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."

Bennett Jr. and Cooper's charges stem from a search of Bennett Jr.'s residence that allegedly uncovered cannabis plants, marijuana edibles, five jars containing what authorities believed to be THC delta-9 concentrate and paraphernalia, according to an affidavit. In addition, the search uncovered bulk packaging with sticker labels that read, "Thank you for your business" and a machine capable of extracting THC from harvested plants, according to an arrest affidavit. A grand jury indicted the two after they were arrested following the March search.

After the plants were sent to a state lab for testing, the results revealed the plants being grown in Bennett Jr.'s basement had low amounts of THC delta-9.

According to court documents, the tests showed the plants contained .0970% delta-9 THC, which is below the maximum amount of THC allowed in legal hemp products in South Dakota, as outlined in a state statute. The maximum amount of THC allowed in hemp products in finished form is 0.3%, according to the state law.

Hemp production became legal in South Dakota after state lawmakers passed a bill in 2018 that legalized hemp. The state Legislature established the amount of THC concentration that hemp plants and products can contain at that time.

While the plants contained THC levels below the state's legal amount, one jar containing a substance that authorities found during the search had a THC concentration of .312%, court documents say. The jar containing .312% of THC is slightly above the legal amount of THC allowed in finished form hemp products. If hemp is in the processing stage, state law says the maximum amount of THC permitted in a hemp plant is 1%.

In South Dakota, a valid medical marijuana card holder is permitted to grow three cannabis plants, according to state law. A card holder can grow more than three plants if the patient's application is authorized to cultivate more than three marijuana plants.

On Nov. 21, Cooper and Bennett Jr. were both ordered to make monthly payments toward their attorneys as the case proceeds. Judge Giles said his order was a move to make Cooper and Bennett Jr. put some financial "skin in the game."

Cooper and Bennett Jr. have pleaded not guilty to all charges. The two are scheduled to face a jury trial in early February, which could change with an appeal of Judge Giles' motion to deny dismissing the charges.