The defendant in State v. Wilson, ___ N.J. Super. ___ (App. Div. 2011), was diagnosed in 2002 with Multiple Sclerosis (“MS”). In 2008, police officers discovered seventeen marijuana plants on the defendant’s property, along with marijuana and psilocybin mushrooms in his residence. The defendant was convicted of second-degree manufacturing of marijuana in an amount greater than ten but less than fifty plants and third-degree possession of psilocybin mushrooms. He received a five-year prison term as to the manufacturing conviction and a three-year concurrent term for the mushroom conviction. On appeal, the defendant argued that he was entitled to a “personal use” defense on the manufacturing charge and that his sentence was excessive. The Appellate Division rejected both arguments, holding that there was no personal use defense to growing marijuana and that his sentence was appropriate.

On August 18, 2008, a National Guard helicopter was performing a “marijuana search mission” in Somerset County. After a possible “marijuana grove” was discovered, its location was provided to State Police officers who drove to the location, which was a farmhouse on about one acre of land. When the officers arrived, they noticed several marijuana plants at the end of the driveway. The officers spoke with the defendant, who was standing in his yard, and he signed a Miranda Warning Acknowledgment Card and a consent form for a complete search of his residence and property. During their search, the officers found seventeen marijuana plants, plant food, and “Miracle-Gro Quick Start Planting and Transplant Starting Solution.” Inside the defendant’s home, they discovered a small amount of marijuana and psilocybin mushrooms. Neither officer remembered asking the defendant why he was growing the marijuana or what he intended to do with it.

At trial, the defendant testified that he was in the process of growing the seventeen marijuana plants and that he had purchased marijuana seeds over the Internet. He also testified that he had told the officers that he was using the marijuana to treat his MS. The defendant was prevented from asserting a personal use defense at trial. The jury convicted him of the aforementioned offenses but acquitted him on a third charge, first-degree maintaining or operating a production facility for manufacturing marijuana.

With respect to the defendant’s argument that he should have been allowed to present a personal use defense to the manufacturing marijuana charge, the Appellate Division reviewed the relevant statutory provisions. “Manufacture” is defined as “the production, preparation, propagation, compounding, conversion or processing” of a controlled dangerous substance (“CDS”). N.J.S.A. 2C:35-2. The statute also contained an exception, however, that provides that the definition “does not include the preparation or compounding of a [CDS] … by an individual for his own use.” Id. Thus, the court explained that an individual who produces a CDS – even for his or her own use – commits the offense.

The court determined that the defendant’s conduct did not fall within that narrow statutory exemption because he was involved in the “production” of marijuana. The court then explained that “[a]lthough no New Jersey court has previously considered whether there is a personal use defense to growing marijuana, other jurisdictions have enacted nearly identical definitions of ‘manufacture’ with ‘personal use’ exemptions.” The Appellate Division reviewed how those jurisdictions dealt with similar issues, and then held “the personal use defense for the preparation or compounding of a CDS does not apply to a charge of growing marijuana under N.J.S.A. 2C:35-5.”

In addition, the court declared that “[a]s other courts have found, the purpose of the personal use exemption is to allocate culpability consistent with an individual's participation. Therefore, those who engage in ‘a significantly higher degree of activity’ with a CDS, such as growing it, cannot avail themselves of the exemption. … Moreover, this interpretation is consistent with New Jersey's stated policy ‘to distinguish between drug offenders based on the seriousness of the offense, considering principally the nature, quantity and purity of the [CDS] involved, and the role of the actor." N.J.S.A. 2C:35-1.1(c).

The defendant also claimed that his sentence was manifestly excessive and should have been reduced to probation. In rejecting that argument, the Appellate Division ruled that the trial court correctly determined that the presumption of imprisonment for a second-degree crime had not been overcome. Furthermore, the Appellate Division, though “sympathiz[ing] with the defendant’s condition,” found that the record did not support his argument that he would not obtain adequate medical treatment in prison. Finally, the court explained that even though there were a few instances in which the presumption of imprisonment had been overcome, “[t]he current matter is distinguishable from these cases[.]”