State v. Robert Scales, 206 A.3d 1263

On Feb. 3, 2017, Vergennes police stopped a car for speeding; defendant Scales was a rear-seat passenger. Officer smelled burnt marijuana, asked for consent to search, warned of dog/warrant option, and the driver signed written consent; Scales neither objected nor consented.
Occupants exited the vehicle; officer searched the car and a trunk bag. Inside the bag were white powder and wax bundles (believed to be heroin/cocaine), plus female clothing and a parking ticket linked to the driver.
All three occupants denied ownership; they were arrested. A search warrant for the containers was obtained later. The State later dismissed other counts after a plea; Scales pleaded nolo contendere to one heroin-trafficking count, preserving appeal of pretrial denials.
Scales moved under V.R.Cr.P. 12(d) to dismiss for lack of a prima facie case and moved to suppress claiming consent was involuntary; the trial court denied both motions. Scales appealed.
The Supreme Court reviewed de novo whether the State presented substantial, admissible evidence at the 12(d) hearing proving the knowing-possession element beyond a reasonable doubt.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether permissive inference from presence in car suffices to meet Rule 12(d) burden on "knowing possession"	Presence of Scales in car where drugs found permits inference of knowing possession under 18 V.S.A. § 4221(b)	Permissive inference alone (or with limited additional facts) cannot satisfy State’s burden to establish element beyond a reasonable doubt at the 12(d) stage	Reversed: permissive inference alone (and the evidence presented) was insufficient to meet Rule 12(d) burden; dismissal required
Whether the State could rely on unsubmitted affidavit/witness statements to meet the 12(d) showing	State argued probable-cause affidavit and potential witness testimony would supply additional evidence of knowing possession	Scales argued the court must decide based only on evidence actually presented at the 12(d) hearing	Court held State may not rely on unsubmitted materials; review is limited to evidence presented at the motion hearing

State v. Goyette, 594 A.2d 432 (Vt. 1991) (permissive inference from presence in vehicle may be given only if reasonable juror could find the presumed fact beyond a reasonable doubt when considering all evidence)
State v. Rounds, 22 A.3d 477 (Vt. 2011) (jury instruction on permissive inference appropriate only when evidence as a whole could support finding of element beyond reasonable doubt)
State v. Graham, 147 A.3d 639 (Vt. 2016) (de novo review of whether State met Rule 12(d) burden)
State v. Fanger, 665 A.2d 36 (Vt. 1995) (prima facie ruling on 12(d) reviewed using same standard as judgment of acquittal)
State v. Langlois, 667 A.2d 46 (Vt. 1995) (appellate court may decline to reach alternative grounds when reversal is based on primary error)
State v. Burnham, 484 A.2d 918 (Vt. 1984) (Rule 12(d) dismissal required if State fails to meet burden at the motion hearing)