                                                                  FILED BY CLERK
                         IN THE COURT OF APPEALS
                             STATE OF ARIZONA                       MAY 17 2013
                               DIVISION TWO                           COURT OF APPEALS
                                                                        DIVISION TWO



THE STATE OF ARIZONA,                         )
                                              )
                                Petitioner,   )
                                              )
             v.                               )   2 CA-SA 2013-0025
                                              )   DEPARTMENT B
HON. RICHARD S. FIELDS, Judge of              )
the Superior Court of the State of Arizona,   )   OPINION
in and for the County of Pima,                )
                                              )
                              Respondent,     )
                                              )
             and                              )
                                              )
JUSTIN JAMES CHASE,                           )
                                              )
                    Real Party in Interest.   )
                                              )


                          SPECIAL ACTION PROCEEDING

                        Pima County Cause No. CR20124003001

                   JURISDICTION ACCEPTED; RELIEF GRANTED


Barbara LaWall, Pima County Attorney
 By Nicolette Kneup                                                           Tucson
                                                              Attorneys for Petitioner

Lori J. Lefferts, Pima County Public Defender
 By David J. Euchner                                                          Tucson
                                                  Attorneys for Real Party in Interest


V Á S Q U E Z, Presiding Judge.
¶1            In this special action, petitioner State of Arizona challenges the respondent

judge’s ruling remanding the criminal action against Justin Chase to the grand jury and

ordering that it be instructed on two possible “interpretations” of the Arizona Medical

Marijuana Act (AMMA), A.R.S. §§ 36-2801 through 36-2819. We accept jurisdiction of

this special action, and, for the reasons stated below, grant relief.

                               Background and Jurisdiction

¶2            In October 2012, a Tucson police officer saw an advertisement for

marijuana posted on the website Craigslist.com. The title of the advertisement included

the name of a variety of marijuana and “$10,” and, in the text, Chase stated he had “extra

medical marijuana for legal card holders.” The officer arranged to meet Chase in a

grocery store parking lot, and Chase sold the officer six grams of marijuana “for $60

cash.” Chase was arrested, and officers went to his residence and found marijuana plants,

“two mason jars containing marijuana,” and “three digital scales.”

¶3            The state presented the matter to the grand jury, which had been instructed

previously on the AMMA. In connection with the proposed indictment against Chase, a

Tucson police detective testified as to the facts above, stating officers had found eighteen

marijuana plants with an approximate weight of four pounds. He testified, “Chase has a

medical marijuana card; however, the number of plants he has exceeds the amount that

he’s allowed to grow.” The detective later stated he “believe[d] that the 18 plants

[Chase] had were possessed for sale based on what the officers found with him [when he

was] actually selling the marijuana.”        The grand jury returned an indictment for



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possession of marijuana for sale in an amount of four pounds or more, production of

marijuana having a weight of four pounds or more, and possession of drug paraphernalia.

¶4            Chase filed a motion to dismiss the indictment or to remand the matter to

the grand jury to redetermine probable cause. In the motion, he maintained the state had

omitted “clearly exculpatory information,” the grand jurors had not been properly

instructed on the AMMA, and the detective’s testimony had misled the jurors about the

number of plants for sale and had included “prejudicial opinion.” The state agreed the

matter should be remanded to the grand jury in order to “clarify the weight of the

marijuana that was recovered from [Chase’s] home.” Although the detective had testified

before the grand jury that eighteen plants were found at the home and the incident report

also listed eighteen plants, the evidence sheet listed only eleven plants, and photographs

taken at the home showed fewer than eighteen. Likewise, although the detective testified

the plants had a weight of four pounds, the incident report listed them as weighing three

pounds.

¶5            At the hearing on the motion, Chase argued the state could not charge him

with possessing for sale all of the plants found in his home because his medical-

marijuana “license” had not been “suspended,” and it was therefore only the “amount in

excess of” twelve plants that “should be considered for sale.” The state countered that,

once Chase was “found to not be using marijuana in accordance with the [AMMA],” he

was not entitled to its protections. The court accepted the state’s position, set a date for a

viewing of the evidence, and granted Chase’s motion to remand to the grand jury upon

completion of the viewing.       But the court stated that because its ruling was not

                                              3
“precedent” and “there is no clear law,” the grand jury should “be instructed both ways,

and they make the decision.” The state then brought this special action, asking that we

“correct the trial court’s order with regard to instructing the grand jury on multiple

theories of the law and requiring them to decide which applies” and “clarify the law by

declaring that . . . the presumption of legality under the [AMMA is] entirely rebuttable.”

¶6            We accept jurisdiction of this special action because, as the state correctly

asserts, it has “‘no other means of obtaining’” review of the issues it raises. State v.

Leonardo, 226 Ariz. 593, ¶ 4, 250 P.3d 1222, 1223 (App. 2011), quoting State ex rel.

Romley v. Hutt, 195 Ariz. 256, ¶ 5, 987 P.2d 218, 221 (App. 1999); see State v. Miller,

226 Ariz. 202, ¶¶ 1-2, 245 P.3d 887, 889 (App. 2010); see also Ariz. R. P. Spec.

Actions 1(a) (special action review not proper when petitioner has “equally plain, speedy,

and adequate remedy by appeal”). The state has no remedy by appeal because it has no

right to a direct appeal following a trial. See A.R.S. § 13-4032; State v. Bejarano, 219

Ariz. 518, ¶ 14, 200 P.3d 1015, 1020 (App. 2008) (“The state may appeal only a discrete

subset of . . . rulings.”). Additionally, this special action involves a pure question of law

in a matter of first impression and one likely to recur.1 See Phx. Newspapers, Inc. v.

Ellis, 215 Ariz. 268, ¶ 9, 159 P.3d 578, 580 (App. 2007); Gray v. Irwin, 195 Ariz. 273,

¶ 5, 987 P.2d 759, 761 (App. 1999).



       1
         Chase argues this special action is “unripe” because the parties failed to “fully
develop[]” some of the arguments below or raised them only orally. But the parties’
failure to raise or adequately develop arguments below was not due to a lack of
opportunity to do so; indeed, Chase and the state each filed a written memorandum in the
trial court addressing whether the matter should be remanded to the grand jury.
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                                         Discussion

¶7            As an initial matter, to the extent the trial court intended by its ruling to

require the grand jury to determine the existing law under the AMMA, it was in error.

“The duty of a grand jury is to decide whether probable cause exists.” State v. Baumann,

125 Ariz. 404, 409, 610 P.2d 38, 43 (1980). In Murphy v. Russell, 40 Ariz. 109, 9 P.2d

1020 (1932), in the context of a malicious prosecution action, our supreme court laid out

in detail the respective roles of the court and the jury in determining probable cause to

initiate a prosecution. It stated, “Whether a given state of facts constitutes probable cause

is always a question of law to be determined by the court, and it cannot relieve itself of

this burden by casting it upon the jury.” Id. at 112, 9 P.2d at 1021. Rather, the court

must “instruct [the jurors] specifically as to what state of facts will constitute probable

cause,” and the function of the jury is “to determine what the actual facts were” and “to

apply the law as laid down by the court to those facts.” Id. In the context of a grand jury

proceeding, the grand jurors are instructed not by the court but by the prosecutor as the

jury’s legal advisor. See Crimmins v. Superior Court, 137 Ariz. 39, 42, 668 P.2d 882,

885 (1983).    But a defendant has a substantial procedural right in the jury’s being

properly instructed on the law, and a court must determine whether that has taken place.

See Walker v. Superior Court, 191 Ariz. 424, ¶ 4, 956 P.2d 1246, 1247-48 (App. 1998).

And Chase agreed at oral argument before this court that the trial court erred insofar as it

ordered the grand jury to determine which “interpretation” of the AMMA should control.

¶8            The record reflects the grand jury was instructed on the AMMA generally,

in its initial instructions. The prosecutor explained, inter alia, that a cardholder under the

                                              5
AMMA could possess twelve marijuana plants and two-and-a-half ounces of marijuana,

but that if the cardholder is “in violation of the [AMMA] in any way, then you’re right

back to” criminal use of marijuana. She also explained to the jurors that the AMMA

provided a presumption of lawful medical use of marijuana, but that the presumption

could “be rebutted by evidence that conduct related to marijuana was not for the purpose

of treating or alleviating the qualifying patient’s” medical condition. She elaborated:

              So if you have an undercover officer who is interacting with
              someone and the person sells marijuana to them, then the fact
              that that person has a medical marijuana card, that doesn’t
              help them. You’ve got evidence that they’re acting in
              violation of that, that they’re selling marijuana to someone
              else.

And, she stated that even if the undercover officer displayed a medical marijuana card,

“you can’t sell to somebody else who has a card[,] . . . [you] can [only] give to someone

else an amount of marijuana.”

¶9            The state argues that these instructions were correct and asks that we

“clarify the law” by “declaring” that the AMMA’s presumption of medical use is

“entirely rebuttable so that an individual who exceeds the protections of the law cannot

claim partial protection under the same law” and “rule that a medical marijuana

cardholder who is authorized to cultivate marijuana is criminally liable for all of the

marijuana he grows if he exceeds the protections of the law.”

¶10           The AMMA defines the “allowable amount of marijuana” for a qualifying

patient to possess as “[t]wo-and-one-half ounces of usable marijuana,” and, if the “patient

is authorized to cultivate marijuana, twelve marijuana plants.” A.R.S. § 36-2801(1)(a).


                                             6
The AMMA, however, “does not authorize any person to engage in,” or “prevent the

imposition of any civil, criminal or other penalties for engaging in,” the use of marijuana

“except as authorized” by the AMMA. A.R.S. § 36-2802. The medical use of marijuana

under the AMMA includes “the acquisition, possession, cultivation, manufacture, use,

administration, delivery, transfer or transportation of marijuana or paraphernalia relating

to the administration of marijuana to treat or alleviate” the patient’s medical condition.

§ 36-2801(9).

¶11             The statutes also provide a “presumption that a qualifying patient . . . is

engaged in the medical use of marijuana” that “exists if the qualifying patient . . . [i]s in

possession of a registry identification card” and “an amount of marijuana that does not

exceed the allowable amount of marijuana.” A.R.S. § 36-2811(A)(1). This presumption

“may be rebutted by evidence that conduct related to marijuana was not for the purpose

of treating or alleviating the” patient’s medical condition pursuant to the AMMA. § 36-

2811(A)(2). Likewise, the AMMA provides that a patient is not “subject to arrest,

prosecution or penalty in any manner, or denial of any right or privilege” for his or her

“medical use of marijuana pursuant to [the AMMA], if the registered qualifying patient

does not possess more than the allowable amount of marijuana.” § 36-2811(B)(1). Nor

is he or she subject to penalty

                [f]or offering or providing marijuana to a registered
                qualifying patient or a registered designated caregiver for the
                registered qualifying patient’s medical use or to a registered
                nonprofit medical marijuana dispensary if nothing of value is
                transferred in return and the person giving the marijuana does
                not knowingly cause the recipient to possess more than the
                allowable amount of marijuana.

                                              7
§ 36-2811(B)(3).

¶12            Our primary purpose in interpreting a statute is to give effect to the intent of

the electorate that adopted it. Calik v. Kongable, 195 Ariz. 496, ¶ 10, 990 P.2d 1055,

1057 (1999). “With only a few exceptions, if the language is clear and unambiguous, we

apply it without using other means of statutory construction.” Id.

¶13            In § 36-2811, the AMMA provides two different statutory protections for

cardholders.    First, in subsection (A), the statute provides a presumption that the

cardholder is engaged in medical use of marijuana if he or she has a valid card and does

not possess more than the allowable amount of marijuana. This presumption may be

rebutted by a showing that the cardholder was using or possessing the marijuana for

reasons other than medical use.       § 36-2811(A)(2).     Once rebutted, the presumption

disappears and the cardholder may be charged with marijuana-related offenses. See

Korzep v. Superior Court, 172 Ariz. 534, 539-40, 838 P.2d 1295, 1300-01 (App. 1991) (if

presumption has been rebutted, it vanishes). Thus, we reject Chase’s suggestion that a

defendant may never be charged with or found guilty of marijuana-related offenses so

long as he or she uses or possesses an amount of marijuana allowable under the AMMA.

¶14            Second, separate from this presumption, the AMMA affords immunity

from prosecution by providing that a cardholder may not be prosecuted for medical use of

marijuana “if the registered qualifying patient does not possess more than the allowable

amount of marijuana.” § 36-2811(B)(1) (emphasis added). Thus, by the plain language

of the statute, immunity from prosecution is conditioned on, inter alia, a cardholder “not

possess[ing] more than the allowable amount of marijuana” and not improperly

                                               8
transferring marijuana. § 36-2811(B)(1), (3). We therefore agree with the state that, if

the cardholder does not comply with those conditions, he or she may be prosecuted for

marijuana-related offenses.    None of a cardholder’s marijuana use or possession is

protected by the AMMA if he or she fails to abide by the enumerated conditions.

¶15           In claiming protection under this statutory immunity, it is a defendant’s

burden to “plead and prove,” by a preponderance of the evidence, that his or her actions

fall within the range of immune action. Fid. Sec. Life Ins. Co. v. Ariz. Dep’t of Ins., 191

Ariz. 222, ¶ 9, 954 P.2d 580, 583 (1998); cf. State v. Rhymes, 129 Ariz. 56, 57, 628 P.2d

939, 940 (1981) (defendant has burden to show existence of immunity agreement by

preponderance of evidence). Whether such immunity exists is a question of law for the

trial court. Link v. Pima Cnty., 193 Ariz. 336, ¶ 18, 972 P.2d 669, 674 (App. 1998). “If

the existence of immunity turns on disputed factual issues, the jury determines the facts

and the court then determines whether those facts are sufficient to establish immunity.”

Chamberlain v. Mathis, 151 Ariz. 551, 554, 729 P.2d 905, 908 (1986). Should the

defendant fail to establish immunity, the state, of course, still must prove all elements of

the charged offenses beyond a reasonable doubt at trial.

¶16           In his response to the state’s petition for special action, Chase argues that

the AMMA’s protections are conditioned only on not transferring marijuana to a

dispensary for value and that a cardholder still is protected if he or she transfers

marijuana to another cardholder in exchange for value. As Chase concedes, the trial

court has not had an adequate opportunity to address this argument or to allow for the

development of evidence on the related factual issues. Thus, our consideration of this

                                             9
issue appears premature and would be largely advisory. Therefore, in our discretion, we

decline to address this argument.

                                       Disposition

¶17           Insofar as the trial court’s order directs the grand jury to be instructed on

two different legal interpretations of the AMMA, that order remanding this matter to the

grand jury is vacated. Because the state has agreed to the remand on other grounds, the

court’s order is otherwise affirmed.


                                             /s/ Garye L. Vásquez
                                             GARYE L. VÁSQUEZ, Presiding Judge

CONCURRING:


/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge


/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge




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