COMMONWEALTH V. SWIFT
CRIMINAL: CRIMES, CONSTRUCTIVE POSSESSION
PUBLISHED: 475 AFFIRMING; OPINION WRITTEN BY – MINTON
DATE RENDERED: 111/1/2007
SC affirmed CA’s holding that TC erred by failing to give an instruction on possession of marijuana as a lesser included offense of cultivation of marijuana. A trial court must give a lesser-included offense instruction "only if, considering the totality of the evidence, the jury might have a reasonable doubt as to the defendant’s guilt of the greater offense, and yet believe beyond a reasonable doubt that he is guilty of the lesser offense." Here, SC found that under the evidence, a juror could have found that Swift possessed the marijuana plants and potted seeds under a theory of constructive possession.
Digested by Scott C. Byrd
Olgin and Byrd