State v. Abdi ( 2015 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
MEREDITH J. ABDI, Appellant.
No. 1 CA-CR 13-0909
FILED 2-26-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-150070-001
The Honorable Teresa A. Sanders, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Adele G. Ponce
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
OPINION
Presiding Judge Andrew W. Gould delivered the opinion of the Court, in
which Judge Maurice Portley and Judge Jon W. Thompson joined.
STATE v. ABDI
Opinion of the Court
G O U L D, Judge:
¶1 Meredith J. Abdi appeals her conviction and sentence for
possession of marijuana, a class one misdemeanor. For the reasons that
follow, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND1
¶2 Prior to Abdi’s bench trial, the State filed a motion in limine
to preclude evidence that she was registered with the Oregon Health
Authority as a caregiver to administer medical marijuana. Abdi’s
registration card listed her father, a resident of Oregon, as her patient. The
trial court granted the motion, reasoning that the Arizona Medical
Marijuana Act did not provide a defense for persons registered as
caregivers in another state.
¶3 The evidence at trial showed that at approximately 4 a.m., a
police officer saw Abdi’s vehicle parked in a vacant dirt lot. The officer
approached the vehicle and asked Abdi to roll down the window; when she
did so, the officer smelled the odor of burning marijuana. The officer asked
Abdi where the marijuana was, and she responded by handing him a clear
plastic bag later found to contain 5.07 grams of marijuana.
¶4 The officer transported Abdi to the police station where she
waived her Miranda rights and agreed to speak to him. Miranda v. Arizona,
384 U.S. 436 (1966). According to the officer, Abdi told him that she had
been smoking marijuana that morning. She stated the marijuana had been
given to her by her sister, and that she smoked it to calm down from her
work as a registered nurse. Abdi also stated that she knew it was illegal to
possess marijuana.
¶5 When Abdi testified at trial, however, she provided a
different version of the incident. Abdi testified that while she knew the
marijuana was in the vehicle, she did not smoke it. Abdi claimed that the
marijuana had been left behind by her father, “my patient.” She testified
that she had told the officer she was registered as a caregiver in Oregon and
it was legal for her to possess marijuana.
¶6 Based on Abdi’s testimony, defense counsel urged the court
to reconsider its prior ruling and take into account Abdi’s possession of a
1 We view the trial evidence in the light most favorable to sustaining
the verdict. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2 (App. 2007).
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STATE v. ABDI
Opinion of the Court
caregiver card from Oregon, as well as the presumptions afforded a
caregiver under the Arizona Medical Marijuana Act. The court denied the
request, and found Abdi guilty of possession of marijuana. The court
suspended Abdi’s sentence and imposed one year of unsupervised
probation. Abdi filed a timely notice of appeal.
DISCUSSION
¶7 Abdi argues the trial court deprived her of her constitutional
right to present a defense by precluding evidence of her Oregon medical
marijuana caregiver card. Specifically, Abdi asserts that under the Arizona
Medical Marijuana Act, she was entitled to immunity for possessing the
marijuana because she was registered in Oregon as an authorized caregiver
for a medical marijuana patient.
¶8 We review rulings on the admissibility of evidence for abuse
of discretion, State v. Roscoe, 184 Ariz. 484, 491 (1996), and questions of
constitutional law and statutory interpretation de novo. See State v. Ellison,
213 Ariz. 116, 129, ¶ 42 (2006). “The best and most reliable index of a
statute’s meaning is its language and, when the language is clear and
unequivocal, it is determinative of the statute’s construction.” State ex rel.
Montgomery v. Harris, 234 Ariz. 343, 344, ¶ 8 (2014) (internal citations and
punctuation omitted).
¶9 Under the Arizona Medical Marijuana Act, a patient with a
qualifying debilitating medical condition may obtain a registry
identification card from the Arizona Department of Health Services that
permits her to possess and use marijuana for medical purposes. Arizona
Revised Statute (“A.R.S.”) § 36-2804.02(A);2 A.R.S. §§ 36-2801(4) and (13).
In her application, the “qualifying patient” may designate a caregiver to
assist her in her use of medical marijuana. A.R.S. § 36-2804.02(A)(3)(c). If
the caregiver agrees to assist with the patient’s medical use of marijuana
and meets the other qualifications set forth in the statute, she may obtain a
registry identification card from the department identifying her as a
“designated caregiver.” See A.R.S. § 36-2804.03(A)(1) and (2); A.R.S. § 36-
2804.04(A); A.R.S. § 36-2804.05(B); A.R.S. § 36-2801(2) and (5).
¶10 With defined exceptions, the Arizona Medical Marijuana Act
provides immunity from prosecution to a registered qualifying patient for
2 We cite to the current versions of the statutes, which have not been
amended in material part since the date of this offense.
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STATE v. ABDI
Opinion of the Court
the medical use of marijuana, and to a registered designated caregiver
assisting a registered qualifying patient in the medical use of marijuana.
A.R.S. § 36-2811(B); A.R.S. § 36-2802. Thus, a person in possession of a
registry identification card issued by the Arizona Department of Health
Services identifying her as either a “qualifying patient” or a “designated
caregiver” is accorded a rebuttable presumption that, if she possesses two
and one-half ounces or less of marijuana, she is engaged in the lawful
medical use of marijuana. See A.R.S. §§ 36-2811(A), (B); A.R.S. § 36-2801(1).
¶11 The Act gives a qualifying patient issued a registry
identification card by another state the same presumptions and immunities
when she visits Arizona. A.R.S. § 36-2804.03(C). The Act states, in relevant
part:
A registry identification card, or its equivalent, that is issued
under the laws of another state…that allows a visiting
qualifying patient to possess or use marijuana for medical
purposes in the jurisdiction of issuance has the same force and
effect when held by a visiting qualifying patient as a registry
identification card issued by the department, except that a
visiting qualifying patient is not authorized to obtain
marijuana from a nonprofit medical marijuana dispensary.
Id. The legislature defines “visiting qualifying patient” as a person who is
not a resident of Arizona or who has been a resident for less than 30 days,
who has been “diagnosed with a debilitating medical condition.” A.R.S. §
36-2801(17).
¶12 A.R.S. section 36-2804.03(C) expressly applies only to visiting
patients; it makes no reference to a “visiting designated caregiver.” Id. The
choice of wording in a statute rests with the legislature, and we will not
read a provision into A.R.S. § 36-2804.03(C) to include visiting authorized
caregivers when the legislature has chosen not to do so. City of Phoenix v.
Butler, 110 Ariz. 160, 162 (1973) (“The choice of the appropriate wording
rests with the Legislature, and the court may not substitute its judgment for
that of the Legislature.”) (citation omitted); State v. Roscoe, 185 Ariz. 68, 71
(1997) (“A well established rule of statutory construction provides that the
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STATE v. ABDI
Opinion of the Court
expression of one or more items of a class indicates an intent to exclude all
items of the same class which are not expressed.”) (citation omitted).3
¶13 Based on the express language of A.R.S. § 36-2804.03(C), the
Arizona Medical Marijuana Act does not provide a defense based on
possession of an out-of-state caregiver card. As a result, the trial court did
not abuse its discretion or violate Abdi’s right to present a defense by
precluding her from introducing evidence of her status as a registered
caregiver under Oregon’s medical marijuana statute. See Dobson v.
McClennen, 236 Ariz. 203, 208, ¶ 16 (App. 2014) (holding that court did not
err in precluding evidence that petitioners held medical marijuana cards at
the time of their offenses, because A.R.S. § 28-1381(D) does not provide an
affirmative defense to an (A)(3) charge based on marijuana use).
CONCLUSION
¶14 For the foregoing reasons, we affirm Abdi’s conviction and
sentence.
:ama
3 Additionally, Abdi’s caregiver registration card states that she is a
resident of Arizona. The scope of A.R.S. § 36-2804.03(C) is limited to
visiting patients as defined by A.R.S. § 36-2801(17); it does not apply to
resident patients or caregivers.
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