Calvin K. Williams, #09746 Calvin K. Williams, Chtd. 280 N. Court Ave. P.O.

Box 304 Colby, Kansas 67701 (785) 460-9777 IN THE DISTRICT COURT OF THOMAS COUNTY, KANSAS STATE OF KANSAS, ) Plaintiff, ) ) vs. ) ) RONALD J. BELCIANO, Defendant. ) ) MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS COUNT 1 FACTS On August 5, 2005, Trooper Brian Horney stopped a SUV traveling eastbound on Interstate 70 through Thomas County, Kansas, for speeding. Trooper Horney contacted the driver, identifying him as Ronald Belciano. Mr. Belciano produced a valid drivers license, but could not find his insurance card. Trooper Horney told Mr. Belciano that he smelled what he believed to be an odor of raw marijuana and asked Mr. Belciano whether he had any illegal drugs in the vehicle. Mr. Belciano replied, no sir. According to Trooper Horneys account, he asked to search the vehicle, and Mr. Belciano replied, yes, but can I find my insurance first, this is not my vehicle and I know its in here somewhere. Trooper Horney and Mr. Belciano proceeded to the back of the SUV, and Mr. Belciano searched through some duffel bags for the insurance card. They continued to look for the insurance card on the passenger side of the vehicle. Trooper Horney ordered Ronald Belciano, stop looking and let me look *Endnote numbers that appear with citation correspond to numbers on Index of Citation ) Case No. 05-CR-238

for it while I search the vehicle. Trooper Horney reports that Mr. Belciano responded to this demand by stating, sure. Ronald Belciano does not recall giving any such affirmation, agreement, or permission. Before a search of the vehicle, Trooper Horney conducted a pat down of Mr. Belciano, asking if he had any weapons on his person. After the pat down, Trooper Horney told Mr. Belciano to sit in the ditch, away from the vehicle. In the back of the vehicle, Trooper Horney searched the black duffel bag and found a rubbermaid container with green leafy substance. Inside a case of Coke was another

rubbermaid container with green leafy substance, and inside a box of cereal was a rubbermaid container with a green leafy substance. In the console of the vehicle, Trooper Horney found a small jar with a green leafy substance and a glass water pipe. No report indicates if the green leafy substance was packaged; if so, how it was packaged, or if it was loose inside the boxes. The total weight of marijuana found is not reported in the officers affidavit. It is reported elsewhere, however, that the net weight of the marijuana was two pounds. At some point, Master Trooper John McMahan arrived and helped with the search, but he provides no reports or statements regarding his actions in this questionable search and seizure. At this point, Trooper Horney placed Ronald Belciano under arrest and transported him to the Thomas County Jail. Trooper Horney requested that Trooper Jason Duffey

examine Mr. Belciano for DUI. Trooper Duffey, a drug recognition expert (hereinafter DRE)*, conducted what he calls a drug recognition expert evaluation. Trooper Duffey opined that Ronald Belciano was operating a vehicle under the influence of marijuana and asked Mr. Belciano to submit a urine sample; however, the size of the sample is not recorded. As tested

*Endnote numbers that appear with citation correspond to numbers on Index of Citation

by the Kansas Bureau of Investigation, tetrahydrocannibinol was present in Mr. Belcianos urine. Ronald Belciano was charged with Possession of Marijuana with Intent to Sell, Driving Under the Influence of Drugs, and Possession of Drug Paraphernalia. Affidavit of Horney] ARGUMENTS AND AUTHORITIES A. RONALD BELCIANO HAD NO INTENT TO SELL OR DISTRIBUTE MARIJUANA An abbreviated review of Kansas case law provides some guidance in this case. Instead of a bright line rule or formula, courts employ a fact intensive approach to determine whether the facts of a case are sufficient to prove possession of marijuana with an intent to sell. Courts have invariably recognized that possession with intent to distribute is a crime which requires an act coupled with a specific intent. State v. Gibson, 30 Kan.App.2d 937, 953-54, 52 P.3d 339 (2002)*i, (quoting in order to be convicted of possession of a controlled substance with the intent to distribute the commonwealth must prove that the defendant possessed the controlled substance contemporaneously with his or her intention to distribute that substance. Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13 (1991) review denied at 274 Kan. 1115ii.) More simply put, possession alone does not establish intent to sell. Kansas courts consistently note that an intent to sell may consist of several factors and may be proved by circumstantial evidence. State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988)iii. Another common consideration among Kansas courts is the testimony of officers as to whether or not an amount is consistent with personal use or distribution. State v. Smith, 4 Kan.App.2d 149, 603 P.2d 638 (1979)iv. [See Exhibit A,

*Endnote numbers that appear with citation correspond to numbers on Index of Citation

B. SEVERAL JURISDICTIONS REQUIRE NUMEROUS FACTORS POSSESSION OF MARIJUANA WITH A SPECIFIC INTENT TO SELL

TO

FIND

More specifically, the Kansas Court of Appeals has held factors such as 172 marijuana plants, weighing 100 pounds, found with another 20 pound bag of marijuana is a large enough quantity to evidence an intent to sell. State v. Heiskell, 21 Kan.App.2d 105 (1995)v. The Kansas Supreme Court has found several bricks of marijuana weighing 22.7 grams found with three digital scales, a postal scale, a bag of $625.00 in cash, and two boxes of sandwich bags in a bedroom are sufficient to establish intent to sell. State v. Udell, 34 Kan.App.2d 163, 115 P.3d 176 (2005)vi. In State v. Gibson, supra. at 954, the court affirmed a conviction for possession with intent to sell specifically relying on the fact that, among other indicators, officers found a plastic bag with its corner removed because, as the officer testified, drugs can be packaged in the cut off corner, which is then heat sealed. Other jurisdictions also use a fact intensive analysis to analyze the sufficiency of evidence to prove an intent to sell. The actual sale of drugs to undercover police officers is indicative of an intent to sell. Connecticut v. Tate, 85 Conn. App. 365 (2004)vii (defendant convicted of possession with intent to sell after selling five slabs of cocaine to undercover officer). A large amount of drugs, such as 20 vials of cocaine, may be indicative of an intent to sell. People v. Turner, 228 A.D.2d 331 (1996)viii. An overwhelming amount of circumstantial evidence, such as multiple bags, cash, owe sheet, scales, and sifter, also infer an intent to sell. Commonwealth v. Berry, 63 Mass. App. Ct. 910 (2005)ix. Unlike the above cases, the case of Ronald Belciano does not involve large amounts, such as 120 pounds of marijuana or 20 vials of cocaine, or even overwhelming circumstantial evidence, such as owe sheets, several different types of scales, postal scales, or the actual sale of *Endnote numbers that appear with citation correspond to numbers on Index of Citation

drugs to an undercover police agent. In fact, the State has provided, in hand notes from the officer, that the net weight of the marijuana was two pounds. THE MANNER OF PACKAGING AND QUANTITY OF MARIJUANA DOES NOT NECESSARILY EVIDENCE AN INTENT TO SELL In Kansas, there have been several cases reversed on appeal because of a lack of evidence of intent to sell. Ten rocks of cocaine lying on the hood of the defendants car, cash in the amount of $784.00 in a jacket under the passenger seat, and a crack pipe in the console of the defendants car are insufficient factors to establish an intent to sell. State v. Tucker, 253 Kan. 38 (1993)x. In Tucker, the Supreme Court employed a fact intensive analysis to evaluate the level of evidence necessary to prove intent to sell as opposed to mere possession. Id. The Court relied on State v. Smith, 4 Kan.App.2d 149, 603 P.2d 638 (1979), demanding more evidence of an intent to sell. In Smith, the Supreme Court reversed a conviction for possession of marijuana with intent to sell, stating: i ii iii iv v vi vii viii ix x State v. Gibson, 30 Kan.App.2d 937, 953-54 (2002), 52 P.3d 339 Stanley v. Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13 (1991) review denied at 274 Kan. 1115 State v. Anthony, 242 Kan. 493, 502, 749 P.2d 37 (1988) State v. Smith, 4 Kan.App.2d 149, 603 P.2d 638 (1979) State v. Heiskell, 21 Kan.App.2d 105 (1995) State v. Udell, 34 Kan.App.2d 163, 115 P.3d 176 (2005) Connecticut v. Tate, 85 Conn. App. 365 (2004) People v. Turner, 228 A.D.2d 331 (1996) Commonwealth v. Berry, 63 Mass. App. Ct. 910 (2005) State v. Tucker, 253 Kan. 38 (1993)

*Endnote numbers that appear with citation correspond to numbers on Index of Citation

MEMORANDUM...DISMISS COUNT 1 Case No. 05-CR-238 STATE OF KANSAS v. BELCIANO Page 1 in order to sustain a conviction for possession of narcotics or dangerous drugs for purpose of sale, there must be sufficient proof of possession of such drugs and proof that the possession was for the purpose of sale. Such proof may be circumstantial and may consist of evidence as to quantity of the narcotic, equipment found with it, place it was found, manner of packaging, and opinion of experts that the narcotic was packaged for sale. Id. (quoting State v. Faulkner, 220 Kan. 160, 161 (1976)xi) Although ten rocks of cocaine were found, a deputys testimony that the amount of drugs found was more than most people would normally use for personal use, is insufficient to establish intent to sell. North Carolina v. Turner, 168 N.C. App. 152 (2005)xii. In Turner, the defendant was arrested for probation violation and consented to a search of his house. During the search, officers found a tube containing ten rocks of crack cocaine. Due to a lack of evidence of intent to sell, the court reversed the defendants conviction for possession with intent to sell and remanded the case for resentencing for simple possession. Without scales, cutting devices, and containers, 1.9 grams of compressed powder cocaine and $70.00 in cash is insufficient to establish intent to sell. North Carolina v. Battle, 167 N.C. App. 730 (2005)xiii. In Battle, the court specifically noted 1.9 grams is little enough to have been for personal use and reversed the defendants conviction. Id. at 731. Florida courts have repeatedly noted, where the only proof of an intent to sell is circumstantial, it may support a conviction only if it excludes every reasonable hypothesis of innocence. Jackson v. Florida, 818 So.2d 539, 541 (Fla.2d DCA 2002)xiv. In State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989)xv, the Kansas Supreme Court noted that possession of an illegal substance may be susceptible to two interpretations, one innocent and the other criminal. In Jackson, the court held that five grams of cocaine packaged in six separate bags contained within a

MEMORANDUM...DISMISS COUNT 1 Case No. 05-CR-238 STATE OF KANSAS v. BELCIANO Page 1 larger bag does not establish an intent to sell because this quantity, even as packaged, was not so large as to imply an intent to sell. It was equally plausible that Jackson had purchased the six baggies for his personal use. Id. The court further warned that the quantity may be

circumstantial evidence of an intent to sell but only if the quantity is inconsistent with personal use. Jackson at 541 citing McCullough v. Florida, 541 So.2d 720, 721 (Fla. 4th DCA 1989)xvi [emphasis added]. Notice that many of the cases in which courts declined to find an intent to sell included paraphernalia. Most likely, this is not a coincidence but evidence that courts use common sense in considering that paraphernalia is used to ingest or inhale, contradicting an intent to sell. State v. Johnson, 33 Kan.App.2d 490, 106 P.3d 65 (2004)xvii. Ronald Belciano had no intent to sell marijuana. This Court should take into serious

consideration that, as stated by Florida courts, circumstantial evidence is only indicative of intent to sell if every reasonable hypothesis of innocence is eliminated. There are several wholly innocent explanations for Mr. Belcianos actions. More so, Mr. Belciano merely possessed marijuana for personal use. In this case, there are several factors that prove the intent of personal use as opposed to distribution- most importantly, the fact that Mr. Belciano was found to have marijuana in his system and was in possession of items of paraphernalia for smoking marijuana. The residue in the pipe tested positive for marijuana, proving it had been used for smoking marijuana. Furthermore, there is no indication that the marijuana was packaged in any form consistent with sale. In fact, Trooper Horneys affidavit only states that a green leafy substance was found; he never mentions if it was packaged, and if so, how. While Ronald Belciano admits that on rare occasion courts have

MEMORANDUM...DISMISS COUNT 1 Case No. 05-CR-238 STATE OF KANSAS v. BELCIANO Page 1 found a small amount of drugs to be indicative of sale, it is only when there exists several other factors not present in this case. No cash, scales, or bags were found. The officers observation refutes an inference that Mr. Belciano intended to sell marijuana. The facts instead indicate that Ronald Belciano intended to and, as the State claims as the result of a non-quantitative urine screen, had consumed marijuana at some time in the last 30 to 60 days. A position fully supportive of personal use possession.

D. THE AMOUNT INDICATIVE OF PERSONAL USE IS OBVIOUS FROM THE FEDERAL GOVERNMENTS OWN ACTIONS Since 1976, the Federal Government has supplied marijuana to numerous persons suffering from various debilitating illnesses through a federal medical marijuana program. This was known as the Compassionate IND (Investigational New Drug) Program; the program was discontinued by George H. W. Bush in 1983. Of those grandfathered into the program, only seven survive. Mr. Irvin Rosenfeld is one of the seven. He suffers from multiple congenital cartilaginous exostoses, a rare bone disease. Mr. Rosenfeld receives 300 marijuana cigarettes every 25 days from his pharmacy in a round six inch diameter deep metal tin can. (See Exhibit B) His pharmacy receives the marijuana from the Federal Government. Mr. Rosenfeld smokes approximately 12 marijuana cigarettes a day, and has been doing so for the past 22 years. The defendant is not suggesting that he suffers from a disease that would necessitate medical marijuana; he is using the amount Mr. Rosenfeld receives from the Federal Government as an illustration of what amount is indicative of personal use as opposed to sale or distribution. When considering the amount of marijuana Mr. Rosenfeld receives

MEMORANDUM...DISMISS COUNT 1 Case No. 05-CR-238 STATE OF KANSAS v. BELCIANO Page 1 legally each year, by the very same government criminalizing possession in other cases, it is inconceivable that an amount such as 3 to 3 pounds could establish a per se intent to sell.

MEMORANDUM...DISMISS COUNT 1 Case No. 05-CR-238 STATE OF KANSAS v. BELCIANO Page 1 CONCLUSION A review of case law proves that an estimated amount of two pounds, without having an actual weight from a certified lab, and without knowing if or how the marijuana was packaged, is not, without other evidence, sufficient to show an intent to sell. While reviewing what Ronald Belciano had in his possession, this Court should also review with scrutiny what he did not have, the long list of indicators of intent as found by courts in the past. This Court should also heavily consider factors that show personal use. Mr. Belciano is alleged to have had metabolites of tetrahydrocannibinol in his system and was in possession of paraphernalia used to ingest marijuana; while at the same time, he possessed none of the indicators of sale. All of which provide not circumstantial but direct evidence that Ronald Belciano had an intent to use the marijuana himself and nothing more. Respectfully submitted, ____________________________________ Calvin K. Williams, #09746 Attorney for Defendant, Ronald J. Belciano

MEMORANDUM...DISMISS COUNT 1 Case No. 05-CR-238 STATE OF KANSAS v. BELCIANO Page 1 INDEX OF CITATION xi State v. Faulkner, 220 Kan. 160, 161 (1976) xii North Carolina v. Turner, 168 N.C. App. 152 (2005) xiii North Carolina v. Battle, 167 N.C. App. 730 (2005) xiv Jackson v. Florida, 818 So.2d 539, 541 (Fla.2d DCA 2002) xv State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989) xvi McCullough v. Florida, 541 So.2d 720, 721 (Fla. 4th DCA 1989) xvii State v. Johnson, 33 Kan.App.2d 490, 106 P.3d 65 (2004)