State v. Thayer

188 Vt. 482 (2010)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

In the summer of 2003, D, a Master Gardener, began growing marijuana on her property to treat her ailing son TT, who was battling leukemia. After several bone-marrow transplants and repeated bouts of chemotherapy, TT used marijuana to ease his nausea, improve his appetite, and eventually return to school. TT passed away in May 2005. D continued growing marijuana to treat her youngest son, MT, who was experiencing wasting symptoms, including chronic nausea and loss of appetite, due to scarred kidneys resulting from a medical emergency when he was an infant. Marijuana greatly improved his condition. D grew marijuana outside of her home. In the spring, D would normally seed fifty-to-one-hundred plants indoors and select the most vigorous of those seedlings to plant outdoors in June. To ensure an adequate supply of marijuana, each season she grew fifty-to-seventy percent more plants to compensate for natural crop losses. On August 2, 2007, police seized thirty semi-mature marijuana plants growing in D's backyard. D conceded that neither she nor her son were registered with the state, as required by statute, as patients or caregivers authorized to grow and use medicinal marijuana. D was charged with a felony. D claimed the affirmative defense of necessity. The trial court held (1) that D failed to establish a prima facie case on each of the elements required for a necessity defense, and (2) that the legislative law precluded the necessity defense in this case through its “deliberate choice as to the values at issue concerning the legal growth of marijuana.” D filed this interlocutory appeal.