*1 Colorado, the State Plaintiff-Appellant, ROOT, Defendant-Appellee.
Edward
No. 81SA447.
Supreme Court Davidson, Atty., Douglas D. Dist. Durant Junta, La Atty., Dist. Manley, Deputy R. plaintiff-appellant. Jr., Junta, Gаrlington, La
Edward defendant-appellee.
HODGES, Chief Justice. from a trial court People appeal two-count amended dismissing a defendant, charged information Root, with crimes under Colo Act. Sections Substance rado Controlled seq., et (1978 Repl. C.R.S. (1981 5) Supp.). Count Vol. possession of with the unlawful (cocaine) II” controlled substance 18-18-105(2)(a), 8) (1978 Repl. (1981 Supр.). Vol. C.R.S. the defendant with marijuana in viola 18—105(2)(c), tion of 18 — 8) Supp.). (1978 Repl. Vol. hear- At the conclusion counts dis- trial court ordered both ing, the the district attor- on the basis that missed probable failed to establish cause ney had We prosecution of the defendant. for the charges be rein- and order that reverse stated. hearing, Detective
At
La Junta Police
evening
of July
that on
testified
the defendant drive into
he observed
parking
and Loan
lot and
Savings
the Otero
thereafter, а second vehicle
park. Shortly
Schneider entered
by Barbara
driven
conversation,
brief
lot. After
car
defendant’s
hand-
got into
*2
563
plastic bag
marijuana.1
salt, compound,
a
Af-
containing
any
ed
“Coca leaves and
de-
Spencer
ter
observed the
both
leaves,
preparation
rivative
of
and
coca
and the
defendant were arrested.
salt,
compound,
prepa-
arrest,
Following the
is chemically equiva-
the defendant’s ve-
ration thereof which
hicle was searched
Spencer
Detective
lent or identical with
of the sub-
the defendant’s consent.
In
stances; except that the substances shall
finding
а
bag marijua-
addition
second
of
include decocainized coca leaves or
na, marijuana seeds and
“drug
assorted
extractions of coсa
which extrac-
several
paraphernalia,”
cannisters contain-
contain
ecgonine.”
tions do not
cocaine or
powdery
a “white
substance” were dis-
of
Samples
powder
covered.
sent
plain
were
language
of this section
Colorado Bureau of Investigation
no doubt but that it
the legisla
leaves
(CBI)
analyzed
each was
to be “co-
that tive intent
of
coca
caine.”2
cocaine,3
including
be
a
included as
II”
“Schedule
controllеd substance. This
II.
supported by
conclusion
numerous federal
defendant was
in Count
interpreted
decisions which have
court
an
the unlawful possession
of a Sсhed
statute, 21
812(c),
U.S.C.
identical
Sched
§
ule II controlled substance. The informa
Jones,
See United States v.
11(a)(4).
ule
543
tion stated:
(8th
1976);
United States
F.2d 627
Cir.
“. . . on or
day
July,
about
31st
of
Foss,
Unitеd
(1st
1974);
fendant’s car as
did not establish
dismissing
erred in
court
Count II of the
the defendant had
illegal drug
in
information which
defendant
so,
This was
marijuana
in violation of
reasoned,
because
term
сocaine
c).
18—105(2)(
in
The trial
specifically used
section
statutory definition
18—
Schedule
controlled substance.
in
attorney
ruled
effect
sufficiently
had failed tо
establish
Act,
Colorado Controlled Substance
supra,
(Sec.
12-22-310(l)(a)(V)),
received
II”
narcotic
as follows:
marijuana provided
Schneider.4
Gray’s
suspected
bag
1966);
1.
see also testified that he
C
Attor
Merriam Co.
marijuana
green
Medicine,
neys’
contained
based on the “dark
Textbook on
ch.
132-181
leafy”
Subsequent
nature
its
contents.
(3d
1974).
ed.
arrest,
analyzed by
the contents were
Safety
La Junta
of Public
to be
ruling that some form of consideration
4.In
L, (marijuana).
Cannabis Sativa
pass to
must
thе defendant
for conviction of
dispensing
violation
of section 18-
all,
separate
samples
seven
were sent.
18-105(2)(c),
trial
report,
The CBI
which was admitted at
preliminary hearing,
analysis
concludes:
“The
powder
through
white
exhibits No.
“Transferring
they
No. 7 disclosed that
all contain cocaine.”
from
one
for no
be
аnother
consideration shall
crystalline
3. Cocaine is defined as a “bitter
sale
there-
alkaloid obtained from coca leaves
used
of.”
a narсotic
local
anesthetic.” Webster’s
Dictionary
New
Third
International
(G
at 434 &
Bureau of Investi-
key
received the
because
Colorado
The fact that
frаmed in the
(C.B.I.) report was not
gation
Detec
clearly evidenced
ana-
of the statute. The C.B.I.
testimony
following
Spencer’s
tive
found in
powdery
white
lyzed a
рrevi
stated that she had
arrest Schneider
car,
laborato-
C.B.I.
the defendant’s
ously
ten dollars
*3
ry report,
introduced
the
ini
marijuana. While the defendant
the
evi-
People,
was
hearing
money
he
tially
police
told the
that
used the
substance,
cocaine.
identifying
dence
drugs necessary
purchase
to
present any
People did
he refused to disclose
was
under
controlled
that
the substance
Moreover,
marijuana.
of the
source
salt, com-
which lists
12-22-310
story, main
chаnged
later
preparation of coca
or
pound,
occurred on the
taining
no transaction
mention
specifically
does not
but
Reviewing
the аrrest.
this evi
night of
People ask the court
Nor did the
cocaine.
the prosecu
in a manner favorable to
dence
is a
judicial notice that cocaine
to take
Colo.,
tion, People
Hall,
rel. Russell
ex
v.
the district
of coca leaves. When
(1980),
determine it
suffi
620 P.2d
I,
suggested
count
it
court dismissed
person
ordinаry pru
to induce a
cient
could be framed in statuto-
report
the C.B.I.
reasonably
and caution to
conclude
dence
ry language.
may
have committed
charged. People Armijo,
197 Colo.
crime
court to
directing the district
Rather than
(1979);
People
District
notice that section 12-22-310
judicial
take
(1974).
106(5) when ruled that no “any
evidence that went this case.” Section 18-18-
106(5) does reflect to whom the consid- go, рolice officers,
eration must but the two the only
who were witnesses at the prelimi- hearing, did not
nary see repeated
and merely conflicting told stories
to them Barbara Schneider and the de- us, Before People
fendant. argue
if no consideration there was for this distri-
bution, court should have bound *4 on a
the case over lesser included However, again the court dis-
missed the without to re- lesser charge,
file or a included
the amount of involved consideration,
lack of direct
Maestas District (1975),I believe the People should
have refiled charge of distribution or pos-
session of rather than engage time-consuming I appeal. would аffirm of the district court. QUINN, J., am authorized to say
joins me in of the State of
Colorado, Petitioner, Fay BEAN, Respondent.
Ted
No. 80SC254.
Supreme Court of
Sept. 7, 1982.
Rehearing Denied meanings tag, “dispensing” same set those forth in section 12- defined in section 22-102(9), Supp.) prepar- “distribute” means to deliver controlled sub- “a device to a lawful by administering dispens- stance other prescription order....