FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 274
Go to Volume 13 Table of Contents  -  Go to Chapter 274 Table of Contents

274.4 Multiple Counts Or Offenses: Multiple Possessions

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 274

    274.4.1    Multiple Counts Or Offenses: Whether Multiple Possessions May Result In Multiple Convictions

    A.     Simultaneous Possession Of Multiple Units.  Absent specific legislative intent to the contrary, the propriety of multiple convictions for simultaneous possession of more than one item of contraband may turn on whether separate statutes or statutory subdivisions were violated. For example, in California it has been held that the defendant may only be convicted of one offense of illegal possession of contraband even though he possessed multiple items. (People v. Harris (CA 1977) 71 CA3d 959, 969-71 [139 CR 778] [multiple convictions impermissible for simultaneous possession of various articles with serial numbers removed]; People v. Schroeder (CA 1968) 264 CA2d 217, 227-28 [70 CR 491] [defendant cannot be multiply convicted of simultaneous possession of a substance or its derivatives proscribed in only one of the subdivisions of the Code]; People v. Puppilo (CA 1929) 100 CA 559, 562-66 [280 P 545]; see also U.S. v. Berry (5th Cir. 1992) 977 F2d 915, 919-20 [multiple weapon possession convictions improper absent evidence that defendant "obtained the guns at different times or stored them in separate places"].)

    However, where the possession of items of contraband is proscribed by different statutes it has been held permissible to convict of two offenses. (See e.g., People v. Winchell (CA 1967) 248 CA2d 580, 587 [56 CR 782] [possession of burglar tools and possession of concealable firearms]; see also Schroeder, 264 CA2d at 227-28 [separate convictions permissible for possession of contraband prohibited by different subdivisions of the statute].) The same rationale has been applied to possession of illegal weapons. (U.S. v. Berry (5th Cir. 192) 977 F2d 915, 919-20 [multiple weapon possession convictions improper absent evidence that defendant "obtained the guns at different times or stored them in separate places"].)

    B.     Multiple Possession Of The Same Item.  It has been held that possessing the same illegal weapon on different occasions may only be prosecuted as a single offense. (See U.S. v. Horodner (9th Cir. 1993) 993 F2d 191, 193-94 [possession of the same shotgun twice in 10 days -- once when purchased and once when picked up from a repair shop -- constituted only a single offense].)

See generally, FORECITE National™ 305.13.10 [Multiple Counts: Propriety Of Instruction On Multiple Counts Based On Single Act Or Course Of Conduct].

PRACTICE NOTE: Separate convictions may be permissible if the defendant possesses contraband prohibited by different statutes. (See e.g., People v. Schroeder (CA 1968) 264 CA2d 217, 227-28 [70 CR 491].) However, if the defendant simultaneously possesses two different substances such possession has been held to constitute only a single offense where the substances "have been mechanically or chemically combined in such manner that at the time of possession it is not possible, in any practical sense, to separate them." (State v. Owens (MD 1990) 579 A2d 766, 768 [marijuana combined with PCP constitutes one violation]; but see CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT OF COLUMBIA 4.28, comment [Possession Of A Controlled Substance] p. 318 (Bar Association of the District of Columbia, 4th ed. 1993) [the possession of a mixture of two controlled substances constitutes two separate offenses]; see also Corbin v. U.S. (DC 1984) 481 A2d 1301, 1302.)

    Simultaneous possession of different substances in a single package constitutes multiple offenses when the substances are readily separated. (Cunningham v. State (MD 1989) 567 A2d 126, 129 [15 capsules of cocaine and 5 envelopes of heroin held together constitute a basis for two separate offenses].)

    However, the evidence must show that the defendant possessed at least one controlled substance. (See FORECITE National™ 88.3.2.6 [Quantity: Individually Packaged Drugs Must Be Separately Tested].)

See generally, FORECITE National™ 305.13.10 [Multiple Counts: Propriety Of Instruction On Multiple Counts Based On Single Act Or Course Of Conduct].

FORECITE National™
Instructions And Issues Omitted By The Pattern Instructions
Copyright & Publication Information

 VOLUME 13 - CHAPTER 274

PRACTICE NOTE: Possession of multiple stolen credit cards may be charged as multiple offenses. (See e.g., State v. Douglas (WA 1988) 751 P2d 311, 312.)

See generally, FORECITE National™ 305.13.10 [Multiple Counts: Propriety Of Instruction On Multiple Counts Based On Single Act Or Course Of Conduct].