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SJC-12375

              COMMONWEALTH   vs.   JOSHUA A. RICHARDSON.



       Middlesex.       December 7, 2017. - April 17, 2018.

   Present:   Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.


Marijuana. Medicine. Controlled Substances. Search and
     Seizure, Affidavit, Probable cause, Warrant. Probable
     Cause. License. Jury and Jurors. Evidence, Expert
     opinion, Intent. Intent. Practice, Criminal, Affidavit,
     Motion to suppress, Warrant, Instructions to jury.



     Complaint received and sworn to in the Framingham Division
of the District Court Department on September 9, 2013.

     A motion to dismiss was heard by Douglas W. Stoddart, J.; a
pretrial motion to suppress evidence was heard by Martine
Carroll, J.; and the case was tried before David W. Cunis, J.

     The Supreme Judicial Court granted an application for
direct appellate review.


     Allison Callahan for the defendant.
     Elizabeth J. May, Assistant District Attorney, for the
Commonwealth.


    KAFKER, J.    The defendant, a medical marijuana patient, was

arrested when police discovered twenty-two marijuana plants
                                                                   2


growing in his basement.   After a jury trial, he was convicted

of unlawful cultivation of marijuana and possession with intent

to distribute marijuana.   On appeal, he argues that (1) the

criminal complaint and the search warrant lacked probable cause;

(2) the jury instructions were in error; (3) the evidence was

insufficient to find the defendant guilty beyond a reasonable

doubt; and (4) the medical marijuana law's sixty-day supply

limit is unconstitutionally vague as applied.   For the reasons

stated below, we reverse in part and affirm in part.

     1.   Background.   The defendant, Joshua A. Richardson, was

an unemployed tattoo artist living in Framingham at the time of

his arrest.   On July 2, 2013, he obtained a written

certification from a qualifying physician that approved his use

of medical marijuana to treat a number of medical conditions.

The certification constituted a valid hardship cultivation

registration permitting the defendant to grow up to ten ounces

of marijuana every sixty days for his personal, medical use.1




     1 No medical marijuana dispensaries were operating at this
time and the Department of Public Health (department) had not
yet begun to process hardship cultivation registration
applications. Commonwealth v. Canning, 471 Mass. 341, 348 &
n.10 (2015). Accordingly, every qualifying patient with a
written certification was authorized to cultivate medical
marijuana. Id. at 347-348 & n.8-10, 349. See St. 2012, c. 369,
§ 2 (N) (defining a written certification as a "document signed
by a licensed physician, stating that in the physician's
professional opinion, the potential benefits of medical use of
                                                                     3


Approximately two months later, on September 7, 2013, the

defendant telephoned 911 to report a home invasion at his

residence.   The defendant told the 911 operator that three men

had entered his home and "started beating the hell out of

[him]."

     Officer Wayne Jordan reported to the defendant's residence

within a few minutes of receiving the dispatch.    The defendant

told Wayne that three men had broken into his house, one of whom

had a gun.   Approximately twenty officers arrived on scene,

including a number of Framingham police vehicles; State police

vehicles and canine units; a State police helicopter; and

officers from surrounding towns.   The police established a

perimeter around the house to search for the home invaders.

Framingham police Sergeant Michael Esposito assembled a team of

officers to enter the defendant's home to determine whether the

suspects were still inside.   The team did not find anyone inside

the house.   However, Sergeant Esposito observed a pressure

cooker and an autoclave2 in the kitchen.    In a room on the first

floor, Sergeant Esposito noticed "a fan and blower assembly with

a hose feeding it air or taking air out."    He observed a plastic


marijuana would likely outweigh the health risks for the
qualifying patient").

     2 Sergeant Michael Esposito testified that an autoclave is a
device typically found in a medical facility that is used to
sterilize equipment.
                                                                     4


container with aluminum trays with a brown leafy substance in

them, which he described at trial as "some type of something

growing in those trays."3   He also found a blow torch and

numerous plastic bags in the room.

     Sergeant Esposito learned from other officers on the team

that they had found marijuana growing in the basement.     At that

point, Esposito ordered everyone out of the house and secured

the premises.   Once outside, Sergeant Esposito read the

defendant the Miranda rights.   The defendant indicated that he

would not speak with police without his attorney present, and

Esposito stopped asking him questions.   However, the defendant

then said, unprompted, that the police "only had the right to go

in my house and look for . . . the guys with the gun.    I never


     3 One of the police reports indicated that police believed
this to be a "psilocybin mushroom grow". When police asked the
defendant about the items found in the room on the first floor,
the defendant said "he was experimenting on how to grow
mushrooms" and that "he was teaching his [five] year old son how
to grow things." He stated that "he had also been trying to
grow his own mushroom spores and that they were contained in a
white Styrofoam box in that room." The police seized the
mushrooms and sent them for laboratory analysis. The police
report states that "charges will be filed [for growing
psilocybin mushrooms] after analysis" of the mushrooms. At the
motion to dismiss hearing, the Commonwealth indicated that it
made sense to try the mushroom and marijuana charges together,
but that the Commonwealth did not know the status of the
laboratory analysis of the mushrooms. Ultimately, the
Commonwealth never charged the defendant with a crime related to
the mushrooms. The record does not indicate whether this is
because the laboratory analysis showed that the mushrooms did
not contain psilocybin or for some other reason.
                                                                       5


gave you permission to look for drugs.     This is fucked up."    He

indicated that he had a license to grow marijuana.     At that

point, the defendant was placed under arrest and searched.       The

police found $2,135 in cash in his pocket.

    After the defendant was arrested, he was taken to the

Framingham police station.     He requested to speak with the

detectives investigating his case.     Detective Robert Lewis of

the Framingham police department's narcotics unit brought the

defendant into an interview room and read him the Miranda rights

again.   The defendant explained to the detective that he had

recently been given a medical marijuana card and was growing

marijuana under that registration, referring to the doctor's

certification issued to him on July 2, 2013.     On the morning of

his arrest, he was in the basement pruning his marijuana plants

when he heard a noise coming downstairs.     He saw two

individuals, one with a gun.     He ran upstairs to the second-

floor bedroom, and noticed a third man coming up the stairs

toward him.   He escaped the house and telephoned 911, using a

cellular telephone borrowed from a passing bystander.

    Pursuant to a search warrant, Framingham officers seized

twenty-two plants ranging in height from one foot to three feet

tall, fertilizer, pots, and soil from the basement.       According
                                                                     6


to Officer Lewis, some of the plants were "in full bloom."4    The

plants were all located in the basement, in a tent designed for

growing marijuana.   The officers found two large five feet by

three feet high intensity lights hanging over the marijuana

plants, a ballast system,5 and other boxes of lights in the

basement.   There was a "fertilizer grow kit" in the basement as

well, labeled, "Recipe for Success Starter Kit".   In the room on

the first floor that Sergeant Esposito had previously examined,

they found a scale and plastic bags.6   In the kitchen, they found

fertilizer advertised for growing marijuana.   Detective Lewis

also testified that they found evidence of a tattoo business in

the house, specifically a tattoo gun.   However, he did not find

any physical evidence that a home invasion had occurred or that

anyone else had been in the house.   Lewis further testified that

the defendant's account of seeing a third man come up the stairs




     4 On cross-examination, Detective Robert Lewis could not
identify which plants were flowering from a photograph taken of
the grow operation.

     5 The Commonwealth's expert testified that ballasts are used
in conjunction with high intensity lights to "provide light to a
specific number of plants." The wattage of the ballasts is
important because the brightness of the grow lights affects the
growth cycle of marijuana plants.

     6 The search warrant return document indicates that the
scale was found in the master bedroom, but Detective Lewis
testified that the scale was found in the room on the first
floor.
                                                                      7


to the second floor was inconsistent with the layout of the

house.

    At trial, the defendant's former girl friend, who was

dating and living with him at the time of his arrest, testified

for the Commonwealth.     The couple had known each other for

fourteen months and had dated for eleven months when the

defendant was arrested.    When asked if the defendant was a

regular marijuana user at the time of his arrest, she testified,

"not that I noticed -- maybe a couple times.     I don't know what

he did when I he [sic] was not around."     She stated that he was

not working at the time.     She observed him leave the house from

time to time but didn't know where he went.     She worked five or

six days per week, and when she came home the defendant was

often sleeping, hidden in the back room on the first floor, or

not home.   She acknowledged that the defendant had tattoo

equipment at the house, and that she saw him "do a couple of

tattoos."   She also testified that he was typically paid in cash

by friends for giving them tattoos.     In the whole time she dated

the defendant, she could recall approximately six times that he

said he was going to do work at a tattoo parlor.     She did not

know whether his tattoo equipment included the pressure cooker

or autoclave found in the house.

    The defendant was charged with unlawful cultivation of

marijuana and possession of marijuana with intent to distribute.
                                                                        8


Prior to trial, he moved to dismiss the complaint, arguing that

there was no probable cause to believe he had committed the

crimes charged.     The motion was denied.   The defendant then

moved to suppress his statements to police and the evidence

seized, arguing that he did not give police permission to enter

his house in the first instance, and that there was no probable

cause to believe that he had committed the crimes charged.        The

motion to suppress also was denied.     After a jury trial, the

defendant was convicted on both counts.      The defendant appealed,

and we granted his application for direct appellate review.

     2.   Discussion.    General Laws c. 94C, § 32C (a), provides:

          "Any person who knowingly or intentionally
     manufactures, distributes, dispenses or cultivates, or
     possesses with intent to manufacture, distribute, dispense
     or cultivate a controlled substance in Class D of [§ 31]
     shall be imprisoned in a jail or house of correction for
     not more than two years or by a fine or not less than
     [$500] nor more than [$5,000], or both such fine and
     imprisonment."

The applicability of this section was altered by the

legalization of medical marijuana in Massachusetts.

     The Commonwealth's medical marijuana scheme, St. 2012,

c. 369 (act), was passed by ballot initiative in 2012.7     It

provides in part:


     7 Upon the execution of the transfer agreement between the
department and the Cannabis Control Commission, or on December
31, 2018, whichever occurs first, St. 2012, c. 369, will be
codified as G. L. c. 94I. See St. 2017, c. 55, §§ 44, 82.
                                                                      9


          "A qualifying patient or a personal caregiver shall
     not be subject to arrest or prosecution, or civil penalty,
     for the medical use of marijuana provided he or she:

          "(a) Possesses no more marijuana than is necessary for
     the patient's personal, medical use, not exceeding the
     amount necessary for a sixty-day supply; and

          "(b) Presents his or her registration card to any law
     enforcement official who questions the patient or caregiver
     regarding use of marijuana."

St. 2012, c. 369, § 4.     However, "[n]othing in [the act]

supersedes Massachusetts law prohibiting the possession,

cultivation, transport, distribution, or sale of marijuana for

nonmedical purposes."     St. 2012, c. 369, § 7 (E).   The act went

into effect on January 1, 2013, and corresponding regulations

became effective May 24, 2013.     St. 2012, c. 369, § 16.

     Under the act, qualifying patients may use marijuana for

medicinal purposes, within certain parameters.     "[T]he principal

source of medical marijuana is intended to be the nonprofit

medical marijuana treatment centers, or dispensaries, that are

to be registered by [the Department of Public Health]"

(department).     Commonwealth v. Canning, 471 Mass. 341, 345-346

(2015).   However, the act permits qualifying patients to obtain

a "hardship cultivation registration" in certain limited

circumstances.8    St. 2012, c. 369, § 11.


     8 A recreational marijuana scheme, St. 2016, c. 334, was
later passed by ballot initiative in 2016. Effective December
15, 2016, an individual may grow up to six marijuana plants, so
                                                                    10


    Patients may qualify for a hardship cultivation

registration if their access to a dispensary is "limited by

verified financial hardship, a physical incapacity to access

reasonable transportation, or the lack of a treatment center

within a reasonable distance of the patient's residence."     St.

2012, c. 369, § 11.   A hardship cultivation registration allows

the qualifying patient or the patient's personal caregiver to

"cultivate a limited number of plants, sufficient to maintain a

[sixty]-day supply of marijuana."   Id.   A "sixty-day supply" is

defined by regulation as presumptively ten ounces, unless a

physician certifies that a larger quantity is necessary to

provide the patient with a sixty-day supply.   See 105 Code Mass.

Regs. §§ 725.004, 725.010(I) (2017).

    The hardship cultivation registration was envisioned as "an

approach of last resort."   Memorandum from DPH Medical Marijuana

Work Group to Interim Commissioner of Department of Public

Health and Members of Public Health Council, Informational

Briefing on Proposed Regulations at 105 CMR 725.000, at 6 (Apr.

10, 2013).   Recognizing the possible "diversion and security

complications" that accompany home cultivation, the department

promulgated medical marijuana regulations with an intent to

"minimize hardship cultivation by optimizing access through a


long as no more than twelve plants are grown per household.     See
G. L. c. 94G, § 7 (a) (2); St. 2016, c. 334, § 12.
                                                                     11


variety of [other] approaches."    Id. at 8.   However, at the time

of the defendant's arrest, there were no medical marijuana

dispensaries open in Massachusetts, and the department had not

yet begun to process hardship cultivation registration

applications.    See Canning, 471 Mass. at 347-348 & n.10.     Thus,

as a qualifying medical marijuana patient, the defendant was

permitted to pursue home cultivation under the act.     See id. at

349 ("when the search at issue here took place, the act was not

fully implemented; no marijuana treatment centers were

operating; and therefore, . . . every person who was certified

as a qualifying patient . . . was authorized to cultivate a

sufficient quantity of marijuana to produce a sixty-day supply"

[emphasis in original]).     Accordingly, the defendant was

protected from prosecution for cultivating marijuana for his

personal, medical use, provided he did not possess marijuana in

excess of the amount necessary for a sixty-day supply.        See St.

2012, c.   369, § 4.

    a.     Probable cause.   The defendant argues that the motion

to dismiss and the motion to suppress were each improperly

denied.    On appeal, he provides the same rationale in support of

both contentions -- that there was insufficient probable cause.

    i.     Motion to suppress.   In determining whether the motion

to suppress was properly denied, we are limited to examining the

four corners of the search warrant affidavit.     Canning, 471
                                                                  12


Mass. at 348.   We must decide whether "the magistrate had a

substantial basis to conclude that a crime had been committed, .

. . and that the items described in the warrant were related to

the criminal activity and probably in the place to be searched."

Id., quoting Commonwealth v. O’Day, 440 Mass. 296, 297-298

(2003).

     A search warrant affidavit that merely sets out facts

establishing probable cause to believe a homeowner is growing

marijuana on the property to be searched, without more, does not

establish probable cause to believe a crime has been committed.

Canning, 471 Mass. at 352-353.9   Where the target of the warrant

has a valid hardship cultivation registration, facts indicating

that the person is selling the marijuana or that "in the opinion

of a properly qualified affiant, the number of plants exceeded

the quantity necessary to grow a sixty-day supply of ten ounces"

can supply probable cause.   Id. at 352 n.15.   The search warrant

at issue here established both.

     The affidavit that Detective Lewis submitted in support of

the search warrant stated explicitly that based on the number of

     9 Our opinion in Canning goes on to say that facts
indicating that the person does not have a valid hardship
cultivation registration can supply probable cause. Canning,
471 Mass. at 352. We note, however, that Canning was decided
before recreational marijuana was legalized, which permits
individuals to grow a limited number of marijuana plants without
a hardship cultivation registration. See G. L. c. 94G,
§ 7 (a) (2). See also note 8, supra.
                                                                  13


plants found, the conditions under which they were growing, and

his own experience with the narcotics unit, he believed that the

"marijuana grow" was in excess of the amount necessary for

personal medical use.   Moreover, the affidavit indicated that a

suspected "psilocybin mushroom grow" was found in the house; the

defendant's long-term girl friend did not know why he was

growing marijuana given that he did not smoke marijuana on a

regular basis; and the defendant had said that two men came

directly into his basement, the exact location of his marijuana

grow, and that one had brandished a gun.   This was sufficient to

establish probable cause.10


     10However, we note that the affiant's assertion that "by
and large it is not worth it for users to invest the necessary
time and money to create a successful marijuana grow when they
can simply buy marijuana from somebody else," is not itself a
proper basis for establishing probable cause. The act
contemplates that users with valid hardship cultivation
registrations will cultivate marijuana. It would defeat the
public's purpose in voting for the medical marijuana scheme to
treat evidence consistent with lawful cultivation as evidence of
unlawful cultivation or intent to distribute. Cf. Canning, 471
Mass. at 352 ("The act's medical marijuana program is structured
as a licensing or registration system, and expressly
contemplates the lawful possession, cultivation, and
distribution of marijuana for medical purposes by a number of
different individuals [and certain nonprofit entities], as long
as they are registered to do so. In light of the statutory and
regulatory framework created by the act, a search warrant
affidavit setting out facts that simply establish probable cause
to believe the owner is growing marijuana on the property in
question, without more, is insufficient to establish probable
cause to believe that the suspected cultivation is a crime");
Commonwealth v. Humberto H., 466 Mass. 562, 570 (2013) ("Where
[intent to distribute] is not [supported by probable cause],
                                                                  14


    The defendant argues that the police were required to

investigate how much marijuana constituted a sixty-day supply

under his registration, because "[n]either the statute nor the

[regulations] provide[s] a presumptive limit on how much

marijuana a person may legally prescribe."    The defendant

misstates the law.   Although there is no absolute limit on how

much medical marijuana can be prescribed, the presumptive limit

is indeed ten ounces in a sixty-day period.    See note 14, infra.

Accordingly, there was sufficient probable cause for the search

warrant.

    ii.    Motion to dismiss.   A motion to dismiss for lack of

probable cause is evaluated from the four corners of the

application for a complaint.    See Commonwealth v. DiBennadetto,

436 Mass. 310, 313 (2002); Commonwealth v. Bell, 83 Mass. App.

Ct. 61, 62 (2013).   Here, the application included police

reports from Sergeant Esposito and Detective Lewis, which laid

out substantially the same factual basis as the search warrant

affidavit.   Accordingly, for the reasons explained above, the

motion to dismiss also was properly denied.




criminal prosecution defeats the public's purpose in voting for
decriminalization because it not only treats simple possession
of one ounce or less of marijuana as if it were 'a serious
infraction worthy of criminal sanction,' . . . but it also
treats a drug user as a drug dealer" [citation omitted]).
                                                                    15


     b.   Jury instructions.   The defendant argues for the first

time on appeal that the jury instructions were in error.

Because he did not object to the instructions at trial, we

review for a substantial risk of a miscarriage of justice.      See

Commonwealth v. St. Louis, 473 Mass. 350, 359 (2015).

     i.   Instruction on possession with intent to distribute.

The judge explained that the Commonwealth was required to prove

beyond a reasonable doubt that (1) the substance in question was

a class D substance; (2) the defendant possessed some

perceptible amount of that substance with the intent to

distribute it to another person; and (3) the defendant did so

knowingly or intentionally.    See G. L. c. 94C, § 32C;

Instruction 7.800 of the Criminal Model Jury Instructions for

Use in the District Court (2009).   The defendant argues that

possession with intent to distribute requires possession of

usable marijuana,11 not simply marijuana, and that the judge

erred in failing to make this distinction.    The defendant is

incorrect.

     General laws c. 94C, § 32C, prohibits possessing a class D

substance with intent to distribute.    "Marihuana" is listed as a

     11Usable marijuana is defined by regulation as "the fresh
or dried leaves and flowers of the female marijuana plant and
any mixture or preparation thereof, including [marijuana-infused
products], but does not include the seedlings, seeds, stalks, or
roots of the plant, or [marijuana waste product]." 105 Code
Mass. Regs. § 725.004 (2017).
                                                                   16


class D substance, and is defined to include "all parts of the

plant [c]annabis sativa L., whether growing or not."    See G. L.

c. 94C, §§ 1, 31.   The medical marijuana act adopted the meaning

of "marihuana" as defined in G. L. c. 94C, § 1.    See St. 2012,

c. 369, § 2 (G).    Although the medical marijuana regulations

contain a definition for "usable marijuana," the term is only

used to explain certain regulatory requirements and in no way

alters the meaning of "marihuana" under G. L. c. 94C, § 1.

Accordingly, the judge did not err in instructing the jury that

the defendant need only possess marijuana, not usable marijuana,

for the purposes of possession with intent to distribute.

    The defendant also argues that the instructions were

improper for failing to clarify what evidence the jury may

consider where the defendant has a valid home cultivation

registration.   The judge instructed:

  "Among the factors you may consider in [evaluating intent to
  distribute] are how large a quantity of drugs were possessed,
  how pure in quality the drugs were, what the street value of
  the drugs were, what the defendant's financial resources were,
  how the drugs were packaged, whether there were other items
  that were found along with the drugs which might suggest drug
  sales, such as cutting agents or packaging materials, scale[s]
  or large amounts of cash."

This instruction is primarily derived from our case law prior to

the enactment of the medical marijuana scheme.    See, e.g.,

Commonwealth v. Clermy, 421 Mass. 325, 331 (1995) (packaging of

drugs in many small packets and possession of telephone pager);
                                                                  17


Commonwealth v. Scala, 380 Mass. 500, 511 (1980) (quantity

possessed); Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758-

759 (1984) (quantity, purity, packaging, and amount of cash

possessed).

    Here, the defendant asserts that the judge was required to

include an instruction clarifying that lawful home cultivation

of medical marijuana requires adhering to "industry best

practices," pursuant to 105 Code Mass. Regs. § 725.035(I)

(2017).   The defendant argues that because the jury were unaware

of the best practices requirement, and because the Commonwealth

relied heavily on testimony about his equipment, the jury may

have improperly discerned an intent to distribute from his

lawful use of grow equipment contemplated by the regulatory

scheme.   Although the regulations do not define the "industry

best practices" to which patients must adhere, elsewhere in the

regulations medical marijuana dispensaries are required to "use

best practices to limit contamination, including but not limited

to mold, fungus, bacterial diseases, rot, pests, pesticides not

approved by the [d]epartment, mildew, and any other contaminant

identified as posing potential harm."   105 Code Mass. Regs.

§ 725.105(B)(1)(f) (2017).   As indicated by the expert testimony

at trial, to limit contamination, growers use particularized

equipment, such as high efficiency particulate air filters,

ozone generators, and hydrometers.
                                                                  18


     "An error creates a substantial risk of a miscarriage of

justice unless we are persuaded that it did not 'materially

influence[]' the guilty verdict" (citation omitted).

Commonwealth v. Alphas, 430 Mass. 8, 13 (1999).   "In applying

this standard, we analyze the potential impact of the error on

the verdict, . . . and review the record to determine the

strength of the Commonwealth's case, absent the improper

evidence" (citations omitted).   Commonwealth v. Horne, 476 Mass.

222, 228 (2017).

     Although we agree that juries should be informed of the

"industry best practices" requirement when such an instruction

is requested,12 here we cannot conclude that its absence

materially influenced the verdict on possession with intent to

distribute.   Sophisticated grow equipment designed to increase

the yield of usable marijuana, in combination with a large

number of plants, may properly be considered when evaluating




     12In cases involving a defendant with a valid hardship
cultivation registration, the jury should be instructed that the
medical marijuana regulations require medical marijuana patients
and caregivers to adhere to industry best practices in the
cultivation of marijuana plants and storage of usable marijuana.
105 Code Mass. Regs. § 725.035(I) (2017). "Industry best
practices" is not defined in the regulation, but may be
understood as those industry practices commonly used to limit
contamination. See 105 Code Mass. Regs. § 725.105(B)(1)(f)
(2017). A patient or caregiver's use of industry best practices
is not evidence of criminal intent.
                                                                   19


intent to distribute.13   The testimony at trial indicated that

the actual equipment and methods used for the defendant's grow

operation were primarily associated with increasing yield.

However, there was no testimony indicating that such equipment

was associated with limiting contamination.    To the contrary,

the expert testimony indicated that the defendant lacked

equipment necessary to limit contamination.    More importantly,

in addition to the grow equipment, the jury also heard evidence

of an armed home invasion, a large amount of cash, numerous

plastic baggies, a digital pocket scale, and the defendant's

sparing drug use.   Under these circumstances, the failure to

give a best practices instruction, even if in error, did not

create a substantial risk of a miscarriage of justice.

     ii.   Unlawful cultivation instruction.   The model jury

instruction for unlawful cultivation, and the one given in this

case, albeit with supplementation, is that unlawful cultivation

consists of three elements:   (1) the substance in question was a

class D substance; (2) the defendant cultivated some perceptible

amount of that substance; and (3) the defendant did so knowingly

     13We recognize that there may be overlap between equipment
designed to increase yield and equipment designed to limit
contamination. If fewer plants succumb to contamination, the
total crop yield of usable marijuana will presumably be higher.
However, we discern a distinction between equipment whose
primary purpose is to limit contamination, and equipment whose
primary purpose is to increase yield, irrespective of
contamination.
                                                                    20


or intentionally.   See G. L. c. 94C, § 32C; Instruction 7.800 of

the Criminal Model Jury Instructions for Use in the District

Court.

    Under this definition, any medical marijuana patient who

cultivates his or her own supply of medical marijuana, a class D

substance, pursuant to a hardship cultivation registration would

be guilty of unlawful cultivation.    However, "[u]nder the

[medical marijuana] act, cultivation of marijuana is expressly

permitted if a person . . . is properly registered to do so, and

the cultivation does not exceed the amount necessary to yield a

sixty-day supply of medical marijuana" for the patient's

personal, medical use.   Canning, 471 Mass. at 349; St. 2012,

c. 369, §§ 4, 7.

    The act creates two theories of unlawful cultivation of

medical marijuana where the defendant produces evidence of a

valid hardship cultivation registration:     (1) unlawful

cultivation of more than a sixty-day supply, and (2) unlawful

cultivation for nonpersonal use.     See St. 2012, c. 369, § 4.

Under a theory of unlawful cultivation of more than a sixty-day

supply, the jury must be instructed as to the three elements of

unlawful cultivation mentioned above, as well as two additional

elements:   (a) the defendant cultivated more than the amount

necessary to provide a sixty-day supply of medical marijuana to

the patient; and (b) the defendant did so intentionally.      See
                                                                  21


Canning, 471 Mass. at 349; St. 2012, c. 369, § 4.   It is not

enough that the plants happen to yield more than ten ounces in a

sixty-day period; the medical marijuana regulations contemplate

a patient's ability to return excess marijuana to a medical

dispensary.   See 105 Code Mass. Regs. § 725.105(J)(4) (2017).

Rather, the Commonwealth must show that the defendant was

intentionally cultivating more than the amount necessary to

provide ten ounces of usable marijuana in a sixty-day period.14

     By contrast, under a theory of unlawful cultivation for

nonpersonal use, the jury must instead be instructed as to the

following additional element:   the defendant cultivated

marijuana with the intent to distribute.15   See St. 2012, c. 369,

§§ 4, 7 (E).16


     14The regulations contemplate that a sixty-day supply may
exceed ten ounces for a particular patient. St. 2012, c. 369,
§ 8; 105 Code Mass. Regs. § 725.010(I) (2017). In such
instances, the certifying physician must "document the amount
[that constitutes a sixty-day supply] and the rationale in the
medical record and in the written certification." 105 Code
Mass. Regs. § 725.010(I). For defendants who produce evidence
establishing that they were validly permitted to grow more than
ten ounces every sixty days, the Commonwealth must prove that
they intended to cultivate more than their registration
permitted them to grow in a sixty-day period.

     15The regulations permit home cultivation by a personal
caregiver on behalf of the patient the caregiver serves. See
105 Code Mass. Regs. § 725.020(E) (2017). In cases where a
personal caregiver is being tried for unlawful cultivation for
nonpersonal use, the relevant inquiry is whether the defendant
cultivated marijuana with the intent to distribute it to someone
other than the patient for whom the defendant served as a
                                                                  22


    To determine whether the unlawful cultivation instruction

was erroneous such that it created a substantial risk of a

miscarriage of justice, we must examine the jury instructions as

a whole.   See Commonwealth v. Shea, 467 Mass. 788, 796 (2014).

"Isolated misstatements included in a comprehensive charge to

the jury do not constitute reversible error when there is little

likelihood that the jury would have misunderstood the correct

import of the entire charge."   Commonwealth v. Rogers, 459 Mass.

249, 262, cert. denied, 565 U.S. 1080 (2011).

    Although the judge did not use the language set out above,

he told the jury that the defendant had a valid hardship

cultivation registration and that it was the Commonwealth's

burden to prove the defendant "had so many marijuana plants that

the plant yield was certain to exceed [ten] ounces of usable

marijuana every [sixty] days or that he intended to sell or

distribute any of his usable marijuana."   This instruction

failed to explain that the Commonwealth must show that the

defendant was intentionally cultivating more than ten ounces of

usable marijuana in a sixty-day period.    Without such a

directive, the judge's instructions could have led the jury to


personal caregiver. See St. 2012, c. 369, § 4 (personal
caregivers included in provision protecting personal, medical
use from prosecution).

    16 Model jury instructions for unlawful cultivation of
marijuana is set forth in the Appendix.
                                                                 23


convict the defendant even if he was unintentionally cultivating

more plants than were necessary to yield ten ounces in sixty

days.     Thus, the jury instructions on unlawful cultivation were

erroneous.

     We conclude that this error created a substantial risk of a

miscarriage of justice.17    As will be explained in more detail in

our discussion of the sufficiency of the evidence, there was

limited expert testimony about how much the defendant's plants

would yield.    The jury were also tasked with determining whether

the defendant was a novice or an experienced grower as the two

experts had contradictory testimony on this point.    In these

circumstances, whether the defendant was intentionally

cultivating more than ten ounces was a difficult jury question.

We are not persuaded that the absence of this jury instruction


     17 At oral argument, the Commonwealth insisted that even if
the jury instructions for unlawful cultivation were erroneous,
the defendant's conviction should be upheld under a theory of
unlawful cultivation for nonpersonal use. The Commonwealth
reasoned that because the jury found the defendant guilty of
possession with intent to distribute, he would be guilty of
unlawful cultivation irrespective of whether he grew more than a
sixty-day supply. Without better briefing on the subtle
distinction between unlawful cultivation for nonpersonal use and
possession with intent to distribute in these circumstances, we
decline to consider this theory where it is first raised at oral
argument. See Commonwealth v. Palmer, 464 Mass. 773, 777
(2013); Commonwealth v. Keefner, 461 Mass. 507, 511 (2012);
Warner–Lambert Co. v. Execuquest Corp., 427 Mass. 46, 50 n.7
(1998); Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921
(1975).
                                                                   24


did not materially influence the outcome.     See Alphas, 430 Mass.

at 13.18

     c.    Sufficiency of the evidence.   Next, the defendant

argues that the evidence was insufficient as to both unlawful

cultivation and possession with intent to distribute.     In

reviewing the sufficiency of the evidence, we must determine

whether, viewing the evidence in the light most favorable to the

Commonwealth, any rational trier of fact could have found the

defendant guilty beyond a reasonable doubt.     Commonwealth v.

Latimore, 378 Mass. 671, 677-678 (1979).    "Under this standard

of review, we resolve issues of witness credibility in favor of

the Commonwealth. . . .    In determining whether a reasonable

jury could find each element of the crime charged, we also do

not weigh the supporting evidence against conflicting evidence"

(citation omitted).    Commonwealth v. Brown, 477 Mass. 805, 812

(2017).

     18The defendant also argues that his trial counsel was
ineffective for helping to write the jury instructions he
contends are erroneous. We need not address the defendant's
claim of ineffective assistance as to the unlawful cultivation
conviction, as we have already determined that the instruction
was erroneous and created a substantial risk of a miscarriage of
justice. However, for essentially the same reasons that led us
to conclude that the jury instructions on possession with intent
to distribute did not create a substantial risk of a miscarriage
of justice, we also conclude that those instructions did not
prejudice the defendant. See Commonwealth v. Peters, 429 Mass.
22, 31 n.12 (1999). The only error in those instructions
related to best practices, an issue of marginal relevance in the
instant case.
                                                                     25


    i.   Evidence of yield in excess of sixty-day supply.      As

discussed, the jury were not properly instructed as to the

standard for evaluating whether a defendant exceeded the home

cultivation limit.   We also conclude that the evidence was

insufficient to support such a finding.

    As the Commonwealth's expert testified, an individual

marijuana plant's yield depends on a number of factors,

including the strain, growing conditions, fertilization,

watering, temperature, ventilation, amount of light, location,

and humidity.   Yet the Commonwealth's expert never personally

observed the defendant's marijuana grow.   His testimony was

instead based on reading the police report, search warrant

affidavit, and transcript of prior testimony, and on viewing a

single photograph of the defendant's marijuana plants.     Much of

the ambiguity in the expert testimony in this case arose out of

the dependence of both experts on this single photograph.

    The jury heard testimony from both experts that the

defendant's plant yield would depend particularly on the gender

of the plants grown.   Although female plants produce usable

marijuana, male plants do not.   Moreover, male plants produce a

pollen that will "stress the female plants out and take away the

[tetrahydrocannabinol] factor, if not completely ruin the
                                                                     26


crop."19   When asked about the gender of the defendant's

marijuana plants, the Commonwealth's expert initially testified

that the plants "would definitely be female."    However, when

later asked whether he could specifically identify the gender of

the plants found in the defendant's basement, he said "it would

be tough to identify" the smaller plants based on the

photograph.    He said that, from the photograph, the bigger

plants "look female and [he] would be shocked to see if any of

them were male."    He reasoned that "you would never have a male

plant with a female plant under any circumstances."     When asked

about an inexperienced grower who might cluster male and female

plants together, he opined that such a grower "would never have

. . . a gram to smoke if that were the case."

     The defense expert's testimony did not resolve the

ambiguity.    He testified that generally fifty per cent of

marijuana seeds develop into female plants, but that the gender

ratio can vary by up to fifteen per cent.    For example, a cold

floor could yield a sixty-five per cent male plant population.20




     19Tetrahydrocannabinol is the active ingredient in
marijuana that would make the marijuana usable for the treatment
of the defendant's medical condition.

     20The testimony also was unclear on whether the defendant
was using seeds to grow his plants or if he was cloning them.
Had the defendant cloned his plants, they may have been only
female, but the testimony was ambiguous on this point.
                                                                  27


    Perhaps unsurprisingly, the most definitive statement the

Commonwealth could provide as to projected yield was that in a

"hypothetical situation" with twenty-two marijuana plants in a

basement grow operation with four lights and the setup found in

the defendant's house, the plants "would yield over [ten] ounces

of marijuana, under the proper conditions."    Even construing the

evidence in the light most favorable to the Commonwealth, the

testimony as to the defendant's yield, based primarily on a

single photograph of his plants, is too speculative for a

rational fact finder to conclude beyond a reasonable doubt that

the defendant intended to cultivate more than ten ounces of

usable marijuana in a sixty-day period.

     ii.   Evidence of intent to distribute.    We next examine

whether there was sufficient evidence of the defendant's intent

to distribute.   "A person's . . . intent . . . is a matter of

fact, which may not be susceptible of proof by direct evidence."

Commonwealth v. Ellis, 356 Mass. 574, 578-579 (1970), quoting

Commonwealth v. Holiday, 349 Mass. 126, 128 (1965).    However,

distinguishing between drug possession for personal use and drug

possession for distribution "is not a matter within the common

experience of jurors," and is made all the more difficult by the

legalization of medical, and now recreational, marijuana.

Commonwealth v. Little, 453 Mass. 766, 769 (2009), quoting

Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 457 (2006).
                                                                 28


    Typically, "[i]ntent to distribute a drug may be inferred

from possession of large quantities of that drug."    Commonwealth

v. Rugaber, 369 Mass. 765, 770 (1976).   However, the legal limit

on home cultivation, and uncertainties as to its determination

complicate this inference.    The defendant had twenty-two plants.

Unfortunately, the regulations do not contain a plant-based

limit for home cultivation.   Moreover, even in the light most

favorable to the Commonwealth, the testimony regarding the

number of ounces the defendant's plants would actually yield was

contradictory and speculative, as discussed above.   The

Commonwealth's expert testified, however, that twenty-two plants

growing in a setup like the one found in the defendant's house

could yield over ten ounces under the right conditions.

Although not of much use by itself in determining whether the

marijuana grow was for personal use or distribution, this

testimony could properly be considered along with other evidence

relevant to the issue of intent to distribute.   As discussed,

use of grow equipment designed to increase the yield of usable

marijuana, in combination with a large number of plants, can

properly be considered when evaluating intent to distribute.

    Traditionally, drug possession in the absence of drug

paraphernalia also is probative of intent.   See Commonwealth v.

Wilson, 441 Mass. 390, 401-402 (2004).    In the context of

medical marijuana, this evidence must be analyzed carefully to
                                                                    29


avoid conflating lawful activity with unlawful activity.    Cf.

Canning, 471 Mass. at 352.   The Commonwealth's expert testified

that marijuana users "commonly use rolling papers . . . or pipes

[or] bongs," but, in reviewing the evidence, he did not see any

indication that the defendant possessed these items.21   More

specifically probative is the former girl friend's testimony

that she did not know the defendant to be a regular marijuana

user, and had only seen him use marijuana "a couple times."

Although there was limited testimony as to whether the defendant

could have cultivated any usable marijuana from his plants by

the time of his arrest, his former girl friend's testimony

establishes that he had some supply of marijuana, but rarely

used it, despite his medical conditions.    Thus, her testimony

supports a reasonable inference that the defendant did not

cultivate the marijuana for personal use.

     Numerous plastic bags and a digital pocket scale22 were also

located in the defendant's house, but outside of the kitchen,

where such bags and scale would more ordinarily be found.     The


     21We note that not all medical marijuana users smoke the
marijuana they consume. In fact, the Commonwealth's expert
stated on direct examination that, "we're beginning to see more
edible forms" of marijuana, as well as vaporizing.

     22Although neither Esposito nor Lewis testified that the
scale was a digital pocket scale, this fact came out on cross-
examination of the Commonwealth's expert.
                                                                  30


plastic bags were, however, found on a separate floor from the

marijuana grow, and no evidence was presented connecting them to

the marijuana plants, making this evidence of marginal value.

Contrast Commonwealth v. Clark, 446 Mass. 620, 624 (2006)

(uniform packaging is evidence of intent to distribute);

Commonwealth v. Montanez, 410 Mass. 290, 305-306 (1991) (cutting

powder and drugs packaged in paper folders); Commonwealth v.

LaPerle, 19 Mass. App. Ct. 424, 427-428 (1985) (cutting powder,

wrapping paper, and scale with cocaine residue on pan).

Although there is similarly no evidence connecting the scale to

the marijuana grow, the Commonwealth's expert testified that

drug dealers often possess such types of scales.23

     More significant than the bags and scale are the initial

home invasion and the large sum of money found in the

defendant's pocket when he was arrested.   His former girl friend

testified that he was unemployed, and that she had seen him do

very few tattoos in the span of their relationship.   Thus,

finding $2,135 on his person at the time of his arrest supported

an inference of intent to distribute.   See Sendele, 18 Mass.

App. Ct. at 758-759 ("Very indicative is the large miscellany of

money carried in specie by the defendant, who was otherwise

     23We also recognize that medical marijuana patients may
need use of a scale to weigh the marijuana they grow, so as to
ensure they do not exceed ten ounces. However, no testimony to
that effect was admitted at trial.
                                                                  31


confessedly without any resources and unemployed to boot").

Contrast Commonwealth v. Sepheus, 468 Mass. 160, 166 (2014)

(intent to distribute could not be drawn from defendant carrying

$312, where "[t]here was no evidence that the defendant was

unemployed and thus unlikely legitimately to have that amount of

cash").   Moreover, the defendant told police that two men, one

brandishing a gun, came down into his basement, the very area

where he was growing his marijuana.   In combination with the

Commonwealth's expert testimony that violence and theft are

often associated with drug dealing, the defendant's account of

the home invasion supports an inference that others had

knowledge that he was a drug dealer, and intended to rob him.

    Taken together, the home invasion, large amount of cash

found on the defendant, digital pocket scale, number of plants,

and testimony that the defendant sparingly used marijuana were

sufficient for a rational juror to find him guilty of possession

with intent to distribute beyond a reasonable doubt.

    d.    Constitutionality.   Finally, the defendant asserts that

the sixty-day supply limit established by the medical marijuana

laws and corresponding regulations is unconstitutionally vague

as applied.   Because we conclude that the erroneous jury

instructions for unlawful cultivation created a substantial risk

of a miscarriage of justice, and there was insufficient evidence

of intentional cultivation of more than a sixty-day supply,
                                                                      32


precluding retrial as to unlawful cultivation, we need not

address this argument.    However, we note that of the fifteen

States that currently permit home cultivation as part of their

medical marijuana scheme, Massachusetts is the only State that

defines its limit solely in terms of supply per period.       All

other such States use plant-based limits.24    The only other State

to create a home cultivation limit based on supply period,

Washington, changed to a plant-based limit after widespread

criticism that the prior rule created uncertainty.    See State

Rule Clarifies 60-Day Supply of Medical Marijuana, Seattle

Times, Oct. 3, 2008.     Moreover, even Massachusetts's own

recreational marijuana scheme has a plant-based limit.        G. L.




     24See Colo. Const. art. XVIII, § 14(4)(a)(II) (six-plant
limit, with no more than three mature, flowering plants
producing usable marijuana). See also Alaska Stat. §
17.37.040(a)(4) (six-plant limit, with no more than three
mature, flowering plants producing usable marijuana); Ariz. Rev.
Stat. Ann. § 36-2801(a)(ii) (twelve-plant limit); Cal. Health &
Safety Code § 11362.77(a), (b) (limit of six mature or twelve
immature plants, although patient may grow more with doctor's
recommendation); Haw. Rev. Stat. § 329-121 (ten-plant limit);
Me. Rev. Stat. tit. 22, § 2423-A(1)(B) (limit of six mature
plants); Mich. Comp. Laws § 333.26424(a) (twelve-plant limit);
Mont. Code Ann. § 50-46-319(1)(b)(i) (limit of four mature
plants and four seedlings); Nev. Rev. Stat. § 453A.200(3)(b)
(twelve-plant limit); Or. Rev. Stat. § 475B.831(1)(a) (limit of
six mature plants and twelve immature plants); R.I. Gen. Laws
§ 21-28.6-4(a) (limit of twelve mature plants); Vt. Stat. Ann.
§ 4472(14) (limit of two mature plants and seven immature
plants); Wash. Rev. Code § 69.51A.210(1) (six plant limit).
Finally, see N.M. Code R. § 7.34.4.8(A)(1) (limit of four mature
plants and twelve seedlings).
                                                                     33


c. 94G, § 7 (a) (2) (individuals limited to six plants,

households limited to twelve plants).

    As is evident from the expert testimony at trial, the

amount of usable marijuana yielded by a plant depends on a large

number of variables, including the skill of the grower.     The

ten-ounce rule provides some additional flexibility for patients

who may be inept growers, unable to yield much even from a large

number of plants but, by the same token, it makes enforcement of

the cultivation limit all the more difficult.      Although the law

may not be vague in many cases, such as when a defendant grows

an acre of marijuana, without a plant-based limit, start-up home

cultivation operations like this one may pose a vagueness

problem.    Although we need not resolve this issue in the instant

case, we emphasize that statutory and regulatory clarification

would be most beneficial in this regard.

    3.     Conclusion.   The conviction of possession of marijuana

with intent to distribute is affirmed.     The conviction of

unlawful cultivation marijuana is reversed.

                                     So ordered.
                              Appendix.


   Model Jury Instruction Regarding Unlawful Cultivation with
      Medical Marijuana Hardship Cultivation Registration:
                        Sixty-Day Supply

     Under Massachusetts's medical marijuana act, cultivation of
medical marijuana is expressly permitted if a person is properly
registered to do so, and the cultivation does not exceed a
certain amount. Here, the defendant had a valid hardship
cultivation registration allowing him or her to cultivate up to
ten ounces of marijuana every sixty days. It is the
Commonwealth's burden to prove beyond a reasonable doubt that
the defendant was cultivating more marijuana than was permitted
by his or her hardship cultivation registration. If the
Commonwealth fails to prove beyond a reasonable doubt that the
defendant was cultivating more marijuana than was permitted by
his or her hardship cultivation registration, then you must find
the defendant not guilty.

     In order to prove the defendant guilty of this offense, the
Commonwealth must prove four elements beyond a reasonable doubt:

    First:     That the substance in question is marijuana;

     Second:   That the defendant knowingly cultivated the
substance;

     Third: That the defendant cultivated more than the amount
necessary to provide a sixty-day supply of usable marijuana to
the patient; and

     Fourth: That the defendant intended to cultivate more than
the amount necessary to provide a sixty-day supply of usable
marijuana to the patient.

     As to the first element, the Commonwealth is required to
prove that the substance in question is in fact marijuana.
Marijuana is defined to include all parts of the plant cannabis
sativa L., whether growing or not; the seeds thereof; and resin
extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the
plant, its seeds, or resin. It does not include the mature
stalks of the plant, industrial hemp, fiber produced from the
stalks, oil, or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation
                                                                   2


of the mature stalks, except the resin extracted therefrom,
fiber, oil, or cake or the sterilized seed of the plant which is
incapable of germination.1 You may consider all the relevant
evidence in the case, including the testimony of any witness who
may have testified either to support or to dispute the
allegation that the substance in question was marijuana.

     As to the second element, the term "cultivate" means to
grow a plant or crop, namely marijuana.

     As to the third element, you must determine whether or not
the defendant was cultivating more than a medical supply of
marijuana. Under the medical marijuana act, an individual is
permitted to produce a sixty-day supply of medical marijuana. A
"sixty-day supply" is presumptively ten ounces of usable
marijuana. Usable marijuana is defined as "the fresh or dried
leaves and flowers of the female marijuana plant and any mixture
or preparation thereof, including marijuana-infused products,
but does not include the seedlings, seeds, stalks, or roots of
the plant." A sixty-day supply may be greater than ten ounces,
if the defendant's certifying physician has documented (1) the
greater amount that constitutes a sixty-day supply and (2) the
rationale for the defendant's sixty-day supply exceeding ten
ounces. This documentation must be in the defendant's medical
record and in the defendant's written certification.

     In determining whether the defendant was cultivating more
than necessary to produce ten ounces of usable marijuana in a
sixty-day period, you may consider the number of plants being
cultivated, the defendant's skill at cultivation, and the
conditions under which the plants were growing.

     As to the fourth element, the Commonwealth must prove that
the defendant not only cultivated more than necessary for a
sixty-day supply, but that the defendant intended to cultivate
more than necessary for a sixty-day supply. You may find that
the defendant acted intentionally if he or she did so
consciously, voluntarily, and purposely, and not because of
ignorance, mistake, or accident. It is not enough that the
defendant's marijuana plants happen to be capable of yielding
more than ten ounces in a sixty-day period. The Commonwealth
must prove that the defendant intended to cultivate more than
ten ounces of usable marijuana in a sixty-day period.

    1  Please note that this is the amended definition of
"marihuana" in G. L. c. 94C, § 1, effective July 28, 2017.
                                                                   3


   Model Jury Instruction Regarding Unlawful Cultivation with
      Medical Marijuana Hardship Cultivation Registration:
                         Nonpersonal Use

     Under Massachusetts's medical marijuana act, cultivation of
medical marijuana is expressly permitted if a person is properly
registered to do so, and the cultivation is for the patient's
personal use. Here, the defendant had a valid hardship
cultivation registration allowing him or her to cultivate
marijuana for personal medical use. It is the Commonwealth's
burden to prove beyond a reasonable doubt that the defendant
cultivated marijuana in violation of his or her hardship
cultivation registration by cultivating marijuana with the
intent to distribute rather than solely for his or her personal
use. If the Commonwealth fails to prove beyond a reasonable
doubt that the defendant was cultivating marijuana with the
intent to distribute, then you must find the defendant not
guilty.

     In order to prove the defendant guilty of this offense, the
Commonwealth must prove three elements beyond a reasonable
doubt:

    First:   That the substance in question is marijuana;

     Second: That the defendant knowingly cultivated the
substance; and

     Third: That the defendant cultivated the substance with
the intent to distribute.

     As to the first element, the Commonwealth is required to
prove that the substance in question is in fact marijuana.
Marijuana is defined to include all parts of the plant cannabis
sativa L., whether growing or not; the seeds thereof; and resin
extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the
plant, its seeds, or resin. It does not include the mature
stalks of the plant, industrial hemp, fiber produced from the
stalks, oil, or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation
of the mature stalks, except the resin extracted therefrom,
fiber, oil, or cake or the sterilized seed of the plant which is
                                                                   4


incapable of germination.2 You may consider all the relevant
evidence in the case, including the testimony of any witness who
may have testified either to support or to dispute the
allegation that the substance in question was marijuana.

     As to the second element, the term "cultivate" means to
grow a plant or crop, namely marijuana.

     As to the third element, if it has been proved that the
defendant did knowingly cultivate marijuana, you will have to
determine whether the defendant cultivated the marijuana solely
for his or her own use, or whether the defendant intended the
marijuana for distribution to others. If the defendant is a
personal caregiver under the medical marijuana law, you may find
the defendant guilty only if he or she intended to distribute
marijuana to someone other than the patient for whom the
defendant served as a personal caregiver.




    2  Please note that this is the amended definition of
"marihuana" in G. L. c. 94C, § 1, effective July 28, 2017.
