People v. Newell , 77 Ill. App. 3d 577 ( 1979 )

Mr. JUSTICE MILLS

delivered the opinion of the court:

Can the roots, moisture, and immature stalks of the marijuana plant constitute “substance containing cannabis”?

Yes.

We affirm.

Newell was found guilty by a jury of the offenses of possession of more than 500 grams of cannabis and of production of cannabis. Judgment was entered only on the possession verdict and he was sentenced to 4 years in the Department of Corrections. On appeal, he contends that the State failed to prove that he was in possession of more than 500 grams of a substance containing cannabis.

The evidence at trial showed that a large number of plants were seized from a garden on property adjacent to that of the defendant. One of the Adams County deputy sheriffs who seized the plants testified that they were growing in four distinct rows in a garden plot which measured 20 by 40 feet. There were approximately 200 plants in this cultivated area and there were no weeds present in the area of the seized plants. He characterized the seized substances as marijuana.

Within an hour of the seizure, the defendant arrived home and was immediately taken into custody by the deputy. During the trip to the sheriff’s office, he acknowledged that he had planted the marijuana plants that had been seized.

The plants were subsequently weighed on a scales located at the sheriff’s department and were found to weigh in excess of 600 grams. They were then transported to a local pharmacy where they were again weighed and at this time it was established that they weighed 609.1 grams.

Three plastic bags containing the plants were delivered to a drug analyst for the Illinois Department of Law Enforcement on November 9, 1978. The analyst, who normally tested dried plant material, split open each bag, removed the roots and dried the material. He testified that the plants were not mature and that growing plants contain water. When he subsequently weighed the plants, now dried and without roots, they weighed 87.1 grams. He then removed a sample from each bag and performed a microscopic examination and a modified Levine-Duquenois test. To the best of his knowledge all of the plant material was Cannabis sativa. He admitted that he could not state that all the plants were cannabis since he only examined a portion of each bag, not each individual plant.

The defendant presented no evidence and the jury returned verdicts of guilty.

An element of proof necessary to sustain a conviction under section 4(e) of the Cannabis Control Act is the weight of the substance containing cannabis. The weight must be in excess of 500 grams. (Ill. Rev. Stat. 1977, ch. 56/2, par. 704(e).) Defendant initially contends that the evidence produced by the State was not sufficient to establish a weight in excess of 500 grams.

We disagree.

Defendant concedes the State may legitimately include the weight of each plant which was Cannabis sativa in arriving at the weight of 500 grams. He argues, however, that such aggregation cannot extend to any plant which did not contain cannabis or to garden soil.

We agree.

But this record is devoid of evidence to suggest that the Adams County deputy sheriffs included soil or plants which did not contain cannabis when they arrived at the weight of 600 grams. We see no basis for differentiating between plants the defendant has aggregated in growing rows in a garden and plants he has aggregated in processed form in plastic bags. (People v. Calhoun (1977), 46 Ill. App. 3d 691, 361 N.E.2d 55.) As long as the State connects the substances to the defendant, their aggregation is not improper.

The only evidence presented to the trier of fact in this case was that the officer seized only those plants which had been aggregated by the defendant. The plants that were seized were not mature plants. The defendant neither attempted to have the substances analyzed prior to trial nor did he cross-examine the State’s witnesses in this regard. In fact, he admitted that the seized “marijuana plants” were planted by him.

Defendants’ reliance on the reduction in the weight of the plants after they were dried and the roots removed is misplaced. In Calhoun, the cannabis that was seized also contained paper and bits of soil. The court could not assume that the absence of these materials from the seized contraband would reduce its weight to below the required statutory amount for the offense of which the defendant had been convicted. Furthermore, the court concluded that the State may determine the weight of the contraband based upon its condition at the time it was seized.

We conclude that the State is not required to process and condense the seized material to minimize the weight of the contraband and it may rely on its weight at the time it is impressed.

On this record, the jury was entitled to consider the weight of 600 grams obtained by the deputy sheriff when arriving at its decision.

Defendant next attacks the State’s expert testimony as to the nature of the seized substances. He argues that there was insufficient proof of the nature of these plants because only a sample from each of the bags was analyzed.

An expert opinion as to the nature of a particular substance may be based upon an analysis of a small amount of the substance. The fact that only a portion is positively identified as containing the contraband goes only to the weight to be given the testimony, not to its admissibility. (People v. Kline (1976), 41 Ill. App. 3d 261, 354 N.E.2d 46.) It is for the jury to decide the weight to be given to this expert testimony. People v. McCord (1978), 63 Ill. App. 3d 542, 379 N.E.2d 1325.

To the best of the analyst’s knowledge, all of the plant material was cannabis. He admitted that he could not state that all of the plants were cannabis — he only tested a portion of each bag and defendant had none of it analyzed. This evidence was presented to the jury and its finding will not be disturbed unless it is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of guilt. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) Applying this standard, we conclude that the evidence was sufficient to support the jury’s verdict.

Affirmed.

REARDON, P. J., concurs.