Nov. 30—MITCHELL — Two Mitchell residents are fighting marijuana distribution and possession charges after test results revealed the 28 plants they were growing contained THC levels below the maximum amount allowed in legal hemp products.

Darrell Bennett Jr., 48, and Aaron Cooper, 41, were charged with manufacturing, distribution and possession of schedule I or II drugs, a Class 4 felony that carries a maximum sentence of 10 years in prison and a $20,000 fine; drug free zone violation, a Class 4 felony; conspiracy to manufacture, distribute and possess drugs, a Class 4 felony; conspiracy to distribute, possession with intent to distribute marijuana in the amount of 1 ounce or less, a Class 6 felony; possession of a controlled substance, a Class 5 felony; and possession of marijuana in the amount between 2 ounces and a 1/2 pound, a Class 6 felony.

Bennett Jr. and Cooper both sought to have the charges dismissed on the grounds the alleged 28 marijuana plants being grown at Bennett Jr.'s residence had low enough THC delta-9 levels that would classify the plants as legal hemp, along with arguing the medical purpose defense and lack of evidence to prove they were intending to distribute marijuana. In late September, Circuit Court Judge Chris Giles denied their motion to dismiss the charges, siding with Davison County prosecutors' argument that a statute limits "statutory grounds" to allow for a dismissal of the charges. THC is the molecular compound in marijuana that's known to produce a high when ingested or inhaled.

In a memorandum, Judge Giles further explained his decision to deny dismissing the charges. He wrote that sufficiency of evidence in relation to a medical purpose defense is "not to be considered by a Circuit Court," citing the state statute.

Although Judge Giles denied Bennett Jr. and Cooper's motion to dismiss the charges, he said during their recent hearings on Nov. 21 that they raise a valid argument for a jury to decide. Specifically, Giles pointed to the medical defense purpose argument as "valid." The two defendants are both scheduled to face a jury trial in early February.

As for the argument of the THC levels found in the plants and other items used to charge the defendants, Judge Giles said that is also something a jury should decide.

Among the things a defendant must prove when using a medical purpose defense is proving that a practitioner asserted a patient has a debilitating condition that cannabis could aid them for, along with possessing and cultivating cannabis within the regulations outlined by state law. Giles noted a medical marijuana card is not required for a defendant in South Dakota to argue medical purpose defense during a trial, which he wrote is something "the court struggles with."