                                                                                            December 4 2012


                                           DA 11-0705

                      IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2012 MT 277N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DWAIN EDWARD WEAVER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Seventeenth Judicial District,
                        In and For the County of Valley, Cause No. DC-2010-27
                        Honorable John C. McKeon, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Mary L. Zemyan, Attorney at Law, Wolf Point, Montana

                For Appellee:

                        Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant
                        Attorney General, Helena, Montana

                        Nickolas C. Murnion, Valley County Attorney, Glasgow, Montana



                                                    Submitted on Briefs: October 30, 2012

                                                               Decided: December 4, 2012


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Weaver appeals his conviction on seven drug-related charges following a jury trial

in the Seventeenth Judicial District Court, Valley County. Weaver rented a building in

Valley County known as the Missouri River Outpost (The Outpost) for the purpose of

opening a medical marijuana dispensary. Weaver was still in the process of renovating

The Outpost when he was approached by Roosevelt County Undersheriff Ron Kemp on

August 6, 2010. Undersheriff Kemp did not identify himself as a law enforcement officer

and was dressed in plain clothes when he entered The Outpost and asked Weaver about

his plans. According to Undersheriff Kemp, Weaver stated that he would sell marijuana

or hashish to anyone with a registry identification card, and was also planning on selling

to hunters and tourists who came to Montana with medical marijuana cards from other

states. Believing that Weaver was violating the provisions of the Medical Marijuana Act

(MMA), 1 Undersheriff Kemp enlisted the assistance of the Montana Department of

Justice Division of Criminal Investigation (DCI).




1
  All references in this Opinion to the “Medical Marijuana Act” are to the 2009 version of
the Act, §§ 50-46-101 to 210 (2009).
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¶3     Undersheriff Kemp returned to The Outpost on August 9, 2010, accompanied by

DCI Agent Kevin Klostermeier. Agent Klostermeier had obtained a medical marijuana

registry identification card and driver’s license under the fictitious name of Jake Elmore.

Agent Klostermeier told Weaver he was working in the area and was not able to make

contact with his provider. Weaver asked Agent Klostermeier to fill out a “206 Transfer

Form.” After Agent Klostermeier completed the form, Weaver sold him fourteen grams

of hashish. Based on the observations of Undersheriff Kemp and Agent Klostermeier,

officers obtained a search warrant and conducted a search of The Outpost on August 11,

2010. Officers seized twenty-nine marijuana plants, harvested marijuana, hashish, grow

lights, guns, paraphernalia, twelve receipts from previous sales, and customer files. At

the time of the investigation and seizure, Weaver was a registered patient but not an

authorized caregiver. Weaver had applied to become an authorized caregiver under the

MMA, but his application had not yet been approved by the Montana Department of

Public Health & Human Services (DPHHS).

¶4     Weaver was arrested and charged with seven felonies: five counts of criminal

distribution of dangerous drugs, one count of criminal possession of dangerous drugs, and

one count of criminal production or manufacture of dangerous drugs. A jury trial was

held April 5-8, 2011. The jury found Weaver guilty on all seven counts.

¶5     Weaver appeals his conviction in District Court and raises the following issues:

¶6     1. Did the District Court err when it denied Weaver’s pretrial motion to dismiss?

¶7     2. Did the District Court err when it denied Weaver’s motion to suppress evidence

based on entrapment?

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¶8     3. Were Weaver’s patient-to-patient transfers of marijuana and possession of

twenty-nine marijuana plants protected by the affirmative defense provided by the

MMA?

¶9     4. Did the District Court fail to fully and fairly instruct the jury on the affirmative

defense provided by the MMA?

¶10    Weaver argued in a pretrial motion to dismiss that Counts I-VI should be

dismissed because the Information alleged that he possessed and distributed hashish, and

hashish is not specifically listed as a “dangerous drug” in the schedule of controlled

substances. Weaver relied on State v. Kelman, 199 Mont. 481, 483-84, 649 P.2d 1292,

1293-94 (1982), in which this Court held that the facts set forth in an Information

charging a defendant with possession of hashish were insufficient to state a crime under

Montana law because hashish was not defined or listed in the schedules of controlled

substances at that time. The District Court denied Weaver’s motion to dismiss after

concluding that the Information provided sufficient notice of the charged offenses. We

agree with the District Court’s decision.         In response to the Kelman decision, the

Legislature passed legislation in 1983 that added the following definition:

       “Hashish”, as distinguished from marijuana, means the mechanically
       processed or extracted plant material that contains tetrahydrocannabinol
       (THC) and is composed of resin from the cannabis plant.

Section 50-32-101(14), MCA. The statute listing dangerous drugs under Schedule 1

includes “tetrahydrocannabinols, including synthetic equivalents of the substances

contained in the plant or in the resinous extractives of cannabis.”                   Section

50-32-222(4)(bb), MCA. Each of the counts in the Information specifically alleged that

                                              4
Weaver either sold or possessed a dangerous drug as defined in § 50-32-101, MCA. The

District Court correctly concluded that the facts as alleged in the Information were

sufficient to state a crime under Montana law. Weaver’s motion to dismiss was properly

denied.

¶11   Next, Weaver argues that the District Court erred in concluding that he had not

established entrapment as a matter of law. We agree with the District Court that the mere

use of an undercover agent with fake identification does not constitute entrapment.

Weaver failed to meet his burden in proving that he was lured or induced into committing

a crime he had no intention of committing. State v. Smith, 2006 MT 145, ¶ 12, 332 Mont.

386, 138 P.3d 799. Here, the evidence supports the conclusion that entrapment did not

occur because Agent Klostermeier merely afforded Weaver the opportunity to commit an

offense in furtherance of a criminal purpose that originated with Weaver.         Section

45-2-213, MCA.

¶12   The next issue Weaver raises concerns whether his patient-to-patient transfers of

marijuana and possession of twenty-nine marijuana plants were protected by the

affirmative defense provided by the MMA. First, we note that Weaver’s sales and

possession of hashish are not protected by the MMA. See State v. Pirello, 2012 MT 155,

¶ 18, 365 Mont. 399, 282 P.3d 662. Second, the so-called “206 Transfer Form” was

created by the medical marijuana industry and is inconsistent with the requirements of the

MMA, which does not allow cardholders to obtain marijuana from anyone other than

their registered caregiver. See State v. Johnson, 2012 MT 101, ¶ 21, 365 Mont. 56, 277

P.3d 1232. The 206 Transfer Form is not recognized by the DPHHS. Third, Weaver was

                                            5
not a registered caregiver, so as a patient he was allowed to possess only six marijuana

plants and one ounce of marijuana. Section 50-46-201(2), MCA. Given these facts,

Weaver did not present sufficient evidence to support his affirmative defense. The jury’s

rejection of this affirmative defense was fully supported by the evidence in the record.

¶13    Weaver’s final argument is that the District Court abused its discretion in refusing

to offer two of his proposed jury instructions. Weaver’s Proposed Instruction No. 25 was

intended to instruct the jury on the affirmative defense provided by § 50-46-206, MCA.

The State proposed a similar instruction that contained different introductory language

but recited the same elements. The District Court modified the introductory language

proposed by both parties, but recited the elements of the defense in much the same way

as the parties had proposed. Weaver also challenges the District Court’s refusal to give

Weaver’s Proposed Instruction No. 6, which provided definitions of “dangerous drug,”

“marijuana,” and “hashish.” These terms were accurately defined in other instructions

provided by the District Court.     We review jury instructions in a criminal case to

determine whether the instructions, as a whole, fully and fairly instruct the jury on the

law applicable to the case. State v. Michaud, 2008 MT 88, ¶ 16, 342 Mont. 244, 180 P.3d

636. A district court has broad discretion when it instructs a jury. Michaud, ¶ 16. A

review of the jury instructions demonstrates that the District Court fully and fairly

instructed the jury on the law applicable to this case, and did not abuse its discretion

when it refused to accept Weaver’s proposed instructions word for word.

¶14    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions.

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Having reviewed the briefs and the record on appeal, we conclude that Weaver has not

met his burden of showing that the District Court abused its discretion or erred in any

way. We therefore affirm the District Court.



                                                     /S/ PATRICIA COTTER



We concur:


/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE




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