State v jantzi case brief

Marc Burrell (defendant) was convicted of manslaughter after a jury trial in the Superior Court. Burrell appealed, arguing that the trial court committed an error in its jury instruction concerning the requirement under a New Hampshire statute that provides that conduct creating criminal liability must include a voluntary act. The New Hampshire Supreme Court affirmed the Superior Court.

Douglas Saari and Joey Baglione made plans to have a few drinks at Baglione's house. Before going there, Saari, a minor, stopped at Burrell's house and asked Burrell to purchase beer. Burrell agreed and decided to accompany Saari to Baglione's. When they arrived, Baglione answered the door holding a .357 revolver. Inside the house were an AR-15 rifle, possibly a shotgun, a .44 revolver, and a .38 snub-nose revolver. The .357 and .44 revolvers were loaded.

During the afternoon the three drank beer and watched an X-rated movie. Baglione and Burrell played a form of Russian roulette with the .357 revolver. One bullet was placed in the chamber, the chamber was spun, one player placed the gun to his head with his finger on the trigger, and then the gun was examined to see whether the bullet would have been discharged if the trigger had been pulled. At some point in the afternoon, all three went out on Baglione's back porch and fired one or two rounds with the .44 revolver.

At trial, Saari testified that while Baglione was out of the room, Saari told Burrell that he was going to steal the .38 and placed it in the lining of his leather jacket. Burrell agreed to go along with Saari, and stated that he was going to steal the AR-15, the .44, and the .357. When Baglione returned, Burrell announced his intention to steal the weapons. Baglione said, "You're not going to steal those guns, so I'll stop you." Baglione ran out of the room, and returned with a shotgun. By then, Burrell had put down the AR-15, but kept the .44 in his belt and the .357 in his hand.

Saari testified that Baglione "came running out of the basement ... and told [Burrell], ... 'You 're not going to steal those guns because I'll blow your f ___ head off."' Saari added that Baglione was not "serious .. . [and] he pumped the shotgun more than once, so I know it wasn't loaded." Saari then "looked at Burrell to see what his response was. And before I had time to do anything, he had shot in Baglione's direction" and hit him. Burrell dropped the gun, tried to call an ambulance, but panicked and went outside. At that time, Baglione's brother-in-law, Greg Eastman, arrived and called the ambulance. After the ambulance arrived, Eastman, Saari and Burrell went to the hospital.

At trial, Burrell testified that the fatal shooting did not occur when Baglione threatened him, but later in the afternoon while he and Baglione were preparing to take some of the guns back to a closet in Baglione's father's bedroom. Before storing the guns, Baglione told Burrell that his father always kept the .357 loaded.

Burrell testified that, after loading the .357 revolver, he was seated on the forward edge of the love seat with his feet outstretched. Baglione passed in front of him from right to left. While Baglione was to his left, he sighted the gun on the hearth and put his finger on the trigger. He heard a noise and saw Baglione move from left to right in front of him. Thinking that they were going to collide, he jerked back and the gun went off. Burrell admitted on cross-examination that because of a lazy left eye, a problem he was aware of on the day of the shooting, he had great difficulty seeing anything to his left.

In New Hampshire, "a person is not guilty of an offense unless his criminal liability is based on conduct that includes a voluntary act or the voluntary omission to perform an act of which he is physically capable."

RSA 626: 1, I. Burrell does not dispute either the statutory requirement or the fundamental principle that criminal liability must be predicated upon conduct that includes a voluntary act. Burrell, however, contends that the court erred in failing to instruct the jury that it must find that Burrell's act of pulling the trigger was voluntary.

The trial court gave the jury the following instruction on the voluntary act requirement: A person is not guilty of an offense unless his criminal liability is based upon conduct that includes a voluntary act. A voluntary act is defined as conduct which is performed consciously as a result of effort or determination. To find Burrell guilty of an offense, any offense, you must find that the criminal liability is based upon conduct that includes a voluntary act. And although a voluntary act is an absolute requirement for criminal liability, you do not have to find that every single act in the circumstances presented to you was voluntary. It is sufficient to satisfy the requirement of a voluntary act if you find that Burrell's conduct causing the death of Joseph Baglione, Jr. included a voluntary act.

Burrell requested this instruction: A person is not guilty of an offense unless his criminal liability is based on conduct that includes a voluntary act. If you find Burrell's act of pulling the trigger of the handgun in this case not to have been a voluntary act, then you must find Burrell not guilty.

Burrell essentially asks this court to require the State to prove that Burrell's last act was voluntary in order to establish criminal liability. There is no support for this proposition in either the statute or in our case law. The statute only requires that Burrell's conduct that gives rise to criminal liability include a voluntary act. Although a voluntary act is absolutely necessary for criminal liability, there is no requirement that every act preceding the actual commission of the offense be voluntary. We hold that the trial court's refusal to instruct the jury that Burrell's act of pulling the trigger must have been a voluntary act was not error. Affirmed.

1. State the facts relevant to deciding whether Marc Burrell "voluntarily" shot Joey Baglione.

2. State the court's definition of "voluntary act."

3. Summarize the court's reasons for holding that the trial judge wasn't required to give the jury instruction that Burrell asked for.

4. In your opinion, which is the better rule for determining whether an act is voluntary: (a) the last act has to be voluntary or (b) that conduct has to include a voluntary act? Defend your answer.

Acie Terry Moore was convicted of second-degree murder, and sentenced to the trial court sentenced defendant to a presumptive-range term of 146 to 185 months imprisonment. Moore appealed, arguing that the trial court should have instructed the jury on the defense of unconsciousness.

At about 9:00 P.M., Terry Moore was driving south on a two-lane paved road in Alamance County with a 50-mileper-hour speed limit. At the same time, Mark McKinney was driving his truck north on the same road. Anthony Satterfield was riding a motorcycle directly behind Mr. McKinney's truck. Mr. Satterfield was followed by two more vehicles, one driven by Michael Rea and the second by Phillip Hagerman.

As defendant's truck approached Mr. McKinney's truck, Moore's truck crossed the double yellow center line into the wrong lane of travel. Mr. McKinney jerked the wheel of his truck to avoid colliding with defendant's truck. Defendant's truck, still in the wrong lane of travel, then struck Mr. Satterfield's motorcycle without braking. During the collision, the tire of defendant's truck severed Mr. Satterfield's leg, the driver's side mirror on defendant's truck collided with Mr. Satterfield's helmet causing a large laceration on his forehead, and defendant's truck smashed the crank case on the motorcycle. Mr. Satterfield's body travelled approximately 100 feet before coming to rest.

After striking the motorcycle, defendant still did not brake, and his truck remained in the wrong lane of travel. Mr. Rea swerved his truck to the right to avoid colliding with defendant's truck. Defendant's truck travelled another 151 feet and then, again without braking, slammed into Mr. Hagerman's truck, snapping the rear axle of that truck and spinning the truck into a ditch. The left front tire of defendant's truck then deflated, and defendant's truck continued travelling for 168 feet off the highway into a field.

At trial, Moore's physician, Dr. Meindert Albert Niemeyer, testified as an expert in family medicine. According to Dr. Niemeyer, defendant has diabetes and a history of seizures and it was possible that hypoglycemia would cause a person like defendant to lose consciousness. He further testified that defendant's diabetes and low blood sugar could cause a state of "ketosis" in which defendant's body would produce "ketones" that can smell like alcohol.

Defendant's sister testified that when defendant does not "have good control over his diabetes," he gets disoriented and confused. She further testified that defendant has a history of seizures that caused him to "black out and stay out for a couple of minutes and then when he would come to he wouldn't know where he was at." On the night of the accident, defendant's sister was worried that defendant might have high blood glucose because he was acting tired and confused and had not eaten since early morning. Defendant's sister did not smell alcohol on defendant when he met her at the go cart track, and she would not have let defendant drive if she believed he had been drinking.

Defendant testified in his own defense, telling the jury that during the day on 14 August 2010, he mowed several lawns. Defendant ate breakfast early that morning, but did not eat anything for the remainder of the day. Although Trooper Norton testified that defendant told him on the night of the accident that he had taken his diabetes medication at about 5:30 A.M., defendant testified that he forgot to take his diabetes medication that morning. According to defendant, he drank a small amount of water and several sodas during the day. He also drank three 12- or 16-ounce beers at a friend's house that evening before driving to the go-cart track.

The absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability. Other courts have recognized "diabetic shock" and "epileptic black-outs" as sources of unconsciousness giving rise to the defense. Evidence showing that the defendant was unconscious during commission of the crime only as a result of voluntary ingestion of alcohol or drugs will not warrant an instruction on the defense of unconsciousness. However, evidence of a defendant's voluntary consumption of alcohol does not render the defense of unconsciousness unavailable where there is additional evidence from which the jury could find the defendant's unconsciousness was caused solely by something other than the voluntary consumption of alcohol.

Here, Dr. Niemeyer, defendant's physician, testified that defendant is diabetic and has a history of seizures and that it is possible that defendant could pass out from hypoglycemia resulting from not taking diabetes medication, not eating during the day, not hydrating enough, and working outside during August temperatures. He further testified that defendant's diabetes and low blood sugar could cause defendant's body to produce "ketones" which can smell like alcohol. Defendant's sister testified that when defendant had a seizure, defendant would "black out" for a couple of minutes and be disoriented and forgetful. Defendant's sister explained in addition that when defendant "didn't have good control over his diabetes," defendant also became disoriented and forgetful.

Defendant testified that he forgot to take his diabetes medication on the day of the accident and ate breakfast early that morning but ate nothing else that day. The evidence showed that the accident occurred about 9:00 P.M. Defendant further testified that he mowed several yards that day, drank only a small amount of water and "a couple" sodas, and experienced nausea and a "burning sensation" in his eyes before the accident.

Regarding the accident, defendant testified that he "blacked out" and explained: I remember going into the curve and it just like something just blanket over my head and I couldn't see nothing .... [A]II I heard was something go bang, bang, bang. That's all I could hear but I couldn't see nothing. Defendant also repeatedly testified that he was not drunk at the time of the accident.

Thus, taken in the light most favorable to defendant, the evidence permitted the jury to find that defendant was unconscious during the accident solely because of a hypoglycemic state, seizure disorder, or some combination of the two, and not as a result of his voluntary consumption of alcohol. The trial court, therefore, erred in failing to give an instruction on unconsciousness.

The State presented substantial evidence that defendant's voluntary intoxication caused defendant's mental state at the time of the accident. The State's evidence indicated that defendant had three to four beers in the middle of the afternoon at a bar. When he returned to the bar in the early evening, approximately two and a half hours prior to the collision, two witnesses saw defendant so intoxicated that he walked into a wall. When he got inside the bar, he fell off a bar stool. At the Alamance County Detention Center, on the night of the accident, defendant told the investigating officer that he was a "nine" on an intoxication scale of one to 10, with 10 being "completely drunk." Further, defendant performed poorly on four field sobriety tests and, in the investigating officer's opinion, defendant's physical and mental faculties were appreciably impaired by alcohol. Three other law enforcement officers and four civilian witnesses at the scene also observed defendant display signs of intoxication and many smelled an odor of alcohol on defendant. Defendant himself admitted drinking three 12- to 16-ounce beers that night.

Finally, chemical analysis showed that defendant had .18 grams of alcohol per 210 liters of breath at the time of the accident-a fact not explained by defendant's evidence. And, at trial, defendant testified: "Everybody drinks and drives. I was the one that just got caught."

Given this evidence, we cannot conclude that the jury would probably have reached a different verdict if properly instructed regarding the defense of unconsciousness. No error.

Questions

1. List all the facts relevant to deciding whether Acie Terry Moore was conscious when he killed Anthony Satterfield.

2. If you were the prosecutor would you have decided to charge Moore with murder? Was the trial court right to refuse to instruct the jury on unconsciousness due to insulin shock? Defend your answer.

3. Assuming Moore was guilty, was the 12 to 15 year sentence proportionate to his crime? Defend your answer.

Walter and Helen Pestinikas were convicted of third-degree murder in the Court of Common Pleas, Criminal Division, Lackawanna County. Each was sentenced to serve not less than five years or more than ten years in prison. Defendants appealed. The Superior Court, Nos. 375 and 395 Philadelphia 1989, affirmed.

Joseph Kly met Walter and Helen Pestinikas in the latter part of 1981 when Kly consulted them about pre-arranging his funeral. In March 1982, Kly, who had been living with a stepson, was hospitalized and diagnosed as suffering from Zenker's diverticulum, a weakness in the walls of the esophagus, which caused him to have trouble swallowing food. In the hospital, Kly was given food, which he was able to swallow and, as a result, regained some of the weight that he had lost.

When he was about to be discharged, he expressed a desire not to return to his stepson's home and sent word to the Pestinikases that he wanted to speak with them. As a consequence, arrangements were made for the Pestinikases to care for Kly in their home on Main Street in Scranton, Lackawanna County.

Kly was discharged from the hospital on April 12, 1982. When the Pestinikases came for him on that day they were instructed by medical personnel regarding the care that was required for Kly and were given a prescription to have filled for him. Arrangements were also made for a visiting nurse to come to the Pestinikases' home to administer vitamin B-12 supplements to Kl y. The Pestinikases agreed orally to follow the medical instructions and to supply Kly with food, shelter, care, and the medicine he required.

The prescription was never filled, and the Pestinikases told the visiting nurse that Kly did not want the vitamin supplement shots and that her services, therefore, were not required. Instead of giving Kly a room in their home, the Pestinikases removed him to a rural part of Lackawanna County, where they placed him in the enclosed porch of a building, which they owned, known as the Stage Coach Inn. This porch was approximately 9 feet by 30 feet, with no insulation, no refrigeration, no bathroom, no sink, and no telephone. The walls contained cracks that exposed the room to outside weather conditions.

Kly's predicament was compounded by the Pestinikases' affirmative efforts to conceal his whereabouts. Thus, they gave misleading information in response to inquiries, telling members of Kly's family that they did not know where he had gone and others that he was living in their home.

After Kly was discharged from the hospital, the Pestinikases took Kly to the bank and had their names added to his savings account. Later, Kly's money was transferred into an account in the names of Kly or Helen Pestinikas, pursuant to which moneys could be withdrawn without Kly's signature. Bank records reveal that from May 1982, to July 1983, the Pestinikases withdrew amounts roughly consistent with the $300 per month Kly had agreed to pay for his care.

Beginning in August 1983, and continuing until Kly's death in November 1984, however, the Pestinikases withdrew much larger sums so that when Kly died, a balance of only $55 remained. In the interim, the Pestinikases had withdrawn in excess of $30,000.

On the afternoon of November 15, 1984, when police and an ambulance crew arrived in response to a call by the Pestinikases, Kly's dead body appeared emaciated, with his ribs and sternum greatly pronounced. Mrs. Pestinikas told police that she and her husband had taken care of Kly for $300 per month and that she had given him cookies and orange juice at 11 :30 A.M. on the morning of his death.

A subsequent autopsy, however, revealed that Kly had been dead at that time and may have been dead for as many as 39 hours before his body was found. The cause of death was determined to be starvation and dehydration. Expert testimony opined that Kly would have experienced pain and suffering over a long period of time before he died.

At trial, the Commonwealth contended that after contracting orally to provide food, shelter, care, and necessary medicine for Kly, the Pestinikases engaged in a course of conduct calculated to deprive Kly of those things necessary to maintain life and thereby cause his death.

The trial court instructed the jury that the Pestinikases could not be found guilty of a malicious killing for failing to provide food, shelter, and necessary medicines to Kly unless a duty to do so had been imposed upon them by contract. The Court instructed the jury as follows: In order for you to convict the defendants on any of the homicide charges or the criminal conspiracy or recklessly endangering charges, you must first find beyond a reasonable doubt that the defendants had a legal duty of care to Joseph Kly. There are but two situations in which Pennsylvania law imposes criminal liability for the failure to perform an act. One of these is where the express language of the law defining the offense provides for criminal [liability] based upon such a failure. The other is where the law otherwise imposes a duty to act. Unless you find beyond a reasonable doubt that an oral contract imposed a duty to act upon Walter and Helen Pestinikas, you must acquit the defendants.

The Pestinikases contend that this instruction was error. The applicable law appears at 18 Pa. C.S. § 30l(a) and (b) as follows: (a) General rule. A person is not guilty of an offense unless his liability is based on conduct which includes a voluntary act or the omission to perform an act of which he is physically capable. (b) Omission as basis of liability. Liability for the commission of an offense may not be based on an omission unaccompanied by action unless: 115 (1) the omission is expressly made sufficient by the law defining the offense; or (2) a duty to perform the omitted act is otherwise imposed by law.

Unless the omission is expressly made sufficient by the law defining the offense, a duty to perform the omitted act must have been otherwise imposed by law for the omission to have the same standing as a voluntary act for purposes of liability. It should, of course, suffice, as the courts now hold, that the duty arises under some branch of the civil law. If it does, this minimal requirement is satisfied, though whether the omission constitutes an offense depends as well on many other factors.

Consistent with this legal thinking, we hold that when the statute provides that an omission to do an act can be the basis for criminal liability if a duty to perform the omitted act has been imposed by law, the legislature intended to distinguish between a legal duty to act and merely a moral duty to act.

A duty to act imposed by contract is legally enforceable and, therefore, creates a legal duty. It follows that a failure to perform a duty imposed by contract may be the basis for a charge of criminal homicide if such failure causes the death of another person and all other elements of the offense are present. Because there was evidence in the instant case that Kly's death had been caused by the Pestinikases' failure to provide the food and medical care which they had agreed by oral contract to provide for him, their omission to act was sufficient to support a conviction for criminal homicide. The Pestinikases argue that, in any event, the Commonwealth failed to prove an enforceable contract requiring them to provide Kly with food and medical attention. It is their position that their contract with Kly required them to provide only a place for Kly to live and a funeral upon his death. This obligation, they contend, was fulfilled.

Although we have not been provided with a full and complete record of the trial, it seems readily apparent from the partial record before us that the evidence was sufficient to create an issue of fact for the jury to resolve. The issue was submitted to the jury on careful instructions by the learned trial judge and does not present a basis entitling the Pestinikases to post-trial relief. Affirmed.

The theory of the Commonwealth at trial was that the failure of the Pestinikases to fulfill the alleged civil contract to provide food, shelter, personal, and medical care to Mr. Kly was alone sufficient to support a finding of first and/or third degree murder. Section 301(6)(2) of the Crimes Code provides, in relevant part: Liability for the commission of any offense may not be based on an omission unaccompanied by action unless a duty to perform the omitted act is otherwise imposed by law. (emphasis added by the dissent; 18 Pa. C.S. § 301(6)(2))

The precise issue thus becomes whether the legislature intended that a "contractual duty" constitutes a "duty imposed by law" for purposes of ascertaining whether conduct is criminal. While I share the desire of the prosecutor and the jury that the Pestinikases must not escape responsibility for their horribly inhuman and criminally culpable conduct, I cling to the view that an appellate court is not free to reshape the intention or revise the language of the Crimes Code. Rather, our constitutional obligation is to implement the intent and comply with the direction of the legislature.

It is true that this Court has upheld convictions for endangering the welfare of children. However, all of the cases where liability is based upon a failure to act involved the parent-child relationship and the statutory imposition of duties upon the parents of minors. In the instant case, where there was no "status of relationship between the parties" except landlord-tenant, a failure to perform a civil contract cannot alone sustain a conviction for third degree murder. Thus, it is that I dissent.

Questions

1. List all the facts relevant to deciding whether the Pestinikases had a legal duty to Joseph Kly.

2. List all of the failures to act and voluntary acts that are relevant to deciding whether the Pestinikases failed to perform a legal duty to Mr. Kly.

3. Summarize the arguments regarding criminal omission of both the majority and dissenting opinions.

4. In your opinion, did the Pestinikases have a legal duty to Joseph Kly? Assuming they did have a legal duty, did they reasonably perform their duty? Back up your answer with facts and arguments in the case excerpt.

Zamara Janice Williams (Defendant) was convicted in a jury trial in the Circuit Court, Hillsborough County, of possession of cannabis with intent to sell manufacture, or deliver. Defendant appealed. Th; Florida Court of Appeals reversed and remanded.

Tampa police officers Filippone and Cruz followed Zamara Janice Williams onto the interstate highway after they saw her drop off a passenger in the middle of 24th Avenue. They signaled to her to pull over because she was speeding and driving recklessly on the interstate and she complied, exiting the interstate and pulling into a parking lot. She was driving a rented compact hatchback with two passengers.

Even before the officers pulled up behind her in the parking lot, she had exited her vehicle and approached them in an extremely agitated state, telling the officers to just go ahead and give her the traffic citation. She was behaving in such an overwrought manner, amounting almost to having a panic attack and hyperventilating, that it took the officers several minutes to calm her before they could continue with the traffic stop. One officer testified that her heart was beating so furiously that he could see it pounding in her chest and offered to call emergency medical services (EMS), but she declined. The officers also testified that during this initial period of the stop, she was continually moving away from her vehicle and thus drawing them away with her; they had to keep bringing her back to her vehicle. As they stood near the driver's door, they perceived the strong odor of fresh marijuana that was emanating from the vehicle and traced it to a closed black bag behind the rear seat in the hatchback.

Based upon the odor of marijuana, the officers asked Ms. Williams for permission to search the car. She responded by saying that she did not think that there would be drugs in the car but consented to the search. Upon further investigation, the officers noted that the car was unkempt with paperwork bearing Ms. Williams' name strewn about. Inside the black bag they found a gallon ziplock bag containing almost a pound of fresh marijuana,1 a smaller baggie containing several pieces of what appeared to be, and what were later confirmed to be, crack cocaine; an open box of sandwich bags; and two digital scales. No attempt was made to lift fingerprints from the black bag or any item from inside the bag. Although the car was rented in Ms. Williams' name, she was driving it, and her personal belongings were in the car, there was nothing on or in the black bag that tied it or the items inside it to her or anyone else.

Based on the above, the State charged Ms. Williams with three counts: possession of cannabis with intent to sell; possession of cocaine with intent to sell; and possession of drug paraphernalia. When Ms. Williams' defense counsel moved for judgment of acquittal at trial, the trial court denied the motion based on the strong odor of marijuana, the fact that the officers had found letters addressed to Ms. Williams in the car, and the fact that the car was rented in her name.

After the jury submitted a question that indicated its concern about interpreting constructive possession, 2 it returned a verdict of guilty of possession of cannabis but not guilty of the cocaine and paraphernalia counts. The trial court sentenced Ms. Williams to four years' probation and she timely appealed.

Because it was clear that Ms. Williams did not have exclusive possession of the black bag containing marijuana, as there were other persons in the car and she did not admit the bag was hers, the State was required to prove constructive possession with evidence beyond the fact that she was in near proximity to the black bag. When a defendant is not in exclusive possession of the vehicle where the contraband is found, the elements of knowledge and dominion and control may not be inferred or assumed but must be established through additional and independent proof. Therefore, the State's burden was to prove two elements: (A) that Ms. Williams knew of the presence of the contraband and (B) that she had the ability to exercise dominion and control over it. It is the latter element for which we find the State's evidence lacking.

The first element- knowledge of the presence of the marijuana in the black bag-that the State had to prove in order to convict Ms. Williams of constructive possession is satisfied here by the evidence of the strong odor of marijuana of which the officers were conscious when they approached her car. Additional evidence to support this first element is the reasonable inference that can be taken from Ms. Williams' extraordinary behavior when she was stopped. The officers testified that they had never before stopped anyone for a traffic violation and had the person react as Ms. Williams did. She was anxious and nervous to an unheard of degree, hyperventilating and having observable heart palpitations, causing the officers to fear for her health and to offer to send for EMS. Further, she continually tried to maintain a distance between herself and the officers and her car. The reasonable inference is that she knew there was marijuana in the car.

It is the second element-ability to exercise dominion and control- for which there was insufficient proof. Had Ms. Williams been the only person in the car when the officers stopped her, this element would have been satisfied and a jury question raised. But because Ms. Williams had two passengers with her, the State is not entitled to the benefit of an inference of dominion and control. The State is required to produce independent evidence pointing to her dominion and control of the black bag containing the marijuana.

Even under the lesser standard of proof by a preponderance of evidence in a violation of probation case, the State in Hanania v. State, 855 So.2d 92 (Fla.2d DCA 2003 ), failed to prove constructive possession of contraband. A law enforcement officer had stopped the car in which the defendant was a front seat passenger, and a narcotics dog alerted on the passenger's seat of the car. Upon his searching the car, the officer found a yellow manila envelope containing three baggies of suspected methamphetamine between the passenger's seat and the center console transmission column, an electronic scale in a recess under the dashboard, and an envelope containing marijuana addressed to the driver and owner of the car under the passenger seat. The defendant testified that he had only recently entered the car, about five blocks before the traffic stop, because the driver, an acquaintance of his, had agreed to give him a ride home from the store where they had met. The State argued that the defendant's proximity to the contraband was sufficient evidence of the conditions violated but this court disagreed because nothing in the record indicated that the defendant knew of the presence of the drugs or the scale or that he had the ability to exercise dominion and control over them.

Even though Ms. Williams was the driver of her car and the defendant in Hanania was a passenger, the present case is much like Hanania because there was no independent evidence linking either defendant to the contraband sufficient to convict other than mere proximity of contraband not in plain view.

The evidence presented at trial satisfied the first element-knowledge-that the State had to prove in order to overcome a motion for judgment of acquittal, but it did not establish that Ms. Williams was able to exercise dominion and control over the black bag that contained marijuana. Because the State failed to present sufficient evidence linking Ms. Williams to the contraband other than her mere proximity to it, the trial court erred in denying her motion for judgment of acquittal. Accordingly, we reverse the judgment and sentence for possession of marijuana. Because of the insufficient evidence supporting her conviction, on remand she must be discharged. Judgment and sentence reversed and cause remanded with instructions to discharge Ms. Williams.

I agree that our outcome today is required by the precedent that is well explained in the court's opinion. Courts and legislatures around the country take different positions on this issue. If I were writing on a clean slate, I would be inclined to believe that a jury should be authorized to return a guilty verdict on a drug charge where the defendant is an operator of a motor vehicle and has actual knowledge that the vehicle contains illegal drugs that easily could be removed from the vehicle.

In this case, Ms. Williams was driving her small rental car fully aware that a bag containing a large quantity of marijuana was behind her in the hatchback area. This marijuana was either her marijuana, her passengers' marijuana, or marijuana jointly possessed by the driver and one or more of the passengers. Assuming the marijuana was not hers, she was in control of the car. She had the complete right before she entered the interstate to stop her car and order the criminal to exit the vehicle with the contraband. If she elected to continue to transport the contraband in this context, it seems to me that at a minimum she became a principal in the offense of possession and the jury was entitled to return this verdict.

Questions

1. Identify the two elements of constructive possession discussed by the court.

2. List the facts relevant to deciding whether Zamara Janice Williams constructively possessed marijuana.

3. Assume you 're the prosecutor. Argue that Williams actually and constructively possessed marijuana. Back up your arguments with facts in the case.

4. Assume you 're the defense attorney. Argue that Williams didn't physically or constructively possess marijuana.

Ronald Gene Fleck (Defendant) was convicted by a jury in the District Court, Douglas County, of assault by the intentional infliction of or attempt to inflict bodily harm upon another (assault-harm). Fleck appealed. The Court of Appeals reversed and remanded. The State filed a petition for review. The Minnesota Supreme Court reversed and reinstated the conviction.

Ronald Gene Fleck lived with K.W. in Alexandria Minnesota. When K.W. returned home in the earl; morning hours of January 23, 2009, Fleck was in the kitchen, drinking alcohol (according to K.W., Fleck had been drinking for "seven days straight"). As K.W. walked toward the bathroom, she heard Fleck call her name. When K.W. turned around, she saw Fleck with a large butcher knife. Fleck then stabbed K.W. once near her shoulder with an overhand motion. K. W. claimed that Fleck said something about "finishing her off" before he walked away. K.W. locked herself in the bathroom and called 911. Fleck then called his brother and sister-in-law, telling them about the stabbing and informing them that he was going to take his own life by ingesting sleeping pills.

Two officers from the Douglas County Sherriff's Department responded to the 911 call. On their arrival, the officers observed that Fleck was uncooperative and belligerent. Fleck told the officers he had taken 40 sleeping pills. Shortly after the officers arrived, Fleck became unresponsive and lost muscular control of his head and neck. Both Fleck and K. W. were taken to the hospital. At the hospital, Fleck was unresponsive and hospital tests revealed a blood alcohol level of 0.315.

Fleck was charged with second-degree assault with a dangerous weapon under Minn. Stat. § 609.222, subd. 1 (2010). Section 609.222 references Minn. Stat. § 609.02, subd. 10 (2010), which defines the offenses of assault-harm and assaultfear.1 Before trial, Fleck gave written notice that he would be relying on intoxication as a defense, and specifically requested a voluntary intoxication jury instruction.

The State contends that the language of Minn. Stat. § 609.075, 2 (Defense of Intoxication) should be interpreted as applying to specific-intent crimes, not to general-intent crimes. We agree. We next consider whether an assault-harm offense is a general-intent or specific-intent crime. We have on occasion made references to the offense of "assault" without expressly acknowledging that the Legislature has defined two distinct forms of assault. To ensure precision in our analysis, we begin with a discussion of the two distinct forms of assault recognized by the Legislature.