State v. Trebian, 2012–091.
| Decision Date | 25 February 2013 |
| Docket Number | No. 2012–091.,2012–091. |
| Citation | 63 A.3d 1205,164 N.H. 629 |
| Parties | The STATE of New Hampshire v. Nicholas TREBIAN. |
| Court | New Hampshire Supreme Court |
164 N.H. 629
63 A.3d 1205
The STATE of New Hampshire
v.
Nicholas TREBIAN.
No. 2012–091.
Supreme Court of New Hampshire.
Argued: Jan. 10, 2013.
Opinion Issued: Feb. 25, 2013.
Michael A. Delaney, attorney general (Nicholas Cort, assistant attorney general, on the brief and orally), for the State.
David M. Rothstein, deputy chief appellate defender, of Concord, on the brief and orally, for the defendant.
DALIANIS, C.J.
The defendant, Nicholas Trebian, was convicted of possession of marijuana with intent to sell and possession of a controlled drug commonly known as "ecstasy," following a jury trial in Superior Court (Smukler, J.). See RSA 318–B:2, I (2011). On appeal, he argues that the trial court
erred in denying his motion to dismiss the ecstasy possession charge. We affirm.
The jury could have found the following facts. On the evening of May 5, 2010, while walking his dog near his home in Allenstown, Jeffrey Gardner heard the squeal of rubber on pavement followed by a loud crash. Gardner, who is a part-time firefighter and emergency medical technician (EMT), got into his truck and drove to the accident scene on nearby Granite Street. When he arrived, he saw the headlights on the car involved "flash," as though someone nearby had locked the car remotely. He approached the car, saw no one, and called the Allenstown police to report the accident. While on his cellular telephone, he heard sounds of movement in the bushes nearby. Gardner identified himself as an EMT and, holding up his flashlight, ordered the person to come out of the bushes. At that point, a man emerged, telling Gardner that he was "all set" and adamantly asserting that Gardner should get off the cell phone and not call the police. The man, who was tense and angry, approached to nearly within arm's reach of Gardner. When the man saw the blue lights of a police cruiser approaching, he ran off through an adjacent cemetery.
When Lieutenant Paul Paquette of the Allenstown Police Department arrived, he determined that the vehicle was registered to Amanda Guay, whom he later learned was the defendant's girlfriend. Unable to contact Guay to inquire about the driver of the vehicle, he called for a tow truck. When the tow truck arrived, Paquette unlocked the vehicle and began an inventory search. As he leaned into the vehicle, he detected a very strong odor of marijuana. When he looked into the back seat, he discovered a partially opened duffel bag containing what appeared to be a large bag of marijuana. At that point, he stopped his search, had the vehicle towed to the police station, and, the following day, obtained a search warrant.
During the search pursuant to the warrant, Detective George Baker discovered, inside the pocket on the driver's door, a registration in the name of Nicholas Trebian, a bill of sale, and a temporary registration in the name of Amanda Guay. From the duffel bag in the back seat, Baker seized two small plastic bags of vegetative matter that appeared to him to be marijuana, as well as a larger, gallon-sized bag containing a "brick" of what appeared to be compressed marijuana. The bags were sent to the State laboratory for analysis. In addition, Baker retrieved some papers, a pipe, a grinder used to break up marijuana, a scale, some items of men's clothing, and receipts for purchases made at Wal–Mart and Cumberland Farms. At trial, the defendant and the State stipulated that the receipts belonged to the defendant and that no other person was with him when he made the purchases.
On the day after the accident, Gardner went to the Allenstown police station to view a photographic array. Gardner immediately selected the defendant's photo, concluding that he was "a hundred percent" certain that the defendant was the man whom he had encountered at the accident scene.
The State laboratory analysis of the vegetative matter confirmed that it was marijuana. The chemist conducting the analysis discovered two ecstasy pills that had not been found during the search of the vehicle. The defendant was subsequently charged with possession of marijuana with intent to distribute and possession of ecstasy.
After the State presented its case, the defendant moved to dismiss the possession of ecstasy charge, arguing that the police officer who sent the marijuana to the laboratory did not know of the presence of the
pills and that the chemist was surprised to discover them inside one of the bags of marijuana. Consequently, the defendant asserted, the State...
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...of its presence in his vicinity; and (3) had custody of the drug and exercised dominion and control over it." State v. Trebian , 164 N.H. 629, 632, 63 A.3d 1205 (2013). If the drug was not found in the defendant's physical possession, the State must prove constructive possession, which "can......
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...inferences from it in the light most favorable to the State, could have found guilt beyond a reasonable doubt." State v. Trebian, 164 N.H. 629, 632, 63 A.3d 1205 (2013). "When the evidence is solely circumstantial, it must exclude all rational conclusions except guilt." Id. "Under this stan......
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