Appeals Panel
03/29/2021
State of Rhode Island v. Anthony Ware, No. T20-0011 (March 29, 2021)
Possession of Marijuana
The Defendant appealed a Trial Judge’s decision sustaining the charged violation of Possession of Marijuana. An officer for the Warren Police Department testified that as he approached a parked vehicle he observed the Defendant quickly exit the driver’s side and walk behind a staircase. The Officer saw the Defendant “crouch down, and then put two items down.” Additionally, the officer testified that as the Defendant then walked towards him he was “visibly nervous.” The officer went to the location where he saw the Defendant crouch down and found “two glassine plastic baggies, one of which contained a greenish brown leafy substance, which was suspected marijuana.” He conducted a field test and determined that the substance was marijuana. The officer testified as to his training and experience in drug detection and conducting field tests. The Defendant testified that the substance that the officer found was not his. The Trial Judge found the Defendant guilty. The Defendant appealed, arguing without further explanation that “the judge did not give me a fair hearing.”
The Appeals Panel relied upon Palange v. Palange, 243 A.3d 783 (R.I. 2021) to support its finding that the Defendant had waived any appellate issue because he did not “discuss or elaborate on [any] issue” during the trial or in his appeal. The Appeals Panel gave deference to the Trial Judge’s decision and sustained the charged violation.State of Rhode Island v. Anthony Ware, No. T20-0011 (March 29, 2021).pdf
Appeals Panel
04/28/2021
State of Rhode Island v. Joseph Sousa T21-0006 (April 28, 2021)
Probable Cause
The Defendant appealed a Trial Magistrate’s decision sustaining the charged violation of G.L. 1956 § 31-27-2.1, “Refusal to Submit to Chemical Test.” At trial, a Trooper testified that he observed a vehicle “unable to maintain its lane because it swerved into the second lane from the first lane.” The Trooper followed the car and continued to observe swerving in and out of lanes. He decided to make a traffic stop and identified the Defendant as the Driver. The Trooper noticed a “closed box of Macallan whiskey” in the vehicle and observed the Defendant struggle to get into the glove box in order to provide documentation. He also observed “bloodshot watery eyes, slurred speech and detected an odor of an alcoholic beverage emanating from the interior of the vehicle.” The Defendant was asked to step out of the vehicle, at which time the Trooper smelled alcohol emanating from his breath. The Defendant completed the horizontal gaze nystagmus test, but subsequently refused all other field sobriety testing. Due to the Troopers belief that the Defendant was under the influence, he placed him under arrest and read him his “rights for use at the scene.” The Defendant was transported to the station, where he asked for water due to his diabetic condition and refused to submit to a chemical test. The Defendant testified that he was unfamiliar with the vehicle because he did not drive it frequently, that he was not feeling well at the time of the stop due to medication he had been taking, and that he had not been drinking that day. Lastly, a witness testified that he was with the Defendant on the night in question, that he had not seen the Defendant drink that night, that the Defendant had shared that he was not feeling well, and that he saw no reason the Defendant should not have driven home. At the close of the trial the Trial Magistrate found the defendant guilty of the charged violation. The Defendant appealed, arguing that the Trooper had imposed a “more likely than not standard” in determining whether to place the Defendant under arrest.
Although the language of § 31-27-2.1 requires proof that an officer have “reasonable grounds” to believe that a motorist was driving under the influence in order to request submission to a chemical test, and further requires that a motorist must be under arrest before being asked to submit to a chemical test, the Appeals Panel suggested that, “[b]ased on the plain language of the statute, the standard for administering a chemical test is reasonable suspicion to believe that the driver is operating under the influence of alcohol.” Here, the Trooper testified that he observed the Defendant swerving, that the Defendant had trouble opening his glovebox, and that the Defendant had bloodshot eyes, slurred speech, and the odor of alcohol coming from his breath. The Appeals Panel sustained the charged violations, finding that those facts provided sufficient factual support for the Trial Judge’s determination that the Trooper had reasonable suspicion that the Defendant had been operating a motor vehicle while under the influence.State of Rhode Island v. Joseph Sousa T21-0006 (April 28, 2021).pdf
Appeals Panel
04/30/2019
State of Rhode Island v. J.C., No. T18-0008 (April 30, 2019)
Constructive Possession
Defendant appealed a trial magistrate’s decision sustaining a violation of G.L. 1956 § 21-28-4.01(c)(1) (possession of marijuana, 1 ounce or less, 18 years or older). While a state trooper was conducting a traffic stop, Defendant admitted to possessing marijuana, and then Defendant handed the marijuana to the state trooper. At trial, the state trooper testified as to Defendant’s admission as well as to the results of field testing that he had performed. Also, the state presented a forensic scientist for the Rhode Island Department of Health as an expert witness, who testified as to the results of three tests on the substance that Defendant handed to the state trooper. All three tests yielded positive results for marijuana. On appeal, Defendant argued that the state failed to prove, by clear and convincing evidence, that the substance Defendant handed to the state trooper was marijuana.
Here, the Appeals Panel held that the trial magistrate’s decision was supported by legally competent evidence because the record was filled with evidence from which the trial magistrate could form a firm belief that the substance was in fact marijuana. The Panel explicitly declined to rule on “whether the NARK II field test, standing alone, [may be] sufficient to prove that [a] substance is marijuana.” Instead, the Panel relied on the totality of the evidence. First, the state trooper testified that Defendant admitted to possessing marijuana. Second, the state trooper conducted a field test on the substance which yielded a positive result for marijuana. Third, and most importantly, expert scientific testimony supported the trial magistrate’s conclusion that the substance was marijuana. Accordingly, the Appeals Panel affirmed the trial magistrate’s decision.State of Rhode Island v. J.C., No. T18-0008 (April 30, 2019).pdf
Appeals Panel
04/30/2019
State of Rhode Island v. J.C., No. T18-0008 (April 30, 2019)
Medical Marijuana Defense
Defendant appealed a trial magistrate’s decision sustaining a violation of G.L. 1956 § 21-28-4.01(c)(1) (possession of marijuana, 1 ounce or less, 18 years or older). While a state trooper was conducting a traffic stop, Defendant admitted to possessing marijuana. At trial, Defendant attempted to introduce “the form that the doctor has to sign to give the okay for [a medical marijuana] card” (the form). Defendant intended to use the form to prove that he was a qualifying patient under § 21-28.6-8, an affirmative defense to the charged violation. But the trial magistrate believed that the form was hearsay, so the form was only admitted into evidence for the limited purpose of showing that Defendant had applied for a medical marijuana card. Although Defendant introduced evidence that he had obtained a valid medical marijuana card after the date of the stop, the trial magistrate concluded that Defendant was not a qualifying patient under the affirmative defense statute.
On appeal, Defendant argued that the trial magistrate erred in concluding that Defendant was not a qualifying patient under § 21-28.6-8. Under the affirmative defense statute, “a qualifying patient may assert the medical purpose for using marijuana as a defense to any prosecution involving marijuana.” A person asserting this defense must show that: (1) a physician completed a full assessment; (2) a bona fide practitioner-patient relationship existed; and (3) the practitioner determined that the benefits of the medical marijuana were likely to outweigh the risks. There is no requirement that the person prove that he or she had a valid medical marijuana card at the time of the incident.
Here, Defendant failed to meet the burden of showing the three elements of the affirmative defense statute. Although Defendant attempted to enter the form into evidence to show these three elements, the form was only admitted for a limited purpose, and, therefore, the form did not establish that Defendant was a qualifying patient under the statute. As such, the Appeals Panel held that the trial magistrate’s decision was not clearly erroneous because Defendant failed to satisfy his burden under § 21-28.6-8 since the contents of the form were not admitted into evidence. Accordingly, the Appeals Panel affirmed the trial magistrate’s decision.
State of Rhode Island v. J.C., No. T18-0008 (April 30, 2019).pdf
Appeals Panel
09/10/2019
State of Rhode Island v. J.D. T19-0012 (September 10, 2019)
Default Judgment
Defendant appealed a trial magistrate’s decision sustaining a violation of G.L. 1956 § 21-28-4.01(c)(1) (possession of marijuana, 1 ounce or less, 18 years or older). Subsequent to a citation being issued, Defendant failed to appear for the scheduled hearing on time. Thus, the trial magistrate entered a default judgment. Thereafter, Defendant moved to vacate the default judgment, but the trial magistrate sustained the default judgment against Defendant. On appeal, Defendant argued that the trial magistrate’s decision to deny the motion to vacate was clearly erroneous because Defendant was only late due to her responsibilities as her mother’s caretaker.
Rhode Island Traffic Tribunal Rule of Procedure 20(a) provides that a court may relieve a party from a judgment for excusable neglect. To establish excusable neglect, a party must “generally show that the circumstances that caused the party to miss a deadline were out of that party or counsel’s control.” See Santos v. D. Laikos, Inc., 139 A.3d 394, 399 (R.I. 1999) (quoting Boranian v. Richer, 983 A.2d 834, 840 (R.I. 2009)). Here, the Appeals Panel determined that Defendant did not establish excusable neglect because the circumstances that caused Defendant to miss the hearing were within Defendant’s control. As such, the Appeals Panel held that the trial magistrate’s decision was not clearly erroneous. Accordingly, the Appeals Panel affirmed the trial magistrate’s decision.
State of Rhode Island v. J.D. T19-0012 (September 10, 2019).pdf
Appeals Panel
02/12/2018
State of Rhode Island v. M.L., No. T16-0023 (February 12, 2018)
Probable Cause
Defendant appealed the decision of the Trial Judge sustaining a charged violation of R.I. Gen. Laws 1956 § 21-28-4.01 (Possession of Marijuana). Defendant argued that the search of her car, in which the citing officer found the marijuana, was illegal because the officer did not have probable cause to conduct the search. The citing officer cited two facts to support a finding of probable cause: (1) an odor of marijuana emanating from the car, and (2) his belief that the Defendant’s boyfriend, who was with her, was involved in a breaking and entering into a nearby maintenance shed where he believed that marijuana had been smoked. The Appeals Panel noted, however, that the officer had not testified to having any experience identifying the odor of marijuana, and so the officer was testifying as a lay witness, making his testimony about the odor of marijuana unusable as support for probable cause. The Appeals Panel further noted that the officer’s testimony about Defendant’s boyfriend potentially being involved in the breaking and entering was not enough to support a finding of probable cause to search her vehicle. As a result, the Appeals Panel found that the evidence presented at trial was insufficient to support the Trial Judge’s finding of probable cause for the officer to search Defendant’s vehicle. Accordingly, Defendant’s appeal was granted and the charged violations were dismissed.
State of Rhode Island v. M.L., No. T16-0023 (February 12, 2018).pdf
Appeals Panel
08/22/2017
State of Rhode Island v. L.F., No. T16-0021 (August 22, 2017)
Discovery
The Providence Police Department appealed the trial judge’s decision dismissing Defendant’s charged violation of G.L. 1956 § 21-28-4.01(c)(iii) (possession of marijuana, one ounce or less, 18 years or older). At a scheduled trial date Defendant sought a continuance to request a police report. The trial judge granted the continuance and set a new trial date. In the interim, the Defendant, through his attorney, mailed a discovery request to the Providence Police Department and received no response. On the new trial date, after finding that the Providence Police Department had enough time to supply an answer to the discovery request and failed to so, the trial judge dismissed the charges pursuant to Traffic Tribunal Rule of Procedure 11. The Appeals Panel noted that Rule 11(b) “requires that the court issue an order for discovery.” Because there was no record of any such order issued by the court, let alone a Motion to Compel filed and granted by the court, the Appeals Panel concluded that there was no violation of Rule 11, making dismissal by the trial judge premature. Accordingly, the Appeals Panel granted The Providence Department’s appeal and remanded the case for trial.
State of Rhode Island v. L.F., No. T16-0021 (August 22, 2017).pdf
Appeals Panel
08/22/2017
State of Rhode Island v. L.F., No. T16-0021 (August 22, 2017)
Discovery
The Providence Police Department appealed the trial judge’s decision dismissing Defendant’s charged violation of G.L. 1956 § 21-28-4.01(c)(iii) (possession of marijuana, one ounce or less, 18 years or older) based upon an alleged discovery violation. The Defendant, through his attorney, had mailed a discovery request to the Providence Police Department. The Appeals Panel noted that, “[u]nder Rhode Island Traffic Tribunal Rules, service must be made to the proper party to the litigation.” The Appeals Panel reasoned that because the Providence Police Department was not represented by counsel at trial, the Defendant’s discovery request should have been served directly upon the “prosecuting law enforcement officer,” whom it deemed to be the officer who had written the summons. The Appeals Panel also suggested that, because the discovery request was sent by regular mail rather than personally served by hand upon either the prosecuting law enforcement officer or his office, service was not proper under Traffic Tribunal Rule of Procedure 27. The Appeals Panel granted The Providence Department’s appeal and remanded the case for trial.
State of Rhode Island v. L.F., No. T16-0021 (August 22, 2017).pdf
Appeals Panel
02/16/2016
City of Providence v. M.P., C.A. No. T15-0023 (February 16, 2016) (1725)
Constructive Possession
The Defendant appealed the trial judge’s decision sustaining the charged violation of G.L. 1956 § 21-28-4.01(c) (possession of marijuana, one ounce or less, 18 years or older). The Defendant while driving was pulled over by a Providence Police Officer. After discovering the Defendant did not have a valid license, the police officer placed the Defendant in custody and searched the Defendant’s car. The Officer found a glass jar containing suspected marijuana in the car’s center console. The Defendant argued that the evidence did not establish that the Defendant was in possession of marijuana. The Panel noted that “in order to sustain a possession of marijuana violation, the person must have knowingly or intentionally possessed” the marijuana. Additionally, proof of knowledge can be shown through an individual’s actions or statements, which then must lead to an inference that the individual knew of the marijuana. See State v. Kaba, 798 A.2d 383, 391-92 (R.I. 2002). However, “the mere fact that the consignee takes possession of the container would not alone establish guilt of illegal possession or importation of contraband.” Id. The Panel found that the Defendant’s knowledge of the substance was not reflected in the record, and thus the charged violation could not be sustained. The Panel granted the Defendant’s appeal and dismissed the charged violation.
City of Providence v. M.P., C.A. No. T15-0023 (February 16, 2016).pdf
Appeals Panel
02/16/2016
City of Providence v. M.P., C.A. No. T15-0023 (February 16, 2016)
Field Testing
The Defendant appealed the trial judge’s decision sustaining the charged violation of G.L. 1956 § 21-28-4.01(c) (possession of marijuana, one ounce or less, 18 years or older). The Defendant while driving was pulled over by a Providence Police Officer. After discovering the Defendant did not have a valid license, the police officer placed the Defendant in custody and searched the Defendant’s car. The Officer found a glass jar containing suspected marijuana in the car’s center console. The suspected marijuana was tested with the use of a Duquenois-Levine Reagent Field Test by a Providence narcotics detective, but it is unclear from the decision whether there was any testimony about any test results. The Defendant argued that the evidence did not establish that the suspected marijuana was, in fact, marijuana. The Panel agreed with the Defendant, granted the Defendant’s appeal, and dismissed the charged violation.
City of Providence v. M.P., C.A. No. T15-0023 (February 16, 2016).pdf
Appeals Panel
03/30/2015
Town of Richmond v. S. M., C.A. No. T14-0027 (March 30, 2015)
Constructive Possession
The Town of Richmond appealed the trial magistrate’s decision to dismiss the charged violation of R.I.G.L. 1956 § 21-28-4.01(c)(2)(III) (possession of marijuana, one ounce or less, 18 years or older). The Town argued that the facts at trial demonstrated constructive possession of the marijuana found inside a makeup bag in the back seat of a vehicle in which the Defendant had been a back seat passenger. The Panel noted that proof of constructive possession requires a showing that the defendant knew of the presence of the substance and that he or she intended to exercise control over it. Here, the Corporal testified that he did not see anyone handle the bag, the bag was found near the middle of the back seat of the car, and the bag was sealed and opaque. The Panel held that because the Town did not introduce evidence that the Defendant knew what was in the bag, owned the bag, or intended to exercise control over the bag, the trial magistrate properly dismissed the charged violation for lack of proof.
Town of Richmond v. S. M., C.A. No. T14-0027 (March 30, 2015).pdf
Appeals Panel
12/15/2015
Town of North Kingston v. A.C., C.A. No. T15-0004 (December 15, 2015)
Medical Marijuana Defense
The Defendant appealed the trial magistrate’s decision sustaining the charged violation of G.L. 1956 §21-28-4.01 (possession of marijuana, one ounce or less, 18 years or older). The Defendant contended she was denied her right to an evidentiary hearing under §21-28.6-8, which establishes certain affirmative defenses to a charge of possession of marijuana based upon medical use. In order to invoke an evidentiary hearing under §21-28.6-8, an individual must assert the affirmative defense. However, here the Defendant never asserted the affirmative defense and could not raise the issue for the first time on appeal. The Panel denied the Defendant’s appeal.
Town of North Kingston v. A.C., C.A. No. T15-0004 (December 15, 2015).pdf
Appeals Panel
12/15/2015
Town of North Kingston v. A.C., C.A. No. T15-0004 (December 15, 2015)
Constructive Possession
The Defendant appealed the trial magistrate’s decision sustaining the charged violation of G.L. 1956 §21-28-4.01 (possession of marijuana, one ounce or less, 18 years or older). The Defendant, a passenger in a car that was lawfully stopped, contended that the marijuana that was found in her purse was the product of an unlawful search. The Panel held that the Defendant’s Fourth Amendment rights were not violated because the State allows protective pat down searches of passengers and belongings in vehicles that have been lawfully pulled over. See Wyoming v. Houghton, 526 U.S. 295, 304-305 (1999); State v. Soares, 648 A.2d 804 (R.I. 1994). The Panel also noted that the Officer searched the Defendant’s purse only after she admitted that she had a knife in the purse and after she consented to the search of her purse. The Panel further noted that, because the issue was not raised at trial, the Panel therefore lacked the authority to review the issue. The Panel denied the Defendant’s appeal.
Town of North Kingston v. A.C., C.A. No. T15-0004 (December 15, 2015).pdf
Appeals Panel
12/17/2015
Town of North Kingston v. D.W., C.A. No. T15-0003 (December 17, 2015)
Constructive Possession
The Defendant appealed the trial magistrate’s decision sustaining the charged violation of G.L. 1956 §21-28-4.01 (possession of marijuana, one ounce or less, 18 years or older). The Defendant contended he was denied his right to an evidentiary hearing under §21-28.6-8, which establishes certain affirmative defenses to a charge of possession of marijuana based upon medical use, and that the trial magistrate misinterpreted the elements of that defense. Section 21.28.6-8 of the Medical Marijuana Act states when an individual moves for dismissal under the Act, the individual is entitled to an evidentiary hearing to establish that the person has been diagnosed with a medical condition such that “the potential benefits of using marijuana for medical purposes would likely outweigh the health risks for the qualifying patient” and that the defendant “was in possession of a quantity of marijuana that was not more than what is permitted under this chapter to ensure the uninterrupted availability of marijuana for the purpose of alleviating the person’s medical condition or symptoms associated with the medical condition.” The Panel found that the Defendant was given an evidentiary hearing when the trial magistrate determined that the Defendant did not meet the necessary requirements under §21-28.6-8. The Panel, citing the Rhode Island Supreme Court’s decision in State v. DeRobbio, 62 A.3d 1113, 1116 (R.I. 2013), upheld the trail magistrate’s holding that the elements of the affirmative defense were not met because the Defendant did not possess “a registry identification card” issued by the Department of Health, a requirement that cannot be found either in the statute or in the Supreme Court’s decision in DeRobbio. The Panel found the trial magistrate applied the Act correctly and that the decision was based on legally competent evidence. Therefore, the Panel denied the Defendant’s appeal.
Town of North Kingston v. D.W., C.A. No. T15-0003 (December 17, 2015).pdf
Appeals Panel
03/03/2014
State of Rhode Island v. Daniel Delano, C.A. No. T13-0055 Possession of Marijuana
Constructive Possession
Defendant appealed the trial magistrate’s decision to sustain the charged violation of G.L. 1956 § 21-28-4.01(c), “Possession of marijuana, one ounce or less, 18 years or older.” Defendant was charged after the Trooper found a glass jar containing a bag of marijuana “resting on the door pocket of the driver’s side in ‘plain view’” in the vehicle operated by defendant. Defendant argued that he could not be found to be in constructive possession of the evidence because it did not belong to him and he did not know it was in the vehicle, which belonged to his girlfriend. The Panel explained that to be in possession of a controlled substance an individual must have “intentional control of (the) designated (substance) with knowledge of its nature.” State v. Gilman, 291 A.2d 425, 430 (R.I. 1972). The Panel then explained that proving these two elements can be inferred from a totality of the circumstances. The Panel explained it was proper for the trial magistrate to infer that the defendant knew the substance to be marijuana because he recognized it upon sight and because it was located in a car belonging to a person with whom he had a close relationship, his girlfriend. Next, the Panel explained it was proper for the trial magistrate to infer that the defendant had intentional control of the evidence because of his close proximity to it in the vehicle. Accordingly, the Panel held that the trial magistrate properly inferred both elements of constructive possession and sustained the charged violation.
State of Rhode Island v. Daniel Delano, C.A. No. T13-0055 (March 3, 2014).pdf