
    Walter Eugene ROBERTS v. STATE.
    No. CR-91-557.
    Court of Criminal Appeals of Alabama.
    Sept. 30, 1992.
    Rehearing Denied Nov. 25, 1992.
    Certiorari Denied Feb. 19, 1993 Alabama Supreme Court 1920416.
    
      Mark Craig, Decatur, for appellant.
    James H. Evans, Atty. Gen., and Gail Hampton, Asst. Atty. Gen., for appellee.
   McMILLAN, Judge.

The appellant was convicted of “trafficking in cannabis” in excess of 2.2 pounds, in violation of § 13A-12-231, Code of Alabama 1975. He was sentenced to 10 years’ imprisonment and was fined $25,000.

The appellant contends that the State failed to prove a prima facie case of trafficking in cannabis because, he argues, there was no proof as to the weight of the marijuana, excluding the sterilized seeds. The record indicates that Martha Odom, a toxicologist, testified that before trial she examined 10 bags of a vegetable material (State’s Exhibit 1-A through 1-J) and determined that those bags contained marijuana weighing 9.8 pounds. She further testified, however, that she did not grade the quality of the marijuana or determine whether it consisted of seeds or stems. Defense counsel’s timely objection to the introduction of the marijuana into evidence was overruled.

ín order to convict a person of trafficking in marijuana, the State must prove that that person possessed in “excess of 2.2 pounds.” § 13A-12-231, Code of Alabama 1975. In Ex parte Bohannon, 564 So.2d 854 (Ala.1988), the Alabama Supreme Court held that the State failed to prove a prima facie case of trafficking in marijuana against the appellant because the toxicologist testified that the marijuana he weighed contained stems and seeds and that he did not test the seeds to determine if they were sterilized or infertile. Bohan-non was based upon the definition of marijuana found in § 20-2-2(15), Code of Alabama 1975, which specifically excludes certain parts of the marijuana plant.

Here, as in Bohannon, the State proved that the seeds, stems, and plant material it weighed contained marijuana; however, it failed to prove the quantity of the marijuana found within the items weighed. Hence, the State of Alabama failed to prove a prima facie case of trafficking in marijuana against the appellant. Therefore, on the authority of Ex parte Bohan-non, the judgment is reversed and the case remanded. See also Ex parte Presley, 587 So.2d 1022 (Ala.1991).

REVERSED AND REMANDED.

All Judges concur.

MONTIEL, J., dissents with opinion.

MONTIEL, Judge,

dissenting.

I respectfully dissent and vote to uphold the appellant’s conviction. This case is clearly distinguishable from Ex parte Bohannon, 564 So.2d 854 (Ala.1988).

We cannot assume that the 9.8 pounds of marijuana contained seeds and stems where the record contains no such testimony or evidence. This court could just as well assume that the marijuana introduced into evidence contained no seeds and stems.  