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State v. Jimenez

Court of Appeals of Washington, Division 3

August 3, 2017

STATE OF WASHINGTON, Respondent,
v.
JIOVANNY JIMENEZ, Appellant, FERNANDO GONZALEZ-HERNANDEZ, Defendant.

          Fearing, C.J.

         This appeal presents the issue of whether the State, when prosecuting a minor for possession of marijuana, must establish that the marijuana possessed by the minor contained more than .3 percent tetrahydrocannabinol (THC). THC refers to a psychotropic cannabinoid and is the principal psychoactive constituent of the cannabis plant, also known as marijuana. Resolution of the question requires the juxtaposition of two statutes, RCW 69.50.101 that defines "marijuana" as containing greater than .3 percent THC, and RCW 69.50.4014 that prohibits minors from possessing marijuana regardless of the THC concentration. We hold that the State need not present evidence of the THC concentration and affirm the juvenile court's conviction, for possession of marijuana, of appellant Jiovanny Jimenez.

         FACTS

         This prosecution arises from the seizure of marijuana from minor Jiovanny Jimenez's person. At 11:00 p.m. on October 11, 2015, Yakima Police Officer Ryan Davis responded to a complaint about trespassers at a single family dwelling on Fenton Street in Yakima. Officer Davis went through the house and into the residence's backyard where he saw a shed. Officer Davis spotted, adjacent to the shed, appellant Jiovanny Jimenez and a second individual. Jimenez was seventeen years of age. Davis arrested and escorted Jimenez to his patrol vehicle.

         Prior to sitting Jiovanny Jimenez in his patrol car, Officer Ryan Davis searched Jimenez incident to arrest for criminal trespass. In Jimenez's front left pant pocket, Officer Davis discovered a clear plastic bag containing green leaves.

         Yakima Police Detective Andrew Garcia sent the green leaves, removed from Jiovanny Jimenez's pocket, to the Washington State Patrol Crime Laboratory for analysis. The analysis, conducted by Forensic Scientist Jason Stenzel, PhD, concluded that the seized green material contained THC. Dr. Stenzel's testing did not measure the concentration of THC in the tested sample.

         PROCEDURE

         The State of Washington charged Jiovanny Jimenez in juvenile court with possession of marijuana as a minor. The only contested issue at trial was whether the law demanded that the State prove that the cannabis possessed by Jimenez contained greater than .3 percent THC. The State presented testimony from Officer Ryan Davis, Detective Andrew Garcia, and Dr. Jason Stenzel. Dr. Stenzel conceded he did not know the level of THC in the material he tested.

         At the close of the State's case, Jiovanny Jimenez moved for dismissal because the State failed to prove the substance Officer Davis removed from his pocket was marijuana. Jimenez argued that, under RCW 69.50.101, the statute that generally defines "marijuana" as exceeding .3 percent THC, the State must prove the THC concentration surpasses .3 percent to prove that a substance is marijuana. The State disagreed. The State discouraged the juvenile court's application of the definition of marijuana found in RCW 69.50.101 because Jimenez was a minor. The State contended that RCW 69.50.4014 prohibits minors from possessing marijuana regardless of the THC concentration.

         The juvenile court denied Jiovanny Jimenez's motion to dismiss. The court found Jimenez guilty of possession of marijuana in violation of RCW 69.50.4014 and sentenced him to two days' confinement.

         LAW AND ANALYSIS

         This case presents the novel issue of whether the State of Washington must prove, in order to establish the crime of minor in possession of marijuana, that the marijuana held a THC concentration above .3 percent. No Washington decision addresses the question. Because of the unique language of Washington's statutes, we cannot rely on foreign decisions.

         In the cannabis patient protection act of 2015, the Washington State Legislature added RCW 69.50.4013(4) (renumbered as RCW 69.50.4013(5) per the Laws OF 2017, ch. 317, § 15), which reads:

No person under twenty-one years of age may possess, manufacture, sell, or distribute marijuana, marijuana-infused products, or marijuana concentrates, r ...

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