Sufficiency of Evidence – Marijuana vs Hemp

In any marijuana vs hemp drug prosecution, the State bears the burden of proving beyond a reasonable doubt that the substance involved exceeds North Carolina’s legal THC limit of 0.3%, thereby making it illegal marijuana and not lawful hemp.

In the recent case State v. Ruffin, the North Carolina Court of Appeals addressed whether the State met this evidentiary burden, given that the expert witness conceded the material could possibly have been hemp. At trial, defense counsel moved to dismiss the marijuana charges under N.C.G.S. § 15-173 (motion for nonsuit for insufficient evidence) and § 15A-1227, arguing the State had not affirmatively proven the THC content.

The trial court denied the motions, and the Court of Appeals reviewed that ruling on appeal. In North Carolina, the test for sufficiency is whether there is substantial evidence of each essential element of the offens and of the defendant being the perpetrator.

Substantial evidence is such relevant evidence that a reasonable juror could accept as adequate to find the fact in question. The evidence is considered in the light most favorable to the State, resolving contradictions in the State’s favor. Importantly, if the evidence only raises a suspicion or conjecture as to an element (e.g., the identity of the substance), the motion to dismiss should be granted. But if a reasonable inference of guilt can be drawn, the issue goes to the jury.

If you’re facing felony drug charges in Charlotte Mecklenburg, Union or Iredell counties, the experienced attorneys at Powers Law Firm are available for consultation. Call 704-342-4357 today.

Marijuana vs Hemp: Evidence Presented in Ruffin

The State’s evidence that the defendant sold “marijuana” (and not hemp) included:

1. A detective’s testimony that based on look, smell, and context, the plant material was marijuana;
2. The detective’s observation of the defendant discussing an “eighth” and rolling a blunt – conduct strongly associated with marijuana, not legal hemp;
3. The forensic chemist’s testimony that the substance was cannabis containing THC (i.e., a cannabinoid-rich plant of the type that includes marijuana); and,
4. Absence of any indication that the transaction involved legal hemp (for instance, it was a covert street deal for cash, not a regulated hemp product sale).

While the chemist admitted they could not rule out hemp, North Carolina appellate courts have expressly held that a quantitative THC test is not always required to survive a motion to dismiss.

In State v. Osborne, 372 N.C. 619 (2019), the N.C. Supreme Court upheld marijuana convictions despite the theoretical possibility of hemp, emphasizing that juries can weigh the evidence and decide the issue of identity. And in State v. Massey, 287 N.C. App. 501 (2023), the Court of Appeals set forth North Carolina courts have never held a chemical analysis is necessary to distinguish marijuana from hemp for the jury’s purposes.

Consistent with those cases, Ruffin held that the evidence was sufficient to submit the marijuana charges to the jury. The combination of an officer’s identification and an expert’s confirmation of cannabis was enough for a reasonable juror to conclude the substance was illegal marijuana. State v. Booth, 286 N.C. App. 71 (2022), a very similar case where an informant’s controlled buy yielded a “green leafy substance” identified by an officer as marijuana, also sets forth that even absent lab testing such evidence may be deemed substantial evidence to overcome a motion to dismiss.

In Booth, the defendant argued the State failed to prove the substance wasn’t hemp, but the Court of Appeals rejected that argument and allowed the conviction to stand. Likewise, in Ruffin, the court reasoned that the jury could infer the plant’s identity from the circumstances.

The detective’s experienced opinion, the defendant’s own inculpatory conduct (using common marijuana measurements/terminology), and the lab result confirming Cannabis with THC collectively amounted to “substantial evidence” that the material was marijuana. Therefore, the trial judge properly denied the motion to dismiss.

Key Takeaways:

The mere possibility of hemp does not automatically render marijuana evidence insufficient. The State need not chemically quantify THC in every case. Instead, officers and experts may testify to what the substance is, and as long as their testimony and other contextual evidence could lead a juror to conclude it’s marijuana, the case goes to the jury.

Defense attorneys should still highlight the marijuana vs hemp issue to the jury to argue reasonable doubt, but our appellate courts will generally defer to the jury’s determination if the State presents any competent identification testimony. Only if the State’s evidence were truly equivocal or speculative (e.g. an officer guessing with no expertise, or an admission that the substance was equally likely hemp with no further proof) would a dismissal be warranted. In Ruffin, the evidence crossed the threshold from conjecture to permissible inference.

Jury Instructions: Marijuana vs Hemp in North Carolina

Jury instructions are critical in cases involving technical distinctions like hemp vs. marijuana. In Ruffin, the defense requested a special instruction to ensure the jury understood the legal difference.

North Carolina General Statutes (N.C.G.S.) § 15A-1232 provides that when instructing the jury, the trial judge shall not express any opinion about whether a fact has been proven. The statute also makes clear that the judge is not required to summarize evidence or explain how the law specifically applies to the evidence presented in the case.

In accordance with N.C.G.S. § 15A-1231(b), the trial court must hold a charge conference, outside the jury’s presence, to review proposed jury instructions. In this case, the defense requested an additional instruction clarifying the statutory definition of marijuana. Specifically, the defense asked the court to instruct the jury that “the term [marijuana] does not include hemp or hemp products,” tracking the statutory definition set forth in N.C.G.S. § 90-87(16).

The trial judge agreed to the defense’s request and included the proposed language in the instructions given to the jury. Apart from this addition, the instructions followed the North Carolina Pattern Jury Instructions (N.C.P.I.) for the offenses of Sale of a Controlled Substance and Delivery of a Controlled Substance, pursuant to N.C.G.S. § 90-95(a)(1).

These instructions require the jury to determine beyond a reasonable doubt that the defendant knowingly sold or delivered a substance, and further, that the substance was indeed the specific controlled substance alleged by the prosecution—in this instance, marijuana.

Trial Tips for Defense Lawyers:

In Ruffin, the trial judge provided the standard elements required under the pattern instructions and included the clarification, as requested by defense counsel, explicitly stating that marijuana excludes hemp. Defense counsel did not object to the instructions as they were ultimately delivered. On appeal, however, the defendant contended that the instruction was incomplete – arguing the judge should have further explained why hemp is excluded by specifying the 0.3% THC threshold (essentially instructing the scientific definition of hemp vs marijuana).

Because the defense did not object at trial (in fact, they had proposed the given instruction), the Court of Appeals reviewed this issue for plain error. To win on plain error, a defendant must show a fundamental error that had a probable impact on the jury’s verdict. The Court found no error, let alone plain error.

The judge’s instruction was virtually identical to the approved pattern instruction, with the only deviation being the defense’s requested sentence (which accurately stated the law). The appellate court noted that North Carolina favors the use of pattern instructions, which are presumed to be an accurate statement of the law.

The instruction given in Ruffin correctly told the jury that if the substance was hemp, it would not legally be marijuana. The defendant wanted an explicit mention of the 0.3% THC cutoff, but the Court of Appeals held that omitting the specific THC percentage did not amount to error in this context.

The jurors heard testimony about the THC distinction during the trial (the expert explained hemp has <=0.3% THC and that the lab couldn’t measure the amount). The additional scientific detail in the jury charge was unlikely to change the outcome; indeed, it might have confused jurors or invited them to speculate about actual THC percentages when no such data was in evidence.

What mattered was that jurors knew that if they believed the substance was hemp, the defendant must be found not guilty of the marijuana charges. The court was satisfied that this legal point was conveyed by the instructions as given.

In sum, Ruffin teaches that using the pattern instructions, combined with a clear statement that marijuana excludes hemp, is sufficient. Trial judges are not required to lecture the jury on the exact THC chemistry.

As a practice point, defense attorneys should still request an instruction on the marijuana vs hemp issue to ensure the jury is aware of the differences. The pattern instructions may eventually be updated to include that clarification routinely. But Ruffin confirms that a trial court likely will not commit error by closely following the pattern language and the statutory definitions. So long as the jury is informed that hemp is not contraband, the essential law has been delivered.

Navigating Marijuana vs Hemp Charges in North Carolina

Given the evolving legal landscape concerning marijuana vs hemp in North Carolina, understanding the nuances in the law—especially distinctions involving THC content—can significantly impact your case. The decision in State v. Ruffin emphasizes the importance of proactive defense strategies, particularly concerning jury instructions and challenging the sufficiency of evidence.

If you or someone you care about faces felony drug charges in Charlotte, Mecklenburg, Union, or Iredell Counties, we think it’s smart to consult an experienced defense attorney. The Powers Law Firm regularly handles cases involving drug offenses.  We help clients understand the complexities associated with marijuana vs hemp.

To discuss your legal options confidentially, please contact Powers Law Firm at 704-342-4357. We’d like to help you navigate the court system and advocate for your rights.