State v. Gurreh
Citation | 60 Conn. App. 166,758 A.2d 877 |
Decision Date | 03 October 2000 |
Docket Number | (AC 19846) |
Court | Appellate Court of Connecticut |
Parties | STATE OF CONNECTICUT v. ABOKOR GURREH |
Schaller, Spear and Hennessy, JS. Brian J. Woolf, with whom was Douglas K. Lindbergh, for the appellant (defendant).
Joy K. Fausey, deputy assistant state's attorney, with whom, on the brief, were James E. Thomas, state's attorney, and David L. Zagaja, assistant state's attorney, for the appellee (state).
The defendant, Abokor Gurreh, appeals from the judgments of conviction, rendered after conditional pleas of nolo contendere, of sale of a controlled substance in violation of General Statutes § 21a-277 (b)1 and attempt to possess a controlled substance with intent to sell in violation of General Statutes §§ 53a-492 and 21a-277 (b). The defendant claims that the trial court improperly (1) concluded that § 21a-277 (b) prohibited the possession of khat,3 a plant material that contains the prohibited controlled substances cathinone and cathine, and (2) concluded that he was afforded constitutionally adequate notice that § 21a-277 (b) prohibits the possession with intent to sell and or the sale of khat, notwithstanding the fact that § 21a-243-7 of the Regulations of Connecticut State Agencies does not list khat as a controlled substance and only its chemical constituents, cathinone and cathine, are listed as such. We affirm the judgments of the trial court.
The following facts are necessary for a resolution of this appeal. The state and the defendant, during oral argument before the trial court, stipulated to the facts contained in the arrest documents. In its articulation, the trial court summarized those facts as follows: The defendant's motion to dismiss was denied.
The defendant first claims that the legislature should not be deemed to have prohibited the possession with intent to sell, or the attempt to possess with intent to sell, the plant khat because the plant is not listed as a controlled substance in the regulations and only its chemical constituents, cathinone and cathine, are listed as such. Specifically, the defendant claims that we must decide (1) whether the legislature intended to prohibit the possession of the chemicals cathinone and cathine or the possession of all plants that may contain molecules of such chemicals and (2) that, as a matter of statutory construction, khat is not a controlled substance within the meaning of § 21a-277 (b). We start with our standard of review. (Internal quotation marks omitted.) Hayward v. Hayward, 53 Conn. App. 1, 7, 752 A.2d 1087 (1999).
The defendant points out that the regulations, in several instances, individually list both the names of the plants that are considered prohibited controlled substances and the chemical constituents that those plants contain,4 and, therefore, because khat is not listed, it was not intended to be prohibited. Furthermore, the defendant points to several controlled substances that may be derived from plant or animal sources the possession of which, like khat, he claims, is "obviously" not intended to be prohibited.5 We disagree. (Citation omitted; internal quotation marks omitted.) Boris v. Garbo Lobster Co., 58 Conn. App. 29, 36, 750 A.2d 1152, cert. denied, 254 Conn. 910, 759 A.2d 504 (2000).
(Citations omitted; internal quotation marks omitted.) State v. DeFrancesco, 235 Conn. 426, 435, 668 A.2d 348 (1995).
The defendant's first argument is that khat is not a controlled substance because it is not specifically enumerated in the relevant statutes or regulations like other plant or plant derived controlled substances such as marijuana and tetrahydrocannabinols. Our Supreme Court has stated that "[u]nless there is evidence to the contrary, statutory itemization indicates that the legislature intended the list to be exclusive." (Internal quotation marks omitted.) State v. Kish, 186 Conn. 757, 766, 443 A.2d 1274 (1982). Here, however, our legislature has clearly, by its language, indicated an intent to include materials that contain controlled substances. Reviewing the relevant language of the statutes and regulations under which the defendant was charged, we find the wording to be plain and unambiguous. First, the statute under which the defendant was charged, General Statutes § 21a-277 (b), provides in relevant part: "Any person who ... possesses with intent to sell or dispense ... any controlled substance,6 except a narcotic substance, or a hallucinogenic substance other than marijuana, except as authorized in this chapter, may, for the first offense, be fined not more than twenty-five thousand dollars or be imprisoned not more than seven years or be both fined and imprisoned...." We find no ambiguity in this language, nor does the defendant point to any.
The language contained in § 21a-243-7 (e) of the Regulations of Connecticut State Agencies provides in relevant part that a controlled substance is (Emphasis added.) Clearly, the language "any material" is intended to include those materials that are not specifically listed, but that contain the controlled substances subsequently listed, in this case, cathinone. The language of § 21a-243-10 (b) of the Regulations of Connecticut State Agencies, which applies to cathine, is nearly identical and, therefore, would operate similarly.
Finally, while the defendant suggests that rye grass, morning glory seeds and poppy seeds may contain molecules of controlled substances, those materials do not "have a tendency to promote abuse or ... psychological dependence or both," as required by General Statutes § 21a-243 (c). Furthermore, Parker v. Shaker Real Estate, Inc., 47 Conn. App. 489, 498, 705 A.2d 210 (1998). Because we are not charged with the task of finding facts, we are limited to the record before us. There was no expert testimony before the trial court for our review that might illuminate the assertions made in the defendant's brief. We conclude, therefore, that the legislature intended to prohibit the possession or sale of khat.
The defendant also claims that, as a matter of statutory construction, §§ 21a-243-7 (e) (3)7 and 21a-243-10 (b) (1)8 of the Regulations of Connecticut State Agencies do not satisfy the requirements of General Statutes § 21a-243 (c).9 Therefore, the defendant claims that khat cannot, as a matter of law, be deemed a controlled substance. The defendant essentially argues that the regulations do not specifically "designate" khat as a controlled substance as mandated by § 21a-243 (c), and, therefore, cathine and cathinone,...
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