APPEAL FROM: District Court of the Twelfth Judicial District, In and For the County of Hill, Cause No. DC 09-113 Honorable David Cybulski, Presiding Judge
The opinion of the court was delivered by: Beth Baker
Justice Beth Baker delivered the Opinion of the Court.
¶1 Shawn Stoner appeals the order of the Twelfth Judicial District Court, Hill County, denying his motion to dismiss several marijuana charges against him. We affirm. The sole issue on appeal is whether the District Court erred in denying Stoner's motion to dismiss after he acquired a medical marijuana card.
PROCEDURAL AND FACTUAL BACKGROUND
¶2 On July 10, 2009, Tri-Agency Safe Trails Task Force Agent Pete Federspeil applied for and received a search warrant for Stoner's residence from Havre City Court. Task force agents and officers from the Havre Police Department executed the search warrant and found five marijuana plants and additional harvested marijuana in the residence. The agents and officers also located other marijuana paraphernalia, including growing equipment, pipes, a digital scale, and a marijuana crusher. The officers seized all of the evidence along with over $1,400 in cash that they believed to be the proceeds of marijuana sales.
¶3 Three days later, Agent Federspeil contacted the Montana Department of Public Health and Human Services (DPHHS) and was notified that Stoner had not obtained a medical marijuana registry identification card as a qualifying patient or caregiver.
¶4 On July 22, 2009, the State charged Stoner with Criminal Production or Manufacture of Dangerous Drugs, Use or Possession of Property Subject to Criminal Forfeiture, Criminal Possession of Dangerous Drugs with Intent to Distribute, and Criminal Possession of Drug Paraphernalia. Stoner pled not guilty to the charges. At his omnibus hearing on September 11, 2009, Stoner did not raise a defense pursuant to the Medical Marijuana Act (MMA), nor did he indicate any intention to file a motion to dismiss the charges against him based on the MMA.
¶5 On September 30, 2009, DPHHS issued a qualifying patient registry identification card to Dustin Malley naming Stoner as his caregiver. On October 21, 2009, Stoner filed a motion to allow him to raise an affirmative defense under § 50-46-206, MCA (2007),*fn1 which was in effect at the time of his alleged offense. That statute allowed an affirmative defense to "any criminal offense involving marijuana," provided three criteria were satisfied. One requirement included proof that a physician had conducted "a full assessment of the person's medical history and current medical condition" and determined "the potential benefits of medical marijuana would likely outweigh the health risks for the person." In his motion, Stoner indicated he had scheduled an appointment with a physician who may, at the time of trial, testify in support of his affirmative defense. The State objected, arguing that Stoner had failed to assert the defense in a timely manner and, in any event, the defense was not applicable when a defendant obtained an MMA card after the offense for which he sought to use it. The court did not immediately rule on the matter.
¶6 On December 3, 2009, DPHHS issued a qualifying patient registry identification card to Stoner under the MMA. Stoner listed Malley as his caregiver. The cards issued to Malley and Stoner contained expiration dates approximately one year after their issue dates. Both parties renewed their patient and caregiver cards shortly after the expiration dates.
¶7 On March 28, 2011, Stoner filed a motion to dismiss. Stoner's brief in support of his motion consisted almost entirely of portions of the MMA. Stoner cited § 50-46-201, MCA (stating the circumstances under which a person using marijuana "may not be arrested, prosecuted, or penalized in any manner") and § 50-46-206, MCA (describing when an affirmative defense may be asserted for an offense involving marijuana). The only legal argument Stoner provided was: "The case should be dismissed based upon Mr. Stoner's affirmative defense as a matter of law as there is no factual dispute regarding this issue." The State objected and repeated that Stoner did not obtain a registry card until after he was charged. The State further argued the affirmative defense was inapplicable because Stoner had not provided a physician's opinion justifying his use of the marijuana at the time of his offenses.
¶8 The District Court held a hearing on the motion to dismiss at which Stoner was the only witness to testify. He said he began seeing a doctor when he was twelve for scoliosis but stated, "I didn't see the medical marijuana doctor until I believe it was September of 2009." Stoner acknowledged that he was charged with the marijuana offenses in July 2009. In summation, Stoner asserted that the MMA did not require a person to possess a registration card at the same time he possessed marijuana. He also argued that even if the requirements of the law were hazy, the rule of lenity should apply and the statute should be construed in his favor. Though acknowledging the statute was "pretty vague," the County Attorney argued that, because it was undisputed that Stoner did not possess a card at the time he was charged, the jury should decide whether the affirmative defense had been met. ...