State v. Beers

Court of Appeals of Oregon

State v. Beers

125 P.3d 848, 203 Or. App. 460, 2005 Ore. App. LEXIS 1667

CourtCourt of Appeals of Oregon

DecidedDecember 28, 2005

DocketCR020495; A122142

StatusPublished

This text of 125 P.3d 848 (State v. Beers) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Beers, 125 P.3d 848, 203 Or. App. 460, 2005 Ore. App. LEXIS 1667 (Or. Ct. App. 2005).

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Opinion

LANDAU, P. J.

Defendant appeals a judgment of conviction for one count of driving while under the influence of intoxicants, ORS 813.010, and one count of possession of less than an ounce of marijuana, ORS 475.992(4)(f) (2003), amended by Or Laws 2005, ch 708, § 39. He assigns error to the denial of a motion for judgment of acquittal on the possession charge.

According to defendant, ORS 475.992(4)(f) (2003) prohibits the possession of “less than one avoirdupois ounce of the dried leaves, stems [,] and flowers of the plant Cannabis family Moraceae.” In this case, he argues, the undisputed evidence was that he did not possess dried leaves, stems, or flowers of a marijuana plant; rather, he possessed the seeds of the plant only. The state concedes error.

We agree with the parties. As defendant notes, the statute that he is charged with violating prohibits the possession of only “dried leaves, stems [,] and flowers” of a marijuana plant, not seeds. ORS 475.992(4)(f) (2003). The omission of seeds from that list of marijuana plant components was apparently not an oversight. At least one other statute defines “marijuana” more broadly to include nonsterilized seeds of the plant. ORS 475.005(16) defines the term to mean “all parts of the plant Cannabis family Moraceae, whether growing or not,” but excluding “the sterilized seed of the plant which is incapable of germination.” See Bayridge Assoc. Ltd. Partnership v. Dept. of Rev., 321 Or 21, 31, 892 P2d 1002 (1995) (courts assume that, when the legislature includes a provision in one section but omits it from another, the legislature did so intentionally).

Judgment of conviction for possession of less than one ounce of marijuana reversed and remanded; otherwise affirmed.

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LANDAU, P. J.

Defendant appeals a judgment of conviction for one count of driving while under the influence of intoxicants, ORS 813.010, and one count of possession of less than an ounce of marijuana, ORS 475.992(4)(f) (2003), amended by Or Laws 2005, ch 708, § 39. He assigns error to the denial of a motion for judgment of acquittal on the possession charge.

According to defendant, ORS 475.992(4)(f) (2003) prohibits the possession of “less than one avoirdupois ounce of the dried leaves, stems [,] and flowers of the plant Cannabis family Moraceae.” In this case, he argues, the undisputed evidence was that he did not possess dried leaves, stems, or flowers of a marijuana plant; rather, he possessed the seeds of the plant only. The state concedes error.

We agree with the parties. As defendant notes, the statute that he is charged with violating prohibits the possession of only “dried leaves, stems [,] and flowers” of a marijuana plant, not seeds. ORS 475.992(4)(f) (2003). The omission of seeds from that list of marijuana plant components was apparently not an oversight. At least one other statute defines “marijuana” more broadly to include nonsterilized seeds of the plant. ORS 475.005(16) defines the term to mean “all parts of the plant Cannabis family Moraceae, whether growing or not,” but excluding “the sterilized seed of the plant which is incapable of germination.” See Bayridge Assoc. Ltd. Partnership v. Dept. of Rev., 321 Or 21, 31, 892 P2d 1002 (1995) (courts assume that, when the legislature includes a provision in one section but omits it from another, the legislature did so intentionally).

Judgment of conviction for possession of less than one ounce of marijuana reversed and remanded; otherwise affirmed.

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Bluebook (online)

125 P.3d 848, 203 Or. App. 460, 2005 Ore. App. LEXIS 1667, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-beers-orctapp-2005.

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