State v. O'Mealey
| Decision Date | 09 February 1973 |
| Docket Number | No. 11097,11097 |
| Citation | 506 P.2d 99,95 Idaho 202 |
| Parties | STATE of Idaho, Plaintiff-Appellant, v. Jeff O'MEALEY, Defendant-Respondent. |
| Court | Idaho Supreme Court |
W. Anthony Park, Atty. Gen., J. Dennis (J.D.) Williams, Deputy Atty. Gen., Boise, Gary M. Haman, Pros. Atty., Coeur d'Alene, for plaintiff-appellant.
Bliss O. Bignall, Coeur d'Alene, for defendant-respondent.
This is an appeal by the State from an order of the district court granting a motion to dismiss a criminal complaint. The court held that the defendant was wrongfully held to answer in the district court since no evidence was presented upon which the magistrate could have found probable cause to believe the defendant committed the offense charged. The crime charged was unlawful possession of a controlled substance with the intent to deliver. The sole issue for determination herein is whether the intent to deliver a controlled substance can be inferred and presumed solely from the quantity and variety of substances found upon the defendant's person. We affirm the action of the district court.
On July 4, 1971 a large 'Rock Festival' under the guise of a religious assemblage was held at Farragut State Park. Undercover narcotic investigations at the park were conducted. During the time that the defendant was at the Park one of his companions sold an undercover agent what was represented by the seller to be a controlled substance. The substance involved in that sale turned out to be not a controlled substance, but rather common cocoa. Following the sale, the driver of the car, the Defendant O'Mealey, and two other companions left the park in an automobile. Officers followed the car for approximately six miles, then stopped it and arrested the occupants. Defendant was charged with the unlawful possession of a controlled substance with the intent to deliver. I.C. § 37-2732.
On July 15, 1971, the defendant O'Mealey and two companions appeared at a joint preliminary hearing before a magistrate in Coeur d'Alene. The evidence adduced at the preliminary hearing indicated that there had been found on the defendant's person, or in clothing belonging to him, the following controlled substances:
Six tablets of LSD
su
0.061 grams of cocaine hydrochloride
63.23 grams (approximately 2-1/4 ounces) of marijuana
At the close of the preliminary hearing the defendant moved to dismiss the complaint on the ground that the State had failed to present any evidence of his intent to deliver those controlled substances. The magistrate denied that motion on the basis that even though the State's case was 'very weak' the quantities of the controlled substances, coupled with the circumstances of the defendant's arrest constituted probable cause to bind the defendant over for trial. I.C. § 19-804, § 19-815.
As provided and authorized in I.C. § 19-815A, defendant O'Mealey then renewed his motion to dismiss before the district court. The district court reviewed the evidence and granted the motion for dismissal. The district court stated:
'Pursuant to Idaho Code 19-815A, it is the Court's conclusion that the Magistrate held the defendant, O'Mealey to answer without reasonable or probable cause to believe the defendant had committed the crime of 'possession of a controlled substance with intent to deliver,' and, accordingly, the Information filed herein is dismissed.' (emphasis added)
The State seeks to appeal the order of the district court dismissing the action and relies on I.C. § 19-2804 as authority for the appeal. Defendant makes no objection to the State's appeal and on oral argument defense counsel expressly waived any objection.
We note initially that as found by the district court there is no evidence in the record of any actual, constructive or attempted transfer of a controlled substance from O'Mealey to any other person. The State correctly points out that 'the intent or intention is manifested by the circumstances connected with the offense * * *' I.C. § 18-115. The State argues that the following facts are relevant in this regard:
1. The defendant's presence at the State Park during a rock festival with another person who sold a substance which was represented to be a controlled substance but which in actuality was common cocoa.
2. The defendant's presence in an automobile with other persons who were also charged with possession of controlled substances with the intent to deliver.
3. The defendant's possession of a variety and quantity of controlled substances set out hereinabove.
We find no support either in logic or law for the assertion that the defendant's presence at the time of a sale of cocoa has any bearing on his 'intent' to deliver controlled substances. We likewise find no support for the assertion that the defendant's presence in a car with companions who were charged with possession of controlled substances with intent to deliver has any relevance to defendant's 'intent.'
The State's appeal herein stands solely then upon the argument that the variety and quantities of substances found on the person of the defendant in and of themselves, presents sufficient evidence to satisfy a reasonable man that the defendant probably intended to deliver these substances.
The purpose of a preliminary examination before a magistrate is to determine whether a crime has been committed and whether there is probable cause to believe that the defendant committed it. I.C. §§ 19-804, 19-815. The standard used both in magistrates' court and in the distrct court to evaluate such evidence as is presented at preliminary hearing is different than the standard used to determine whether evidence is sufficient to sustain a conviction after trial. Carey v. State, 91 Idaho 706, 709, 429 P.2d 836 (1967). This Court has stated that the standard to be used in evaluating the sufficiency of evidence presented at a preliminary hearing is:
(citations omitted; emphasis supplied)
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State v. Edmonson
...is probable cause to believe that the accused committed it. Id. Const., art. 1, § 8; I.C. § 19-804; I.C.R. 5.1(b); State v. O'Mealey, 95 Idaho 202, 506 P.2d 99 (1973). The accused has the right to assistance of counsel, (I.C. § 19-801); the right to produce evidence, (I.C. § 19-809), State ......
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...there is probable or sufficient cause to believe that the defendant committed such offense...." I.C.R. 5.1(b). State v. O'Mealey, 95 Idaho 202, 204, 506 P.2d 99, 101 (1973), citing I.C. §§ 19-804, 19-815. It is the state's burden to show that "substantial evidence," and not evidence beyond ......
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