Appeal from the Superior Court in Pima County. No. CR20134266. The Honorable Richard S. Fields, Judge.
For Appellant: Barbara LaWall, Pima County Attorney, Nicolette Kneup, Deputy County Attorney, Tucson.
For Appellee: Lori J. Lefferts, Pima County Public Defender, David J. Euchner, Assistant Public Defender, Tucson.
Judge Vá squez authored the opinion of the Court, in which Presiding Judge Kelly and Judge Howard concurred.
VÁ SQUEZ, 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.
¶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 ...