Opinion
No. 78-329
Decided March 1, 1979. Rehearing denied March 22, 1979. Certiorari denied August 20, 1979.
Convicted of possession of cannabis, defendant appealed.
Reversed
1. CRIMINAL LAW — Narcotics Offenses — Possession of Cannabis — Mature Stalk Exception — State — Must Demonstrate — Inapplicability — Where Appropriate. Under the statute creating the offense of possession of cannabis, the mature stalks of the marijuana plant are excluded from the definition of cannabis; and, because this statutory exception is part of the description of the offense, it is, in appropriate cases, part of the state's prima facie case to demonstrate that that exception is inapplicable.
Appeal from the District Court of the County of Larimer, Honorable Conrad L. Ball, Judge.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Robert C. Lehnart, Assistant Attorney General, for plaintiff-appellee.
Law Offices of Timothy W. Hasler, James A. Martell, for defendant-appellant.
Defendant, Fred Edward Anzures, was convicted of possession of cannabis in violation of § 12-22-404(1)(l), C.R.S. 1973 (now in 1978 Repl. Vol. 5). He appeals and we reverse.
The People's expert witness testified that the seized substance contained 96 grams of plant material which he identified as "cannabis sativa L." Defendant argues that the evidence was insufficient to sustain his conviction, since there was no showing that the substance was not derived from mature stalks of the marijuana plant — material which is excluded from the definition of "cannabis." See § 12-22-403(1.5), C.R.S. 1973 (now in 1978 Repl. Vol. 5). We agree.
In Salazar v. People, 153 Colo. 93, 384 P.2d 725 (1963), our Supreme Court stated the applicable rule governing burden of proof:
"[T]he accused has the burden of proving he is within an exception or proviso in the statute creating the offense, except when the terms of the exception or proviso are part of the description of the offense."
Salazar's conviction for possession of cannabis arose from his possession of marijuana seeds. However, marijuana seeds incapable of germination are excluded from the definition of "cannabis." C.R.S. 1953, 48-6-1(13) (now § 12-22-403(1.5), C.R.S. 1973 (now in 1978 Repl. Vol. 5)). The Supreme Court held that this statutory exception was "part of the description of the offense," and thus ruled that the People had the burden of proving that the seeds were germinable.
[1] We believe Salazar is dispositive here. There is no logical difference between proving that seeds are germinable and proving that plant material consists solely of mature stalks. Both are "part of the description of the offense" within the meaning of Salazar; indeed, they are included in the same sentence in the statute. Therefore, in appropriate cases, the mature stalk exception, as well as the non-germinable seed exception, may have to be negated by the State as part of its prima facie case.
Here, there was no evidence indicating that the seized substance was not derived from mature stalks. Thus, the State failed to present a prima facie case, and the trial court erred in failing to grant defendant's motion for judgment of acquittal.
Because of our resolution of this issue, we do not reach defendant's other assignments of error.
Judgment reversed.
JUDGE KELLY concurs.
JUDGE COYTE dissents.