Federal Court Recommends Reversing Sexual Assault Sentence Enhancement for Use of Controlled Substance

Gray v. Cash (2016)

by David S. Marshall

Mark Gray and his counsel have persuaded a federal court to recommend that the sentencing enhancement Mr. Gray received at his trial in California state court be reversed. The challenge came in the form of an application for habeas corpus relief. This is a request through which an imprisoned person can ask a federal court to consider whether a state’s detention of that prisoner is valid.

Mr. Gray’s application asserted that the evidence introduced at his trial was insufficient to support the jury’s factual finding that he administered a controlled substance in the commission of the offense of genital penetration with a foreign object. The court agreed and granted Mr. Gray’s application.

Mr. Gray had been arrested after police obtained a warrant to search his house and car. His relationship with his ex-wife had been a rocky one, and she filed several police reports accusing him of various acts of theft and vandalism. During the search, police discovered a VHS tape showing Mr. Gray having sex with his ex-wife while she was sleeping or unconscious. Another VHS tape showed Mr. Gray digitally penetrating her vagina while she was asleep.

At trial, Mr. Gray denied giving his wife sleep medication and stated he possessed Ambien merely to help him sleep. He said he had started video-recording his wife while she was asleep, paused the video to obtain her consent to have sex, and then restarted the recording. He insisted his wife was awake during intercourse, and that video-recording sex was a regular, consensual practice of the couple. However, the jury convicted Mr. Gray of genital penetration with a foreign object through use of controlled substances.

In a California case where a jury finds the defendant guilty of rape, a five-year sentence enhancement may be applied if the jury also finds the defendant administered “a controlled substance.” In Mr. Gray’s case, the jury found he had administered Ambien to his ex-wife, but the drug Ambien is not listed as a controlled substance under the applicable law. And the prosecutor did not introduce any evidence to show that Ambien meets the legal definition of a controlled substance.

In his petition, Mr. Gray argued that there was a complete lack of evidence to support the jury’s finding on the sentence enhancement. Evidence that a substance is a “controlled substance” under the relevant law must be proved by evidence from an expert witness or other similar testimony. Simply presenting the brand or chemical name, he argued, is insufficient.

The federal court found that the prosecutor needed expert testimony to demonstrate that Ambien’s chemical structure included one of the controlled substances listed in the law. Since no such evidence was presented, the court agreed that his five-year sentence enhancement should be reversed.