DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
LUCAS STEVENSON,
Appellee.
No. 4D19-3831
[December 2, 2020]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Edward Harold Merrigan, Judge; L.T. Case No. 19-638
CF10A.
Ashley Moody, Attorney General, Tallahassee, and Deborah Koenig,
Assistant Attorney General, West Palm Beach, for appellant.
Carlos A. Canet of Law Office of Carlos A. Canet, P.A., Fort Lauderdale,
for appellee.
CONNER, J.
The State appeals the trial court’s order dismissing the felony
information charging Lucas Stevenson (“the defendant”) with possession
of Tetrahydrocannabinol (“THC”), with leave to refile the charge in county
court as a misdemeanor. Because the State was unable to make a prima
facie showing that the defendant committed a felony, we affirm the trial
court.
Background
The defendant was charged with one count of possession of THC,
contrary to sections 893.03(1)(c)190.a, Florida Statutes (2019) and
893.13(6)(a), Florida Statutes (2019), after being found in possession of
three cartridges containing a liquid for vaping with an electronic cigarette.
The defendant moved to dismiss the charge, arguing that because the
total gross weight of the alleged THC was 14.04 grams, he was improperly
charged in circuit court with a third degree felony when he should have
been charged in county court with a first degree misdemeanor under
section 893.13(6)(b), Florida Statutes (2019). Section 893.13(6)(b)
proscribes as a misdemeanor possession of twenty grams or less of
cannabis. § 893.13(6)(b), Fla. Stat. (2019). More specifically, the
defendant argued that THC is a naturally occurring psychoactive chemical
compound found in the cannabis plant and is also commercially produced
as a synthetic compound. Because the Broward County Sheriff’s Office
Crime Lab (“BSO Crime Lab”) was unable to analyze the vaping compound
in a manner to determine whether the THC he possessed was synthetic or
natural, he further argued that it was impossible to determine whether the
charge is a felony or a misdemeanor, and therefore, applying the rule of
lenity, the felony charge should be dismissed with leave for the State to re-
file as a misdemeanor.
At the hearing on the motion to dismiss, the defense called the forensic
chemist from the BSO Crime Lab who conducted the analysis of the
substance in the vaping cartridges. The chemist testified that THC is the
active compound found in cannabis and the report of his results was
entered into evidence. The chemist did a visual inspection of the
substance, which was a liquid inside one of the cartridges, using a
microscope and also used a gas chromatography mass spectrometry test
to analyze the substance. The chemist testified he documented the results
of his analysis as “tetrahydrocannabinols” in the plural form because he
could not tell whether the source originated as THC or THCA, a similar
compound. He testified that THC can be naturally accessed from the
cannabis plant but can also be synthetically produced. The chemist
testified multiple times that the THC compound he analyzed in this case
could have come from the actual plant, but it could have also been
synthetically manufactured in a laboratory, and that his analysis could
not distinguish the two or determine the origin. When asked if synthetic
THC has characteristics similar to natural THC, the chemist responded
that “[t]hey would be identical,” not just similar, but “exact.”
When asked on direct examination about marijuana resin, the following
exchange occurred:
Q. Can you tell if the compound you have identified if that
comes from a compound manufacture, salt, derivative,
mixture, or preparation of the plant or seeds of
marijuana? Do you want me to repeat that again?
A. No. I can only tell you what it is, not where it came
from.
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Q. Do you know what marijuana resin is?
A. Yes.
Q. What is marijuana resin?
A. That is exactly what we call it, marijuana resin.
Q. Do you know how that is created or how that is
manufactured?
A. The plant produces it.
Q. Can you just scrape it off a plant or whatever?
A. We have gotten preparations where they have scraped
resins from the leaves. That is how they make things
like hash or hash oil.
Q. Do you know if the compound that you detected is a
product of resin?
A. Again, I can’t say where the product came from whether
synthetic or natural. I can only tell you what it is.
....
Q. I think you said a little while ago you don’t know what
the chemical composition of the oil is?
A. Right. We don’t investigate non-controlled substances.
We only find what the controlled substances are, if any,
and then report it.
Q. I think the example I gave you, do they take vegetable
oil and put THC in it?
A. Vegetable oil, I don’t know if that is what they do as a
base or substrate. But I think the question is, where
does the THC come from? I can’t say whether it is
natural or artificial.
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Q. What I am trying to get at, do you know if they just take
some vegetable oil and sprinkle it with THC? Do you
know if that is what they do?
A. The only thing I found in there as far as oils go would
be Vitamin E. But they do have other peaks that I
mentioned on the chromatogram that I don’t bother
trying to match them up.
On cross-examination of the chemist by the State, the following
exchange occurred:
Q. Let’s start from the beginning. When you inspected the
sample provided to you, you said you inspected it for
any plant material?
A. Right.
Q. Was any found?
A. No, not under the microscope. I found liquid.
Q. Just liquid. And no plant material there?
A. Right.
Q. Now, you described resin to be taken directly from the
plant?
A. It can.
Q. Was it a liquid type kind of gooey?
A. It was a very thick type of liquid, yes.
Q. So very thick liquid. Would you call that a resinous
abstract of the plant, if it was abstracted from the plant?
A. If it was abstracted from the plant, yes.
Q. It could be a resinous abstract.
A. The term resin was referred to by being from a plant.
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Q. And it would—
A. Looking at the dictionary, it would be from a plant.
Q. I’m sorry, could you repeat that?
A. If you look at the dictionary definition of resin, it would
have it referring to coming from a plant.
Q. Is [sic] somebody were to remove this liquid resin from
a plant and abstract it, you would categorize it as
resinous abstract?
A. I have referred to it in other lab reports as—in this case,
I said it was a liquid. But for other times I would put
down the word resin.
Q. And this derived from the cannabis plant?
A. As far as the resin go, it does produce cannabis resin,
yes.
Q. You said there is a street name for this resinous
abstract using preparation, basically called hash?
A. The old-fashion term would be called hash or hash oil.
It depends on whether it is solid or liquid. Hash oils is
more—actually it is kind of like an oil.
The defendant argued at the close of the evidence that the State charged
him with violating section 893.03(1)(c)190.a., governing “synthetic
cannabinoids.” He further argued that the State could not remove the
substance in the vaping cartridges from the definition of cannabis under
section 893.02(3), Florida Statutes (2019), which includes “all parts of any
plant of the genus Cannabis” and “every compound, manufacture, salt,
derivative, mixture, or preparation of the plant or its seeds.” The
defendant contended that because the substance in this case could not be
removed from the definition of cannabis, the misdemeanor limitation for
possession of twenty grams or less of cannabis was applicable, noting that
all that was excluded from that misdemeanor limitation was resin, which
was not shown to be present, based on the chemist’s testimony. Because
it could not be clearly established that the misdemeanor exception did not
apply to the substance, the defendant argued the matter should be
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resolved in his favor by dismissing the felony charge and allowing the State
to proceed with a misdemeanor charge.
The State responded that whether the substance was synthetic or
natural was irrelevant because the legislature made it clear that the
misdemeanor applies to a “substance,” while section 893.03(1)(c)190.a
applies to the “chemical isolation” of THC. It argued that the definition of
cannabis was a broad stroke definition of a plant and everything
thereunder, and that the legislature intended to isolate the families of
compounds listed in section 893.03 from the definition of cannabis under
sections 893.02 and 893.13.
In the order granting the motion to dismiss, the trial court framed the
issue before it as whether the THC found in the vaping cartridges was
synthetic or natural, concluding that if synthetic, then the defendant was
properly charged with a felony, but that if the substance was natural, then
based on the amount found, he could only be charged with a
misdemeanor. The trial court explained that “section 893.03(1)(c)(190)(a)
identifies the felony level substance as ‘Synthetic Cannabinoids’” and that
“[i]n reading the statute, the ordinary meaning of that statute is that the
synthetic compound of cannabinoids is a felony level offense as determined
by the Florida Legislature.” The trial court noted the chemist’s testimony
that he could not identify if the substance was synthetic or natural, and
the State’s failure to offer any evidence that the substance was of synthetic
or natural origin. Therefore, the trial court reasoned, the State could not
offer any evidence which would exclude the cannabis plant as the source
of the THC and, as such, the State could not present a prima facie case
that the defendant’s possession of THC was a felony, rather than a
misdemeanor.
The State gave notice of appeal of the final order dismissing the case
with leave for the State to re-file as a misdemeanor.
Appellate Analysis
“The standard of review on a motion to dismiss is de novo because ‘[t]he
purpose of a motion to dismiss is to allow a pretrial determination of the
law of the case when the facts are not in dispute.’” State v. Smith,
67 So.
3d 409, 411 (Fla. 4th DCA 2011) (alteration in original) (quoting State v.
Pasko,
815 So. 2d 680, 681 (Fla. 2d DCA 2002)). Additionally, on a motion
to dismiss, the State must “‘only . . . show a prima facie case,’ and ‘is
entitled to the most favorable construction of the evidence, and all
inferences should be resolved against the defendant.’”
Id. (quoting Pasko,
815 So. 2d at 681). “The motion to dismiss should be granted ‘only where
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the most favorable construction to the state would not establish a prima
facie case of guilt.’”
Id. (quoting Pasko,
815 So. 2d at 681).
On appeal, the State contends that the trial court misapprehended the
facts and did not properly apply the constructs of statutory interpretation
in granting dismissal. Its fundamental premise for reversal is that “the
trial court . . . erred when it decided that possession of 14.04 grams of the
[THC] substance, if it was found to be of natural origin, had to be a
misdemeanor.”
In the trial court, the State contended the misdemeanor exception to
possession of cannabis under section 893.13(6)(b) did not apply to the
“chemical isolation” of cannabis or THC. More specifically, the State
argued as follows:
State: It is the State’s position this definition is outlined.
The definition of cannabis in 893.023 [sic] is the
broad stroke of the definition of the plants and
everything that can fall under. I believe the
legislators intended to isolate these family of
compounds in separating them and it [section
893.03] demonstrates that.
That being said, regardless of the origin of this
material, the chemist says he does not know where
it came from and he only knows that this substance
falls into this category specifically enumerated in the
statute.
So the State is not charging him with cannabis, we
are charging him with possession of this molecule
regardless of the source.
The defense responded: “The problem the State has is that the molecule
falls squarely within the generalized definition of cannabis.”
On appeal, the State abandoned the terms “chemical isolation” and
“molecule” in constructing its argument, and instead reframes its
argument to contend that misdemeanor possession of cannabis applies
only to plant material less than twenty grams, so long as the plant material
is not resin.
The information filed against the defendant alleged that:
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[The defendant] did unlawfully have in his actual or
constructive possession a controlled substance, to-wit:
Tetrahydrocannabinols, the active ingredient in Cannabis
Sativa L, commonly known as THC, contrary to F.S.
893.03(1)(c)190a. and F.S. 893.13(6)(a), (L3).
Section 893.13(6)(a), Florida Statutes, provides:
(6)(a) A person may not be in actual or constructive possession
of a controlled substance unless such controlled substance
was lawfully obtained from a practitioner or pursuant to a
valid prescription or order of a practitioner while acting in the
course of his or her professional practice or to be in actual or
constructive possession of a controlled substance except as
otherwise authorized by this chapter. A person who violates
this provision commits a felony of the third degree, punishable
as provided in s. 775.082, s. 775.083, or s. 775.084.
§ 893.13(6)(a), Fla. Stat. (2019)
Section 893.02(4), Florida Statutes (2019), provides that ‘“[c]ontrolled
substance’ means any substance named or described in Schedules I-V of
s. 893.03.” Although the information references section
893.03(1)(c)190.a., Florida Statutes, in describing the crime charged,
significantly section 893.03 does not contain any language defining
criminal conduct. Instead, the very lengthy statute merely defines five
different schedules of controlled substances by categories. The controlled
substances in each schedule are described by chemical names, and most
schedules describe the controlled substance to include “any material,
compound, mixture, or preparation” containing the chemical, as well as
“salts, isomers, . . . homologues, analogs, esters, etc.” of the chemical.
Section 893.03(1)(c)190.a. defines the controlled substance the
defendant was charged with possessing as follows:
190. Synthetic Cannabinoids. –Unless specifically excepted or
unless listed in another schedule or contained within a
pharmaceutical product approved by the United States Food
and Drug Administration, any material, compound, mixture,
or preparation that contains any quantity of a synthetic
cannabinoid found to be in any of the following chemical class
descriptions, or homologues, nitrogen-heterocyclic analogs,
isomers (including optical, positional, or geometric), esters,
ethers, salts, and salts of homologues, nitrogen-heterocyclic
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analogs, isomers, esters, or ethers, whenever the existence of
such homologues, nitrogen-heterocyclic analogs, isomers,
esters, ethers, salts, and salts of isomers, esters, or ethers is
possible within the specific chemical class or designation.
Since nomenclature of these synthetically produced
cannabinoids is not internationally standardized and may
continually evolve, these structures or the compounds of
these structures shall be included under this subparagraph,
regardless of their specific numerical designation of atomic
positions covered, if it can be determined through a recognized
method of scientific testing or analysis that the substance
contains properties that fit within one or more of the following
categories:
a. Tetrahydrocannabinols. –Any tetrahydrocannabinols
naturally contained in a plant of the genus Cannabis, the
synthetic equivalents of the substances contained in the plant
or in the resinous extracts of the genus Cannabis, or synthetic
substances, derivatives, and their isomers with similar
chemical structure and pharmacological activity . . . .
§ 893.03(1)(c)190.a., Fla. Stat. (2019) (emphasis added).
Pertinent to the analysis is the definition of cannabis found in section
893.02(3):
(3) “Cannabis” means all parts of any plant of the genus
Cannabis, whether growing or not; the seeds thereof; the resin
extracted from any part of the plant; and every compound,
manufacture, salt, derivative, mixture, or preparation of the
plant or its seeds or resin. The term does not include
“marijuana,” as defined in s. 381.986, if manufactured,
possessed, sold, purchased, delivered, distributed, or
dispensed, in conformance with s. 381.986. The term does
not include hemp as defined in s. 581.217 or industrial hemp
as defined in s. 1004.4473. The term does not include a drug
product described in s. 893.03(5)(d).
§ 893.02(3), Fla. Stat. (2019) (emphasis added).
The defendant sought reduction of his charge to a misdemeanor by
asserting that section 893.13(6)(b) applied to his case, since the controlled
substance he was charged with possessing weighed only 14.04 grams.
Section 893.13(6)(b) provides:
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(b) If the [possession of controlled substance] offense is the
possession of 20 grams or less of cannabis, as defined in this
chapter, the person commits a misdemeanor of the first
degree, punishable as provided in s. 775.082 or s. 775.083.
As used in this subsection, the term “cannabis” does not
include the resin extracted from the plants of the genus
Cannabis, or any compound manufacture, salt, derivative,
mixture, or preparation of such resin.
§ 893.13(6)(b), Fla. Stat. (2019) (emphasis added).
The trial court correctly agreed with the defendant’s position that he
should be charged with a misdemeanor unless the State was able to
establish a prima facie showing that the defendant committed a felony by
possessing the three vaping cartridges. A plain reading of the statutory
language reflects that the misdemeanor exception does not apply to
possession of resin or “any compound manufacture, salt, derivative,
mixture, or preparation of such resin.” Id. (emphasis added). Rather, the
misdemeanor exception applies to possession of twenty grams or less of
“all parts of any plant of the genus Cannabis, whether growing or not; the
seeds thereof . . . and every compound, manufacture, salt, derivative,
mixture, or preparation of the plant or its seeds,” except for the resin or
derivatives of the resin. §§ 893.02(3), 893.13(6)(b), Fla. Stat. (2019).
We do not agree with the State’s assertion that the source of the THC is
irrelevant. If the source of the THC was a “compound, manufacture, salt,
derivative, mixture, or preparation of the plant or its seeds,” but not the
resin of a cannabis plant or any compound manufacture, salt, derivative,
mixture, or preparation of such resin, then the misdemeanor exception for
prosecution would apply to the defendant’s possession, given the quantity
possessed.
Notably, the State never argued below that the THC substance in the
cartridges came from cannabis resin or any compound manufacture, salt,
derivative, mixture, or preparation of such resin. On appeal, the State
contends that the witness testified that the substance here was either
synthetically created or natural, but that if it was natural, then it was a
resinous extract, such as would be excluded from the misdemeanor
exception. However, we have examined the testimony of the chemist
closely, and conclude that although he was questioned about cannabis
resin, he never was directly asked and never directly testified that his
analysis revealed the THC source in this case was cannabis resin. Instead,
he repeatedly said he could not conclude whether the source of the THC
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was natural or synthetic. The chemist consistently referred to the
substance as a “liquid.” Although he agreed with the State that resins are
“gooey,” he did not testify that the “liquid” in the cartridges was “gooey” or
a resin.
We conclude that the trial court correctly understood the defendant
could be charged with a felony only if the State could make a prima facie
showing that the source of the THC substance possessed by the defendant
was either artificially produced, cannabis resin, or “any compound
manufacture, salt, derivative, mixture, or preparation of such resin.”
Because the State’s chemist was unable to make such a showing, and the
State failed to proffer any further evidence, we affirm the trial court’s order
of dismissal.
Affirmed.
GERBER and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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