James Robert Whitworth v. State of Mississippi ( 1992 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 92-KA-00659-SCT
JAMES ROBERT WHITWORTH
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 5/26/92
TRIAL JUDGE: HON. GEORGE C. CARLSON, JR.
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: PAUL R. SCOTT
SUSAN M. BREWER
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DEWITT T. ALLRED, III
DISTRICT ATTORNEY: NA
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 3/28/96
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 4/18/96
EN BANC.
PITTMAN, JUSTICE, FOR THE COURT:
¶1. The defendant, James Robert Whitworth, was convicted in the Circuit Court of DeSoto County of the
crime of manufacturing more than one ounce, less than one kilogram of marijuana, in violation of Miss.
Code Ann. § 41-29-139 (b) (2) (Supp. 1989). This charge was count six of an indictment; the trial court
severed this count from the remaining five.
¶2. Whitworth raises five issues, four of which are without merit. We address the remaining question:
whether a jury may take into consideration the weight of the stems of the marijuana plant in determining
whether the defendant manufactured more than one ounce of marijuana. We hold that a jury may take into
account the weight of the stems.
¶3. Whitworth argues that the trial court erred by giving instruction C-11, which allowed the jury to
consider the weight of the marijuana stems if it desired to do so in its determination of the marijuana
produced. Miss. Code Ann. §41-29-105 (q) defines "manufacture" as the "production, preparation,
propagation, compounding, conversion or processing of [marijuana], either directly or indirectly. . . ."
Whitworth contends that the marijuana stems were not being manufactured as defined by the statute and
thus the weight of the stems should not be considered in determining the amount of marijuana. His main
contention seems to be that the stems were not living and growing on the date of the arrest, and so they
were not being manufactured.
¶4. Whitworth was charged and convicted of manufacturing marijuana. Miss. Code Ann. § 41-29-105 (r)
defines "Marihuana" as "all parts of the plant of the genus Cannabis and all species thereof, whether growing
or not, the seeds thereof, and every compound, manufacture, salt, derivative, mixture or preparation of the
plant or its seeds, excluding hashish."(emphasis added) The legislature did not exclude stems in its definition.
Additionally, the crime lab expert witness testified that all parts of the plant, excluding the seeds, are
referred to as marijuana, and that the stems are part of the marijuana plant. Moreover, §41-29-139 (b)(2)
proscribes the penalty for a person who violates subsection (a) with respect to the weight of marijuana in
question. Nowhere in this section does the legislature exclude stems from consideration. But see Sessions
v. State, 106 Nev. 186, 789 P.2d 1242 (1990) (where in a case for trafficking marijuana weighing over
one hundred pounds the court found that the stems and stalks should not have been included in the weight.
The Nevada statute, like the Mississippi statute, defined "Marihuana" as all parts of the plant. However, a
subsequent section of the Nevada statute excluded the mature stems of the plant.)
¶5. The statutes do not exclude the consideration of stems from the process of determining whether
marijuana is manufactured. Whether Whitworth actually manufactured the marijuana in question, stems
included, was properly a question for the jury, and the jury has spoken.
¶6. CONVICTION OF MANUFACTURING LESS THAN ONE (1) KILOGRAM BUT MORE
THAN ONE (1) OUNCE OF MARIHUNA, A CONTROLLED SUBSTANCE, WITHIN 1500
FEET OF A BUILDING WHICH IS ALL OR PART OF A PUBLIC ELEMENTARY SCHOOL
AND SENTENCED TO SERVE TWENTY (20) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AND TO PAY A $5,000.00 FINE AND
ALL FEES AFFIRMED.
LEE, C.J., PRATHER AND SULLIVAN, P.JJ., BANKS, ROBERTS, SMITH AND MILLS,
JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.