Drug Case Turns On Legal Definitions

Supreme Court must decide whether you must legally possess a drug to sell it


Can you sell meth without possessing it?

That's the question facing the Arizona Supreme Court on Tuesday in Payson in the case of Enis John Cheramie.

A Tucson cop pulled Cheramie over after a license check revealed two outstanding misdemeanor warrants. Two officers searched the car and found an aerosol can with a false bottom containing two plastic bags filled with 42 grams of methamphetamine -- and $400 to $500 in cash between the cars center console.

They arrested him, popped him in the back of a squad car and set out for the county jail. Somehow or another, he popped out of the squad car.

He was eventually recaptured -- and an escape charge was added to his growing list. Prosecutors charged him with transportation of a dangerous drug for sale, possession of drug paraphernalia and second-degree escape.

However, at his trial the expert slated to testify to drug sales practices never showed up. So the prosecutor at the end of the trial changed the charge to simple possession of a dangerous drug.

The jury convicted Cheramie on all counts. Cheramie appealed.

The appeals court ruled that possessing drugs isn't necessarily the same thing as possessing drugs that you're transporting for sale. So it threw out the conviction on that charge, but upheld all the other charges.

So now this legal head-scratcher has made it to the state Supreme Court, which meets in Payson on Tuesday.

The law does allow prosecutors to convict someone on a "lesser included offense" so long as the lesser offense doesn't include any additional legal "element."

But the appeals court majority ruled that the definition of "possession" for personal use includes the concept of a "useable amount." The legal definition of possession is slightly different for charges related to selling the drug. One appeals court judge dissented, saying the court should apply the common sense idea that you cannot sell a drug without first possessing it.

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