The opinion
Judge EAGLES
dissenting.
I respectfully dissent and would vote to reverse based on the failure of the State’s evidence to establish that the weight of the marijuana excluding mature stalks, roots and the muddy clods of dirt clinging to the roots amounted to more than 10,000 pounds as alleged. As noted in State v. Anderson, 57 N.C. App. 602, 608 , 292 *410 S.E. 2d 163, 167 (1982), “weight is one of the essential elements of the crimes charged.” In Anderson the weight of the marijuana alleged was “in excess of 2000 pounds” and the evidence showed 2700 pounds including some arguably mature stalks which should have been excluded. The court there considered that the potential for error by including some arguably mature stalks was less significant where the weight differential was not close. Too, the court in Anderson noted that there was no evidence as to the maturity of the stalks and that “the burden was upon the defendant to show that the stalks were mature or that any other part of the matter or material seized did not qualify as ‘marijuana’ as defined by G.S. 90-87(16).”
In the case sub judice as distinguished from the facts in Anderson , there was evidence that there were mature stalks included, that entire plants were pulled up and loaded into trucks including mature plants with mature stalks, roots and dirt clinging to the pulled up roots. In addition, there is evidence that the material loaded on the trucks including roots, dirt, stalks and plants had been rained on and that they were wet when weighed.
This case is distinguishable from Anderson in that defendants here did offer credible, largely undisputed evidence as to the diversity of foreign (non-marijuana) materials (dirt, mud, wet stalks, etc.) included in the truckloads weighed and that the material weighed was wet, a factor which would have enhanced the weight.
I do not suggest that marijuana must be processed by law enforcement authorities before being destroyed in order for large volume drug trafficking charges to be sustained. However, I do suggest that fundamental fairness requires, at the least, that where entire plants are uprooted, an effort be made to exclude from the gross weight the roots and dirt or mud attached thereto and that some evidence be presented by the State as to approximately what portion of the material weighed is excludable as mature stalks or otherwise. The burden of proof as to all elements of a crime is properly on the State. The weight charged here is an essential element of the offense. Because the State failed to prove that there were 10,000 pounds of marijuana excluding extraneous material, I would reverse the conviction of trafficking in marijuana by manufacturing in excess of 10,000 pounds.