December 4 2012
DA 11-0705
IN THE SUPREME COURT OF THE STATE OF MONTANA
2012 MT 277N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
DWAIN EDWARD WEAVER,
Defendant and Appellant.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and For the County of Valley, Cause No. DC-2010-27
Honorable John C. McKeon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Mary L. Zemyan, Attorney at Law, Wolf Point, Montana
For Appellee:
Steve Bullock, Montana Attorney General, Mardell Ployhar, Assistant
Attorney General, Helena, Montana
Nickolas C. Murnion, Valley County Attorney, Glasgow, Montana
Submitted on Briefs: October 30, 2012
Decided: December 4, 2012
Filed:
__________________________________________
Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Weaver appeals his conviction on seven drug-related charges following a jury trial
in the Seventeenth Judicial District Court, Valley County. Weaver rented a building in
Valley County known as the Missouri River Outpost (The Outpost) for the purpose of
opening a medical marijuana dispensary. Weaver was still in the process of renovating
The Outpost when he was approached by Roosevelt County Undersheriff Ron Kemp on
August 6, 2010. Undersheriff Kemp did not identify himself as a law enforcement officer
and was dressed in plain clothes when he entered The Outpost and asked Weaver about
his plans. According to Undersheriff Kemp, Weaver stated that he would sell marijuana
or hashish to anyone with a registry identification card, and was also planning on selling
to hunters and tourists who came to Montana with medical marijuana cards from other
states. Believing that Weaver was violating the provisions of the Medical Marijuana Act
(MMA), 1 Undersheriff Kemp enlisted the assistance of the Montana Department of
Justice Division of Criminal Investigation (DCI).
1
All references in this Opinion to the “Medical Marijuana Act” are to the 2009 version of
the Act, §§ 50-46-101 to 210 (2009).
2
¶3 Undersheriff Kemp returned to The Outpost on August 9, 2010, accompanied by
DCI Agent Kevin Klostermeier. Agent Klostermeier had obtained a medical marijuana
registry identification card and driver’s license under the fictitious name of Jake Elmore.
Agent Klostermeier told Weaver he was working in the area and was not able to make
contact with his provider. Weaver asked Agent Klostermeier to fill out a “206 Transfer
Form.” After Agent Klostermeier completed the form, Weaver sold him fourteen grams
of hashish. Based on the observations of Undersheriff Kemp and Agent Klostermeier,
officers obtained a search warrant and conducted a search of The Outpost on August 11,
2010. Officers seized twenty-nine marijuana plants, harvested marijuana, hashish, grow
lights, guns, paraphernalia, twelve receipts from previous sales, and customer files. At
the time of the investigation and seizure, Weaver was a registered patient but not an
authorized caregiver. Weaver had applied to become an authorized caregiver under the
MMA, but his application had not yet been approved by the Montana Department of
Public Health & Human Services (DPHHS).
¶4 Weaver was arrested and charged with seven felonies: five counts of criminal
distribution of dangerous drugs, one count of criminal possession of dangerous drugs, and
one count of criminal production or manufacture of dangerous drugs. A jury trial was
held April 5-8, 2011. The jury found Weaver guilty on all seven counts.
¶5 Weaver appeals his conviction in District Court and raises the following issues:
¶6 1. Did the District Court err when it denied Weaver’s pretrial motion to dismiss?
¶7 2. Did the District Court err when it denied Weaver’s motion to suppress evidence
based on entrapment?
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¶8 3. Were Weaver’s patient-to-patient transfers of marijuana and possession of
twenty-nine marijuana plants protected by the affirmative defense provided by the
MMA?
¶9 4. Did the District Court fail to fully and fairly instruct the jury on the affirmative
defense provided by the MMA?
¶10 Weaver argued in a pretrial motion to dismiss that Counts I-VI should be
dismissed because the Information alleged that he possessed and distributed hashish, and
hashish is not specifically listed as a “dangerous drug” in the schedule of controlled
substances. Weaver relied on State v. Kelman, 199 Mont. 481, 483-84,
649 P.2d 1292,
1293-94 (1982), in which this Court held that the facts set forth in an Information
charging a defendant with possession of hashish were insufficient to state a crime under
Montana law because hashish was not defined or listed in the schedules of controlled
substances at that time. The District Court denied Weaver’s motion to dismiss after
concluding that the Information provided sufficient notice of the charged offenses. We
agree with the District Court’s decision. In response to the Kelman decision, the
Legislature passed legislation in 1983 that added the following definition:
“Hashish”, as distinguished from marijuana, means the mechanically
processed or extracted plant material that contains tetrahydrocannabinol
(THC) and is composed of resin from the cannabis plant.
Section 50-32-101(14), MCA. The statute listing dangerous drugs under Schedule 1
includes “tetrahydrocannabinols, including synthetic equivalents of the substances
contained in the plant or in the resinous extractives of cannabis.” Section
50-32-222(4)(bb), MCA. Each of the counts in the Information specifically alleged that
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Weaver either sold or possessed a dangerous drug as defined in § 50-32-101, MCA. The
District Court correctly concluded that the facts as alleged in the Information were
sufficient to state a crime under Montana law. Weaver’s motion to dismiss was properly
denied.
¶11 Next, Weaver argues that the District Court erred in concluding that he had not
established entrapment as a matter of law. We agree with the District Court that the mere
use of an undercover agent with fake identification does not constitute entrapment.
Weaver failed to meet his burden in proving that he was lured or induced into committing
a crime he had no intention of committing. State v. Smith, 2006 MT 145, ¶ 12,
332 Mont.
386,
138 P.3d 799. Here, the evidence supports the conclusion that entrapment did not
occur because Agent Klostermeier merely afforded Weaver the opportunity to commit an
offense in furtherance of a criminal purpose that originated with Weaver. Section
45-2-213, MCA.
¶12 The next issue Weaver raises concerns whether his patient-to-patient transfers of
marijuana and possession of twenty-nine marijuana plants were protected by the
affirmative defense provided by the MMA. First, we note that Weaver’s sales and
possession of hashish are not protected by the MMA. See State v. Pirello,
2012 MT 155,
¶ 18,
365 Mont. 399,
282 P.3d 662. Second, the so-called “206 Transfer Form” was
created by the medical marijuana industry and is inconsistent with the requirements of the
MMA, which does not allow cardholders to obtain marijuana from anyone other than
their registered caregiver. See State v. Johnson,
2012 MT 101, ¶ 21,
365 Mont. 56,
277
P.3d 1232. The 206 Transfer Form is not recognized by the DPHHS. Third, Weaver was
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not a registered caregiver, so as a patient he was allowed to possess only six marijuana
plants and one ounce of marijuana. Section 50-46-201(2), MCA. Given these facts,
Weaver did not present sufficient evidence to support his affirmative defense. The jury’s
rejection of this affirmative defense was fully supported by the evidence in the record.
¶13 Weaver’s final argument is that the District Court abused its discretion in refusing
to offer two of his proposed jury instructions. Weaver’s Proposed Instruction No. 25 was
intended to instruct the jury on the affirmative defense provided by § 50-46-206, MCA.
The State proposed a similar instruction that contained different introductory language
but recited the same elements. The District Court modified the introductory language
proposed by both parties, but recited the elements of the defense in much the same way
as the parties had proposed. Weaver also challenges the District Court’s refusal to give
Weaver’s Proposed Instruction No. 6, which provided definitions of “dangerous drug,”
“marijuana,” and “hashish.” These terms were accurately defined in other instructions
provided by the District Court. We review jury instructions in a criminal case to
determine whether the instructions, as a whole, fully and fairly instruct the jury on the
law applicable to the case. State v. Michaud, 2008 MT 88, ¶ 16,
342 Mont. 244,
180 P.3d
636. A district court has broad discretion when it instructs a jury. Michaud, ¶ 16. A
review of the jury instructions demonstrates that the District Court fully and fairly
instructed the jury on the law applicable to this case, and did not abuse its discretion
when it refused to accept Weaver’s proposed instructions word for word.
¶14 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our Internal Operating Rules, which provides for noncitable memorandum opinions.
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Having reviewed the briefs and the record on appeal, we conclude that Weaver has not
met his burden of showing that the District Court abused its discretion or erred in any
way. We therefore affirm the District Court.
/S/ PATRICIA COTTER
We concur:
/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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