The North Carolina Court of Appeals decision in State v. Ruffin has notable implications for marijuana prosecutions in the state. The Court rejected the Defendant's argument that 

Legal Industrial Hemp is Indistinguishable from Marijuana w/o Quantitative Lab Testing

 the testimony of a police detective and a forensic expert that a substance "looked like" marijuana was insufficient to support a conviction for sales and possession thereof. 

The writing has been on the wall for a while now: North Carolina courts seem unwilling to accept that hemp and "marijuana" (defined by law) are indistinguishable absent scientific testing in a laboratory. In Ruffin, the detective testified that plant material appeared to be marijuana. He also testified that he saw the Defendant "rolling a marijuana blunt" and that he heard him discussing an "eighth" which is a common term for 1/8 of an ounce of cannabis. The state also presented the testimony of a forensic scientist from the state crime lab, who testified that the substance was cannabis and contained THC, although the precise amount was undetermined because the state crime lab lacks the ability to conduct quantitative testing to determine the concentration of Delta-9 THC. Notably, the scientist did testify that the material they examined "could have been hemp." 

Here are some key takeaways from the case: 

1. Law Enforcement Testimony on Marijuana Identification

The court reaffirmed that trained law enforcement officers can identify marijuana based on visual inspection alone. Detective Harrell, a narcotics officer with nine years of experience, identified the seized plant material as marijuana.This aligns with prior North Carolina case law (from before hemp was legalized and explicitly excluded from the definition of "marijuana" ) but contrasts with emerging concerns that legal hemp and illegal marijuana are visually indistinguishable without laboratory analysis.

• Implication: This ruling supports the continued reliance on officer testimony in marijuana cases, even post-hemp legalization, despite challenges about the scientific validity of such identifications.
• It may be helpful for a defendant to get their own expert who can testify that there is no way to rule out the possibility of the plant material being hemp. A defendant who can't afford an expert can seek court appointment of an expert. 
• More rigorous jury instruction work would be appropriate as well. 

2. Expert Testimony and Chemical Analysis

Forensic scientist Lyndsay Cone testified that the plant material belonged to the Cannabis genus and contained THC but admitted she could not distinguish between hemp and marijuana because the crime lab lacks quantitative THC testing capabilities. The court upheld the admissibility of her testimony, citing established precedent that chemical analysis is not required for marijuana identification. This case law pre-dates the 2018 Farm Bill that re-defined "marijuana" as exclusive of hemp, which is parts of the cannabis plant (and extracts therefrom) containing less than .3% Delta-9 THC. 

• Implication: Defendants may struggle to challenge marijuana identifications on the basis of insufficient lab testing unless the North Carolina courts revisit the standard. In this case, also, the Defendant probably should have challenged the expert's testimony on the grounds that it was not the product of accepted means of "marijuan" identification. 

3. Jury Instructions and the Hemp Exception

The defense requested an instruction that marijuana "does not include hemp or hemp products," which the court gave verbatim. However, the court rejected the defendant's argument that further clarifications on THC percentages were necessary. This request was not made to the trial judge, and an appellate court generally gives great deference to a judicial ruling that was not objected to at the trial level. 

• Implication: This suggests that, at least for now, North Carolina courts do not see a requirement to instruct juries on the precise legal distinction between hemp and marijuana, despite the state's shifting cannabis laws, at least in the context of requiring an instruction that was not requested at the trial level . The outcome may have been different either in the trial court or at the court of appeals, if a more specific request was made by the defendant. 

4. Motion to Dismiss and Sufficient Evidence Standard

The defendant argued that the state failed to prove beyond a reasonable doubt that the plant material was marijuana rather than hemp.The court held that testimony from an experienced officer and a forensic scientist was enough to survive a motion to dismiss. Courts are reluctant to grant "half-time" motions and remove the case from the jury. This defendant also had several charges that were more serious than the marijuana charges, which probably did not help the jury's view of him. 

• Implication: The burden remains on the defendant to prove the possibility that the substance was hemp, rather than requiring the state to affirmatively prove it was marijuana.

5. Concurrent Sentencing for Sale and Delivery of Marijuana

The court noted that under State v. Moore, a defendant cannot be convicted of both selling and delivering a controlled substance in a single transaction.However, because the marijuana sentences ran concurrently with a longer heroin trafficking sentence, the court found no prejudice to the defendant.

• Implication: This ruling does not challenge Moore, but it suggests that sentencing errors may be deemed harmless when they do not affect the defendant's overall prison term.

6. Sentencing Considerations and Extraneous Factors

The prosecutor referenced a pending Death by Distribution charge against the defendant in the heroin case. The trial judge explicitly stated he did not consider that charge in sentencing.

• Implication: This underscores that trial courts must be careful to avoid relying on uncharged conduct in sentencing but may still comment broadly on the societal impact of drug offenses.

Key Takeaways for Marijuana Prosecutions in North Carolina

• The decision arguably supports law enforcement's ability to identify marijuana without chemical testing, even as hemp legalization raises questions about the reliability of visual identification. There are also some approaches that could be taken to distinguish this case from other pending cases, including use of defense experts, motions in limine objecting to the use of forensic expert to identify marijuana based upon evidence rules for expert witnesses, and jury instruction requests that closely track the definition of marijuana as exclusive of hemp. 
• Challenges to marijuana charges based on lack of THC testing must address this case, and take a different approach.
• Courts remain willing to uphold convictions where law enforcement and forensic experts testify that the substance is marijuana, even if they acknowledge that it could be hemp, but this may be countered by more specific jury instruction requests, defense evidence, and specific approaches to challenging the state's evidence, including preemptive challenges to the use of an expert to identify marijuana without scientific quantitative testing. 
• Defendants facing marijuana-related charges should focus on challenging law enforcement identifications rather than expecting courts to impose new burdens on the prosecution to prove a substance is not hemp.

Overall, State v. Ruffin is in line with existing legal precedents and judicial trends resisting calls for stricter evidentiary standards in marijuana cases post-hemp legalization.