State v. Cartier, 88-502

• Decision Date: 24 May 1990
• Docket Number: No. 88-502,88-502
• Citation: 575 A.2d 347,133 N.H. 217
• Parties: The STATE of New Hampshire v. Richard CARTIER.
• Court: New Hampshire Supreme Court

Page 347

575 A.2d 347

133 N.H. 217

The STATE of New Hampshire v. Richard CARTIER.

No. 88-502.

Supreme Court of New Hampshire.

May 24, 1990.

John P. Arnold, Atty. Gen. (Tina Schneider, Asst. Atty. Gen., on the brief and orally), for the State.

Sakellarios & Associates, Manchester (Jean-Claude Sakellarios on the brief and orally), for defendant.

SOUTER, Justice.

The defendant was convicted in the Superior Court (DiClerico, J.) of the felony of possessing cocaine with intent to distribute, RSA 318-B:2, I; :26, I(b)(1) (Supp.1989), and the misdemeanor of possessing marijuana, RSA 318-B:2, I; :26, II(d) (Supp.1989). Here, he raises claims that the evidence was insufficient to prove possession of either drug or intent to distribute the cocaine; that as a matter of law neither drug was "controlled" at the date of the offenses; and, finally, that the State failed to offer any evidence that either drug was "controlled" so as to subject him to criminal penalties for its possession. We affirm.

On July 13, 1987, the defendant, Richard Cartier, an auto body shop manager, was the lessee of a house in Hooksett, which he occupied with a companion, Joanne Jarosz. When police officers came to the house that afternoon to execute a search warrant unrelated to the instant charges, Jarosz was away but the defendant was home entertaining three visitors, who left after the police arrived. When one of the police officers walked through the house to see if anyone else was inside, he noticed a glass vial of white powder near a bar, along with two balloons, five paper packaging envelopes known in the drug trade as bindles, a pipe with smoked residue, what appeared to be a ledger or account book, and an open box of rice (used by dealers to mix with drugs to prevent their absorption of moisture). In the adjoining living room the officer noticed another vial of white powder on the floor, and more bindles on a table. Based on this information the police obtained a second warrant, authorizing a search for illicit drugs and associated paraphernalia.

In executing the latter warrant the police found the items mentioned above in the bar area, together with straws, razor blades, a small scoop caked with white powder, a marble cutting block, and a plastic container from a beauty salon containing a mirror, razor blade and straws, known by consumers of drugs as a "user's kit." The police testified at trial that these implements were used to divide, package and ingest drugs, and they described the markings of "one-half" on the bindles as indicating contents of one-half gram. The bar area also yielded firearms, copies of magazines on motorcycles and automotive subjects, and two bindles containing what was later analyzed to be .58 grams of cocaine.

A closet off the bar yielded plastic bags, bowls, a sifter for powder, spoons, more razor blades, a blade dispenser, a scale commonly used to weigh drugs, more envelopes, more vials of powder, papers having notations referring to "rock" and "powder" (said to refer to physical properties of drugs), and a bottle of powder described in testimony as a cutting agent to mix with drugs. In a briefcase bearing the names of a "beauty academy" and of two women not otherwise identified, the police found hundreds of envelopes, a spoon, a sifter, a straw, a scale, and vials of powder residue.

In the living room the officers seized the vial previously observed, which turned out to contain 3.5 grams of cocaine, along with a ceramic tile bearing powder residue, empty envelopes with "one half" markings, a razor blade, and a ten-month-old check for $1,000 payable to Jarosz. Under the couch they found some bags, one of which contained 2.47 grams of marijuana, and a cigarette roller and paper.

In a room furnished with a double bed, they found a vial with cocaine residue on a dresser containing women's clothing. And in the kitchen they seized a "Week-At-A-Glance" planning diary or ledger containing notations of names and various numbers which the police testified were indicative of drug sales.

These materials were either introduced into evidence or described in testimony, and our account, despite some abbreviation, makes it clear that reasonable jurors could find beyond a reasonable doubt that someone in the defendant's house possessed marijuana and cocaine and was carrying on a business of selling the latter. While it is true that the cocaine and marijuana found in the living room might possibly have been abandoned by the visitors who left when the police arrived, the evidence of other drugs situated elsewhere in the house, and of the quantities of supplies and implements associated with dealership, was sufficient to establish an unmistakable nexus between the house as a dwelling place and the contraband and incriminating evidence discovered within it.

The defendant maintains nonetheless that the evidence, even viewed most favorably to the State, see State v. Cyr, 122 N.H. 1155, 1159, 453 A.2d 1315, 1318 (1982), fails to point beyond a reasonable doubt to him, not Jarosz, either as possessor or as dealer. We hold, on the contrary, that the evidence sufficed for his conviction on both scores.

To begin with the issue of possession, its elements in drug cases have been explained before: the State must prove that the defendant knew of the substance's presence in his vicinity, knew of its nature as a drug, and had custody of it, exercising dominion and control. State v. Comeau, 114 N.H. 431, 434, 321 A.2d 590, 592 (1974). Since no one testified as an eyewitness to the defendant's handling of the drugs, the State's burden was to prove what our cases have described as his constructive possession. See State v. Francoeur, 122 N.H. 386, 387, 445 A.2d 1095, 1096 (1982).

Here there was evidence that anyone living in the house would have known of the presence of the substances in question, since four separate rooms held either containers of one or the other drug or drug residue, or implements or records of use and dispensation. In contrast to the facts, say, in State v. Fossett, 119 N.H. 155, 399 A.2d 966 (1979), some of the substances and associated objects were in open view, and it would have been virtually impossible for anyone familiar with the premises to preserve ignorance of incriminating materials so liberally spread about.

Much of the same evidence points to the near impossibility that anyone could have dwelt in the defendant's house without realizing the nature of the substances as drugs, and as illicit. Sifters, razor blades, straws and bindles are not kept together by law-abiding householders in...