Correy E. Stephenson, Special to Missouri Lawyers Media//September 23, 2024//
The trial court should have granted an individual’s petition for expungement based on his conviction of possession of marijuana and tetrahydrocannabinol (THC), the Western District Court of Appeals ruled on August 20.
On Sept. 5, 2017, a Missouri State Highway Patrol sergeant conducted a traffic stop of a vehicle in which R.M.S. was a front-seat passenger.
The sergeant noticed marijuana residue in plain view on the center console of the vehicle and detected its odor.
During a search of the vehicle, an approximately two-ounce bottle containing “apothecanna” cream labeled as “containing suspected THC,” a bottle containing approximately one ounce of “re-leaf” brand “THC laced liquid” and a small amount of marijuana were found and attributed to R.M.S.
He pled guilty to one count of the class D felony of possession of a controlled substance for possession of “tetrahydrocannabinol” (Count I) and one count of the class A misdemeanor of possession of marijuana (Count II).
In January 2023, R.M.S. filed a petition for expungement of both counts after Amendment 3 to the Missouri Constitution was adopted, legalizing recreational marijuana possession in the state.
The Lafayette County prosecutor’s office and the Highway Patrol (collectively, the state) opposed the petition as to Count I, arguing that the law at the time R.M.S. pled guilty was that THC did not fall within the definition of marijuana and therefore the expungement provisions did not apply to his conviction on that count.
At a hearing, the state acknowledged that if an individual was found with the same substances in THC today, they would not be charged.
The trial court granted the expungement petition with regard to Count II, but denied it as to Count I.
R.M.S. appealed.
At the time of R.M.S.’s guilty plea, and prior to the enactment of Amendment 3, possession of THC was considered a separate offense from possession of marijuana, and the THC-containing substances R.M.S. possessed were not considered marijuana under the statute he was charged under, Judge Gary D. Witt explained.
Amendment 3 provided several new definitions, including re-defining marijuana to include “resin extracted from the marijuana plant and marijuana-infused products.”
R.M.S. argued that the cream that formed the basis of his charge, which contained “suspected THC,” was no longer criminal.
Conversely, the state told the court that only THC derived naturally from marijuana was eligible to be expunged — not synthetic THC — and it was up to R.M.S. to prove the THC-infused products that he possessed in the underlying offense were not derived from synthetic THC.
But the court found that R.M.S. met his burden to prove that he was entitled to expungement.
“As this Court has recently held … the consequences of a guilty plea after the fact must be based on the offense with which the defendant was charged and on the actions to which he admitted,” the court wrote. “In this case, R.M.S. was not charged with having possessed synthetic THC.”
The probable cause statement following his arrest did not allege that R.M.S. possessed synthetic THC, and the charging document and the probable cause statement affirmatively stated the substance was THC, with no mention whatsoever of synthetic THC.
“Accordingly, R.M.S. established that he did not plead guilty to and was not found guilty of possession of synthetic THC, even if the underlying facts would have supported different or more serious charges,” the court said.
The court also pointed out that R.M.S. was charged in Count II under a statute that criminalized both the possession of marijuana and synthetic marijuana. However, the state did not argue that, in order to be entitled to expungement of the charge under Count II, R.M.S. was required to prove that the substance he possessed was not synthetic marijuana.
“Just as R.M.S. is entitled to expungement under Count II because he was charged with and pled guilty to possession of marijuana, not synthetic marijuana, under Count I he is entitled to expungement because he was charged with and pled guilty to possession of THC, not synthetic THC,” the court concluded. “[P]ossession of small amounts of marijuana-derived THC are eligible for expungement under Amendment 3, as it constitutes a ‘resin extracted from the marijuana plant,’ and products made from it constitute ‘marijuana-infused products.’”
Damien de Loyola and Lindsey L. Wiederholt of the Missouri State Public Defender’s Office, who represented R.M.S., said in an email statement that they were “relieved for our client and excited for others who will be helped by the decision,” which shined light on “a murky issue.”
The decision clarified that “unless a person was explicitly charged with, and convicted of, synthetic THC or synthetic marijuana, the conviction must be expunged,” they said. “It ensures that those who have convictions and those who remain incarcerated for products that any of us can now legally buy and use are able to get relief, consistent with the constitutional amendment.”
Lexington attorney Kristen L. Hilbrenner, who represented the Lafayette County Prosecuting Attorney, did not respond to a request for comment.
The case is R.M.S. v. Lafayette County Prosecuting Attorney, No. WD86328.
This article credit to MOLawyersMedia