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Home > Criminal Law & Procedure > State v. Fox
State v. Fox
Supreme Court of Utah, 1985 page 23
Author: lawgrrl
Gary and Clive Fox were convicted of possession w/ intent to distribute and production of a controlled substance. On appeal both claimed insufficiency of evidence.
2,850 mature marijuana plants were found inside Gary’s property. Marijuana paraphernalia was also found in Gary’s bedroom. Neighbors reported that they thought the two lived in the house, but had only seen them there on occasion. All of the bills for the house were in Gary’s name, except for the telephone, which was in Clive’s.
Whether evidence that people owned property whereon marijuana plants were found, and where some level of occupancy is established, is sufficient to support a conviction for possession of a controlled substance w/ intent to distribute which requires that the defendant knowingly and intentionally posses the controlled substance, and that the defendant intend to distribute it?
No. These facts alone are not enough to establish constructive possession. These were the only facts relevant to Clive’s case, and thus the evidence presented at trial, without anything more, is not sufficient to warrant his conviction. There was other evidence pertaining to Gary, however, which was sufficient establish constructive possession (in dominion and control). Gary had marijuana paraphernalia in what was presumably his bedroom. The house was in his name, and thus his non-exclusive possession and control combined w/ the evidence found in his bedroom was enough to establish a foundation for his conviction. The evidence connected w/ Gary was enough to form a reasonable inference that he had the intent to grow or posses the marijuana.
To prove constructive possession of the marijuana, the evidence must show that the person had the power and intent to exercise dominion or control over the substance. While this was established in Gary's case, it was not in Clive's. “Evidence supporting the theory of ‘constructive possession’ must raise a reasonable inference that the defendant was engaged in a criminal enterprise and not simply a bystander.”