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Washington v. Cole6/15/1994
HOUGHTON, J. -- Fred Morten Cole, Jr. appeals from his conviction of possession of marijuana with intent to manufacture or distribute. We reverse.
FACTS
In September 1989, Fred Morten Cole, Jr. (Cole) was arrested and charged with possession of a controlled substance with intent to manufacture or deliver after the Jefferson County Sheriff's Office discovered 220 marijuana plants at Cole's remote residence on the Oil City Road south of Forks. Cole later testified that he told the sheriff's deputies "I knew it was illegal -- the reason I grew that much was because I didn't want to have to grow it again for a long, long time; and I used it for medical purposes."
In April 1990, Cole was convicted on the charge of possession of marijuana with intent to manufacture. At sentencing, the trial court stated, "I hope they get you a prescription for marijuana if that's the only thing that works. . . . You cannot in the future grow marijuana for your own consumption without a prescription."
Less than 3 months after the sentencing hearing, Cole was again charged in Jefferson County Superior Court with possession of marijuana with intent to manufacture or distribute. This charge was filed when Jefferson County Sheriff's deputies discovered 23 potted marijuana plants on Cole's property on August 28, 1990. The deputies also found seven root wads in pots with marijuana recently cut and a small amount of charred marijuana in the house stove.
At a pretrial hearing in February 1991, Cole's attorney sought and obtained an order appointing the expert services of Dr. John Bennett, an orthopedic surgeon, for the purpose of testifying concerning Cole's back pain and Cole's medical history of back pain, as support for Cole's defense of medical necessity. The State then made a motion in limine to preclude Bennett's testimony and the medical necessity defense, stipulating that Bennett's affidavit could be used as an offer of proof for the hearing on its motion.
At the hearing on the State's motion in limine to bar Cole from presenting evidence in support of the medical necessity defense at trial, the State asserted that Cole had: (1) created the medical necessity; and (2) failed to exhaust the legal alternatives available to him. The trial judge stated that he had reviewed the case cited by the attorneys, State v. Diana, 24 Wash. App. 908, 604 P.2d 1312(1979), the State's memorandum, and Dr. Bennett's sworn statement, as well as one of the three subjoined technical articles. The court also heard testimony from Cole.
Cole testified that he had suffered a severe, traumatic back sprain in a logging accident in November 1987 and had been plagued with chronic back spasms ever since. He identified five doctors, including Dr. Bennett, whom he had seen for his back pain. He also testified that he had been treated at the Virginia Mason Pain Clinic, and that the Department of Labor and Industries (L & I) had a medical record diagnosing his back problems. Cole testified that he received support from L & I due to his back injury until July 17, 1990 when his benefits were stopped after a determination that he was employable.
Cole further testified about the pain medications prescribed for him by his doctors. He said that he experienced side effects from these medications, such as constipation, dizziness, nausea, disorientation, constant sleeping, and inability to drive. Cole stated that he "couldn't do anything" when he was on the prescribed medication. Cole said that December 1987 or January 1988 was the first time he smoked marijuana after his accident. Cole testified that the use of marijuana r
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