Opinion
No. 26932
Decided December 20, 1976.
Defendant was convicted on two counts for the sale of Cannabis Sativa L., a narcotic drug, and appealed.
Affirmed
1. DRUGS AND DRUGGISTS — Cannabis Plant — Geographical Variant — Irrelevant — People v. Holcomb. Under the supreme court's ruling in People v. Holcomb, the particular geographical variant of the cannabis plant involved is irrelevant — all variants of the species cannabis being included within the meaning of the statute.
2. INDICTMENT AND INFORMATION — Cannabis Sativa L — Amendment — THC — Repetition — Charge — Lack of Prejudice. In prosecution for sale of Cannabis Sativa L., a narcotic drug, amendment to information adding language relating to sale of cannabis or substance containing THC only repeated substance of original charge and was one of form only; accordingly, reviewing court perceives no prejudice to rights of defendant, and no violation of Crim. P. 7(e).
3. DRUGS AND DRUGGISTS — Constitutional Challenge — Cannabis Sativa L — Lack of Standing. On appeal from conviction of sale of Cannabis Sativa L., defendant lacked standing to challenge constitutionality of portion of Colorado drug control law, since defendant was not convicted under that portion of the statute.
Appeal from the District Court of El Paso County, Honorable John F. Gallagher, Judge.
J. D. MacFarlane, Attorney General, Jean Dubofsky, Deputy, Edward G. Donovan, Solicitor General, Joseph M. Goldhammer, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, James F. Dumas, Jr., Chief Deputy, Frank S. Simons, Deputy, Gene Beville, Deputy, for defendant-appellant.
The defendant was convicted on two counts for the sale of Cannabis Sativa L., a narcotic drug. C.R.S. 1963, 48-5-2, 48-5-20. He was sentenced to the penitentiary and now appeals. He argues that an amendment to the information, which was made before the trial was commenced, was one of substance and that reversible error resulted from the amendment. He also claims that the Colorado Drug Control Law is unconstitutional. We affirm the judgment.
Now sections 12-22-302 and 12-22-322, C.R.S. 1973, amended Colo. Sess. Laws 1975, ch. 56, § 16 at 208 and ch. 115, § 9 at 437.
After the jury was sworn, the defendant raised the so-called "species defense." We rejected that defense in People v. Holcomb, 187 Colo. 371, 532 P.2d 45 (1975). In this case, the prosecution sought to amend the information to counteract the species defense. The amendment added language which related to the sale of "cannabis, a narcotic drug, or a substance containing THC, a drug under the Federal Controlled Substances Act of 1970."
See 21 U.S.C. § 812 (1970).
When the amendment was made, the defendant was offered a continuance if he so desired. He elected to proceed with the trial. The evidence established that the substance sold by the defendant was Cannabis Sativa L., and that it did contain the chemical tetrahydrocannabinol (THC). No evidence regarding any artificial form of THC was presented. Thus, the amendment to the information added nothing to the charge or the proof which was presented to the jury.
[1,2] Under our ruling in People v. Hocomb, supra, the particular botanic or geographical variant of the cannabis plant involved is irrelevant — all variants of the species cannabis being included within the meaning of the statute. Moreover, THC is a physiologically active chemical which occurs in all varieties of cannabis, and no evidence regarding any source of THC other than cannabis was presented. The language inserted by the amendment only repeated the substance of the original charge of the sale of Cannabis Sativa L. The fact that THC may be produced in a synthetic form is irrelevant under the facts of this case. We find that the amendment, under the particular facts of this case, was one of form only. We are unable to perceive any prejudice to the rights of this defendant. Accordingly, no violation of Crim. P. 7(e) is present in this case. See People v. Marion, 182 Colo. 435, 514 P.2d 327 (1973); People v. Buckner, 180 Colo. 65, 504 P.2d 669 (1972); McKee v. People, 175 Colo. 410, 487 P.2d 1332 (1971).
This point is readily recognized by authorities in medicine and forensic science. See, e.g., Thornton and Nakamura, The Identification of Marijuana, 12 J. Forensic Science Society 461 (1972); Neumeyer and Shagoury, The Chemistry and Pharmacology of Marijuana, 16 J. Pharmaceutical Science 1433 (1971); Clarke and Robinson, When is Cannabis Resin?, 10 Med., Science and the Law 139 (1970); Accord, Kurzman and Fullerton, Winning Strategies for Defense of Marijuana Cases, 1 J. Crim. Defense 487, 510-11 (1975); Metzger, Notes on Marijuana Identification in Criminal Cases, 1 J. Crim. Defense 183, 186-87 (1975). See also United States v. Lewallen, 385 F. Supp. 1140 (W.D. Wis. 1974).
[3] The defense also contends that a portion of the Colorado Drug Control Law is unconstitutional. Since the defendant was not convicted under that portion of the statute, he lacks standing to raise the constitutional issues. See United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960); People v. Sharpe, 183 Colo. 64, 514 P.2d 1138 (1973).
C.R.S. 1963, 48-5-1(14)(a), amended Colo. Sess. Laws 1973, ch. 166, § 2 at 569, now section 12-22-301(16), C. R.S. 1973, amended Colo. Sess. Laws 1975, ch. 114, § 1 at 431 and ch. 115, § at 433.
Accordingly, we affirm.