State v. Abdi

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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