Supreme Court No. 20 11

- 178

- C.A. ( P2/ 10

- 1832 AG & BG )

State :

v. : Dean DeRobbio et al

. :

Pre sent: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia , JJ. O P I N I O N Justice Indeglia , for the Court. For the first time , we are c alled upon to interpret the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 chapter 28.6 of title 21 ( Medical Marijuana Act or Act). The State of Rhode Island (state) appeal s fro m a pretrial order dismissing a five

- count criminal i nformation , filed against the defendants, Dean DeRobbio and Joseph Joubert

. On appeal, the state contends that the hearing justice committed reversible error in determining that insufficient probable cause existed to believe that the defendants had commit ted various narcotics

- related offenses. The d efendants assert that their possession of marijuana was legal under the Act. After reviewing the record and considering the parties’ written submissions and oral arguments, we vacate the judgment of the Superi or Court and remand the papers to it with instructions to conduct further proceedings consistent with this opinion

. I
Facts and Travel On June 7, 2010, defendants were charged with (1) possessing marijuana with the intent to deliver it in violation of Rhod e Island’s Uniform Controlled Substances Act (CSA) , G.L. 1956

- 1

-§ 21

- 28

- 4.01(a)(4)(i) (count 1); (2) manufacturing marijuana in violation of § 21

- 28

- 4.01(a)(4)(i) (count 2); and (3) conspir acy to violate the CSA in violation of § 21

- 28

- 4.08 (count 5). In th e same information, DeRobbio was a lso charged with committing a crime of violence

— the above

referenced narcotics offenses 1

— while having available a firearm in violation of G.L. 1956 § 11

- 47

- 3 (count 3) and with the unlawful possession of V icodin in violati on of § 21

- 28

- 4.01( c )( 2 ) (i) (count 4). 2 The charges stemmed from a warranted search of DeRobbio ’s home in Cr anston, on January 21, 2010. Befo re executing that search , Cranston police detectives set up surveillance of DeRobbio’s home. Shortly thereafter , DeRobbio and Joubert exited the home and entered a vehicle, which an officer was directed to stop. During this stop, the officer advised DeRobbio and Joubert that he had a search warrant for DeRobbio’s home. DeRobbio and Joubert then presented the offi cer with registry identification card s issued to them under the Act , identifying them as a qualifying patient and DeRobbio’s primary caregiver, respectively

. 3 Joubert’s registry identification card listed DeRobbio as his only patient. Soon after, detecti ves executed the search warrant of DeRobbio’s home. 4 That search also revealed a registry identification card

1 Pursuant to G.L. 1956 § 11

- 47

- 2(2), a “crime of violence” includes, among other things, “any felony violation involving the illegal manufacture, sale, or delivery of a controlled substance, or possession with intent to manufacture, sel l, or deliver a controlled substance * * *.” 2 In its full brief to this Court, the state abandons its appeal of the hearing justice’s dismissal of count 3. In DeRobbio ’s brief to this Court, he concedes that the hearing justice erred in dismissing count 4. We agree , and direct that it be reconsidered on remand. 3 Pursuant to the Edward O. Hawkins and Thomas C. Slater Medical Marijuana Act, G.L. 1956 chapter 28.6 of title 21 (Act), a “[r]egistry identification card” is a document issued by the Rhode Isla nd Department of Health that identifies a person as a registered qualifying patient or a registered primary caregiver. Section 21

- 28.6

- 3(11). Pursuant to § 21

- 28.6

- 6(d), a qualifying patient may have no more than two individual primary caregivers. The A ct will be discussed more fully below. See part I

- A, infra

. 4 On appeal, defendants do not challenge t he validity of this search.

- 2

-issued to Joubert’s mother, Marie Joubert (Mrs. Joubert), which listed her as DeRobbio’s primary caregiver. That same day, police contacted Mrs . Joubert regarding the marijuana found at DeRobbio’s home. According to the police report, s he told police that she was a licensed medical marijuana provider, that she was “aware” of the marijuana grown at DeRobbio’s home, and that twenty

- four of the mar ijuana plants located there belonged to her. She further explained that she had been growing that marijuana for her two patients, DeRobbio and another person whose name she could not remember

. However, when asked if she could specify which marijuana plan ts were hers, she stated that they were “mixed in with the other plants,” that she had not seen them grow, and that she had never actually set foot inside DeRobbio’s home. Mrs. Joubert was not charged in connection with this matter

. The above

- referenced s earch of DeRobbio’s home revealed in pertinent part: thirty

- three marijuana plants; thirty

- nine marijuana see dlings without any visible buds; 31.8 grams of marijuana in a plastic container in the freezer; 39.6 grams of marijuana in a plastic freezer bag in the bedroom; 2.4 grams of marijuana in a sandwich bag; 12.1 grams of “ burnt ” marijuana in a prescription bottle ; thirty

- three V icodin tablets in another prescription bottle ; and seven V icodin tablets in a night stand in the bedroom

. 5 According to the pol ice reports, the mature marijuana plants and seedlings were discovered in two separate “gro w rooms” located in DeRobbio ’s windowless basement. These rooms were equipped with fans, timers, high

- wattage lights, humidifiers, a ventilation system, filters, an d a calendar with a schedule indicating when to care for the plants.

5 A total of 85.9 grams of marijuana was found at DeRobbio’s home. Since the Act quantifies usable marijuana in terms of oun ces, we note that this amount equates to approximately 3.03 ounces of usable marijuana. See § 21

- 28.6

- 4(a), (d).

- 3

-O n January 5, 2011, DeRobbio moved to dismiss the criminal information as to all
counts ; Joubert later joined in that motion. In his supporting memorandum, DeRobbio relied on an affirm ative defense and dismissal provision set forth in the Act

. Before reciting defendants’ arguments in their joint motion to dismiss, as well as their arguments before this Court in support of the hearing justice’s decision to grant th at motion , we first p rovide a brief overview of the Medical Marijuana Act as it relates to this appeal.
A The Medical Marijuana Act Enacted by the General Assembly in 2006 , 6 the Act contains legislative findings declaring that “[s]tate law should make a distinction between th e medical and nonmedical use of marijuana.” Section 21

- 28.6

- 2(5). As such, “ the purpose of [the Act] is to protect patients with debilitating medical conditions, and their physicians and primary caregivers, from arrest and prosecution, criminal and other penalties, and property forfeiture if such patients engage in the medical use of marijuana.” Id. To that end, t he Act allows certain Rhode Island residents the right to possess “an amount of marijuana that does not exceed twelve (12) mature marijuana plants and two and one

- half (2.5) ounces of usable marijuana” for the medical use thereof. Section 21

- 28.6

- 4. In order to qualify, those residents (defined as “qualifying patient[s]”) must have been (1) diagnosed by certain medical prac titioner s as havin g a debilitating medical condition and (2) issued a registry identification card by the Rhode Island Department of Health (DOH)

. Section s 21

- 28.6

- 3(10) ; 21

- 28.6

- 4(b)

. The Act also grants qualifying patients the right to possess “a reasonable amount

6 P.L. 2005, ch. 442 § 1 (enacted Jan. 3, 2006)

.

- 4

-of un usable marijuana, including up to twelve (12) seedlings, which shall not be counted toward the limits in this section.” Section 21

- 28.6

- 4(e). The A ct defines a “[ m ] ature marijuana plant ” as one “ which has flowers or buds that are readily observable by an unaided visual examination.” Section 21

- 28.6

- 3(6). “‘ U s able marijuana ’ means the dried leaves and flowers of the marijuana plant, and any mixture or preparation thereof * * * .” Section 21

- 28.6

- 3(14). Distinguished from usable marijuana, “[ u ] nusable mar ijuana ” consists of “ marijuana seeds, stalks, seedlings, and unusable roots.” Section 21

- 28.6

- 3(13). Likewise , the Act allows a primary caregiver (defined by § 21

- 28.6

- 3(9) as a natural person at least twenty

- one years of age who has been issued a registr y identification card from the DOH ) the right to possess “an amount of marijuana which does not exceed twelve (12) mature marijuana plants and two and one

- half (2.5) ounces of usable marijuana for each qualifying patient to whom he or she is connected thro ugh the [ DOH’s ] registrat ion process.” Section 21

- 28.6

- 4(d). Further, p rimary caregivers also have the right to possess “a reasonable amount of unusable marijuana, including up to twelve (12) seedlings, which shall not be counted toward the limits in thi s section.” Section 21

- 28.6

- 4(e). Although a primary caregiver may assist up to five qualifying patients with their medical use of marijuana, at no time may a primary caregiver possess an amount o f marijuana in excess of twenty

- four marijuana plants and five ounces of usable marijuana for those qualifying patients. Sections 21

- 28.6

- 3(9); 21

- 28.6

- 4 (n). Additionally, the Act permits each qualifying patient to have no more than two primary caregivers. Section 21

- 28.6

- 6(d). The Act also contains an affir mative defense and dismissal provision, which, as noted above, served as the basis of defendants’ joint motion to dismiss. Section 21

- 28.6

- 8(b) provides

- 5

-that “ [a] person may assert the medical purpose for using marijuana in a motion to dismiss, and the ch arges shall be dismissed following an evidentiary hearing * * * ” if the defendant shows the following elements listed in § 21

- 28.6

- 8(a): “(1) T he qualifying patient’s practitioner has stated that, in the practitioner’s professional opinion, after having c ompleted a full assessment of the person’s medical history and current medical condition made in the course of a bona fide practitioner

- patient relationship, the potential benefits of using marijuana for medical purposes would likely outweigh the health ri sks for the qualifying patient; and “(2) T he person and the person’s primary caregiver, if any, were collectively in possession of a quantity of marijuana that was not more than what is permitted under this chapter to ensure the uninterrupted availability of marijuana for the purpose of alleviating the person’s medical condition or symptoms associated with the medical condition.”
B Motion to Dismiss
In a memorandum supporting their joint motion to dismiss, defendants averred that the marijuana found a t DeRobbio ’s home did not exceed the limits set forth in the Act. Referring to the language cited above, defendants asserted that the phrase “collectively in possession of a quantity of marijuana” clearly allowed DeRobbio , Joubert , and M rs. Joubert , to co llectively possess the entirety of the marijuana at issue. See § 21

- 28.6

- 8(a). The d efendants also pointed out that , under the terms of the Act , qualif ying patients and primary caregivers may “possess a reasonable amount of unusable marijuana, including u p to twelve (12) seedlings, which shall not be counted toward the limits in this section .” Section 21

- 28.6

- 4(e). Countering the state’s argument that they possessed a quantity of thirty

- nine seedlings

— three greater than a collective possession theory wou ld even allow

— defendants argued that the photographic evidence provided by the state did not clearly show which plants

- 6

-constituted seedlings

. Although the Act limits each qualifying patient’s or caregiver ’s possession to twelve seedlings, he or she may po ssess a “reasonable amount of unusable marijuana ,” which is not quantified under the terms of the Act. The d efendants argue d that some of the unusable marijuana collected at DeRobbio ’s home did not constitute seedlings, but rather constituted “dead leaves .” Since the Act does not specifically limit the amount of unusable marijuana (apart from seedlings), defendants contended that their collective possession of unusable marijuana did not violate the Act. Further , defendants argued in the alternative that , at worst, the phrase “collectively in possession” wa s ambiguous

. Citing precedent from this Court, defendants assert ed that , in cases where a criminal statute is deemed ambiguous, the rule of lenity must be applied, and accordingly, the criminal informati on should be dismissed. The state objected to defendants’ motion to dismiss on February 28, 2011. In an accompanying memorandum, the state conceded that defendants were valid medi c al marijuana cardholders , but argued that they violated the medical mariju ana possession limits set forth in the Act. The state contended th at the Act did not allow for collective possession of marijuana among qualifying patients and primary caregivers. Thus, the marijuana grown at DeRobbio ’s home could not be split up between DeRobbio , Joubert, and M rs . Joubert. According to the
stat e , the entire amount of marijuana found at DeRobbio ’s home was ascribed to DeRobbio

. Therefore, the state explained, DeRobbio violated the limits set forth in the Act

. Similarly , applying the sa me reasoning to Joubert’s marijuana possession , the state also argued that Joubert violated the Act by his possession of the entirety of the mariju ana , because the marijuana could not be allocated between him, DeRobbio , and M rs . Joubert. Furthe r, the stat e maintained that , because M rs. Joubert could not specifically identify which of the marijuana plants found at

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-DeRobbio ’s home actually belonged to her and that she did not actually care for t hose plants, none of them could be a ttributed to her as a primar y caregiver

. A hearing on defendants’ joint motion to dismiss was held before a justice of the Superior Court on May 4, 2011. In a bench decision , t he hearing justice dismissed the five

- count criminal information

. Interpreting the Act to allow for collec tive possession among DeRobbio , Joubert , and M rs. Joubert , he determined that defendants lawfully “possess[ed] an authorized am ount of marijuana plants and us able marijuana.” “[ S]plit it up any way you want , ” the hearing justice explained

— the amount of ma rijuana found at DeRobbio ’s home could be properly allocat ed to each of the three cardholders s o that each was in lawful possession of marijuana in accordance with the limits set forth in the Act. He further determined that the Act “ is a poorly

- drafted
st atute * * * [and] a defendant [should not ] be criminally liable for inartful draftsmanship.” As such, he found that “no criminal liability ” attached to defendants “ for cultivating a lawful amount of marijuana.” An order to that effect was entered on May 16, 2011

. C Appeal The state then timely appealed to this Court. 7 On appeal, the state abandons its prior contention that the Act does not provide for collective possession among qualifying patients and their respective primary caregivers . Instead, the state proffers that , even if the Act allowed defendants to grow the marijuana collectively, they nonetheless possessed an amount of marijuana in excess of the Act’s limits

. In support of this argument, the state contends that none of the marijuana found a t DeRobbio ’s home could properly be credited to M rs . Joubert.

7 Although the state appealed prior to the entry of final judgment , we nonetheless treat its appeal as timely. See Chapdelaine v. State , 32 A.3d 937, 941 n.1 (R.I. 2011).

- 8

-Although a registration card issued to M rs. Joubert as DeRobbio ’s primary caregiver was found
at DeRobbio ’s home, she had told police that she had never been inside DeRobbio’s home, that she wa s unable to specify which of the marijuana plants belonged to her , and that she did not personally care for th ose plants. As a consequence, the state reasons, each defendant , pursuant to § 21

- 28.6

- 4(a) and (d) , “could lawfully have possessed only twenty

- f our mature marijuana plants (his [respective] twelve, plus [the other’s] twelve)

— nine fewer than the thirty

- three mature marijuana plants that were discovered [at DeRobbio’s home] * * *.” The state then applies the same argument to defendants’ possession of the marijuana seedlings , contending that it also exceeded the limits prescribed in the Act

. In c ountering the state’s arguments on appeal, both defendant s briefed this C ourt separately

. In support of his contention that the hearing justice correctly di smissed the criminal information, Joubert reasons that , “assuming arguendo that there were multiple possible interpretations of the statute , ” the hearing justice correctly interpreted the Act to defendants’ benefit

. Similarly, DeRobbio relies on the rule of lenity in countering the state’s argument on appeal

. In support of this argument , he maintains that an imposition of criminal liability would be unconstitutional because the Act does not provide fair warning to criminal defendants. He emphasizes that the Act neither unequivocally proscribe s a collective grow of marijuana nor specifies the level or degree of participation the qualifying patient and each primary caregiver must demonstrate to comply with the Act

. Thus, DeRobbio reasons , the fact that M rs . Joubert did not personally care for the marijuana plants should not be fatal to defendants’ a rgument

. Further, responding to the state’s contention that he and his two primary caregivers possessed more than the amount of marijuana seedlings allowed und er the Act, DeRobbio points out that § 21

- 28.6

- 4(e) is silent with respect to whether a primary caregiver may possess more

- 9

-than twelve seedlings, regardless of the number of qualifying patients he or she serve s . According to DeRobbio , s ince M rs. Joubert s erved two qualifying patients , as indicated by her registry identification card, it is reasonable to conclude bas ed o n the Act’s plain language that she was permitted to possess twenty

- four seedlings (twelve for each patient)

. The additional fifteen seedl ings could then be allocated to DeRobbio and Joubert collectively. Thus, DeRobbio contends that he, Jouber t , and M rs. Joubert lawfully possessed the marijuana at issue in this case.
II Discussion At the outset, this Court recognizes that there is a cons titutional question as to whether the Act is preempted (either in whole or in part ) by federal law, which prohibits the manufacture, distribution , or possession of marijuana , even if it is used for medical purposes. See Gonzales v. Raich , 54 5 U.S. 1, 13

- 1 5 (2005) (citing 21 U.S.C. §§ 812(c), 841(a)(1), 844(a))

. Since neither party has questioned whether the Act can survive under the Supremacy Clause of the United States Constitution, either below or on appeal, we de cline to do so

. See Vigneau v. La Salle , 111 R.I. 179, 181, 300 A.2d 477, 479 (1973) (“[W]e will not pass upon the constitutionality of an act of the General Assembly when the matter has not been brought into question upon the record of the case with clarity and particularity in the trial court so that the trial justice may have the opportunity to pass upon the question.”); see also Devane v. Devane , 581 A.2d 264, 265 (R.I. 1990) (“[I]t is a clear imperative that a trial justice, in the exercise of his or her judicial authority, not resolve a co nstitutional issue unless and until such issue is actually raised by the parties to the controversy and a necessity for such a decision is clear and imperative. * * * [A] trial justice does not have the authority to sua sponte attack the constitutionalit y of a statute; it must be raised by a party entitled to make such challenge.”)

. In light of this Court’s precedent , in which we

- 10

-strongly caution against deciding the merits of a constitutional issue not raised by either party, we leave for another day th e resolution of whether the Act is preempted by federal law and therefore void , either in whole or in part

. See § 21

- 28.6

- 10 (discussing severability). We now turn to the merits of the matter actually before us. In making their joint motion to dismiss , defendants relied on the affirmative defense and dismissal provision provided under §
21

- 28.6

- 8. 8 In deciding whether to grant the motion to dismiss, the hearing justice was bound by the terms of that provision , which explicitly states that charges brou ght in a prosecution involving marijuana “shall be dismissed following an evidentiary hearing where the defendant shows the elements listed in [ § 21

- 28.6

- 8(a)]

. ” 9 Section 21

- 28.6

- 8(b) (emphasis added). We deem the dismissal provision set forth in § 21

- 28 .6

- 8(b) to be abundantly clear

— the burden is on

a defendant to request an evidentiary hearing to show that he or she has s atisfied the elements listed in subsection (a) of § 21

- 28.6

- 8 and was thus in possession of an amount of medical marijuana that confor med to the limits set forth in the Act

. Although the Superior C ourt held a hearing on the defendants’ motion to dismiss, the parties presented no evidence at th at hearing , including, among other thing s , evidence regarding M rs. Joubert’s role as a primary caregiver

. Therefore, since no evidentiary hearing was held, in contravention of the plain terms of the Act, the he aring justice’s dismissal was premature. Accordingly, we vacate the judgment of the

8 The record is unclear as to whether defendants moved to dismiss pursuant to Rule 9.1 of the Superior Court Rules of Criminal Procedure, or under Rule 12 of the Superior Cour t Rules of C riminal Procedure (dealing with pretrial motions) , which permits a defendant to raise “[a]ny defense or objection which is capable of determination without the trial of the general issue * * * before trial by motion.” The memorandum accompanyi ng their joint motion to dismiss relies exclusively on the affirmative defense set forth under the Act. Later, though, in a colloquy with the hearing justice, defendants stated that they had brought the motion pursuant to both Rule 9.1 and the affirmative defense and dismissal provision under the Act. It is not surprising to this Court that the basis for this motion to dismiss was unclear. We agree with the trial justice that the Act (which we have not previously reviewed) itself is poorly drafted. 9 On appeal, the state does not contest whether defendants have satisfied the requirement set forth in § 21

- 28.6

- 8(a)(1).

- 11

-Superior Court, and instruct the hearing justice to con duct an evidentiary heari ng pursuant to §
21

- 28.6

- 8(b).
III Conclusion For the reasons set forth in this opinion, we vacate the judgment of the Superior Court and remand the papers to it with instructions to conduct further proceedings consistent with t his opinion.

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### R HODE 

### I SLAND 

### S UPREME 

### C OURT 

### C LERK 

### ’ S 

### O FFICE 

### Clerk’s Office Order/O pinion Cover Sheet

TITLE OF CASE: State v. Dean DeRobbio et al. CASE NO : No. 20 11

- 178

- C.A. ( P2/10

- 1832 AG & BG ) COURT: Supreme Court DATE OPINION FILED: April 8 , 2013 JUSTICES: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia JJ. WRITTEN BY: Associate Justice Gilbert V. Indeglia SOURCE OF APPEAL: Providence County Superior Court JUDGE FROM LOWER COURT : Associate Justice Robert D. Krause ATTORNEYS ON APPEAL : For State : Aaron L. Weisman Department of Attorney General
For Def endant Dean DeRobbio : Thomas R. Bender, Esq. For Defendant Joseph Joubert: Thomas M. Dickinson, Esq.