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Daniel Joseph Burns v. the State of Wyoming

January 19, 2011

DANIEL JOSEPH BURNS, APPELLANT (DEFENDANT),
v.
THE STATE OF WYOMING, APPELLEE (PLAINTIFF).



Appeal from the District Court of Laramie County The Honorable Michael K. Davis, Judge

The opinion of the court was delivered by: Golden , Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT, and BURKE, JJ.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] Appellant Daniel Joseph Burns entered a conditional plea of guilty to felony possession of a controlled substance, namely marijuana. *fn1 Burns reserved the right to challenge the district court's in limine ruling which prohibited him from presenting at trial any evidence and defense theories to the effect that he lawfully obtained the marijuana pursuant to a valid prescription of a practitioner in Colorado.

We will affirm.

ISSUE

[¶2] Burns presents one issue for our review: *fn2

Does the fact that a defendant obtained a Schedule I controlled substance pursuant to a valid order of a practitioner in another state constitute a defense under W.S. § 35-7-1031(c)?

FACTS

[¶3] On March 12, 2009, a trooper with the Wyoming Highway Patrol stopped Burns for speeding in Laramie County, Wyoming. Upon approaching Burns' vehicle, the trooper detected a strong odor of marijuana emanating from inside the vehicle. Burns acknowledged the presence of marijuana in the vehicle and stated it was for "medical use." A search of the vehicle revealed 666 grams, roughly one and one-half pounds, of marijuana. Burns was arrested and later charged with felony possession of a Schedule I controlled substance under Wyo. Stat. Ann. § 35-7-1031(c)(iii) (LexisNexis 2009). *fn3

[¶4] As the case progressed to trial, Burns made known his intention to defend against the charge on the basis that he had legally obtained the marijuana pursuant to a valid prescription or order of a practitioner in Colorado under that state's medical marijuana laws. He submitted a proposed jury instruction setting forth that theory of defense, and listed as exhibits in his pre-trial memorandum his Colorado medical marijuana registry card and associated physician certification. The State responded by filing a motion in limine to exclude from trial any evidence of, or defenses based upon, (1) the Defendant's admission to, or status on, the Medical Marijuana Registry maintained by the Colorado Department of Public Health and Environment; (2) the Defendant's "debilitating medical condition" as defined by or related to the Colorado Medical Marijuana Registry or the Defendant's alleged medical use of mari[j]uana; and (3) the medical efficacy of mari[j]uana.

In that motion, the State also sought to exclude Burns' proposed jury instruction to the effect that a valid prescription or order of a practitioner was a defense to the possession charge under Wyoming law.

[¶5] Not surprisingly, Burns resisted the State's motion. He maintained that the Colorado medical marijuana registry card and the physician's certification, pursuant to which he claimed to have acquired and possessed the marijuana, constituted a valid prescription or order of a practitioner as contemplated by § 35-7-1031(c) and, accordingly, provided him a statutorily recognized defense against the possession charge that he was entitled to present at trial. The district court disagreed and granted the State's motion in its entirety.

[¶6] Thereafter, and pursuant to a plea agreement, Burns entered a conditional guilty plea to the possession charge, reserving the right to challenge the district court's in limine ruling. After receiving the State's assurance that it would not pursue prosecution of the possession charge in the event this Court reversed its ruling, the district court accepted Burns' conditional plea *fn4 and sentenced him ...


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