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Two Kentucky Tots pose for picture with Mom and Grandma’s Pot

A mother of two young boys and their grandmother are facing serious charges for making a 1 year old and a 5 year old little boy pose for pictures with marijuana. Leslie County, Kentucky deputies allege that grandmother Beth Hensley and mother Tracey Hensley took pictures of the two boys with marijuana joints and a large marijuana bud near their faces. The picture of each boy with the joint shows the joint in the boys’ mouth while someone appears to be trying to light it. Grandmother, Beth Hensley, was reported to authorities after attempting to have the pictures developed at her local Rite-Aid.

Beth Hensley is currently facing trafficking marijuana, possession of marijuana, and cultivating marijuana charges. Tracey Hensley is currently facing similar charges in addition to endangering the welfare of a minor and unlawful transaction with a minor. As to be expected, the children were removed from the home by social services and placed in the care of a relative. When questioned by police, the sagely mother-daughter duo explained that the joint was not filled with marijuana from the gigantic bud in other pictures, but rather they were going John Wayne style and smoking a large cigarette full of Prince Albert tobacco. Yes, totally believable. When ultimately questioned as to their motive for this exotic photo shoot, mother of the year Tracey Hensley responded that “it was just something to show them later on in a picture album how crazy their grandma was.” Crazy indeed.

Ladies, ladies, ladies. Not the best idea you’ve ever had. Not only are you facing ridiculously serious charges, it may be tough to get those kids back in your care. As Floridians we’re used to “weird news” so things like this should come as no surprise. In fact, our Tampa criminal lawyers represented an individual with similar facts who accidentally sent his kid to school with marijuana and scales in the kid’s backpack. If one were to reenact Miss Kentucky and Miss Kentucky runner up’s tomfoolery in Florida, they could face similar charges.

First things first, I believe what isn’t being said is that the police likely went to the shared home of the Hensley family and discovered a significant amount of marijuana. I’m unsure of Kentucky law but we can discuss this fact pattern under Florida law.

Because trafficking marijuana requires at least 25 pounds of marijuana per Florida Statute 893.135, that charge wouldn’t stand a chance unless the police discovered that much marijuana. Short of having the required weight, a trafficking charge is highly unlikely and would defer to a less serious possession of marijuana charge.

Unless police were able to confiscate the marijuana and test it to ensure it was in fact marijuana, a possession of marijuana charge wouldn’t be as strong in Florida unless the individual made an admission that it was marijuana. This would have to be preceded by ample circumstantial evidence to show what was depicted in those pictures was marijuana. In Florida it has been held that “a defendant’s confession to a crime cannot form the sole basis for that defendant’s conviction for that crime; there must be prima facie evidence of the crime charged (i.e., the corpus delicti) independent of the defendant’s confession.” State v. Wallace, 734 So. 2d 1126, 1129 (Fla. Dist. Ct. App. 1999). Even with the pictures, a Tampa criminal attorney would argue that there is no proof that the substance was marijuana. If theses lovelies admitted that it was in fact marijuana, the charge may stick. This is the kind of thing that could give rise to a motion to dismiss. We’d really have to know more to make a conclusion on this charge.
As for the abuse related charges, this could be a toss up depending on the prosecutor. These ladies could both face third degree felony child abuse charges under Florida Statute 827.03(b). This statute defines child abuse as applicable in this case to be, “[a]n intentional act that could reasonably be expected to result in physical or mental injury to a child.” Whether there was marijuana or tobacco in the joint it could be argued that the Hensley’s actions could result in mental injury to the 5 year old and physical injury to both children based off the picture where it appears that one woman is attempting to light the joint. Conversely, and similarly to the case I had, how does being in the mere presence of unlit marijuana reasonably affect a child that young physically or mentally? It can’t be said that being near unlit marijuana is harmful physically. Arguably a 5 and 1 year old are too young to understand what is in their presence.

As always the media goes crazy on odd fact scenarios like this. Depending on the facts unknown this is either a slam dunk or tough one for the State. If you’re in need of a Tampa criminal attorney contact The Mayberry Law Firm today at 813-444-7435 or 727-771-3847 today!