In a recent Arizona marijuana case, the defendant appealed after being convicted of selling marijuana and weapons misconduct. The case arose when two detectives had a confidential informant conduct a controlled buy. The detective searched the informant to make sure he didn’t have money, drugs, or paraphernalia. The detectives photographed a set of $20 bills to be used to purchase drugs and set up the informant with a recording device.
They followed the informant in cars to the target’s home. After going in, the informant returned to his car, accompanied by the target and a woman. The three went to the gas station, and the detectives followed. The target got out and went up to a white car that was parked at the gas station. He got inside and then went back to the informant’s car. They returned to the home, followed by the police. The informant dropped off the target and passenger. He met the detectives to be debriefed and searched. The detectives found a plastic baggie containing marijuana.
Meanwhile, a detective asked a patrol officer to follow the white car and stop it if there was any traffic violation. The patrol officer followed the car after it left the gas station and pulled him over for speeding. The patrol officer saw there was a handgun on the seat, and it was in a firing position. He asked the driver for the gun, which the driver gave him. He also smelled marijuana, and the driver admitted she had marijuana in a paper bag. She consented to a search. Inside, there were bags of marijuana and brownies and a set of $20 bills. She had a medical marijuana card, so the officer determined there was no basis to believe she’d broken a drug law. The officer photographed the money and drugs before letting her leave.
The detectives later saw the photographs and realized that this was the same set of bills they’d given to the confidential informant and that the baggies had the same letters in the corners as the bag the informant had bought. Accordingly, the prosecutor charged the driver with the sale of marijuana and weapons misconduct during the commission of a felony.
She testified at trial that she knew the target and knew him to be a medical marijuana cardholder. She’d given him free marijuana previously, and on that day, he’d asked to meet at the gas station, where she would give him marijuana. After giving him marijuana, he threw money through the window, and it seemed to be an afterthought. She didn’t intend to be compensated and wanted to give the money back, but she was waiting until next time due to the parking lot being crowded.
The defendant said she separated different marijuana strains, and that’s why the marijuana was individually packaged. She said the marijuana was for personal use and denied selling it. She was convicted and sentenced to three years’ probation. She appealed.
The prosecution had asked the court to preclude the defendant from presenting a medical marijuana defense, and the court agreed. The court denied the defense because the law didn’t immunize a medical marijuana cardholder from being prosecuted for marijuana sales. The defense attorney acknowledged that selling marijuana wasn’t legal under the medical marijuana law, but he argued that the ruling assumed there was a sale. The court explained she could deny a sale happened but couldn’t claim it was compliant with the medical marijuana law.
The defense argued that it was a violation of the defendant’s right to present her defense by failing to submit to the jury the dispute related to whether a sale had happened. The court explained she could testify about the sale but couldn’t offer a legal opinion that her actions were legal.
The appellate court explained that to convict the defendant for selling marijuana, the prosecution needed to prove she knowingly exchanged marijuana for something of value under Arizona Revised Statutes (“A.R.S.”) sections 13-3401(32), -3405(A)(4). To invoke the medical marijuana law, she had to show nothing was transferred in exchange for marijuana under A.R.S. § 36-2811(B)(3). The appellate court explained that in its instructions, the court had told the jurors that a registered qualifying patient could lawfully provide marijuana to another registered qualifying patient if nothing of value was transferred. Therefore, she had a chance to present her defense.
She also argued she’d been improperly prevented from presenting an entrapment defense. The appellate court explained that to raise entrapment, a defendant had to admit the substantial elements of the crime. Although she’d been charged with selling marijuana, she denied selling it and testified she’d didn’t intend to receive anything of value. Since she didn’t admit the elements of the charge, she couldn’t present a defense of entrapment.
Her conviction was affirmed.
If you are charged with any type of marijuana crime, contact criminal defense attorney James Novak at (480) 413-1499 in Tempe, Arizona.
- A.R.S. section 13-3407(A)(2)
- A.R.S. § 13-3415(A)
- A.R. S. § 28-1381(A)(3) (Driving while under the influence)
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