State v. Vail

district court years. In order found no ambiguity used within it was not that, parties provision, determining the or the the intent of while the consider three agreement precedent conditions were to the surrounding ex- circumstances tenancy, they istence of a must first determine that did not affect court the district right defendant’s to terminate the ambiguous. tenancy, Marso v. is the instrument which was Ltd., purchase characterized Clinic, 278 Minn. Mankato agreement provision as Here, month-to-month. having 153 N.W.2d construction reached the district prop- the district court ambiguity, no found only interpretation court is the that can be lan- consideration to the restricted its erly reasonably provision. derived from that Plaintiffs con- the instrument. guage of not in- that the Collinses did tend further Affirmed. conditioning agree provision to a tend to on deci- right repurchase NSSSD’s OTIS, J., part took no in the considera- no dispose property. Since sion to tion or decision of this case. presented mistake was evidence of findings no of fact con- court and

district made, this claim were this

cerning argu- appeal. considered on this

ment can not be issue is whether the

2. The second that, determining un court erred

district purchase agree provisions

der

ment, month-to-month ten plaintiffs held a proper that could be terminated with

ancy Minnesota, Respondent, STATE of vacant, notice, though even the land by the lessor for unimproved, and not used perti that the Plaintiffs claim purpose.

its VAIL, Paul a.k.a. Boston Paul ambiguous. It reads provision nent lease Vail, Appellant. premises “While are vacant and as follows: No. 47427. being the District and not improved by purposes used the District for Supreme Court of Minnesota. District, occupy may the seller continue premises as a lessee of the on a the same Jan. with a rental tenancy pay month-to-month per ment not to exceed the sum of $150.00 may tenancy terminate his

month. Lessee days written notice.” provision that the above argue

Plaintiffs meaning than one susceptible of more ambiguous. meaning, thus is One court, by the is that

ascribed district

tenancy was with either month-to-month having right to terminate

party written notice. Plain-

lease on one month’s can also be provision assert that the

tiffs plaintiffs the give

construed to absolute proper time with

right to terminate to terminate

notice but to entitle defendant changes, three conditions

only if one of the e., property vacancy, improvement, use of

i.

by NSSSD.

129 substance,

I controlled and generally chal- lenges, equal protection grounds, the classification marijuana in Schedule I.1 We find no such constitutional infirmity in classification of as a Sched- substance; ule I but, controlled because the evidence by considered the trial court was verdict, insufficient to support the we re- verse judgment and order acquittal. of The essential facts of the transaction leading appellant’s arrest were not dis- stated; puted and can simply be In Janu- ary 1976,agent Gregory Sickler of the Min- nesota Bureau of Apprehension Criminal (hereafter “M.B.C.A.”)contacted Mark Ro- arrange sasco to purchase of a quantity marijuana. Rosasco, turn, agreed party, contact a third whom he identified only as “Paul.” After a series of negotia- among tions the parties, it was agreed that purchase Rosasco would approximately 225 pounds marijuana from “Paul” and im- mediately transport agent and resell it to 2, 1976, February Sickler. On the transac- Gen., Spannaus, Atty. Warren Thomas L. out, tion was carried and Rosasco was ar- Fabel, Gen., Hansen, Deputy Atty. Gary Sp. during rested the sale to Sickler.2 Rosasco Gen., Paul, Atty. DeWayne Asst. St. Matt- declined to lead M.B.C.A.agents sup- to his Rochester, son, County Atty., respon- for plier arrest, the time of his but did dent. identify the defendant supplier. as the Manahan, Mankato, James H. Marc Kurz- testimony Rosasco’s at trial was corrobo- man, Paul, appellant. St. for by rated telephone records of calls between himself; defendant and by testimony of ROGOSHESKE, OTIS, Heard before agents M.B.C.A. Harold Holden and Rich- WAHL, JJ., TODD and and considered and ard County Stutz and Wabasha Sheriff decided the court en banc. Roger Meurer, who were maintaining aerial WAHL, Justice. ground and surveillance of Rosasco’smove- transactions; day ments on the of the and opinion This opinion substituted for the Best, testimony of Thomas who encoun- 20, 1978, filed on October -hereby which is tered immediately defendant after his Except withdrawn. as indicated in this transaction with Rosasco and was told opinion, petition rehearing is denied. left, the defendant that he pounds had appeal judgment This is an from a of the in the trunk of Rosasco’scar. County finding court of district Olmsted defendant, Vail, guilty May Boston Paul On the defendant was arrested possession pursuant sale and of a controlled complaint charging sub- to a criminal stance, marijuana. The defendant chal- him delivery with the sale and of a con- lenges sufficiency of the evidence iden- trolled substance. Defendant moved dis- tifying the seized as a miss complaint July contraband Schedule on 152.02, 2(3). stance, cooperated prosecution 1. Minn.St. subd. in the the defendant. plea guilty charge 2. Rosasco entered attempted possession of a controlled sub- coupled representa- with the defendant’s the classification grounds sale, tions, quantity price I controlled substance as a Schedule unreasonable, without ration- arbitrary, sophistication the assumed of the seller in objec- relationship permissible product, prac- to a the tests and identifying the al September heard satisfy motion was tical inferences state’s burden of tive. denied. subsequently proof. a written waiver executed Defendant appeal primary Defendant’s raises two trial, matter was jury and the right to a his evidence issues: whether the was sufficient to the facts In addition to the court. tried identity to establish the substance testi- above, expert heard the court set out seized, and whether Minnesota’s controlled Rummel, chemist with mony from Anne classification scheme violates con- Appre- of Criminal Minnesota Bureau equal protection guarantees. stitutional Kurzman, hension, who has and Dr. Marc G. parts: precise issue has two first botany, training pharmacology, extensive established, “identity” which must be on the chemistry. Rummel concluded adequacy the of the scientific and inferen- Duquenois-Le- microscopic, of the basis tial evidence introduced to that end. layer chromatography vine, the thin was mari- involved tests that the substance multiple species question. 1. The she testified that as far as also juana. She sufficiency of the evi- The issue Cannabis, knew, monotypic. was genus, identify dence to the contraband as a con- testimony challenged Kurzman’s Professor initially requires trolled substance a deter- tests the three standard specificity of statutory mination of the breadth of the genus that finding supported “ ‘Marijuana’ parts definition: means all December polytypic. was On Cannabis L., including all plant Cannabis sativa fact, findings of the trial court filed * * agronomical varieties *.” Minn.St. law, and determination conclusions 152.01, trial, At defendant con- subd. 9. with a memorandum together guilt, technical, tended that the definition was following de- by reference the incorporated unambiguous, strictly and to be construed. terminations: Introducing considerable botanical evidence monotypic, not polytypic, 1. Cannabis plant genus polytyp- that the Cannabis matter must be about the or at least doubts ic, argued that the state the defendant The in favor of the defendant. resolved prove beyond must a reasonable doubt that must, therefore, the sub- prove that L., the substance is Cannabis sativa rather L., sativa as involved was Cannabis stance than, g., e. Cannabis ruderalis or Cannabis ruderalis or distinguished from Cannabis judge accepted indica. The trial defend- indica. Cannabis position: ant’s test and thin Duquenois-Levine 2. The “The Minnesota still uses the Statute screening chromatography only are layer sativa L. rather than sim- term Cannabis identify adequately specific tests not Cannabis; therefore, ply I conclude that marijuana. the Minnesota seems to make ille- Statute gal of the one form of possession when combined Microscopic analysis, 3. probably illegal not make Cannabis spectrosco- gas chromatography-mass with possession species: of the other two Can- identifying be- py, capable and Cannabis indica.” nabis ruderalis doubt, test was but that yond a reasonable used in this case. not necessary disagree. We It is not used, literature on the tests while not review all the taxonomic 4. The scientific Cannabis debate.3 determinative, highly probative. monotypic/polytypic When are Doorenbos, Masoud, Kurzman, by, Mississippi- & Turner 3. See Fullerton & Identification Sativa, Marijuana, Contemp, Marijuana Cultiva- Grown Misidentification of and Drug —Cannabis Variations, Morphological (Fall 1974), citing tion and Prob. 291-344 Observed Q. Quim- impossible most See, Rothberg, F.Supp. to distinguish United States visually or affirmed, 534 even (E.D.N.Y.1972), miscroscopically 480 F.2d once fragmented denied, See, dried.6 Kurzman, certiorari U.S. and/or Fullerton & (1973). The Identification and 38 L.Ed.2d 106 Misidentification of Marijuana, 3 Contemp. Drug Q. is a matter of interpretation of a statute Prob. science; presents Such scheme law, proscription equal mari- obvious pro tection process (fair notice) and due all, prob juana, public after is directed to the lems. People v. Van Alstyne, 46 and not to botanists alone. While we Cal. large 900, 913, App.3d 121 Cal.Rptr. strongly principle pe- subscribe (1975), denied, certiorari strictly must be construed nal statutes (1976); see, also, 46 L.Ed.2d 652 government, Ferch v. Victoria against Walton, States 168 U.S.App.D.C. Co., 416, 418, 79 Minn. 82 N.W. 678 Elevator F.2d application of the narrow definition consequences unreasonable of narrow appli in issue would create serious anomalies and cation of the definition requires closer ex problems. constitutional amination of legislative intent. State v. there been some recent evi While has Carroll, 384, 386, 31 225 Minn. 44, 45 N.W.2d all plants dence that not Cannabis contain tetrahydrocannabi- measurable amounts of In added “Cannabis” (THC),4 euphoric agent nols the active to the definition of drugs, narcotic and stat marijuana, associated with there intoxicant ed that the term “includes all parts of the is no scientific evidence that plant 1953, Cannabis Sativa L.” Laws c. lack species genus of the Cannabis THC. 431, 1, 2. apparent It is from §§ this lan See, Bernheim, D. Defense of Narcotics guage legislation that the gen reflected the Cases, (1975). is itself 4.04A at 4-36 THC § eral among consensus botanists that Canna specifically included as a separately See, bis was monotypic. United States v. Schedule I controlled substance. Minn.St. Moore, 684, 330 F.Supp. (E.D.Pa.1970), 686 Thus, 152.02, 2(3). subd. if definition of affirmed, (3 446 F.2d 448 Cir. certio species were held to exclude oth 909, 1617, rari denied 406 U.S. 92 S.Ct. 31 L., species sativa er than Cannabis those (1971); L.Ed.2d 820 United States v. Roth statutory would not be left in a limbo but “ * * * 1115, berg, F.Supp. (E.D.N.Y. 351 1118 proscribed, would still be as ma * * * * * * 1972). which contains terial 152.02, tetrahydrocannabinols.”5 Minn.St. 1970, In the Federal Bureau of Nar Moreover, 2(3). species subd. excluded Dangerous Drugs cotics and legisla drafted qualify penalties would not for the lesser approved tion the National Conference “marijuana” given offenders. Minn.St. of Commissioners on Uniform State Laws 2a; 152.15, 1(5); 2(2), (5); subd. subd. subd. as the Uniform Controlled Substances Act. 4. The result is an enforcement subd. adopted Minnesota much of the new uni provides major act, differences in scheme form including the definition of “mari of penalties species juana” for abuse different of in appeal. issue in this c. L.1971 Cannabis, 937, genus species which are al 4. Although there had been scientif- § Schultes, Botany (1973); spe 27 Economic 117-127 5. Several have courts concluded that the Klein, Lockwood, proscription containing Plowman An & Cannabis: cific of substances THC Example Neglect, of Taxonomic 23 Botanical makes the botanic debate academic: U. S. v. Leaflets, 534, University Rothberg, (2 1973); Harvard 337-367 480 Museum F.2d 536 Cir. cer Anderson, (1974); denied, 856, 159, Study Systemat- L. C. “A of tiorari 414 U.S. 94 S.Ct. 38 Cannabis,” Anatomy (1973); State, ic Wood 24 Harvard L.Ed.2d 106 McKenzie v. 57 Ala. Small, 69, (1974); (1976); See, also, App. Museum E. Botanical Leaflets 29 326 So.2d 135 Cas Cannabis,” Systematics Wheeler, sady (Iowa 1974). “The 61 American v. 224 N.W.2d 649 Abstracts, Botany (1974). Journal of 50 hashish, marijuana 6. Or further refined into a Beckstead, See, Phenotypes Kelly, 4.Small & Common derivative. United States v. 527 Cannabis, Lloydia (1973). (9 1976). 350 Stocks of 37 144 F.2d 961 Cir. 132 use, are indistinguishable among effects of monotypic catego- questioning

ic studies Moreover, species assumed the various Cannabis. rization,7 generally it was but community interpretation that there was that our does legal we are satisfied lay subject agro- public to problems adequate not no- species raise one variation, e., attribut- i. differences species of Canna- nomical tice. Identification The definition climatic conditions.8 bis is and practically able irrelevant user regu- intent general legislative a reflects impossible in its common commercial forms. Cannabis, and genus species of the all pub- late general members of the We think that Thus, contrary assump- so hold.9 we intelligence understand lic common court, only the state must trial tion marijuana, sale of the clandestine whatever ge- doubt the beyond reasonable establish People species, constitutes a crime. See is- plant substance in identity of the neric v. Alstyne, Van 46 Cal.App.3d 121 sue; particular species identification 363, (1975), denied, 374 certiorari Cal.Rptr. not relevant. 798, 1060, 46 L.Ed.2d 423 96 S.Ct. 652 U.S. Honneus, United States (1976); 508 F.2d interpretation that our satisfied We are 566, 1974) denied, (1 Cir. certiorari 421 575 9, re- 152.01, accurately subd. Minn.St. 948, 1677, L.Ed.2d U.S. 95 S.Ct. 44 101 con- major since the legislative intent flects (1975). legislature, morphological cern 909, 1617, Kurzman, denied, supra, See, 31 n. 406 U.S. 92 S.Ct. L.Ed.2d at 302 Fullerton & Zhukovskii, Sifuentes, 47, citing (1971); 820 504 M. Cultivated United States v. F.2d P. Gaines, plants 1974); plants (4 their wild relatives and their 845 489 Cir. United States cytogenetics, —systematics, geography, 1974); (5 ecolo- Dinapo States v. F.2d 690 Cir. United 1964; Tutin, Leningrad, origin, gy, ed., li, T. G. (6 1975); Kolos F.2d 104 Cir. United States v. 519 section, Europea, Flora 67 Cannabis Gavic, (8 1975); 1346 520 F.2d Cir. Kelly, (9 1976); 527 States v. F.2d 961 Cir. only species one seems that there is 8. “[I]t Spann, United States 515 F.2d ** States, Leary v. United marihuana 1975). L.Ed.2d U.S. virtually g., are state courts so: e. Alstyne, Cal.App.3d People v. Van * * * Cannabis sati- believe “[B]otanists denied, Cal.Rptr. 363 certiorari single species represents which has va L.Ed.2d Peo many variations.” National and has stabilized Holcomb, ple 418, 187 v. Colo. 532 P.2d 45 Abuse, Drug and on Commission Marihuana State, (1975); (Fla. v. Nelson 319 So.2d 154 1-2, p. (1972), Appendix Report 16. First Cassady Wheeler, App.1975); 224 N.W.2d v. Kurzman, 302, supra, 303 Fullerton & 1974); (Iowa Shaw, 649 (Me. State A.2d v. 343 210 48, 53, Schultes, Thoughts citing “Random n. Riddle, 433, 1975); People Mich.App. v. 65 Cannabis,” Botany in and the Queries (1976); Thorp, 237 491 State v. 116 N.W.2d Curry, Botany Chemistry Joyce and The 303, (1976); A.2d 655 State v. N.H. 358 Rome adopted poly- (1970). the Schultes Cannabis ro, 642, 397 26 74 N.M. P.2d reiterated Hoffman, position typic in 1973. Schultes and 117, Esquibel, 90 560 P.2d State v. N.M. 181 Botany Chemistry Hallucinogens State, (Ct.App.1977); Winters v. 545 P.2d 786 (1973). (Okl.Cr.App.1976); Murphy, State v. 234 (4th See, also, 1951), Dict. Black’s Law ed. State, (S.D.1975); 54 Hicks v. 534 N.W.2d 1119-1120; pp. Third New Internat. Webster’s (Tenn.Cr.App.1975); 872 v. S.W.2d Williams (1966), p. Dict. 1381. State, (Tex.Cr.App.1975). 524 S.W.2d 705 with decision consistent those 9. Our Three trial court have declined to decisions jurisdictions overwhelming majority so United States One 1966 Chevrolet hold: v. considered the issue. The conclusions have Sedan, Crim.L.Rep. (S.D.Fla.1974); 14 2387 are state and federal courts entitled other Collier, United States v. Crim.No. 43604-73 weight construing great a uniform law. when 14, (D.C.Super., 1974); ’ June United States v. Minn.St. 645.22. Lewallen, F.Supp. (W.D.Wis.1974). 385 1140 appellate federal are unanimous: The courts vitality practical lost all cases have —Chev 305, Walton, U.S.App.D.C. v. 168 United States overruled, silentio, by has been sub rolet Sedan Honneus, (1975); States F.2d 201 United v. 514 Gaines, supra; United States v. Collier denied, (1 1974), 566 certiorari 508 F.2d Cir. Johnson, (D.C. 393 United States v. 333 A.2d 44 101 L.Ed.2d Walton, App.1975); supra; United States v. Rothberg, (1975); 534 United v. 480 F.2d States strongly criticized in Lewallen denied, 1973) (2 certiorari U.S. Kelly, supra; Dinapo States v. United States (1973); United States L.Ed.2d li, supra. Moore, certiorari 446 F.2d 448 Cir. Nevertheless, clarity, “The defendants in in the interest this case have sub- mitted testimony persuasive argu- wish to consider the might ments effect that the combination have states who set the several example screening particular case, tests in this marijua- their definition of recently revised and the screening combination of tests in genus Can- species “all na to include 10' general, does not afford the kind of iden- nabis.” tification that is needed in the criminal law and does not amount to a proof be- of the contraband. Identification (cid:127) yond a reasonable doubt that the sub- stance is declared to be the controlled introduced scientific and substance. mate identify non-scientific evidence “I have testimony listened to this M.B.C.A. at the Rosasco arrest. rial seized more day. than a half a I have reviewed Rummel, chemist, agent M.B.C.A. Anne some of the literature and the law on the Sickler, witness Rosasco testified to subject, persuaded, and I am that at least initial, gross, visual identification of in a case possession where there is of a stated that he observed substance. Sickler controlled substance with the intent perform Paul a Val- agent M.B.C.A. Gerber sell, that the procedures identification are at the time the ma tox field identification probably inadequate.” (Emphasis seized, positive with results. terial was original). separate that three Rummel then testified Whether this court would draw the identification, tests—microscopic laboratory same conclusion from the evidence is not layer thin chroma Duquenois-Levine, and relevant; reviewing our role as a court is performed upon each of tography—were limited. The Judge trial before Olson was with eight samples, consistently random following held defendant’s written and in findings. positive formed waiver of right jury. his to a Un sought The defendant to undermine circumstances, der those judge’s find evidence, impact pointing of this probative ings of fact are entitled to the weight same laymen qualifications the limited out jury on review as a My verdict. State v. identifications, and that to make visual tych, 292 Minn. 194 N.W.2d not have sufficient botanical Rummel did Crosby, State v. 277 Minn. training microscopic a conclusive to make 151 N.W.2d Such find Moreover, reagents used in identification. ings will not clearly be set aside unless test were not tested Duquenois-Levine Knox, Minn., erroneous. State there was no identity purity; to assure findings N.W.2d These regarding atmosphere satura- notation upheld. fact are therefore layer chromatography in the thin test tion The trial court went on to consider tank, plate vapor sample were the or a nor identifying “inferences the substance from Finally, purify the failure to preserved. nonscientific evidence.” Four additional samples prior testing possi- to left the the facts were considered: naturally-occur- combinations of bility that “1. The amounting amount of the sale ring had contaminated the sam- substances pounds. to 220 ples given misleading and results. The price amounting “2. sale to $120 the evi- judge properly The trial admitted per pound. objections

dence and considered defendant’s “3. The statement of the Defendant weight. He determining in its concluded quoted Vail the by State’s witness Mr. evidence, alone, that this was insufficient to Rosasco the as not identifying product identify beyond only marijuana, the substance a reasonable identifying but the prod- marijuana. grade’ uct as ‘Mexican doubt: (Missouri); See, 52-1409(n) (Tennes g., R.S.Mo.Supp.1975, 195.010(20) (1974) 10. e. TCA § see); (1976). 34-20B-1(10) and SDCL fact, ever which this issue was burned or smoked.11 “4. The inferred On the makes, product a case, that a seller of Court facts of this we conclude that the pounds probably sophis- containing 220 simply “additional factors” do not advance enough and alert competent and ticated satisfying proof, the state in its burden of tests before he have made his own to given the skepticism trial court’s product presuma- the bought himself scientific evidence. Because the trial court money from sum of his bly a considerable found that the scientific evidence was inad- simply that task was Whether supplier. equate prove beyond a reasonable doubt in order to test the smoking product the L., that the substance was Cannabis sativa product whether the was or substance and because four additional factors were course, is, analyzed unknown otherwise impermissibly to sustain used the state’s Court.” found, effect, proof, burden of we have in minimum prescribed not eviden- We have that the evidence was insufficient to sustain cases, in identification requirements tiary the verdict. The jeopardy double clause sufficiency to examine preferring States, new Burks v. bars a trial. See, g., e. case-by-case basis. evidence on 437 U.S. 57 L.Ed.2d 1 Dick, Minn., 253 N.W.2d 277 State (1978). Boyum, 293 Minn. 197 N.W.2d State case, we do not believe (1972). In this issue The second raised the de relied the additional considerations that equal protection fendant is the challenge to trial court are sufficient upon by the marijuana statutory classification of as Minne- guilt. support its determination I controlled substance. a Schedule Defend proof of the actual identi- requires law sota acknowledges that equal protection ant substance, the defendant’s belief is ty of the applicable reviewing in the Minne standard Dick, Minn., not sufficient. State marijuana requires sota laws a demonstra price charged N.W.2d reasonable, tion that the classification is made the defendant representations arbitrary, relationship and bears a rational best, are, only assertions of his belief. permissible objective. to a Village of Boraas, Belle Terre v. trial, expressly the state aban At 39 L.Ed.2d 797 Defendant ar identity from attempt to infer doned its gued presented hearing evidence at the necessary relationship. we find no quantity; of his motion to appeal dismiss and on listed, a commercial the last “fact” Finally, marijuana the inclusion of within Schedule among large-volume sell practice testing I controlled substances was both over-inclu ers, speculative unsupported wholly sive, since it satisfies statutory both none of the evidence. Rosasco Sickler criteria,12 under-inclusive, part that no of the material testified since alcohol Dick, Minn., g., placement State v. 253 N.W.2d conduct a review of the e. of controlled jury’s upholding 279 n. conclu- substances in the various schedules. making regarding on the sion that the substance was “In a determination a sub- “testimony stance, pharmacy basis of scientific evidence and the undercover the board of shall consider lit, policeman following: potential that when actual relative gave abuse, pharma- an odor which he concluded off for cological the scientific evidence of its burning marijuana.” effect, known, was the odor if the state of current substance, knowledge regarding scientific classified 12. The history abuse, pattern and current the the originally Schedule I when enacted. Laws provided schedule duration, scope, abuse, significance and of 937, 1971, c. 12. It then § health, public potential risk to of the sub- by review the board for annual produce psychic physiological stance or de- pharmacy: of pendence liability, and whether the substance by pharmacy may, regu- precurser of is an immediate ready of “The state board a substance al- lation, or resched- add substances to delete or controlled under this section. The state pharmacy may ule substances listed in this section. The state board of include non-nar- consulting drug pharmacy, after with the cotic authorized federal board of law for medici- substances, must, advisory only drug council on controlled shall nal use in a schedule if such annually, May year, regulation, on or before 1 of each under either federal or state law or

135 although intervening years classified produced are not so have and nicotine a growing body of scientific literature on the statutory criteria. satisfy the they in fact marijuana effects of on the physiol- human is based classification scheme Minnesota’s ogy psychology,13 marijuana and but has the 1970 Uniform Controlled Substances on not been rescheduled either the state marijuana I Act, listed in Schedule which legislature or the state board of pharmacy, long- was known about its because little acting statutory under its authority. effects. term 152.02, Minn.St. subd. In response 8. growing public scientific opinion “Congress listed marihuana in Schedule against imposing I penalties Schedule on principally I on recommendation users, marijuana has re- HEW, urged marijuana which ‘that be peatedly amended 152.15 Minn.St. to reduce I retained within Schedule at least until penalties. L.1971, 937, 17; L.1973, c. § c. completion of certain studies un now 10-13; 693, L.1976, 42, 1, c. §§ §§ derway physical to’ -determine the apparent, then, It that nominal psychological dependency effects of the inclusion of within Schedule I drug. supra, Report, See H.R. note impact, has little since the classification Apparently potential 4629-30. controlling not a factor in the scheme of significant for abuse and the absence People Morehouse, v. punishment. 80 determining medical value were Misc.2d 364 (Sup.Ct.1975); N.Y.S.2d 108 grounds placement for marihuana Maiden, States F.Supp. 355 743 Cong.Rec. 797 the first schedule. See (D.Conn.1973). Thus, People neither (remarks 1970) (daily ed. Jan. Sen. McCabe, 338, 275 (1971), Ill.2d N.E.2d 407 Kiffer, United States Hruska).” Sinclair, nor People v. 387 Mich. F.2d certiorari de N.W.2d 878 equal sustained States, nom., Harmash v. United nied sub protection challenges to classification 38 L.Ed.2d drug” purposes as a “narcotic for penalties, point.14 are in 152.02, only prescription.” III, currently Minn.St. tive to the substances in be sold Schedule controlling, accepted subd. 8. We find this subdivision medical use in treatment in the Unit- 152.02, States, may Minn.St. rather than subd. cited ed physical dependence and that abuse lead to limited specific The latter sets out criteria psychological depend- defendant. for the or subsequent inclusion of additional sub- ence relative to the substances in Schedule III. “(5) pharmacy stances in Schedule I: place The board of shall a “(1) pharmacy place The board of shall a substance in Schedule V if it finds that the it substance in Schedule if finds that the potential substance has: A low for abuse rela- abuse, high potential has: A for no IV, tive to the substances listed in Schedule currently accepted medical use in the United currently accepted medical use treatment in States, accepted safety for States, and a lack of use physical depend- the United and limited supervision. under medical psychological dependence liability ence and/or “(2) pharmacy place board shall a relative to the substances listed in Schedule substance in Schedule II if it finds that the substance has: A IV.” abuse, high potential for cur- hearing, Judge accepted 13. At the Olson de- rently accepted use in medical the United publications study: fendant’s offer of three for States, currently accepted or medical use with Brecher, al., Drugs (1972); et Licit and Illicit restrictions, may severe and that abuse lead to Health, Education, Secretary Welfare, psychological physical dependence. severe or pharmacy Marijuana transcript and Health and a “(3) place The board of shall testimony expert three witnesses in substance in Schedule III if it finds that the Maiden, F.Supp. United States v. potential substance has: A for abuse less than (D.Conn.1975). II, in Schedules I substances listed currently accepted in treatment in medical use fact, defines, States, separately 10, may 14. In Minnesota the United moderate or low psychological dependence. and that abuse lead 152.01, penalizes, physical dependence high Minn.St. subd. 152.15, 1(1); 2(1) Minn.St. subd. viola- subd. “(4) pharmacy place drugs tions with the The board of shall narcotic included in Sched- I, resulting penal- substance in Schedule IV if it finds that the ule in a three-level Schedule I potential ty (1) (2) drugs; low substance has: A abuse rela- scheme for narcotic other 136 stance, is not the defendant’s belief suffi- debate over view of continued

In Dick, cient,” as v. physical citing authority State long-term short- possible effects, be fairly Minn., 277, it cannot N.W.2d 279 The 253 psychological reluc apprehension on to opinion goes continued here then hold majority said that to pharmacy of the state board of the judge tance the evidence relied on that arbitrary and marijuana so guilty reschedule to sustain the ver- was not sufficient to it unconstitutiona as render unreasonable dict.

l.15 case, In the Dick court made it supra, this I Similarly, the fact that Schedule one of elements clear that the essential argu all include substances not does the crime distribution is not con statutory criteria ably meet find that the trier fact must that is not The stitutionally fatal. marijua- was indeed distributed substance harm attempt regulate all to to compelled agree- this I am na. With statement attempts merely it because substances ful ment, not hold in Dick this court did but Kiffer, v. some. United States regulate that statement that defendant’s also, See, v. Board McDonald supra. question was' 802, Commissioners, 809- 394 U.S. Election prove that not sufficient evidence fact. 1404, (1969); 739 811, 22 L.Ed.2d 89 S.Ct. this court inferences Nor did indicate Inc., 348 U.S. Lee Optical, v. Williamson present the facts and circumstances from 461, 489, L.Ed. 563 483, 75 S.Ct. 99 making the time of statement be made to corroborate the evi- could not or- judgment acquittal Reversed dence. dered. permissible use of inferences in ana-

KELLY, (dissenting). Justice lyzing sufficiency of the evidence has the ma- part concur with the most I For judicial practice. a normal long been “ * * * respect to I with jority opinion, but dissent process thought, by misinterpretation of to be a what I consider which we evidence reason from toward majority. law Minnesota process, This proof, is termed Inference. evidence, opinion, piece one does majority 134 page At e., that, complete persuasion, proof; requires mean i. it law states “Minnesota court merely push mental identity of the sub- means sort of to- the actual proof of 600, (1976); State, substances, marijuana; (3) except 370 A.2d 1310 Kreisher v. I Schedule State, (Del. 1974); marijuana. A.2d 31 Blincoe v. 319 231 886, Renfro, (1974); 204 S.E.2d State v. Ga. 597 with those of is consistent 15. Our conclusion 501, (1975); 56 Hawaii 542 P.2d 366 State v. jurisdictions considered simi which have other O'Bryan, 548, (1975); Idaho 96 531 P.2d 1193 equal protection challenges such classifi lar 1088, People McCaffrey, Ill.App.3d v. 29 332 Kiffer, 477 F.2d United States v. cation. (1975); State, N.E.2d 28 v. 360 Ross N.E.2d 1973), nom, (2 denied sub Cir. certiorari 349 Leins, (Ind.App.1977); v. 1015 State 234 831, States, v. United 414 U.S. 94 Harmash (Iowa 1975); Sliger, N.W.2d 645 State v. 261 165, (1973); English v. 38 L.Ed.2d 65 S.Ct. 999, (1972); La. 261 So.2d State v. 643 Dono Bd., Virginia F.2d 481 188 Probation Parole van, (Me. 1975); 344 A.2d 401 Commonwealth Gramlich, 1973); (4 v. 551 Cir. States Leis, 189, (1969); v. 355 Mass. 243 N.E.2d 898 denied, (5 1977), 434 F.2d 1359 Cir. certiorari Stock, (Mo. 1971); State v. 889 463 S.W.2d 201, (1977); 866, L.Ed.2d 141 98 S.Ct. 54 U.S. White, 193, State v. Mont. 456 P.2d 153 54 Sprinkle, v. 524 F.2d 328 Kehrli (1969); Sheriff, County, Egan v. 88 Clark Nev. denied, 947, 3165, 426 U.S. certiorari 611, (1972); Nugent, 503 P.2d 16 State v. 125 State, (1976); Kenny v. 51 1183 49 L.Ed.2d 528, (1973); N.J.Super. People 312 A.2d 158 v. denied, Ala.App. 282 certiorari So.2d Morehouse, 80 Misc.2d 364 N.Y.S.2d 108 (1973); 282 Ravin v. 291 Ala. So.2d 392 (Sup.Ct.1975); Strong, 245 N.W.2d State v. 277 State, 1975); (Alaska State P.2d 494 v. 537 State, (S.D.1976); 490 S.W.2d Gaskin v. 521 Wadsworth, (1973); P.2d 230 109 Ariz. (Tenn.1973), appeal dismissed Bloom, Cal.App.2d People Cal. v. (1973); Colo., 38 L.Ed.2d 133 Miller v. (1969); People Bourg, Rptr. State, (Tex.Cr.App.1970). Stark, 458 S.W.2d (1976); People 157 Colo. P.2d 504 Rao, State Conn. 400 P.2d may evidence, inferences be there is an abundance of proof. Many both wards combination, proof. otherwise, to reach required, in scientific and which would cor- * * * term ‘tends to show’ or roborate the defendant’s statement. Fur- Wigmore, its force.” thermore, ‘indicates’ describes above, pointed as was out of Evi- of The Law Textbook Students’ may defendant rebut the inference by the dence, 22. § contradictory introduction of evidence. If opinion the scientific and evidence was not was credible evi- case there In the instant strong enough conviction, to sustain the stated that the defendant dence declaration of the defendant and the infer- distributing “high of he was substance by ences drawn the court from all of the a statement of marijuana.” Such grade attendant circumstances were more than by made the defendant was declaration sufficient indepen- of an sustain the conviction. I proof admitted as properly fact, would affirm. that the substance was to-wit: dent Naturally, proof such marijuana.1 indeed respect With portions all other of the evidence, and, like other not conclusive opinion, I would concur with majority. however, In this case no may be rebutted. appears evidence in the contradictory such TODD, (dissenting). Justice record. join KELLY, I in the dissent of J. considered The other evidence was mari- judge to infer that the substance SCOTT, (dissenting). Justice The fact that the juana significant. is also KELLY, join I in the large quantity dissent of J. bought defendant paid a presumably himself and raises an inference high price for the same for himself that

that he ascertained marijuana. It need not be

substance was whether or not defendant’s state-

decided alone,

ment, would be sufficient standing identity of the substance

evidence insofar as or declarations made one ac- such statements have been made 1. “Statements crime, voluntarily, freely dep- relate to the crime with accused without cused of a charged, including rights. those contained rivation of his constitutional Such a which he is exculpatory proof indepen- purporting to be statement is admitted as of an in a statement fact, which, nature, guilt. in connection other dent rather than as a confession of from with * * drawn, 2d, Evidence, evidence, guilt may be an inference of 29 Am.Jur. § him, against at least are admissible in evidence

Case Details

Case Name: State v. Vail

Court Name: Supreme Court of Minnesota

Date Published: Jan 12, 1979

Citation: 274 N.W.2d 127

Docket Number: 47427

Court Abbreviation: Minn.