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N.J.S.A. 2C:35-5(a)(1). Defendant, who was diagnosed with Multiple Sclerosis (MS) in 2002, argues on appeal that he was entitled to a "personal use defense" and his sentence is excessive. For the reasons that follow, we affirm. A State grand jury charged defendant with first-degree maintaining or operating a production facility for manufacturing marijuana, N.J.S.A. 2C:35-4 (count one); second-degree manufacturing of marijuana in an amount greater than ten but less than fifty plants, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(10)(b) (count two); and third-degree possession of psilocybin mushrooms, N.J.S.A. 2C:35-10(a)(1) (count three). The court denied defendant's motion to dismiss counts one and two of the indictment on March 20, 2009, and it subsequently granted the State's motion in limine to bar defendant from asserting a personal use defense and from referencing his medical condition at trial. "> Original

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(NOTE: The status of this decision is Unpublished.) Original Wordprocessor Version NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3826-09T3

S
APPROVED FOR PUBLICATION

July 26, 2011

TATE OF NEW JERSEY,

APPELLATE DIVISION

Plaintiff-Respondent,

v.

JOHN RAY WILSON,

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Defendant-Appellant. _________________________________________________________ July 26, 2011 Submitted February 15, 2011 - Decided

Before Judges Carchman, Graves and Messano.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 08-09-00204.

Wronko & Loewen, attorneys for appellant (James R. Wronko, of counsel; Mr. Wronko and Gilbert G. Miller, on the brief).

Paula T. Dow, Attorney General, attorney for respondent (Russell J. Curley, Deputy Attorney General, of counsel and on the brief).

The opinion of the court was delivered by GRAVES, J.A.D. A jury convicted defendant John Ray Wilson of manufacturing marijuana, N.J.S.A. 2C:35-5(a)(1). Defendant, who was diagnosed with Multiple Sclerosis (MS) in 2002, argues on appeal that he was entitled to a "personal use defense" and his sentence is excessive. For the reasons that follow, we affirm. A State grand jury charged defendant with first-degree maintaining or operating a production facility

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for manufacturing marijuana, N.J.S.A. 2C:35-4 (count one); second-degree manufacturing of marijuana in an amount greater than ten but less than fifty plants, N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:355(b)(10)(b) (count two); and third-degree possession of psilocybin mushrooms, N.J.S.A. 2C:35-10(a)(1) (count three). The court denied defendant's motion to dismiss counts one and two of the indictment on March 20, 2009, and it subsequently granted the State's motion in limine to bar defendant from asserting a personal use defense and from referencing his medical condition at trial. On December 17, 2009, a jury acquitted defendant of count one, but found him guilty of counts two and three. The trial court determined the presumption of imprisonment for a second-degree crime had not been overcome, and it imposed a five-year prison term on count two and a three-year concurrent term on count three. The court also granted defendant's application for bail pending appeal. Defendant presents three arguments for our consideration:

POINT I

THE TRIAL COURT ERRED BY HOLDING THAT THE MEDICAL/PERSONAL USE OF MARIJUANA WAS NOT AVAILABLE AS A DEFENSE TO A CHARGE OF MANUFACTURING MARIJUANA.

POINT II

THE TRIAL COURT ERRED BY BARRING THE DEFENSE EXPERT, DR. DENNIS PETRO, FROM TESTIFYING ABOUT THE BENEFICIAL EFFECT OF MARIJUANA ON MULTIPLE SCLEROSIS AND BY PRECLUDING MR. WILSON FROM REFERRING TO HIS MULTIPLE SCLEROSIS.

POINT III

MR. WILSON'S SENTENCE IS MANIFESTLY EXCESSIVE.

Based on our examination of the record, the briefs, and the applicable law, we conclude that defendant

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received a fair trial and his sentence is not excessive or unreasonable. On August 18, 2008, a National Guard helicopter was conducting a "marijuana search mission" over Somerset County. A possible "marijuana grove" was discovered, and GPS coordinates of the target area were relayed to State Police officers on the ground. Officers Matthew Mancil and William Peacock drove to the location, an old farm house on approximately one acre of land. When Mancil and Peacock arrived, they immediately observed "the tops of several marijuana plants . . . [at] the end of the driveway." The officers exited their vehicle and spoke with defendant, who was standing in the yard. Both officers testified that when asked if he knew why the police were at his house, defendant responded it was because of the marijuana plants. Defendant then signed a "Miranda Warning Acknowledgement Card" and a consent form for "a complete search of [the] residence, yard, and out buildings." Peacock, who was qualified as an expert witness "in the areas of marijuana and cultivation of marijuana," described the search as follows: A. . . . [W]e checked the area in the backyard for additional marijuana plants other than the ones we immediately saw when we drove up to the [house].
1

Q. And what did you see when you examined his backyard?

....

A. We noticed there were trails . . . [that] started from [the] yard and they led from plant to plant. The trails were worn through the grass all the way down to the bare earth. If you followed the trail, it led you from plant to plant to plant through the yard.

....

Q. After looking at the trails and seeing where they led, did you examine the plants themselves?

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A. Yes, I did.

Q. And what did you see?

A. We found 17 . . . marijuana plants that were just ringed around that yard from trail to trail to trail.

Q. Approximately how tall [were] the plants?

A. Between five and six-[feet] tall.

....

Q. Based on your opinion, were the plants well-cared for?

A. Yes, they were.

Q. What did you base that opinion on?

A. . . . They were very high, they appeared very lush. . . . The ground around [them] was loose and it appeared they'd been watered recently. You could see the trails going through there. Somebody had been by those plants almost daily.

The officers also discovered plant food and "Miracle-Gro Quick Start Planting and Transplant Starting Solution." While searching defendant's residence, the officers recovered "a small amount of marijuana" and a plastic bag containing psilocybin mushrooms in his bedroom. However, neither officer recalled asking defendant why he was growing marijuana or what he was going to do with it. Defendant testified in his own defense. When asked if he was "in the process of growing" the seventeen

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marijuana plants, he responded, "Yes, I was." Defendant admitted he purchased marijuana seeds "over the Internet" and planted about twenty of them: Q. . . . [Y]ou planted [the marijuana] seeds, is that correct?

A. Yes.

Q. You went out and cultivated the land and tilled it . . . ?

A. I didn't till it, I just kind of broke it up a little with a shovel to loosen the dirt.

Q. But you cleared the land in anticipation of planting, is that right?

A. I mean, it's a little space, not a large space, a foot space, a foot-and-a-half.

Q. A foot-and-a-half, and you did that 20 times?

A. Yeah.

Q. For 20 different seeds?

A. Yes, I did.

Q. . . . You didn't do any follow-up care?

A. I watered.

....

Q. So . . . over a course of two-and-a-half months, [you] made sure that these plants were going to grow and be healthy?
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A. That's what I was trying to do, yes.

In addition, to impeach the officers' credibility, defendant was allowed to testify he told Mancil and Peacock he was using the marijuana to treat his MS symptoms. In his first point, defendant argues that he should have been allowed "to present a personal use defense" to count two, which charged him with manufacturing marijuana under N.J.S.A. 2C:35-5. According to defendant, "the Legislature intended a personal use exemption to apply to all facets of the manufacturing process specified in the definition of manufacturing." In response, the State contends that the personal use exemption "is specifically limited to the preparation or compounding of a controlled dangerous substance [(CDS)] already in existence." After examining the relevant statutory language, the trial court rejected defendant's broad interpretation. We concur. "Manufacture" is defined as "the production, preparation, propagation, compounding, conversion or processing" of a CDS. N.J.S.A. 2C:35-2. The statute also states, however, that the definition "does not include the preparation or compounding of a [CDS] . . . by an individual for his own use." Ibid. Therefore, the Legislature limited the exemption to only two of the six enumerated activities, and an individual who engages in the production, propagation, conversion, or processing of a CDS----even for his own use---- commits a proscribed activity. In the present matter, we agree that defendant's actions did not fall within the narrow personal use exemption because he did not engage in "the preparation or compounding" of a CDS "for his own use." Ibid. Instead, defendant's actions exemplified the "production" of marijuana, which, by definition, includes "planting, cultivation, growing, or harvesting." Ibid. Although no New Jersey court has previously considered whether there is a personal use defense to growing marijuana, other jurisdictions have enacted nearly identical definitions of "manufacture" with "personal use" exemptions. See, e.g., Ark. Code Ann.

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