Opinion
July 22, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Asst. Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Rollie R. Rogers, Colorado State Public Defender, Norman R. Mueller, Deputy State Public Defender, Denver, for defendant-appellant.
SMITH, Judge.
Defendant Esquibel appeals from his conviction by a jury of conspiracy to possess cannabis sativa L. (marijuana), a violation of what is now s 18--2--201, C.R.S.1973. The jury acquitted him of possession of marijuana, a violation of s 12--22--302, C.R.S.1973, the only other count charged in the information. The Attorney General confesses error on the basis of inconsistent verdicts. We agree and reverse.
Esquibel was one of four persons in an automobile which was stopped by police officers for investigation of a disturbance. After being ordered from the vehicle, the four individuals stood in a group to one side of the car. One baggie of marijuana was found on the ground in their midst, and six more baggies were discovered beneath the vehicle. No marijuana was found at any time in defendant's possession. A search of the car disclosed a water pipe in the back seat.
Colorado adheres to the inconsistent verdict doctrine enunciated in Robles v. People, 160 Colo. 297, 417 P.2d 232, which states that one may not be convicted of conspiracy when the only evidence of the conspiracy is the same evidence that is insufficient to convict defendant of the substantive crime which is the object of the conspiracy. This principle has been repeatedly reaffirmed by the Supreme Court, see People v. Samora, Colo., 532 P.2d 946; Attwood v. People, 165 Colo. 345, 439 P.2d 40; and People v. Way, 165 Colo. 161, 437 P.2d 535, and is applicable to cases involving possession of narcotics. See Fagin v. People, 174 Colo. 540, 484 P.2d 1216. It is now incorporated into the statute. s 18--2--206(2), C.R.S.1973.
The only evidence, in the instant case, of conspiracy was that offered to prove possession. As the jury did not find the evidence sufficient to convict for possession and as no independent evidence of conspiracy to possess existed, the conviction for conspiracy and the judgment entered thereon is reversed.
RULAND and KELLY, JJ., concur.