State v. Infante, 41439

• Decision Date: 14 December 1977
• Docket Number: No. 41439,41439
• Parties: STATE of Nebraska, Appellee, v. Steven INFANTE, Appellant.
• Court: Nebraska Supreme Court

Page 323

260 N.W.2d 323

199 Neb. 601

STATE of Nebraska, Appellee, v. Steven INFANTE, Appellant.

No. 41439.

Supreme Court of Nebraska.

Dec. 14, 1977.

Syllabus by the Court

1. Under section 28-4,115(14), R.R.S.1943, where the weight of marijuana is referred to in the Uniform Controlled Substances Act it shall mean its weight at or about the time it is seized or otherwise comes into the possession of law enforcement authorities, whether cured or uncured at that time.

2. When there is no statutory classification drawn on the basis of suspect criteria, there is no denial of equal protection if the challenged statute bears some rational relationship to legitimate state ends.

3. The verdict of a jury must be sustained, if, taking the view most favorable to the State, there is substantial evidence to support it.

4. It is not the province of this court to resolve the issue of credibility of witnesses, as such matters are for the jury.

James M. Tyler, Dillon, Colo., for appellant.

Paul L. Douglas, Atty. Gen., Jerold V. Fennell, Asst. Atty. Gen., Lincoln, for appellee.

Heard before WHITE, C. J., and SPENCER, BOSLAUGH, McCOWN, CLINTON, BRODKEY, and WHITE, JJ.

BRODKEY, Justice.

Steven Infante, defendant and appellant herein, was charged with possessing marijuana weighing more than 1 pound under section 28-4,125(5), R.R.S.1943. Defendant was tried before a jury, which returned a verdict of guilty, and was placed on probation for a period of 1 year. Defendant has now appealed to this court, contending that evidence regarding the weight of the marijuana found in his possession was improperly received at trial; that the evidence presented by the State was insufficient to sustain his conviction; and that section 28-4,115(14), R.R.S.1943, is unconstitutional. We affirm the judgment of the District Court.

On August 2, 1976, defendant was apprehended when in possession of a bundle of freshly harvested, unprocessed marijuana plants which an investigator for the State weighed in bulk 1/2 hour after their seizure, on a scale at the police station. Although the scale was not one certified for accuracy by any state agency, the investigator had previously checked the scale, and stated that it appeared to be in proper working order and was accurate when tested against known weights. The weight of the marijuana plants, including two plastic sacks in which they had been placed, a cloth binding the plants together, and bits of paper and ordinary grass was 9 pounds. The investigator removed stems and plant foliage weighing 1 pound, and sent them to the state laboratory for analysis by a chemist. The bundle of plants retained by the investigator was introduced at trial, as were the plants sent to the chemist.

By the day of trial on November 18, 1976, the plants retained by the investigator had dried and shriveled, causing a shrinkage in weight, and weighed 3 pounds, including mature stalks and wrappings. The chemist testified that the plants sent to him for analysis weighed 1 pound, 1 ounce, at the time he tested them, on August 5, 1976, but there was no evidence as to their weight on the day of trial. The investigator testified that he had stripped the leafy material from three stalks of plants, and had weighed the stalks and leafy material separately. He found that the leafy material comprised approximately 45 percent of the total weight of both the leafy material and the stalks. The State introduced this evidence to show that the weight of the plants possessed by the defendant, excluding the weight of mature stalks, was greater than 1 pound.

The defendant objected to all the evidence regarding the weight of the plants on the grounds that the scale used to weigh the plants had not been shown to be accurate, and that evidence of weight including stalks was incompetent, irrelevant, and immaterial. Defendant objected to admission in evidence of the marijuana plants because they contained stalks. The trial court overruled these objections, and also overruled defendant's motion for a directed verdict at the close of the State's evidence. The defendant rested without presenting evidence.

The jury was instructed on both the crime charged and the lesser-included offense of possessing marijuana weighing 1 pound or less. The trial court included in its instructions to the jury relevant parts of section 28-4,115(14), R.R.S.1943, which provides that: "Marijuana shall mean all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of such plant; * * * but shall not include the mature stalks of such plant, * * * and where the weight of marijuana is referred to in sections 28-459 and 28-4,115 to 28-4,142 it shall mean its weight at or about the time it is seized or otherwise comes into the possession of law enforcement authorities, whether cured or uncured at that time; * * * ." (Emphasis supplied.) The jury was also instructed that the word "stalk" as applied to a marijuana plant "shall mean the stem or axis thereof." The jury found the defendant guilty as charged.

It is clear that under section 28-4,115(14), R.R.S.1943, the mature stalk of a marijuana plant is not included in the definition of "marijuana," and the State concedes that it had the burden of proving beyond a reasonable doubt that the marijuana plants in defendant's possession, exclusive of mature stalks, weighed more than 1 pound. It is also clear that the weight of marijuana means its weight at the time it was seized, whether cured or uncured at that...