ALFONSO ROMAN, Appellant (Defendant), v. THE STATE OF WYOMING, Appellee (Plaintiff).
S-21-0178
IN THE SUPREME COURT, STATE OF WYOMING
April 6, 2022
2022 WY 48
APRIL TERM, A.D. 2022. Appeal from the District Court of Fremont County. The Honorable Jason M. Conder, Judge
Representing Appellant:
Office of the State Public Defender: Diane Lozano, Wyoming State Public Defender; Kirk A. Morgan, Chief Appellate Counsel; Robin S. Cooper, Senior Assistant Appellate Counsel.
Representing Appellee:
Bridget Hill, Wyoming Attorney General; Jenny L. Craig, Deputy Attorney General; Joshua C. Eames, Senior Assistant Attorney General.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY, and FENN, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.
[¶1] Alfonso Roman was arrested for fleeing from the police and was searched. His pockets contained substances the arresting officer believed to be methamphetamine and marijuana. He was charged with possession of methamphetamine, possession of marijuana, and interference with a peace officer. A jury found him guilty of all three charges. On appeal, Mr. Roman argues that the State had the burden of proving that the marijuana substance found in his possession had a tetrahydrocannabinol (THC) concentration of more than 0.3%, and because it failed to do so, there was insufficient evidence to support his conviction for possession of marijuana. We affirm.
ISSUE
[¶2] Did the State have the burden of proving the substance Mr. Roman possessed had a THC concentration of more than 0.3% in order to meet its burden to prove every element of the charged offense—possession of marijuana?
FACTS
[¶3] Officer Randy Foos was responding to a call when he saw a man he recognized as Mr. Roman, and who he knew had an outstanding arrest warrant for failure to appear on a minor traffic violation. When Mr. Roman saw Officer Foos’ patrol car, he ran. Officer Foos turned down a cross street in a successful maneuver to cut Mr. Roman off. He, then, exited his patrol car and yelled, “Stop, police.” Mr. Roman did not stop but changed directions and continued running. Officer Foos got back into his patrol car and began to search the surrounding area. Meanwhile, Officer James Donahue, who was on his way to assist Officer Foos, saw Mr. Roman run toward a house. He reported this to Officer Foos, and the two met at the house and searched it. When they failed to find Mr. Roman inside, they continued to search the area.
[¶4] They eventually found Mr. Roman hiding in a boat at a lumber yard. Officer Foos arrested Mr. Roman and escorted him to his patrol car where he searched him. Mr. Roman had a “small baggy containing a white crystal substance” and “two glass pipes” in his right front pocket. His left front pocket contained “a silver marijuana grinder and [a] small baggy containing a green leafy substance.”
[¶5] Mr. Roman was initially charged with misdemeanor possession of methamphetamine and misdemeanor possession of marijuana. These charges were later enhanced to felonies under
[¶6] Officer Foos testified that through his training and experience he was able to identify
[¶7] Joshua Williams, a forensic scientist with the Wyoming State Crime Lab, also testified. He said that he had tested both substances and confirmed that “[t]he white crystalline material tested positive for the presence of methamphetamine,” and “[t]he green plant material tested positive for the presence of [THC].” He concluded that the green leafy substance was “consistent with marijuana.” There was no testimony on the THC concentration.
[¶8] The jury convicted Mr. Roman of possession of methamphetamine, possession of marijuana, and interference with a peace officer.1 Mr. Roman was given concurrent sentences of forty-two to sixty months for possession of methamphetamine, six months for possession of marijuana, and ninety days for interference with a peace officer. He appeals arguing that, in the absence of proof of the THC concentration, there was insufficient evidence to support his possession of marijuana conviction.
STANDARD OF REVIEW
[¶9] In reviewing a claim for sufficiency of the evidence, “[w]e need not determine whether the evidence established the defendant‘s guilt beyond a reasonable doubt.” Mitchell v. State, 2020 WY 142, ¶ 33, 476 P.3d 224, 237 (Wyo. 2020) (citing Pyles v. State, 2020 WY 13, ¶ 6, 456 P.3d 926, 929 (Wyo. 2020)). Instead, “we determine whether a jury could have reasonably concluded each of the elements of the crime was proven beyond a reasonable doubt.” Regan v. State, 2015 WY 62, ¶ 10, 350 P.3d 702, 705 (Wyo. 2015) (quoting Dean v. State, 2014 WY 158, ¶ 8, 339 P.3d 509, 512 (Wyo. 2014)). In doing so, “[w]e examine ‘the evidence in the light most favorable to the State. We accept all evidence favorable to the State as true and give the State‘s evidence every favorable inference which can reasonably and fairly be drawn from it.‘” Pyles, ¶ 6, 456 P.3d at 929 (quoting Thompson v. State, 2018 WY 3, ¶ 14, 408 P.3d 756, 761 (Wyo. 2018)). “We will not ‘re-weigh the evidence or re-examine the credibility of the witnesses, and we disregard any evidence favorable to the appellant that conflicts with the State‘s evidence.‘” Mitchell, ¶ 33, 476 P.3d at 237 (quoting Pyles, ¶ 6, 456 P.3d at 929).
[¶10] “This appeal also presents questions of statutory interpretation and construction, which are questions of law that we consider de novo.” Rosen v. State, 2022 WY 16, ¶ 7, 503 P.3d 41, 44 (Wyo. 2022) (citing Matter of Adoption of ATWS, 2021 WY 62, ¶ 8, 486 P.3d 158, 160 (Wyo. 2021)).
DISCUSSION
[¶11] Mr. Roman challenges the sufficiency of the evidence supporting his conviction of possession of marijuana, specifically the failure of the State to prove the concentration of the substance he possessed was greater than 0.3%.
[¶12] Wyoming‘s possession of marijuana statute,
[¶13] Marijuana is a Schedule I controlled substance.
all parts of the plant of the genus Cannabis, whether growing or not; the seed thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil or cake, or the sterilized seed of the plant which is incapable of germination[.]
[¶14] Mr. Roman argues that the State had the burden of proving that the substance he possessed had a THC concentration of more than 0.3%. The State responds that once it presented evidence proving that the substance was marijuana,
[¶15] Mr. Roman‘s argument requires us to interpret two statutes contained in the Wyoming Controlled Substances Act (Act)—
[¶16] To determine which party had the burden of proof, we first examine
It is not necessary for the state to negate any exemption or exception in this act in any complaint, information, indictment, or other pleading or in any trial, hearing, or other proceeding under this act. The burden of proof of any exemption or exception is upon the person claiming it.
[¶17] We explicate here that
[¶18] Because
Exceptions to provisions.
(a) The provisions and penalties of this chapter shall not apply to:
(i) The possession or use of hemp or hemp products for any purpose or application;
(ii) Persons in possession of any controlled substances for purposes of disposal in accordance with 21 C.F.R. part 1317.30 and 21 C.F.R. part 1317.35;
(iii) Hemp production, processing or testing in accordance with the provisions of W.S. 11-51-101 through 11-51-107.
(b) [Hemp is defined as] all parts, seeds and varieties of the plant cannabis sativa l. or a product made from that plant with a trans-delta 9-tetrahydrocannabinol (THC) concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis.
[¶19] “When interpreting a statute, ‘[w]e are guided by the full text of the statute, paying attention to its internal structure and the functional relation between the parts and the whole.‘” In Int. of JB, 2017 WY 26, ¶ 16, 390 P.3d 357, 361 (Wyo. 2017) (quoting Seherr-Thoss v. Teton Cnty. Bd. of Cnty. Comm‘rs, 2014 WY 82, ¶ 19, 329 P.3d 936, 945 (Wyo. 2014)). The statute is entitled ”Exceptions to provisions.”
[¶20] Under
CONCLUSION
[¶21] The burden to establish an exception to possession of marijuana under the Wyoming Controlled Substances Act is on the person claiming the exception—here, Mr. Roman.