Plants require roots

 Caroline M. Zuschek won in State v. Holstead, No. 112,846 (Kan. App. April 8, 2016), reversing a Wyandotte County conviction for cultivation of marijuana. The COA had to decide whether marijuana clippings were "plants" as used in Kansas statute. The COA decided that "plants" require root formations:

And, even though Holsted had placed his clippings into a growing medium, that fact does not make his case unlike other cases. For example, in Edge, marijuana cuttings were found in a growing medium, saturated with a rooting hormone. Some of the cuttings had developed callus tissue, which is formed after a cutting is clipped from a mature plant and is the marker of the beginning of the development of a root. It is from this callus tissue that roots will come. But, the cuttings did not yet have any visible roots or root hairs. The court adopted the commonly accepted root test and held that those cuttings were not plants. .

The legislature set the minimum plant requirement at five. See K.S.A. 2015 Supp. 21-5701(c), K.S.A. 2015 Supp. 21-5705(c), (d)(7)(A). If defendants have only cultivated four plants, they can be punished for the possession of the plants under K.S.A. 2015 Supp. 21-5706, but they would not have a sufficiently large enough operation for a cultivation charge. The legislature emphasized the importance of properly counting the plants; the number of plants determines the severity of the crime. See K.S.A. 2015 Supp. 21-5705(d)(7).

By not defining the term "plants," it is presumed that the common, widely used definition was contemplated. There is a consensus among other courts that the common meaning of "plant" contemplates observable root formation. We share their view.

Here, the parties stipulated that Holsted's clippings had no root formation. Therefore, there was insufficient evidence that Holsted cultivated five marijuana plants in violation of K.S.A. 2012 Supp. 21-5705(c).

[Update: the state did not file a PR and the mandate issued on May 16, 2016]