Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

STATE OF WASHINGTON,                                             No.  40624-1-II

                             Respondent,

       v.

G.B. BROWN,                                                 PUBLISHED OPINION

                             Appellant.

       Johanson, J.  --  After a bench trial on stipulated facts, the trial court found G.B. Brown 

guilty of unlawful manufacture of marijuana and unlawful possession of marijuana with intent to 

deliver.  Brown appeals, arguing that the trial court erred in denying him the opportunity to 

present the affirmative defense that he was a designated provider under the Washington State 

Medical Use of Marijuana Act (Act), chapter 69.51A RCW.  We agree with Brown and reverse.

                                            FACTS

       In August 2009, Thurston County Sheriff's deputies contacted Brown at his residence 

because they had received a tip that Brown was selling marijuana.  Brown admitted that he was a 

designated provider of medical marijuana and that he grew and possessed marijuana.  The State 

charged Brown with unlawful possession of a controlled substance, marijuana, with intent to 

deliver and unlawful manufacture of a controlled substance, marijuana.  At a pretrial hearing, 

Sergeant Tim Rudloff testified that Brown admitted he was the medical marijuana provider for 

three different people.  Brown provided the deputy documentation to support his claim -- medical  

No. 40624-1-II

marijuana prescriptions and signed forms designating Brown as the designated provider for 

Donald Wise and Carl Brewster.  Brown also produced for the deputy  a medical marijuana 

prescription for Ernestine Ann Wiggins but not a designated provider form.  

       Brown argued that a material issue of fact existed regarding whether he provided 

marijuana to more than one person at a time.  The trial court found that Brown admitted he was a 

designated provider to three people and that, as a matter of law, Brown was the designated 

provider for more than one person at a time.  The trial court rejected Brown's argument that "at 

any one time" meant that Brown had to provide marijuana to more than one person at the same 

point in time.  Report of Proceedings (RP) (Mar. 8, 2010) at 37.  The trial court found that 

Brown failed to present a prima facie case that he had complied with the medical marijuana statute 

and denied Brown the opportunity to present the defense to the jury.  

       Brown moved for reconsideration, arguing that he was not a designated provider to 

Brewster because Brewster would testify that he had never received marijuana from Brown. He 

also contended that whether he provided marijuana for Wiggins was a factual question for the jury 

because he had not provided officers with a designated provider form.  The trial court denied his 

motion for reconsideration.  After a stipulated facts bench trial, the trial court found Brown guilty 

of unlawful possession of a controlled substance, marijuana, with intent to deliver and unlawful 

manufacture of a controlled substance, marijuana.  Brown appeals.

                                          ANALYSIS

       Brown asserts that the trial court erred by denying him the right to present the medical 

marijuana affirmative defense at trial.  He argues that, because the statute is ambiguous, we must 

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resolve the ambiguity in his favor; and, he asserts that factual issues exist.  We agree that a factual 

issue exists regarding whether Brown was a designated provider to only one patient at a time 

under the 2007 Act.  

       A designated provider is a person who is (1) 18 years of age or older; (2) has been 

designated in writing by a patient to serve as a designated provider under chapter 69.51A RCW;

(3) is prohibited from consuming marijuana obtained for the personal, medical use of the patient 

for whom the individual is acting as a designated provider; and (4) is the designated provider to 

only one patient at any one time.  RCW 69.51A.010(1).  And, the  2007 statute provided an 

affirmative defense for  designated providers against Washington laws criminalizing marijuana.  

Former RCW 69.51A.040(2) (2007).  

                    Retroactive Application of Amended RCW 69.51A.040

       As a preliminary matter, we note that in 2011, the state legislature amended former RCW 

69.51A.040, the particular statute at issue here. We must first decide whether the 2011 amended 

statute or the 2007 statute applies to this case. 

       Washington courts disfavor retroactive application of a statute but 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.  State v. Ramirez, 140 Wn. App. 278, 287-88, 165 P.3d 

61 (2007), review denied, 163 Wn.2d 1036 (2008).

       First, the legislature is silent on whether it intended to apply the amended statute 

retroactively.  The bill contains no statement of intent because Governor Gregoire vetoed that 

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No. 40624-1-II

section.1  Engrossed Second Substitute S.B. 5073, veto message at 42, 62d Leg., Reg. Sess. 

(2011) (ESSSB). Second, the amended statute appears to change, as well as clarify, former RCW 

69.51A.040.    The 2007 statute  does not specify when or how a person may terminate a 

designated provider authorization.  In comparison, the 2011 statute specifies not only how to 

revoke a designation, but for how long a designated provider remains under the protection of 

former RCW 69.51A.040 after the revocation.

       In addition, under the 2007 statute a designated provider may not be the designated 

provider to more than one patient at any one time.  Former RCW 69.51A.010(1) (2007).2 Under

the 2011 amendments, law enforcement must have evidence that the designated provider has 

served more than one qualifying patient within a 15-day period.  RCW 69.51A.040(5).    Although 

the amendments may help clarify the designated provider definition, they are not simply remedial 

or technical because they added new requirements.  We conclude that the 2011 amendments do 

not apply retroactively; therefore, we analyze Brown's claims under the 2007 statute.

                            Medical Marijuana Affirmative Defense

       We review de novo whether the trial court erred in disallowing a medical marijuana 

defense, a legal question.  State v. Tracy, 158 Wn.2d 683, 687, 147 P.3d 559 (2006).  At a 

1 In amending the medical marijuana statute, the legislature had declared, in part, that its intent 
was to "amend and clarify the law on the medical use of cannabis so that . . . [q]ualifying patients 
and designated providers complying with the terms of this act and registering with the department 
of health will no longer be subject to arrest or prosecution, other criminal sanctions, or civil 
consequences based solely on their medical use of cannabis."  Engrossed Second Substitute S.B. 
5073, § 101(1)(a), 62d Leg., Reg. Sess. (Wash. 2011).  

2 ESSB, § 401(5), did not directly amend RCW 69.51A.010(1).  Rather, the amendment to former 
RCW 69.51A.040 added additional criteria for determining whether a designated provider 
complies with the law. 

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hearing to determine whether a defendant may raise a medical marijuana affirmative defense, a 

defendant need only make a prima facie case to raise the defense. State v. Adams, 148 Wn. App. 

231, 235, 198 P.3d 1057 (2009).  Although a defendant must show by a preponderance of the 

evidence that she or he is entitled to the Act's defense, the trial court must take the evidence in 

the light most favorable to the defendant.  Adams, 148 Wn. App. at 235.

       Trial courts may weigh issues of law when determining whether to permit a defendant to 

raise a medical marijuana affirmative defense.  State v. McCarty, 152 Wn. App. 351, 363, 215 

P.3d 1036 (2009) (considering as an issue of law whether a defendant was a designated 

caregiver). But trial courts may not weigh conflicting issues of fact to deny a defendant the 

opportunity to present a medical marijuana defense.    For example, whether a defendant has a 

qualifying condition is a question of fact that a jury should decide once a defendant presents 

written authorization from a Washington-licensed physician stating that she or he has a qualifying 

condition.  State v. Fry, 168 Wn.2d 1, 18-19, 23, 228 P.3d 1 (2010) (Chambers, J., concurring; 

Sanders, J., dissenting).  To the extent that the statute is ambiguous, we must resolve the 

ambiguity in the defendant's favor under the rule of lenity.  State v. Jacobs, 154 Wn.2d 596, 601, 

115 P.3d 281 (2005). 

       Brown had the duty to produce some evidence demonstrating  that he was entitled to 

assert the medical marijuana defense; and, once he did, the trial court could not weigh conflicting 

issues of fact.  Fry, 168 Wn.2d at 18-19, 23.  Brown met his burden. 

       Under RCW 69.51A.010(1)(d), Brown could lawfully be "the designated provider to only 

one patient at any one time."  The trial court found that since Brown was designated on more 

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than one designated provider form, he was a designated provider for both Wise and Brewster in 

violation of the law.  The court concluded as a matter of law that Brown did not meet the 

definition of a "designated provider." RP (Mar. 29, 2010) at 14.  Brown contends that under 

RCW 69.51A.010(1)(d), "designated provider to only one patient at any one time" means 

something more than simply possessing the designated provider forms.  Br. of Appellant at 15.

       At the pretrial hearing, Sergeant Rudloff testified that Brown admitted he provided

medical marijuana to three different persons.  Brown provided documentation to support his 

claim -- medical marijuana prescriptions and signed forms designating Brown as the designated 

provider for Wise and Brewster.  Brown also produced a medical marijuana prescription for 

Wiggins, but not a designated provider form.  At the motion for reconsideration hearing, the trial 

court accepted Brown's offer of proof that Brewster would testify that Brown had not provided 

him marijuana. 

       These facts raise a material issue of fact whether Brown was the designated provider to 

Wise, Brewster, and Wiggins at one time.  Whether and when someone is a designated provider 

to a particular patient is a factual issue.  Possession of designated provider forms is relevant 

circumstantial evidence, but does not dispose of the issue. Because Brewster would testify that 

he never received any marijuana from Brown, and Brown did not have a designated provider form 

for Wiggins, a reasonable trier of fact, viewing the evidence in the light most favorable to Brown, 

could conclude that Brown was a designated provider only to Wise. 

       Viewing the evidence in the light most favorable to Brown, we conclude that Brown 

established a prima facie case to support the medical marijuana affirmative defense. The trial court 

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erred when it denied Brown the opportunityto present this defense at trial.

       We reverse and remand for new trial.  

                                                                   Johanson, J.
We concur:

                Van Deren, J.

                 Penoyar, C.J.

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