Dickerson v. State

• Decision Date: 20 April 1982
• Docket Number: 7 Div. 902
• Citation: 414 So.2d 998
• Parties: Frank Larry DICKERSON v. STATE of Alabama.
• Court: Alabama Court of Criminal Appeals

Page 998

414 So.2d 998

Frank Larry DICKERSON v. STATE of Alabama.

7 Div. 902.

Court of Criminal Appeals of Alabama.

April 20, 1982.

Rehearing Denied May 18, 1982.

Ralph L. Brooks, Anniston, for appellant.

Charles A. Graddick, Atty. Gen., and Bill North, Asst. Atty. Gen., for appellee.

TYSON, Judge.

Frank Larry Dickerson was indicted by the March, 1981, Session of the Calhoun County Grand Jury for trafficking in cannabis contrary to § 20-2-80(1)(a), Code of Alabama 1975 (Supp.1981). A mistrial was declared in appellant's first trial. He was retried on September 28 and 29, 1981, with the jury finding him guilty as charged. He was sentenced to five years' imprisonment and assessed a fine of $25,000.00. From that conviction he now appeals.

Around 6:15 p.m. on Saturday, November 15, 1980, District Investigator Charles Winfrey, along with several members of the Anniston Police Department, executed a nighttime search warrant at the residence of appellant in Anniston. Appellant was present during the search which produced, from a closet of a rear room, a large plastic bag containing eleven smaller bags of cannabis. Their total weight was 8.47 pounds. Also found were several items of drug paraphernalia and two smaller bags of marihuana.

Anniston Police Officer Michael Hembree procured the instant search warrant based upon his sworn affidavit. This affidavit contained information given to him from a reliable confidential informant. Officer Hembree testified that he found the cannabis in the rear of the house. The informant had told Hembree that only hours before he had seen the cannabis moved from that area of the house.

Appellant, after being shown the cannabis, was arrested and given his Miranda warnings. He stated to the police that "it wasn't really his stuff, that he was keeping it for somebody else and it was just brought there that day." (R. 21).

A more detailed narration of the facts is unnecessary as the pertinent portions thereof will be discussed in conjunction with appellant's issues.

I

Appellant contends that the state failed to prove that he was in possession of more than 2.2 pounds of cannabis. He does not contend that he was not in possession of the controlled substance, but rather that the state failed to prove that he possessed a quantity sufficient to come under the purview of § 20-2-80(1)(a).

In support of its contention that it had sufficiently proved the requisite quantity of cannabis, the state offered the testimony of Anniston Police Lieutenant Richard Townsley, supervisor of the Anniston Police Crime Laboratory.

After being duly qualified, to which no objection was taken, Townsley testified that he received one garbage bag containing eleven plastic bags of plant material. A smaller quantity of plant material was also received but was not commingled with that taken from the garbage bag. Townsley weighed the plant material from each of the eleven bags, totaled their weights, and found the total weight of the plant material to be 8.47 pounds. Townsley testified that he did not separate the seeds, which were scattered throughout the plant material, prior to weighing it. Nor did he know whether they were capable of germination. He testified that in order to determine the sterility of a seed, he would "take all the seeds from the sample, that would just take hundreds of man-hours to do that. We would create a proper environment free of any other seed material, and under controlled conditions would attempt to grow one of the seeds. And when we grew one of the seeds, and it germinated, I guess that would satisfy that requirement. We've never done that and I don't know that anybody else has ever gone to that extreme." (R. 52). He stated that such would have to be done to the thousands of seeds contained in the plant material. Townsley stated that as far as he knew, a sterile seed had the same appearance as a fertile seed. He stated that no tests were run on the seeds to determine their fertility and germinating capabilities. Townsley testified that the plant material also contained seed fragments.

Townsley testified that he did not remove any stems from the plant material stating, "there was not anything in there that was big enough to separate from." He stated that the plant material contained "stems in there, but what comes off of the shaft, the trunk of a plant, up to the leaf might be construed as a stem." He continued, "I'm not a botanist, so what's between a leaf and what-what might still be considered a part of the leaf, and what could be more of a stem, and yet not be the stalk-who's to say?" (R. 47). Townsley testified that he did not find a considerable or abnormal number of stems in the plant material, but some of the individual bags contained more than others. While no testimony was elicited concerning whether the plant material contained any mature stalks, it indicates that the plant material contained none.

Townsley, terming his opinion merely a guess, stated that the plant material would meet the requisite weight requirement of the instant offense with any and all objectional matter excised therefrom. He testified that he did not know if there was a difference between marihuana and cannabis. However, he stated that THC or tetrahydrocannabinol was the illegal chemical contained in the plant material. Townsley opined that the plant material was "cannabis marihuana."

Section 20-2-80(1) does not define the term "cannabis." However, in § 20-2-112(2), Code of Alabama 1975 (Supp.1981), cannabis is defined for purposes of the Controlled Substance Therapeutic Research Act, § 20-2-110 et seq. Code of Alabama 1975 (Supp.1981), as follows "Cannabis. The same as those substances defined in subdivision (15) of section 20-2-2, as amended, and particularly those substances defined as tetrahydrocannabinols, or a chemical derivative thereof;"

To follow such an approach in defining cannabis for the purpose of § 20-2-80(1) would be consistent with how the legislature defined the other substances controlled under our trafficking statute, §§ 20-2-2(16), (17), -25(1), Code of Alabama 1975, and the definition of cannabis used in the Theraputic Research Act. It would also conform with existing case law. Beasley v. State, 408 So.2d 173 (Ala.Cr.App.1981), cert. denied, 408 So.2d 180 (Ala.1982); Sharpe v. State, 384 So.2d 633 (Ala.Cr.App.1980); Radney v. State, 342 So.2d 942 (Ala.Cr.App.1976), cert. denied, 342 So.2d 947 (Ala.1977); Smith v. State, 335 So.2d 393 (Ala.Cr.App.), cert. denied, 335 So.2d 397 (Ala.1976); McKenzie v. State, 57 Ala.App. 69, 326 So.2d 135 (1976); Hill v. State, 56 Ala.App. 369, 321 So.2d 708, cert. denied, 295 Ala. 405, 321 So.2d 713 (1975); Haynes v. State, 54 Ala.App. 714, 312 So.2d 406, cert. denied, 294 Ala. 758, 312 So.2d 414 (1975); Peppers v. State, 53 Ala.App. 695, 304 So.2d 39, cert. denied, 293 Ala. 770, 304 So.2d 43 (1974).

Thus, we consider the definition of cannabis as used in § 20-2-80(1) the same as the definition of marihuana found in § 20-2-2(15), Code of Alabama 1975.

Section 20-2-2(15) defines marihuana as:

"Marihuana. All parts of the plant Cannabis sativa L., whether growing or not, the seeds thereof, the resin extracted from any part of the plant and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. Such term does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake or the sterilized seed of the plant which is incapable of germination." (Emphasis added.)

As shown above certain portions of marihuana are excluded from control. Specifically, those portions excluded are the mature stalks and derivatives thereof, certain products derived from the plant seed, and the sterilized seed of the plant which is incapable of germination. In the instant case, it is clear that no mature stalks were present in the marihuana. However, from Townsley's testimony, it is plain that it contained seeds and branches of the plant, although he referred to the latter as stems.

It is well established that the burden is upon the appellant to establish and bring himself within any exclusion which is found not in the enacting clause defining a crime but rather in a subsequent clause or statute. Specifically, he must establish that the marihuana seized from his residence contained excludable matter falling within the definition of such under § 20-2-2(15). See Hall v. State, 291 Ala. 397, 281 So.2d 662 (1973); Peppers, supra; State v. Buchman, 361 So.2d 692 (Fla.1978); State v. Carter, 214 Kan. 533, 521 P.2d 294 (1974); State v. Brothers, 212 Kan. 187, 510 P.2d 608 (1973); State v. Dixon, 546 S.W.2d 774 (Mo.App.1977); Elkins v. State, 543 S.W.2d 648 (Tex.Cr.App.1976). 1 Underhill's Criminal Evidence § 54 (6th ed. 1973); 1 Wharton's Criminal Evidence § 20 (13th Ed. 1972). See also Cockrell v. State, 392 So.2d 541 (Ala.Cr.App.1980), cert. denied, 392 So.2d 545 (Ala.1981); Lee v. State, 350 So.2d 743 (Ala.Cr.App.1977).

Thus, the question becomes whether appellant sufficiently established that portions of the cannabis seized were within the exclusions of § 20-2-2(15).

A

The evidence is clear that appellant only established that the cannabis contained seeds. He did not establish that they were the type of seed excluded, that being sterilized seeds.

In the context of the instant case, sterile means incapable of germinating, while sterilized means to have caused to become sterile, barren, or unproductive so as to deprive (the seed) of the power of reproducing-- make incapable of germination or fecundation. Webster's Third New International Dictionary, page 2238; Volume X, The Oxford English Dictionary, pages 926-27, (1961). (Emphasis added). Consequently, the term sterile connotes a natural or organic...