OXBORROW v. SHERIFF

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Docket Number

No. 9748

Attorney(S)

Dean Breeze, Las Vegas, for Appellant. Robert List, Attorney General, Carson City; Peter L. Knight, District Attorney, and Andrew Demetras, Deputy District Attorney, Nye County, for Respondent.

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Smart Summary

Factual and Procedural Background

Kenneth Steven Oxborrow was a guest at a friend's residence when police officers, acting under a warrant, conducted a search. Marijuana was found concealed under a couch, inside the refrigerator, and within pill vials hidden in a closed jewelry box. Based on this evidence, Oxborrow was charged with felonious possession of marijuana under NRS 453.336 and NRS 453.161. Oxborrow filed a pretrial petition for a writ of habeas corpus, arguing insufficient evidence at the preliminary examination to establish probable cause that he committed the offense. The district court denied the petition, and Oxborrow appealed that denial.

Legal Issues Presented

Whether the evidence presented at the preliminary examination was sufficient to establish probable cause that Oxborrow exercised dominion and control over the marijuana, thereby supporting the charge of possession.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Glispey v. Sheriff, 89 Nev. 221, 510 P.2d 623 (1973)	Proof of dominion and control is required to establish possession of contraband.	Applied to conclude Oxborrow did not have actual physical possession nor constructive possession of the marijuana.
Doyle v. State, 82 Nev. 242, 415 P.2d 323 (1966)	Constructive possession requires inference beyond mere presence.	Used to support the finding that no constructive possession could be inferred from the record.
Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969)	Recognition of "joint possession" theory.	Distinguished because the record lacked facts supporting joint possession.
Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969)	Joint possession doctrine.	Applied to highlight absence of supporting facts for joint possession in this case.
United States v. Stephenson, 474 F.2d 1353 (5th Cir. 1973)	Mere presence or association insufficient to establish possession.	Quoted to emphasize that mere presence in the area where narcotics are found does not prove possession.
State v. Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971)	Constructive possession requires proof of right to control contraband.	Referenced for the principle that multiple occupants without proof of control do not have constructive possession.

Court's Reasoning and Analysis

The court analyzed whether Oxborrow exercised dominion and control over the marijuana found during the search. Citing prior Nevada cases, the court reiterated that possession—actual or constructive—requires evidence beyond mere presence. The record showed no physical possession by Oxborrow, nor facts from which constructive or joint possession could be inferred. The court further relied on federal precedent to affirm that mere presence in the vicinity of narcotics or association with the person controlling the drugs is insufficient to establish possession. Given the absence of any facts supporting dominion or control, the court concluded that the evidence did not support the charge against Oxborrow.

Holding and Implications

Reversed.

The court reversed the denial of the pretrial habeas corpus petition, effectively ruling that the evidence was insufficient to establish probable cause for Oxborrow's possession charge. This decision directly benefits Oxborrow by negating the basis for his prosecution at this stage. The opinion does not establish new precedent but applies existing legal principles to the facts presented.

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KENNETH STEVEN OXBORROW, APPELLANT, v. SHERIFF, NYE COUNTY, NEVADA, RESPONDENT.

OPINION

Per Curiam:

Kenneth Steven Oxborrow was a guest in the residence of a friend when police officers arrived and, pursuant to a warrant, conducted a search. Marijuana was seized from under a couch, the refrigerator and from pill vials which were secreted in a closed jewelry box. On this evidence Oxborrow was charged with, and ordered to stand trial for, the felonious possession of marijuana. NRS 453.336 and NRS 453.161.

In a pretrial petition for a writ of habeas corpus, Oxborrow contended there was insufficient evidence adduced at the preliminary examination to establish probable cause to believe he committed the charged offense. Habeas relief was denied and, in this appeal, Oxborrow asserts the same contention raised below.

Proof that Oxborrow exercised dominion and control over the contraband was required in order to support the possession charge. Glispey v. Sheriff, 89 Nev. 221, 510 P.2d 623 (1973). Oxborrow did not have actual physical possession of the contraband and there is nothing in the record from which we might infer constructive possession. See Doyle v. State, 82 Nev. 242, 415 P.2d 323 (1966).

Furthermore, this record is barren of facts that might support a theory of "joint possession" such as existed in Maskaly v. State, 85 Nev. 111, 450 P.2d 790 (1969), and Woerner v. State, 85 Nev. 281, 453 P.2d 1004 (1969). Thus, this record cannot support the charged offense.

Without more, "mere presence in the area where the narcotic is discovered or mere association with the person who does control the drug or the property where it is located, is insufficient to support a finding of possession." United States v. Stephenson, 474 F.2d 1353, 1355 (5th Cir. 1973). See also State v. Luchetti, 87 Nev. 343, 486 P.2d 1189 (1971), where this court held that thirteen occupants of a house did not have constructive possession of marijuana found in plain view in the living room because there was no proof that they had the right to control the contraband.

Reversed.