State v. Olsen, No. 171-69079 (Iowa, July 18, 1984), slip op

  Appeal from the Iowa District Court for Muscatine County, R. K. Stohr, 

  Defendant appeals from a judgment convicting him of unlawful possession 
of marijuana with intent to deliver, a violation of Iowa Code section 
204.401(1).  AFFIRMED.

  Carl Eric Olsen, Miami Beach, Florida, pro se.  James R. Cook of Cook 
& Waters, Des Moines, on the brief.

  Thomas J. Miller, Attorney General, Joseph P. Weeg, Assistant Attorney 
General, and Stephen J. Petersen, County Attorney, for appellee.

  Considered by Reynoldson, C.J., and Uhlenhopp, Larson, Schultz, and 
Wolle, JJ.


  Defendant, Carl Eric Olsen, appeals from a judgment convicting him of 
unlawful possession of marijuana with intent to deliver, a violation of 
Iowa Code section 204.401(1).  This case was before us in State v. Olsen, 
293 N.W.2d 216 (Iowa), cert. denied, 449 U.S. 993 (1980), in which we 
reversed and remanded when a State's witness was permitted to testify 
beyond the scope of the minutes of testimony.  Following his conviction on 
a second trial, defendant again appeals and we affirm.

  Olsen admits that when stopped by the West Liberty police in May of 1978, 
he was transporting 129 pounds of marijuana and $10,915 in cash.  His sole 
defense is that his possession and use of marijuana are protected by the 
first amendment's guarantee of religious freedom.

  Olsen is a member and priest of the Ethiopian Zion Coptic Church. 
Testimony at his trial revealed the bona fide nature of this religious 
organization and the sacramental use of marijuana within it.  Testimony 
also revealed church members use marijuana continuously and publicly, 
commencing at an early age.  Olsen admitted to smoking marijuana while 
driving and to using the drug a few hours before testifying in his second 
trial. Nonetheless, he asks us on this appeal to afford his religious use 
of marijuana unlimited constitutional protection.

  I.  This court dealt at length with Olsen's first amendment claim in 
State v. Olsen, 315 N.W.2d 1, 7-9 (Iowa 1982), a case involving this 
defendant but based on a different automobile stop and arrest.  We find no 
reason to retreat from our holding there that "[a] compelling state 
interest sufficient to override Olsen's free exercise clause argument is 
demonstrated in this case."  In fact, since our last Olsen decision, we 
have been joined in our analysis by yet another court, see Whyte v. United 
States, 471 A.2d 1018 (D.C. 1984).

  Olsen now contends we must make an independent finding of a compelling 
state interest rather than defer to the legislature's decision to regulate 
marijuana.  The cases do not support Olsen's assertion.  See Leary v. 
United States, 383 F.2d 851, 860-61 (5th Cir. 1967), rev'd on other 
grounds, 395 U.S. 6 (1969); Whyte, 471 A.2d at 1021; State v. Rocheleau, 
451 A.2d 1144, 1148 (Vt. 1982).

  II.  Defendant also raises an equal protection challenge, based on the 
legislative exemption granted the peyote ceremonies of the Native American 
Church.  See Iowa Code  204.204(8) (1983).  This statutory exemption may
be derived from the California Supreme Court's decision in People v.
Woody, 394 P.2d 813 (Cal. 1964).  The Woody court noted in granting the 
prosecution exemption that peyote was use only in a desert enclosure and 
only during a special Saturday sundown to Sunday sunrise ceremony.  The 
participants were fed breakfast at the close of the ceremony and were kept 
isolated from the general population until the drug's effects had 
dissipated.  Defendant can point to no such safeguards in the Coptic 
Church's indiscriminate use of marijuana; the drug is smoked publicly and 
continuously and made available to church members regardless of age or 
occupation.  These significant distinctions render meritless defendant's 
equal protection argument.

  We affirm the judgment of the district court.


State v. Olsen, No. 171-69079 (Iowa, July 18, 1984), slip op.