State v. Fossett, 78-141

• Decision Date: 23 March 1979
• Docket Number: No. 78-141,78-141
• Citation: 119 N.H. 155,399 A.2d 966
• Parties: The STATE of New Hampshire v. Vernon Allen FOSSETT.
• Court: New Hampshire Supreme Court

Page 966

399 A.2d 966

119 N.H. 155

The STATE of New Hampshire v. Vernon Allen FOSSETT.

No. 78-141.

Supreme Court of New Hampshire.

March 23, 1979.

Thomas D. Rath, Atty. Gen. (Anne E. Cagwin, Asst. Atty. Gen., orally), for the State.

McSwiney, Jones & Semple, Concord (Paul C. Semple, Concord, orally), for defendant.

PER CURIAM.

The defendant was charged with possession of a controlled drug, marijuana, on June 2, 1977. A trial by jury resulted in a guilty verdict. All questions of law raised by the defendant's exceptions were reserved and transferred by the Trial Judge (Cann, J.). The defendant contends that there was insufficient evidence for conviction under RSA 318-B:26 (Supp.1977).

On June 2, 1977, Deputy Sheriff Larry Thomas obtained a search warrant from the Concord District Court authorizing the search of "Vernon Fossett and the premises located at 10 West Main Street, Penacook, N.H." Deputy Sheriff Thomas and other officers went to the premises and knocked on the door. The defendant answered the door, and, in response to Deputy Sheriff Thomas' question, stated that his wife was in the bathroom. During a search of the premises, a brown paper bag containing fifteen-and-one-half ounces of material later analyzed as marijuana was found in the rear bedroom. Another smaller bag containing a vegetable-like substance was found in the bathroom with seeds, cigarette papers, and scales. The defendant and his wife were arrested for possession of marijuana under RSA 318-B:26 (Supp.1977). At trial one of the two witnesses for the State identified the substance taken from the bedroom as marijuana. Deputy Sheriff Thomas' very brief 10-page testimony consisted of a recitation of the above facts. In response to an introductory question, he testified that 10 West Main Street was the defendant's residence. The defendant attempted to introduce a certified record of his wife's conviction for possession of a controlled substance arising from this incident but this evidence was excluded as immaterial and in light of our conclusion herein we do not address that issue.

RSA 318-B:26 (Supp.1977) requires the State to prove "beyond a reasonable doubt (1) that the defendant had knowledge of the nature of the drug, (2) that he had knowledge of its presence in his vicinity and (3) that he had custody of the drug and exercised dominion and control over it." State v. Comeau, 114 N.H. 431, 434, 321 A.2d 590, 592 (1974). The State does not allege that they found the defendant in physical possession of a controlled substance. Therefore, constructive possession must be proved.

The State argues that the defendant's presence in the house, his response to the deputy sheriff's question, the deputy sheriff's belief that 10 West Main Street was the defendant's residence and the fact that marijuana was found on the premises constitute sufficient evidence to sustain a conviction under RSA 318-B:26 (Supp.1977). It argues that the evidence in this case is similar to evidence we have previously found sufficient to sustain a conviction under this statute. See State v. Saide, 114 N.H. 735, 329 A.2d 148 (1974); State v. Comeau, 114 N.H. 431, 321 A.2d 590 (1974); State v. Nickerson, 114 N.H. 47, 314 A.2d 648 (1974).

We hold that the facts proved by the State in this case are insufficient as a matter of law to sustain this conviction for possession under RSA 318-B:26 (Supp.1977). The State is correct in its assertion that the jury " '(m)ay draw reasonable inferences from facts proved and also inferences from facts found as a result of other inferences, provided that they can reasonably be drawn therefrom.' " State v. Taylor, 118 N.H. ---, 395 A.2d 505, 507 (1978); State v. Lovett, 116 N.H. 571, 573, 364 A.2d 880, 882 (1975); State v. Palumbo, 113 N.H. 329, 330, 306 A.2d 793, 795 (1973).

In the case before us, however, the State's evidence, viewed in the most favorable light, proved only that the defendant may have occupied the premises. The defendant was present on the premises but not in the room where the marijuana was found. The only evidence of the defendant's possessory interest in the premises was presented by the deputy sheriff who merely answered a leading question. No foundation was laid to support the sheriff's belief. The State offered no evidence that the defendant occupied the "rear" bedroom where the marijuana was found and there is no evidence that the marijuana was open to observation. The record established that the defendant's wife was in the bathroom where some vegetable-like substance was later found, but there is no evidence indicating that the defendant had access to this room when the substance was present. We also note that the substance found in the bathroom was not proved to be marijuana. There was no evidence that defendant and his wife lived together or that he met the three-prong test of RSA 318-B:26 (Supp.1977) that he Knew the nature of the drug, had Knowledge of its presence and had custody, dominion or control over it.

These facts are readily distinguishable from facts we have found in the past to be sufficient to sustain a conviction under RSA 318-B:26 (Supp.1977). We held in Comeau that the requisite elements of custody and exercise of dominion and control were present although the defendant did not occupy the apartment on a full-time basis. In Comeau, there was testimony that the defendant had access to the room where the drugs were kept, entered the room and kept personal possessions there, had been found sleeping in the...