State v. Dickens
Case # A153152
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A153152.pdf
One day, a Police Officer responded to a call at Defendant Dickens’ house. While there, the Officer noticed marijuana plants. The Officer got a warrant to search the residence for marijuana plants and other specified items. The Officer ended up seizing seven large leafy green plants and 10 medium plants, each “with bud like substance.” Dickens was not at home when the Officer first came to the house or when the Officer came back for the search.
Dickens was charged with unlawful manufacture and unlawful possession of marijuana. Before trial, Dickens provided notice that he intended to rely upon the affirmative defense provided by the Oregon Medical Marijuana Act (“OMMA”) pursuant to ORS 475.319 because he had been diagnosed with a debilitating medical condition within 12 months prior to his arrest and had been advised by his attending physician that marijuana may mitigate the symptoms or effects of debilitating medical condition.
A person may use ORS 475.319 as a defense if that person a) has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by a physician that medical marijuana may mitigate that medical condition’s symptoms or effect; b) is using medical marijuana; and c) possesses only up to six mature marijuana plants pursuant to ORS 475.320.
Despite Dickens’ argument that he had been out of town for several weeks and that someone had brought plants to his house without his permission, the trial court ruled that Dickens was not entitled to use ORS 475.319 as a defense because the State offered clear evidence that 17 mature plants were found on Dickens’ premises. Dickens’ entered a conditional guilty plea for unlawful manufacture of marijuana and now appeals, contending that he was entitled to the ORS 475.319 affirmative defense because, based on the evidence, a jury could find that he possessed six or fewer plants.
The Court of Appeals notes that the Officer who confiscated the plants testified that she seized 17 medium-sized marijuana plants from the house and that each of the plants was over 12 inches in height and had “bud-like” substances (flowers). ORS 475.306(3) provides that a plant that has no flowers and that is less than 12 inches in height and less than 12 inches in diameter is a seedling or a start and is not a mature plant.” Thus, the Officer’s testimony established factors that established that each of the 17 plants was “mature.”
Furthermore, Dickens’ testimony that a bunch of the plants had been “little” before he left town for several weeks does not provide a basis for establishing that the plants were not mature, especially since Dickens did not define “little” and did not state whether or not the plants had budded before he left town. Dickens acknowledgment that he had four or five mature plants before he left town also did not help his argument.
The Court of Appeals also determines that the trial court properly credited Dickens’ testimony and did not engage in any impermissible fact-finding. The Court of Appeals thus concludes that that the trial court did not err when it found that Dickens could not use ORS 475.319 as an affirmative defense, and Dickens’ conviction is affirmed.