Full Opinion (html_with_citations)

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      Submitted September 2, reversed and remanded December 7, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                    MICHAEL MEHDI KARIM,
                       Defendant-Appellant.
                    Beaverton Municipal Court
                      RU510017671; A178151
522 P3d 24

    Defendant was found guilty of use of marijuana in a motor vehicle, ORS
811.482, a Class B traffic violation. Under ORS 811.482, a person commits that
violation by “consum[ing] in any manner a marijuana item while in a motor vehi-
cle when the motor vehicle is upon a highway,” with “marijuana item” having
the meaning given that term in ORS 475C.009. On appeal, defendant argues,
and the state concedes, that a hemp cigarette of the type that defendant claims
to have smoked on the day in question—i.e., a hemp cigarette containing less
than 0.3 percent tetrahydrocannabinol (THC)—is not a “marijuana item” for pur-
poses of ORS 811.482. Held: The trial court misinstructed itself on the meaning
of “marijuana item” when it found defendant guilty of violating ORS 811.482. The
described hemp cigarette is not a “marijuana item” for purposes of ORS 811.482.
   Reversed and remanded.



   Juliet J. Britton, Judge.
   Michael Karim filed the brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
   AOYAGI, J.
   Reversed and remanded.
26                                             State v. Karim

        AOYAGI, J.

         Defendant appeals a judgment convicting him of
use of marijuana in a motor vehicle, ORS 811.482, a Class B
traffic violation. “A person commits the offense of use of
marijuana in a motor vehicle if the person consumes in any
manner a marijuana item while in a motor vehicle when the
motor vehicle is upon a highway.” ORS 811.482(2) (emphasis
added). As explained below, we agree with the parties that,
as a matter of statutory construction, industrial hemp is not
a “marijuana item” for purposes of ORS 811.482. Because
the court misinstructed itself on the law in finding defen-
dant guilty, we reverse the judgment. We remand for a new
trial, however, because the court’s misconstruction of the
statute led it to believe that it did not matter whether it
was marijuana or hemp that defendant had smoked; con-
sequently, the court never made a factual finding on that
issue.

         In January 2022, a police officer conducted a traf-
fic stop of defendant, after seeing him run a stop sign.
Defendant was cited for failure to obey a traffic signal,
ORS 811.265; that citation is not at issue in this appeal.
Defendant was also cited for use of marijuana in a motor
vehicle, ORS 811.482, which he contested.

         At trial, the officer testified that, when he stopped
defendant, he smelled a “very strong” odor of “marijuana”
coming from the vehicle and therefore raised the issue of
marijuana use during the traffic stop. A video recording of
the entire 27-minute stop was admitted into evidence, and
a two-minute excerpt was played at trial. The video shows
that defendant was alone in the vehicle. In the excerpt
played at trial, the officer told defendant that he smelled
burnt “marijuana” coming from defendant’s vehicle and that
defendant needed to “manage [his] marijuana stuff” so that
he could “drive safely without having marijuana be a part of
that.” Defendant responded, “That makes sense.” The officer
asked defendant why he was “smoking and driving,” to which
defendant responded that it was “something that I just need
to stop doing altogether.” Defendant acknowledged that it
was a “habit.” In other parts of the video, not played at trial
Cite as
323 Or App 25
 (2022)                                                 27

but admitted into evidence, the officer repeatedly referred to
the smell of “marijuana,” the law regarding driving under
the influence of intoxicants, and the general prohibition on
using “marijuana” in a vehicle. In response, defendant never
mentioned hemp and arguably made an adoptive admission
to smoking “marijuana” while driving.
         After the close of the state’s evidence, defendant,
appearing pro se, testified that what he had smoked while
driving was “hemp,” which is “something you can buy at
the gas station.” Regarding its tetrahydrocannabinol (THC)
content, defendant described the package as stating that
the product contained “less than 0.3 percent THC by dry
weight” but that it was “not THC-free” and that “[t]his very
low amount of THC may be detectable by stringent drug
tests, protocols for employment, health and insurance pur-
poses, but it’s classified as hemp.”
         Defendant then raised the issue of whether “hemp”
qualified as a “marijuana item under the statute.” The state
(which had no one present except the police officer) took no
position on that issue. The court took a recess to read the
statute and review the definition of “marijuana.”1 When the
court returned, it described the statute as containing a “very
broad definition” of “marijuana item” that encompasses any
“product intended for human consumption or use.” Pointing
to defendant’s own testimony that he had smoked a product
that was sold at gas stations and intended for human con-
sumption, the court found defendant guilty without further
discussion.
         On appeal, defendant reiterates his argument that
a hemp cigarette of the type that he described in his trial
testimony does not meet the definition of a “marijuana item”
for purposes of ORS 811.482. Defendant has refined his
argument on appeal, but preservation is not disputed, and
we agree that the issue is adequately preserved for appeal.
As for the merits, the state concedes that the trial court mis-
construed the statute.

    1
      The court stated that it was going to read the definition of “marijuana” in
“ORS 475B.015.” In 2021, ORS 475B.015 was amended in a manner immaterial to
this case, and then renumbered as ORS 475C.009. It is irrelevant that the court
cited the prior version of the statute.
28                                                            State v. Karim

         “A person commits the offense of use of marijuana
in a motor vehicle if the person consumes in any manner
a marijuana item while in a motor vehicle when the motor
vehicle is upon a highway.” ORS 811.482(2). “ ‘Marijuana
item’ has the meaning given that term in ORS 475C.009.”
ORS 811.482(1)(b). That is, it “means marijuana, cannabi-
noid products, cannabinoid concentrates and cannabinoid
extracts.” ORS 475C.009(25). Each of those terms is then
further defined, with “industrial hemp” expressly excluded
from the definitions of both “marijuana” and “cannabinoid”
products.2 “ ‘Marijuana’ means the plant Cannabis fam-
ily Cannabaceae, any part of the plant Cannabis family
Cannabaceae and marijuana seeds[,]” ORS 475C.009(23)(a),
but it expressly “does not include * * * [i]ndustrial hemp[,]”
ORS 475C.009(23)(b)(A). “ ‘Cannabinoid product’ means a
cannabinoid edible and any other product intended for
human consumption or use, including a product intended
to be applied to the skin or hair, that contains cannabinoids
or dried marijuana leaves or flowers[,]” ORS 475C.009(8)(a),
but it expressly “does not include * * * [i]ndustrial hemp[,]”
ORS 475C.009(8)(b)(D).
         “ ‘Industrial hemp’ has the meaning given that term
in ORS 571.269.” ORS 475C.009(19). That is, it means “the
plant species Cannabis sativa that has a tetrahydrocan-
nabinol concentration that complies with the concentration
specified by the [Department of Agriculture] by rule.” ORS
571.269(9)(a)(A); see also ORS 571.269(9)(a)(B) (allowing the
Department of Agriculture to “further define[ ]” the mean-
ing of “industrial hemp”). The Department of Agriculture
has specified by rule that the applicable THC concentration
for industrial hemp is 0.3 percent, specifically “an average
total tetrahydrocannabinol concentration that does not
exceed 0.3 percent on a dry weight basis.” OAR 603-048-
0010(24)(a).
        We agree with the parties that the trial court erred
in concluding that a hemp cigarette of the type described
by defendant is a cannabinoid product intended for human
     2
       The state does not argue that a hemp cigarette could meet the definition
of a “cannabinoid concentrate,” ORS 475C.009(5), or “cannabinoid extract,” ORS
475C.009(7), nor did the trial court rely on those definitions, so we do not discuss
them.
Cite as
323 Or App 25
 (2022)                                                    29

consumption and therefore a “marijuana item” for purposes
of ORS 811.482. By its plain language—once one works
through all the relevant cross-referenced statutory and
administrative provisions—the described hemp cigarette
qualifies as industrial hemp and therefore does not qualify
as a “marijuana item” for purposes of ORS 811.482.

        That leaves the question of disposition. Both parties
request that we “reverse” the judgment of conviction, with-
out further explanation. We agree that the judgment should
be reversed, but we conclude that it also must be remanded.

          Neither party has identified the exact nature of the
trial court ruling that is challenged on appeal. However, hav-
ing reviewed the record, we understand the ruling to be in the
nature of an erroneous self-instruction in a bench trial.3 See
State v. Colby,
295 Or App 246, 252
,
433 P3d 447
 (2018) (“[I]t
is not uncommon for a court to receive proposed instructions
from the parties during the course of a bench trial and to
instruct itself on the correct version of the law, thereby cre-
ating a record that allows us to review whether the court
applied the correct principles of law in reaching its ver-
dict.”). In short, defendant requested that the court instruct
itself on the meaning of “marijuana item” in ORS 811.482
so as to exclude “hemp.” The court misconstrued the stat-
ute and therefore misinstructed itself. That, in turn, led the
court to erroneously believe that it did not matter whether
it was marijuana or hemp that defendant had smoked and,
consequently, to not make a factual finding on that issue.
The court instead reasoned that, by his own admission,
defendant had violated the statute as the court construed

     3
       The other possibility would be to view defendant’s argument to the trial
court as a motion for judgment of acquittal. No attorneys were present at defen-
dant’s trial, and defendant did not use formal legal terminology, leaving some
room for interpretation. However, having reviewed the record, we are convinced
that defendant was making an argument as to whether hemp was a “marijuana
item,” which is in the nature of an instruction request, rather than arguing that
the trial court was required to believe that he smoked hemp instead of marijuana
and to grant a judgment of acquittal on that basis. See State v. Lewis,
266 Or App 523, 524
,
337 P3d 199
 (2014) (the question on a motion for judgment of acquittal
is whether, when the evidence is viewed in the light most favorable to the state, “a
rational trier of fact, making reasonable inferences, could have found the essen-
tial elements of the crime proved beyond a reasonable doubt.” (Internal quotation
marks omitted.)).
30                                          State v. Karim

it. Under the circumstances, the proper remedy is to reverse
and remand for a new trial on the alleged violation of ORS
811.482.
        Reversed and remanded.