Commonwealth v. Richardson , 479 Mass. 344 ( 2018 )

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SJC-12375
COMMONWEALTH vs. JOSHUA A. RICHARDSON.
Middlesex. December 7, 2017. - April 17, 2018.
Present: Gants, C.J., Gaziano, Lowy, Cypher, & Kafker, JJ.
Marijuana. Medicine. Controlled Substances. Search and
Seizure, Affidavit, Probable cause, Warrant. Probable
Cause. License. Jury and Jurors. Evidence, Expert
opinion, Intent. Intent. Practice, Criminal, Affidavit,
Motion to suppress, Warrant, Instructions to jury.
Complaint received and sworn to in the Framingham Division
of the District Court Department on September 9, 2013.
A motion to dismiss was heard by Douglas W. Stoddart, J.; a
pretrial motion to suppress evidence was heard by Martine
Carroll, J.; and the case was tried before David W. Cunis, J.
The Supreme Judicial Court granted an application for
direct appellate review.
Allison Callahan for the defendant.
Elizabeth J. May, Assistant District Attorney, for the
Commonwealth.
KAFKER, J. The defendant, a medical marijuana patient, was
arrested when police discovered twenty-two marijuana plants
2
growing in his basement. After a jury trial, he was convicted
of unlawful cultivation of marijuana and possession with intent
to distribute marijuana. On appeal, he argues that (1) the
criminal complaint and the search warrant lacked probable cause;
(2) the jury instructions were in error; (3) the evidence was
insufficient to find the defendant guilty beyond a reasonable
doubt; and (4) the medical marijuana law's sixty-day supply
limit is unconstitutionally vague as applied. For the reasons
stated below, we reverse in part and affirm in part.
1. Background. The defendant, Joshua A. Richardson, was
an unemployed tattoo artist living in Framingham at the time of
his arrest. On July 2, 2013, he obtained a written
certification from a qualifying physician that approved his use
of medical marijuana to treat a number of medical conditions.
The certification constituted a valid hardship cultivation
registration permitting the defendant to grow up to ten ounces
of marijuana every sixty days for his personal, medical use.1
1 No medical marijuana dispensaries were operating at this
time and the Department of Public Health (department) had not
yet begun to process hardship cultivation registration
applications. Commonwealth v. Canning, 471 Mass. 341, 348 &
n.10 (2015). Accordingly, every qualifying patient with a
written certification was authorized to cultivate medical
marijuana. Id. at 347-348 & n.8-10, 349. See St. 2012, c. 369,
§ 2 (N) (defining a written certification as a "document signed
by a licensed physician, stating that in the physician's
professional opinion, the potential benefits of medical use of
3
Approximately two months later, on September 7, 2013, the
defendant telephoned 911 to report a home invasion at his
residence. The defendant told the 911 operator that three men
had entered his home and "started beating the hell out of
[him]."
Officer Wayne Jordan reported to the defendant's residence
within a few minutes of receiving the dispatch. The defendant
told Wayne that three men had broken into his house, one of whom
had a gun. Approximately twenty officers arrived on scene,
including a number of Framingham police vehicles; State police
vehicles and canine units; a State police helicopter; and
officers from surrounding towns. The police established a
perimeter around the house to search for the home invaders.
Framingham police Sergeant Michael Esposito assembled a team of
officers to enter the defendant's home to determine whether the
suspects were still inside. The team did not find anyone inside
the house. However, Sergeant Esposito observed a pressure
cooker and an autoclave2 in the kitchen. In a room on the first
floor, Sergeant Esposito noticed "a fan and blower assembly with
a hose feeding it air or taking air out." He observed a plastic
marijuana would likely outweigh the health risks for the
qualifying patient").
2 Sergeant Michael Esposito testified that an autoclave is a
device typically found in a medical facility that is used to
sterilize equipment.
4
container with aluminum trays with a brown leafy substance in
them, which he described at trial as "some type of something
growing in those trays."3 He also found a blow torch and
numerous plastic bags in the room.
Sergeant Esposito learned from other officers on the team
that they had found marijuana growing in the basement. At that
point, Esposito ordered everyone out of the house and secured
the premises. Once outside, Sergeant Esposito read the
defendant the Miranda rights. The defendant indicated that he
would not speak with police without his attorney present, and
Esposito stopped asking him questions. However, the defendant
then said, unprompted, that the police "only had the right to go
in my house and look for . . . the guys with the gun. I never
3 One of the police reports indicated that police believed
this to be a "psilocybin mushroom grow". When police asked the
defendant about the items found in the room on the first floor,
the defendant said "he was experimenting on how to grow
mushrooms" and that "he was teaching his [five] year old son how
to grow things." He stated that "he had also been trying to
grow his own mushroom spores and that they were contained in a
white Styrofoam box in that room." The police seized the
mushrooms and sent them for laboratory analysis. The police
report states that "charges will be filed [for growing
psilocybin mushrooms] after analysis" of the mushrooms. At the
motion to dismiss hearing, the Commonwealth indicated that it
made sense to try the mushroom and marijuana charges together,
but that the Commonwealth did not know the status of the
laboratory analysis of the mushrooms. Ultimately, the
Commonwealth never charged the defendant with a crime related to
the mushrooms. The record does not indicate whether this is
because the laboratory analysis showed that the mushrooms did
not contain psilocybin or for some other reason.
5
gave you permission to look for drugs. This is fucked up." He
indicated that he had a license to grow marijuana. At that
point, the defendant was placed under arrest and searched. The
police found $2,135 in cash in his pocket.
After the defendant was arrested, he was taken to the
Framingham police station. He requested to speak with the
detectives investigating his case. Detective Robert Lewis of
the Framingham police department's narcotics unit brought the
defendant into an interview room and read him the Miranda rights
again. The defendant explained to the detective that he had
recently been given a medical marijuana card and was growing
marijuana under that registration, referring to the doctor's
certification issued to him on July 2, 2013. On the morning of
his arrest, he was in the basement pruning his marijuana plants
when he heard a noise coming downstairs. He saw two
individuals, one with a gun. He ran upstairs to the second-
floor bedroom, and noticed a third man coming up the stairs
toward him. He escaped the house and telephoned 911, using a
cellular telephone borrowed from a passing bystander.
Pursuant to a search warrant, Framingham officers seized
twenty-two plants ranging in height from one foot to three feet
tall, fertilizer, pots, and soil from the basement. According
6
to Officer Lewis, some of the plants were "in full bloom."4 The
plants were all located in the basement, in a tent designed for
growing marijuana. The officers found two large five feet by
three feet high intensity lights hanging over the marijuana
plants, a ballast system,5 and other boxes of lights in the
basement. There was a "fertilizer grow kit" in the basement as
well, labeled, "Recipe for Success Starter Kit". In the room on
the first floor that Sergeant Esposito had previously examined,
they found a scale and plastic bags.6 In the kitchen, they found
fertilizer advertised for growing marijuana. Detective Lewis
also testified that they found evidence of a tattoo business in
the house, specifically a tattoo gun. However, he did not find
any physical evidence that a home invasion had occurred or that
anyone else had been in the house. Lewis further testified that
the defendant's account of seeing a third man come up the stairs
4 On cross-examination, Detective Robert Lewis could not
identify which plants were flowering from a photograph taken of
the grow operation.
5 The Commonwealth's expert testified that ballasts are used
in conjunction with high intensity lights to "provide light to a
specific number of plants." The wattage of the ballasts is
important because the brightness of the grow lights affects the
growth cycle of marijuana plants.
6 The search warrant return document indicates that the
scale was found in the master bedroom, but Detective Lewis
testified that the scale was found in the room on the first
floor.
7
to the second floor was inconsistent with the layout of the
house.
At trial, the defendant's former girl friend, who was
dating and living with him at the time of his arrest, testified
for the Commonwealth. The couple had known each other for
fourteen months and had dated for eleven months when the
defendant was arrested. When asked if the defendant was a
regular marijuana user at the time of his arrest, she testified,
"not that I noticed -- maybe a couple times. I don't know what
he did when I he [sic] was not around." She stated that he was
not working at the time. She observed him leave the house from
time to time but didn't know where he went. She worked five or
six days per week, and when she came home the defendant was
often sleeping, hidden in the back room on the first floor, or
not home. She acknowledged that the defendant had tattoo
equipment at the house, and that she saw him "do a couple of
tattoos." She also testified that he was typically paid in cash
by friends for giving them tattoos. In the whole time she dated
the defendant, she could recall approximately six times that he
said he was going to do work at a tattoo parlor. She did not
know whether his tattoo equipment included the pressure cooker
or autoclave found in the house.
The defendant was charged with unlawful cultivation of
marijuana and possession of marijuana with intent to distribute.
8
Prior to trial, he moved to dismiss the complaint, arguing that
there was no probable cause to believe he had committed the
crimes charged. The motion was denied. The defendant then
moved to suppress his statements to police and the evidence
seized, arguing that he did not give police permission to enter
his house in the first instance, and that there was no probable
cause to believe that he had committed the crimes charged. The
motion to suppress also was denied. After a jury trial, the
defendant was convicted on both counts. The defendant appealed,
and we granted his application for direct appellate review.
2. Discussion. General Laws c. 94C, § 32C (a), provides:
"Any person who knowingly or intentionally
manufactures, distributes, dispenses or cultivates, or
possesses with intent to manufacture, distribute, dispense
or cultivate a controlled substance in Class D of [§ 31]
shall be imprisoned in a jail or house of correction for
not more than two years or by a fine or not less than
[$500] nor more than [$5,000], or both such fine and
imprisonment."
The applicability of this section was altered by the
legalization of medical marijuana in Massachusetts.
The Commonwealth's medical marijuana scheme, St. 2012,
c. 369 (act), was passed by ballot initiative in 2012.7 It
provides in part:
7 Upon the execution of the transfer agreement between the
department and the Cannabis Control Commission, or on December
31, 2018, whichever occurs first, St. 2012, c. 369, will be
codified as G. L. c. 94I. See St. 2017, c. 55, §§ 44, 82.
9
"A qualifying patient or a personal caregiver shall
not be subject to arrest or prosecution, or civil penalty,
for the medical use of marijuana provided he or she:
"(a) Possesses no more marijuana than is necessary for
the patient's personal, medical use, not exceeding the
amount necessary for a sixty-day supply; and
"(b) Presents his or her registration card to any law
enforcement official who questions the patient or caregiver
regarding use of marijuana."
St. 2012, c. 369, § 4. However, "[n]othing in [the act]
supersedes Massachusetts law prohibiting the possession,
cultivation, transport, distribution, or sale of marijuana for
nonmedical purposes." St. 2012, c. 369, § 7 (E). The act went
into effect on January 1, 2013, and corresponding regulations
became effective May 24, 2013. St. 2012, c. 369, § 16.
Under the act, qualifying patients may use marijuana for
medicinal purposes, within certain parameters. "[T]he principal
source of medical marijuana is intended to be the nonprofit
medical marijuana treatment centers, or dispensaries, that are
to be registered by [the Department of Public Health]"
(department). Commonwealth v. Canning, 471 Mass. 341, 345-346
(2015). However, the act permits qualifying patients to obtain
a "hardship cultivation registration" in certain limited
circumstances.8 St. 2012, c. 369, § 11.
8 A recreational marijuana scheme, St. 2016, c. 334, was
later passed by ballot initiative in 2016. Effective December
15, 2016, an individual may grow up to six marijuana plants, so
10
Patients may qualify for a hardship cultivation
registration if their access to a dispensary is "limited by
verified financial hardship, a physical incapacity to access
reasonable transportation, or the lack of a treatment center
within a reasonable distance of the patient's residence." St.
2012, c. 369, § 11. A hardship cultivation registration allows
the qualifying patient or the patient's personal caregiver to
"cultivate a limited number of plants, sufficient to maintain a
[sixty]-day supply of marijuana." Id. A "sixty-day supply" is
defined by regulation as presumptively ten ounces, unless a
physician certifies that a larger quantity is necessary to
provide the patient with a sixty-day supply. See 105 Code Mass.
Regs. §§ 725.004, 725.010(I) (2017).
The hardship cultivation registration was envisioned as "an
approach of last resort." Memorandum from DPH Medical Marijuana
Work Group to Interim Commissioner of Department of Public
Health and Members of Public Health Council, Informational
Briefing on Proposed Regulations at 105 CMR 725.000, at 6 (Apr.
10, 2013). Recognizing the possible "diversion and security
complications" that accompany home cultivation, the department
promulgated medical marijuana regulations with an intent to
"minimize hardship cultivation by optimizing access through a
long as no more than twelve plants are grown per household. See
G. L. c. 94G, § 7 (a) (2); St. 2016, c. 334, § 12.
11
variety of [other] approaches." Id. at 8. However, at the time
of the defendant's arrest, there were no medical marijuana
dispensaries open in Massachusetts, and the department had not
yet begun to process hardship cultivation registration
applications. See Canning, 471 Mass. at 347-348 & n.10. Thus,
as a qualifying medical marijuana patient, the defendant was
permitted to pursue home cultivation under the act. See id. at
349 ("when the search at issue here took place, the act was not
fully implemented; no marijuana treatment centers were
operating; and therefore, . . . every person who was certified
as a qualifying patient . . . was authorized to cultivate a
sufficient quantity of marijuana to produce a sixty-day supply"
[emphasis in original]). Accordingly, the defendant was
protected from prosecution for cultivating marijuana for his
personal, medical use, provided he did not possess marijuana in
excess of the amount necessary for a sixty-day supply. See St.
2012, c. 369, § 4.
a. Probable cause. The defendant argues that the motion
to dismiss and the motion to suppress were each improperly
denied. On appeal, he provides the same rationale in support of
both contentions -- that there was insufficient probable cause.
i. Motion to suppress. In determining whether the motion
to suppress was properly denied, we are limited to examining the
four corners of the search warrant affidavit. Canning, 471
12
Mass. at 348. We must decide whether "the magistrate had a
substantial basis to conclude that a crime had been committed, .
. . and that the items described in the warrant were related to
the criminal activity and probably in the place to be searched."
Id., quoting Commonwealth v. O’Day, 440 Mass. 296, 297-298
(2003).
A search warrant affidavit that merely sets out facts
establishing probable cause to believe a homeowner is growing
marijuana on the property to be searched, without more, does not
establish probable cause to believe a crime has been committed.
Canning, 471 Mass. at 352-353.9 Where the target of the warrant
has a valid hardship cultivation registration, facts indicating
that the person is selling the marijuana or that "in the opinion
of a properly qualified affiant, the number of plants exceeded
the quantity necessary to grow a sixty-day supply of ten ounces"
can supply probable cause. Id. at 352 n.15. The search warrant
at issue here established both.
The affidavit that Detective Lewis submitted in support of
the search warrant stated explicitly that based on the number of
9 Our opinion in Canning goes on to say that facts
indicating that the person does not have a valid hardship
cultivation registration can supply probable cause. Canning,
471 Mass. at 352. We note, however, that Canning was decided
before recreational marijuana was legalized, which permits
individuals to grow a limited number of marijuana plants without
a hardship cultivation registration. See G. L. c. 94G,
§ 7 (a) (2). See also note 8, supra.
13
plants found, the conditions under which they were growing, and
his own experience with the narcotics unit, he believed that the
"marijuana grow" was in excess of the amount necessary for
personal medical use. Moreover, the affidavit indicated that a
suspected "psilocybin mushroom grow" was found in the house; the
defendant's long-term girl friend did not know why he was
growing marijuana given that he did not smoke marijuana on a
regular basis; and the defendant had said that two men came
directly into his basement, the exact location of his marijuana
grow, and that one had brandished a gun. This was sufficient to
establish probable cause.10
10However, we note that the affiant's assertion that "by
and large it is not worth it for users to invest the necessary
time and money to create a successful marijuana grow when they
can simply buy marijuana from somebody else," is not itself a
proper basis for establishing probable cause. The act
contemplates that users with valid hardship cultivation
registrations will cultivate marijuana. It would defeat the
public's purpose in voting for the medical marijuana scheme to
treat evidence consistent with lawful cultivation as evidence of
unlawful cultivation or intent to distribute. Cf. Canning, 471
Mass. at 352 ("The act's medical marijuana program is structured
as a licensing or registration system, and expressly
contemplates the lawful possession, cultivation, and
distribution of marijuana for medical purposes by a number of
different individuals [and certain nonprofit entities], as long
as they are registered to do so. In light of the statutory and
regulatory framework created by the act, a search warrant
affidavit setting out facts that simply establish probable cause
to believe the owner is growing marijuana on the property in
question, without more, is insufficient to establish probable
cause to believe that the suspected cultivation is a crime");
Commonwealth v. Humberto H., 466 Mass. 562, 570 (2013) ("Where
[intent to distribute] is not [supported by probable cause],
14
The defendant argues that the police were required to
investigate how much marijuana constituted a sixty-day supply
under his registration, because "[n]either the statute nor the
[regulations] provide[s] a presumptive limit on how much
marijuana a person may legally prescribe." The defendant
misstates the law. Although there is no absolute limit on how
much medical marijuana can be prescribed, the presumptive limit
is indeed ten ounces in a sixty-day period. See note 14, infra.
Accordingly, there was sufficient probable cause for the search
warrant.
ii. Motion to dismiss. A motion to dismiss for lack of
probable cause is evaluated from the four corners of the
application for a complaint. See Commonwealth v. DiBennadetto,
436 Mass. 310, 313 (2002); Commonwealth v. Bell, 83 Mass. App.
Ct. 61, 62 (2013). Here, the application included police
reports from Sergeant Esposito and Detective Lewis, which laid
out substantially the same factual basis as the search warrant
affidavit. Accordingly, for the reasons explained above, the
motion to dismiss also was properly denied.
criminal prosecution defeats the public's purpose in voting for
decriminalization because it not only treats simple possession
of one ounce or less of marijuana as if it were 'a serious
infraction worthy of criminal sanction,' . . . but it also
treats a drug user as a drug dealer" [citation omitted]).
15
b. Jury instructions. The defendant argues for the first
time on appeal that the jury instructions were in error.
Because he did not object to the instructions at trial, we
review for a substantial risk of a miscarriage of justice. See
Commonwealth v. St. Louis, 473 Mass. 350, 359 (2015).
i. Instruction on possession with intent to distribute.
The judge explained that the Commonwealth was required to prove
beyond a reasonable doubt that (1) the substance in question was
a class D substance; (2) the defendant possessed some
perceptible amount of that substance with the intent to
distribute it to another person; and (3) the defendant did so
knowingly or intentionally. See G. L. c. 94C, § 32C;
Instruction 7.800 of the Criminal Model Jury Instructions for
Use in the District Court (2009). The defendant argues that
possession with intent to distribute requires possession of
usable marijuana,11 not simply marijuana, and that the judge
erred in failing to make this distinction. The defendant is
incorrect.
General laws c. 94C, § 32C, prohibits possessing a class D
substance with intent to distribute. "Marihuana" is listed as a
11Usable marijuana is defined by regulation as "the fresh
or dried leaves and flowers of the female marijuana plant and
any mixture or preparation thereof, including [marijuana-infused
products], but does not include the seedlings, seeds, stalks, or
roots of the plant, or [marijuana waste product]." 105 Code
Mass. Regs. § 725.004 (2017).
16
class D substance, and is defined to include "all parts of the
plant [c]annabis sativa L., whether growing or not." See G. L.
c. 94C, §§ 1, 31. The medical marijuana act adopted the meaning
of "marihuana" as defined in G. L. c. 94C, § 1. See St. 2012,
c. 369, § 2 (G). Although the medical marijuana regulations
contain a definition for "usable marijuana," the term is only
used to explain certain regulatory requirements and in no way
alters the meaning of "marihuana" under G. L. c. 94C, § 1.
Accordingly, the judge did not err in instructing the jury that
the defendant need only possess marijuana, not usable marijuana,
for the purposes of possession with intent to distribute.
The defendant also argues that the instructions were
improper for failing to clarify what evidence the jury may
consider where the defendant has a valid home cultivation
registration. The judge instructed:
"Among the factors you may consider in [evaluating intent to
distribute] are how large a quantity of drugs were possessed,
how pure in quality the drugs were, what the street value of
the drugs were, what the defendant's financial resources were,
how the drugs were packaged, whether there were other items
that were found along with the drugs which might suggest drug
sales, such as cutting agents or packaging materials, scale[s]
or large amounts of cash."
This instruction is primarily derived from our case law prior to
the enactment of the medical marijuana scheme. See, e.g.,
Commonwealth v. Clermy, 421 Mass. 325, 331 (1995) (packaging of
drugs in many small packets and possession of telephone pager);
17
Commonwealth v. Scala, 380 Mass. 500, 511 (1980) (quantity
possessed); Commonwealth v. Sendele, 18 Mass. App. Ct. 755, 758-
759 (1984) (quantity, purity, packaging, and amount of cash
possessed).
Here, the defendant asserts that the judge was required to
include an instruction clarifying that lawful home cultivation
of medical marijuana requires adhering to "industry best
practices," pursuant to 105 Code Mass. Regs. § 725.035(I)
(2017). The defendant argues that because the jury were unaware
of the best practices requirement, and because the Commonwealth
relied heavily on testimony about his equipment, the jury may
have improperly discerned an intent to distribute from his
lawful use of grow equipment contemplated by the regulatory
scheme. Although the regulations do not define the "industry
best practices" to which patients must adhere, elsewhere in the
regulations medical marijuana dispensaries are required to "use
best practices to limit contamination, including but not limited
to mold, fungus, bacterial diseases, rot, pests, pesticides not
approved by the [d]epartment, mildew, and any other contaminant
identified as posing potential harm." 105 Code Mass. Regs.
§ 725.105(B)(1)(f) (2017). As indicated by the expert testimony
at trial, to limit contamination, growers use particularized
equipment, such as high efficiency particulate air filters,
ozone generators, and hydrometers.
18
"An error creates a substantial risk of a miscarriage of
justice unless we are persuaded that it did not 'materially
influence[]' the guilty verdict" (citation omitted).
Commonwealth v. Alphas, 430 Mass. 8, 13 (1999). "In applying
this standard, we analyze the potential impact of the error on
the verdict, . . . and review the record to determine the
strength of the Commonwealth's case, absent the improper
evidence" (citations omitted). Commonwealth v. Horne, 476 Mass.
222, 228 (2017).
Although we agree that juries should be informed of the
"industry best practices" requirement when such an instruction
is requested,12 here we cannot conclude that its absence
materially influenced the verdict on possession with intent to
distribute. Sophisticated grow equipment designed to increase
the yield of usable marijuana, in combination with a large
number of plants, may properly be considered when evaluating
12In cases involving a defendant with a valid hardship
cultivation registration, the jury should be instructed that the
medical marijuana regulations require medical marijuana patients
and caregivers to adhere to industry best practices in the
cultivation of marijuana plants and storage of usable marijuana.
105 Code Mass. Regs. § 725.035(I) (2017). "Industry best
practices" is not defined in the regulation, but may be
understood as those industry practices commonly used to limit
contamination. See 105 Code Mass. Regs. § 725.105(B)(1)(f)
(2017). A patient or caregiver's use of industry best practices
is not evidence of criminal intent.
19
intent to distribute.13 The testimony at trial indicated that
the actual equipment and methods used for the defendant's grow
operation were primarily associated with increasing yield.
However, there was no testimony indicating that such equipment
was associated with limiting contamination. To the contrary,
the expert testimony indicated that the defendant lacked
equipment necessary to limit contamination. More importantly,
in addition to the grow equipment, the jury also heard evidence
of an armed home invasion, a large amount of cash, numerous
plastic baggies, a digital pocket scale, and the defendant's
sparing drug use. Under these circumstances, the failure to
give a best practices instruction, even if in error, did not
create a substantial risk of a miscarriage of justice.
ii. Unlawful cultivation instruction. The model jury
instruction for unlawful cultivation, and the one given in this
case, albeit with supplementation, is that unlawful cultivation
consists of three elements: (1) the substance in question was a
class D substance; (2) the defendant cultivated some perceptible
amount of that substance; and (3) the defendant did so knowingly
13We recognize that there may be overlap between equipment
designed to increase yield and equipment designed to limit
contamination. If fewer plants succumb to contamination, the
total crop yield of usable marijuana will presumably be higher.
However, we discern a distinction between equipment whose
primary purpose is to limit contamination, and equipment whose
primary purpose is to increase yield, irrespective of
contamination.
20
or intentionally. See G. L. c. 94C, § 32C; Instruction 7.800 of
the Criminal Model Jury Instructions for Use in the District
Court.
Under this definition, any medical marijuana patient who
cultivates his or her own supply of medical marijuana, a class D
substance, pursuant to a hardship cultivation registration would
be guilty of unlawful cultivation. However, "[u]nder the
[medical marijuana] act, cultivation of marijuana is expressly
permitted if a person . . . is properly registered to do so, and
the cultivation does not exceed the amount necessary to yield a
sixty-day supply of medical marijuana" for the patient's
personal, medical use. Canning, 471 Mass. at 349; St. 2012,
c. 369, §§ 4, 7.
The act creates two theories of unlawful cultivation of
medical marijuana where the defendant produces evidence of a
valid hardship cultivation registration: (1) unlawful
cultivation of more than a sixty-day supply, and (2) unlawful
cultivation for nonpersonal use. See St. 2012, c. 369, § 4.
Under a theory of unlawful cultivation of more than a sixty-day
supply, the jury must be instructed as to the three elements of
unlawful cultivation mentioned above, as well as two additional
elements: (a) the defendant cultivated more than the amount
necessary to provide a sixty-day supply of medical marijuana to
the patient; and (b) the defendant did so intentionally. See
21
Canning, 471 Mass. at 349; St. 2012, c. 369, § 4. It is not
enough that the plants happen to yield more than ten ounces in a
sixty-day period; the medical marijuana regulations contemplate
a patient's ability to return excess marijuana to a medical
dispensary. See 105 Code Mass. Regs. § 725.105(J)(4) (2017).
Rather, the Commonwealth must show that the defendant was
intentionally cultivating more than the amount necessary to
provide ten ounces of usable marijuana in a sixty-day period.14
By contrast, under a theory of unlawful cultivation for
nonpersonal use, the jury must instead be instructed as to the
following additional element: the defendant cultivated
marijuana with the intent to distribute.15 See St. 2012, c. 369,
§§ 4, 7 (E).16
14The regulations contemplate that a sixty-day supply may
exceed ten ounces for a particular patient. St. 2012, c. 369,
§ 8; 105 Code Mass. Regs. § 725.010(I) (2017). In such
instances, the certifying physician must "document the amount
[that constitutes a sixty-day supply] and the rationale in the
medical record and in the written certification." 105 Code
Mass. Regs. § 725.010(I). For defendants who produce evidence
establishing that they were validly permitted to grow more than
ten ounces every sixty days, the Commonwealth must prove that
they intended to cultivate more than their registration
permitted them to grow in a sixty-day period.
15The regulations permit home cultivation by a personal
caregiver on behalf of the patient the caregiver serves. See
105 Code Mass. Regs. § 725.020(E) (2017). In cases where a
personal caregiver is being tried for unlawful cultivation for
nonpersonal use, the relevant inquiry is whether the defendant
cultivated marijuana with the intent to distribute it to someone
other than the patient for whom the defendant served as a
22
To determine whether the unlawful cultivation instruction
was erroneous such that it created a substantial risk of a
miscarriage of justice, we must examine the jury instructions as
a whole. See Commonwealth v. Shea, 467 Mass. 788, 796 (2014).
"Isolated misstatements included in a comprehensive charge to
the jury do not constitute reversible error when there is little
likelihood that the jury would have misunderstood the correct
import of the entire charge." Commonwealth v. Rogers, 459 Mass.
249, 262, cert. denied, 565 U.S. 1080 (2011).
Although the judge did not use the language set out above,
he told the jury that the defendant had a valid hardship
cultivation registration and that it was the Commonwealth's
burden to prove the defendant "had so many marijuana plants that
the plant yield was certain to exceed [ten] ounces of usable
marijuana every [sixty] days or that he intended to sell or
distribute any of his usable marijuana." This instruction
failed to explain that the Commonwealth must show that the
defendant was intentionally cultivating more than ten ounces of
usable marijuana in a sixty-day period. Without such a
directive, the judge's instructions could have led the jury to
personal caregiver. See St. 2012, c. 369, § 4 (personal
caregivers included in provision protecting personal, medical
use from prosecution).
16 Model jury instructions for unlawful cultivation of
marijuana is set forth in the Appendix.
23
convict the defendant even if he was unintentionally cultivating
more plants than were necessary to yield ten ounces in sixty
days. Thus, the jury instructions on unlawful cultivation were
erroneous.
We conclude that this error created a substantial risk of a
miscarriage of justice.17 As will be explained in more detail in
our discussion of the sufficiency of the evidence, there was
limited expert testimony about how much the defendant's plants
would yield. The jury were also tasked with determining whether
the defendant was a novice or an experienced grower as the two
experts had contradictory testimony on this point. In these
circumstances, whether the defendant was intentionally
cultivating more than ten ounces was a difficult jury question.
We are not persuaded that the absence of this jury instruction
17 At oral argument, the Commonwealth insisted that even if
the jury instructions for unlawful cultivation were erroneous,
the defendant's conviction should be upheld under a theory of
unlawful cultivation for nonpersonal use. The Commonwealth
reasoned that because the jury found the defendant guilty of
possession with intent to distribute, he would be guilty of
unlawful cultivation irrespective of whether he grew more than a
sixty-day supply. Without better briefing on the subtle
distinction between unlawful cultivation for nonpersonal use and
possession with intent to distribute in these circumstances, we
decline to consider this theory where it is first raised at oral
argument. See Commonwealth v. Palmer, 464 Mass. 773, 777
(2013); Commonwealth v. Keefner, 461 Mass. 507, 511 (2012);
Warner–Lambert Co. v. Execuquest Corp., 427 Mass. 46, 50 n.7
(1998); Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921(1975).
24
did not materially influence the outcome. See Alphas, 430 Mass.
at 13.18
c. Sufficiency of the evidence. Next, the defendant
argues that the evidence was insufficient as to both unlawful
cultivation and possession with intent to distribute. In
reviewing the sufficiency of the evidence, we must determine
whether, viewing the evidence in the light most favorable to the
Commonwealth, any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt. Commonwealth v.
Latimore, 378 Mass. 671, 677-678 (1979). "Under this standard
of review, we resolve issues of witness credibility in favor of
the Commonwealth. . . . In determining whether a reasonable
jury could find each element of the crime charged, we also do
not weigh the supporting evidence against conflicting evidence"
(citation omitted). Commonwealth v. Brown, 477 Mass. 805, 812
(2017).
18The defendant also argues that his trial counsel was
ineffective for helping to write the jury instructions he
contends are erroneous. We need not address the defendant's
claim of ineffective assistance as to the unlawful cultivation
conviction, as we have already determined that the instruction
was erroneous and created a substantial risk of a miscarriage of
justice. However, for essentially the same reasons that led us
to conclude that the jury instructions on possession with intent
to distribute did not create a substantial risk of a miscarriage
of justice, we also conclude that those instructions did not
prejudice the defendant. See Commonwealth v. Peters, 429 Mass.
22, 31 n.12 (1999). The only error in those instructions
related to best practices, an issue of marginal relevance in the
instant case.
25
i. Evidence of yield in excess of sixty-day supply. As
discussed, the jury were not properly instructed as to the
standard for evaluating whether a defendant exceeded the home
cultivation limit. We also conclude that the evidence was
insufficient to support such a finding.
As the Commonwealth's expert testified, an individual
marijuana plant's yield depends on a number of factors,
including the strain, growing conditions, fertilization,
watering, temperature, ventilation, amount of light, location,
and humidity. Yet the Commonwealth's expert never personally
observed the defendant's marijuana grow. His testimony was
instead based on reading the police report, search warrant
affidavit, and transcript of prior testimony, and on viewing a
single photograph of the defendant's marijuana plants. Much of
the ambiguity in the expert testimony in this case arose out of
the dependence of both experts on this single photograph.
The jury heard testimony from both experts that the
defendant's plant yield would depend particularly on the gender
of the plants grown. Although female plants produce usable
marijuana, male plants do not. Moreover, male plants produce a
pollen that will "stress the female plants out and take away the
[tetrahydrocannabinol] factor, if not completely ruin the
26
crop."19 When asked about the gender of the defendant's
marijuana plants, the Commonwealth's expert initially testified
that the plants "would definitely be female." However, when
later asked whether he could specifically identify the gender of
the plants found in the defendant's basement, he said "it would
be tough to identify" the smaller plants based on the
photograph. He said that, from the photograph, the bigger
plants "look female and [he] would be shocked to see if any of
them were male." He reasoned that "you would never have a male
plant with a female plant under any circumstances." When asked
about an inexperienced grower who might cluster male and female
plants together, he opined that such a grower "would never have
. . . a gram to smoke if that were the case."
The defense expert's testimony did not resolve the
ambiguity. He testified that generally fifty per cent of
marijuana seeds develop into female plants, but that the gender
ratio can vary by up to fifteen per cent. For example, a cold
floor could yield a sixty-five per cent male plant population.20
19Tetrahydrocannabinol is the active ingredient in
marijuana that would make the marijuana usable for the treatment
of the defendant's medical condition.
20The testimony also was unclear on whether the defendant
was using seeds to grow his plants or if he was cloning them.
Had the defendant cloned his plants, they may have been only
female, but the testimony was ambiguous on this point.
27
Perhaps unsurprisingly, the most definitive statement the
Commonwealth could provide as to projected yield was that in a
"hypothetical situation" with twenty-two marijuana plants in a
basement grow operation with four lights and the setup found in
the defendant's house, the plants "would yield over [ten] ounces
of marijuana, under the proper conditions." Even construing the
evidence in the light most favorable to the Commonwealth, the
testimony as to the defendant's yield, based primarily on a
single photograph of his plants, is too speculative for a
rational fact finder to conclude beyond a reasonable doubt that
the defendant intended to cultivate more than ten ounces of
usable marijuana in a sixty-day period.
ii. Evidence of intent to distribute. We next examine
whether there was sufficient evidence of the defendant's intent
to distribute. "A person's . . . intent . . . is a matter of
fact, which may not be susceptible of proof by direct evidence."
Commonwealth v. Ellis, 356 Mass. 574, 578-579 (1970), quoting
Commonwealth v. Holiday, 349 Mass. 126, 128 (1965). However,
distinguishing between drug possession for personal use and drug
possession for distribution "is not a matter within the common
experience of jurors," and is made all the more difficult by the
legalization of medical, and now recreational, marijuana.
Commonwealth v. Little, 453 Mass. 766, 769 (2009), quoting
Commonwealth v. Grissett, 66 Mass. App. Ct. 454, 457 (2006).
28
Typically, "[i]ntent to distribute a drug may be inferred
from possession of large quantities of that drug." Commonwealth
v. Rugaber, 369 Mass. 765, 770 (1976). However, the legal limit
on home cultivation, and uncertainties as to its determination
complicate this inference. The defendant had twenty-two plants.
Unfortunately, the regulations do not contain a plant-based
limit for home cultivation. Moreover, even in the light most
favorable to the Commonwealth, the testimony regarding the
number of ounces the defendant's plants would actually yield was
contradictory and speculative, as discussed above. The
Commonwealth's expert testified, however, that twenty-two plants
growing in a setup like the one found in the defendant's house
could yield over ten ounces under the right conditions.
Although not of much use by itself in determining whether the
marijuana grow was for personal use or distribution, this
testimony could properly be considered along with other evidence
relevant to the issue of intent to distribute. As discussed,
use of grow equipment designed to increase the yield of usable
marijuana, in combination with a large number of plants, can
properly be considered when evaluating intent to distribute.
Traditionally, drug possession in the absence of drug
paraphernalia also is probative of intent. See Commonwealth v.
Wilson, 441 Mass. 390, 401-402 (2004). In the context of
medical marijuana, this evidence must be analyzed carefully to
29
avoid conflating lawful activity with unlawful activity. Cf.
Canning, 471 Mass. at 352. The Commonwealth's expert testified
that marijuana users "commonly use rolling papers . . . or pipes
[or] bongs," but, in reviewing the evidence, he did not see any
indication that the defendant possessed these items.21 More
specifically probative is the former girl friend's testimony
that she did not know the defendant to be a regular marijuana
user, and had only seen him use marijuana "a couple times."
Although there was limited testimony as to whether the defendant
could have cultivated any usable marijuana from his plants by
the time of his arrest, his former girl friend's testimony
establishes that he had some supply of marijuana, but rarely
used it, despite his medical conditions. Thus, her testimony
supports a reasonable inference that the defendant did not
cultivate the marijuana for personal use.
Numerous plastic bags and a digital pocket scale22 were also
located in the defendant's house, but outside of the kitchen,
where such bags and scale would more ordinarily be found. The
21We note that not all medical marijuana users smoke the
marijuana they consume. In fact, the Commonwealth's expert
stated on direct examination that, "we're beginning to see more
edible forms" of marijuana, as well as vaporizing.
22Although neither Esposito nor Lewis testified that the
scale was a digital pocket scale, this fact came out on cross-
examination of the Commonwealth's expert.
30
plastic bags were, however, found on a separate floor from the
marijuana grow, and no evidence was presented connecting them to
the marijuana plants, making this evidence of marginal value.
Contrast Commonwealth v. Clark, 446 Mass. 620, 624 (2006)
(uniform packaging is evidence of intent to distribute);
Commonwealth v. Montanez, 410 Mass. 290, 305-306 (1991) (cutting
powder and drugs packaged in paper folders); Commonwealth v.
LaPerle, 19 Mass. App. Ct. 424, 427-428 (1985) (cutting powder,
wrapping paper, and scale with cocaine residue on pan).
Although there is similarly no evidence connecting the scale to
the marijuana grow, the Commonwealth's expert testified that
drug dealers often possess such types of scales.23
More significant than the bags and scale are the initial
home invasion and the large sum of money found in the
defendant's pocket when he was arrested. His former girl friend
testified that he was unemployed, and that she had seen him do
very few tattoos in the span of their relationship. Thus,
finding $2,135 on his person at the time of his arrest supported
an inference of intent to distribute. See Sendele, 18 Mass.
App. Ct. at 758-759 ("Very indicative is the large miscellany of
money carried in specie by the defendant, who was otherwise
23We also recognize that medical marijuana patients may
need use of a scale to weigh the marijuana they grow, so as to
ensure they do not exceed ten ounces. However, no testimony to
that effect was admitted at trial.
31
confessedly without any resources and unemployed to boot").
Contrast Commonwealth v. Sepheus, 468 Mass. 160, 166 (2014)
(intent to distribute could not be drawn from defendant carrying
$312, where "[t]here was no evidence that the defendant was
unemployed and thus unlikely legitimately to have that amount of
cash"). Moreover, the defendant told police that two men, one
brandishing a gun, came down into his basement, the very area
where he was growing his marijuana. In combination with the
Commonwealth's expert testimony that violence and theft are
often associated with drug dealing, the defendant's account of
the home invasion supports an inference that others had
knowledge that he was a drug dealer, and intended to rob him.
Taken together, the home invasion, large amount of cash
found on the defendant, digital pocket scale, number of plants,
and testimony that the defendant sparingly used marijuana were
sufficient for a rational juror to find him guilty of possession
with intent to distribute beyond a reasonable doubt.
d. Constitutionality. Finally, the defendant asserts that
the sixty-day supply limit established by the medical marijuana
laws and corresponding regulations is unconstitutionally vague
as applied. Because we conclude that the erroneous jury
instructions for unlawful cultivation created a substantial risk
of a miscarriage of justice, and there was insufficient evidence
of intentional cultivation of more than a sixty-day supply,
32
precluding retrial as to unlawful cultivation, we need not
address this argument. However, we note that of the fifteen
States that currently permit home cultivation as part of their
medical marijuana scheme, Massachusetts is the only State that
defines its limit solely in terms of supply per period. All
other such States use plant-based limits.24 The only other State
to create a home cultivation limit based on supply period,
Washington, changed to a plant-based limit after widespread
criticism that the prior rule created uncertainty. See State
Rule Clarifies 60-Day Supply of Medical Marijuana, Seattle
Times, Oct. 3, 2008. Moreover, even Massachusetts's own
recreational marijuana scheme has a plant-based limit. G. L.
24See Colo. Const. art. XVIII, § 14(4)(a)(II) (six-plant
limit, with no more than three mature, flowering plants
producing usable marijuana). See also Alaska Stat. §
17.37.040(a)(4) (six-plant limit, with no more than three
mature, flowering plants producing usable marijuana); Ariz. Rev.
Stat. Ann. § 36-2801(a)(ii) (twelve-plant limit); Cal. Health &
Safety Code § 11362.77(a), (b) (limit of six mature or twelve
immature plants, although patient may grow more with doctor's
recommendation); Haw. Rev. Stat. § 329-121 (ten-plant limit);
Me. Rev. Stat. tit. 22, § 2423-A(1)(B) (limit of six mature
plants); Mich. Comp. Laws § 333.26424(a) (twelve-plant limit);
Mont. Code Ann. § 50-46-319(1)(b)(i) (limit of four mature
plants and four seedlings); Nev. Rev. Stat. § 453A.200(3)(b)
(twelve-plant limit); Or. Rev. Stat. § 475B.831(1)(a) (limit of
six mature plants and twelve immature plants); R.I. Gen. Laws
§ 21-28.6-4(a) (limit of twelve mature plants); Vt. Stat. Ann.
§ 4472(14) (limit of two mature plants and seven immature
plants); Wash. Rev. Code § 69.51A.210(1) (six plant limit).
Finally, see N.M. Code R. § 7.34.4.8(A)(1) (limit of four mature
plants and twelve seedlings).
33
c. 94G, § 7 (a) (2) (individuals limited to six plants,
households limited to twelve plants).
As is evident from the expert testimony at trial, the
amount of usable marijuana yielded by a plant depends on a large
number of variables, including the skill of the grower. The
ten-ounce rule provides some additional flexibility for patients
who may be inept growers, unable to yield much even from a large
number of plants but, by the same token, it makes enforcement of
the cultivation limit all the more difficult. Although the law
may not be vague in many cases, such as when a defendant grows
an acre of marijuana, without a plant-based limit, start-up home
cultivation operations like this one may pose a vagueness
problem. Although we need not resolve this issue in the instant
case, we emphasize that statutory and regulatory clarification
would be most beneficial in this regard.
3. Conclusion. The conviction of possession of marijuana
with intent to distribute is affirmed. The conviction of
unlawful cultivation marijuana is reversed.
So ordered.
Appendix.
Model Jury Instruction Regarding Unlawful Cultivation with
Medical Marijuana Hardship Cultivation Registration:
Sixty-Day Supply
Under Massachusetts's medical marijuana act, cultivation of
medical marijuana is expressly permitted if a person is properly
registered to do so, and the cultivation does not exceed a
certain amount. Here, the defendant had a valid hardship
cultivation registration allowing him or her to cultivate up to
ten ounces of marijuana every sixty days. It is the
Commonwealth's burden to prove beyond a reasonable doubt that
the defendant was cultivating more marijuana than was permitted
by his or her hardship cultivation registration. If the
Commonwealth fails to prove beyond a reasonable doubt that the
defendant was cultivating more marijuana than was permitted by
his or her hardship cultivation registration, then you must find
the defendant not guilty.
In order to prove the defendant guilty of this offense, the
Commonwealth must prove four elements beyond a reasonable doubt:
First: That the substance in question is marijuana;
Second: That the defendant knowingly cultivated the
substance;
Third: That the defendant cultivated more than the amount
necessary to provide a sixty-day supply of usable marijuana to
the patient; and
Fourth: That the defendant intended to cultivate more than
the amount necessary to provide a sixty-day supply of usable
marijuana to the patient.
As to the first element, the Commonwealth is required to
prove that the substance in question is in fact marijuana.
Marijuana is defined to include all parts of the plant cannabis
sativa L., whether growing or not; the seeds thereof; and resin
extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the
plant, its seeds, or resin. It does not include the mature
stalks of the plant, industrial hemp, fiber produced from the
stalks, oil, or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation
2
of the mature stalks, except the resin extracted therefrom,
fiber, oil, or cake or the sterilized seed of the plant which is
incapable of germination.1 You may consider all the relevant
evidence in the case, including the testimony of any witness who
may have testified either to support or to dispute the
allegation that the substance in question was marijuana.
As to the second element, the term "cultivate" means to
grow a plant or crop, namely marijuana.
As to the third element, you must determine whether or not
the defendant was cultivating more than a medical supply of
marijuana. Under the medical marijuana act, an individual is
permitted to produce a sixty-day supply of medical marijuana. A
"sixty-day supply" is presumptively ten ounces of usable
marijuana. Usable marijuana is defined as "the fresh or dried
leaves and flowers of the female marijuana plant and any mixture
or preparation thereof, including marijuana-infused products,
but does not include the seedlings, seeds, stalks, or roots of
the plant." A sixty-day supply may be greater than ten ounces,
if the defendant's certifying physician has documented (1) the
greater amount that constitutes a sixty-day supply and (2) the
rationale for the defendant's sixty-day supply exceeding ten
ounces. This documentation must be in the defendant's medical
record and in the defendant's written certification.
In determining whether the defendant was cultivating more
than necessary to produce ten ounces of usable marijuana in a
sixty-day period, you may consider the number of plants being
cultivated, the defendant's skill at cultivation, and the
conditions under which the plants were growing.
As to the fourth element, the Commonwealth must prove that
the defendant not only cultivated more than necessary for a
sixty-day supply, but that the defendant intended to cultivate
more than necessary for a sixty-day supply. You may find that
the defendant acted intentionally if he or she did so
consciously, voluntarily, and purposely, and not because of
ignorance, mistake, or accident. It is not enough that the
defendant's marijuana plants happen to be capable of yielding
more than ten ounces in a sixty-day period. The Commonwealth
must prove that the defendant intended to cultivate more than
ten ounces of usable marijuana in a sixty-day period.
1 Please note that this is the amended definition of
"marihuana" in G. L. c. 94C, § 1, effective July 28, 2017.
3
Model Jury Instruction Regarding Unlawful Cultivation with
Medical Marijuana Hardship Cultivation Registration:
Nonpersonal Use
Under Massachusetts's medical marijuana act, cultivation of
medical marijuana is expressly permitted if a person is properly
registered to do so, and the cultivation is for the patient's
personal use. Here, the defendant had a valid hardship
cultivation registration allowing him or her to cultivate
marijuana for personal medical use. It is the Commonwealth's
burden to prove beyond a reasonable doubt that the defendant
cultivated marijuana in violation of his or her hardship
cultivation registration by cultivating marijuana with the
intent to distribute rather than solely for his or her personal
use. If the Commonwealth fails to prove beyond a reasonable
doubt that the defendant was cultivating marijuana with the
intent to distribute, then you must find the defendant not
guilty.
In order to prove the defendant guilty of this offense, the
Commonwealth must prove three elements beyond a reasonable
doubt:
First: That the substance in question is marijuana;
Second: That the defendant knowingly cultivated the
substance; and
Third: That the defendant cultivated the substance with
the intent to distribute.
As to the first element, the Commonwealth is required to
prove that the substance in question is in fact marijuana.
Marijuana is defined to include all parts of the plant cannabis
sativa L., whether growing or not; the seeds thereof; and resin
extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the
plant, its seeds, or resin. It does not include the mature
stalks of the plant, industrial hemp, fiber produced from the
stalks, oil, or cake made from the seeds of the plant, any other
compound, manufacture, salt, derivative, mixture, or preparation
of the mature stalks, except the resin extracted therefrom,
fiber, oil, or cake or the sterilized seed of the plant which is
4
incapable of germination.2 You may consider all the relevant
evidence in the case, including the testimony of any witness who
may have testified either to support or to dispute the
allegation that the substance in question was marijuana.
As to the second element, the term "cultivate" means to
grow a plant or crop, namely marijuana.
As to the third element, if it has been proved that the
defendant did knowingly cultivate marijuana, you will have to
determine whether the defendant cultivated the marijuana solely
for his or her own use, or whether the defendant intended the
marijuana for distribution to others. If the defendant is a
personal caregiver under the medical marijuana law, you may find
the defendant guilty only if he or she intended to distribute
marijuana to someone other than the patient for whom the
defendant served as a personal caregiver.
2 Please note that this is the amended definition of
"marihuana" in G. L. c. 94C, § 1, effective July 28, 2017.