Opinion
No. 81SA447
Decided September 7, 1982.
Appeal from the District Court of Otero County, Honorable Lewis T. Babcock, Judge
Durant D. Davidson, District Attorney, Douglas R. Manley, Deputy District Attorney, for plaintiff-appellant.
Edward Garlington, Jr., for defendant-appellee.
En Banc.
The People appeal from a trial court judgment dismissing a two-count amended information which charged the defendant, Edward Root, with crimes under the Colorado Controlled Substance Act. Sections 12-22-301, et. seq., C.R.S. 1973 (1978 Repl. Vol. 5) (1981 Supp.). Count I charged the defendant with the unlawful possession of a "Schedule II" controlled substance (cocaine) in violation of section 18-18-105(2)(a), C.R.S. 1973 (1978 Repl. Vol. 8) (1981 Supp.). Count II charged the defendant with the unlawful distribution of marijuana in violation of section 18-18-105(2)(c), C.R.S. 1973 (1978 Repl. Vol. 8) (1981 Supp.).
At the conclusion of a preliminary hearing, the trial court ordered both counts dismissed on the basis that the district attorney had failed to establish probable cause for the prosecution of the defendant. We reverse and order that the charges be reinstated.
I.
At the preliminary hearing, Detective Spencer of the La Junta Police Department testified that on the evening of July 31, 1981, he observed the defendant drive into the Otero Savings and Loan parking lot and park. Shortly thereafter, a second vehicle driven by Barbara Schneider entered the lot. After a brief conversation, Schneider got into the defendant's car and was handed a plastic bag containing marijuana. After Spencer observed the transaction, both Schneider and the defendant were arrested.
Spencer testified that he suspected the bag contained marijuana based on the "dark green leafy" nature of its contents. Subsequent to the arrest, the contents were analyzed by the La Junta Department of Public Safety to be Cannabis Sativa L, (marijuana).
Following the arrest, the defendant's vehicle was searched by Detective Spencer pursuant to the defendant's consent. In addition to finding a second bag of marijuana, marijuana seeds and assorted "drug paraphernalia," several cannisters containing a "white powdery substance" were discovered. Samples of the powder were sent to the Colorado Bureau of Investigation (CBI) where each was analyzed to be "cocaine."
In all, seven separate samples were sent. The CBI report, which was admitted at the preliminary hearing, concludes: "The analysis of the white powder in exhibits No. 1 through No. 7 disclosed that they all contain cocaine."
II.
The defendant was charged in Count I with the unlawful possession of a Schedule II controlled substance. The information stated:
". . . on or about the 31st day of July, 1981, in the County of Otero, State of Colorado, Edward E. Root did then and there knowingly and feloniously possess a Schedule II controlled substance, to-wit: cocaine, a salt, compound derivative, and preparation of coca leaves. . . ."
The trial court dismissed this charge on the ground that the CBI report, which only identified the substance found in the defendant's car as "cocaine," did not establish that the defendant had an illegal drug in his possession. This was so, the trial court reasoned, because the term cocaine is not specifically used in the statutory definition of a Schedule II controlled substance.
The Colorado Controlled Substance Act, supra, (Sec. 12-22-310(1)(a)(V)), defines a "Schedule II" narcotic drug as follows:
"Coca leaves and any salt, compound, derivative or preparation of coca leaves, and any salt, compound, derivative, or preparation thereof which is chemically equivalent or identical with any of the substances; except that the substances shall not include decocainized coca leaves or extractions of coca leaves, which extractions do not contain cocaine or ecgonine."
The plain language of this section leaves no doubt but that it was the legislative intent that any derivative of coca leaves, including cocaine, be included as a "Schedule II" controlled substance. This conclusion is supported by numerous federal court decisions which have interpreted an identical statute, 21 U.S.C. § 812(c), Schedule II(a)(4). See United States v. Jones, 543 F.2d 627 (8th Cir. 1976); United States v. Foss, 501 F.2d 522 (1st Cir. 1974); United States v. Mills, 463 F.2d 291 (D.C. Cir. 1972); Padilla v. United States, 278 F.2d 188 (5th Cir. 1960). Accordingly, we find that the trial court erred in dismissing Count I.
Cocaine is defined as a "bitter crystalline alkaloid obtained from coca leaves and used as a narcotic and local anesthetic." Webster's Third New International Dictionary at 434 (G C Merriam Co. 1966); see also 4 Gray's Attorneys' Textbook on Medicine, ch. 132 at 132-181 (3d ed. 1974).
III.
Similarly, we find that the district court erred in dismissing Count II of the information which charged the defendant with distributing marijuana in violation of section 18-18-105(2)(c). The trial court ruled in effect that the district attorney had failed to sufficiently establish that the defendant received any consideration for the marijuana provided Schneider.
In ruling that some form of consideration must pass to the defendant for conviction of dispensing marijuana in violation of section 18-18-105(2)(c), the trial court relied on section 18-18-106(5), which provides: "Transferring or dispensing not more than one ounce of marijuana from one person to another for no consideration shall be deemed possession and not dispensing or sale thereof."
The fact that the defendant received the consideration is clearly evidenced by Detective Spencer's testimony that following the arrest Schneider stated that she had previously given the defendant ten dollars for the marijuana. While the defendant initially told the police that he used the money to purchase the drugs necessary for the transaction, he refused to disclose the source of the marijuana. Moreover, the defendant later changed his story, maintaining that no transaction occurred on the night of the arrest. Reviewing this evidence in a manner favorable to the prosecution, People ex rel. Russell v. Hall, 620 P.2d 34 (Colo. 1980), we determine it is sufficient to induce a person of ordinary prudence and caution to reasonably conclude that the defendant may have committed the crime charged. People v. Armijo, 197 Colo. 91, 589 P.2d 935 (1979); People v. District Court, 186 Colo. 136, 526 P.2d 289 (1974).
The judgment of the trial court is reversed and the cause is remanded for reinstatement of the charges.
JUSTICE DUBOFSKY and JUSTICE QUINN dissent.