The Kansas Court of Appeals overturned a conviction for marijuana cultivation by finding that clippings from a parent marijuana plant shouldn’t be viewed legally as plants.
“There is a difference between what might be and what is,” quipped Judge Stephen D. Hill in Friday’s ruling.
Ultimately, the state appeals court overturned the conviction of Steven Holsted, a man from Kansas City, Kan., whose hydroponic growing operation was discovered by police after he consented to a search.
Police found 29 marijuana clippings, one large marijuana plant complete with roots, and a grow light setup in his attic.
Holsted originally pleaded guilty to charges of cultivation of marijuana, possession of drug paraphernalia and possession of marijuana, but later withdrew his plea to the cultivation charge.
“Because the clippings here had no roots, we hold the 29 cuttings found by police were not plants and, therefore, the state failed to prove Steven Holsted was cultivating five or more marijuana plants as required by the law,” Hill wrote for a three-judge panel.
Indeed, the statute defines cultivation as “the planting or promotion of growth of five or more plants which contain or can produce controlled substances.”
While all parties agree that a marijuana cutting will grow roots in one to three weeks and could become “almost a perfect clone of the mother plant” that will produce marijuana if properly cared for, the appeals court judges were moved by the defense’s argument that, by definition, a plant isn’t a plant until it has grown roots.
Relying on definitions from Merriam-Webster, Cambridge English and Oxford English dictionaries, along with precedent from federal circuit courts, the logic stood.
As the 29 marijuana cuttings seized by police had yet to sprout visible roots or root hairs, the state failed to make its case that Holsted was cultivating marijuana plants.
While Holsted’s actions certainly showed an intention to produce illegal drugs on a large scale, the timing of his arrest worked in his favor.
“If the clippings have roots, they are plants,” Hill wrote. “If they have no roots, they are not plants and cannot be the basis for a criminal charge of cultivating marijuana under the statute as it is now written.”
Published by Courthouse News Service.