State of Arizona v. Jeremy Allen Matlock

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellant,
v.
JEREMY ALLEN MATLOCK,
Appellee.
No. 2 CA-CR 2014-0274
Filed May 27, 2015
Appeal from the Superior Court in Pima County
No. CR20134266
The Honorable Richard S. Fields, Judge
REVERSED AND REMANDED
COUNSEL
Barbara LaWall, Pima County Attorney
By Nicolette Kneup, Deputy County Attorney, Tucson
Counsel for Appellant
Lori J. Lefferts, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellee
OPINION
Judge Vásquez authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Howard concurred.
STATE v. MATLOCK
Opinion of the Court
V Á S Q U E Z, Judge:
¶1 The State of Arizona appeals from the trial court’s order
dismissing criminal charges against appellee Jeremy Matlock. We
are asked to determine whether a registered qualifying patient
under the Arizona Medical Marijuana Act (AMMA) is immune from
prosecution pursuant to A.R.S. § 36-2811(B)(3) for selling marijuana
to another registered qualifying patient. For the following reasons,
we reverse the dismissal and remand the case for further
proceedings.
Factual and Procedural Background
¶2 The relevant facts are undisputed. Matlock is a
registered qualifying patient under the AMMA authorized to use
and cultivate marijuana for medical purposes. In March 2013, an
officer with the Tucson Police Department saw Matlock’s online
posting in which he offered to provide marijuana plants to other
medical marijuana cardholders authorized to cultivate. In his post,
Matlock requested a “$25 donation” per plant. Posing as a
cardholder, the officer contacted Matlock and arranged a meeting.
¶3 At that meeting, the officer showed Matlock a medical
marijuana card indicating he was authorized to cultivate. The
officer then gave Matlock $75, and Matlock gave him three
marijuana plants. Shortly thereafter, other officers arrested Matlock
and searched his residence, where they seized marijuana, marijuana
plants, and equipment used for marijuana cultivation. A grand jury
indicted Matlock for sale of marijuana weighing less than two
pounds, production of marijuana weighing less than two pounds,
and possession of drug paraphernalia.1
1 Matlock filed a motion to remand to the grand jury for a
redetermination of probable cause. He argued an officer “falsely
testified that . . . Matlock was not authorized to cultivate marijuana”
and “the grand jury was incorrectly instructed that the AMMA does
not permit patient-to-patient transfers for something of value.”
After the state agreed to the remand “to correct the inadvertent
omissions from the factual record,” Matlock withdrew his motion as
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STATE v. MATLOCK
Opinion of the Court
¶4 Matlock filed a motion to dismiss pursuant to
Rule 16.6(b), Ariz. R. Crim. P. He argued the indictment was
“insufficient as a matter of law” because, as a registered qualifying
patient under the AMMA, he was protected by § 36-2811(B)(3),
which he maintained allows “patient-to-patient transfers [of
marijuana] in exchange for something of value.” Alternatively, he
asserted that the rule of lenity applied and § 36-2811(B)(3) should be
interpreted in his favor because it “does not give proper notice that
the conduct of receiving something of value in a patient-to-patient
transfer would be outside the protections of the AMMA.”
¶5 In response, the state maintained that Matlock violated
the AMMA because § 36-2811(B)(3) only allows “patients . . . to offer
or provide marijuana to another patient . . . if nothing of value is
transferred in return.” It also asserted that the rule of lenity does not
apply because the statute is unambiguous.
¶6 After hearing argument, the trial court issued its under-
advisement ruling, granting Matlock’s motion and dismissing the
case against him. The court determined that § 36-2811(B)(3) is
ambiguous and that “there is no clear guidance from the rest of the
AMMA of the exact . . . intent in this specific area.” The court also
pointed out that “no one has truly analyzed” whether the rule of
lenity applies, noting that the AMMA “exempts from punishment”
and “is not truly ‘penal.’” However, the court ultimately applied the
rule of lenity and concluded that § 36-2811(B)(3) “does not give a
person of ordinary intelligence notice as to how it can be violated.”
The state appealed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4032(1).
Discussion
¶7 The state argues the trial court erred by granting
Matlock’s motion to dismiss because, under the AMMA, “patient
sales of marijuana are not protected and may be prosecuted.” It
relies on § 36-2811(B)(3), as well as other provisions of the AMMA.
to the instructions. On remand, the grand jury returned an identical
indictment.
3
STATE v. MATLOCK
Opinion of the Court
Because this issue turns primarily on the interpretation of § 36-
2811(B)(3), our review is de novo. Mejak v. Granville, 212 Ariz. 555,
¶ 7, 136 P.3d 874, 875 (2006); see also State v. Malvern, 192 Ariz. 154,
¶ 2, 962 P.2d 228, 229 (App. 1998).
¶8 In relevant part, § 36-2811(B) provides:
A registered qualifying patient or
registered designated caregiver is not
subject to arrest, prosecution or penalty in
any manner, or denial of any right or
privilege, including any civil penalty or
disciplinary action by a court or
occupational or professional licensing
board or bureau:
....
3. For offering or providing
marijuana to a registered qualifying patient
or a registered designated caregiver for the
registered qualifying patient’s medical use
or to a registered nonprofit medical
marijuana dispensary if nothing of value is
transferred in return and the person giving
the marijuana does not knowingly cause
the recipient to possess more than the
allowable amount of marijuana.
This statute is part of the AMMA, which was passed by Arizona
voters in 2010 as part of a ballot initiative. State v. Gear, 236 Ariz.
289, ¶ 3, 339 P.3d 1034, 1035 (App. 2014).
¶9 In State v. Fields, 232 Ariz. 265, ¶ 14, 304 P.3d 1088, 1092
(App. 2013), this court explained that registered qualifying patients
under the AMMA “may be prosecuted for marijuana-related
offenses” if they improperly transfer marijuana under § 36-2811(B).
4
STATE v. MATLOCK
Opinion of the Court
This case requires us to determine whether a transfer between
registered qualifying patients for something of value is improper.2
¶10 “Our primary objective in construing statutes adopted
by initiative is to give effect to the intent of the electorate.” State v.
Gomez, 212 Ariz. 55, ¶ 11, 127 P.3d 873, 875 (2006). If a statute’s
language is clear and unambiguous, it is the best indicator of that
intent, and we apply it as written without resorting to other
methods of statutory interpretation. Id.; State v. Siplivy, 228 Ariz.
305, ¶ 6, 265 P.3d 1104, 1106 (App. 2011). However, if the language
is ambiguous, we attempt to determine the electorate’s intent by
looking to the statutory scheme as a whole and considering the
statute’s context, historical background, effects and consequences,
and purpose and spirit. See State v. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d
1261, 1264 (App. 2007).
¶11 We begin our analysis by considering the language of
§ 36-2811(B)(3) to discern whether the electorate intended to allow
patient-to-patient sales of marijuana under the AMMA.3 See Gomez,
212 Ariz. 55, ¶ 11, 127 P.3d at 875; Siplivy, 228 Ariz. 305, ¶ 6, 265 P.3d
at 1106. The parties present two different interpretations of § 36-
2811(B)(3). The state acknowledges the statute provides that a
“patient cannot be arrested or prosecuted for offering or providing
marijuana to another patient or caregiver” but asserts that “there are
two caveats.” It contends “[n]o patient should exchange marijuana
with another patient or caregiver for anything of value” and “no
2Matlock devotes a considerable portion of his answering brief
to arguing that § 36-2811(B)(3) is constitutional because “protecting
patient-to-patient sales has a rational basis.” However, we need not
address this argument because the state has not challenged the
constitutionality of § 36-2811(B)(3).
3 Although Matlock requested a “$25 donation” for the
marijuana plants, we characterize the exchange as a “sale,” like the
parties do, using that term in its broadest sense. See Webster’s Third
New Int’l Dictionary 2003 (1971) (defining “sale” as “transferring . . .
ownership of property . . . to another for . . . a sum of money or any
other consideration”).
5
STATE v. MATLOCK
Opinion of the Court
patient should knowingly give another patient or caregiver more
marijuana than they are allowed to have under the [AMMA].”4
¶12 In contrast, Matlock argues that “patient-to-patient
transfers are permitted so long as the patient giving the marijuana
does not knowingly cause the recipient patient to possess more than
the allowable amount under the AMMA.” He maintains that “[t]he
prohibition of receipt of anything of value in return for marijuana is
only attached to patient-to-dispensary transfers.” He reasons that
“if the conditional statement regarding ‘nothing of value is
transferred in return’ was meant to apply to patient-to-patient and
patient-to-caregiver transfers, then there would not be a second ‘to’
. . . preceding ‘a registered nonprofit medical marijuana
dispensary.’” See State v. Arthur, 125 Ariz. 153, 155, 608 P.2d 90, 92
(App. 1980) (“Whenever possible, a statute will be given such an
effect that no clause, sentence, or word is rendered superfluous,
void, contradictory or insignificant.”). We disagree.
¶13 The plain language of § 36-2811(B)(3) provides that a
registered qualifying patient can offer or provide marijuana to
another registered qualifying patient, a registered designated
caregiver, or a registered nonprofit medical marijuana dispensary.
In describing the recipients, the statute classifies patients and
caregivers together because caregivers necessarily are receiving
marijuana for a patient. See A.R.S. § 36-2801(5) (defining
“[d]esignated caregiver”). The phrase “for the registered qualifying
patient’s medical use” applies to both patients and caregivers
receiving marijuana. Thus, “to a registered qualifying patient or a
registered designated caregiver” represents the first class in this
series, and “to a registered nonprofit medical marijuana dispensary”
is the second. The “to” preceding the “registered nonprofit medical
4 “Two-and-one-half ounces of usable marijuana” is the
“[a]llowable amount of marijuana” for a qualifying patient to
possess under the AMMA. A.R.S. § 36-2801(1)(a)(i). If the
qualifying patient is allowed to cultivate, he can also possess
“twelve marijuana plants contained in an enclosed, locked facility.”
§ 36-2801(1)(a)(ii).
6
STATE v. MATLOCK
Opinion of the Court
marijuana dispensary” gives the two classes of recipients a parallel
construction and is not superfluous.
¶14 Section 36-2811(B)(3) further explains that, when
offering or providing marijuana to those two classes, a registered
qualifying patient cannot receive anything of value in return or
knowingly cause the recipient to possess more than the allowable
amount of marijuana. Cf. Pawn 1st, L.L.C. v. City of Phx., 231 Ariz.
309, ¶ 18, 294 P.3d 147, 150 (App. 2013) (“‘When there is a
straightforward, parallel construction that involves all nouns or
verbs in a series, a prepositive or postpositive modifier normally
applies to the entire series.’”), quoting Antonin Scalia & Bryan A.
Garner, Reading Law: The Interpretation of Legal Texts, at 147 (2012).
¶15 Notably, the dependent clause of § 36-2811(B)(3)
beginning with the word “if” is essential to the meaning of the rest
of the sentence. If the first part of the dependent clause—“if nothing
of value is transferred in return”—applied only to dispensaries, as
Matlock contends, and we removed that portion of the sentence, the
remainder would not make sense:
A registered qualifying patient or
registered designated caregiver is not
subject to arrest, prosecution or penalty in
any manner, or denial of any right or
privilege, including any civil penalty or
disciplinary action by a court or
occupational or professional licensing
board or bureau:
....
3. For offering or providing
marijuana to a registered qualifying patient
or a registered designated caregiver for the
registered qualifying patient’s medical use
or to a registered nonprofit medical
marijuana dispensary . . . and the person
giving the marijuana does not knowingly
7
STATE v. MATLOCK
Opinion of the Court
cause the recipient to possess more than the
allowable amount of marijuana.
§ 36-2811(B)(3). Thus, based on the plain language of the statute, we
conclude § 36-2811(B)(3) does not provide immunity from
prosecution for a registered qualifying patient who provides
marijuana to another registered qualifying patient in return for
something of value.
¶16 Our conclusion is bolstered by the statutory scheme as a
whole. See State v. Wagstaff, 161 Ariz. 66, 70, 775 P.2d 1130, 1134
(App. 1988) (“[S]tatutes should be explained in conjunction with
other statutes to the end that they may be harmonious and
consistent.”). Of particular import, § 36-2811(E), (F) explicitly
addresses the sale of marijuana. Those subsections provide
immunity to registered nonprofit medical marijuana dispensaries
and registered dispensary agents for “sell[ing] . . . marijuana . . . to
registered qualifying patients.” Id. The drafters of the statute—and
the electorate that approved it—thus knew how to specify that a
registered qualifying patient could not be prosecuted for selling
marijuana to other such patients.
¶17 However, § 36-2811(B), which addresses registered
qualifying patients’ immunity, does not contain language similar to
§ 36-2811(E), (F) protecting them for selling marijuana to other
registered qualifying patients. Cf. Darrah v. McClennen, 236 Ariz.
185, ¶ 6, 337 P.3d 550, 551-52 (App. 2014) (“If Arizona voters had
intended to completely bar the State from prosecuting authorized
marijuana users under [A.R.S.] § 28-1381(A)(3), they could have
easily done so by using specific language to that effect.”).
¶18 Matlock nevertheless relies on A.R.S. § 36-2815(C) in
support of his argument that patient-to-patient sales are permitted.
That statute provides: “Any cardholder who sells marijuana to a
person who is not allowed to possess marijuana for medical
purposes under this chapter shall have his registry identification
card revoked, and shall be subject to other penalties for the
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STATE v. MATLOCK
Opinion of the Court
unauthorized sale of marijuana and other applicable offenses.” 5
§ 36-2815(C). Matlock asserts that if “no patient may ever sell
marijuana to another patient, then this entire subsection of the
statute would be rendered a nullity.” See Arthur, 125 Ariz. at 155,
608 P.2d at 92 (we interpret statutes so no provision is rendered
superfluous, void, contradictory, or insignificant). We disagree.
¶19 Section 36-2815, titled “Revocation,” details the
penalties—revocation or criminal liability—that are available when
the AMMA is violated. See § 36-2815(A) (agent’s card revocation),
(B) (dispensary’s certificate revocation), (C)-(D) (cardholder’s card
revocation and “other penalties”). It further clarifies when those
penalties are mandatory or discretionary. Compare § 36-2815(A), (B),
(C) (using “shall”), with § 36-2815(D) (using “may” and “shall”).
Section 36-2815(C) simply provides that cardholders who sell
marijuana to those who are not allowed to possess it are subject to
both card revocation and criminal liability. Merely because
subsection (C) does not mention patient-to-patient sales does not
mean such sales are permitted. 6 Different penalties apply
depending on the circumstances and severity of the particular
violation. And, contrary to Matlock’s argument, the fact that § 36-
2815(C) does not refer to patient-to-patient sales does not mean such
transfers are implicitly authorized. Section 36-2815(D) provides that
“[t]he department may revoke the registry identification card of any
5Under the AMMA, a cardholder is defined as “a qualifying
patient, a designated caregiver or a nonprofit medical marijuana
dispensary agent who has been issued and possesses a valid registry
identification card.” § 36-2801(2).
6 The trial court similarly reasoned that, because a
“cardholder” includes a qualifying patient, § 36-2815(C) “necessarily
implies that a qualifying patient can sell marijuana.” See § 36-
2801(2). We disagree with this logic for the same reasons that we
reject Matlock’s argument. Section 36-2815(C) provides
consequences for any cardholder—qualifying patient, designated
caregiver, or dispensary agent—who sells marijuana to someone
who is not allowed to possess it; the statute does not suggest that
patient-to-patient sales of marijuana are therefore permitted.
9
STATE v. MATLOCK
Opinion of the Court
cardholder who knowingly violates this chapter, and the cardholder
shall be subject to other penalties for the applicable offense.”
¶20 Matlock maintains the purpose and spirit of the AMMA
support his interpretation of § 36-2811(B)(3). To the contrary, these
secondary canons of statutory interpretation, even if we were
required to apply them, support our conclusion that patient-to-
patient sales are not permitted. The AMMA’s purpose is “to protect
patients with debilitating medical conditions, as well as their
physicians and providers, from arrest and prosecution, criminal and
other penalties and property forfeiture if such patients engage in the
medical use of marijuana.” Arizona Publicity Pamphlet, Ballot
Propositions & Judicial Performance Review 73 (2010); see also Heath
v. Kiger, 217 Ariz. 492, ¶ 13, 176 P.3d 690, 694 (2008) (“To determine
the intent of the electorate, courts may also look to the publicity
pamphlet distributed at the time of the election.”). To that end, the
electorate “required” the Arizona Department of Health Services “to
adopt and enforce a regulatory system for the distribution of
marijuana for medical use.” Arizona Publicity Pamphlet, supra, at
83. The sale of medical marijuana only through closely regulated
dispensaries is consistent with that purpose. Cf. A.R.S. §§ 36-2806.02
(directions for dispensary agents before distributing marijuana), 36-
2807 (verification system for use by dispensary agents, law
enforcement, and employers).
¶21 Also consistent with its purpose, the AMMA evinces a
spirit of permitting patients to acquire the medicine they need, not
creating a profitable medical marijuana industry. The AMMA
makes clear that medical marijuana dispensaries must be “not-for
profit” and can only receive payment for “expenses incurred in
[their] operation.” § 36-2801(11). Similarly, designated caregivers
“may not be paid any fee or compensation” for their services but can
only be reimbursed their “actual costs.” § 36-2801(5)(e). Allowing
registered qualifying patients to provide marijuana in exchange for
something of value would therefore be the exception. And, allowing
such patient-to-patient transactions would, as the state points out,
create an “incentive to embark on a sales enterprise.”
¶22 In sum, we conclude the electorate did not intend to
provide immunity from prosecution to a registered qualifying
10
STATE v. MATLOCK
Opinion of the Court
patient who offers or provides marijuana to another registered
qualifying patient in exchange for something of value. 7 See § 36-
2811(B)(3). The trial court therefore erred by granting Matlock’s
motion to dismiss. See Mejak, 212 Ariz. 555, ¶ 7, 136 P.3d at 875;
Malvern, 192 Ariz. 154, ¶ 2, 962 P.2d at 229.
Disposition
¶23 For the foregoing reasons, we reverse the trial court’s
ruling dismissing the criminal case against Matlock and remand the
case for further proceedings.
7 Because we have reached this conclusion based on our
canons of statutory interpretation, we need not determine whether
the rule of lenity applies to the AMMA. See State v. Sanchez, 209
Ariz. 66, ¶ 6, 97 P.3d 891, 893 (App. 2004) (rule of lenity applied only
when ambiguity remains after applying other rules of statutory
interpretation).
11