Model jury instructions regarding unlawful cultivation with medical marijuana hardship cultivation registration

From the appendix to Comm. v. Richardson, 479 Mass. 344 (2018)

Table of Contents

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 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.

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[1] Please note that this is the amended definition of "marihuana" in G. L. c. 94C, § 1, effective July 28, 2017.

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 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.

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[2] Please note that this is the amended definition of "marihuana" in G. L. c. 94C, § 1, effective July 28, 2017.

Source

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

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Date published: April 17, 2018

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