Appeal by the State from grant of a motion to dismiss entered
2 January 2003 by Judge Ernest B. Fullwood in New Hanover County
Superior Court. Heard in the Court of Appeals 25 February 2004.
Attorney General Roy Cooper, by Assistant Attorney General
William B. Crumpler, for the State.
Crossley, McIntosh, Prior & Collier, by Samuel H. MacRae, for
defendant appellee.
McCULLOUGH, Judge.
On 3 April 2002, Detectives with the New Hanover County
Sheriff's Department, Vice and Narcotics Unit, located and seized
731 potted marijuana plants growing in the county. The plants
were discovered on property located in Castle Hayne in two storage
containers approximately 60 feet in length. Detectives had a
search warrant for the property pursuant to unrelated probable
cause. During the search of the property owner's residence, the
detectives discovered the marijuana plants. The property owner
told the detectives that the plants were defendant's. The growing operation discovered by the Vice Narcotics Unit
included lights with a timing system, fans, and an irrigation
system. Officers cut the plants at the point where they joined the
soil and bagged them.
On 4 April 2002, the plants were weighed at a Wilmington
business that sold weight scales. The documented weight of the
freshly cut marijuana was 25.5 pounds on that day. Following this
weighing, the plants were boxed and sent to the State Bureau of
Investigation (SBI) for further analysis. On the day the plants
were submitted to the SBI, 19 April 2002, they were characterized
as “wet” green plant material. On or about 7 May 2002, the plants
were weighed at SBI and recorded as weighing 6.9 pounds.
On 5 April 2002, defendant was arrested for violations of the
Controlled Substances Act. On 13 May 2002, defendant was indicted
by a grand jury for two counts of trafficking in marijuana: one
count based on possessing the substance; and one count based on
manufacturing the substance. Pursuant to N.C. Gen. Stat. § 90-
95(h)(1)(a) (2003), the amount alleged was in excess of 10 pounds,
but less than 50 pounds.
Defendant filed a pretrial motion to dismiss the indictments
charging the trafficking offenses. The hearing was held on 16
December 2002, and on 2 January 2003 the trial court issued an
order dismissing the two trafficking charges. The trial court
found as a matter of law “[t]hat the legal weight of marijuana is
that weight at which it is usable or suitable for consumption.”
Pursuant to this conclusion of law, the court found as a matter of
law that there was no evidence that the marijuana seized in thiscase was in excess of 10 pounds as required for a trafficking
offense. The State appealed, raising the single issue that it was
error by the trial court to dismiss the two charges of trafficking.
Proving the Weight of Marijuana
Defendant contends that the trial court correctly granted the
motion to dismiss the trafficking charges based on the court's
conclusion of law (A) that the weight of marijuana includes only
that marijuana which is “usable or suitable for consumption.” The
State assigned as error this conclusion of law. The State argues
that the weight at the time of seizure, as a matter of law, is the
critical weight when determining whether the quantity was
sufficient for a trafficking charge. Pursuant to our analysis
below, we hold that the trial court's interpretation of the
definition of “marijuana” as applied to the trafficking statute was
reversible error.
I. Standard of Review
The trial court order made the following conclusion as a
matter of law: “That the legal weight of marijuana is that weight
at which it is usable or suitable for consumption.” The trial
court found, under this legal conclusion, that the State offered no
evidence that the weight of the marijuana seized was over 10 pounds
and therefore dismissed the trafficking charges. The trial court's
conclusion was, in effect, a legal interpretation of N.C. Gen.
Stat. § 90-87(16) (2003), which defines marijuana as used in the
trafficking statute. We review such legal interpretations
de novo.
See State v. Mitchell, 217 N.C. 244, 7 S.E.2d 567 (1940).
II. Proving the Weight of Marijuana in North Carolina
A. Marijuana Defined
Defendant was indicted under N.C. Gen. Stat. § 90-95(h)(1)(a)
for “trafficking of marijuana” at a quantity in excess of 10
pounds, but less than 50 pounds. For the purposes of this charge,
marijuana is defined as:
(16) "Marijuana" means all parts of the plant
of the genus Cannabis, whether growing or
not; the seeds thereof; the resin
extracted from any part of such plant;
and every compound, manufacture, salt,
derivative, mixture, or preparation of
such plant, its seeds or resin, but shall
not include the mature stalks of such
plant, fiber produced from such stalks,
oil, or cake made from the seeds of such
plant, any other compound, manufacture,
salt, derivative, mixture, or preparation
of such mature stalks (except the resin
extracted therefrom), fiber, oil, or
cake, or the sterilized seed of such
plant which is incapable of germination.
N.C. Gen. Stat. § 90-87(16) (2003). Those parts of the plant not
included in the statutory definition of marijuana, such as the
mature stalks and sterilized seeds, are necessarily not to be
included in the weight of the marijuana when determining a
trafficking charge. These exclusions from the definition are not
“marijuana.” This definition tracks almost verbatim that of the
federal statutory definition of marijuana.
See 21 U.S.C. § 802(16)
(2003).
Proving the weight of the marijuana is an element of the
trafficking offense. The State has the burden of proving at trial
beyond a reasonable doubt that defendant committed the offenses by
possessing and manufacturing more than 10 pounds of the substance.
State v. Diaz, 88 N.C. App. 699, 701-02, 365 S.E.2d 7, 9,
cert.
denied, 322 N.C. 327, 368 S.E.2d 870 (1988). For this issue tosurvive a motion to dismiss on a trafficking charge, the State must
come forth with substantial evidence, viewed in a favorable light,
that the weight of the marijuana meets the 10-pound threshold.
State v. Mitchell, 336 N.C. 22, 26-27, 442 S.E.2d 24, 27 (1994). In
reviewing a motion to dismiss, the trial court should not weigh the
evidence, consider evidence unfavorable to the State, or determine
any witness' credibility.
State v. Parker, 354 N.C. 268, 278, 553
S.E.2d 885, 894 (2001),
cert. denied, 535 U.S. 1114, 153 L. Ed. 2d
162 (2002). The weight element becomes more critical as the State's
evidence of weight approaches the minimum weight charged.
State v.
Anderson, 57 N.C. App. 602, 608, 292 S.E.2d 163, 167,
cert. denied,
306 N.C. 559, 294 S.E.2d 372 (1982).
B. Presumption All Parts of the Plant are “Marijuana”
This Court has required an affirmative showing by the
defendant that the weight of marijuana, for purposes of meeting the
weight element of a trafficking charge, improperly included one of
the exclusions from the definition. In
Anderson, we held that the
burden is on the defendant to show that stalks were mature or that
any other part of the matter or material seized did not qualify as
“marijuana.”
Id. The Court in
Anderson based their analysis on
that of
State v. Childers, 41 N.C. App. 729, 255 S.E.2d 654,
cert.
denied, 298 N.C. 302, 259 S.E.2d 916 (1979),
where this Court held
that if the defendant does not make any showing as to the fertility
of marijuana seeds, and offers no proof that they were in any
different state from that in which they naturally occurred, the
State is entitled to assume that the seeds are not sterilized and
to proceed upon that assumption until the contrary is shown.
Id.at 734, 255 S.E.2d at 657-58,
cert. denied, 298 N.C. 302, 259
S.E.2d 916 (1979). Therefore, it is the defendant's burden to show
that any part of the seized matter is not “marijuana” as defined.
In such a case where the defendant does come forth with evidence
that the State's offered weight of the marijuana includes
substances not within the definition (e.g., mature stems or sterile
seeds), it then becomes the jury's duty to accurately “weigh” the
evidence.
C. Moisture Naturally Contained within Marijuana
Both the State and defendant offer competing contentions, each
as a matter of law, as to whether moisture contained in marijuana
is within the definition of marijuana such that it should be
considered part of the drug's weight under N.C. Gen. Stat. § 90-95.
This issue can also be framed as follows: What is the proper time
to weigh marijuana, at seizure (still containing moisture), or when
it is usable or suitable for consumption (after it has completely
dried)? The State contends that moisture in the marijuana is a
part of the definition and therefore the determining weight is at
seizure; defendant contends that only marijuana that is usable or
suitable for consumption is marijuana, that being the dried weight.
We find no authority in North Carolina exactly on point for either
of these contentions. However, there is North Carolina case law
that impliedly accepts the State's contention that the correct
weight is that at seizure and therefore containing its natural
moisture. There is federal guidance on point as well.
1. Usable or Suitable for Consumption The defendant argues, as the trial court found in this case,
that the determinative weight of marijuana for purposes of the
trafficking statute is when the marijuana is usable or suitable for
consumption. We disagree.
Defendant cites
United States v. Lipp, 54 F. Supp. 2d 1025 (D.
Kan. 1999),
aff'd, 215 F.3d 1338 (2000), as guidance for their
interpretation of “marijuana” as read in the North Carolina
statutes. The
Lipp case, also dealing with moist marijuana and its
weight for the purpose of federal sentencing, interpreted 1993 and
1995 amendments to the Federal Sentencing Guidelines (FSG). These
amendments came in response to district courts that were issuing
sentences for trafficking based on a weight of marijuana that
included its natural water content.
See United States v.
Pinedo-Montoya, 966 F.2d 591 (10th Cir. 1992) (holding that the
district court properly considered the moisture content in the
calculation of the weight of the marijuana for sentencing
purposes);
United States v. Garcia, 925 F.2d 170 (7th Cir. 1991)
(holding that, because marijuana was not otherwise specified, the
entire weight, including any existing moisture content, is relevant
for sentencing purposes).
Effective 1 November 1993, Amendment 484 changed Application
Note 1 of the FSG to include the following language:
Mixture or substance does not include
materials that must be separated from the
controlled substance before the controlled
substance can be
used. Examples of such
materials include the fiberglass in a
cocaine/fiberglass bonded suitcase, beeswax in
a cocaine/beeswax statue, and waste water from
an illicit laboratory used to manufacture a
controlled substance. If such material cannot
readily be separated from the mixture orsubstance that appropriately is counted in the
Drug Quantity Table, the court may use any
reasonable method to approximate the weight of
the mixture or substance to be counted.
U.S. Sentencing Guidelines Manual § 2D1.1, cmt., n.1 (2004)
(emphasis added). An additional amendment was added in 1995,
Amendment 518, providing the following:
Similarly, in the case of marihuana
having a moisture content that renders the
marihuana
unsuitable for consumption without
drying (this might occur, for example, with a
bale of rain-soaked marihuana or freshly
harvested marihuana that had not been dried),
an approximation of the weight of the
marihuana without such excess moisture content
is to be used.
Id. (emphasis added). The Commentary to Amendment 518 is as
follows:
[T]his amendment clarifies the treatment of
marihuana that has a moisture content
sufficient to render it unusable without
drying (e.g., a bale of marihuana left in the
rain or recently harvested marihuana that has
not had time to dry). In such cases, using the
weight of the wet marihuana can increase the
offense level for a factor that bears no
relationship to the scale of the offense or
the marketable form of the marihuana. Prior to
the effective date of the 1993 amendments, two
circuits had approved weighing wet marihuana
despite the fact that the marihuana was not in
a usable form.
United States v. Pinedo-
Montoya, 966 F.2d 591 (10th Cir. 1992);
United
States v. Garcia, 925 F.2d 170 (7th Cir.
1991). Although Application Note 1 in the
Commentary to § 2D1.1, effective November 1,
1993 (pertaining to unusable parts of a
mixture or substance) should produce the
appropriate result because marihuana must be
dried before being used, this type of case is
sufficiently distinct to warrant a specific
reference in this application note to ensure
correct application of the guideline.
18 USCS Appx. C, § 518 (2004). Defendant correctly interprets these amendments as a clear and
intended shift from the
Garcia and
Pinedo-Montoya holdings, and
that the weight of marijuana for federal sentencing purposes must
be that when it is in its usable form, meaning suitable for
consumption and dried. Defendant argues that the lower court's
dismissal of the trafficking charge in this case, using the FSG for
its interpretation of “marijuana” to exclude moisture content as a
matter of law, should be affirmed. Defendant argues that these
amendments to the FSG provide the only guidance for North Carolina
courts in determining the effect of moisture content in marijuana
for the purposes of the weight element of the North Carolina
trafficking statute. Furthermore, they provide the jury a standard
as to the correct weight to consider.
We do not find the “usable or suitable for consumption”
standard to be within North Carolina's statutory definition of
marijuana. In federal court, the question of whether the weight of
the controlled substance seized is an element of the offense that
must be found beyond a reasonable doubt or a factor in sentencing
that must be found by a preponderance of the evidence, is one that
has been in great dispute since the Supreme Court rendered its
decision in
Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435
(2000) (holding that factors increasing a defendant's sentence
beyond the statutory maximum of the crime charged, with the
exception of prior convictions, must be proven beyond a reasonable
doubt). The divided circuits on this issue, and the multitude of
district court analyses on this issue, make the FSG less
persuasive.
See 21 U.S.C. 841 (the federal trafficking statute);
see also United States v. McAllister, 272 F.3d 228, 232-33 (4th
Cir. 2001) (finding § 841 still constitutional);
United States v.
Buckland, 259 F.3d 1157, 1163-68 (9th Cir. 2001),
reh'g en banc
granted, 265 F.3d 1085 (2001) (holding § 841 facially un-
constitutional). Amendments 484 and 518 to the FSG came before
Apprendi, and those amendments were drafted with the understanding
that a judge could constitutionally approximate the quantity of the
seized substance by a preponderance of the evidence for sentencing
purposes.
Apprendi has sufficiently changed the sentencing
landscape on this issue, and we believe the FSG amendments offer
little in the way of guidance.
In North Carolina, establishing the weight element of a
trafficking charge is a question the jury must determine beyond a
reasonable doubt. This requires a clear standard be given to the
jury in making this determination. While “usable and suitable for
consumption” is one such standard, such a point falls within a
spectrum of times and thus weights. We therefore interpret our
definition of “marijuana” to mean marijuana at the point of
seizure.
See State v. Lemonds, 160 N.C. App. 172, 175, 584 S.E.2d
841, 842-43 (2003) (where there were three substantially different
weights taken, but all above 10 pounds). Accordingly, we hold that
the trial court improperly read into the definition of marijuana
“usable or otherwise suitable for consumption,” and thus improperly
disregarded the 25.5-pound weight offered by the State on the
weight element.
B. The Weight at the Point of Seizure Determining the weight of the marijuana at the point of
seizure has been accepted
sub silentio by this Court in trafficking
cases. In
Anderson, 57 N.C. App. at 607, 292 S.E.2d at 166, North
Carolina authorities harvested two truckloads of material alleged
to be marijuana. The evidence of weight was 2,700 pounds, or
approximately 35% above the statutory threshold of 2,000 pounds.
Id. The State's evidence on the weight of each of these truckloads
was established on the day of seizure.
Id. In
State v. Simmons, 66
N.C. App. 402, 407, 311 S.E.2d 357, 360 (1984), eight truckloads of
marijuana were weighed at the time of seizure. One of these loads
contained plants that had been pulled up by the roots, while the
remaining loads contained loads that had been mown or handpicked.
Id. Some of the plants were damp because of rain that had
interrupted the harvesting process.
Id. The loads were weighed by
officials of the License, Theft, and Weight Section of the North
Carolina Division of Motor Vehicles and were found to weigh 16,620
pounds.
Id. The State's evidence of weight was 16,620 pounds, or
66% above the statutory threshold of 10,000 pounds.
Id. at 406,
311 S.E.2d at 359. In
State v. Grainger, 78 N.C. App. 123, 126,
337 S.E.2d 77, 79-80 (1985),
cert. denied, 316 N.C. 198, 341 S.E.2d
572 (1986), the weight of three truckloads of marijuana were taken
at the time of seizure yielding approximately 4,800 pounds, or
approximately 141% above the statutory threshold of 2,000 pounds.
In
Anderson,
Simmons, and
Grainger, the weight of the marijuana
taken
at the point of seizure was found sufficient to survive a
motion to dismiss without any concern over moisture content of thefreshly harvested plants, and without concern over the usability
and consumable state of the plants.
In this case, at the point of seizure, the marijuana plants
weighed 25.5 pounds, or approximately 155% above the statutory
threshold of 10 pounds. In light of our prior decisions, we hold
this to be clear and substantial evidence that defendant possessed
over 10 pounds of marijuana as defined in the statute.
Anderson's,
Simmons's, and
Grainger's presumed acceptance of
weighing the marijuana at the point of seizure comports with the
definition of marijuana. The first portion of the North Carolina
definition of marijuana states, “all parts of the plant of the
genus Cannabis,
whether growing or not.” N.C. Gen. Stat. § 90-
87(16) (emphasis added.) The definition then goes on to list a
number of ways “all parts” of the plant may be used illegally,
expanding the definition greatly (e.g., “derivative, mixture”).
Id.
After this expansive portion of the definition, the definition then
lists those things excluded from the definition (e.g., mature
stalks and sterilized seeds).
Id. The moisture of the plant is not
listed as an exclusion from the definition, though any moisture
within a mature stalk would impliedly fall out of the definition.
As to proving an exclusion from the definition, North Carolina case
law is clear that this is defendant's burden.
See Anderson, 57
N.C. App. at 608, 292 S.E.2d at 167
; and
Childers, 41 N.C. App. at
734, 255 S.E.2d at 657-58.
Though the North Carolina definition of marijuana tracks that
of the federal statutory definition, the amendments to the FSG do
not affect our interpretation of marijuana as defined in NorthCarolina. N.C. Gen. Stat. § 90-81 was last amended in 2003,
approximately ten years after FSG Amendment 484, and approximately
eight years after FSG Amendment 518. The North Carolina legislature
has had ample time to make the requisite changes to the statutory
definition of marijuana to track these FSG amendments and
specifically exclude the plant's natural moisture content from the
definition of “marijuana,” but has thus far chosen not to do so.
Because our legislature has chosen to maintain the federal
definition of “marijuana,” without incorporating any of the FSG
modifications to the North Carolina definition, we find the pre-
amendment cases of
Garcia and
Pinedo-Montoya as guideposts for our
interpretation of the North Carolina definition.
Garcia found
that:
There can be little doubt that water may
constitute an integral part of a "mixture or
substance" containing a detectable amount of
marijuana. Indeed, water is a natural
component of the growing marijuana plant and
is arguably included in the statutory
definition of the drug itself. Section 802(16)
defines marijuana as "all parts of the plant
Cannabis sativa L., whether growing or not;
the seeds thereof; the resin extracted from
any part of such plant; and every compound,
manufacture, salt, derivative, mixture, or
preparation of such plant, its seeds or
resin," but specifically excludes only mature
stalks of the marijuana plant and their
derivative products from the definition. 21
U.S.C. § 802(16).
Garcia, 925 F.2d at 172. The
Pinedo-Montoya court interpreted
Garcia as follows:
Additionally, the court believed water is
arguably included within the statutory
definition of marijuana. 21 U.S.C. § 802(16).
While the court acknowledged that the moisture
content of the marijuana may affect its
marketability, the court noted itsinterpretation had the result of minimizing
judicial concerns about when the marijuana was
harvested and how it was dried, processed and
stored.
Pinedo-Montoya, 966 F.2d at 595. Both
Pinedo-Montoya and
Garcia
interpret the federal definition of marijuana to arguably include
the moisture content of the plant.
The North Carolina case law of
Anderson, Simmons,
and
Grainger, impliedly accept that the determinative weight of
marijuana is at seizure. Furthermore, the definition requires that
all parts of the plant, growing or not, meet the definition of
marijuana for purposes of its weight. For a defendant to challenge
the State's evidence of the weight of marijuana at the time of
seizure, we require an affirmative showing of a specific exclusion
to the definition: mature stalks (
Anderson), sterile seeds
(
Childers), or some other extraneous material that was included in
the weighing (
e.g., excess water). This then should go to the jury
to “balance.”
III. Conclusion
Pursuant to the analysis above, we believe there was
sufficient evidence for the State to survive the motion to dismiss
on the trafficking charges. The evidence of the 25.5-pound weight
of the marijuana, taken and recorded the day after it had been
seized, is substantial evidence that the weight of the marijuana
exceeds the 10-pound threshold for a conviction under N.C. Gen.
Stat. § 90-95(h)(1)(a).
Mitchell, 336 N.C. at 26-27, 442 S.E.2d at
27. This weight correctly included weight of the moisture naturally
within the plant. At trial, the defendant is free to challenge,
among other facets of the State's case, the method the marijuanawas weighed, the scales used, and whether all of the substance
weighed was marijuana as defined in N.C. Gen. Stat. § 90-87(16).
Furthermore, defendant could offer as evidence the 6.9-pound weight
taken of the marijuana at the SBI as evidence that there was excess
water or other extraneous debris in the first recorded weight
because the disparity between the two figures is beyond that of
typical dehydration.
(See footnote 1)
Ultimately, these are issues of fact for a
jury to decide.
We have reviewed all other assignments of error and find them
moot in light of the issues addressed herein. Therefore, the
granting of a motion to dismiss by the trial court on the two
trafficking charges is
Reversed.
Judges HUNTER and LEVINSON concur.
Footnote: 1