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Convictions for Both Simple Possession and Possession-for-Sale Violates Double Jeopardy

Under the well-known Double Jeopardy Clause of the Fifth Amendment to the United States Constitution, a criminal defendant may not be punished more than once for the same offense, unless a statute clearly authorizes such punishment. As the Nevada Supreme Court discussed in its opinion in LaChance v. State issued earlier this month, the Double Jeopardy Clause is violated when a defendant is convicted and sentenced for two offenses, one of which is a lesser-included offense of the other.

In LaChance, the defendant was convicted of several charges, including domestic battery by strangulation, domestic battery causing substantial bodily harm, possession of a controlled substance for the purpose of sale (“possession-for-sale”), and possession of a controlled substance (“simple possession”). The charges arose out of a domestic violence incident and a subsequent search of the motel room where the defendant and the victim later stayed. During the search, the police found marijuana in plastic bags, as well as approximately 4.6 pounds of marijuana and several scales in a duffel bag belonging to the defendant.

Following the jury’s guilty verdicts, the district court ruled that the defendant was subject to enhanced sentencing under Nevada’s habitual criminal statute, based upon his five prior felony convictions, with regard to the principal offenses of domestic battery causing substantial bodily harm and simple possession. For each of those two offenses, the judge sentenced the defendant to ten years to life in prison. The defendant appealed the convictions and the sentencing.

The Nevada Supreme Court largely affirmed the lower court’s entry of judgment, holding that there was sufficient evidence to convict the defendant on the domestic battery counts, that the defendant’s substantive rights were unaffected by the State’s notice of its intent to seek a habitual criminal adjudication, and that the lower court acted within its discretion in sentencing the defendant as a habitual offender. However, the Nevada Supreme Court vacated the conviction for simple possession as a “lesser-included offense” of possession-for-sale.

When the same act constitutes a violation of two different criminal statutes, a court must determine whether the provisions of one such statute require proof of an additional fact that the other statute does not require. In other words, if a defendant cannot violate one statute without also violating the other, then the second statute is a lesser-included offense of the first, for which the defendant cannot be convicted.

The possession-for-sale statute, NRS 453.337(1), provides that “it is unlawful for a person to possess for the purpose of sale … any controlled substance classified in schedule I or II.” In comparison, the simple possession statute, NRS 453.336(1) makes it unlawful for a person to “knowingly or intentionally possess a controlled substance.” In order to violate the possession-for-sale statute, a person must necessarily also violate the simple possession statute – a person cannot possess a substance for the purpose of sale without actually possessing the substance. Because the elements of simple possession are included in possession-for-sale, simple possession is a lesser-included offense of possession-for-sale. Accordingly, the court determined that the defendant’s convictions for both offenses violated double jeopardy.

Generally, to remedy a double jeopardy violation, a court will vacate the conviction for the offense that carries the lesser sentence. In this case, because the lower court had adjudicated the defendant as a habitual offender on the simple possession charge, that conviction carried a more severe sentence than the possession-for-sale conviction, which otherwise would have carried the greater sentence. However, the Nevada Supreme Court viewed the enhanced sentencing as a habitual offender as irrelevant to the double jeopardy analysis, and looked solely at the sentencing ranges of the principal offenses. On the principal offense of simple possession, the defendant would have faced sentencing of one to four years, whereas on the principal offense of possession-for-sale, the defendant would have faced sentencing of three to fifteen years. Thus, the court reversed the conviction of possession for sale, the lesser-included offense, which had entered in violation of the defendant’s double jeopardy rights.