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Erb v. State

333 A.2d 709 Court Supreme Court of Delaware. Decision date 1975-02-24 English

Judges Before HERRMANN, C. J., and DUFFY and McNEILLY, JJ.

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p. 709
Jack D. ERB, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.
Supreme Court of Delaware.
Argued Feb. 12, 1975.
Decided Feb. 24, 1975.
Arlen B. Mekler, Assistant Public Defender, Wilmington, for defendant below, appellant.
Jeffrey M. Weiner, Acting State Prosecutor, Wilmington, for plaintiff below, ap-pellee.
Before HERRMANN, C. J., and DUFFY and McNEILLY, JJ.

In this drug and drug-paraphernalia possession case, the defendant was a co-tenant and co-occupier with two others of the apartment in which the contraband was found. By reason of such co-tenancy, the defendant contends that the rebuttable presumption of possession, which attaches to a lone tenant and occupier of residential premises, Marvel v. State, Del.Supr., 290 A.2d 641 (1972), does not apply to him.

We find the defendant’s argument unacceptable. The statutory provision, 16 Del. C. § 4701,[1] applies to multiple tenants and occupiers as well as a single tenant and occupier of the premises in which contraband is found. The Marvel case controls. The defendant failed to carry the burden of rebutting the presumption' of possession under the Marvel rule. Compare Holden v. State, Del.Supr., 305 A.2d 320 (1973).

Affirmed.

* 16 Del.C. § 4701 defines the possession, of which the defendant was found guilty, as including “location in or about the defendant’s person, premises, belongings, vehicle, or otherwise within his reasonable control.”

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