State of Washington v. David Hendershot

2011 | Cited 0 times | Court of Appeals of Washington | August 16, 2011


The Washington State Medical Use of Marijuana Act provides a qualified patient with a defense to crimes involving marijuana. RCW 69.51A.005. To be eligible for the defense, a person must (among other requirements) present valid documentation when questioned by law enforcement officers. David Hendershot challenges the trial court's entry of a pretrial order in limine barring him from offering evidence that he received physician authorization for medical marijuana use a month after law enforcement officers seized marijuana plants from his home but before the State filed the information charging him with controlled substance crimes. Because Mr. Hendershot failed to make an offer of proof identifying evidence supporting required elements of the medical marijuana defense, the trial court did not abuse its discretion in granting the State's motion. We affirm.


On August 13, 2008, Detectives Michael Gilmore and Brad Manke obtained a search warrant for David Hendershot's home and property, based on aerial observation of marijuana plants outside the home. During the search, officers discovered and seized 181 marijuana plants. Mr. Hendershot did not present, or even possess, valid documentation of physician authorization for his medical use of marijuana at the time. A month later, Mr. Hendershot obtained a medical authorization to possess marijuana for medical purposes from Dr. Thomas Orvald. The document identified Dr. Orvald as a physician treating Mr. Hendershot for a debilitating condition, stated that he had advised Mr. Hendershot of the risks and benefits of the medical use of marijuana, and expressed the doctor's medical opinion that the potential benefits of the medical use of marijuana would likely outweigh the health risks. Clerk's Papers at 10. The State does not contest the sufficiency of the medical authorization form to satisfy the requirements of the medical marijuana act on and after September 16, 2008, the date the form was completed.

On January 16, 2009, the Stevens County prosecutor charged Mr. Hendershot with use of drug paraphernalia, manufacturing marijuana, and possession of marijuana with intent to manufacture or deliver based on evidence seized in the August search. Prior to trial, the State moved for an order in limine excluding evidence and argument relating to any medical marijuana authorization obtained by Mr. Hendershot after August 13, 2008. It offered two bases for its motion: first, that Mr. Hendershot failed to present medical authorization when confronted by officers at the time of the search; and second, that 181 marijuana plants far exceed the 60-day supply permitted under the statute. Either would make the defense unavailable. In resisting the motion, Mr. Hendershot argued that the presentment requirement of the medical marijuana defense does not arise until a person is charged with a crime.

The trial court agreed with the State that any medical authorization obtained by Mr. Hendershot after August 13, 2008 was unavailing and entered an order in limine on that basis. While recognizing that the amount constituting a 60-day supply is generally an issue of fact, it nonetheless relied on the large number of plants seized as an additional and alternative basis for excluding evidence of the defense. Report of Proceedings at 167-68.

Mr. Hendershot was thereafter tried on stipulated facts and found guilty of manufacturing marijuana, a felony. He appeals, arguing that the court's order in limine violated his right to present a defense.


When a defendant is charged with a violation of state law involving marijuana, he may assert that he intends to raise a medical marijuana defense under chapter 69.51A RCW. State v. Fry, 168 Wn.2d 1, 18, 228 P.3d 1 (2010) (Chambers, J., concurring). A defendant raising an affirmative defense must offer sufficient admissible evidence to justify giving the jury an instruction on the defense. State v. Ginn, 128 Wn. App. 872, 879, 117 P.3d 1155 (2005), review denied, 157 Wn.2d 1010 (2006). When the State learns that a defendant asserts a defense that it believes is clearly legally insufficient, it may, if concerned that the jury will be confused or misled, make a motion in limine to prevent the defense from being raised in any way at trial.

Of course, criminal defendants have a due process right to have their defenses heard and their right to a trial by jury must remain inviolate. Fry, 168 Wn.2d at 14 (Chambers, J., concurring). In evaluating the sufficiency of the evidence to raise an affirmative defense, the trial court must view the evidence in favor of the defendant. State v. Adams, 148 Wn. App. 231, 235, 198 P.3d 1057 (2009).

Whether to grant a motion in limine is discretionary with the trial court. Fenimore v. Donald M. Drake Constr. Co., 87 Wn.2d 85, 89-90, 549 P.2d 483 (1976). We review a trial court's decision on the admissibility of evidence, and its rulings on motions in limine, for abuse of discretion. State v. Powell, 126 Wn.2d 244, 258, 893 P.2d 615 (1995). Abuse of discretion occurs where the trial court's action is manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons. Id.

Mr. Hendershot argues that the trial court's decision was based on statutory interpretation; in such a case, we review a trial court's decision de novo. Meadow Valley Owners Ass'n v. Meadow Valley, LLC, 137 Wn. App. 810, 816, 156 P.3d 240 (2007). A trial court may abuse its discretion by applying an incorrect legal analysis or other error of law. State v. Tobin, 161 Wn.2d 517, 523, 166 P.3d 1167 (2007).

Under the medical marijuana act, "[q]ualifying patients with terminal or debilitating illnesses who, in the judgment of their physicians, may benefit from the medical use of marijuana, shall not be found guilty of a crime under state law for their possession and limited use of marijuana." Former RCW 69.51A.005 (2007). Under the act, a person is deemed to have established an affirmative defense to the charges by proof of his or her compliance with the requirements of the act, those being that he or she (1) meets all the criteria for status as a qualifying patient, (2) possesses "no more marijuana than is necessary for the patient's personal, medical use, not exceeding the amount necessary for a sixty-day supply," and (3) "[p]resent[s] his or her valid documentation to any law enforcement official who questions the patient . . . regarding his or her medical use of marijuana." Former RCW 69.51A.040(2), (3)(b), (c) (2007).

The trial court granted the order in limine based on its determination that evidence of Dr. Orvald's statement and treatment could not salvage Mr. Hendershot's inability to establish the third requirement for the defense: that he had presented his valid documentation to any law enforcement official who questioned him regarding his medical use of marijuana. Mr. Hendershot contends this was error; he argues that Dr. Orvald's authorization could support a defense, inasmuch as "the statute requires presentment only when such questioning occurs," citing State v. Butler, 126 Wn. App. 741, 750-51, 109 P.3d 493 (2005), and that "authorization need only be presented when such questioning is preceded by formal charges," citing Fry, 168 Wn.2d at 9. Br. of Appellant at 6. Because "[t]he State failed to provide the court with any evidence that any law enforcement officer questioned Mr. Hendershot regarding his medical use of marijuana either before or after the charges were filed," he argues, the evidence, viewed in the light most favorable to Mr. Hendershot, could have supported the defense. Id. at 6-7. In short, Mr. Hendershot would like us to decide based on State v. Hanson, 138 Wn. App. 322, 157 P.3d 438 (2007), Fry, the language of the statute, and an alleged failure of the State's proof, that an individual is not required to proactively demonstrate his medical marijuana authorization in a first encounter with law enforcement but only, in the words of the statute, "to any law enforcement official who questions the patient . . . regarding his or her medical use of marijuana." Former RCW 69.51A.040(3)(c). Moreover, because Dr. Orvald's statement does not establish when Mr. Hendershot became his patient, Mr. Hendershot argues that uncertainty about when he was first seen by Dr. Orvald presented a question of fact as to whether he was a qualifying patient on the date of the seizure.

Mr. Hendershot's argument fails to consider the burden of proof that the trial court bears in mind in ruling on a motion in limine relating to an affirmative defense. A defendant asserting a medical marijuana defense has the burden of proving by a preponderance of evidence that he or she has met the requirements of the medical marijuana act. Ginn, 128 Wn. App. 872; Fry, 168 Wn.2d at 7. At the time the motion in limine was heard, it was incumbent upon Mr. Hendershot to make an offer of proof as to how he would demonstrate the elements of the defense. He did not.

Contrary to Mr. Hendershot's position, the fact that the record before the trial court on the motion in limine is silent on the first and third elements of the defense does not resolve the issue in his favor. Instead, viewed in the light most favorable to Mr. Hendershot, the fact that he never articulated any basis on which he could satisfy two elements on which he bore the burden of proof justified the court's entry of the order in limine. See Fry, 168 Wn.2d at 19 (Chambers, J., concurring) (evidence relating to medical marijuana defense was properly excluded because defendant did not offer evidence that he had a qualifying condition in response to motion in limine); cf. Ginn, 128 Wn. App. at 881 (motion in limine was improperly granted where, in response to the motion, defendant presented evidence that she met each of the statutory criteria of the "'qualifying patient'" defense); and see Sturgeon v. Celotex Corp., 52 Wn. App. 609, 617, 762 P.2d 1156 (1988) (appellate courts will not make assumptions in favor of a party whose evidence is excluded where it did not make an adequate offer of proof).

In light of our determination that the motion in limine was properly granted for these reasons, we need not reach the State's argument that the large number of marijuana plants seized was an additional and sufficient basis for granting the motion.

The trial court did not abuse its discretion in entering the order in limine. Affirmed.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

Siddoway, J.

WE CONCUR: Kulik, C.J. Korsmo, J.

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