## Facts

- Police seized thirty semi-mature marijuana plants from Sue C. Thayer’s backyard on August 2, 2007, after receiving a tip.
- Thayer was charged with knowingly and unlawfully cultivating more than twenty-five marijuana plants in violation of 18 V.S.A. § 4230(a)(4).
- Thayer began growing marijuana in 2003 to relieve severe symptoms of one son undergoing cancer treatment; after his death, she continued growing marijuana to treat another son’s chronic nausea and appetite loss caused by kidney-related medical problems.
- Thayer typically started fifty to one hundred seedlings indoors each spring, transplanted the strongest outdoors in June, and grew more than needed to offset expected crop losses.
- Thayer admitted that neither she nor her son was registered as a patient or caregiver under Vermont’s therapeutic use of cannabis statute.
- Vermont’s medical-cannabis statute allowed registered patients/caregivers to cultivate only limited numbers of plants and required regulated conditions, including secure indoor cultivation; Thayer grew more plants than permitted and grew them outdoors.
- Before trial, Thayer sought a jury instruction on the affirmative defense of necessity, asserting her conduct was needed to prevent her son’s suffering and that lawful alternatives were not practically available or adequate.

## Issues

1. Whether a defendant charged with cultivating more than twenty-five marijuana plants was entitled to present a common-law necessity defense based on medical need.
2. Whether Thayer made a prima facie showing of each element of necessity, including the absence of reasonable legal alternatives.
3. Whether Vermont’s therapeutic-use statute reflected a legislative policy choice that foreclosed necessity for conduct outside the statute’s limits.

## Decision

- The Vermont Supreme Court affirmed the trial court’s denial of Thayer’s request to present a necessity defense.
- The court held Thayer failed to make a prima facie showing on necessity, particularly the requirement that no reasonable legal alternative existed.
- The court also held that the medical-cannabis statutory scheme represented a legislative determination of when medical cultivation is permitted, which precluded expanding access through common-law necessity.
- The matter was remanded for further proceedings without a necessity instruction.

## Legal Principles

- Necessity is an affirmative defense requiring a prima facie showing on each element before a jury instruction is warranted.
- Necessity generally requires: (1) clear and imminent danger, (2) reasonable belief the unlawful act is necessary to avoid the danger, (3) avoided harm outweighs the harm of violating the law, and (4) no reasonable legal alternative.
- A necessity defense is unavailable when the legislature has made a deliberate policy choice through a detailed statutory scheme addressing the claimed harm and providing specific legal procedures and limits.
- Where a statute provides a regulated pathway for lawful conduct (e.g., registration and cultivation limits), a defendant’s failure to use that pathway ordinarily defeats the “no reasonable legal alternative” element.

## Conclusion

The court held that Thayer could not present a necessity defense because Vermont’s therapeutic-use statute provided regulated legal alternatives and reflected a legislative choice limiting medical cultivation, and Thayer’s noncompliance with that framework prevented a prima facie showing of necessity.


State v. Thayer, 188 Vt. 482 (2010)