Suppose the trial court, over the defendant’s objection, instructs the jury on a theory of a crime that is not supported by the evidence. Is the defendant entitled to automatic reversal on appeal? Or, alternatively, must the appellate court evaluate whether the erroneous instruction prejudiced the defendant? The North Carolina Supreme Court answered these questions in State v. Malachi, ___ N.C. ___ (2018), published last Friday, and applied its answer in State v. Fowler, ___ N.C. ___ (2018), decided the same day.
Tag Archives: constructive possession
The court of appeals just reversed a defendant’s conviction for possession of a firearm by a convicted felon. It’s a case with interesting facts that raises questions about whether the owner or the driver of a vehicle is responsible for its contents.
State v. Bailey began when two Roxboro officers heard several gunshots at an apartment complex. Responding to the scene, one of the officers saw a car leaving the area. The officer stopped the car. The defendant was in the passenger seat, and his girlfriend was driving. The officer asked whether there were any weapons in the car, and the defendant said that there was a gun in the backseat. The gun turned out to be an AK-47 semiautomatic rifle. It was warm, as if it had recently been fired.
Additional relevant facts include the following:
- “[T]he rifle was registered to” the defendant’s girlfriend. As an aside, although this statement may reflect the trial testimony, North Carolina does not have a registry for long guns, so I am not sure exactly what it means.
- The car was titled in the defendant’s name. However, the defendant testified at trial that although he had helped buy the car, his girlfriend used and controlled it.
- A shell casing that was compatible with the rifle was found in the apartment complex.
- The defendant testified, and denied possessing or firing the rifle. He claimed that he and his girlfriend left the complex upon hearing gunshots.
- A gunshot residue test performed on the defendant was inconclusive.
- The defendant’s fingerprints were not found on the rifle.
The defendant was charged with, and convicted of, possession of a firearm by a convicted felon, but the court of appeals ruled that the State’s evidence was insufficient to support the conviction.
It reasoned that the defendant was not in actual possession of the gun, so the State needed to prove constructive possession. Further, because the defendant was not in sole control of the car, the State needed to offer “other incriminating circumstances” beyond the defendant’s presence there. And the court found no such circumstances, noting the lack of physical evidence tying the defendant to the gun and concluding that the defendant’s knowledge of the gun’s presence was not enough to render him in possession of it.
The court’s conclusion is in line with State v. Alston, 131 N.C. App. 514 (1998), a similar case in which officers found a gun in a car with a female driver and a male passenger. The gun in that case was registered to the driver, the car was not registered to either occupant, and the court of appeals found that there was insufficient evidence that the passenger was more than merely present alongside the gun.
On the other hand, recall State v. Mitchell, __ N.C. App. __, 735 S.E.2d 438 (2012), a case I blogged about here. In that case, the court of appeals affirmed a male driver’s conviction for possessing a gun found in the female passenger’s purse inside the glove compartment of the vehicle.
All of these are close cases, and reasonable minds might differ about which set of facts is the strongest for the State. In each case, the court of appeals emphasized that the driver of a vehicle controls the vehicle and is responsible for its contents. In Bailey, though, the registered owner of the vehicle was inside the car, and one could argue that in that setting, ultimate authority rests with the owner. In drug cases, the court has indicated that ownership of a vehicle provides a measure of control. See, e.g., State v. Hudson, 206 N.C. App. 482 (2010) (stating that “[i]n car cases . . . ownership [is] sufficient” to create an inference of constructive possession and observing that “courts in this State have held consistently” that both drivers and owners of vehicles have the power to control the vehicles’ contents). And in the context of standing to object to an allegedly unlawful search of a vehicle, ownership of a vehicle is generally sufficient to confer standing. Cf. Rakas v. Illinois, 439 U.S. 128 (1978) (ruling that defendants lacked standing because they were “passengers occupying a car which they neither owned nor leased”). In fact, ownership may be more significant than who is driving in the Fourth Amendment context. Cf. State v. Hodges, 195 N.C. App. 390 (2009) (holding that the driver of a car lacked standing to object to a search because he “claimed no ownership interest in the vehicle” and deferred to the passenger regarding authority to search the vehicle).
The court’s opinion in Bailey was unanimous, so we’ll have to wait and see whether the State chooses to seek further review, and if so, whether the supreme court is interested in the issue.
May a man be held criminally responsible for the contents of his girlfriend’s purse? Yes, on the facts of State v. Mitchell, the court of appeals ruled yesterday.
In Mitchell, an officer stopped the defendant for speeding. The officer ordered the defendant and his girlfriend out of the car. Subsequent events, not highly relevant here, gave the officer probable cause to search the vehicle for drugs. The defendant then stated that there was a gun in the glove compartment. Indeed, the officer found a handgun in a purse in the glove compartment, and also found marijuana in the trunk. Another officer obtained consent to search the defendant’s person and found a scale and over $2,000 in cash.
The defendant was charged with, inter alia, possession of a firearm by a felon, and he was convicted. On appeal, he contended that his trial lawyer should have moved to dismiss the felon in possession charge. The court of appeals ruled that such a motion would have been fruitless because there was sufficient evidence that the defendant constructively possessed the gun.
The court based its ruling on the premise that the driver of a vehicle “has the power to control the contents of the car.” State v. Best, __ N.C. App. __, 713 S.E.2d 556 (2011). The court noted that the defendant was aware of the gun’s presence, given that he advised the officer about it. And the court observed that there was no evidence that the gun was registered to the girlfriend, notwithstanding her testimony at trial that the gun was hers. The court therefore distinguished State v. Alston, 131 N.C. App. 514 (1998) (insufficient evidence of constructive possession where a gun, registered to the defendant’s wife, was found on the center console of a vehicle; the defendant was the front-seat passenger and his wife was the driver).
Obviously, there are times when a man should be held responsible for the contents of a woman’s purse, like when the man instructs the woman to hide his contraband in the purse. See, e.g., United States v. Mokol, 646 F.3d 479 (7th Cir. 2011) (“[T]he Government’s case included evidence that would support a conclusion that [the defendant] was a felon in possession through constructive possession [based on] the handgun [his girlfriend] testified to carrying in her purse at [the defendant’s] behest.”); State v. Jones, 45 P.3d 1062 (Wash. 2002) (“[The defendant] had constructive possession of the purse because he exercised control over his car and the contents therein, he stored items in the purse, and he admitted that the gun in the purse belonged to him.”).
On the other hand, if a man isn’t aware of the contents of a woman’s purse, he clearly isn’t responsible for the contents. See, e.g., State v. Daniels, 234 P.3d 976 (Or. 2010) (insufficient evidence that the defendant constructively possessed drugs in girlfriend’s bag, even though the bag was in his bedroom, where there was no evidence that he knew what we in the bag); United States v. Houston, 364 F.3d 243 (5th Cir. 2004) (insufficient evidence that the defendant constructively possessed a pistol in his wife’s purse where “[t]he gun was not in plain view, and [the wife, not the defendant] disclosed the location of the gun [to police]”).
Mitchell is interesting because it is between the two extremes. The defendant was clearly aware of the gun. But the state presented no direct evidence that the gun actually belonged to the defendant and was merely stored in the purse at his request. Of course, human experience suggests that the latter scenario is entirely possible, and the rather hard line taken by the court of appeals on the constructive possession issue may reflect the judges’ natural skepticism about the true ownership of the gun.
The last batch of opinions from the court of appeals included a really interesting constructive possession case.The facts of State v. Slaughter, __ N.C. App. __ (2011), are as follows. Officers executed a search warrant at a mobile home. The defendant did not live in the home but was present at the time of the search. When the police entered the residence, they found the defendant and two other men in a bedroom. In the bedroom and an adjoining bathroom, the officers found “three handguns, digital scales, a lockbox, a box of plastic Ziploc-style bags, a large Ziploc-style bag containing marijuana packed in smaller bags, blunt wraps, a grinder, a cigar tube, ‘some tore up parts of a cigar that ha[d] been used to roll a marijuana cigarette,’ a knife, a ledger, $7,000.00 in cash in the bathroom sink, $7,182.00 in cash from elsewhere in the bathroom, and $24,500.00 in a white bag in the bedroom.”
The defendant was charged with various drug-related offenses and was convicted of PWISD marijuana and possession of drug paraphernalia. On appeal, the defendant argued that there was insufficient evidence to support the convictions, because there was insufficient evidence that he constructively possessed the marijuana and the paraphernalia. The majority began by acknowledging that the “defendant did not have exclusive control over the place where the contraband was found. In addition, there was no evidence that he owned any other items found in proximity to the contraband, that he was the only person who could have placed the contraband in the positions where it was found, that he acted nervously in front of law enforcement personnel, that he resided in or regularly visited the premises where the contraband was found, or that he possessed a large amount of cash on his person.” Nonetheless, because he “was in a [small] room surrounded by bags of marijuana, marijuana residue, stacks of cash, bags of cash, handguns, blunts, rolling papers, a grinder, and packaging paraphernalia such as plastic baggies and scales,” the majority sustained the conviction. It determined that the state’s evidence of “proximity to and knowledge of the contraband” was sufficient to establish constructive possession under precedents such as State v. Miller, 363 N.C. 96 (2009).
The dissenting judge viewed the evidence as showing nothing more than the defendant’s presence, which, under cases such as State v. James, 81 N.C. App. 91 (1986), is insufficient to establish constructive possession. The dissenter acknowledged that the defendant was likely aware of the marijuana and other items in the room, but argued that such awareness, absent other evidence, does not show any intention or ability to control the contraband, which is a requirement of possession.
Given the split decision in the state’s favor, this case seems certain to be reviewed by our supreme court. So I’ll refrain from commenting on it extensively, and instead will pose a question in the hopes of eliciting readers’ thoughts: are vehicle cases such as Maryland v. Pringle, 540 U.S. 366 (2003) (officers who found drugs and cash in a car had probable cause to arrest all occupants; it was “an entirely reasonable inference . . . that any or all . . . of the occupants had knowledge of, and exercised dominion and control over” the drugs; the fact that they were together in a small space suggested a common enterprise), apposite? Pringle wasn’t cited in either opinion, perhaps suggesting that the court of appeals thought not.
One of the most frequently litigated issues in North Carolina drug cases is constructive possession. Jeff wrote about one case (here) over a year ago. My research shows no less than eleven published cases in the last two years (click here for a full case listing in my online Criminal Case compendium), including one earlier this month by the North Carolina Court of Appeals in State v. Terry. Because the issue arises with such frequency, I’ll take this opportunity to set out the relevant law.
Possession may be actual or constructive. A defendant has actual possession of contraband if it is on his or her person, the defendant is aware of its presence, and either alone or with others has the power and intent to control its disposition or use. State v. Loftis, 185 N.C. App. 190 (2007); State v. Reid, 151 N.C. App. 420 (2002).
Constructive possession exists when the defendant, while not having actual possession, has the intent and capability to maintain control and dominion over the contraband. State v. Miller, 363 N.C. 96 (2009); State v. Matias, 354 N.C. 549 (2001). The defendant may have the power to control either alone or jointly with others. Miller, 363 N.C. 96. When a defendant has exclusive possession of the place where or item in which the contraband is found, such as a home or a vehicle, this ordinarily is sufficient to establish the requisite intent and capability to maintain control and dominion over the contraband required for constructive possession. State v. Butler, 356 N.C. 141 (2002); Matias, 354 N.C. 549. Thus, if drugs are found in a closet in the defendant’s home and the defendant is the sole resident of the home, this will constitute sufficient evidence of constructive possession to take the issue to the jury.
Many times, however, contraband is found in a place over which the defendant does not have exclusive possession. For example, drugs may be found in a vehicle driven by one person and carrying several others as passengers. To establish constructive possession, it is not necessary to show that a defendant has exclusive control of the premises. State v. McLaurin, 320 N.C. 143 (1987). However, when the defendant does not have exclusive possession of the place where or item in which the contraband is found, the State must show other incriminating circumstances to establish sufficient evidence of constructive possession. Miller, 363 N.C. 96 (other incriminating circumstances shown); McLaurin, 320 N.C. 143 (insufficient evidence of constructive possession when drug paraphernalia was found in a house over which the defendant had non-exclusive possession and the State offered no incriminating evidence linking her to the paraphernalia).
The determination of whether sufficient incriminating circumstances exist to support a finding of constructive possession is fact-specific, Miller, 363 N.C. 96; the courts consider the totality of the circumstances and no one factor controls. State v. McBride, 173 N.C. App. 101 (2005). Among the factors considered by the courts are:
- The defendant’s proximity or lack thereof to the contraband. Compare Miller, 363 N.C. 96 (evidence was sufficient to establish constructive possession when, among other things, cocaine was found within the defendant’s reach), with State v. Autry, 101 N.C. App. 245 (1991) (evidence was insufficient when the defendant was found upstairs in a small hallway or landing in the premises; the drugs were found in an upstairs bedroom, with two other people present and the evidence did not place defendant in same room with the cocaine). However, mere presence at a location where drugs are found does not create an inference of constructive possession. State v. Minor, 290 N.C. 68 (1976) (“The most the State has shown is that defendant had been in an area where he could have committed the crimes charged. Beyond that we must sail in a sea of conjecture and surmise. This we are not permitted to do.”); State v. Ferguson, __ N.C. App. __, 694 S.E.2d 470 (2010) (mere presence is insufficient); Autry, 101 N.C. App. 245 (same).
- Whether or not the defendant owned or occupied the location where or had control of the item in which the contraband was found. Compare State v. Fortney, __ N.C. App. __, 687 S.E.2d 518 (2010) (evidence was sufficient with respect to drugs found in a motorcycle carry bag when, among other things, the defendant borrowed the motorcycle from the owner and was driving it), with State v. Finney, 290 N.C. 755 (1976) (evidence was insufficient when, among other things, although the defendant leased an apartment where marijuana was found, the defendant had not been in the apartment for forty-four days and there was evidence that he had sublet it to another person who was living there and that person admitted sole possession of the marijuana).
- The defendant’s opportunity or lack thereof to dispose of or place the contraband in the location where it was found. Compare Butler, 356 N.C. 141 (evidence was sufficient when, among other things, a cab driver testified that the defendant was the only person who had been in a position to place a package containing drugs under the drivers’ seat), with State v. Biber, __ N.C. App. __, 698 S.E. 2d 476 (2010) (evidence was insufficient when, among other things, there was no evidence that the defendant was ever in a position to secrete the contraband in a motel bathroom light fixture).
- Whether or not the defendant’s personal items were found at the location where the contraband was located. Compare Miller, 363 N.C. 96 (evidence was sufficient when, among other things, the defendant’s birth certificate and state-issued identification card were found in the bedroom where cocaine was discovered), with State v. Moore, 162 N.C. App. 268 (2007) (evidence was insufficient when, among other things, five individuals, including the defendant, were found in or near a mobile home containing drugs; the home was owned by someone else and officers did not find any documents or other items tying the defendant to the residence).
- Whether or not the defendant fled or engaged in other suspicious behavior. Compare State v. Hudson, __ N.C. App. __, 696 S.E.2d 577 (2010) (evidence was sufficient when, among other things, the defendant acted suspiciously when his truck was stopped by an officer; he exited with his back to the officer and hands up, unusual activity under the circumstances; his hand shook when he handed over his information; he was sweating despite cold weather; and an officer could see his carotid artery pulsing), with Ferguson, __ N.C. App. __, 694 S.E.2d 470 (evidence was insufficient when, among other things, it did not show that the defendant behaved suspiciously).
- Whether or not the defendant engaged in drug activity or was impaired by drugs. Compare McBride, 173 N.C. App. 101 (evidence was sufficient when, among other things, officers, who were responding to a call about drug activity, approached the motel in question and observed what appeared to be a drug transaction between defendant and another person; the transaction occurred outside of the motel room in question; the defendant smelled of crack cocaine and had the characteristics of someone under the influence of the drug), with State v. Balsom, 17 N.C. App. 655 (1973) (evidence was insufficient when, among other things, there was no evidence that the defendants were under the influence or users of narcotics).