Murphy v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Annunziata and Senior Judge Duff
Argued at Alexandria, Virginia

BRIAN JOSEPH MURPHY
OPINION BY
v. Record No. 1459-98-4 JUDGE ROSEMARIE ANNUNZIATA
NOVEMBER 23, 1999
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Kathleen H. MacKay, Judge

John Kenneth Zwerling (Zwerling & Kemler,
P.C., on briefs), for appellant.

Michael T. Judge, Assistant Attorney General
(Mark L. Earley, Attorney General, on
brief), for appellee.

Brian J. Murphy ("appellant") was tried by jury for

manufacturing marijuana for his own use, in violation of Code

§ 18.2-248.1(c). Appellant was acquitted of the charge but

convicted of possession of marijuana. The jury fixed his

punishment at thirty days in jail and a fine of $250. He

contends on appeal that the trial court erred when it declined

to find applicable to the charge of possession of marijuana the

common law defense of necessity and erred in refusing a jury

instruction on the issue. We find, as a matter of law, that

under the circumstances of this case, the common law defense of

necessity is not available to an individual accused of simple

possession of marijuana and affirm appellant's conviction.
 Upon the execution of a search warrant at appellant's home

in September 1997, a Fairfax County police officer found

cultivated marijuana plants and seized them as evidence in

support of charges subsequently lodged against appellant.

Appellant admitted he possessed the marijuana, but contended it

was for his personal use to alleviate debilitating migraine

headaches he suffers as a result of an accident which occurred

while he was serving in the Navy. Appellant was prescribed

numerous medications in substitution for the marijuana but found

none to be as effective or free of serious side effects. On the

ground that he used the illegal drug for medicinal purposes for

which there was no effective substitute, and which posed a

lesser risk to his health than conventional legal medications,

appellant requested the trial court to instruct the jury on

necessity. The instruction was denied. 1

1
Appellant requested the following instructions:

Instruction J. The defendant in this case
has raised a necessity defense. The
essential elements of this defense are:
(1) a reasonable belief that the action was
necessary to avoid threatened harm; (2) a
lack of other adequate means to avoid the
threatened harm; and (3) a direct causal
relationship that may be reasonably
anticipated between the action taken and the
avoidance of the harm. If you find that the
defendant was acting out of necessity, you
shall find him not guilty.

Instruction I. The defense of necessity
addresses the dilemma created when physical

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 The first statute criminalizing the possession of marijuana

in Virginia was enacted in 1936. 1936 Va. Acts at 361 (codified

at § 1693a, Code of Virginia (1936)). 2 Notwithstanding its

enactment of criminal penalties for the possession of "cannabis

forces beyond the actor's control renders
illegal conduct the lesser of the two evils.
If one who is starving eats another's food
to save his own life, the defense of
necessity may bar a conviction for the
larceny of the other's food.

The rationale of the necessity defense
is not that a person, when faced with the
pressure of circumstances of nature lacks
the mental element which the crime in
question requires. Rather, it is based upon
the public policy that the law ought to
promote the achievement of higher values at
the expense of lesser values, and sometimes
the greater good for society will be
accomplished by violating the literal
language of the law. In some sense, the
necessity defense allows the jury to act as
individual legislature, amending a
particular criminal provision or drafting a
one-time exception to it, subject to court
review, when a real legislature would
formally do the same under those
circumstances.
2
Section 1693a made a violation of the section punishable
by not less than one year's incarceration nor more than ten, or,
in the discretion of the court or jury, punishable by
confinement in jail for not more than 12 months and a fine of
not more than $1,000, either or both.

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and mariahuana [sic]," the General Assembly permitted doctors to

use the drug for medicinal purposes. 3

Subsequently, the General Assembly significantly curtailed

the medicinal use of marijuana. Code § 18.2-251.1 allows the

possession of marijuana only "pursuant to a valid prescription

issued by a medical doctor in the course of his professional

practice" and only "for the treatment of cancer or glaucoma."

3
The statute provided, in pertinent part:

[A]ll varieties of cannibis and mariahuana
[sic] (when not used in accordance with a
physician's direction) are hereby declared
dangerous, detrimental to the public health
and a nuisance, and their cultivation or
growth within the limits of the State of
Virginia is hereby declared unlawful and
prohibited.

However, nothing in this Act shall be
construed as applying to licensed growers,
licensed manufacturers of drugs and
medicinal supplies, licensed wholesalers of
drugs, owners of licensed pharmacies,
licensed hospitals or other licensed
institutions for the care of the sick under
the supervision of a licensed physician, or
to registered wholesale or retail
pharmacists, or to licensed physicians,
dentists and veterinarians who are
registered, licensed and authorized to
practice their professions under the laws of
the State of Virginia when cannibis (and
similar plants) or the parts, preparation
and compounds thereof are grown, possessed,
purchased, sold, delivered, distributed,
transported or prescribed for medicinal
purposes.

Code of Virginia (1936) § 1693a.

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By specifying the two permitted medicinal uses of the drug, the

legislature excluded all other uses from the scope of the

statute. See Turner v. Wexler, 244 Va. 124, 127, 418 S.E.2d

886, 887 (1992) ("mention of a specific item in a statute

implies that omitted items were not intended to be included

within the scope of the statute").

We must presume that legislative amendments are intended to

effect a change in the law. See Burke v. Commonwealth, 29

Va. App. 183, 188, 510 S.E.2d 743, 746 (1999) (citing Wisniewski

v. Johnson, 223 Va. 141, 144, 286 S.E.2d 223, 224-25 (1982)).

"When a legislative enactment limits the manner in which

something can be done, the enactment also evinces the intent

that it should not be done another way." Grigg v. Commonwealth,

224 Va. 356, 364, 297 S.E.2d 799, 803 (1982). Although the

legislature once permitted doctors generally to use marijuana

"for medicinal purposes," Code § 18.2-251.1 now allows for

possession of marijuana only "pursuant to a valid prescription

issued by a medical doctor in the course of his professional

practice" and only "for [the] treatment of cancer or glaucoma."

The basic tenets of statutory construction require us to

"'ascertain and give effect to legislative [intent,]'"

Commonwealth v. Wallace, 29 Va. App. 228, 233, 511 S.E.2d 423,

425 (1999) (quoting Branch v. Commonwealth, 14 Va. App. 836,

839, 419 S.E.2d 422, 424 (1992)), and "'effect rather than

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defeat a legislative purpose evident from the history of the

legislation.'" Adkins v. Commonwealth, 27 Va. App. 166, 170,

497 S.E.2d 896, 897 (1998) (quoting Ambrogi v. Koontz, 224 Va.

381, 389, 297 S.E.2d 660, 664 (1982)). In so doing, the "plain,

obvious, and rational meaning of a statute is always preferred

to any curious, narrow or strained construction . . . ."

Branch, 14 Va. App. at 839, 419 S.E.2d at 424.

Code § 18.2-251.1 makes clear that the legislature has

narrowly limited the permissible use of marijuana to the

specific situations enumerated, viz., to when a doctor issues a

prescription for the use of marijuana to treat either cancer or

glaucoma.

As noted in Long v. Commonwealth, 23 Va. App. 537, 478

S.E.2d 324 (1996), "[t]he defense of necessity is available only

in situations wherein the legislature has not itself, in its

criminal statute, made a determination of values. If it has

done so, its decision governs." Id. at 543, 478 S.E.2d at 327

(citation omitted). "[W]here it is apparent that the

legislature has made a value judgment with respect to certain

behavior, it follows that the legislature intended to abrogate,

to that extent, the common law defense of necessity which, if

not abrogated, would, within limits, allow individuals to make

their own value judgments with respect to that behavior." Id.

at 544, 478 S.E.2d at 327.

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 In short, the legislative history of the statute manifests

that the General Assembly has significantly limited the

availability of the defense of necessity for individuals who use

marijuana for medicinal purposes. In restricting the legitimate

medicinal use of marijuana to cases involving cancer or

glaucoma, the legislature evinced its intent to circumscribe the

value judgment an individual can make with respect to its use

for treating other conditions. See id. To that extent, the

common law defense of necessity is abrogated, see id., and

unavailing in appellant's case. Accordingly, the trial court

did not err in refusing appellant's proffered instruction on the

defense.

Finding no error, we affirm the conviction.

Affirmed.

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