To THC or Not to THC: What Meets the Definition of Marijuana?

State v. Brown, No. 126,279, 2025 WL 2180381 (Kan. Aug. 1, 2025)

Staff Editor Sadie McWilliams

September 4, 2025

Issue: Is proof of THC required to establish distribution of marijuana under the Kansas Criminal Code and the Kansas Uniform Controlled Substances Act?[1]

Answer: No.  THC evidence may be relevant but is not required to prove the offense.

Facts: Brown was convicted of first-degree felony murder, predicated on distribution of marijuana.  At trial, the State produced eyewitness testimony that before the deal turned violent, Brown was selling a substance that looked and smelled like marijuana.  However, the eyewitness admitted he was unsure if the substance was “real marijuana containing THC.”[2]  Brown appealed, arguing that this testimony alone was insufficient to prove he distributed marijuana, as opposed to a legal substance excluded from marijuana’s statutory definition.[3]

Discussion: Kan. Stat. Ann. § 21-5705(a)(4) and § 65-4105(d)(16) criminalize distributing controlled substances and hallucinogenic drugs, including marijuana.  However, the statutes’ definition of marijuana excludes certain substances.[4]  Thus, Brown argued that the State had to prove that the substance contained THC to establish that it was marijuana, rather than a legally excepted substance.

The Court rejected this argument, holding that the presence of THC—while relevant to a “fact-finder’s determination of whether a substance is marijuana . . .”—“is not required to meet the statutory definition of marijuana.”[5]  The Court explained that the State is not required to “present direct evidence that the substance . . . contained THC or any other ingredient.”[6]  Rather, circumstantial evidence, like the eyewitness testimony provided, can support conviction.  Accordingly, the jury was entitled to weigh the circumstantial evidence—conflicting or not—to determine whether the substance was marijuana and return a conviction.

Key Authorities: Kan. Stat. Ann. §§ 21-5705(a)(4), 65-4105(d)(16), 21-5701(k); State v. Baldwin, No. 124,442, 2023 WL 5163292, at *4 (Kan. Ct. App. Aug. 11, 2023); State v. Brazzle, 466 P.3d 1195, 1204 (Kan. 2020).

[1]  See Kan. Stat. Ann. §§ 21-5705(a)(4), 65-4105(d)(16).

[2]  State v. Brown, No. 126,279, 2025 WL 2180381, at *13 (Kan. Aug. 1, 2025).

[3]  Kan. Stat. Ann. § 21-5701(k) (1)–(5) (providing exceptions to the definition of marijuana).

[4]  Id.

[5]  Brown, 2025 WL 2180381, at *11 (quoting State v. Baldwin, No. 124,442, 2023 WL 5163292, at *4 (Kan. Ct. App. Aug. 11, 2023)).

[6]  Id. at *12.