Commonwealth of Pennsylvania v. Justin Oliver

 

Criminal Action-Law-Controlled Substance, Drug, Device and Cosmetic Act-Possession of Paraphernalia-Contraband-Cigarette Rolling Papers-Jury Instructions-Marijuana-Medical Marijuana-Authorized Forms

 

Justin Oliver (“Defendant”) was convicted of possession of drug paraphernalia following a trial by jury after the vehicle he was operating was stopped for speeding and Defendant removed a plastic container from the center console of the vehicle containing a grinder, cigarette roller and plant material when the officer detected the odor of marijuana.  At trial, Defendant presented the testimony of his girlfriend that the container and its contents belonged to her and she possessed a medical marijuana card authorizing her to possess the container and its contents lawfully.  Defendant filed Post Sentence Motions asserting that the Court’s instructions to the jury that was unlawful to smoke medical marijuana in leaf, dry leaf or plant form were in error, as the law allows vaporization and use of flowers.

 

1. Pennsylvania has not legalized the use of marijuana and instead has created a process by which a licensed physician may prescribe marijuana as a treatment for a medical condition.

 

2. Under the Pennsylvania Medical Marijuana Law, 35 P.S. § 101 et seq., lawful medical marijuana may not be smoked and may not be possessed in dry leaf or plant form.

 

3. Even if the Court’s instructions to the jury were incomplete due to the omission of words such as “flower” and “vaping,” the container found in Defendant’s vehicle did not comply with the Medical Marijuana Law, as the container included cigarette wrapping papers that may not be used for lawful ingestion of medical marijuana, the marijuana was not packaged in compliance with the Medical Marijuana Law and there is no indication that the marijuana was dispensed by a medical marijuana dispensary.

 

L.C.C.C.P. No. CP-38-CR-0000910-2022, Opinion by Bradford H. Charles, Judge, August 29, 2023.

 

 

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                                        : 

PENNSYLVANIA                                                    :                                                                                                                                                           :           NO. CP-38-CR-910-2022

1. :          

                                                                                    :

JUSTIN OLIVER                                                     :

 

 

ORDER OF COURT

 

AND NOW, this 29^th day of August, 2023, in accordance with the attached Opinion, the Defendant’s Post-Sentence Motion is DENIED.  The Defendant is advised that he has thirty (30) days from today in which to file an Appeal of this decision with the Pennsylvania Superior Court.  A copy of this Order is to be provided to the Defendant’s counsel, to the District Attorney of Lebanon County and to the Defendant by certified mail, return receipt requested.

 

BY THE COURT:

 

                                                 J.

BRADFORD H. CHARLES

BHC/pmd

cc:       Court Administration

District Attorney

Public Defender

Justin Oliver LV2639// SCI Pine Grove, 189 Fyock Road, Indiana PA 15701 (cert mail, ret rect req)

 

IN THE COURT OF COMMON PLEAS LEBANON COUNTY

PENNSYLVANIA

 

CRIMINAL DIVISION

 

COMMONWEALTH OF                                        : 

PENNSYLVANIA                                                    :                                                                                                                                                           :           NO. CP-38-CR-910-2022

1. :          

                                                                                    :

JUSTIN OLIVER                                                     :

 

 

APPEARANCES

Daniel Linares-Herrador, Esquire              For Commonwealth of

DISTRICT ATTORNEY’s Office                          Pennsylvania

 

Shannon Pascal, Esquire                                          For Justin Oliver

PUBLIC DEFENDER’s Office

 

 

OPINION BY CHARLES, J., August 29, 2023

There is colloquial expression often used by members of Lebanon County’s Pennsylvania Dutch community: “Micht Nacht.”  Loosely translated, this means: “It does not matter.”  In this case, the Defendant argues that the Court erred by informing a jury that it was unlawful to smoke medical marijuana.  Relying upon a 2018 “Notice” issued by a former Pennsylvania Department of Health official, the Defendant argues that smoking by “vaporization” is a lawful method of ingesting medical marijuana.  Although we question the premise of the Defendant’s argument, we need to emphasize that the key issue disputed by the parties was whether the Defendant, as opposed to someone else, was actually in possession of the contraband.  Even the Defendant’s counsel admitted during argument following jury instructions that the contraband in question was not lawfully dispensed and packaged marijuana.  Thus, even if the Court technically erred by stating that medical marijuana cannot be “smoked”… “Micht Nacht.”

 

1. FACTS and PROCEDURAL HISTORY

On April 26, 2022, Justin Oliver (hereafter DEFENDANT) was operating a GMC pick-up truck on State Route 22 in northern Lebanon County.  He was observed speeding by a Pennsylvania State Police Trooper.  The Trooper therefore initiated a traffic stop.  During the stop, the Trooper detected the odor of marijuana.  During the interaction that followed, DEFENDANT voluntarily removed a plastic container from the center console of his truck and provided it to the Trooper.  Inside the plastic container were a grinder, a cigarette roller and some plant material.  DEFENDANT was charged with possession of drug paraphernalia as a result of what he handed to the Trooper.

At trial, DEFENDANT’s girlfriend, Heidi Thorton, testified that the items in the pick-up truck belonged to her.  Ms. Thorton testified that she possessed a medical marijuana prescription card and had placed her medical marijuana inside the plastic container that she accidentally left inside DEFENDANT’s pick-up truck.

It became obvious from the nature of the questions asked by defense counsel that DEFENDANT intended to rely upon the defense that the contraband found inside his truck were items that were lawfully prescribed pursuant to Pennsylvania’s Medical Marijuana law.  This Court recognized immediately that the real issue in dispute was whether DEFENDANT possessed the contraband or whether it was exclusively possessed by Ms. Thorton.  We advised counsel that we intended to instruct the jury that the items of contraband found inside DEFENDANT’s truck could not be construed as lawfully possessed medical marijuana.

Before closing jury instructions, this Court conducted research regarding Pennsylvania’s Medical Marijuana law.  Based upon that research, we defined what is permitted and not permitted by Pennsylvania’s Medical Marijuana law because we did not want the jury to go down a proverbial rabbit hole by focusing upon issues that were not before it.  Among the things that we told the jury were the following:

• That there is confusion and misinformation in the public realm regarding medical marijuana.
• That marijuana is a controlled substance, even if it could be lawfully prescribed by a doctor for medical use; just because some people possess a medical marijuana card does not mean that all marijuana in every form is lawfully possessed.
• Medical marijuana can be legally possessed in certain forms. However, the law specifically excluded dispensing of marijuana in “leaf or dry leaf or plant form.”
• That people with medical marijuana cards cannot legally smoke it.
• In order to possess marijuana lawfully, the marijuana must be dispensed by a lawfully licensed dispensary.
• To possess marijuana lawfully, the substance must be packaged in a container issued by the dispensary that contains specifically required information.

We ended our discussion about medical marijuana by stating:

“So I don’t want you to get confused about the medical marijuana issue.  Let me respectfully suggest that the real issue in this case is whether the Defendant had the power to control and the intent to control [the contraband]…That, let me respectfully suggest, is the primary issue upon which you must focus.  That’s why you’re here.  I don’t want you to get caught up going down some rabbit hole based upon what you may believe about medical marijuana…The power and intent to control, that is the real issue.”

(N.T. 65-66).

 

Following our instruction to the jury, DEFENDANT’s counsel lodged an objection, indicating that we erred by stating that medical marijuana cannot be smoked.  The following exchange then occurred:

“MR. PASCAL: So Your Honor, during the instructions on medical marijuana, you indicated that dispensaries cannot sell flower.  The Department of Health has authorized dispensaries to sell flower pursuant to the medical marijuana act.

 

THE COURT: I said leaf, dry leaf, or plant is what I said. I never used the word flower.

 

1. PASCAL: But they can dispense for the purposes of vaping.

 

THE COURT: Not smoking.

 

1. PASCAL: Correct. But I want to make sure they understand the plant material – –

 

THE COURT: Look, this case is not about whether that box was drug paraphernalia.  It is drug paraphernalia.  I did not go as far as to tell them that, but I didn’t want them to go down a rabbit hole. You didn’t argue that that box did not contain – – you did not argue that the box was not drug paraphernalia.  You didn’t even argue that.

 

1. PASCAL: Correct.

 

THE COURT: The box is drug paraphernalia. And I went as far as I did because I didn’t want them to go down a rabbit hole based upon some misperception of the medical marijuana law that they may have read or heard from a friend.

 

1. PASCAL: But I don’t want the implication out there that this is street weed when it could be medical marijuana that was used legally.

 

THE COURT: No, I’m not going down that rabbit hole.  I’ve told them what I’ve told them.  I never used the word flower, I never did.  That box did not have labelling.  That box was just not lawful medical marijuana, it wasn’t.

 

1. PASCAL: I understand that.

 

THE COURT: So we’re done.  I’m not going to tell them anything more.”

(N.T. 71-72).

 

DEFENDANT was found guilty of the crime with which he was charged.  Following the verdict, DEFENDANT filed a Post-Sentence Motion based upon the purported error in our instruction about medical marijuana.  We author this Opinion to deny DEFENDANT’s Post-Sentence Motion.

 

1. DISCUSSION

We will begin our discussion by summarizing Pennsylvania’s Medical Marijuana law.  We do so with the understanding that Pennsylvania has not “legalized” marijuana.  To the contrary, Pennsylvania has simply created a process by which licensed physicians can prescribe marijuana as a treatment for medical conditions.  With that in mind, we will summarize what the law provides with respect to when marijuana can and cannot be lawfully possessed and ingested:

• Medical marijuana can be lawfully possessed in the form of pills, oils, topical forms, liquids or “a form medically appropriate for administration by vaporization.” 35 P.S. §10231.303(2)
• Specifically excluded from the list of forms of medical marijuana are “dry leaf or plant form.” 35 P.S. §10231.303(2)
• Under a section entitled “Unlawful use of medical marijuana”, the law states “It is unlawful to smoke medical marijuana.” 35 P.S. §10231.304(b)(1)
• Lawful medical marijuana can only be purchased at a legally licensed dispensary. 35 P.S. §10231.304(b)(5)
• Lawfully possessed medical marijuana must be kept in the original package in which it was dispensed. 35 P.S. §10231.303(6)
• Lawfully possessed medical marijuana must contain a label that identifies the name of the dispensary, the name of the grower, and the form and species of the medical marijuana. 35 P.S. §10231.303(8)

 

In this case, we instructed the jury precisely in accordance with Pennsylvania’s Medical Marijuana law.  Contrary to the suggestion of DEFENDANT’s counsel, we never used the word “flower” in our instruction, nor did we implicate the concept of “vaporization”.  We stated simply that lawful medical marijuana cannot be smoked and that it cannot be possessed in dry leaf or plant form.  As it relates to the law, our statements were accurate.[1]

Even if we had somehow erred in describing one aspect of Pennsylvania’s Medical Marijuana law, no one could credibly argue that the contraband found in DEFENDANT’s truck complied with that law.  The contraband included cigarette wrapping paper, which cannot be used to ingest lawful medical marijuana.  Nothing inside the contraband was dispensed by a medical marijuana dispensary, nor was it packaged in compliance with Pennsylvania’s Medical Marijuana law.  Stated simply, the contraband found in DEFENDANT’s truck could not have been possessed lawfully by anyone.  Being found in possession of such items was a criminal act.

As this Court discussed with counsel following jury instructions, the real question in this case is whether the contraband was “possessed” by DEFENDANT or by someone else.  A legitimate argument could be made to support either proposition.  Those arguments were proffered.  Ultimately, the jury determined that the Commonwealth had proven that the contraband was possessed by DEFENDANT.  That decision by the jury should not be overturned.

 

 

III.    CONCLUSION

            There is a great deal of public misperception about Pennsylvania’s Medical Marijuana law.  When that law was initially rolled out, no one did a good job explaining what it did and did not permit.  Even today, many citizens believe that if they obtain a medical marijuana card, they can purchase marijuana in whatever form they want from whomever they choose and ingest it however they desire.  Nothing could be further from the truth.

This Court did not err by educating a jury about the Medical Marijuana law given that the case involved marijuana and DEFENDANT injected the Medical Marijuana law into his defense.  We do not believe we erred in anything we said to the jury.  However, even if our instruction could have been construed as incomplete because it omitted words like “flower” and “vaping”, the record is crystal-clear that the contraband found in DEFENDANT’s vehicle was not medical marijuana.  It would have been improper for a jury to determine that it was, and this Court did not err by ensuring that the jury would not be confused when it focused upon the true issue of whether DEFENDANT did or did not possess the contraband.

DEFENDANT’s Post-Sentence Motion will be denied.  An Order to accomplish this will be entered today’s date.

 

 

 

[1] At trial, DEFENDANT’s counsel did not provide or reference the Department of Health “Notice” that was issued in 2018.  Even if he had, we would not have permitted that “Notice” to supersede what is contained in Pennsylvania’s Statute. Moreover, even what is set forth in the “Notice” did not contradict what we advised the jury.