The simultaneous sale of different controlled substances constitutes distinct offenses requiring separate and different proof.
The defendant was indicted for selling heroin and cocaine to an undercover agent in a single simultaneous transaction. The defendant argued that the simultaneous delivery and payment for both controlled substances constituted a single offense, precluding separate charges. The court determines whether the sale of different controlled substances in one transaction constitutes distinct offenses. The court applies the rule that the sale of different controlled substances constitutes distinct offenses requiring separate and different proof because each charge requires proof of the specific identity of the substance sold. The court rejects the defendant's argument and affirms the denial of the habeas challenge to the remaining counts.
572 P.2d at 1245 cited at this page2 citing cases
- Figueroa-beltran Vs. U.S. of Am. (nrap 5), 467 P.3d 615 (Nev. 2020).published Our decision in Muller v. Sheriff, 93 Nev. 686, 687, 572 P.2d 1245, 1245 (1977), involved the unit of prosecution under NRS 453.321, which prohibits the sale of a controlled substance.
- Ruiz-Giel v. Holder, 576 F. App'x 738 (10th Cir. 2014).unpublished See Muller v. Sheriff, Clark Cnty., 93 Nev. 686 , 572 P.2d 1245, 1245 (Nev.1977).
93 Nev. at 687 Distinguishing separate controlled substance sales as distinct offenses1 citing case“distinct offenses requiring separate and different proof,”
- Figueroa-beltran Vs. U.S. of Am. (nrap 5), 467 P.3d 615 (Nev. 2020).published Our decision in Muller v. Sheriff, 93 Nev. 686, 687, 572 P.2d 1245, 1245 (1977), involved the unit of prosecution under NRS 453.321, which prohibits the sale of a controlled substance.
Other citing cases
- Page v. Martinez, No. 4:17-cv-00121 (D. Ariz. Sept. 9, 2019).
v.
Sheriff, Clark County, Nevada
OPINION
Per Curiam:An indictment charged Pierre Andree Muller with two counts of selling heroin (NRS 453.321; NRS 453.161) and one count of selling cocaine (NRS 453.321; NRS 453.171). In a pretrial habeas corpus proceeding, one of the heroin counts was dismissed. Muller has appealed from that portion of the district judge’s order which denied the habeas challenge to the other two counts.
[*687] There is evidence in the transcript of the grand jury proceedings to establish probable cause to believe that on September 28, 1977, Muller sold heroin, a schedule I controlled substance (NRS 453.161), and cocaine, a schedule II controlled substance (NRS 453.171), to an undercover narcotics agent. Both drugs were delivered, and payment for each was received, simultaneously.
Appellant contends that, since the sale of the different controlled substances was consummated simultaneously in one transaction, his conduct does not constitute two separate offenses for which he may be charged. We disagree.
The sale of heroin and the sale of cocaine are distinct offenses requiring separate and different proof. See People v. Edwards, 362 N.E.2d 439 (Ill.App. 1977); People v. Lopez, 337 P.2d 570 (Cal.App. 1959). Here the record shows that “two distinct offenses were [probably] committed since the sale of each controlled substance ‘requires proof of an additional fact which the other does not,’ viz., the particular . . . identity of the controlled substance sold.” State v. Campbell, 549 S.W.2d 952, 955 (Tenn. 1977). See also, State v. Adams, 364 A.2d 1237 (Del.Super.Ct. 1976).
Affirmed.