State v. Thayer

Thayer (defendant) began growing marijuana in 2003 for her older son in an attempt to alleviate the negative side effects of his treatments for leukemia. Tragically, her older son died, but Thayer continued growing the plants to treat her younger son, who suffered from a wasting condition as a result of life-limiting kidney disease. Thayer was a master gardener and grew the marijuana outside, growing more plants than were strictly necessary for her sons’ usage in order to ensure a consistent supply and compensate for natural crop losses. In 2004, legislation was passed in Vermont that allowed for the legalization of home growing of marijuana for registered medical users, limited to a maximum of nine plants and requiring secure indoor cultivation. Even after this legislation was passed, however, Thayer continued to grow more plants than was legally allowed, outdoors, and she failed to register as a legal medicinal grower as required under the legislative scheme. In 2007, Thayer’s plants were confiscated, and she was charged with a drug-cultivation felony. Thayer petitioned to present a necessity defense at trial. The trial court refused to allow her to present the defense, finding that she had failed to provide prima facie evidence in support of the elements of the defense. Thayer requested an interlocutory review of the court’s refusal, and the Vermont Supreme Court granted the request.