v. Hastings, 118 Idaho 854, 801 P.2d 563 (1990) requires a necessity
instruction in this case, Hastings should be overturned.
                          II. FACTUAL AND PROCEDURAL BACKGROUND
       On August 24, 2014, Meyer was pulled over for driving in excess of the speed limit.
Police recovered an amount of marijuana in excess of three ounces as well as $2,600 in cash. The
State charged Meyer with: (1) possession of a controlled substance with intent to deliver in
violation of Idaho Code section 37-2732(a), and in the alternative (2) possession of marijuana in
excess of three ounces in violation of Idaho Code section 37-2732(e). Each of these crimes is a
felony in the state of Idaho.
       On January 27, 2015, Meyer filed a motion for jury instructions. The motion contained
the following necessity instruction:
                                       INSTRUCTION NO.______
              The defendant cannot be guilty [of (name of crime)] if the defendant acted
       because of necessity. Conduct which violates the law is justified by necessity if:
       1. There is a specific threat of immediate harm to [the defendant] [name of
          person],
       2. The defendant did not bring about the circumstances which created the threat
          of immediate harm,
       3. The defendant could not have prevented the threatened harm by any less
          offensive alternative, and
       4. The harm caused by violating the law was less than the threatened harm.
               The state must prove beyond a reasonable doubt that the defendant did not
           act because of necessity. If you have a reasonable doubt on that issue, you
           must find the defendant not guilty.




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       On February 4, 2015, Meyer submitted an Offer of Proof to the district court. The Offer
of Proof provided as follows:
       1) The Defendant has a prescription for medical marijuana issued by Presto
       Quality Care . . . .
       2) The Defendant has been designated as a Medical Marijuana Provider by the
       State of Washington for Tammy Lee Rose. . . . Additionally, Tammy Lee Rose
       will be available to confirm that Douglas Earl Meyer is her designated Medical
       Marijuana Provider.
       3) Douglas Earl Meyer was examined by Dr. Stephen A. McLennon . . . . Dr.
       McLennon will be available telephonically February 6th, 2015 at 9:00 am.
       4) Douglas Meyer will be available to explain to the Court his various ailments
       and medical issues.
A copy of Meyer’s prescription for medical marijuana, his state designation as a medical
marijuana provider, Dr. McLennon’s curriculum vitae and evaluation, and Meyer’s medical
history were all submitted to the district court along with the offer of proof.
       Dr. McLennon’s evaluation stated as follows:
       [Meyer] has decided to forgo the use of prescription pain medications, which have
       caused unpleasant and intolerable side effects, without adequate pain relief. He
       prefers a natural plant medicine that helps manage numerous symptoms, without
       causing additional ones.
       On February 6, 2015, the district court held a hearing with respect to the jury instruction
and offer of proof. The district court found that “there is no evidence proffered of a threat of
immediate harm that I think is contemplated by the statute and by the cases . . . . We have
someone who will undergo some discomfort for some period of time . . . I don’t mean to
minimize the fact that pain hurts . . . [but] there is no suggestion it puts anyone in imminent
danger of life or limb.” Accordingly, the district court denied Meyer’s motion for a jury
instruction as to the necessity defense.
       On February 9, 2015, Meyer and the State entered into a stipulation to enter a conditional
guilty plea. In that stipulation, Meyer agreed to plead guilty but withheld his right to withdraw
that plea pending appellate review of the district court’s refusal to include Meyer’s proposed
necessity jury instruction. In conjunction with the stipulation, Meyer pled guilty to possession of
over three ounces of marijuana.
       On May 28, 2015, the district court entered a judgment of conviction and commitment,
convicting Meyer of felony possession of marijuana in excess of three ounces, and sentencing


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him to six months fixed and two years and six months indeterminate, a suspended fine of $5,000,
and restitution of $2,574.46.
       Meyer appeals.
                                      III. ISSUE ON APPEAL
1.     Did the district court err by denying Meyer’s proposed jury instruction on the legal
       defense of necessity?
                                   IV. STANDARD OF REVIEW
       A motion for a jury instruction is judged by whether there is a reasonable view of the
evidence that supports the requested instruction. See State v. Howley, 128 Idaho 874, 878, 920
P.2d 391, 395 (1996). This Court reviews the district court’s decision for abuse of discretion. Id.
                                           V. ANALYSIS
A.     The district court correctly concluded that no reasonable view of the evidence
       presented would support a necessity instruction.
               A trial court presiding over a criminal case must instruct the jury on all
       matters of law necessary for the jury’s information. I.C. § 19–2132. In other
       words, a trial court must deliver instructions on the rules of law that are “material
       to the determination of the defendant’s guilt or innocence.” State v. Mack, 132
       Idaho 480, 483, 974 P.2d 1109, 1112 (Ct.App.1999). This necessarily includes
       instructions on the “nature and elements of the crime charged and the essential
       legal principles applicable to the evidence that has been admitted.” State v.
       Gain, 140 Idaho 170, 172, 90 P.3d 920, 922 (Ct.App.2004). Each party is entitled
       to request the delivery of specific instructions. However, such instructions will
       only be given if they are “correct and pertinent.” I.C. § 19–2132. A proposed
       instruction is not “correct and pertinent” if it is: (1) an erroneous statement of the
       law; (2) adequately covered by other instructions; or (3) “not supported by the
       facts of the case.” State v. Olsen, 103 Idaho 278, 285, 647 P.2d 734, 741 (1982).
State v. Severson, 147 Idaho 694, 710–11, 215 P.3d 414, 430–31 (2009). “If the requested
instruction is not supported by the evidence, the court must reject the requested instruction.”
Howley, 128 Idaho at 878, 920 P.2d at 395.
        In State v. Hastings, 118 Idaho 854, 801 P.2d 563 (1990), this Court recognized the
common law defense of necessity pursuant to Idaho Code section 73–116. The Hastings Court
set forth Idaho’s definition of the necessity defense as containing the following four elements:
       1. A specific threat of immediate harm;
       2. The circumstances which necessitate the illegal act must not have been brought
       about by the defendant;
       3. The same objective could not have been accomplished by a less offensive
       alternative available to the actor; and

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       4. The harm caused was not disproportionate to the harm avoided.
Id. at 855, 801 P.2d at 564. It follows that in order for a court to be required to give a necessity
instruction to the jury, the moving party must provide at least some factual support for each
element identified in Hastings.
       In addition to providing for necessity defenses generally, the Hastings Court established
that it is possible for a defendant charged with manufacturing of a controlled substance
(marijuana) to provide facts sufficient to warrant a necessity instruction. Id. at 856, 801 P.2d at
565. Hastings concerned the prosecution of an Idaho woman with rheumatoid arthritis who used
marijuana to control pain and muscle spasms associated with the disease. Id. at 855, 801 P.2d at
564. The defendant requested a jury instruction on “medical necessity,” which was refused by
the district court. Id. On appeal, this Court declined to recognize a special defense for “medical
necessity,” but held that the district court erred in refusing to give a standard necessity
instruction. Id. at 856, 801 P.2d at 565.
       Meyer asserts on appeal that the district court abused its discretion when it concluded that
there was no reasonable view of the evidence presented in this case sufficient to support a
necessity instruction. As a preliminary matter, we agree with Meyer that the district court erred
in its reasoning. The first element of necessity is that there must be a specific threat of immediate
harm. The district court concluded that there was no reasonable interpretation of the facts that
could lead a jury to find that a threat of immediate harm existed. It reasoned that “[w]e have
someone who will undergo some discomfort for some period of time . . . I don’t mean to
minimize the fact that pain hurts . . . [but] there is no suggestion it puts anyone in imminent
danger of life or limb.”
       This reasoning was error on the part of the district court. The necessity defense does not
require a threat of harm that qualifies as “danger of life or limb.” This is evident from a plain
reading of this Court’s language in Hastings, which establishes that the necessity defense
requires only “a specific threat of immediate harm”; there is no severity threshold either
explicitly or implicitly in our language. The fact that situations where the necessity defense has
been found appropriate often have been situations involving danger to life or limb does not entail
that such a magnitude of danger is requisite. Indeed, some of the examples of necessity that this
Court cited in Hastings—disorderly conduct while engaging in a political protest and speeding to



                                                 5
allow a police officer in pursuit of another to pass—did not involve imminent danger to life or
limb. 118 Idaho at 855–56, 801 P.2d at 564–65.
        Despite the fact that the district court may have erred in its reasoning, the district court
did not err in its conclusion. In Hastings, this Court established that the necessity defense is only
available where “[t]he same objective could not have been accomplished by a less offensive
alternative available to the actor.” In this case, Meyer’s objective was to avoid pain caused by his
medical condition. He brought over three ounces of marijuana into Idaho, which is a felony
offense. He was planning to be in Idaho for roughly eight hours. 3 Meyer did present some
evidence suggesting that he had tried other medications which had not been as effective and had
had negative side effects that led him to “prefer” marijuana. However, Meyer did not present
evidence that there was no legal method by which he could manage his pain for the eight hours
that he was in Idaho. Without a prima facie showing that Meyer did not have any legal
alternative to manage his pain for that short period of time, including through the procurement of
medications which are legal in the State of Idaho, Meyer cannot show that the district court erred
in refusing to instruct the jury as to necessity.
        With respect to the State’s assertion that this Court should overturn its decision in
Hastings, we decline to take such an action. This Court has established that is does not overturn
precedent when a case can be resolved without conflicting with said precedent. See Houghland
Farms, Inc. v. Johnson, 119 Idaho 72, 77, 803 P.2d 987, 983 (1990) (“We should not consider
overruling a controlling precedent, if there are other grounds for disposing of an appeal.”).
Hastings was a case in which a defendant did provide facts such that a necessity instruction was
supported in a marijuana case. It does not stand for the proposition that a necessity instruction is
automatically warranted in all cases involving marijuana. Rather, it is within the purview of the
district court to review the individual facts in each case and determine whether those facts
provide a sufficient basis for each individual element of a necessity defense. Here, the facts fell
short of that mark. There is no need for this Court to overrule Hastings in order to reach this
conclusion.
                                              VI. CONCLUSION

3
  The State points out that Meyer planned to be driving for the majority of his time in Idaho. While this is
concerning, the district court was correct in determining that Meyer was not charged with driving under the
influence, and, accordingly, in considering the “harm” that Meyer caused, the district court properly limited its
analysis to felony possession of marijuana.

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      We affirm the district court’s judgment of conviction.
      Chief Justice BURDICK, Justices EISMANN and HORTON, and Justice pro tem J.
JONES, concur.




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