21 replies to this topic

[slp]

erroneous info deleted

[grasshopper wilkins]

well i have some friends thatll be happy.

[vrooota]

argues that the mushrooms "were in a natural state of mush-roomness"

lol I love it

[mwillis71]

Damn, I just moved from there! I was in the military though and would have probably been screwed anyway. Damn UCMJ!:teeth:

[Jacsprat]

This could be also see as a win for the professer

and the PF tek...since they clearly used his method

and the spores were ordered from an ad in hightimes

[hydrodad]

"So, it doesn't mean you can grow them legally in N.M., but that you can't get charged with manufacturing, unless you process the fungus/plant some how... You can still get charged with a shitload of other charges.... Mushrooms are still illegal..."

Yes, still illegal. But it seems that the ones with the "narrow" minds who slither their way into office are the the ones that are against any type of "mind expanding" substances. I just think it is a shame that the government that will gladly sell you a bottle of booze to swill down and go kill a family with your car, will not allow it's people to seek inner truth and understanding. Thus making one more tolerant of others and striving for a more peaceful world. But hey, come to think of it... the guys that founded this country burned so called "witches" out of fear and ignorance. How far have we really come ? hmmmm

[hydrodad]

Sorry 'bout that.. had to vent.

[LaughingDog]

>>>A message was written on the cooler stating "Remember to be patient!!!! Pinning might take a few weeks."

The wait from full colonization to pinning is the most nerve wracking for me!

Thanks for the reminder to be patient.

[Fester Addams]

I just think it is a shame that the government that will gladly sell you a bottle of booze to swill down and go kill a family with your car, will not allow it's people to seek inner truth and understanding.

Drinking and driving is illegal, and manslaughter by a drunk isn't really tolerated.
Also, seems to me that a reckless person on mushrooms could still kill people with a car.

And I know you know it, but say what you mean because the government doesn't sell much alcohol. I say "much" because I know someone who bought boxes of bottles of booze from a customs seizure auction. Including a bottle of absinthe, go figure.

[shedthemonkey]

Drinking and driving is illegal, and manslaughter by a drunk isn't really tolerated.
Also, seems to me that a reckless person on mushrooms could still kill people with a car.

And I know you know it, but say what you mean because the government doesn't sell much alcohol. I say "much" because I know someone who bought boxes of bottles of booze from a customs seizure auction. Including a bottle of absinthe, go figure.

Hrm... I don't know about all states, but in Oregon, you cannot buy alcohol except through State run liquer stores. In several other states I have lived in, you can buy booze in grocery stores, but everything has been licenced through the government. I would say your statement is not correct, as my interpretation is that the Govt is a major source in alchol, and tobacco for that matter. Seems there is even a department that has Alcohol, Tobacco, and Firearms (great combo) in it's name. Just sayin.

Oh...and customs seizure auctions are run by whom? heh...It's all The Man.

[slp]

It appears that the Newspaper article by Barry Massey was wrong. He erroneously claimed that the court decision in New Mexico made growing Psilocybe mushrooms legal. Here is the correct ruling:

Certiorari Denied, No. 29,322, August 4, 2005

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2005-NMCA-099

Filing Date: June 14, 2005

Docket No. 24,387

STATE OF NEW MEXICO,
Plaintiff-Appellee,
v.
DAVID RAY PRATT,
Defendant-Appellant.

APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY

James W. Counts, District Judge
Patricia A. Madrid
Attorney General
Patricia Gandert
Assistant Attorney General
Santa Fe, NM
for Appellee
John Bigelow
Chief Public Defender
Cordelia A. Friedman
Assistant Appellate Defender
Santa Fe, NM for Appellant
OPINION
WECHSLER, Judge.


{1} Defendant appeals his conviction of trafficking psilocybin mushrooms by manufacture contrary to NMSA 1978, § 30-31-20(A)(1) (1990) of the Controlled Substances Act (CSA). See NMSA 1978, §§ 30-31-1 to 30-31-41 (1972, as amended through 2002). He argues that his conviction should be reversed because the legislature did not intend to punish the act of growing mushrooms as "manufactur[ing]" when it enacted Section 30-31-20(A)(1). We agree and reverse Defendant's conviction. Because we find the Section 30-31-20(A)(1) issue dispositive, we do not reach the other issues Defendant raises on appeal.


Factual and Procedural History


{2} The facts are not in dispute. On June 6, 2002, police, on information obtained from a confidential informant, obtained and executed a search warrant on Defendant's home. Throughout the house, they found glass mason jars containing psilocybin mushrooms at varying stages of maturity. Some of the jars had psilocybin spores growing on top of a rice cake mixture. The officers also found syringes filled with spores, which were allegedly used to inoculate the rice cake mixture. In the kitchen, the officers found a white styrofoam cooler containing a "bubbling apparatus," which was apparently used by Defendant as a humidifier for growing the psilocybin mushrooms. The machine was "turned on and pumping" when the officers found it. The officers also found "recipes" with instructions on growing psilocybin mushrooms. A message was written on the cooler stating "Remember to be patient!!!! Pinning might take a few weeks."


{3} After a jury trial, Defendant was convicted of trafficking psilocybin mushrooms by manufacture and possession of drug paraphernalia. Defendant does not appeal the possession conviction. We will address the remaining facts as they pertain to the issue on appeal.


Applicability of Section 30-31-20(A)(1)


{4} The State argues that Defendant "manufacture[d]" psilocybin mushrooms by growing them artificially using special equipment. Defendant, relying primarily on our holding in State v. Shaulis-Powell, 1999-NMCA-090, ¶ 17, 127 N.M. 667, 986 P.2d 463, argues that the mushrooms "were in a natural state of mushroomness" when they were seized by police and that "assisting a growing plant or a fungus by providing [a] growing medium and water" is not "manufacture" as proscribed by Section 30-31-20(A)(1).


{5} The question of whether Defendant's conduct of artificially growing psilocybin mushrooms falls within the ambit of Section 30-31-20(A)(1) is a legal question subject to de novo review. See State v. Marshall, 2004-NMCA-104, ¶ 6, 136 N.M. 240, 96 P.3d 801; Shaulis-Powell, 1999-NMCA-090, ¶ 17. When we interpret a statute, our goal is to give effect to the intent of the legislature. Marshall, 2004-NMCA-104, ¶ 7. "We do this by giving effect to the plain meaning of the words of [the] statute, unless this leads to an absurd or unreasonable result." Id.


{6} The CSA prohibits, as intentional trafficking, the "manufacture of any controlled substance enumerated in Schedules I through V or any controlled substance analog as defined in Subsection W of Section 30-31-2." Section 30-31-20(A)(1). "Manufacture" is defined in Section 30-31-2(M) in relevant part as:



the production, preparation, compounding, conversion or processing of a controlled substance or controlled substance analog by extraction from substances of natural origin or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis and includes any packaging or repackaging of the substance or labeling or relabeling of its container.


{7} Section 30-31-20(A)(1) is silent as to its applicability to the act of artificially growing psilocybin mushrooms. However, Shaulis-Powell is instructive in deciding this issue. In Shaulis-Powell, one defendant was convicted of violating Section 30-31-20(A)(1) by growing eight marijuana plants in his yard. Shaulis-Powell, 1999-NMCA-090, ¶¶ 1, 5-6. In reversing that defendant's conviction for trafficking by manufacture, we stated that "[t]he plain meaning of `manufacture' does not include simply growing marijuana. Without more, growing marijuana does not constitute manufacture." Id. ¶ 19.


{8} The State seeks to distinguish Shaulis-Powell on its facts by arguing that: (1) mushrooms are different from marijuana plants, which were at issue in Shaulis-Powell, and (2) the mushrooms found in Defendant's possession were not in their natural state. See id. (noting that the marijuana plants seized from the defendant "were growing in their natural state"). In making these arguments, the State relies primarily on the testimony at trial of its expert witness.


{9} The witness, a forensic scientist with the Minnesota Bureau of Criminal Apprehension Forensic Science Laboratory, testified that "Mushrooms are fungi, and so they are different from plants [in] that they don't have seeds; they have spores that they start out with. . . . [S]pores are . . . the seeds of the mushroom; they're the reproductive cells." The witness also stated that the four stages that make up the life cycle of the mushroom are the spores, the mycelium, the primordia, and the mature fruit. The witness detailed an experiment she conducted in an attempt to duplicate the process Defendant used to grow psilocybin mushrooms. She prepared a substrate using distilled water, brown rice powder, and vermiculite. She placed this mixture into glass jars and inoculated the substrate with psilocybin mushroom spores she purchased legally from an advertisement in High Times Magazine. The witness stated that the mushroom spores were legal because they did not contain psilocybin. However, she detected psilocybin at the "mycelium knot" stage of mushroom development during her experiment. The witness also stated that the process is labor intensive, and, if not followed carefully, the mushrooms will not grow. Based on this evidence, the State argues that Defendant "manufactured" mushrooms as defined by Section 30-31-20(A)(1) and Section 30-31-2(M).


{10} Although Shaulis-Powell noted that the marijuana plants at issue "were growing in their natural state when the officers seized them," we based our holding in the case on the statutory definition of "manufacture." Shaulis-Powell, 1999-NMCA-090, ¶ 19. We stated that "[e]ven if growing marijuana could be considered `production' under the statute, `production' is modified by the phrase `by extraction from substances of natural origin or independently by means of chemical synthesis.'" Id. The same statutory analysis applies in this case. We do not agree with the State that Defendant's actions met the chemical synthesis requirement of "manufacture" by "[u]sing a specialized process [thereby manufacturing] illegal . . . mushrooms from the legal spores . . . received in the mail." This argument is controverted by the State's own expert witness who testified that "spores are . . . the seeds of the mushroom" and that the drug was produced naturally in the mushrooms at the mycelium knot stage. Because there is no evidence that Defendant engaged in "extraction from substances of natural origin or . . . chemical synthesis" as defined by Section 30-31-2(M), his acts of cultivating or growing mushrooms, even if by artificial means, are not prohibited by Section 30-31-20(A)(1). To interpret Section 30-31-20(A)(1) otherwise, as the State suggests, would require us to read language into the statute that is not there. See Marshall, 2004-NMCA-104, ¶¶ 10, 13 (refusing to read a personal use exception into the CSA, reasoning that to do so "would impermissibly read language into a statute that makes sense as written").


{11} Our holding is also supported by an analysis of the federal counterpart to Section 30-31-20(A)(1), 21 U.S.C. § 841(a)(1) (2000) of the Federal Drug Abuse Prevention and Control Act (federal act). See State v. Carr, 95 N.M. 755, 760, 626 P.2d 292, 297 (Ct. App. 1981) (recognizing that the CSA is patterned after the federal act and relying on federal interpretation to the extent that the statutes are similar), overruled on other grounds by State v. Olguin, 118 N.M. 91, 98, 879 P.2d 92, 99 (Ct. App. 1994). The federal act, in pertinent part, proscribes any person from knowingly or intentionally manufacturing, distributing, dispensing, or possessing "with intent to manufacture, distribute, or dispense, a controlled substance." 21 U.S.C. § 841(a)(1). Its definitional section, which is virtually identical to Section 30-31-2(M), defines "manufacture" in pertinent part as:



the production, preparation, propagation, compounding, or processing of a drug or other substance, either directly or indirectly or by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of such substance or labeling or relabeling of its container.


21 U.S.C. § 802(15) (2000). However, the federal act specifically includes a separate definition of "production" as the "planting, cultivation, growing, or harvesting of a controlled substance." 21 U.S.C. § 802(22); see also United States v. Klein, 850 F.2d 404, 405 (8th Cir. 1988) (affirming the defendant's conviction of the "manufacture" of marijuana when the defendant grew ninety-four marijuana plants in the basement of his home using fluorescent lights, light fixtures, a heater, planting pots, and soil testing equipment). Because the CSA is patterned after the federal act, we believe the legislature acted intentionally when it omitted a similar definition of "production," criminalizing as manufacture the "planting, cultivation, growing, or harvesting of a controlled substance," from the CSA. 21 U.S.C. § 802(22); see also State v. Bennett, 2003-NMCA-147, ¶ 11, 134 N.M. 705, 82 P.3d 72 ("We presume that the legislature knows the law when enacting a statute.").


Conclusion


{12} Because Defendant's conduct did not fall within the ambit of Section 30-31-20(A)(1), we reverse his conviction. We remand for proceedings consistent with this opinion.


{13} IT IS SO ORDERED.



________________________________

JAMES J. WECHSLER, Judge

WE CONCUR:


________________________________

LYNN PICKARD, Judge


________________________________

CELIA FOY CASTILLO, Judge
For verification see:
http://caselaw.lp.fi...5ca-099&invol=2
slp/fmrc

[slp]

If shrooms occur naturally in an area (FL), and a person is caught with a handful, possession is probable over looked if the individual claims he/she is ignorant about the species. Right?

That is the way it is supposed to work. However, there was a case where the police got a warrant for a guy's house they caught coming out of a pasture with shrooms. They found a lot of mushroom books. When the guy's trial came up, the police showed the books to the judge and stated that the man had educated himself about the topic, and knew what he was doing, and knew what he had.......he was convicted.
This is the way it is in FL, correct?...

Yes.

Is this the way it is in other states where they occur naturally?

Florida is the only state that makes exceptions.

Stephen, do you know how far north cubs grow naturally?
I know the occur naturally here and I an well north of FL.

I have collected Ps. cubensis as far north as Hernando, MS. I talked to other collectors that claim they found them in Memphis, TN.....which is about 30 minutes north by car of Hernando, MS. With the Global Warming thing, this may be now be extended further. It was about 25 years ago I collected the mushrooms in MS............slp/fmrc

[WiteSpy]

Me in {edited to remove place location. Please, for everybody's security please don't reveal locations...ShedTheMonkey} . This is true, but if they have proof what one knows what he is doing then you have no case.

[TUOTA3I]

IT SEEMS TO ME, AND I'M NEW TO THIS, THAT NO MATTER WHERE YOU ARE YOU CAN GET INTO TROUBLE. I AM STILL DEBATING ON WHETHER TO MOVE TO NEW MEXICO OR NEVADA RIGHT NOW. I GUESS THE WHOLE KEY IS TO KEEP YOUR MOUTH SHUT, INVITE NOBODY OVER, AND USE YOUR HEAD. I DON'T WANT TO BE BUSTED FOR ANYTHING IDIOTIC. THANK YOU FOR THE INSIGHT INTO NEW MEXICO.

[TUOTA3I]

:headbang: I APPRECIATE YOUR INSIGHT. AT LEAST SOMEBODY IS RESEARCHING AND NOT JUST VOCALIZING THEIR OPPINIONS. THANK YOU. IF YOU KNOW OF ANY PLACE FOR ME TO RELOCATE DUE TO LAWS, I'D APPRECIATE YOUR LETTING ME KNOW. THANK YOU SLP.