State v. Dodd

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA,
Appellee,

v.

ROY LEE DODD, III,
Appellant.

No. 1 CA-CR 18-0433
FILED 7-11-2019

Appeal from the Superior Court in Maricopa County
No. CR2017-109145-001
The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
 STATE v. DODD
Decision of the Court

MEMORANDUM DECISION

Judge Diane M. Johnsen delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Lawrence F. Winthrop
joined.

J O H N S E N, Judge:

¶1 Roy Lee Dodd, III appeals his conviction and sentence for
possession of narcotic drugs, a Class 4 felony. He argues the Arizona
Medical Marijuana Act ("AMMA") implicitly repealed the criminal code's
distinction between marijuana and cannabis, so that he could not be
convicted of possession of narcotic drugs when he possessed cannabis. For
the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Dodd dropped a crumpled piece of paper containing
cannabis as police were arresting him on an unrelated warrant. A grand
jury then indicted him on a charge of possession of a narcotic drug in
violation of Arizona Revised Statutes ("A.R.S.") section 13-3408 (2019).1

¶3 Dodd moved to dismiss the indictment, arguing the AMMA
implicitly repealed the criminal code's classification of cannabis as a
narcotic drug. The superior court denied Dodd's motion, a jury found him
guilty and the court sentenced him as a repetitive offender to 10 years'
imprisonment. We have jurisdiction over Dodd's appeal pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-
120.21(A)(1) (2019), 13-4031 (2019) and -4033(A)(1) (2019).

DISCUSSION

¶4 Dodd does not have a medical-marijuana card and does not
claim immunity under the AMMA. Instead, he argues that because the
AMMA does not distinguish between marijuana and cannabis, that statute
implicitly repealed the distinction the criminal code draws between the
two. His argument presents a question of statutory interpretation, which

1 Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.

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 STATE v. DODD
Decision of the Court

this court reviews de novo. See Reed-Kaliher v. Hoggatt, 237 Ariz. 119, 122, ¶
6 (2015).

¶5 "[I]mplicit repeal of statutes is not favored." UNUM Life Ins.
Co. of Am. v. Craig, 200 Ariz. 327, 333, ¶ 28 (2001). "Rather, when two
statutes appear to conflict, whenever possible, we adopt a construction that
reconciles one with the other, giving force and meaning to all statutes
involved." Id. But if "by reason of repugnancy, or inconsistency, . . . two
conflicting statutes cannot operate contemporaneously," the more recent
statute governs. Id. at ¶ 29.

¶6 In Craig, two persons – a named insured and a named
beneficiary under a life insurance policy – were in a car that crashed; both
perished, but the insured died before the named beneficiary. 200 Ariz. at
328, ¶¶ 2-3. As the supreme court noted, two statutes governed
"distribution of insurance proceeds upon simultaneous or near-
simultaneous deaths." Id. at 333, ¶ 29. Under one statute, enacted in 1954,
the proceeds of the policy would be payable to a named beneficiary who
survived the named insured, even if only by a moment. Under the other
statute, enacted in 1994, the named beneficiary would have to survive the
insured by at least 120 hours. See id. at 330, 332-33, ¶¶ 15, 17, 23, 29
(addressing then-current versions of A.R.S. §§ 20-1127 and 14-2702). After
reviewing the statutory history of each provision, the court concluded the
statutes could not be harmonized and held that the more recent statute
governed. Id. at 333, ¶ 29.

¶7 Turning to the statutes at issue here, the criminal code defines
marijuana and cannabis separately:

"Cannabis" means the following substances under whatever
names they may be designated:

(a) The resin extracted from any part of a plant of the genus
cannabis, and every compound, manufacture, salt, derivative,
mixture or preparation of such plant, its seeds or its resin. . . .

(b) Every compound, manufacture, salt, derivative, mixture
or preparation of such resin or tetrahydrocannabinol.

* * *

"Marijuana" means all parts of any plant of the genus
cannabis, from which the resin has not been extracted.

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A.R.S. § 13-3401(4), (19) (2019). See also State v. Bollander, 110 Ariz. 84, 87
(1973) (recognizing that under the criminal code, marijuana's leaf and
flower are distinct from its resin). Possession of less than two pounds of
marijuana not for sale is a Class 6 felony. A.R.S. § 13-3405(B)(1) (2019). But
cannabis is defined as a "narcotic drug" the possession of which is a Class 4
felony. A.R.S. §§ 13-3401(20)(w), -3408(B)(1).

¶8 The starting point of Dodd's argument about implicit repeal
is his assertion that the AMMA immunizes a cardholder's use of cannabis,
even though the statute did not define cannabis. In State v. Jones, 246 Ariz.
452, 457, ¶ 19 (2019), our supreme court agreed that the AMMA's definition
of marijuana includes cannabis. Accordingly, under the AMMA, registered
cardholders who comply with the act may claim immunity from
prosecution for possession of marijuana or cannabis. Id. at 454-55, 457, ¶¶
5, 7, 19.

¶9 But Dodd's argument falters because he cannot show that the
AMMA is inconsistent with the criminal code's distinct treatment of
possession of marijuana and possession of cannabis. To the contrary, and
unlike the statutes in Craig, the statutes here operate in parallel without any
conflict. Nothing in the AMMA states that its definitions are intended to
apply to any other chapter; the definition section of the AMMA states that
it is intended to apply only "[i]n this chapter," see A.R.S. § 36-2801 (2019),
and the same is true for the definition section of the criminal code, A.R.S. §
13-3401. For that reason, the AMMA's like treatment of possession of
marijuana and possession of cannabis does not alter, interfere with or
impede the criminal code's dissimilar treatment of possession of the two
drugs. As the State contends, "[o]utside the immunities granted by the
AMMA, the use of marijuana and cannabis remains illegal." Put simply,
the AMMA governs whether and how a registered cardholder may be
prosecuted for possession of cannabis but has nothing to say about how a
non-cardholder may be prosecuted for possession of cannabis.

¶10 Dodd argues that a cardholder who possesses more cannabis
than the AMMA allows would face a different punishment than a
cardholder who possesses more marijuana than the AMMA allows. But
because Dodd does not suggest he has a medical-marijuana card, the
distinction is irrelevant to him. In any event, the legislature has the power
to decide to punish illegal possession of one drug more severely than
another. See State v. Floyd, 120 Ariz. 358, 360 (App. 1978).

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CONCLUSION

¶11 For the foregoing reasons, we affirm Dodd's conviction and
sentence.

AMY M. WOOD • Clerk of the Court
FILED: AA

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