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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II

STATE OF WASHINGTON,                                             No.  41568-2-II

                             Respondent,

       v.

WILLIAM ANDREW KURTZ,                                      UNPUBLISHED OPINION

                             Appellant.

       Van Deren, J. -- William Kurtz appeals his convictions for manufacturing marijuana and 

for possessing more than 40 grams of marijuana.  He also appeals the calculation of his offender 

score.  We affirm his convictions but remand for resentencing.1

       On March 1, 2010, police executed a search warrant at Kurtz's home.  They located and 

seized growing and processed marijuana.  They also located a marijuana growing operation.

       The State charged Kurtz with manufacturing marijuana and possessing more than 40 

grams of marijuana.  Kurtz proffered medical authorizations for use of marijuana to establish an 

affirmative defense to the charges, as allowed by RCW 69.51A.040(2).  But those authorizations 

were not signed until October 15, 2010, and October 21, 2010, respectively, after the date the 

marijuana was discovered and seized.  The State moved to exclude those authorizations.  The trial 

court granted the State's motion, relying on State v. Butler, 126 Wn. App. 741, 109 P.3d 493 

(2005).  

1 A commissioner of this court initially considered Kurtz's appeal as a motion on the merits under 
RAP 18.14 and then transferred it to a panel of judges. 

41568-2-II

       A jury found Kurtz guilty as charged.  The trial court calculated his offender score for 

each conviction as one, using the other conviction as an "other current offense" under RCW 

9.94A.525(1).  Kurtz appeals from both his convictions and his sentence.

       First, Kurtz argues that we should reverse our decision in Butler because we concluded

incorrectly that the Medical Use of Marijuana Act, chapter 69.51A RCW, superseded the 

common law medical necessity defense established in State v. Diana, 24 Wn. App. 908, 916, 604 

P.2d 1312 (1979), and State v. Cole, 74 Wn. App. 571, 578-79, 874 P.2d 878 (1994).  But in 

Seeley v. State, 132 Wn.2d 776, 805, 940 P.2d 604 (1997), and State v. Williams, 93 Wn. App. 

340, 347, 968 P.2d 26 (1998), the courts held that, as a schedule I controlled substance, 

marijuana had no accepted medical use and its use could not form the basis of a medical necessity 

defense.  Thus, by the time the Act was passed, there was no common law medical necessity 

defense to a charge involving marijuana.  Butler therefore correctly concluded that the Act was 

the controlling law on affirmative defenses to a charge involving marijuana.  And under Butler, 

the trial court did not err in excluding the medical authorizations for Kurtz's use of marijuana 

because Kurtz had not obtained those authorizations before the marijuana was discovered and 

seized.  Butler, 126 Wn. App. at 750-51.

       Second, Kurtz argues that the trial court erred in not treating his conviction for possession 

and manufacture of marijuana as the same criminal conduct when calculating his offender score.  

State v. Bickle, 153 Wn. App. 222, 234-35, 222 P.3d 113 (2009).  The State concedes that he is 

correct.  We accept the State's concession and remand for resentencing.

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41568-2-II

       We affirm Kurtz's conviction but remand for resentencing.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it 

is so ordered.

                                                           Van Deren, J.

We concur:

       Worswick, A.C.J.

       Johanson, J.

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