dissenting. I would affirm this case because, in my view, there was no evidence whatsoever that Milburn only possessed the marijuana for his own use; in fact, I consider the evidence as definitely reflecting the contrary. The amount in his possession was 9.1 pounds which, as pointed out by the state in its brief, is more than 140 times the amount which the legislature declared sufficient to create a presumption of intent to deliver; not only that, but there was a bag of money on the floor containing 111,480.00.
The majority state that the theory of the defense was that the defendant’s possession constituted a misdemeanor and he was entitled to have the jury consider that version. I would agree if there had been any evidence reflecting that Milburn only had the marijuana for his own consumption, but I do not find such evidence. The presumption of intent to deliver where one possesses more than one ounce of marijuana is rebuttable, i.e., it may be overcome by evidence sufficient to create a reasonable doubt. The majority mention that scattered cigarette papers were found within the car; a “roach clip” and approximately an ounce of marijuana were secreted in his clothing, and there was an odor of marijuana smoke in the vehicle. Several cases are then cited in support of the position taken and it is stated:
In these cases we again recognized that it was solely the prerogative of the jury, as the trier of the facts, to evaluate the conflicting evidence and draw its own inferences as to why appellant had the marijuana in his possession. (My emphasis.)
The fact that appellant had also been smoking marijuana does not, in my opinion, constitute conflicting evidence. After all, one can both smoke it, and deliver it, and this has been true in several cases before this Court.
I would affirm.