Court rejects religious pot defense
by Joel Coffidis

April 18, 1998 - The Daily Olympian - olympian@olywa.net

TACOMA -- A Littlerock man who defended his possession of marijuana on religious grounds was dealt a legal setback Friday.

The state Court of Appeals in Tacoma threw out the religious freedom defense in a year-old case that prosecutors said was a threat to topple the state's drug laws.

The ruling sends the case back to Thurston County Superior Court for a possible retrial - although it might first be appealed to the state Supreme Court. * Gene Balzer, 33, had claimed his role as a shaman who used marijuana as a sacrament should excuse him from prosecution.

Olympia police say Balzer had 1 pound of marijuana in his car when he was arrested Nov. 24,1996.

Prosecutors later charged him with possession of marijuana and cocaine, and possession of marijuana with intent to deliver.

Last year, as Balzer's trial was winding down, Thurston County Superior Court Judge Richard Hicks ruled that jurors could consider Balzer's religious beliefs when weighing evidence on the marijuana-possession charge.

But Hicks restricted the religious defense to the marijuana.

The defense was based on Balzer's contention that he is a member of two religious groups, the Rastafarians and the Rainbow Family of Living Light. He argued that marijuana was central to his spiritual message as a shaman or medicine man.

The appeals court said Judge Hicks erred.

The court said there are necessary limits to religious freedom.

"Although Balzer's freedom to believe in the religious use of marijuana is unfettered and absolute ... his use and distribution of the drug contravenes laws specifically and properly enacted for the health, morals, safety and general welfare of the people of the state.

"Accordingly, Balzer's free exercise of religion must yield to the 'peace and safety of the state,' " wrote Appeals Judge Elaine Houghton, author of the ruling.

The court also ruled that Hicks erred in instructing the jury regarding another of Balzer's defenses, that he unknowingly possessed the cocaine.

Balzer said he will meet with his appeals lawyer, Tom Doyle, on Monday. Balzer said Doyle told him Friday that he will appeal the ruling to the state Supreme Court.

"We're feeling pretty positive that it's going to a higher court," Balzer said.

Jon Tunheim, a Thurston County deputy prosecutor, said he was not surprised by Friday's ruling. But if the appeals court ruled in favor of Balzer, it could have toppled the state's marijuana laws, Tunheim said.

"I'm glad the Court of Appeals has closed that door," Tunheim said.

In the meantime, the jury that heard the case against Balzer has been in limbo since April 4, 1997, awaiting the higher court's review.

Jim Powers, the county's chief deputy prosecutor, said his office will review whether to seek a mistrial because jurors, who have yet to begin deliberations, have gone so long since hearing the evidence.

Joel Coffidis covers courts for The Olympian. He can be reached at 754-5447.

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