Opinion
No. 1 CA-CR 19-0689
03-09-2021
STATE OF ARIZONA, Appellee, v. JAN KATHRYN WENCEL, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Casey Ball Counsel for Appellee Mohave County Legal Advocate's Office, Kingman By Jill L. Evans Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Mohave County
No. S8015CR201800367
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Casey Ball
Counsel for Appellee Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Paul J. McMurdie and Judge Cynthia J. Bailey joined. WINTHROP, Judge:
¶1 Jan Kathryn Wencel appeals her conviction for the production of marijuana, arguing there was insufficient evidence to support the verdict. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Wencel owns property east of Kingman containing several structures, including a house and a greenhouse. In 2010, Wencel's husband and son were both diagnosed with cancer. After Wencel's husband passed away, she and her son began growing medical marijuana with patient/caregiver authorization.
¶3 Around 2013 or 2014, Wencel briefly began growing marijuana for a dispensary in Kingman, but the partnership lasted only a few months. Following that arrangement, Wencel began leasing space in the greenhouse to other patients and caregivers who were authorized to cultivate medical marijuana, allowing them to grow a legal number of plants.
¶4 In May 2016, Wencel's son passed away and she decided to sell the property. Initially, Wencel had several individuals interested in buying or renting the property because the legalization of recreational marijuana was at issue on the 2016 ballot; however, when that initiative did not pass, most of the prospective buyers disappeared.
¶5 In October 2016, a mutual friend connected Wencel with Neal Jones, who was interested in leasing the property. Jones represented that he knew sixty-five or seventy individuals who qualified to grow marijuana as caregivers. And, according to Wencel, Jones not only "talked the talk" but "knew the rules" applicable to a legal marijuana growing operation. But after an initial meeting, Jones and Wencel fell out of contact.
¶6 At the end of November 2016, Jones contacted Wencel about finalizing a lease for the property. Wencel downloaded a lease agreement from the internet, and Jones and his wife signed the agreement as the "President" and "Vice President" of a non-existent company called Americana, Inc., which Jones represented he was going to register with the Arizona Corporation Commission. Jones never registered the company. While executing the lease, Jones explained that his step-son, Dallin Brown, planned to live in the house and manage a caregiver growth operation. Wencel added an additional fee to the lease to cover monthly rent for the home. Within days of executing the lease, Wencel left for an extended trip to France.
¶7 While in France, Wencel exchanged messages with Brown detailing how to become licensed with the state health department and explaining the process she and her son used to grow marijuana, including describing the types of equipment and nutrients used.
¶8 Wencel returned from France in February 2017 and checked the property within a few days of arriving. She found five or six men she did not know at the property. Inside the house, she found stacks of dirty dishes, holes in the walls, piles of clothing, damage to the bathroom flooring from the toilet overflowing, and wall-to-wall beds and sleeping bags in the living room. She also saw the name "Eudemonia" written on shirts, hats, and the greenhouse walls.
¶9 In addition to damaging the property, Brown had also failed to pay several utility bills and missed one month of rent. Wencel contacted Brown, who said he would get the damage fixed. When Brown failed to begin repairs in the weeks that followed, Wencel removed her remaining personal items from the house and began living with family and looking for an apartment to rent in Scottsdale. She met with Jones and his wife to discuss the damage to the property, explained she no longer wanted to lease the property, and told them they would need to purchase it.
¶10 Kingman police began investigating the property in March 2017. On March 27, 2017, police served a search warrant on the Department of Health Services to determine if Wencel had a valid medical marijuana card, if anyone else had a card connected to the property's address, or if the property was properly registered to cultivate marijuana. After confirming Wencel's card had expired in 2014 and that the property was not otherwise registered to cultivate marijuana, officers executed a search warrant on the property on March 31. Wencel met the officers at the property and cooperated in unlocking the gate and various structures on the property for them to search, including the greenhouse.
¶11 During the search, officers found over 200 marijuana plants in various stages of growth, along with over eight pounds of usable marijuana. Officers also discovered two extraction labs containing equipment for processing marijuana and making concentrates. In addition, police discovered shipping labels and a sales ledger.
¶12 Meanwhile, Wencel was interviewed by police. She told the officer that she owned the property and had access to it, but clarified it was leased to Jones and that Brown ran the operation. She explained she had, on multiple occasions, given Brown advice on how to register the property and grow marijuana properly. She admitted that she had accessed the property several times in the past month and had seen marijuana growing in the greenhouse. She acknowledged she did not have a valid medical marijuana card. Following the execution of the warrant, Wencel contacted an attorney to assist her in terminating the lease agreement and initiating eviction proceedings.
¶13 Wencel was indicted for various marijuana-related crimes. A trial was held in October 2019. The jury eventually convicted Wencel of the production of marijuana. The court suspended the imposition of a sentence, placed Wencel on two years of supervised probation, ordered her to complete 240 hours of community service, and ordered her to pay a fine totaling $7,320, along with other mandatory fees.
Wencel was charged alongside two codefendants: Brown and a man named Brandon Reynolds, who had previously leased space from Wencel and then worked for Brown after he began using the property. The charges against Reynolds were later dismissed. In case number CR-2018-00366, Brown pled guilty to one count of Attempted Production of Marijuana, an undesignated class 6 felony, and was placed on three years of supervised probation.
¶14 Wencel filed a timely notice of appeal. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).
ANALYSIS
I. Standard of Review
¶15 We review de novo the sufficiency of the evidence to support a conviction and determine only if substantial evidence exists to support the jury verdict. State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). "Substantial evidence is evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." Id. (quoting State v. Hausner, 230 Ariz. 60, 75, ¶ 50 (2012)) (internal quotation marks omitted). We view the evidence in the light most favorable to sustaining the verdict and resolve any conflicts in the evidence against the defendant. Id. We will not reweigh the evidence nor reassess the credibility of witnesses. State v. Tucker, 231 Ariz. 125, 138, ¶ 27 (App. 2012); State v. Scott, 113 Ariz. 423, 425 (1976).
II. Sufficient Evidence Supports the Verdict
¶16 On appeal, Wencel argues insufficient evidence supported her conviction for the production of marijuana. In particular, Wencel contends she merely gave advice about growing medical marijuana legally, but otherwise had no involvement in growing marijuana on the property. She also emphasizes that the lease precluded the tenants from conducting illegal activity and that when she discovered the tenants violated that provision, she acted to terminate the lease.
¶17 A person is guilty of the production of marijuana if they "grow, plant, cultivate, harvest, dry, process or prepare for sale" marijuana. A.R.S. §§ 13-3401(29), -3405(A)(3). "A person is criminally accountable for the conduct of another if . . . [t]he person is an accomplice of such other person in the commission of an offense." A.R.S. § 13-303(A)(3). An accomplice, as applicable here, is one "who with the intent to promote or facilitate the commission of an offense . . . [a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense" or one who "[p]rovides means or opportunity to another person to commit the offense." A.R.S. § 13-301(2)-(3). "Intent may be inferred from circumstances such as the relationship between the parties and their conduct before and after the offense." State v. Parker, 121 Ariz. 172, 174 (App. 1978).
¶18 A defendant bears the burden of proving, by a preponderance of evidence, that she is immune from prosecution for the production of marijuana based on her compliance with the Arizona Medical Marijuana Act ("AMMA"). See State v. Fields ex rel. Cnty. of Pima, 232 Ariz. 265, 269, ¶¶ 14-15 (App. 2013). Under the AMMA, a landlord who leases space to "a registered qualifying patient or a registered designated caregiver" for the cultivation of marijuana is immune from prosecution for the production of marijuana. See A.R.S. § 36-2811(I).
A registered qualifying patient who lives more than twenty-five miles from a dispensary may cultivate up to twelve marijuana plants. A.R.S. §§ 36-2801(1)(a)(ii), -2804.02. Similarly, a designated caregiver may cultivate up to twelve plants on behalf of a qualifying patient. A.R.S. § 36-2801(1)(b)(ii). A designated caregiver may assist multiple qualifying patients, but each caregiver may not assist more than five qualifying patients, meaning a caregiver may not grow more than sixty plants total. A.R.S. § 36-2801(1)(b)(ii), (5)(d).
¶19 Here, evidence showed that Wencel knew her tenants intended to grow marijuana on the property. She provided them a turnkey facility that was ready to produce marijuana, made informational diagrams, and gave other guidance about cultivation. Wencel stressed that she did not participate directly in the growing, but also testified that she was "perfectly willing" to do "[w]hatever was going to make their grow successful."
¶20 Wencel contends she believed the tenants were growing legally, in compliance with both the AMMA and the lease agreement that specified the property could only be used for a legal purpose. But, she admitted she never asked for verification of any patient or caregiver cards showing individuals were authorized to grow marijuana. Nor did she require that Jones or Brown produce valid registration certificates as part of the lease transaction. Further, after returning from France, Wencel accessed the property several times, went inside the greenhouse, and obtained keys and security codes for the facilities, yet took no steps to either verify the grow was legal or to notify law enforcement. Although Wencel did eventually take actions to terminate the lease of her property, she did not do so until after the police executed the search warrant, which was several weeks after she had returned from France and observed the situation at the property.
Section 6.1 of the lease agreement specified the property would only be used for "the Agreed Use, or any other legal use which is reasonably comparable thereto, and for no other purpose." The agreement defined "Agreed Use" broadly as the "use and operations of all parcels as needed," but Wencel stated that both parties understood the property would be used to grow marijuana. --------
¶21 On this record, a rational trier of fact could find there was sufficient evidence, beyond a reasonable doubt, to support Wencel's guilty verdict for the production of marijuana based on her actions as an accomplice to the illegal marijuana grow. See Pena, 235 Ariz. at 279, ¶ 5; see also State v. Cox, 214 Ariz. 518, 520, ¶ 8 (App. 2007).
CONCLUSION
¶22 For the foregoing reasons, we affirm Wencel's conviction.