State v. Holcomb
| Decision Date | 29 August 1995 |
| Docket Number | No. 21077,21077 |
| Citation | 912 P.2d 664,128 Idaho 296 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Dean H. HOLCOMB, Defendant-Appellant. |
| Court | Idaho Court of Appeals |
Clark & Feeney, Lewiston, for appellant. Douglas L. Mushlitz argued.
Alan G. Lance, Attorney General; Myrna A.I. Stahman, Deputy Attorney General, Boise, and Catherine Derden, Arkansas, for respondent. Catherine Derden argued.
Dean Holcomb entered a conditional plea of guilty to the charge of possession of a controlled substance, I.C. § 37-2732(c)(1), reserving his right to appeal from the denial of his motion to suppress evidence, the denial of two motions to dismiss which challenged the sufficiency of the evidence at the preliminary hearing and the sufficiency of the information, and the denial of an alternative motion for a bill of particulars. We conclude the evidence in question was lawfully seized and need not be suppressed, that Holcomb's motions to dismiss were properly denied, and that a bill of particulars was not necessary. Therefore, we affirm.
The following facts are derived from testimony given at Holcomb's preliminary hearing and the hearing on his motion to suppress evidence. On May 21, 1993, at approximately 1:20 a.m., Officer Nelson of the Lewiston Police Department was patrolling the downtown Lewiston area near a tavern which, according to reports received by the police, was a site of drug activity. As Officer Nelson passed by the tavern, he observed two individuals sitting in a pickup truck parked on the street nearby. The officer stopped in an alley approximately forty yards from the pickup and observed the individuals bending over, apparently doing something with their hands below the level of the dashboard. The person seated on the driver's side of the pickup was later identified as Dean Holcomb. While the officer continued his surveillance, both occupants exited the pickup and went inside the tavern. Holcomb was next observed about five minutes later as he left the tavern and returned to the pickup with another individual. The two again bent over or "laid over" and appeared to be attending to activities at a level below the dashboard. To Officer Nelson this conduct appeared to be consistent with inhalation of drugs, although he could not directly observe any drug use. Officer Nelson was joined by Officer Smith, and the two then approached Holcomb's vehicle on foot. The men in the pickup saw the officers approaching and exited the vehicle. When the policemen arrived, Holcomb was standing beside the driver's door of the pickup with the door open. Officer Nelson testified that Holcomb appeared to be quickly trying to put something in his pocket.
Officer Nelson told Holcomb that he suspected drug activity and asked Holcomb for identification. Holcomb produced his driver's license. He also attempted to close the door of the vehicle, but Officer Nelson asked that Holcomb leave the door open. While Officer Nelson was temporarily distracted by a conversation with Officer Smith, Holcomb closed the door. Holcomb was asked if there were any drugs or contraband in the vehicle, and he replied that there were none. According to Officer Nelson, he then asked for permission to search the pickup, to which Holcomb responded, "Sure go ahead." When the officer attempted to open the driver's side door, however, he found it to be locked. Holcomb then asked if the police had a warrant. At that point, Officer Nelson asked if Holcomb was withdrawing his consent to search. Holcomb replied, "No," but again asked if there was a warrant. After Officer Nelson asked once more if Holcomb was withdrawing his consent, and Holcomb again replied that he was not, Nelson requested that Holcomb unlock the door, which he did. As soon as the door was opened, the officers saw what appeared to be a marijuana pipe in the door-pocket of the pick-up. Nelson seized the pipe.
While Officer Nelson continued his search of the vehicle, Officer Smith moved both Holcomb and the other man a short distance away from the pickup. Soon thereafter, Officer Smith saw a small, folded paper bindle on the sidewalk where Holcomb and his companion had been standing only seconds before. The bindle was later found to contain cocaine. Further searching of the pickup yielded a bank deposit slip bearing Holcomb's name, from which a corner had been torn. The deposit slip matched the paper used to make the bindle, and it appeared that the bindle paper had been torn from the deposit slip. More cocaine residue was found Holcomb and the other man were arrested, and Holcomb was charged with possession of cocaine. He filed a motion to suppress all of the cocaine and other evidence seized from the vehicle and his person, two motions to dismiss the charges against him and an alternative motion for a bill of particulars. All of the motions were denied, and Holcomb then entered a conditional plea of guilty reserving his right to appeal the denial of his motions.
[128 Idaho 299] scattered upon the seat and transmission housing of the pickup.
Holcomb's first motion sought dismissal of the charges against him on the ground that insufficient evidence was adduced at the preliminary hearing to support the magistrate's finding of probable cause. On appeal he asserts that the district court erred in denying this motion.
When the State charges a person with a felony, unless he is indicted by a grand jury, the defendant is entitled to a preliminary hearing to determine if there is sufficient evidence to warrant holding him to answer in the district court. I.C.R. 5.1. See also I.C. §§ 19-804, -814, -815. At the preliminary hearing the State is not required to prove the defendant guilty beyond a reasonable doubt. Rather, it need only show that a crime was committed and that there is probable cause to believe the accused committed it. State v. Horn, 101 Idaho 192, 195, 610 P.2d 551, 554 (1980); State v. Greensweig, 102 Idaho 794, 641 P.2d 340 (Ct.App.1982). The denial of a motion to dismiss following a preliminary hearing will not be disturbed on appeal if, under any reasonable view of the evidence including permissible inferences, it appears likely that an offense occurred and that the accused committed it. State v. Williams, 103 Idaho 635, 651 P.2d 569 (Ct.App.1982), overruled on other grounds by State v. Pierce, 107 Idaho 96, 99, 685 P.2d 837, 840 (Ct.App.1984).
In challenging the sufficiency of the evidence of his guilt, Holcomb notes that because no cocaine was found on his person, the State must establish that he was in constructive possession, and he invokes the rule that constructive possession can be established only by showing that the defendant had knowledge and control of the substance. See State v. Warden, 97 Idaho 752, 554 P.2d 684 (1976); State v. Gomez, 126 Idaho 700, 889 P.2d 729 (Ct.App.1994). Holcomb argues that the evidence was insufficient to show that he, rather than his companion in the pickup, was the one in control of the cocaine. In support of his argument he relies upon several cases where evidence was found insufficient to prove a defendant's guilt of possession of a controlled substance because multiple parties had equal access to the drugs, e.g., State v. Randles, 117 Idaho 344, 787 P.2d 1152 (1990); State v. Vinton, 110 Idaho 832, 718 P.2d 1270 (1986); State v. Burnside, 115 Idaho 882, 771 P.2d 546 (Ct.App.1989); State v. Garza, 112 Idaho 778, 735 P.2d 1089 (Ct.App.1987).
The cases cited by Holcomb are inapposite, however, for they address the quantum of evidence necessary to prove guilt beyond a reasonable doubt at trial, a much stricter standard of proof than that applicable to preliminary hearings. At Holcomb's preliminary hearing the State was required only to show probable cause to believe that Holcomb possessed the drugs. This belief must be supported by substantial evidence. I.C.R. 5.1(b); State v. Pratt, 125 Idaho 546, 556, 873 P.2d 800, 810 (1993).
After reviewing the transcript of the preliminary hearing, we conclude that the magistrate's finding of probable cause was supported by the evidence. As noted above, cocaine was found both scattered across the seat and floor of Holcomb's pickup and in a bindle lying near his feet. The paper used to make the bindle of cocaine was torn from a bank deposit slip bearing Holcomb's name and lying under the floor mat of the pickup. From this evidence, a reasonable inference could be drawn that Holcomb had physically possessed the cocaine and had either dropped the bindle himself or had previously transferred the bindle to his companion. In
[128 Idaho 300] addition, Officer Nelson's observations of Holcomb sitting in the pickup first with one individual and then with another, bending over in a fashion consistent with inhalation of cocaine, and hurriedly putting something in his pocket when the police approached, give rise to a reasonable inference that Holcomb was aware of the presence of cocaine and had been in physical control of the substance. This was sufficient to meet the State's burden of proof at the preliminary hearing stage.
Holcomb next complains that the information charging him with possession of a controlled substance was legally insufficient to place him on notice of the acts for which he stood accused. Holcomb asserts that he was unable to determine from the information whether he was being charged for possession of the bindle of cocaine found on the sidewalk or the cocaine found scattered in the pickup or both.
Whether an information is legally sufficient is a question of law subject to our free review. State v. Robran, 119 Idaho 285, 805 P.2d 491 (Ct.App.1991); State v. Clark, 115 Idaho 1056, 1057, 772 P.2d 263, 264 (Ct.App.1989). An information must present a plain, concise, and definite statement of the essential facts constituting the offenses...
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