State v. Savva

                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 90-035

                             FEBRUARY TERM, 1991


 State of Vermont                  }          APPEALED FROM:
                                   }
                                   }
      v.                           }          District Court of Vermont,
                                   }          Unit No. 1, Windham Circuit
                                   }
 Phillip G. Savva                  }
                                   }          DOCKET NO. 2032-11-85WmCr


              In the above entitled cause the Clerk will enter:

      Defendant's conviction for felony possession of marijuana was reversed
 because the drugs used as evidence (several pounds of marijuana and hash
 tar) were found during a warrantless search of packages in the hatchback of
 his vehicle and should have been suppressed.  The State's motion to reargue
 asks this Court to remand for a new trial on the lesser-included offense of
 misdemeanor possession of marijuana, based on the discovery of small amounts
 of marijuana found in the passenger area of defendant's vehicle before the
 search of the hatchback.

      Defendant was originally charged with one count of possession of
 marijuana in an amount two ounces or greater, 18 V.S.A. { 4224(F)(1)(B), and
 one count of possession of marijuana with intent to sell, 18 V.S.A. {
 4224(e).  The second charge was dropped, and the trial proceeded on the
 first charge.  At trial, the State introduced evidence of marijuana found in
 the hatchback.  It also introduced a paper bag found in the door
 compartment, which contained .1 gram (about a thimbleful) of marijuana and
 entered testimony concerning, but no physical evidence of, roaches found in
 the vehicle's ashtray.

      The State never charged defendant with simple possession of marijuana
 in any amount, 18 V.S.A. { 4224(a), nor did it argue for conviction on that
 crime.  At defendant's request, the trial court instructed the jury that it
 could convict defendant on misdemeanor possession, based on his theory that
 the jury might believe that he knew nothing of the drugs in the hatchback
 but still convict him for possession of the marijuana in the passenger
 compartment.

      We need not decide whether the State may retry a defendant on a lesser-
 included offense after reversal of a conviction for a greater offense
 because in this case misdemeanor possession of marijuana was not a lesser-
 included offense.  Rather, misdemeanor possession of the small stash in the
 passenger compartment was a separate and distinct offense from felony
 possession of the much larger amount found in the hatchback.  See State v.
 Gooden, 133 N.H. 674, 679, 582 A.2d 607, 610 (1990) (separate and distinct
 evidence supported one conviction for possession of cocaine and one con-
 viction for possession of cocaine with intent to sell, even though the two
 offenses arose out of the same transaction and evidence of both offenses was
 found in the same location).

      "An offense is a lesser-included offense of another if it is composed
 of some, but not all, elements of the greater offense and does not have any
 element not included in the greater offense."  State v. Forbes, 147 Vt. 612,
 616-17, 523 A.2d 1232, 1235 (1987) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)).  The same act may constitute two separate crimes,
 and if one is not the lesser-included offense of the second, prosecution
 may be had for each offense.  Id. at 617, 523 A.2d  at 1235.  But merely
 because the same defendant commits two separate acts, one of which has all
 the elements of a lesser-included offense of the other, does not mean that
 it can be charged as a lesser-included offense.

      The proceedings below focused on the drugs found in the hatchback.
 Under defendant's last-minute theory, possession of marijuana found in the
 passenger compartment was a separate crime, a crime that was never charged
 and which the trial court improperly instructed as a lesser-included
 offense.  The State cannot now prosecute defendant for misdemeanor
 possession of marijuana, see 13 V.S.A. { 4501(d) (statute of limitations for
 misdemeanors is three years), so remanding this case to the trial court
 would serve no purpose.

      The Court's decision and its original entry of reversed remain
 unchanged.


------------------------------------------------------------------------------
                                  Dissenting


      ALLEN, C.J., dissenting.  I dissent because I conclude that misdemeanor
 possession of marijuana in this case is a lesser included offense of felony
 possession, not a separate offense.  A defendant is entitled to a lesser
 included offense instruction "if the evidence would permit a jury rationally
 to find him guilty of the lesser offense and acquit him on the greater."
 Keeble v. United States, 412 U.S. 205, 209, 93 S. Ct. 1993, 1995 (1973).
 Defendant's theory, that he knew nothing of the drugs found in the rear of
 the car, raised a question of fact for the jury to resolve.  The jury could
 rationally have believed defendant's theory and found him guilty of
 misdemeanor possession while acquitting him of felony possession.  I
 therefore cannot agree with the majority's unsupported assertion that the
 trial court improperly instructed the jury on the lesser included offense.

      The majority concludes that defendant's possession of the smaller
 amount of marijuana constituted a separate and distinct offense because
 separate evidence could have supported separate charges.  However, this
 reasoning misapplies the test for determining a lesser included offense.  If
 "there is any reasonable theory from the evidence which would support
 [defendant's] position," then a trial court must instruct the jury on the
 lesser included offense.  Ex Parte Kerr, 474 So. 2d 145 (Ala. 1985) (it is
 reversible error not to instruct a jury on the lesser included offense of
 simple possession when defendant denies knowledge of the evidence supporting
 only the greater offense).

      The State and defendant argue that the cause should be remanded and I
 would grant the request.

      I am authorized to say that Justice Dooley joins with me in this
 dissent.





                                    BY THE COURT:



 Dissenting:                        _______________________________________
                                    Ernest W. Gibson III, Associate Justice

 _________________________________
 Frederic W. Allen, Chief Justice   _______________________________________
                                    James L. Morse, Associate Justice

 _________________________________
 John A. Dooley, Associate Justice  _______________________________________
                                    Denise R. Johnson, Associate Justice



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