Father, son acquitted in pot-grow case
By TERRY VAU DELL-Staff Writer
Posted: 06/23/2010 12:20:22 AM PDT
OROVILLE — A jury on Tuesday acquitted two Concow men of criminal charges in a medical marijuana grow on their property. Jurors said after the verdict they agreed Michael Edmond Kelly, 29, and his father Sean Joseph Kelly, 57, were part of a lawful medical marijuana collective.
The Kellys were found not guilty of two counts each of possession of marijuana for sale and illegal cultivation.
The son, who was acquitted in an unrelated 2003 medical marijuana trial, was found guilty of a misdemeanor Fish and Game violation for diverting or obstructing a stream to irrigate one or more of the gardens.
Michael Kelly said he felt the verdict was a victory for all medical marijuana collectives.
"I've been terrorized — me, my family and my community. We proved our innocence and the jurors spoke for the people," he said outside of court.
He and his father were twice arrested over a six-month period, first in October 2008 when Butte County sheriff's officers seized 35 recently harvested plants from a grow site on their Paiute Drive property in Concow.
Officers testified they confiscated an additional 377 small pot "clones" and several additional plants the following June from the Paiute site and a second parcel owned by the son off Jordan Hill Road.
During the two-week trial, several witnesses testified they had helped plant and tend to the grows as part of a loosely organized 16-member medical marijuana collective.
Judge William Lamb had initially refused to instruct the jury on the law pertaining to collectives, saying he believed there was evidence of impermissible sales.
The younger Kelly's attorney, Jodea Foster, charged outside of court the judge was violating his client's rights acting as "a 13th juror" by deciding issues of fact in the case.
Reversing himself Tuesday, the judge decided to ask the jury first to make findings whether either defendant intended to sell or give away marijuana to those outside the group of medical marijuana patients.
When the jury returned after 25 minutes, answering a resounding "no" to both questions, the judge gave the collective instruction sought by the defense and the attorneys delivered their closing summations.
Assistant district attorney Helen Harberts pointed to the amount of marijuana seized as proof the defendants were growing in excess of what was needed to meet medical needs.
During the trial, Butte County Sheriff's detective Jacob Hancock had quoted Michael Kelly as saying he planned to sell any excess pot to a cannabis club to help recoup their costs.
But the younger Kelly's attorney argued the defendant was only responding to a "hypothetical" question posed, and pointed out all members of the collective consistently had denied there was any excess marijuana, and didn't discuss selling or giving any away to others.
Neither was there any evidence associated with drug sales, such as packaging material, cash or "swanky homes and lavish cars," the father's attorney, Robert Radcliffe noted.
Radcliffe reminded the jury that when Sean Kelly was questioned, he told police "they were not in it for the money, but for the medicine."
The jurors deliberated nearly two hours more before acquitting the defendants on the two felony marijuana counts, finding Michael Kelly guilty of the stream alteration.
Jurors said afterward they believed the defendants were attempting to follow the law governing medical marijuana collectives.
"The prosecution did not show any evidence it was being sold or going to be sold. It just wasn't there," said Chico juror Cecil Pennock.
The amount of marijuana being grown by the collective was an issue for some jurors, he said.
"I think they were using quite a bit of pot and I personally hate to see that, but they were following the law," Pennock added.
Fellow juror Matthew Johnson, also of Chico, said they were hampered about much medical marijuana can be grown within a collective.
"The law is so vague it doesn't say anything about amounts," the juror noted. "The law should definitely be elaborated so there's more, like, stepping stones for people, so they know what they can do," the juror added.
Following the verdict, Michael Kelly vowed to sue the sheriff's detective who "stole my medicine" and to file a motion in court asking all the pot be returned to the members of the Concow collective.
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