FILED
AUGUST 3, 2017
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
STATE OF WASHINGTON, )
) No. 34069-4-111
Respondent, )
)
v. )
)
JIOVANNY JIMENEZ, ) PUBLISHED OPINION
)
Appellant, )
)
FERNANDO GONZALEZ- )
HERNANDEZ, )
)
Defendant. )
FEARING, C.J. -This appeal presents the issue of whether the State, when
prosecuting a minor for possession of marijuana, must establish that the marijuana
possessed by the minor contained more than .3 percent tetrahydrocannabinol {THC).
THC refers to a psychotropic cannabinoid and is the principal psychoactive constituent of
the cannabis plant, also known as marijuana. Resolution of the question requires the
juxtaposition of two statutes, RCW 69.50.101 that defines "marijuana" as containing
greater than .3 percent THC, and RCW 69.50.4014 that prohibits minors from possessing
marijuana regardless of the THC concentration. We hold that the State need not present
No. 34069-4-III
State v. Jimenez
evidence of the THC concentration and affirm the juvenile court's conviction, for
possession of marijuana, of appellant Jiovanny Jimenez.
FACTS
This prosecution arises from the seizure of marijuana from minor Jiovanny
Jimenez's person. At 11 :00 p.m. on October 11, 2015, Yakima Police Officer Ryan
Davis responded to a complaint about trespassers at a single family dwelling on Fenton
Street in Yakima. Officer Davis went through the house and into the residence's
backyard where he saw a shed. Officer Davis spotted, adjacent to the shed, appellant
Jiovanny Jimenez and a second individual. Jimenez was seventeen years of age. Davis
arrested and escorted Jimenez to his patrol vehicle.
Prior to sitting Jiovanny Jimenez in his patrol car, Officer Ryan Davis searched
Jimenez incident to arrest for criminal trespass. In Jimenez's front left pant pocket,
Officer Davis discovered a clear plastic bag containing green leaves.
Yakima Police Detective Andrew Garcia sent the green leaves, removed from
Jiovanny Jimenez's pocket, to the Washington State Patrol Crime Laboratory for
analysis. The analysis, conducted by Forensic Scientist Jason Stenzel, PhD, concluded
that the seized green material contained THC. Dr. Stenzel's testing did not measure the
concentration of THC in the tested sample.
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No. 34069-4-111
State v. Jimenez
PROCEDURE
The State of Washington charged Jiovanny Jimenez in juvenile court with
possession of marijuana as a minor. The only contested issue at trial was whether the law
demanded that the State prove that the cannabis possessed by Jimenez contained greater
than .3 percent THC. The State presented testimony from Officer Ryan Davis, Detective
Andrew Garcia, and Dr. Jason Stenzel. Dr. Stenzel conceded he did not know the level
of THC in the material he tested.
At the close of the State's case, Jiovanny Jimenez moved for dismissal because the
State failed to prove the substance Officer Davis removed from his pocket was marijuana.
Jimenez argued that, under RCW 69 .50.101, the statute that generally defines
"marijuana" as exceeding .3 percent THC, the State must prove the THC concentration
surpasses .3 percent to prove that a substance is marijuana. The State disagreed. The
State discouraged the juvenile court's application of the definition of marijuana
found in RCW 69.50.101 because Jimenez was a minor. The State contended that
RCW 69.50.4014 prohibits minors from possessing marijuana regardless of the THC
concentration.
The juvenile court denied Jiovanny Jimenez's motion to dismiss. The court found
Jimenez guilty of possession of marijuana in violation ofRCW 69.50.4014 and sentenced
him to two days' confinement.
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No. 34069-4-III
State v. Jimenez
LAW AND ANALYSIS
This case presents the novel issue of whether the State of Washington must prove,
in order to establish the crime of minor in possession of marijuana, that the marijuana
held a THC concentration above .3 percent. No Washington decision addresses the
question. Because of the unique language of Washington's statutes, we cannot rely on
foreign decisions.
In the cannabis patient protection act of 2015, the Washington State Legislature
added RCW 69.50.4013(4) (renumbered as RCW 69.50.4013(5) per the LA ws OF 2017,
ch. 317, § 15), which reads:
No person under twenty-one years of age may possess, manufacture,
sell, or distribute marijuana, marijuana-infused products, or marijuana
concentrates, regardless of THC concentration.
LAWS OF 2015, ch. 70, § 14 (emphasis added). RCW 69.50.4013 comprises part of
Washington's version of the Uniform Controlled Substances Act, chapter 69.50 RCW.
RCW 69.50.101 lists definitions for chapter 69.50 RCW. The relevant portion of
RCW 69.50.101 reads:
The definitions in this section apply throughout this chapter unless
the context clearly requires otherwise.
(v) "Marijuana" or "marihuana" means all parts of the plant
Cannabis, whether growing or not, with a THC concentration greater than
0.3 percent on a dry weight basis ....
Former RCW 69.50. lOl(v) (2015) (redesignated as RCW 69.50. lOl(w) per the LAWS OF
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No. 34069-4-III
State v. Jimenez
2017, ch. 317, § 5). The legislature adopted the definition for "marijuana" found in
former RCW 69.50.lOl(v).
Jiovanny Jimenez asks the court to insert RCW 69.50.101 's definition of
"marijuana" into former RCW 69.50.4013(4), such that the latter statute reads, in part:
"No person under twenty-one years of age may possess ... cannabis with a THC
concentration greater than 0.3 percent." We decline this reading.
The court's primary duty in statutory interpretation is to discern and implement the
legislature's intent. Lowy v. PeaceHealth, 174 Wn.2d 769, 779, 280 P.3d 1078 (2012).
In so doing, the court relies on many tested, commonsensical, and intelligent principles to
divine the meaning of the statute, principles employed when interpreting other important
and even sacred texts.
We employ two principles of statutory construction to resolve this appeal. First,
the statutory provision adopted last prevails unless the first provision is more clear and
explicit than the last. State v. JP., 149 Wn.2d 444, 452, 69 P.3d 318 (2003). The
legislature's adoption of former RCW 69.50.4013(4) and the statute's language of
"regardless of THC concentration" is equally as specific, if not more specific, than
former RCW 69.50.10 l(v)'s language of a "THC concentration greater than 0.3 percent."
Former RCW 69.50.4013(4) denotes a legislative intent to preclude access to marijuana,
regardless of its potency, to all minors, just as the legislature has prohibited access to
alcohol, regardless of its alcohol content, to all minors.
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No. 34069-4-111
State v. Jimenez
Second, we discern the meaning of legislation by reading all that the legislature
has said in the statute and related statutes that disclose legislative intent about the
provision in question. Lowy v. PeaceHealth, 174 Wn.2d at 779 (2012). We read statutes
as a whole. State v. Murray, 187 Wn.2d 115, 124, 384 P.3d 1150 (2016). The definition
of"marijuana" listed in former RCW 69.50.lOl(v) follows the opening sentence in the
statute that reads: "The definitions in this section apply throughout this chapter unless the
context clearly requires otherwise." The context of former RCW 69.50.4013(4) lucidly
mandates otherwise.
We observe that Jiovanny Jimenez, when inserting the Uniform Controlled
Substances Act's general definition of "marijuana" into former RCW 69.50.4013(4), fails
to complete the entire language of the minor in possession statute. Ifwe substitute the
definition of "marijuana" under former RCW 69.50.lOl(v) for the word "marijuana" used
in former RCW 69.50.4013(4), the latter statute would declare:
No person under twenty-one years of age may possess, manufacture,
sell, or distribute cannabis with a THC concentration greater than 0.3
percent, regardless of THC concentration.
The statute would internally clash.
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No. 34069-4-III
State v. Jimenez
CONCLUSION
We affirm the juvenile court's conviction of Jiovanny Jimenez for minor in
possession of marijuana. The law does not require the State to measure the THC content
of the marijuana found on a minor's person.
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Fearing~'
WE CONCUR:
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