21 July 2004

Possession and Principals in the 2d Degree

Watching a trial today another Defense attorney and I were arguing over whether the Defendant was guilty as a principal in the 2d degree of possession of marijuana. I thought I'd put it up here for ya'll to see (and perhaps comment upon).

Facts: A street drugs officer is sitting in a parking lot when a car with two women passengers and one male driver passes by. As the car passes the officer, the front female passenger takes a hit off of a plastic bottle. The officer pulls the car over and, as he walks to the car, smells marijuana. He arrests all in the car. Upon a search, all the marijuana and paraphernalia is found on the female. The officer testifies that the male admitted to smoking marijuana earlier in the day and that he admitted he bought the bottle so that "they" could smoke the marijuana.

This was interpreted (under the beyond a reasonable doubt standard) as "the guy bought the bottle so the girls could smoke their marijuana."

Law: It is well settled in Virginia that possession cannot be proven by mere proximity. So it was pretty clear that the guy wasn't a principal in the first degree. This left principal in the 2d degree (which carries the same penalty and need not be specifically alleged). Groot defines principal in the 2d as such:
To constitute a principal in the second degree one must be guilty of some overt act, or he must share the criminal intent of the party who commits the crime. When the alleged accomplice is actually present and performs overt acts of assistance or encouragement, he has communicated to the perpetrator his willingness to have the crime proceed and has demonstrated that he shares the criminal intent of the prepretrator.
Note that mere presence when the crime occurs is not enough.

When the Defense attorney got up I turned to the other lawyer and asked why would anybody ask questions at that point because the case was already won. The other attorney disagreed and asserted that there was enough evidence for a conviction.

I'll post the outcome tomorrow. In the meantime opinions and/or analysis are welcome.

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