Submitted November 10, 2014.
CFH110290. Umatilla County Circuit Court. Daniel J. Hill, Judge.
Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[270 Or.App. 415] HADLOCK, J.
Defendant was convicted of unlawful manufacture of marijuana, ORS 475.856, after he entered a conditional guilty plea to tat charge in which he reserved his right to appeal certain pretrial rulings. On appeal, defendant contends that the trial court erred
when it granted the state's motion to preclude him from raising an affirmative defense under a particular provision of Oregon's Medical Marijuana Act. As explained below, we conclude that the trial court correctly concluded that one element of the affirmative defense was not supported by any evidence in the record. Accordingly, we affirm.
To provide context for our discussion of the parties' arguments, we briefly describe the relevant statutes. ORS 475.856(1) prohibits the manufacture of marijuana. Under the Oregon Medical Marijuana Act (OMMA), ORS 475.300 to ORS 475.346, " a person engaged in or assisting in the medical use of marijuana is excepted from the criminal laws of the state for possession, delivery or production of marijuana" if certain specified requirements are satisfied. ORS 475.309(1). In addition, a person who does not qualify for exemption from the criminal marijuana laws under the OMMA has " an affirmative defense to a criminal charge of possession or production of marijuana" if the person:
" (a) Has been diagnosed with a debilitating medical condition within 12 months prior to arrest and been advised by the person's attending physician that the medical use of marijuana may mitigate the symptoms or effects of that debilitating medical condition;
" (b) Is engaged in the medical use of marijuana; and
" (c) Possesses or produces marijuana only in amounts permitted under ORS 475.320."
ORS 475.319(1). The pertinent provision of ORS 475.320 provides, in turn, that a " registry identification cardholder or the designated primary caregiver of the cardholder may possess up to six mature marijuana plants * * *." ORS 475.320(1) (a). A person must meet all three of the requirements set out [270 Or.App. ...