I just went to trial on a case in which my client, his brother and his mother were charged with Possession of Controlled Substance With Intent to Sell; Possession of Controlled Substance, Marijuana; and Conspiracy to Violate Uniform Controlled Substance Act (UCSA). (This means that my client would need to be convicted of either Possession of Controlled Substance With Intent to Sell, or Possession of Controlled Substance, Marijuana.)
Here was the interesting result: Both my client and his brother were acquitted of Possession of Controlled Substance With Intent to Sell and convicted of Possession of Controlled Substance, Marijuana. And Conspiracy to Violate Uniform Controlled Substance Act. But the jury found that the underlying felony was Possession of Controlled Substance With Intent to Sell. But they were both acquitted of these charges. (Mom was convicted of all three charges and some additional charges regarding child abuse.) Due to these inconsistent verdicts and the overall lack of evidence, I will be filing a Motion for Judgment of Acquittal After Verdict of Guilty. (This motion is popularly known as the motion for judgment notwithstanding the verdict – JNOV.)
Where insufficient evidence to sustain a verdict of guilty was presented at trial, the Court has the authority to enter a judgment of acquittal despite a jury verdict of guilty. NRS 175.381(2) provides that:
The court may, on a motion of a defendant or on its own motion, which made after the jury returns a verdict of guilty, set aside the verdict and enter a judgment of acquittal if the evidence is insufficient to sustain a conviction. The motion for a judgment of acquittal must be made within seven (7) days after the jury is discharged or within such further time as the court may fix during that period.
This means that where insufficient evidence to sustain a conviction was introduced at trial, and the jury returns a verdict of guilty, this Court may overturn that verdict and enter a judgment of acquittal.
In this case all three defendants lived in the same house with two minor children. Mom had a medical marijuana card which allowed her to have seven plants, and “W” (the brother of my client) has a recommendation from a doctor that he could have up to 99 plants and up to 32 oz. of marijuana. The doctor asserted her Fifth Amendment privilege not to testify, but a custodian of records from her office testified that the recommendation was authentic.
Unfortunately, the jury was concerned about the authenticity of the documents because the doctor did not testify. The State could have granted her immunity, but they did not because that would not have helped their case (we asked). But that may not have made a difference because the doctor was also concerned about Federal liability.
It is axiomatic that in order to convict a Defendant, the State must prove beyond a reasonable doubt every material element of the crime charged and that the Defendant is the person who committed the offense.
In Count 1, All Defendants were charged with Possession of Controlled Substance With Intent to Sell. In order to convict, the State must prove a specific intent to sell by the Defendant. See United States v. Scholz, 899 F. Supp. 484 (D. Nev. 1995). No such proof was offered by the State. In reality, no proof has been offered that any marijuana was ever sold; or, if it was sold, that my client or his brother knew of, encouraged, or participated in, any alleged sale.
In Count 2, All Defendants were charged with a lesser included charge of Possession of Controlled Substance, Marijuana. See Fairman v. State, 83 Nev. 137, 425 P 2d 342 (1967) [conviction of both sale and possession out of same transaction is improper]. However, to maintain a conviction for either Count 1 or Count 2, “the State must prove beyond a reasonable doubt that the accused had dominion and control of controlled substance and knowledge of the presence of the controlled substance and of its illegal nature. See Sanders v. State, 110 Nev. 434, 874 P. 2D 1239, (1994). Again, neither dominion, control or knowledge by either of the brothers had been proven or even testified to (in my opinion).
In Count 3, both “W” and his brother “D” were charged with Conspiracy to Violate Uniform Controlled Substance Act (UCSA). Interestingly enough, there was never any mention of the Uniform Controlled Substance Act during the State’s case: so what was violated, when, or by whom? What was the alleged agreement? Who made the alleged agreement? How was the alleged agreement acted upon?
Under NRS 453.401, the conspiracy statute, it is clear that an ‘agreement among two or more persons is an essential element of the crime of conspiracy under this section and mere association is insufficient to support a charge of conspiracy.” Sanders v. State, 110 Nev. 434, 874 P. 2D 273 (1978). Once again, the State’s case was totally devoid of any testimony or even allegation of an agreement; and even if there was such an agreement, “W” and “D” were not involved in any way.
My defense was mere presence. Just because someone was in the same location as illegal marijuana does not mean that he was guilty of possessing it. Also, our position was that due to the fact that “W” could lawfully possess (up to 99 plants and 32 oz. of) marijuana, my client could not be prosecuted for any offense simply because he was in the vicinity of said marijuana.
The actual jury instruction in this case reads as follows: “No person may be subject to state prosecution for constructive possession, conspiracy or any other criminal offense solely for being in the presence or vicinity of the medical use of marijuana.”
But the jury disagreed that this amount of marijuana was legal. According to one of the co-Defendant’s counsel who spoke to the jury, they were not convinced that the recommendation was medically necessary and they were not convinced that “W” has been suffering from a “chronic or debilitating medical condition,” as required by law.
Well, as I always say, my number one job is to walk out of court with my client. I did that. But this battle is not over. I will keep you posted. –