Pubdate: Tue, 31 Jul 2007 Source: Maui News, The (HI) Copyright: 2007 The Maui News Contact: http://www.mauinews.com/ Details: http://www.mapinc.org/media/2259 Author: Lila Fujimoto, Staff Writer JUDGE DENIES REQUEST TO DISMISS DRUG CHARGES WAILUKU - Saying a marijuana-use requirement in the Religion of Jesus Church appeared to have resulted from successful state prosecution rather than religious belief, a judge has denied a request to dismiss drug charges against the church's founder. James Kimmel is awaiting a Sept. 10 trial in 2nd Circuit Court, following the court ruling earlier this month. The 72-year-old Kula resident has pleaded not guilty to felony charges of second-degree commercial promotion of marijuana and possessing drug paraphernalia. The charges stemmed from police seizure of more than 2 pounds of processed marijuana during a Feb. 22, 2006, search of a residence on Ulumalu Place in Paia. Also at the home were residents James A. Greathouse, 56, and his wife, Liz O'Garvey, 52, who are awaiting trial after pleading not guilty to first-degree commercial promotion of marijuana and possessing drug paraphernalia. They were charged in connection with 137 marijuana plants that police reported finding at the home as well. When a police officer knocked on the door without a search warrant that day, "I invited them to come in because they were there," Kimmel testified during a court hearing in March. He said the 2 pounds of marijuana were in plain view "because I had nothing to hide, nothing to be afraid of." "They smelled it," Kimmel said. "We were smoking when they came. There was no denying it. "I wanted to be honest and accommodate the officer so he could do what he had to do. All I did was admit we had the pot on hand." Kimmel said he and the others were using the marijuana as part of a service for the Religion of Jesus Church, which he founded in 1969 in Sonoma, Calif. "It's been known as the marijuana church to many people because we use cannabis as our sacrament," Kimmel said. "Our religion requires it. It's the way we have personal communion with Jesus, with God." During the July 19 hearing, Kimmel's lawyer, Michael Glenn of Honolulu, argued that the charges against Kimmel should be dismissed because applying the law to him violated his constitutional right to freedom of religion. "All he's asking is have respect and tolerance for his religious belief," Glenn said. He maintained Kimmel was being prosecuted "for his sacramental use of a benign nontoxic herb that has, for thousands of years, been used in the same way he's using it today." But Deputy Prosecutor Timothy Tate called marijuana a "powerful hallucinogenic." "The most common reason for using marijuana is not medical. It's recreational for the psychoactive feature," Tate said. "Marijuana is the most widely abused psychoactive substance in the United States." Referring to Kimmel's testimony that he "shared" marijuana with others, Tate said: "This isn't a personal-use case. This is a case where it becomes a commercial enterprise." Tate said Kimmel and other witnesses described the church as having no written doctrine and requiring no training to be a member. "He can have faith, but it's hard to define what that faith is based on the evidence in this case," Tate said. The mandate requiring church members to use marijuana was put in place in April 1997 after Dennis Shields, a Religion of Jesus Church pastor, was found guilty of misdemeanor marijuana possession on the Big Island in 1994. Shields had unsuccessfully argued that under the U.S. Religious Freedom Restoration Act of 1993, he had a right to possess the 7.9 ounces of marijuana that were found in his house. "The state didn't seem to want to recognize the legitimacy of our church unless we had a mandate," Kimmel said, referring to the outcome of Shields' court case. "The court required a mandate." In denying Kimmel's request to dismiss the charges against him, 2nd Circuit Judge Joseph Cardoza noted that the Religion of Jesus Church mandate followed the successful state prosecution. "The mandate in this question was not one prompted by religious belief, in this court's view, but rather by the outcome of a criminal proceeding," Cardoza said. - --- MAP posted-by: Derek