Scales of Justice

Scales. Get it?

State v. Scales, 2019 VT 7

By: Elizabeth Kruska

Since I love analogies, I’m going to start with a true story analogy. My husband recently bought a car from someone he knows. This was a pleasant transaction and both parties walked away happy. So, here’s my husband, driving around in his new-to-him car. He gets home and decides he’s going to vacuum the floormats or something and he finds some stuff left behind in the car by the prior owner. He found, among other miscellaneous things, $8.71 in change, an empty seltzer bottle, and one black sock. These were all things he had no idea were in the car when he got it. 

Why am I telling you this? Because it’s completely understandable that someone might be in a car and not know what’s in the car. If he knew his friend’s sock was in the trunk of the car, he’d have told him. But he found it later, laughed a lot about his friend driving around wearing one sock, and then threw out the sock.

It’s not illegal to have socks in your car. It is illegal to have drugs in your car. And that’s how we get from the found sock to Mr. Scales.

Mr. Scales was a passenger in a car speeding through Addison County. A woman was driving the car. The car had New York plates. Addison County is a known way to travel between New York and Burlington, so police are often on the lookout for drug trafficking on this route. This car apparently fit the bill of “interesting” to a police officer, who stopped the car.

One thing leads to another, and the officer asked the driver if he could search the car. She apparently consented. The occupants of the car didn’t really give answers, but got out of the car. The officer found a bag in the trunk. The bag contained women’s clothing and a parking ticket issued to the driver. She was the only woman in the car, so it’s fair to say this was her bag. Oh, and yeah, there was also a quantity of either cocaine or heroin (but it’s not clear which) inside that bag. 

Everyone in the car – driver and occupants – was arrested for heroin trafficking. Mr. Scales filed a motion to dismiss for lack of prima facie case. There was a hearing and the motion to dismiss was denied. He entered a guilty plea, conditioned on his right to appeal the ruling on the motion to dismiss.

He appealed, and SCOV reversed and vacated the conviction.

Yes, it’s illegal to possess drugs in a car. In fact, there’s a statute that creates a permissive inference saying in certain circumstances, everyone inside a car knows what’s in the car, drug-wise. It’s not binding, and it’s not a presumption. The interesting thing to me about this statute is that it’s specific only to drugs. (Yes, I know it’s in Title 18 in the chapter on drugs; the legislature could have put a similar statute in the criminal title and made cover any possessory offense in a car. I don’t want that; I’m just saying they could have done that.)  Suppose someone was a passenger in a car that had stolen property in it. Or a renegade sock. There’s no statute permitting an inference of criminality in those situations.

For the State to prove a criminal charge it has to prove all the elements of the charge. In this case, the elements were that Mr. Scales knowingly and unlawfully possessed heroin with the intention to sell it. The State relied on the fact Mr. Scales was in the car, the drugs were in the car, and there’s a statute that permits the factfinder to consider that everyone in the car knows all the drugs in the car. 

The problem, though, was there wasn’t anything factually substantive to link Mr. Scales to the drugs. The drugs were found in the trunk in a bag clearly belonging to a different person. That isn’t enough to show that Mr. Scales knew there were drugs in the car. Sort of like how my husband didn’t know he was driving around with his friend’s solo sock in the trunk. 

The permissive inference statute isn’t sufficient to sustain a conviction if that’s the only piece of evidence to prove knowledge of possession.

SCOV rules the motion to dismiss filed by Mr. Scales should have been granted. In a criminal case, a defendant can move to dismiss if the State lacks sufficient admissible evidence that would persuade a jury to find a defendant guilty beyond a reasonable doubt. At a hearing, the court considers the evidence, taken in the light most favorable to the State and excluding modifying evidence, to determine whether the State could meet its burden. 

Here the State came to the motion to dismiss hearing with the permissive inference, the fact the driver and Mr. Scales didn’t know one another, and the fact Mr. Scales knew where they were going. On appeal, the State tried to make the argument that if they had a trial, the other people in the car would have testified and said they knew Mr. Scales knew the drugs were in the trunk. The State also argued there were other materials that had been submitted to the court, and those should have been included in the State’s defense of the motion.

The problem with this approach is that there’s a rule about this, and there’s caselaw on the rule. And the rule and the caselaw – which has been established for many years – indicates the State’s job is to meet its burden at the time of the motion to dismiss hearing. So, although there might have been other evidence floating around out there, or the State might have thought it could get other evidence together in time for trial, with respect to this particular proceeding, it needed to have it together at the time of this hearing.

In the absence of other evidence, SCOV finds that all the State had to rely on here was the permissive inference statute, which isn’t enough. SCOV reverses, saying the trial court should have granted the motion to dismiss. SCOV vacates the conviction.