STATE оf Utah, Plaintiff and Respondent, v. John Michael DOUGHERTY, Defendant and Appellant
No. 14106
Supreme Court of Utah
May 10, 1976
550 P.2d 175
ELLETT, TUCKETT, CROCKETT and MAUGHAN, JJ., concur.
David J. Knowlton of Vlahos & Knowlton, Ogden, for defendant and appellant.
Vernon B. Romney, Atty. Gen., William W. Barrett, Asst. Atty. Gen., Salt Lake City, Rоbert L. Newey, Weber County Atty., Ogden, for plaintiff and respondent.
MAUGHAN, Justice:
A jury trial produced a verdict which convicted the defendant of the crime of unlawful distribution for value of a controlled substance, viz., marijuana. Defendant appeals, assigning as error the refusal of the trial court to give an instruсtion on the lesser included offense of possession of a controlled substance. We affirm the conviction.
The statute upon which defendant relies is
The jury may find the defendant guilty of аny offense the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense.
This statute, we have said, requires instructions on lesser included offenses, when the evidence and circumstances justify.1 When an appellant makes an issue of a refusal to instruct on included offenses, we will survey the evidence, and the inferences which admit of rational deduction, to determine if there exists reasonable basis upon which a conviction of the lesser offense could rest.2 No such basis exists here.
Helpful in our determination of this matter is Lisby v. State.3 There the court had beforе it an accusation of sale of narcotics, and a refusal to instruct that the
The court discussed three situations in which the problem of lesser included offenses are frequently encountered. First, where there is evidence which would absolve the defendant from guilt оf a greater offense, or degree, but would support a finding of guilt of a lesser offense, or degree; the instruction is mandatory.
Second, where the evidence would not support a finding of guilt in the commission of the lesser offense or degree. For example, the defendant denies аny complicity in the crime charged, and thus lays no foundation for any intermediate verdict; or where the elements of the offenses differ, and some element essential to the lesser offense is either not proved or shown not to exist. This second situation renders an instruction on a lessеr included offense erroneous, because it is not pertinent.
Third, is an intermediate situation. One where the elements of the greater offense include all the elements of the lesser offense; because, by its very nature, the greater offense could not have been committed withоut defendant having the intent in doing the acts, which constitute the lesser offense. In such a situation instructions on the lesser included offense may be given, bеcause all elements of the lesser offense have been proved. However, such an instruction may properly be refused if the prоsecution has met its burden of proof on the greater offense, and there is no evi-
The record reports two witnesses whose testimonies were diametrically opposed as to the alleged role of defendant in the sale of the marijuana. Undercover agent Rodney Woolsey, for the prosecution, testified he negotiated the terms of the purchase, with Toni Keller during the day. That еvening he went to her home to complete the transaction; that Keller, in his presence, talked with someone on the phone stating, “I hаve got the individual here that needs—that wants the stuff.” Keller then took a bag of marijuana from a cupboard under her kitchen sink and placed it on a table for inspection. Ninety dollars was paid to her, the undercover agent rolled up the sack, placed it under his coat, and wаlked to the door accompanied by Keller. He then said he returned the sack to Keller prior to their encounter with defendant, on the sidewalk, in front of Keller‘s dwelling. At that point Keller handed the money and the sack to defendant, who in turn gave the bag to Woolsey, neither looking in thе sack or commenting about the price. A rather complicated delivery. The undercover agent conceded he did not negotiаte with defendant concerning the purchase.
Toni Keller denied she made the telephone call; admitted the negotiations with Woolsеy; denied the marijuana she secured was secured from defendant. She agreed with Woolsey‘s testimony she had removed the package оf marijuana from under her sink, placing it on the table, and taking the $90 from Woolsey. She then said she placed the money in a box in a drawer in her kitchеn. She further agreed they went to the door together, and down the stairs to the sidewalk; that Woolsey had possession of the drugs in a brown papеr sack which he placed under his arm. She disagreed with the testimony implicating the defendant, testifying that defendant came across the street, then returned to his vehicle; she did not recall defendant saying anything, and definitely nothing was mentioned about “dope.” She denied that anything was passed tо defendant.
The defense testimony could only prove complete innocence. Appellant‘s reason for his exception tо the court‘s refusal to give the instruction is the jury by selectively evaluating the facts, as is their province, could well have determined the defendant was in possession of the marijuana in question at a time sufficient to render him guilty of possession only. Such a theory is not available to him where thе record shows he could only be found guilty or not guilty of the crime charged.
HENRIOD, C. J., and ELLETT and TUCKETT, JJ., concur.
CROCKETT, Justice (concurring, with added comment):
I concur in the decision as representing the law of this State. However, sparing extended discussion thereon, for what I regard as good and sufficient reasons, it is my view that in most all instances the court should give an instruction оn any lesser included offenses when such a conviction would be warranted by any reasonable view of the evidence.
This derives from
The jury may find the defendаnt guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense.
And from a number of decisions in which this court has so declared, see e. g. State v. Johnson, 112 Utah 130, 185 P.2d 738; State v. Castillo, 23 Utah 2d 70, 457 P.2d 618; State v. Gillian, 23 Utah 2d 372, 463 P.2d 811; State v. Cobo, 90 Utah 89, 60 P.2d 952; State v. Poe, 21 Utah 2d 113, 411 P.2d 512.