No roots? No marijuana plants, says Kansas court

An appeals court threw out a Kansas City, Kan., man’s marijuana cultivation conviction Friday because the clippings seized by police did not have roots.

Because the 29 clippings from a “mother plant” lacked roots, they were not plants for the purposes of Kansas law, the Kansas Court of Appeals ruled.

“There is a difference between what might be and what is,” the court said in its opinion.

Friday’s ruling came in the case of Steven Holsted, who was charged after Kansas City, Kan., police, acting on a tip, went to his house in 2013 and found 29 clippings in a hydroponic growing system.

Holsted, 30, was charged under the Kansas law that makes it illegal to cultivate five or more marijuana plants.

He was convicted and sentenced to four years and six months in prison on the cultivation charge.

He is serving the sentence with the Kansas Department of Corrections.

His attorney, Caroline Zuschek with the Kansas appellate defender’s office, said that prosecutors seek a Kansas Supreme Court review of the ruling and an official mandate must be filed before the ruling becomes final.

“If and when the decision becomes final, Mr. Holsted’s prison sentence for this crime will be vacated, and he will be released,” she said. “That obviously will make a huge difference in Mr. Holsted’s life.”

Wyandotte County prosecutors said they have not yet decided whether they will seek a review by the Supreme Court.

Zuschek said it was the first time the issue had been raised in Kansas, although courts in two other states and in other federal jurisdictions had addressed it.

She credited Holsted’s attorney at trial, David E. Herron, who first noticed similar cases being raised in federal courts.

According to Friday’s appeals court opinion, prosecutors and the defense agreed that if properly cared for, the clippings would have sprouted roots within a few weeks and would have been clones of the mother plant.

In its ruling Friday, the court said that the clippings “may have been on their way to becoming plants,” but without roots they did not fit the definition of plants.

“If they have no roots, they are not plants and cannot be the basis for a criminal charge of cultivating marijuana under the statute as it is now written,” according to the opinion.

Though the charge of cultivation of five or more plants is a felony, any less than that would constitute the less serious crime of possession.

Zuschek called Friday’s opinion an “articulate reminder on the importance of timing.”

“Here, Mr. Holsted was charged with and convicted of cultivating more than five marijuana plants when he hadn’t yet done that,” she said. “Placing the cuttings in a grow system may have been a step towards cultivation, but it was not cultivation, and the court of appeals recognized that.”

This story was originally published April 8, 2016 at 10:50 AM with the headline "No roots? No marijuana plants, says Kansas court."