Opinion
No. 25667
Decided June 18, 1973.
Defendant was convicted of conspiracy to possess narcotic drugs and appealed.
Reversed
1. CONSPIRACY — Possession of Narcotic Drugs — Evidence — Same — Insufficient — Reversal. Where the only evidence of any conspiracy to possess narcotic drugs on the part of the defendant was the same evidence the jury found to be insufficient to support a guilty verdict on the substantive count of possession of narcotic drugs, held, under the circumstances, defendant's conviction on the conspiracy count must be reversed.
Appeal from the District Court of the City and County of Denver, Honorable Joseph Lilly, Judge.
John P. Moore, Attorney General, John E. Bush, Deputy, Jack E. Hanthorn, Assistant, for plaintiff-appellee.
Rollie R. Rogers, State Public Defender, J. D. MacFarlane, Chief Deputy, T. Michael Dutton, Deputy, for defendant-appellant.
The defendant was charged in four counts with (1) possession of narcotic drugs; (2) conspiracy to possess narcotic drugs; (3) possession of dangerous drugs; and (4) conspiracy to possess dangerous drugs. A jury found the defendant not guilty on counts 1, 3 and 4 and guilty on count 2, conspiracy to possess narcotic drugs.
On this appeal, the defendant argues that the trial court erred in failing to grant his motion for judgment of acquittal on count 2 since the same evidence under which the jury acquitted the defendant on the substantive charge of possession of narcotic drugs was the only evidence before the jury on the related conspiracy charge. The Attorney General has confessed error, agreeing with the defendant that the defendant's conviction on the conspiracy count must be reversed.
[1] After review of the record, we also agree that the only evidence of any conspiracy to possess narcotic drugs on the part of the defendant was the same evidence the jury found to be insufficient to support a guilty verdict on the substantive possession count (1). For this reason, the conspiracy conviction must be reversed. Feltes v. People, 178 Colo. 409, 498 P.2d 1128 (1972); Fagin v. People, 174 Colo. 540, 484 P.2d 1216 (1971); Carter v. People, 169 Colo. 531, 458 P.2d 236 (1969); Petty v. People, 167 Colo. 240, 447 P.2d 217 (1968); and Robles v. People, 160 Colo. 297, 417 P.2d 232 (1966).
The judgment is reversed and the cause remanded with directions to grant the defendant's motion for judgment of acquittal.
MR. CHIEF JUSTICE PRINGLE and MR. JUSTICE ERICKSON do not participate.