1 IN THE COURT OF APPEALS OF THE STATE OF IDAHO

Docket No. 49199

STATE OF IDAHO

,

Plaintiff

- Respondent

,

v.

COREY EUGENE STEFANI

,

Defendant

- Appellant

. )

)

)

)

)

)

)

)

)

) Filed: February 14, 2023

Melanie Gagnepain, Clerk

THIS IS AN UNPUBLISHED

OPINION AND SHALL NOT

BE CITED AS AUTHORITY

Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada

County. Hon. Darla S. Williamson , Senior District Judge.

Judgment of conviction, affirmed

.

Eric D. Fredericksen, State Appellate Public Defender; Jason C. Pintler , Deputy

Appellate Public Defender, Boise, for appellant.

Hon. R a ú l R. Labrador, Attorney General; John C. McKinney , Deputy Attorney

General, Boise, for respondent.

________________________________________________

GRATTON, Judge

Corey Eugene Stefani appeals from his judgment of conviction for possession of

marijuana , Idaho Code § 37

- 2732(c)(3)

. Stefani argues the State did not provide sufficient

evidence to prove that the substance he possessed was marijuana. T he State provided substantial

evidence for the jury to find Stefani possessed mari juana. Accordingly, w e affirm.

I.

FACTUAL AND PROCEDURAL BACKGROUND

During a n outstanding warrant arrest for Stefani’s girlfriend, law enforcement saw what

appeared to be a bag of methamphetamine on Stefani’s seat as he exi ted his vehicle. Officer

Kincaid searc hed Stefani’s vehicle and discovered a multicolored glass pipe with a green leafy

substance in the bowl along with two bags of a green leafy substance. The State charged Stefani2

with possession of methamphetamine, possession of marijuana, and possession o f drug

paraphernalia.

During the jury trial

, the State proffered Officer Kincaid’s testimony as evidence of the

marijuana possession.

PROSECUTOR: How long have you been a Boise Police officer?

OFFICER KINCAID: Fifteen years.

PROSECUTOR: What kind of t raining do you have to work for the

Boise Police Department?

OFFICER KINCAID: I ’ m sorry. What was that?

PROSECUTOR: What kind of training do you have?

OFFICER KINCAID: I ’ m certified through P

. O

. S

. T

. [Police Officer

Standards and Training ] I have my advanced

certificate at this time. I actually should be getting

my master ’ s certificate at any time now with that

fifteen

- year mark. Narcotics training. I don ’ t know

how specific you want me to get.

PROSECUTOR: That ’ s fine.

. . . . PROSECUTOR: Did you find anything else of interest to you in the

driver ’ s side area?

OFFICER KINCAID: Yeah. I found a multicolored glass pipe with green

leafy substance in the bowel (sic) of the pipe. I also

found two

-- and that was in the door handle of the

driver ’ s do or. And then in the door pocket of the

driver ’ s door, I found two bags of green leafy

substance, two different bags of green leafy

substance.

PROSECUTOR: So I want to talk about the green leafy substance.

Did you smell the green leafy substance?

OFFICER KINCAID: You could smell an odor from the pipe.

PROSECUTOR: And what was that odor?

OFFICER KINCAID: It's kind of a skunky smell, consistent with the smell

of marijuana.

PROSECUTOR: Did the green leafy substance look like marijuana to

you?

OFFICER KIN CAID: It did.

PROSECUTOR: Did you submit the suspected marijuana to the lab

for testing?

OFFICER KINCAID: I did not.

PROSECUTOR: Why not?

OFFICER KINCAID: It ’ s a lower schedule narcotic than what the primary

tested crystal substance we had is. So us ually we

just send the higher scheduled narcotic to the lab.3

Stefani’s trial counsel did not cross

- examine Officer Kincaid about the marijuana. The

jury found Stefani guilty on all charges: possession of methamphetamine, possession of

marijuana, and pos session of drug paraphernalia. Stefani timely appeals.

II.

STANDARD OF REVIEW

Appellate review of the sufficiency of the evidence is limited in scope. A finding of guilt

will not be overturned on appeal where there is substantial evidence upon which a re asonable

trier of fact could have found that the prosecution sustained its burden of proving the essential

elements of a crime beyond a reasonable doubt. State v. Herrera

- Brito , 131 Idaho 383, 385, 957

P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson , 121 Idaho 101, 104, 822 P.2d 998, 1001 (Ct.

App. 1991). We will not substitute our view for that of the trier of fact as to the credibility of the

witnesses, the weight to be given to the testimony, and the reasonable inferences to be drawn

from the evi dence. Knutson , 121 Idaho at 104, 822 P.2d at 1001; State v. Decker , 108 Idaho 683,

684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the evidence in the light

most favorable to the prosecution. Herrera

- Brito , 131 Idaho at 385, 957 P.2d at 1101; Knutson

,

121 Idaho at 104, 822 P.2d at 1001.

III.

ANALYSIS

Stefani argues the State failed to introduce sufficient evidence to establish beyond a

reasonable doubt that the green leafy substance found in his pos session was marijuana. The

State argues the testimony from the officers, the circumstances

, and particularly, the testimony

from Officer Kincaid was sufficient evidence for the jury to find beyond a reasonable doubt that

the green leafy substance was marijuana. Sufficient evidence suppor ts the finding that the green

leafy substance was marijuana.

The Fourteenth Amendment of the Unit ed States Constitution guarantee s the right

to due process, and the U.S. Supreme Court has held that as a part of that due

process, “no person shall be made to suffer the onus of a criminal conviction

except upon sufficient proof

-- defined as evidence necessary to convince a trier of

fact beyond a reasonable doubt of the existence of every element of the offense.”

State v. Adamcik , 152 Idaho 445, 460, 272 P.3d 417, 432 (2010) (quoting Jackson v. Virginia

,

443 U.S. 307, 31 6 (1979)).

In State v. Mitchell

, 130 Idaho 134, 937 P.2d 960 (Ct. Ap p. 1997), this Court held that

“ circumstantial evidence may be sufficient to prove the identity of a substance where laboratory4

analysis is not available.” Id. at 136, 937 P.2d at 962. Nevertheless, “it remains incumbent on

the State to provide evidence that meets the standard of proof beyond a reasonable doubt.” Id.

Because the State did not present laboratory test results showing the green leafy substance was

marijuana, the question is whether the State presented substantial circumstantial evidence to

prove its identity.

Stefani argues the evidence is insufficient to prove identity similar to the St ate’s failure to

prove the substance was methamphetamine in State v. Tryon

, 164 Idaho 254, 429 P.3d 142

(2018). T he Idaho Supreme Court noted in Tryon the only evidence offered to identify the

presumed methamphetamine was the arresting officer’s testimony. Id. at 259, 429 P.3d at 147.

The officer testified that

he had dealt with methamphetamine on almost a weekly basis, in about one

hundred cases; tha t seventy to eighty percent of the time he found

methamphetamine in proximity to syringes or pipes; that the substance in this case

was found with two syringes and pipes; and that, in his opinion, the substance

looked like methamphetamine.

Id. Yet in cro ss

- examination, the officer acknowledged

, “kosher salt and other white crystalline

substances could look like methamphetamine.” Id. The Idaho Supreme Court held “there was

not enough circumstantial evidence in the record upon which a reasonable jury coul d conclude,

beyond a reasonable doubt, that Tryon was guilty of possession of [methamphetamine] .” Id. at

260, 429 P.3d at 148. 1

Nevertheless

, each substance has its own distinct case

- by

- case analysis, and marijuana is

substantially different from methamphetamine

. See Mitchell

, 130 Idaho at 136, 937 P.2d at 962

(“ T he sufficiency of less direct evidence must be evaluated on a case

- by

- case basis

. ”)

. In Tryon

,

the Idaho Supreme Court noted, “[f]urther, the substance was not clearly identifiable as

me thamphetamine solely by its appearance, smell, and packaging.” Tryon

, 164 Idaho at 259,

429 P.3d at 147. The State contends that marijuana “is much more susceptible to visual and

olfactory identification” in contrast to methamphetamine. We agree.

1 The Tryon Court referenced prior cases which “involved certain affirmative acts by law

enforcement to identify the substances.” State v. Tryon

, 164 Idaho 254, 259 429 P.3d 142

, 147

(2018)

. Here, the parties agree that an affirmative act to confirm the identity of the substance i s

strong evidence and, in some cases, pills for instance (that do not have a distinct appearance and

odor), may be necessary to establish identity. The parties fu rther agree, however, that an

affirmative act, such as laboratory testing, i s not always required to sufficiently identify a

substance.5

Similar to Tryon

, t he State’s primary evidence as to substance identification came from

Officer Kincaid ’s testimony. Officer Kincaid testified that he had fifteen years of experience, an

advanced certificate from P

. O

. S

. T

., and narcotics training. Officer Kincaid testified that the

green leafy substance looked like marijuana and that the smell was consistent with marijuana.

Officer Kincaid testified that the green leafy substance in the pipe had “kind of a skunky smell,

consistent with the smell of mariju ana.” The pungent smell of marijuana has its own developed

case law in Idaho. It is well known that “the smell of marijuana alone can satisfy the probable

cause requi rement for a warrantless search ” under the automobile exception. State v. Gonzales

,

117 Idaho 518, 519, 789 P.2d 206, 207 (Ct. App. 1990) (quoting State v. Capps

, 641 P.2d 484,

487 (1982) ). T his precedent suggests that the smell of marijuana is unique to the identification

of marijuana, unmatched by a substance such as methamphetamine. Cf. Tryon

, 164 Idaho at 257,

429 P.3d at 145 (officer testified methamphetamine had little to no odor).

In this case, Officer Kincaid testif ied that the green leafy substance look ed and smell ed

like marijuana and that the pipe was loaded, ready for use. Officer Evans, who saw the

methamphetamine baggie on the driver’s seat, testified that the pipe in the car stood out to him

because it was not the type used for smoking methamphetamine. The pipe and the two baggies

of green leafy substance were located in the same area as the methamphetamine. It is common

knowledge that marijuana is a green leafy substance and that plast ic baggies, such as those found

in the driver’s door, are commonly used to store marijuana. New Jersey v. T.L.O

., 469 U.S. 325,

347 (1985). Unlike methamphetamine or non

- descript pills, marijuana, aside from its green leafy

appearance, has a distinct and readily recognizable odor which distinguishes that green leafy

substance from any other. Accordingly, the State provided substantial evidence for the jury to

find that Stefani possessed marijuana

.

IV.

CONCLUSION

We hold that substantial evidence was prese nted at Stefani’s trial from which the jury

could properly find beyond a reasonable doubt that the substance he possessed was marijuana.

Therefore, Stefani’s judgment of conviction of possession of marijuana is affirmed.

Judge HUSKEY and Judge BRAILSFORD CONCUR

.