State v. Bollander
| Decision Date | 01 November 1973 |
| Docket Number | No. 2637,2637 |
| Parties | The STATE of Arizona, Appellee, v. Peter Thomas BOLLANDER, Appellant. |
| Court | Arizona Supreme Court |
Gary K. Nelson, Atty. Gen., Phoenix, by John S. O'Dowd, Asst. Atty. Gen., Tucson, for appellee.
Ed Bolding, Pima County Public Defender, by Richard Van Duizend, Asst. Public Defender, Tucson, for appellant.
This is an appeal by the defendant, Peter Thomas Bollander, from a jury verdict and judgment of guilt to the crime of selling marijuana, § 36--1002.07 A.R.S., and a sentence of not less than five nor more than six years in the Arizona State Prison.
Defendant raises several issues on this appeal, but we need consider only one question: Was there sufficient evidence to sustain a conviction for the unlawful sale of marijuana?
The facts necessary for a determination of the question before us are as follows. On 6 April 1972, the Pima County Grand Jury returned an indictment charging the defendant Bollander with the sale of marijuana. Trial before a jury was held on 14 September 1972, at which trial Bollander conducted his own defense. During its case in chief the State introduced into evidence a substance which the defendant had sold to undercover narcotics agents. A criminalist with the Tucson Crime Laboratory identified the substance as hashish, which she described as 'the extracted resin of the marijuana plant.' The same witness was recalled by the defendant and she testified as follows:
'Q Yesterday you were making statements that hashish has T.H.C. elements?
'A (Witness nods head.)
'Q And you are using now as a supplement for the T.H.C. marijuana. I'm just not clear. You said the--the County Attorney has marijuana in the hashish. Is that by being an expert in that medical field, would that be correct by saying marijuana in the hashish?
'A The hashish is the resin from the marijuana plant. The plant exudes this substance.
It is extracted from the plant and that is the hashish.
Sometimes the hashish may not be completely purified and there may be particles of marijuana in it. But true hashish is the resin from the plant.
It contains as part of it T.H.C.
'Q I asked you, is marijuana--it would be incorrect to say that marijuana is in the hashish? Would it be incorrect by saying hashish is in the marijuana or marijuana is in the hashish?
'THE COURT: You better straighten out which way you want it.
'Q (By Mr. Bollander) It would be incorrect by saying that marijuana is in the hashish?
'A In pure hashish there would be--
'Q Just answer me. Is marijuana in the hashish?
'A There could be, yes.
'Q Not could. Yes or no.
You may ask her a question again, Mr. Bollander.
Should the Reporter read it back?
'Q (By Mr. Bollander) How many tests have you done on hashish?
'A Oh, I'd say about a hundred.
'Q Do you always conclude tests by it could be?
'A Well, at the conclusion of the test I know if it's hashish.
'Q Beyond a reasonable doubt?
'A Yes.
'Q Then how come there is an uncertainty here as far as it could be?
'A Hashish is a product of marijuana.
'A In these particular samples I don't know.'
At the close of the State's case, and again after presentation of all the evidence, the defendant moved 'to quash the charges on the ground that the State has not shown by evidence submitted (that) the marijuana was sold but only hashish.' The motion was treated as one for a directed verdict and denied.
Sale of 'any narcotic drug other than marijuana' is proscribed by § 36--1002.02 A.R.S. Sale of marijuana is proscribed by § 36--1002.07 A.R.S., and the penalties under that statute differ from the penalties prescribed by § 36--1002.02 A.R.S. The term 'narcotic drugs' is defined as follows:
'14. 'Narcotic drugs' means coca leaves, opium, Cannabis, isonipecaine, amidone, isoamidone, ketobemidone, any other drug of natural or synthetic origin that may be classified as a narcotic by the federal narcotics commissioner, and any substance neither chemically nor physically distinguishable from them.' § 36--1001(14) A.R.S. (Emphasis added)
The term 'cannabis' is defined as follows:
'13. 'Cannabis' includes the following substances under whatever names they may be designated:
'(a) Marijuana.
'(b) 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 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.
'(c) The resin extracted from such tops.
'(d) Every compound, manufacture, salt, derivative, mixture or preparation of such resin,...
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State v. Jones
...as a narcotic drug); –3408(A)–(B) (proscribing the knowing possession or use of a narcotic drug as a class four felony); Bollander , 110 Ariz. at 87, 515 P.2d at 332. The parties also acknowledge AMMA generally protects a registered qualifying patient from arrest, prosecution, or penalty ar......
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State v. Floyd, s. 2
...in that order. Recognizing that classification of hashish as a narcotic drug under A.R.S. § 36-1001 was approved in State v. Bollander, 110 Ariz. 84, 515 P.2d 329 (1973), appellant attacks the supreme court's decision in that case as based on inadequate facts. The holding in Bollander, howe......
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State v. Jones
...its resin," § 13-3401(4)(a).¶3 Jones moved to dismiss the charges, arguing his use was allowed under AMMA. Relying on State v. Bollander , 110 Ariz. 84, 515 P.2d 329 (1973), the State argued that AMMA does not displace the criminal code distinctions between cannabis, § 13-3401(4)(a), and ma......
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State v. Collinsworth
...v. Williams, 27 Cal.2d 220, 163 P.2d 692 (1945); see State v. Love, 76 Idaho 378, 283 P.2d 925 (1955). See also State v. Bollander, 110 Ariz. 84, 515 P.2d 329 (1973). However, even assuming for pleading purposes that charging a defendant with delivery of the controlled substance phencyclidi......