State v. Vail

• Decision Date: 12 January 1979
• Docket Number: No. 47427.,47427.
• Citation: 274 NW 2d 127
• Parties: STATE of Minnesota, Respondent, v. Paul VAIL, a.k.a. Boston Paul Vail, Appellant.
• Court: Minnesota Supreme Court

274 N.W.2d 127 (1979)

STATE of Minnesota, Respondent, v. Paul VAIL, a.k.a. Boston Paul Vail, Appellant.

No. 47427.

Supreme Court of Minnesota.

January 12, 1979.

Warren Spannaus, Atty. Gen., Thomas L. Fabel, Deputy Atty. Gen., Gary Hansen, Sp. Asst. Atty. Gen., St. Paul, DeWayne Mattson, County Atty., Rochester, for respondent.

James H. Manahan, Mankato, Marc Kurzman, St. Paul, for appellant.

Heard before OTIS, ROGOSHESKE, TODD and WAHL, JJ., and considered and decided by the court en banc.

WAHL, Justice.

This opinion is substituted for the opinion filed on October 20, 1978, which is hereby withdrawn. Except as indicated in this opinion, the petition for rehearing is denied.

This is an appeal from a judgment of the district court of Olmsted County finding defendant, Boston Paul Vail, guilty of the sale and possession of a controlled substance, marijuana. The defendant challenges the sufficiency of the evidence identifying the seized contraband as a Schedule I controlled substance, and generally challenges, on equal protection grounds, the classification of marijuana in Schedule I.¹ We find no such constitutional infirmity in the classification of marijuana as a Schedule I controlled substance; but, because the evidence considered by the trial court was insufficient to support the verdict, we reverse and order judgment of acquittal.

The essential facts of the transaction leading to appellant's arrest were not disputed and can be simply stated. In January 1976, agent Gregory Sickler of the Minnesota Bureau of Criminal Apprehension (hereafter "M.B.C.A.") contacted Mark Rosasco to arrange the purchase of a quantity of marijuana. Rosasco, in turn, agreed to contact a third party, whom he identified only as "Paul." After a series of negotiations among the parties, it was agreed that Rosasco would purchase approximately 225 pounds of marijuana from "Paul" and immediately transport and resell it to agent Sickler. On February 2, 1976, the transaction was carried out, and Rosasco was arrested during the sale to Sickler.² Rosasco declined to lead M.B.C.A. agents to his supplier at the time of his arrest, but did identify the defendant as the supplier.

Rosasco's testimony at trial was corroborated by records of telephone calls between defendant and himself; by testimony of M.B.C.A. agents Harold Holden and Richard Stutz and Wabasha County Sheriff Roger Meurer, who were maintaining aerial and ground surveillance of Rosasco's movements on the day of the transactions; and by testimony of Thomas Best, who encountered defendant immediately after his transaction with Rosasco and was told by the defendant that he had left 225 pounds of marijuana in the trunk of Rosasco's car.

On May 10, the defendant was arrested pursuant to a criminal complaint charging him with the sale and delivery of a controlled substance. Defendant moved to dismiss the complaint on July 26, 1976, on the grounds that the classification of marijuana as a Schedule I controlled substance was unreasonable, arbitrary, and without rational relationship to a permissible state objective. The motion was heard September 23, 1976, and subsequently denied.

Defendant executed a written waiver of his right to a jury trial, and the matter was tried to the court. In addition to the facts set out above, the court heard expert testimony from Anne Rummel, a chemist with the Minnesota Bureau of Criminal Apprehension, and Dr. Marc G. Kurzman, who has extensive training in pharmacology, botany, and chemistry. Rummel concluded on the basis of the microscopic, the Duquenois-Levine, and the thin layer chromatography tests that the substance involved was marijuana. She also testified that as far as she knew, the genus, Cannabis, was monotypic. Professor Kurzman's testimony challenged the specificity of the three standard tests and supported a finding that the genus Cannabis was polytypic. On December 7, 1976, the trial court filed findings of fact, conclusions of law, and determination of guilt, together with a memorandum which incorporated by reference the following determinations:

1. Cannabis is polytypic, not monotypic, or at least doubts about the matter must be resolved in favor of the defendant. The state must, therefore, prove that the substance involved was Cannabis sativa L., as distinguished from Cannabis ruderalis or Cannabis indica.

2. The Duquenois-Levine test and thin layer chromatography are only screening tests not adequately specific to identify marijuana.

3. Microscopic analysis, when combined with gas chromatography-mass spectroscopy, is capable of identifying marijuana beyond a reasonable doubt, but that test was not used in this case.

4. The scientific tests used, while not determinative, are highly probative. When coupled with the defendant's representations, the quantity and price of the sale, and the assumed sophistication of the seller in identifying the product, the tests and practical inferences satisfy the state's burden of proof.

Defendant's appeal raises two primary issues: whether the evidence was sufficient to establish the identity of the substance seized, and whether Minnesota's controlled substance classification scheme violates constitutional equal protection guarantees. The first issue has two parts: the precise "identity" which must be established, and the adequacy of the scientific and inferential evidence introduced to that end.

1. The multiple species question.

The issue of the sufficiency of the evidence to identify the contraband as a controlled substance initially requires a determination of the breadth of the statutory definition: "`Marijuana' means all parts of the plant Cannabis sativa L., including all agronomical varieties * * *." Minn.St. 152.01, subd. 9. At trial, defendant contended that the definition was technical, unambiguous, and to be strictly construed. Introducing considerable botanical evidence that the plant genus Cannabis was polytypic, the defendant argued that the state must prove beyond a reasonable doubt that the substance is Cannabis sativa L., rather than, e. g., Cannabis ruderalis or Cannabis indica. The trial judge accepted defendant's position:

"The Minnesota Statute still uses the term Cannabis sativa L. rather than simply Cannabis; therefore, I conclude that the Minnesota Statute seems to make illegal the possession of the one form of Cannabis and probably not make illegal possession of the other two species: Cannabis ruderalis and Cannabis indica."

We disagree. It is not necessary to review all the taxonomic literature on the monotypic/polytypic Cannabis debate.³ See, United States v. Rothberg, 351 F.Supp. 1115 (E.D.N.Y.1972), affirmed, 480 F.2d 534 (2 Cir. 1973), certiorari denied, 414 U.S. 856, 94 S.Ct. 159, 38 L.Ed.2d 106 (1973). The interpretation of a statute is a matter of law, not science; the proscription of marijuana, after all, is directed to the public at large and not to botanists alone. While we subscribe strongly to the principle that penal statutes must be strictly construed against the government, Ferch v. Victoria Elevator Co., 79 Minn. 416, 418, 82 N.W. 678 (1900), narrow application of the definition in issue would create serious anomalies and constitutional problems.

While there has been some recent evidence that not all Cannabis plants contain measurable amounts of tetrahydrocannabinols (THC),⁴ the active euphoric agent or intoxicant associated with marijuana, there is no scientific evidence that any of the species of the genus Cannabis lack THC. See, D. Bernheim, Defense of Narcotics Cases, § 4.04A at 4-36 (1975). THC is itself separately and specifically included as a Schedule I controlled substance. Minn.St. 152.02, subd. 2(3). Thus, if the definition of marijuana were held to exclude species other than Cannabis sativa L., those species would not be left in a statutory limbo but would still be proscribed, as "* * * material * * * which contains * * * tetrahydrocannabinols."⁵ Minn.St. 152.02, subd. 2(3). Moreover, excluded species would not qualify for the lesser penalties given "marijuana" offenders. Minn.St. 152.15, subd. 1(5); subd. 2(2), (5); subd. 2a; subd. 4. The result is an enforcement scheme which provides major differences in penalties for abuse of different species of the genus Cannabis, species which are almost impossible to distinguish visually or even miscroscopically once fragmented and/or dried.⁶ See, Fullerton & Kurzman, the Identification and Misidentification of Marijuana, 3 Contemp. Drug Prob. Q. 291. Such a scheme presents obvious equal protection and due process (fair notice) problems. See, People v. Van Alstyne, 46 Cal. App.3d 900, 913, 121 Cal.Rptr. 363, 371 (1975), certiorari denied, 423 U.S. 1060, 96 S.Ct. 798, 46 L.Ed.2d 652 (1976); see, also, United States v. Walton, 168 U.S.App.D.C. 305, 306, 514 F.2d 201, 202 (1975). The unreasonable consequences of narrow application of the definition requires closer examination of legislative intent. State v. Carroll, 225 Minn. 384, 386, 31 N.W.2d 44, 45 (1948).

In 1953, the legislature added "Cannabis" to the definition of narcotic drugs, and stated that the term "includes all parts of the plant Cannabis Sativa L." Laws 1953, c. 431, §§ 1, 2. It is apparent from this language that the legislation reflected the general consensus among botanists that Cannabis was monotypic. See, United States v. Moore, 330 F.Supp. 684, 686 (E.D.Pa.1970), affirmed, 446 F.2d 448 (3 Cir. 1971), certiorari denied 406 U.S. 909, 92 S.Ct. 1617, 31 L.Ed.2d 820 (1971); United States v. Rothberg, 351 F.Supp. 1115, 1118 (E.D.N.Y. 1972).

In 1970, the Federal Bureau of Narcotics and Dangerous Drugs drafted legislation approved by the National Conference of Commissioners on Uniform State Laws as the Uniform Controlled Substances Act. Minnesota adopted much of the new uniform act, including the definition of "marijuana" in issue in this appeal. L.1971 c. 937, § 4. Although there had been scientific studies questioning the...