                                                                              FILED 

                                                                            July 3, 2014 

                                                                   In the Office of the Clerk of Court 

                                                                 WA State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


STATE OF WASHINGTON,                           )
                                               )         No. 31158-9-III
                       Respondent,             )
                                               )
       v.                                      )
                                               )
TYLER JOHN MARKWART,                           )         PUBLISHED OPINION
                                               )
                       Appellant.              )

       FEARING, J. -    Tyler Markwart appeals his convictions for manufacturing

marijuana, possession with intent to sell marijuana, and three counts of delivering

marijuana. He asks this court to dismiss the charges on the ground of police misconduct.

In the alternative, he seeks a new trial on the grounds that the trial court refused to

instruct the jury on his defenses of entrapment and under the former Washington State

Medical Use of Marijuana Act (MUMA), chapter 69.51A RCW (1999). Because law

enforcement officers engaged in a permissible ruse, we reject Markwart's request to

dismiss for police misconduct. We reverse the convictions of manufacturing and

possession with intent to sell, because, under our recent decision, State v. Shupe, 172 Wn.

App. 341,289 P.3d 741 (2012), review denied 177 Wn.2d 1010 (2013), decided after
No. 31158-9-II1
State v. Markwart


trial, the jury should have considered Markwart's medicinal marijuana defense. We

affirm the convictions for delivery of marijuana.

                                         FACTS

      Tyler Markwart's claim of police misconduct arises from his contact with

members of the Pullman Police Department and the Quad Cities Drug Task Force. This

interaction began, in August 2009, when an electrician reported to Pullman police that he

saw marijuana, paraphernalia, and possible supplies to grow marijuana in an apartment,

located at 1920 NE Terre View Dr., #J209, where he performed work. The address is

part of Campus Common North at Washington State University. Police applied for and

executed a search warrant for the apartment. Tyler Markwart and Michael Pecharko

rented the apartment, but only Pecharko was home when police executed the search

warrant. Police located marijuana plants and a handgun inside the apartment. Pecharko

claimed ownership to the handgun and produced forms authorizing him to possess

marijuana as a qualifYing patient under MUMA. Police tentatively decided not to file

criminal charges so long as Tyler Markwart, when he returned, produced an authorization

form for medicinal marijuana. The next day Markwart produced his authorization form.

      In February 2011, police interviewed Tyler Markwart at his home as part ofa

robbery investigation. Officer Aaron Breshears of the Pullman Police Department

investigated the burglary and received Markwart's consent to search his residence, where

the officer observed a marijuana grow operation. During the burglary investigation,

                                            2

No. 31158·9·111
State v. Markwart


Markwart disclosed to police that he operated Allele Seeds Research, a dispensary for

medical marijuana patients. As proof, he produced medical marijuana forms. Upon

reviewing Markwart's paperwork, Officer Breshears determined Markwart's grow

operation was in compliance with the law, but he suggested Markwart tell other growers

to register their operations with the police department to avoid "pesky search warrants."

Clerk's Papers (CP) at 315.

       Officer Aaron Breshears notified all Pullman police via e-mail that marijuana

growers may come to the police department to register their respective operations and

disclosed that, during the search of Tyler Markwart's home, officers found firearms and a

marijuana grow operation. Based on this e-mail, Detective Scott Patrick of the Quad

Cities Drug Task Force began an investigation into Markwart and Allele Seeds Research.

In describing why he initiated the investigation, Detective Patrick explained:

      People who are involved in narcotic trafficking become targets for people
      because if you rob somebody who's involved in narcotic trafficking,
      oftentimes they don't report to the police. I know of at least three instances
      in the City of Pullman in the last year in which we've had people who have
      been robbed at either gunpoint or knifepoint, specifically one in particular
      who was allegedly selling marijuana.
             So, the firearm issue was a little bit-what I was concerned about
      because of the proximity. Campus Commons North is about a 300-unit
      apartment complex in the city. It's a courtyard situation, there's multiple
      apartments in the area, and my concern was a run-and-gun battle through
      the middle of that if someone was to break into his [Markwart's] apartment.

Report of Proceedings (RP) at 128.




                                             3

 I

I
!
 I
 ;
        No. 31158-9-II1
 I
I       State v. Markwart

•
i              Tyler Markwart is an outspoken advocate for medical marijuana. During his

I       investigation, Detective Scott Patrick located statements Markwart made to the

I
,,: 

,
        Washington State University (WSU) Daily Evergreen and Moscow-Pullman Daily News

!       that led him to believe Markwart violated MUMA. Specifically, Markwart disclosed to 

~
i
I       the press that he provided marijuana to more than one qualifying patient. MUMA
j
,
l
~
        permits a person to be a "designated provider to only one patient at anyone time."
.l
~       FormerRCW 69.51A.01O(l)(d) (LAWS OF 2007, ch. 371, § 5).
I
i
j
,
1
~

:1
             . Based on Tyler Markwart's public statements, Detective Patrick decided to

        seek a "controlled buy" from Markwart. At a Whitman County deputy
I
I
i
        prosecutor's request, Patrick postponed the purchase until the Whitman County

        prosecuting attorney and he could meet with Markwart. The prosecutor's office
1
I       wished to inquire from Markwart about his operations and determine if he

I
I
        complied with MUMA.

I              The Whitman County prosecutor and his deputy met with Tyler Markwart and

        informed Markwart that he was in violation ofMUMA ifhe provided marijuana to more
I       than one person at a time. Markwart assured them he did not. He claimed to provide

        marijuana to one qualified patient at a time for a limited period of time. Perhaps

        unsatisfied with Markwart's answer, the county prosecutor directed Detective Patrick to

        continue his investigation.




                                                     4
No. 31158-9-III
State v. Markwart


       Detective Scott Patrick conducted three controlled buys from Tyler Markwart. A

WSU student whom police previously arrested for marijuana distribution became a

confidential informant and conducted the first controlled buy in exchange for a reduced

sentence. The police gave the informant the website address for Allele Seeds Research

and directed the informant to contact Markwart. Markwart instructed potential

purchasers, via his website, that they must present valid authorization as a qualified

patient under MUMA and Washington State identification. The website also listed an e-

mail address belonging to Markwart.

       The confidential informant sent a message to Tyler Markwart using the e-mail

address found on the Allele Seeds website. The informant stated that he recently

obtained authorization for medical marijuana and wanted to purchase marijuana. In his

response, Markwart sent the informant his phone number and again warned him that he

must present a valid medical marijuana authorization form and identification card. When

the confidential informant called Markwart to arrange a meeting to purchase marijuana,

the two agreed to meet at the restaurant Cougar Country. Markwart again repeated his

warning that he would need to see paperwork and identification to make a delivery.

      Before the transactional meeting between the confidential informant and Tyler

Markwart, Detective Scott Patrick completed an ersatz medical marijuana authorization

form for the confidential informant and curiously directed another detective, with better

handwriting, to sign the form using the name of a fictionalized doctor. The physician's

                                             5

No. 31158-9-111
State v. Markwart


authorization was written on non-tamper resistant paper, despite RCW 69.5IA.01O(7)(a)

requiring authorizations on tamper resistant paper.

       On March 10, 2011, the confidential informant joined Tyler Markwart at a table at

Cougar Country restaurant. Markwart asked to see his authorization for medical

marijuana. The informant presented the authorization police created, showed Markwart

his identification card, and signed a form designating Markwart as his provider of

medical marijuana. Markwart told the informant that he would not need to see the

written forms in the future.   Markwart and the informant left Cougar Country for

Markwart's truck where the informant purchased $200 worth of marijuana.

       On March 24, 2011, the police informant contacted Tyler Markwart to purchase

marijuana again. The two met at Jimmy John's, a sandwich shop. Markwart did not ask

to see the informant's authorization or identification. Outside the restaurant, Markwart

again sold the informant $200 worth of marijuana.

       On April 5, Detective Scott Patrick created a fake e-mail account for Police

Detective Bryson Aase, who sent an e-mail to Allele Seeds Research claiming to be a

"patient living in the Pullman area looking to purchase medicine." CP at 140. In the e-

mail, Aase also claimed to have his "paperwork." CP at 141. Markwart responded,

asking Aase to contact him by cell phone. Detective Patrick completed a medical

authorization form for Bryson Aase and signed the form in the name of a fictitious




                                             6

No. 31158-9-III
State v. Markwart


doctor. Detective Patrick did not print the medical authorization on tamper resistant

paper.

         The confidential informant purchased marijuana from Tyler Markwart a third time

outside a Starbucks on April 15. Markwart exited Starbucks as the informant arrived.

The police informant waived Markwart towards his or her vehicle and asked to purchase

$200 worth of marijuana. Markwart only brought $140 worth of marijuana to sell.

Markwart informed the informant that the informant could purchase more at a party that

evening and advised the informant he could "smell him at the party." RP at 60.

         On April 19, police conducted a fourth controlled buy, this time with Detective

Aase. Bryson Aase called Markwart to schedule a meeting where he could purchase

marijuana. Markwart told Aase he would need a medicinal marijuana authorization form

and a government issued photo identification. The two agreed to meet in a parking lot.

Before the meeting, Detective Patrick directed Aase to feign that he had forgotten his

driver's license and to see how Markwart would react. Detective Patrick then handed

Aase a falsified authorization form. The form was identical, except for the name of the

doctor, as the form Patrick provided the confidential informant.

         Detective Aase met Tyler Markwart in the parking lot. From a nearby location,

Scott Patrick listened to the conversation between Markwart and Aase, while task force

members awaited directions to arrest Markwart. Markwart entered Aase's car and

handed Aase a designated provider form to complete and sign. Markwart then asked

                                              7

No. 31158-9-II1
State v. Markwart


Aase for his identification and medical marijuana authorization. Aase handed Markwart

his forged medical marijuana authorization form and explained that he did not have

identification. Markwart commented that the authorization was not on tamper resistant

paper and explained that he could not sell Aase marijuana without a valid driver's

license. Due to Markwart's refusal to sell, Detective Patrick directed the task force

members to arrest Markwart. Police arrested Markwart for attempted delivery and

delivery of a controlled substance.

       Upon his arrest, Tyler Markwart notified police he had marijuana plants in his

home. Based on this information, police procured a search warrant for Markwart's

apartment. At the home, police found a business plan for Allele Seeds Research, 24

marijuana plants, forms designating Markwart as the provider of marijuana to 15

individuals, a shotgun, and a handgun.

                                      PROCEDURE

       The State charged Tyler Markwart with three counts of delivering marijuana, one

each respectively on March 10, March 24, and April 15, 2011, all to the confidential

informant. The State also charged Markwart with one count of possessing marijuana

with the intent to distribute on April 19, 2011, to the undercover officer, and one count of

manufacturing marijuana, based upon the search of Markwart's home on April 19.

Throughout the prosecution, Markwart represented himself, despite the trial court's

repeated cautions.

                                             8

No. 31158-9-III
State v. Markwart


       Before trial, Tyler Markwart asked the trial court to strike down the Uniform

Controlled Substances Act (CSA), chapter 69.50 RCW. After losing this request,

Markwart asked the trial court to permit him to present an affirmative "designated

provider" defense under MUMA and to forward an entrapment defense. Conversely, the

State asked the trial court to dismiss the defenses, as a matter oflaw, based upon the

undisputed evidence. The State contended Markwart did not comply with MUMA

because he served more than one patient at a time, he had more plants than permitted, he

accepted authorizations for using medicinal marijuana signed by a fictional doctor, and

the authorizations were not on tamper resistant paper.

       The trial court preliminarily ruled that, if Markwart presented sufficient evidence

at trial, the trial court would instruct the jury on Markwart's theory of entrapment. The

trial court, however, ruled, at the beginning of the trial, to preclude a MUMA defense to

any of the five charges, because Markwart's offer of proof was insufficient to support the

defense. As to the delivery to the confidential informant, the trial court observed that

undisputed evidence established that the confidential informant was not a qualifying

patient and the medical authorization was forged and not on tamper resistant paper.

Therefore, Tyler Markwart could not be a designated provider, as a matter of law, under

MUMA. The trial court based his decision with regard to possession with intent to

deliver to Detective Aase upon the same three grounds and the additional ground that

Aase showed no identification. Although Markwart did not sell to Aase, it was

                                             9

No. 31158-9-111
State v. Markwart


undisputed he had the marijuana in his possession and he intended to deliver the

marijuana, despite Aase not being a qualifying person. The trial court dismissed the

affirmative defense on count

5-manufacturing, because at the time of the offense, Markwart possessed 15 designated

provider authorization forms. The trial court qualified his ruling by stating, if Markwart

could provide evidence that he was a provider for only one person on April 19, the court

would reconsider the defense going to the jury on the manufacturing charge.

       At trial, the State produced four witnesses: the confidential informant; Detectives

Patrick and Aase; and Nannette Bolyard, a certified marijuana technician. They testified

to the controlled buys. Markwart presented no witness or defense.

       A jury found Tyler Markwart guilty on all five counts. After the verdict but before

sentencing, Markwart hired counsel and moved for a new trial. He argued prosecutorial

misconduct. He also argued the trial court erred by prohibiting him from presenting his

"designated provider" defense and refusing to instruct the jury on entrapment. The trial

court denied his motion, finding Markwart failed to raise the issue of prosecutorial

misconduct at trial, that police were permitted to forge documents under the

circumstances, and that he failed to present sufficient evidence entitling him to argue his

designated provider defense at trial.




                                             10 

No. 31158-9-111
State v. Markwart


       The trial court sentenced Tyler Markwart to serve, concurrently, the low end of the

standard range on all five convictions-six months. In addition, the court imposed a

$10,000 fine as a deterrent to exploit MUMA for personal financial gain.

                                 LAW AND ANALYSIS

                                 Government Misconduct

       Tyler Markwart contends that the government engaged in misconduct that violated

his due process rights. Markwart emphasizes his actions in complying with the law by

avoiding a sale to the undercover detective and the police falsifying and forging

documents. Ifwe agreed with Markwart, we must dismiss the prosecution and all other

issues would become moot. Thus, we address this issue first. We acknowledge Tyler

Markwart's wish to follow the law and his steps taken to comply with the law, but we

agree with the trial court that police conduct was not so outrageous as to violate

Markwart's constitutional rights. The defense of government misconduct is nearly

impossible to establish.

       erR 8.3(b) reads, in relevant part:

       The court, in the furtherance ofjustice, after notice and hearing, may
       dismiss any criminal prosecution due to arbitrary action or governmental
       misconduct when there has been prejudice to the rights of the accused
       which materially affect the accused's right to a fair trial.

       This rule codifies, in part, the due process requirement that a prosecution be

dismissed upon outrageous conduct of law enforcement. Unlike entrapment, where the


                                             11 

No. 31158-9-111
State v. Markwart


focal issue is the predisposition of the defendant to commit the offense, outrageous

conduct is focused on the State's behavior. State v. Lively, 130 Wn.2d 1, 19,921 P.2d

1035 (1996). Outrageous conduct is founded on the principle that the conduct oflaw

enforcement officers and informants may be so outrageous that due process principles

would bar the government from invoking judicial processes to obtain a conviction.

United States v. Russell, 411 U.S. 423, 431-32, 93 S. Ct. 1637,36 L. Ed. 2d 366 (1973);

Lively, 130 Wn.2d at 19. But such conduct must be so outrageous that it violates the

concept of fundamental fairness inherent in due process and shocks the sense of universal

justice mandated by the due process clause. Dodge City Saloon, Inc. v. Wash. State

Liquor Control Bd., 168 Wn. App. 388,402,288 P.3d 343, review denied, 176 Wn.2d

1009 (2012); State v. Rundquist, 79 Wn. App. 786, 794, 905 P.2d 922 (1995); State v.

Pleasant, 38 Wn. App. 78, 82, 684 P.2d 761 (1984).

      The doctrine of outrageous police conduct must be sparingly applied and used

only in the most egregious situations. Rundquist, 79 Wn. App. at 793. Each case must be

resolved on its own unique facts, bearing in mind proper law enforcement objectives-

the prevention of crime and the apprehension of violators, rather than the encouragement

of and participation in sheer lawlessness. Lively, 130 Wn.2d at 21 (quoting People v.

Isaacson, 44 N.Y.2d 511, 406 N.Y.S.2d 714,378 N.E.2d 78, 83 (1978». Whether the

State has engaged in outrageous conduct is a matter of law, not a question for the jury.




                                            12 

No. 31158-9-111
State v. Markwart


Lively, 130 Wn.2d at 19 (citing United States v. Dudden, 65 F.3d 1461, 1466-67 (9th Cir.

1995)).

       Practical considerations require that, in the perfonnance by police of crime

detection duties, at least some deceitful practices and a limited participation in unlawful

practices be tolerated and recognized as lawful. Lively, 130 Wn.2d at 20; State v.

Emerson, 10 Wn. App. 235, 240-41,517 P.2d 245 (1973). The United States Supreme

Court has stated that it is unlikely a due process violation will ever be found in the

context of contraband offenses, since the detection of such offenses requires law

enforcement officials to resort to covert methods which would be unacceptable in other

contexts. Hampton v. United States, 425 U.S. 484,493-95,96 S. Ct. 1646,48 L. Ed. 2d

113 (1976); Emerson, 10 Wn. App. at 238. In crimes such as prostitution, liquor sales,

narcotics sales, and gambling, the use of the paid infonner, undercover agents, and

deceitful practices, as well as the practice of actually aiding and abetting the commission

of a crime by others, or even joining in a conspiracy for that commission, are well

known. Emerson, 10 Wn. App. at 238.

       Deceitful police misconduct does not warrant dismissal of an entire case. State v.

Athan, 160 Wn.2d 354, 377, 158 PJd 27 (2007); State v. Myers, 102 Wn.2d 548, 689

P.2d 38 (1984), overruled on other grounds by Lively, 130 Wn.2d 1. Mere instigation of

crime is not outrageous in the context of detecting contraband offenses. Pleasant, 38

Wn. App. at 82-83. Washington courts reject the outrageous conduct defense even in

                                             13 

No. 31158-9-III
State v. Markwart


cases where police engage in illegal activities. State v. Jessup, 31 Wn. App. 304, 312-14,

641 P .2d 1185 ( 1982). For example, police agents may engage in acts of prostitution and

attempt to recruit new prostitutes. Jessup, 31 Wn. App. at 312-14. Police may purchase

leWd table dances with public funds to gain evidence of violation of liquor rules.

Playhouse Corp. v. Wash. State Liquor Control Bd., 35 Wn. App. 539,667 P.2d 1136

(1983). Police may establish an elaborate operation for the purchase and sale of stolen

goods. State v. Brooks, 30 Wn. App. 280, 281-82, 286-87, 633 P.2d 1345 (1981). Law

enforcement may create a phony job recruiting center and solicit the purchase of

marijuana from a potential job applicant. Pleasant, 38 Wn. App. at 79-80, 83. A federal

appellate court refused to dismiss a prosecution when federal agents sold illegally

imported bobcat hides and provided false forms intended to show that the hides were

legal. United States v. !vey, 949 F.2d 759, 762-63, 769 (5th Cir. 1991).

       A review of many decisions shows that "the banner of outrageous misconduct is

often raised but seldom saluted." United States v. Santana, 6 F.3d 1,4 (1st Cir. 1993).

A majority of the United States Supreme Court has never approved of the outrageous

conduct defense. We find only one Washington decision that has dismissed a prosecution

for outrageous conduct by government agents. Lively, 130 Wn.2d at 19.

      In Lively, the court found the police conduct so outrageous it violated Lively's due

process rights. Lively had just turned 21 and was raising 2 small children alone. She

became addicted to cocaine and alcohol at age 14. Although she stopped using drugs at

                                            14 

No. 31158-9-111
State v. Markwart


15 when she found she was pregnant, she continued to drink heavily. After attempting

alcohol withdrawal on her own, she admitted herself into a detoxification program and

followed with attendance at Alcoholics Anonymous (AA) meetings. She relapsed,

however, and thereafter entered and successfully completed a 28-day inpatient program.

She continued with AA meetings. She was emotionally upset, however, and attempted

suicide. Within weeks of her suicide attempt she met the police informant, Desai, at an

AA meeting. Despite her lack of criminal history or any information connecting her to

criminal conduct, the police informant targeted Lively. A few weeks later she was living

with Desai and he proposed marriage to her. Desai took advantage of her addiction and

extreme emotional reliance to involve her in police sponsored drug activity.

       The Lively court announced that, to aid courts'in the evaluation of government

misconduct, a court should review several factors:

       [(1)] whether the police conduct instigated a crime or merely infiltrated
       ongoing criminal activity; [(2)] whether the defendant's reluctance to
       commit a crime was overcome by ... persistent solicitation; [(3)] whether
       the government controls the criminal activity or simply allows for the
       criminal activity to occur; [(4)] whether the police motive was to prevent
       crime or protect the public; [(5)] whether the government conduct itself
       amounted to criminal activity or conduct "repugnant to a sense ofjustice."

Lively, 130 Wn.2d at 22 (citations omitted).

       Since Lively, no Washington State court has dismissed a defendant's charges or

overturned a conviction because of outrageous government conduct-but not for lack of

the defense bar trying. At least 18 defendants sought to have their convictions overturned

                                               15 

No. 31158-9-III
State v. Markwart


because of outrageous government conduct. Only 2 of those cases have been reported,

and neither is dispositive.

       Law enforcement did not induce Tyler Markwart to engage in any conduct he was

not already willing to perform. Markwart grew and sold marijuana before any interaction

with the Pullman Police Department. Police did not engage in persistent solicitations

before Markwart reluctantly sold marijuana. Nor did police promise profits or plead for

sympathy. Markwart was not emotionally attached to an officer or informant. Law

enforcement believed Markwart violated MUMA by selling to more than one patient at a

time, a reasonable belief before our Shupe decision. Police did not initially look for Tyler

Markwart, but rather Markwart came to the Pullman Police Department's attention when

investigating a robbery. The prosecuting attorney's office did not hide its intentions from

Markwart, but rather warned him that it was its position that Markwart could not be the

provider of medical marijuana to more than one patient at the same time. This case's

circumstances do not support a violation of the due process clause because of government

misconduct.

                         NIEDICAL USE OF MARIJUANA ACT

                       Retroactive Application of 20 11 Amendments

       In 1998, the citizens of Washington enacted Initiative 692, the Medical Use of

Marijuana Act (MUMA). The act is codified in chapter 69.51A RCW. The purpose of

the act is to allow patients with terminal or debilitating illnesses to use marijuana when

                                             16 

No. 31158-9-III
State v. Markwart


authorized by their treating physician. RCW 69.51A.005; State v. Ginn, 128 Wn. App. 


872,877-78,117 P.3d 1155 (2005). In 2011, the state legislature adopted substantial 


amendments to MUMA, now called Medical Use of Cannabis Act (MUCA). 


ENGROSSED SECOND SUBSTITUTE S.B. 5073, 62d Leg., Reg. Sess. (Wash. 2011) 


(ESSSB). The bill's effective date is July 22,2011. Section 403 of the 2011 bill allows 


creation of collective marijuana gardens by medical users of the plant. Markwart seeks to 


benefit from this provision. 


       Police arrested Tyler Markwart, on April 19,2011, for manufacturing,

distributing, and possession with intent to sell marijuana. Therefore, he asks this court to

retroactively apply the legislature's 2011 changes. We decline to do so.

       Washington courts disfavor retroactive application of a statute. State v. Brown,

166 Wn. App. 99, 103,269 P.3d 359 (2012). Nevertheless, courts may apply an

amendment retroactively if (1) the legislature intended to apply the amendment

retroactively, (2) the amendment is curative and clarifies or technically corrects

ambiguous statutory language, or (3) the amendment is remedial in nature. Barstad v.

Stewart Title Guar. Co., 145 Wn.2d 528,536-37,39 P.2d 984 (2002); McGee Guest

Home, Inc. v. Dep 't a/Soc. & Health Servs., 142 Wn.2d 316,324-25, 12 P.3d 144

(2000).

       Tyler Markwart meets none of the three criteria. The legislature was silent on

whether it intended to apply the 2011 amending statute retroactively. An amendment is

                                             17 

No. 31158-9-II1
State v. Markwart


curative and remedial if it clarifies or technically corrects an ambiguous statute without

changing prior case law constructions of the statute. Barstad, 145 Wn.2d at 537; In re

Pers. Restraint ofMatteson, 142 Wn.2d 298,308, 12 P.3d 585 (2000). The 2011

amended statute changes, as well as clarifies, former RCW 69.51A.040. The

amendments add new requirements. The collective gardens provision ofESSSB 5073

adds an additional way qualified patients can obtain marijuana-through cooperative

gardens. Markwart agrees the section decriminalizes what otherwise would be criminal,

a concession acknowledging the 2011 amendments are substantive. Thus, we conclude

that the 2011 amendments do not apply retroactively.

      The 2011 amendments would not assist Tyler Markwart anyway. The collective

garden provision states "no more than ten qualifying patients may participate in a single

collective garden at any time." RCW 69.51A.085(1)(a). Markwart was a designated

provider for 15 people. We decide the appeal on the basis of the version of the MUMA

in effect after its 2007 amendments, but before the 2011 amendments.

                          MUMA AFFIRMATIVE DEFENSE

      MUMA provides an affirmative defense for patients and providers against

Washington criminal laws relating to marijuana. State v. Shepherd, 110 Wn. App. 544,

549,41 P.3d 1235 (2002). "Any qualifying patient who is engaged in the medical use of

marijuana, or any designated provider who assists a qualifying patient in the medical use

of marijuana" charged with violating state marijuana law "will be deemed to have

                                             18 

No. 31158-9-IIJ.
State v. Markwart


established the affirmative defense to such charges by proof of his or her compliance with

the requirements provided in this chapter." Former RCW 69.51 A.040 (LAWS OF 2007,

ch. 371, § 5). The chapter requires a qualifying patient or designated provider to (1) meet

all criteria for status as a qualifying patient or designated provider; (2) possess no more

marijuana than is necessary for the patient's personal medical use, not exceeding a 60­

day supply; and (3) present his or her valid documentation to any law enforcement

official who questions the patient or provider. Former RCW 69.51A.040 (LAWS OF 2007,

ch. 371, § 5) .

       . To be a "qualifying patient" under MUMA, a person must be a resident of

Washington with a debilitating or terminal medical condition and advised by a physician

that they may benefit from the medical use of marijuana. Former RCW 69.51A.01O(3)

(LAWS OF 2007, ch. 371, § 5). To be a "designated provider" under the chapter, a person

must be over 18, designated in writing by a qualified patient to be that patient's provider,

and be "the designated provider to only one patient at anyone time." Former RCW

69 .51A.0 1O( 1)(d) (LAWS OF 2007, ch. 371, § 5). Whether the person is a patient or a

designated provider, she or he, if questioned by any law enforcement official about her or

his use, must present her or his "valid documentation," specifically (l) a statement signed

and dated by the qualifying patient's health care professional written on "tamper-resistant

paper," stating that in the professional's opinion, the patient may benefit from the




                                             19 

No. 31158-9-III
State v. Markwart


medical use of marijuana and (2) proof of identity such as a Washington state driver's

license. Former RCW 69.51A.OI0(5) (LAWS OF 2007, ch. 371, § 5).

       In order to affirmatively defend a criminal prosecution for possessing or

manufacturing marijuana, a defendant must show by a preponderance of evidence that he

has met the requirements ofMUMA. Shepherd, 110 Wn. App. at 550; Ginn, 128 Wn.

App. at 878. An affirmative defense that does not negate an element of the crime, but

excuses the conduct, must be proved by a preponderance of the evidence. State v. Riker,

123 Wn.2d 351, 368, 869 P.2d 43 (1994). Preponderance of the evidence means that

considering all the evidence, the proposition asserted must be more probably true than not

true. Shepherd, 110 Wn. App. at 550; Ginn, 128 Wn. App. at 878.

       Tyler Markwart contends the trial court erred when it refused to allow the jury to

consider his MUMA designated provider defense. Whether the trial court erred in

disallowing a medical marijuana defense is a legal question this court reviews de novo.

State v. Fry, 168 Wn.2d 1, 10-11,228 P.3d 1 (2010); State v. Tracy, 158 Wn.2d 683, 687,

147 P.3d 559 (2006). In general, a trial court must permit a party to present his theory of

the case if the law and the evidence support it; the failure to do so is reversible error.

Ginn, 128 Wn. App. at 879; State v. May, 100 Wn. App. 478,482,997 P.2d 956 (2000).

A defendant is entitled to have a jury consider his defense if he presents sufficient

evidence. Ginn, 128 Wn. App. at 879; State v. Janes, 121 Wn.2d 220,236-37, 850 P.2d

495 (1993). To raise a medical marijuana defense, the defendant bears the burden of

                                              20 

No. 31158-9-III
State v. Markwart


offering sufficient evidence to make a prima facie showing. Fry, 168 Wn.2d at 11; State

v. Adams, 148 Wn. App. 231, 236, 198 P.3d 1057 (2009); State v. Butler, 126 Wn. App.

741, 744, 109 P.3d 493 (2005) overruled on other grounds by State v. Kurtz, 178 Wn.2d

466,475,309 P.3d 472 (2013). In evaluating whether the evidence is sufficient, the trial

court must interpret the evidence most strongly in favor of the defendant. Adams, 148

Wn. App. at 235; Ginn, 128 Wn. App. at 879.

       The State charged Tyler Markwart with three discrete crimes: delivery of

marijuana (counts 1 to 3), possession with intent to deliver marijuana (count 4), and

manufacturing marijuana (count 5). We address separately Markwart's quest to use the

MUMA defense for the three different crimes. We address manufacturing first, since its

resolution is easiest.

                           MANUFACTURING MARIJUANA

       RCW 69.50.401(1) renders it is "unlawful for any person to manufacture, deliver,

or possess with intent to manufacture or deliver, a controlled substance." The trial court

dismissed the MUMA defense against the manufacturing charge because Markwart

possessed 15 provider designation forms at one time, and the statute only allows one to

be a provider "to only one patient at anyone time." Former RCW 69.51A.01O(1)(d).

       After the trial court's ruling, our division interpreted the provision at issue in

Shupe, 172 Wn. App. at 354-55. Scott Shupe and others owned and operated a Spokane

medical marijuana dispensary that advertised in local papers. During one stop by Oregon

                                              21 

No. 31158-9-II1
State v. Markwart


police, Shupe possessed four pounds of marijuana and $18,900 in cash. Police trailed

Shupe for months despite Shupe conducting business in the open. The State eventually

charged Shupe with delivery, possession with intent to deliver, and manufacture of

marijuana. At trial, Shupe testified he served only one patient at a time and sold only to

patients with medical marijuana documentation. Shupe's receipts showed the time to the

minute as to when he served each patient.

       The Shupe court noted that the term "designated provider" implies an ongoing

relationship with a user, but found the word "at" gives a sense of "immediacy." Shupe,

172 Wn. App. at 354. The phrase "provider to only one patient at anyone time," this

court concluded, "is at war with itself; it is ambiguous." Shupe, 172 Wn. App. at 354.

Because the statute is ambiguous, the rule of lenity required the court to interpret the

ambiguous statute in favor of the defendant. Thus, the Shupe court accepted the

interpretation Shupe urged and held that'" only one patient at anyone time' means one

transaction after another so that each patient gets individual care." Shupe, 172 Wn. App.

at 356. The Shupe court reversed the conviction and dismissed the prosecution.

       Tyler Markwart contends Shupe controls and requires that he be afforded the

opportunity to present his MUMA defense. The State distinguishes Shupe on the ground

that Shupe testified he served only one patient at a time, and the receipts showed the time

to the minute as to when he served each patient. Shupe, 172 Wn. App. at 356. We agree




                                             22 

No. 311S8-9-III
State v. Markwart


with Tyler Markwart. The State's distinction is irrelevant for purposes of the rule

announced in Shupe.

       The State emphasizes that law enforcement found IS provider forms in

Markwart's possession and nearly all of the patients served by Markwart signed the

designation on one of two days. The State is incorrect; the forms show IS people

designated Markwart as their respective provider on seven dates. No more than 3 people

on any given day designated Markwart as their provider on six of those dates.

Regardless of when a patient signed a designated provider form, construing the facts in

the light most favorable to Markwart, he could have served those patients at different

times during the day. Whether he did is a question for the jury.

       The State also underscores that some of the forms designating Markwart as a

provider lacked expiration dates. Nevertheless, the statute does not require forms

designating a provider to have expiration dates. Former RCW 69.S1A.090.

       Finally, the State contends that Scott Shupe's authorization from a patient, unlike

Tyler Markwart's authorization, ended upon the sale. Along these lines, the State argues

that a provider cannot grow marijuana for more than one person at a time. We find no

language in Shupe stating that Shupe's authorization form only consented to one sale.

Regardless, the statute does not require that the authorization end with one sale. Nor

does the statute limit the provider to growing for one patient at a time. The State's

argument conflicts with the language and spirit of Shupe. If one can be the provider for

                                            23 

No. 31158-9-III
State v. Markwart


more than one patient at one time, although one must conduct sales at different times, one

must be able to grow marijuana for more than one patient at a time.

       The only other elements required under MUMA to be a "designated provider" are

(1) the provider is over 18 and (2) designated in writing to be the qualifying patient's

provider. FormerRCW 69.51A.010(l)(a), (b). Markwart's license, photocopied with the

designated provider forms, shows he was born in 1981, making him 30 at the time of his

offense. Those same forms designate him as a provider to qualifying patients and thereby

satisfy the remaining element.

       Given the ambiguous statute, the patient trial court understandably erred. But

under this court's interpretation of the statute in Shupe, Markwart was entitled to present

his affirmative medical marijuana defense against the charge of manufacturing marijuana.

                             DELIVERY OF MARIJUANA

       Whether Tyler Markwart, under the undisputed facts, could proceed with a

MUMA defense for the charges of delivery and possession with intent to sell is more

problematic. At trial, the State contended that Markwart could not proceed with his

defense to the possession and delivery counts since the police doctored the doctor's

authorization form for the confidential informant and Detective Aase; since both forms

were non-tamper resistant; and since Aase lacked identification, in addition to the high

number of patients served. During oral argument on appeal, the State conceded that

Markwart need not have investigated whether the physician's authorization forms were

                                             24 

                                                                                    --   --~-~~---




No.3U58-9-III
State v. Markwart


forged. The State continues to argue that Markwart should have known that the forms

were non-tamper resistant, and thus he does not qualify as a provider under MUMA.

       The delivery charges relate to the sales to the confidential informant. Markwart

does not dispute that the authorization the informant showed was not on tamper resistant

paper. To establish the affirmative defense, a person must meet the criteria for status as a

designated provider and present his "valid documentation" to any law enforcement

official who questions him. Former RCW 69.51A.040 (LAWS OF 2007, ch. 371, § 5).

Valid documentation required a statement signed by a health care professional "on

tamper-resistant paper." Former RCW 69.51A.OI0(7)(a).

       Tyler Markwart argues the trial court should have permitted him the opportunity to

argue to the jury that providers may reasonably rely on documentation presented by a

patient. We find no case that implies the medical marijuana provider 'may rely on the

patient to present the obligatory documentation. We find no case that waives the

requirement that a medical marijuana provider insure that the authorization be on special

paper. Further, Markwart's argument conflicts with the statute. MUMA expresses an

intent that the provider ascertain the qualifications of the patient. The citizens of

Washington, when adopting MUMA, and the state legislature, when enacting

amendments, necessarily considered tamper resistant paper critical in the delivery of

medical marijuana. The citizens and legislators understood the ease by which

authorizations could otherwise be forged. If Tyler Markwart did not know what
                                                                                                 I
                                             25

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                                                                                                 ..
                                                                                                 I
No. 31 158-9-III
State v. Markwart


constituted tamper resistant paper or was unable to detect the special form of paper, he

should not have been in the business of selling medical marijuana. He should have

educated himself, before making any sales. Markwart's dealings with Detective Aase

also belie his claim that either he was unable to detect tamper resistant paper or he should

not be required to detect the nature of the paper.

                        POSSESSION WITH INTENT TO SELL

       We finally address whether Tyler Markwart may present the MUMA defense to

the charges of possession with intent to sell. The trial court dismissed the defense to this

charge because Markwart had intended to sell to Detective Aase when Markwart was not

a qualified provider. We have already ruled that Markwart can present the defense that

he was a qualified provider, despite being designated as a provider by more than one

person. Critical to the count of possession are the facts that the State concedes Markwart

refused to sell to Aase because his authorization was not on tamper resistant paper and

Aase lacked identification. Tyler Markwart acted consistent with the law. Unlike his

failure to carefully observe the confidential informant's documentation, Markwart took

the precautions when meeting with Detective Aase. The MUMA defense is available to

Tyler Markwart on the charge of possession with intent to deliver.

                                      SENTENCING

       Tyler Markwart also complains about the sentence imposed by the trial court. We

are remanding the case for a new trial on the charges of manufacturing and possession

                                             26 

No. 31158-9-III
State v. Markwart


with intent to deliver a controlled substance. Therefore, we vacate the trial court's

sentence and direct the trial court to enter a new sentence after any new trial. Therefore,

we need not consider any sentencing errors at this time.

                                      CONCLUSION

       We affirm the convictions of Tyler Markwart for three counts of delivery of

marijuana to the confidential informant. We vacate the convictions for manufacturing

and possession with intent to sell and remand those charges for a new trial during which

Tyler Markwart may present his MUMA defense. We also vacate the sentence imposed

by the trial court. The court shall resentence Tyler Markwart after completion of a new

trial or a dismissal of the remaining charges.




WE CONCUR: 




                                                                                              I
Brown, 1.
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