Roman v. State

507 P.3d 453

Alfonso ROMAN, Appellant (Defendant),

v.The STATE of Wyoming, Appellee (Plaintiff).

S-21-0178

Supreme Court of Wyoming.

April 6, 2022

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.

GRAY, Justice.

[¶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 Wyo. Stat. Ann. § 35-7-1031(c)(i) as a result of two prior convictions for possession of controlled substances. The district court held a two-day jury trial where the State presented witnesses and exhibits.

[¶6] Officer Foos testified that through his training and experience he was able to identify the white crystal substance found in Mr. Roman's right front pocket as methamphetamine and the green leafy substance found in Mr. Roman's left front pocket as "raw marijuana." He stated that these substances were tested shortly after Mr. Roman's arrest. The white crystal substance yielded a "presumptive positive for methamphetamine" while the green leafy substance yielded "a presumptive positive for THC"—the active ingredient in marijuana.

[¶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, Wyo. Stat. Ann. § 35-7-1031(c)(i)(A), provides that a person who knowingly or intentionally has in his possession no more than three ounces of marijuana in plant form commits a misdemeanor offense. "The State had the burden of proving every material and necessary element of the charged crime beyond a reasonable doubt." Reyes v. State , 2022 WY 41, ¶ 16, 505 P.3d 1264, 1268 (Wyo. 2022) (citing Harper v. State , 970 P.2d 400, 405 (Wyo. 1998) ). The elements of a possession crime are that the defendant: "(1) either individually or jointly with another exercised dominion and control over the substance; (2) had knowledge of its presence; and (3) had knowledge that the substance was a controlled substance." Mitchell , ¶ 34, 476 P.3d at 237–38 (quoting Regan , ¶ 15, 350 P.3d at 706 ).

[¶13] Marijuana is a Schedule I controlled substance. Wyo. Stat. Ann. § 35-7-1014(d)(xiii) ; Pyles , ¶ 7, 456 P.3d at 929. It is defined as:

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[.]

Wyo. Stat. Ann. § 35-7-1002(a)(xiv) (LexisNexis 2021). Hemp is not a controlled substance. See Wyo. Stat. Ann. § 35-7-1002(a)(iv) (defining a controlled substance as "a drug, substance, or immediate precursor in schedules I through V of article III"); Wyo. Stat. Ann. §§ 35-7-1014, -1016, -1018, -1020, -1022 (listing the controlled substances included in schedules I through V of article III which do not include hemp). Hemp is defined as "all parts, seeds and varieties of the plant cannabis sativa l. or a product made from that plant with a [THC] concentration of not more than three-tenths of one percent (0.3%) on a dry weight basis." Wyo. Stat. Ann. § 35-7-1063(b).

[¶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, Wyo. Stat. Ann. § 35-7-1050(a) placed the burden on Mr. Roman to prove that the substance was hemp.

[¶15] Mr. Roman's argument requires us to interpret two statutes contained in the Wyoming Controlled Substances Act (Act)— Wyo. Stat. Ann. § 35-7-1050(a) and Wyo. Stat. Ann. § 35-7-1063. In construing a statute, we "begin[ ] by first determining if the statute ... is ‘clear and unambiguous’ or ‘ambiguous or subject to varying interpretations.’ " Sinclair Wyoming Refin. Co. v. Infrassure, Ltd. , 2021 WY 65, ¶ 12, 486 P.3d 990, 994 (Wyo. 2021) (quoting Ultra Res., Inc. v. Hartman , 2010 WY 36, ¶ 69, 226 P.3d 889, 916 (Wyo. 2010) ). "A statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. A statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations." Rosen , ¶ 9, 503 P.3d at 44 (quoting Vahai v. Gertsch , 2020 WY 7, ¶ 27, 455 P.3d 1218, 1227 (Wyo. 2020) ). "[W]e examine the plain and ordinary meaning of the words to determine whether the statute is ambiguous." Id. (quoting ATWS , ¶ 9, 486 P.3d at 160 ). "We construe the statute as a whole, giving effect to every word, clause,...