                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   CHASE GARRETT ALTER, Appellant.

                             No. 1 CA-CR 15-0716
                               FILED 1-4-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-156813-001
                   The Honorable Dean M. Fink, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jillian Francis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                            STATE v. ALTER
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Patricia A. Orozco (Retired)
joined.


S W A N N, Judge:

¶1           Chase Garrett Alter was convicted of one count of possession
of marijuana after a bench trial. He appeals, arguing that his possession
was lawful under the Arizona Medical Marijuana Act (“AMMA”). We hold
that the court, sitting as the finder of fact, acted within its discretion in
determining that Alter failed to meet his burden to prove that the marijuana
he was transporting in vacuum-sealed bags was not “useable marijuana”
under the AMMA. We therefore affirm.

                FACTS AND PROCEDURAL HISTORY

¶2            On the afternoon of August 8, 2014, Officer Pledger was
patrolling when he stopped Alter’s car for an unrelated vehicular violation.
While talking to Alter as Alter sat in his vehicle, the officer smelled
marijuana. Alter admitted he had a small quantity of marijuana, and he
gave Ofc. Pledger a bag containing 0.01 ounces of marijuana and his valid
AMMA card, which also allowed him to cultivate marijuana. Ofc. Pledger
determined that Alter’s driver’s license was suspended and impounded the
vehicle in accordance with police procedure. While searching the vehicle,
Ofc. Pledger found five bags of marijuana weighing 5.8 ounces.

¶3           Alter was indicted for possession of marijuana. The state
designated the charge a class 1 misdemeanor and requested a bench trial.
Alter agreed. He was found guilty, and now appeals.

                              DISCUSSION

¶4           A.R.S. § 36-2811(B) provides immunity from prosecution for
possession of marijuana “if the registered qualifying patient does not
possess more than the allowable amount of marijuana.” The allowable
amount is 2.5 ounces. A.R.S. § 36-2801(1)(a)(i). “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




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                              STATE v. ALTER
                             Decision of the Court
within the range of immune action.” State v. Fields ex rel. Cty. of Pima, 232
Ariz. 265, 269, ¶ 15 (2013).

¶5             Alter’s sole argument on appeal is that the court
misinterpreted the AMMA’s language concerning the amount of marijuana
he was allowed to possess. He contends that because the marijuana in
question was “wet,” it was not “useable” and therefore not subject to the
2.5-ounce limit. The state counters that because Alter filed no pretrial
motion to dismiss based on statutory construction, the only issue on appeal
is the trial court’s implicit factual finding that the marijuana he possessed
was useable. We agree with how the state frames the issue: the record
contains no legal ruling to demonstrate that the trial court relied on an
incorrect construction of the AMMA in convicting Alter.1 The issue,
therefore, is whether the court could properly have rejected the evidence
Alter produced to demonstrate that the marijuana he possessed was not
useable. “When the evidence supporting a verdict is challenged on appeal,
an appellate court will not reweigh the evidence. The court must view the
evidence in the light most favorable to sustaining the conviction, and all
reasonable inferences will be resolved against a defendant.” State v. Lee, 189
Ariz. 590, 603 (1997).

¶6                 An “allowable amount of marijuana” is up to 2.5 ounces of
“useable marijuana” in addition to “[m]arijuana that is incidental to
medical use, but is not usable marijuana.” A.R.S. § 36-2801(1)(a)(i), (1)(c).
“Useable marijuana” is the “dried flowers of the marijuana plant . . . but
does not include the seeds, stalks and roots.” A.R.S. § 36-2801(15).
“Marijuana that is incidental to medical use, but is not usable marijuana
 . . . , shall not be counted toward a qualifying patient’s . . . allowable amount
of marijuana.” A.R.S. § 36-2801(1)(c). If, as here, the cardholder is
authorized to cultivate marijuana, the cardholder may have up to 12
marijuana plants. A.R.S. § 36-2801(1)(a)(ii). A cardholder may give
marijuana to another cardholder provided nothing of value is given in
exchange and the giver does not knowingly cause the recipient to possess
more than 2.5 ounces. A.R.S. §§ 36-2801(1)(a)(i); -2811(B)(3).

¶7           Alter testified that he knew of the 2.5-ounce limitation, and
knew that a single marijuana plant could produce anywhere from a few
grams to pounds of useable marijuana. He also knew that he could not
control the amount plants produce. He testified that once a plant has
finished growing, it must be dried and cured, which takes four to eight

1      Alter presented his statutory construction argument as part of his
closing argument, and the trial court then took the verdict under
advisement. The final verdict did not include the court’s reasoning.


                                        3
                             STATE v. ALTER
                            Decision of the Court
weeks. To deal with the quantity limitation, Alter testified that he staggers
his harvests and stops the drying and curing process by vacuum-sealing the
marijuana.

¶8            Two days before encountering Ofc. Pledger, Alter harvested
marijuana. After starting the drying process, he realized that the plants
would probably produce more than the allowed amount. He put the
marijuana into vacuum-sealed bags. When he encountered Ofc. Pledger,
Alter was transporting the excess marijuana to two other cardholders. At
the police station, Ofc. Pledger opened the vacuum seal on the bags and
weighed the marijuana in them along with the marijuana Alter initially
handed him. The six bags contained a total of 5.81 ounces of marijuana.
Both Alter and Ofc. Pledger testified that the plants were wet when Alter
was arrested.

¶9            The state argues that Alter has the burden to show compliance
with the AMMA and that to do so he must produce expert testimony on the
quantity of marijuana. While we disagree that expert testimony is required
as a matter of law, Alter’s failure to present such testimony left the court to
evaluate his credibility as the sole source of proof for his defense. Here, the
court did not articulate the reasons for its verdict, and it was not required
to do so. At sentencing, however, the trial court commented that it “was
not swayed by the argument that the manner in which the marijuana was
packed and, therefore, wet, exempted it from the statute.”

¶10           The court was presented with a mixed question of fact and
law. The legal question was whether marijuana in excess of the 2.5-ounce
limit was “useable.” The factual question was whether it was sufficiently
“dried” to qualify as useable. Based on the evidence before it, the court
could reasonably have concluded that marijuana that has been harvested,
is in the process of being cured and was sufficiently cured to warrant its
delivery to others was, in fact, “useable.” Under our standard of review,
we have no basis upon which to question the superior court’s verdict.

                               CONCLUSION

¶11           For the foregoing reasons, we affirm Alter’s conviction.




                            AMY M. WOOD • Clerk of the Court
                             FILED: AA
                                         4
