Woman convicted for letting 18-month-old toddler smoke pot

By CLAIR JOHNSON
Of The Gazette Staff

A federal judge this week convicted a Gardiner woman who encouraged her toddler daughter to smoke marijuana.

U.S. District Judge Richard Cebull Wednesday found Jessica Durham, 23, guilty of distributing marijuana to a person under the age of 18 years.

Durham will be sentenced April 20 by Senior U.S. District Judge Jack Shanstrom. She faces up to 10 years in prison and a $250,000 fine.

Crime photographed

Cebull´s ruling comes after a one-day bench trial on Oct. 27 in which a key prosecution witness described how she photographed Durham holding a water pipe while her 18-month-old daughter put her mouth over the top. The water pipe, called a bong, allows smoke to be drawn through water into a glass tube and inhaled.

The witness, Brandi Nichols of Gardiner, turned Durham in to authorities along with the photographs. The photographs were entered as evidence.

Durham did not testify at her trial, and the defense called no witnesses.

Defense attorneys Robin Hammond and Zachary Cain argued that there was no proof that marijuana was in the bong. And they suggested that the photographs could be of Durham taking away the bong rather than offering it to her toddler.

Further, the attorneys said Nichols, an admitted marijuana user with a felony drug conviction, was not a credible witness. And they questioned whether the case was distribution within the meaning of the statute.

Cebull ruled that distribution does not need to be for pay or profit. The 9th U.S. Circuit Court of Appeals has held that sharing of drugs constituted distribution, his order said.

Witness credible

Cebull also found that Nichols´ testimony as a witness was credible.

"Brandi Nichols stated she saw (Durham) light and give a water bong to her daughter … to inhale. Brandi testified that she smoked from the bong as well and that from her knowledge and experience with marijuana, the bong contained marijuana,´´ the judge said.

Nichols testified at trial that she and Durham, whom she had helped move to Montana in the fall of 2003, had smoked marijuana "a good handful´´ of times at Durham´s residence in Gardiner.

In early February 2004, Durham, who was estranged from her husband, was moving to Washington with her mother. Nichols testified that she was helping Durham pack on Feb. 3 when she entered Durham´s residence, hugged the toddler and sat on the couch. Next to the couch was a 2-foot-tall bong.

Nichols said the toddler ran for the bong and that she tried to wave her away. "She threw the only fit I´ve ever seen her throw,´´ she said.

Durham told Nichols that her daughter wanted the bong and proceeded to light the residue in the pipe. Nichols said Durham sucked marijuana smoke up through the water into the pipe and gave the bong to her daughter. "She (the toddler) put her mouth on it and took a big hit,´´ Nichols said.

Nichols then took a turn inhaling from the pipe, Durham smoked again and gave her baby the pipe again. Nichols testified that she got a buzz off the smoke, went outside and got sick. "I was freaking out,´´ she testified.

Nichols went home upset at what she saw and told her boyfriend what had happened. He told her to go back and take photographs because "nobody would believe us,´´ Nichols said.

Nichols returned with a digital camera. Durham, she said, suggested it would be "cool´´ if they had pictures of the baby smoking a bong and that she wanted to send a picture to High Times, a marijuana magazine.

At trial, Assistant U.S. Attorney Marcia Hurd displayed a series of pictures taken by Nichols. One showed a little girl in a pink Winnie the Pooh shirt and pants and Tigger slippers holding onto the bong with her hand and face close to the top of the pipe. Durham was seated on a couch smiling and holding the pipe with one hand.

Nichols testified that Durham told her she let her child smoke marijuana because she wasn´t eating or sleeping enough.

Nichols said that after Durham left, she called her former state probation officer, whom she trusted, told her what happened and e-mailed her the photographs. She also reported the incident to the Livingston Police Department.

Law enforcement officers arrested Durham in Butte, where her vehicle had broken down, and placed the toddler in foster care. The child has since been placed with relatives.

A test of the toddler´s urine seven days after she allegedly smoked marijuana was negative for the drug, witnesses said.

Denver Cobb, a detective with the Missouri River Drug Task Force in Park County, testified that in an interview after her arrest, Durham initially denied letting her baby smoke marijuana. Then, Durham told him that she let her baby "take no more than five hits,´´ he said.

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