### FILED 

### JULY 31, 2014 In the Office ofthe ClerkofCourt W A State CourtofAppeals, Division III

INTHECOURTOF APPEALS OF THE STATE OF WASHINGTON DIVISIONTHREE STATE OF WASHINGTON, ) No. 31313-1-III ) Respondent, ) ) 

### v. ) OPINIONPUBLISHED ) INPART ADRIANE CONSTANTINE, ) ) Appellant. ) LAWRENCE-BERREY,

### J.

- During a helicopter flyover ofproperty located on ReevasBasinRoad near Tonasket, Washington, lawenforcementobserved at least 20 marijuanaplants growingin a partiallyuncovered greenhouse. Theproperty belongedto MorganDavis, husband ofAdriane Constantine. An Okanogan deputy sheriffobtained a warrant to searchtwo greenhouses, a house, and a shed onthe property. The search uncovered numerousmarijuanaplants in the greenhouses. Inthe home, the officers found processed marijuana and distributionparaphernalia. Ms. Constantine was charged with and found guilty ofmanufacture ofmarijuana. Ms. Constantine appeals, contendingthe officers lackedprobable cause to searchthehouse because officers failed to establish a
nexus betweenthe marijuanainthe greenhouses and the house. She also contendsthatNo. 31313-1-111 State 

### v. Constantine
the court erred by requiring thetestimony ofDr. Thomas Orvald before it would instruct thejury on hermedical marijuana affirmative defenses. We conclude that there was a sufficient nexus betweenthe greenhouses and the houseto supportprobable causeto search the house. We determine that Ms. Constantine raised only the designated providermedical marijuana affirmative defense, and conclude thatthe trial court erred by requiring Dr. Orvald to testifY as a prerequisite to allowing Ms. Constantine to raise this defense. Specifically, the medical marijuana laws do not require Ms. Constantine to provethat thepatientto whom she is a providerhave a specific terminal ordebilitating medical condition; rather, the laws require that sheprove that suchpatient was diagnosedby a physician as having a terminal or debilitating medical condition. Because the testimony ofthe diagnosingphysician is not necessary to establishthis, we reverse Ms. Constantine's conviction. FACTS OnJune 30, 2010, Detective Jan Lewis ofthe North Central Washington Narcotics TaskForce and Deputy Terry Shrable ofthe Okanogan County Sheriffs Office flew in a helicopter overproperty located nearTonasket, Washington. The officers observedtwo greenhouses. One greenhouse waspartially uncovered, revealing approximately 20 large growing marijuanaplants. The officers noted other buildings on the property, including a
2No. 31313-I-III State v. Constantine
small stick builthouse locatedjusteast ofthe greenhouses and a small stick built shed west ofthe greenhouses. Officers confirmed that the address ofthe property was 44 Reevas BasinRoad andthat it was owned by Mr. Davis. Detective Lewis flew overthe property again on July 6. The tops ofthe greenhouses were coveredwithplastic, but the detective saw dark green coloring through the plastic. Detective Lewis believed the green colorto be growing marijuana plants. The next day, Detective Lewis obtained a warrant to search the two greenhouses, the house, and the shed on Reevas Basin Road. The search warrant authorized searching for evidence ofmanufacturing marijuana, including books, records, receipts, ownership ofthe residence, and identifYing information. In addition to a narrative ofevents by Detective Lewis, the warrant included an aerial photograph ofthe property taken during the July 6 flyover. The affidavit stated, "In this photo you can clearly see the green houses to the left ofthe house. The larger ofthe two green houses was halfopened when the initial flight was done. This is the one that I could see growing marijuana plants in. Everything in the photo including the outbuildings is on the same parcel ofproperty. There are no other driveways orhouses except for the one in the photo that have access to these marijuanaplants." Clerk's Papers (CP) at 167.

3No.31313-1-III State v. Constantine
On July 8, officers executed the search warrant. Upon arrival at the property, officers made contact with Ms. Constantine outside ofthe residence. Officer Steve Brown told Ms. Constantine thatthe officers were executing a search warrant on the home and informed her ofthepurpose ofthe search. Both before and after execution of the warrant, Ms. Constantine told the officers that she knew the law, had a marijuana card, and wanted a lawyer. Ms. Constantine asked Officer Brownto retrieve her medical marijuana card from inside the house. The officer declined and advised her ofher Miranda) rights. OfficerBrowntold Ms. Constantine that the medical marijuana card would not make a difference because there were too many plants. The officer did not further question Ms. Constantine, but she continued to make statements without being questioned. Ms. Constantine's medical marijuana card was found in herpurse during the search ofthe house. Officers located approximately 121 growing marijuana plants. The plants were primarily found in the greenhouses, withthe exception ofa few plants found growing outside. Inside the residence, officers found various quantities ofprocessed marijuana, packaged marijuana, marijuana seeds, paperwork, receipts, cash, an electronic scale, and packagingmateriaL In the small shed, officers found several dried marijuana plants.

1Miranda v. Arizona, 384 U.S. 436,86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). 4No. 31313-I-III State 

### v. Constantine
Ms. Constantine was arrested and chargedwith one count ofmanufacture of marijuana under RCW 69.50.401(1). She moved to suppress the evidence found in the house and the shed. She argued thatthe officers lacked probable cause to search the house and shed because there was no nexus between the greenhouses and the house and shed. The trial court denied the motion. The court concluded that a clear legal nexus existed betweenthe house, greenhouses, outbuildings, and immediate surrounding areas. In support ofthis conclusion, the court found that the photograph and the testimony showed the land, house, greenhouses, garden area, and outbuildings all within a clearly defined living compound. Additionally, the residence was approximately 50 to 70 feet from the greenhouses and there were no otherhouses nearby. The buildings were well separated from other structures or homes; the nearest other structure to the property was
over 700 yards away. Also, only one access road approached the property and ended on the property. Months priorto trial, the State filed a motion in limine. One aspect ofthe motion in limine sought to suppress any reference to a medical marijuana defense for Ms. Constantine, either as a designatedprovider or as a qualifyingpatient. Ms. Constantine asserted a designated provider defense, but not a qualifying patient defense. To support
5No. 31313-1-II1 State 

### v. Constantine
the designated provider defense, Ms. Constantine presented only three documents: (1) A medical marijuana authorization for Tristan Gilbert, signedby Dr. Thomas Orvald; (2) A document signed by Mr. Gilbert naming Ms. Constantine as his designatedprovider for supplying his medical marijuana; and (3) A verification from the Washington State Department ofHealth confirming that Dr. Orvald was a licensedphysician in the state of Washington during the relevant timeperiod. The medical marijuana authorization, signedby Dr. Orvald, stated that Mr. Gilbert
was his patient, that he had diagnosed Mr. Gilbert with a terminal illness ordebilitating condition as defined by RCW 69.51A.OI0, that he had advised Mr. Gilbert ofthe potential risks and benefits ofthe medical use ofmarijuana, and that in his opinion, the potential benefits ofthe medical use ofmarijuanawould likely outweigh the health risks. Ms. Constantine did not submit any medical records that identified the nature ofMr. Gilbert's illness orcondition. Moreover, the medical marijuana authorization signed by Dr. Orvald did not specity the nature ofMr. Gilbert's illness or condition, nordid it identity what ifany medical records were reviewed by Dr. Orvaldpriorto him signingthe medical authorization. The designation ofprovider authorization included a limit of 15 plants and was in effect atthe time ofthe search ofMr. Davis's property.



### 6No.31313-1-II1 State v. Constantine
Even though Ms. Constantine stated in her motion that she was not asserting an affirmative defense based on her individual status as a qualifYing patient, she nevertheless presented two authorization documents to establish her qualifYing use. Both authorizations stated that Ms. Constantine was being treated for a terminal illness or debilitating condition. The first authorization was signed by Dr. Orvald and was effective from March 2, 2009 to March 2, 2010. The second authorization was signed by Dr. Jason Ling and was effective from August 23,2010to August 23,2011. Neither document was in effect at the time ofthe July 8, 2010 search. Also, neither document listed Ms. Constantine's illness norhercondition. Duringthe motion in limine argument, defense counsel addressed the discrepancy between the 121 marijuanaplants found and the 15 plants thatthe defendant was permitted to grow for Mr. Gilbert: Basically with regard to the designated provider defense, my client would

... offer, by way ofproffer, that [she]
... was responsible for growingthe 15 plants [for] Mr.**Gilbert~they** neverwentto fruition
.... But**that's~** the 15 plants were hers and the otherplants were [her husband's]
. . . . I thinkthere was a distinction
... in the way they were lined up outthere. RP at 345-46.

7No.31313-I-III State v. Constantine
The court found that the Washington Pattern Jury Instructions Criminal 52.11 set outthe six elements ofthe designatedprovider defense. 2 The court noted that Ms. Constantine was required to prove thatMr. Gilbert was a qualifYing patient, which inturn required proofthathe had been diagnosed by aphysician as having a terminal or debilitating medical condition. See RCW 69.51A.OI0(4). The court ruled that Ms. Constantine presented questions offact for most ofthe six elements, but that the three documents submitted in response to the State's motion in limine were insufficient to prove that Mr. Gilbert was a qualifYing patient. The court reasoned:

2 Itis a defense to a charge ofmanufacture of[manufacture] ofmarijuana that: (1) the defendant is eighteen years ofage or older; and (2) the defendant was designated as a designatedproviderto a qualifying patientpriorto assisting the patientwith the medical use of marijuana; and (3) the defendantpossessed no more marijuana than necessary for the qualifYing patient's personal, medical use for a sixty-day period; and (4) the defendantpresented a copy ofthe qualifYing patient's valid documentation to any law enforcement official who requested such information; and (5) the defendant did not consume any ofthe marijuana obtained for the personal, medical use ofthe qualifYing patient for whom the defendant is acting as designatedprovider; and (6) the defendant was the designatedproviderto only one qualifYing patient at anyone time. 11 WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 8No. 31313-I-II1 State v. Constantine
The question is whether medical testimony from the authorizing physician is required to establish [certain] elements ofthe defense. The medical documents do not speak for themselves. In orderto obtain instructions on designatedprovider, the defendant mustprovide evidence thatMr. Gilbert was [a] qualifying patient.
... Mr. Gilbert's testimony and documentation is not sufficient. Medical testimony is required from the prescribing provider
.... Testimony about the underlying condition and it being a qualifying condition to make Mr. Gilbert a qualifying patient is necessary. Thejury must find the existence ofthe debilitating orterminal condition. The medical marijuana statute does not overrule the rules of evidence. Separate from thepaperwork, there mustbeproofofthe terminal or debilitating condition. Based on the information provided to the court [in the motion in limine], the court will not instruct on [the] medical marijuana designated provider defense withoutmedical testimony thatMr. Gilbert is a qualifying patient. CP at 51-52. Ms. Constantine did not or couldnot obtain Dr. Orvald's testimony attrial. Rather, Ms. Constantine sought to submit her qualifying patientmedical marijuana authorization and designatedprovider authorization from Mr. Gilbert to Ms. Constantine. The State moved to suppress this evidence. The State contended that the evidence was not needed because there was no ability for Ms. Constantine to get a qualifyingpatient affirmative defense instruction. Ms. Constantine arguedthat the evidence explained the story ofthe search, including Ms. Constantine's words to officers in execution ofthe 52.11, at 1014 (3d ed. 2008) (emphasis added). 9

### No. 31313-1-II1 State 

### v. Constantine

warrant. The State contended that this effort was a back door approach to raise the affirmative defense without ajuryinstruction, and that Ms. Constantine had not offered the proofto assert either affirmative defense. The court granted the motion to exclude the evidence. The court found that Ms. Constantine was not entitled to a qualifying patient affirmative defense because her authorization for her personal use was expired at the time ofthe search and therefore not valid. For the designatedprovider defense, the court relied on its earlierruling on the matter. Even so, the court allowed Ms. Constantine to explain her statements to officers that she wanted to get the card. Ajury found Ms. Constantine guilty ofmanufacture of marijuana. Ms. Constantine appealed. She first challenges the denial ofher motion to suppress the evidence found in the search ofthe house. She contends that officers lacked probable cause to search the house and shed because there was no nexus between these buildings and the suspected criminal activity observed in the greenhouses. She next challenges the trial court's refusal to give the qualifyingpatient and designated provider affirmative defensejury instructions. She contends that the evidence was sufficient to submitthe affirmative defense instructions to thejury.

10No. 31313-1-III State v. Constantine
ANALYSIS Probable Cause to Search the House. Review ofa probable cause determination has a historical fact component and a legal component. State v. Emery, 161 Wn. App. 172,201-02,253 P.3d 413 (2011), aff'd, 174 Wn.2d 741,278 P.3d 653 (2012). On matters ofhistorical fact finding, we apply an abuse ofdiscretion standard when reviewing a magistrate's decision on whether information provided in the warrant is reliable and credible. ld. at 202. Then, for the legal component, we apply de novo review to determine whetherthe qualifYing information as a whole amounts to probable cause. ld. We consider only the information that was available to the issuing magistrate. State
v. Olson, 73 Wn. App. 348, 354, 869 P.2d 110 (1994). '''Itis only the probability of criminal activity, not aprima facie showing ofit, that governs probable cause. The [issuingjudge] is entitled to make reasonable inferences from the facts and circumstances set out in the affidavit.'" Emery, 161 Wn. App. at 202 (alteration in original) (quoting State v. Maddox, 152 Wn.2d 499,505,98 P.3d 1199 (2004)). A search warrant may only be issued upon a determination ofprobable cause. State v. Cole, 128 Wn.2d 262,286,906P.2d 925 (1995). Probable cause exists where there are facts sufficient to establish a reasonable inference thatthe defendant is involved

11No. 31313-1-II1 State v. Constantine
in criminal activity and that evidence ofthe criminal activity canbe found at the place searched. State v. Thein, 138 Wn.2d 133, 140,977P.2d 582 (1999). A warrant is overbroad and violates the particularity requirement ifthe warrant authorizes police to search persons or seize things for which there is no probable cause. State v. Maddox, 116 Wn. App. 796, 806,67 P.3d 1135 (2003), aff'd, 152 Wn.2d at 499. Probable cause requires not only a nexus between criminal activity and the item to be seized but also a nexus between the item to be seized and the place to be searched. Thein, 138 Wn.2d at 140 (quoting State v. Goble, 88 Wn. App. 503, 509,945 P.2d 263 (1997)). "Absent a sufficient basis in fact from which to conclude evidence ofillegal activity will likely be found at theplacetobe searched, a reasonable nexus is not established as a matter oflaw." 

### Id. at 147. Facts that individually would not support probable cause can do so when viewed together with other facts. State 

### v. Garcia, 63 Wn. App. 868, 875, 824 P.2d 1220 (1992). The application for a search warrant must bejudged in the light ofcommon sense, resolving all doubts in favor ofthe warrant. State v. Partin, 88 Wn.2d 899, 904, 567 P.2d 1136 (1977). "Judges looking for probable cause in an affidavit may draw reasonable inferences about where evidence is likely to bekept, including nearby land and buildings

12No.31313-I-II1 State v. Constantine
under the defendant's control." State v. Gebaroff, 87 Wn. App. 11, 16,939P.2d 706 (1997). Here, the nexus requirement is met. The warrant contains information that Mr. Davis, Ms. Constantine's husband, owns and controls the property onwhich the buildings stand and that the type ofevidence sought couldbe found in the greenhouses, the house, and the shed. The relevant facts are that officers observed at least 20 marijuanaplants growing in a greenhouse onMr. Davis'sproperty. Located close to the greenhouses were
a home and a shed. Thesebuildings were on a clearly defined living compound owned by Mr. Davis. Only one road driveway accessed both the greenhouses and the house, and dead ended onthe property. The illegal activity identified in the affidavit is the manufacture ofa controlled substance, with intentto delivermarijuana. The affidavit requested a warrant to search the greenhouses, house, and shed for books, records, receipts, notes, ledgers and other papers related to the manufacture and processing ofmarijuana; for names and addresses ofothers that may be involved inthe illegal possessing and trafficking ofmarijuana; ownership ofthe residence; any and all records and receipts showing dominion and control overthe house at 44 Reevas BasinRoad; and any or all other material evidence in violation ofRCW69.50.401, to include but not limited to drug paraphernalia for
13No. 31313-I-III State v. Constantine packaging, weighing, distributing, and using marijuana. Itis reasonable to believe that items to be seized would be found in the house located adjacentto the greenhouses. Itis also reasonable to believe thatthe house would beused by the persons tendingthe marijuana in the two greenhouses and would also be used to package and weigh the large amount ofmarijuanathat is grown in the greenhouses. Despite Ms. Constantine's contention, Thein does not control the outcome ofher appeal. Thein establishes that general statements regardingthe commonhabits ofdrug dealers are not sufficient to establish probable cause when considered alone. Thein, 138 Wn.2d at 150-51. But here, probable cause was supported by more than an implied assumption ofwhere evidence may be kept. It was not unreasonable for the issuingjudge to believe that evidence ofthe crime would be found in the house based on Mr. Davis's ownership and control ofthe property where both the observed criminal activity and the house were located, the proximity ofthe home to the criminal activity, andthe type of evidence sought in the warrant. We affirm the trial court's determination thatthe magistrateproperly issued the search warrant. AffirmativeDefenses. We note that Ms. Constantine did not assert to thetrial court that she was a qualifying patient. She, therefore, waivedthis affirmative defense. We also note thatthe trial court did not barMs. Constantine from asserting a designated
14No. 31313-1-111 State v. Constantine provider affirmative defense. Rather, it held that the rules ofevidence required Ms. Constantine to call Dr. Orvald as a trial witness to establish whether Mr. Gilbert suffered from a terminal or debilitating medical condition. One asserting the designated provider affirmative defense must make a prima facie showingthat he or she was assisting a "qualifyingpatient." FormerRCW 69.51A.040(3) (2007); State v. Ginn, 128 Wn. App. 872, 879, 117 P.3d 1155 (2005). A "qualifying patient" means a person who (a) is a patient ofa health care professional; (b) has been diagnosedby thathealth care professional as having a terminal or debilitating medical condition; (c) is a resident ofthe state ofWashington at the time ofsuch diagnosis; (d) has been advised by that health care professional aboutthe risks and benefits ofthe medical use ofmarijuana; and (e) has been advised by that health care professional that they may benefit from the medical use ofmarijuana. RCW 69.51A.OI0(4). Here, the trial court interpreted RCW 69.51A.OI0(4) as requiring a defendant to prove that the patient actually have a terminal or debilitating medical condition. However, that subsection does not require this; rather, it requires a defendant to prove thatthepatient "has been diagnosed" as having a terminal or debilitating medical condition. The legislature, within constitutional limitations, may proscribe whatproofis needed for an affirmative criminal defense. The legislature chose to allow designated
15No.31313-I-III State v. Constantine providers to rely upon a signed medical authorization without also requiring such providers to suffer criminalpenalties iftheirreliance was misplaced. Here, it is uncontested that Dr. Orvald diagnosed Mr. Gilbert as having a terminal or debilitating medical condition. This diagnosis is sufficient. Whether the diagnosis is correct or true is not relevant. Because the correctness orthe truth ofthe diagnosis is not relevant, the court erred in requiring Dr. Orvald to testifY.3 The State argues thatState v. Fry, 168 Wn.2d 1,228 P.3d 

### 1(2010) requires Ms. Constantine to provethat she had a specific medical condition that qualified underthe statute. We disagree. In Fry, Mr. Fry was diagnosed by his doctor with various conditions, none ofwhich met that statutory definition. Id. at 11-13. The majority opinion did not decide whether a conclusory statement signed by a physician that his patienthad a terminal or debilitating medical condition would be sufficient. However, the concurring opinion ofJustice Chambers, signedby three otherjustices, notes that a conclusory statement signed by aphysician shouldbe sufficient. Id. at 18. This portion ofJustice Chambers's concurring opinion was expressly approved by Justice Sanders in
3By soholding, we are not inferring that the medical authorization is selfauthenticating. Themedical authorization is a business record and, unless the prosecutor agrees otherwise, the defendant will be required to have the medical authorization admitted through a custodian ofthe record. State v. DeVries, 149 Wn.2d 842,846-48, 72 P.3d 748 (2003). 16No. 31313-1-II1 State v. Constantine
his dissent. Id. at 23. Thus, therewere fivejustices who held that a conclusory statement signed by a physician that his patienthas a terminal or a debilitating condition shouldbe sufficient.4 The State urges us to affirm onthe alternative basis that Ms. Constantine possessed much more than 15 marijuanaplants, the numberpermitted under Mr. Gilbert's authorization. We decline to affirm on this alternative basis. Although a defendantmust showby a preponderance ofthe evidence that she orhe is entitled to the medical use of marijuana act's defense, when deciding whether to permit an issue to go to thejury, "the trial court must interpret the evidence most strongly in favor ofthe defendant." State v. Otis, 151 Wn. App. 572, 578, 213 P.3d 613 (2009). Here, during the motion in limine argument, Ms. Constantine asserted that she was responsible for growing only the 15 plants allowed in accordance withMr. Gilbert's authorization, and that the remaining plants belonged to herhusband and were segregated. Because we must interpret the

4 The dissent disagrees with this holding. However, as a lower appellate court, we are required to adhere to precedent. Precedent includes a majority of justices, even a majoritythat is comprised ofconcurring and dissenting opinions. The dissent also faults Ms. Constantine for not offering medical records to support her affirmative defense. The dissent's point wouldbewell taken hadthe trial court permitted such records to establish the nature ofthe qualifYing condition. However, the trial court did notpermit this. Rather, it required Ms. Constantinetopresentmedical testimony to establish a qualifYing conditionbefore it would instruct thejury onthe designatedprovider affirmative defense. 17No. 31313-I-II1 State 

### v. Constantine
evidence most strongly in favor ofMs. Constantine, given this record, we hold that the numberofplants possessed by heris an issue offact for thejury. In conclusion, we hold thatthe trial court erred by requiring Dr. Orvald to testifY in support ofMs. Constantine's affirmative defense. We therefore reverse Ms. Constantine's conviction, and remand this case for a new trial. The remainder ofthis opinion has no precedential value. Therefore, it will be filed for public record in accordance with RCW 2.06.040, the rules governing unpublished OpInIOns. Statement of Additional Grounds (or Review. Ms. Constantine also filed a pro se statement ofadditional grounds. Primarily, she challenges the credibility oflaw enforcement testimony and offers an alternate version ofevents. These issues of conflicting testimony, credibility ofwitnesses, and the persuasiveness ofthe evidence are matters for the trier offact and are not subject to review. State v. Thomas, 150 Wn.2d

18No. 3l3l3-1-1I1 State v. Constantine 821, 874-75, 83 P.3d 970 (2004). Ms. Constantine's remaining single statement allegations are either too vague orcontain matters outside the record ofthis case. They do not merit review and will not be addressed. 

# (\ T Lawrence-Berrey, J. 1CONCUR:

19No. 31313-I-III KORSMO,

### J. (dissenting)

- The trial court correctly recognized that there needed to be proofofthe "terminal or debilitating medical condition." There was no proof, but only the conc1usory statement that one existed. There also is no basis for granting a new trial on theories that were notpursued at the first trial. Adriane Constantine was free to offer the doctor's business records at trial through aproper custodian ofthe record, but she made no effort to do so. Having refusedto pursue this approach at trial, she does not get a second trial to attempt to pursue a new defense theory for which she also has not provided a factual basis. In otherwords, the defendant failed to offer adequate evidence
orprovide a witness who could offer it. Forboth reasons, I dissent. Initially, I take issue with the ruling that the defendant did not have to prove that the "qualifyingpatient" had been diagnosed with one ofthe statutory conditions that constitute a "terminal or debilitating medical condition." RCW 69.SIA.OIO(6). The majority focuses on the word "diagnosed" in RCW 69.S1A.OIO(4)(b)1 while ignoring the remainder ofthe subsection-whatthe diagnosis must concern. Whether or not the diagnosed condition is a "terminal or debilitating" one is a question offact for thejuryto
I In pertinent part, RCW 69.SIA.OlO reads: (4) "Qualifyingpatient" means a person who: (b) Has been diagnosed by thathealth care professional as having a terminal or debilitating medical condition.No. 31313-1-III 

### State v. 

### Constantine-Dissent
decide. Itisjust as much a factual component, subject tojuryproof, as the other elements ofthe defense. The majority correctly concludes that the statute does not require proofthat the patient actually has the disease in question, but that conclusion misses the point ofthe argument. The defendant does not have to showthat the diagnosis
was accurate, but she does have to showthat it involved one ofthe conditions listed in RCW 69.S1A.O 10(6).2 There is no suchproofin this case. The salientportion ofthe medical authorization states: "I am treating the above namedpatient for a terminal illness or a debilitating condition as defined in RCW 69.S1A.OIO." Clerk's Papers (CP) at 66. Although perhaps thejury couldpermissibly infer from the word "treating" that a physician must have first "diagnosed" the patient, nothing in this statement conveys what the diagnosis was. Instead, the form simply states the medical professional's (improper) legal conclusion about the unstated diagnosis. No information is provided for thejuryto determine whetherthe condition is one recognized by statute as a basis for medical marIjuana use. In a properly presented case, the defense would offer medical evidence that the patient was diagnosed with a particular condition. Thejury would receive an instruction 2The trialjudgewisely recognized: "So, the statement that the underlying condition doesn't have tobeprovided inthe valid documentation does not meanthat it doesn't have tobe shown at trial. It does have to be shown at trial." Report of Proceedings (RP) at 364. 2No.31313-I-III 

### State v. 

### Constantine-Dissent
based on RCW 69.S1A.O 10(6), determinethatthe condition was legally recognized, and find the patient was a "qualityingpatient." That did not happen here. Instead, the defense wantedthejuryto speculate, based onthe doctor's legal conclusion, that the patient had a qualitying condition. The trialjudge, accordingly, properly rejected this offer ofproofand told the defense how to cure it-presentthe medical evidence, which presumably would have meant the doctor's testimony since the records appeared to lack the necessary information. Whether the diagnosis was ofone ofthe legally recognized conditions is no less a factual question for thejuryto determine than whether ornot the doctor even made a diagnosis. The defense needed to establish both ofthose facts for thejury. Why the majority allows the doctor to make thejury's determination is unclearto me. Thejury has to find the fact that the doctor "diagnosed" the patient. The fact that the patient's condition was a "terminal or debilitating" one under the statute is also ajury question. Presumably, ifthe doctor thought that acne or schizophrenia constituted a debilitating condition, the doctor would not be permitted to opine that the patient had a legally recognized basis for using marijuana. Why the doctor is permitted to opine that some unknown diagnosis does quality is unclear. The trialjudgeproperly concluded that the authorization form was inadequate to establish thatthere was a "qualityingpatient."

3No. 31313-1-II1 

### State 

### v. Constantine-Dissent Secondly, the trial court correctly concluded that there was no foundation for admitting the evidence. The majority overlooks several aspects ofthe ruling on the motion in limine even while recognizing that the defense could presentthe evidence through aproper records custodian. Here, the defense simply did not have the appropriate person to present the records and made no attemptto obtain that person even after thejudgetold the defense what was necessary. The prosecutor sought to exclude the patient, Tristan Gilbert, from testifying that the doctor had diagnosed him with a "terminal or debilitating medical condition"that made him a "qualifyingpatient." RCW 69.51A.OI0(4). The trial court agreed that it would be hearsay for the patient to set forth the doctor's diagnosis. The majority apparently agrees. The trialjudge also ruled that Mr. Gilbert was not aproper custodian to admitthe records. Once again, the majority agrees. 

### See slip opinion at 16 n.3. The trial court noted that the medical marijuana statute did not overrule the Evidence Rules,
nor did it set up an alternative evidentiary basis for admitting evidence, but simply left those matters to the court system. RP at 361. Accordingly, thejudge told the defense that it would need to find "medical testimony" to establish the defense. CP at 52; RP at 365. These rulings were all correct, and they provide the second reason why the medical marijuana defense was properly rejected-there was no records custodian.

4No. 31313-1-111 

### State v. 

### Constantine-Dissent
Instead ofseeking a records custodian to admit the records, the defense offered, both at pretrial and again attrial, to put on only 

### Mr. Gilbert to admitthe records. 

### RP at 365, 507. Medical records are appropriately admitted at trial under The Uniform Business Records as Evidence Act, chapter 5.45 RCW. 

### See State v. 

### Ziegler, 114 Wn.2d 533, 789 P.2d 79 (1990). RCW 5.45.020 provides that such a record is "competent evidence ifthe custodian or other qualified witness testifies" to the method ofpreparation in "theregular course ofbusiness." The authorization form is undoubtedly the doctor's business record. 

### Mr. Gilbert is not a medical professional and did notwork for the doctor. He could not testifY that it
was the doctor's record. He was not a records custodian for purposes ofRCW 5.45.020. For this reason, also, the trial court correctly ruled thatthe defense did not have a basis for presentingthe authorization form at trial. The defense attempted to offer inadequate documentation through aperson who
was not a custodian ofthe deficient records. The trialjudgerejected the proffer for both
reasons. As bothreasons were correct, we should be affirming the defendant's conviction. Since the majority reaches a contrary conclusion, I respectfully dissent. 

# jj, Korsmo, J

# .f:!

5