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THE COURT OF APPEALS OF THE STATE OF ALASKA
BRADLEY SEAN JORDAN, )
) Court of Appeals No. A-3433
Appellant, ) Trial Court No. 3AN-S89-3292CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
) [No. 1168 - October 25, 1991]
Appellee. )
______________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, John Reese, Judge.
Appearances: Rex Lamont Butler, Anchorage,
for Appellant. Kenneth M. Rosenstein,
Assistant Attorney General, Office of Special
Prosecutions and Appeals, Anchorage, and
Charles E. Cole, Attorney General, Juneau,
for Appellee.
Before: Bryner, Chief Judge, Coats and
Mannheimer, Judges.
BRYNER, Chief Judge.
Bradley Sean Jordan appeals his conviction for
misconduct involving a controlled substance in the fourth degree
(possession of cocaine), contending that the trial court erred in
declining to instruct the jury that "possession" of drugs does
not include passing control for purposes of disposal. We
reverse.
In May of 1989, police and paramedics went to an
Anchorage apartment in response to a call for help. They found
Jordan and Dennis Sandland attempting to revive Sandland's wife,
who was suffering from what proved to be a fatal drug overdose.
Shortly after the police arrived, Jordan and Dennis Sandland
slipped out of the apartment, unnoticed. Bystanders outside saw
the two men walk to an adjacent carport. There, Jordan separated
himself momentarily from Sandland, reached into the wheelwell of
a parked car, as if placing something underneath, and then
returned to Sandland. The two men spoke briefly and left the
area on foot.
When the police discovered that Jordan and Sandland had
left the apartment, they searched the neighborhood for the men.
They located Jordan not far away and returned him to the
apartment for questioning. Meanwhile, the bystanders outside the
apartment had informed the police of Jordan's conduct. An
officer checked under the wheelwell of the parked car and found a
packet of cocaine. Jordan was arrested and charged with its
possession.
At trial, Jordan did not testify or call witnesses in
his own defense. He attempted to establish a reasonable doubt by
arguing that the evidence showed only that he had abandoned the
baggie of drugs, an act that Jordan maintained was not, in
itself, sufficient to constitute knowing possession.
In support of his theory of defense, Jordan asked the
trial court to instruct the jury that "possession" means to "have
actual control, care and management of and not a passing control,
fleeting or shadowy in nature." Jordan based his proposed
instruction on Adams v. State, 706 P.2d 1183, 1186 (Alaska App.
1985), and Moreau v. State, 588 P.2d 275, 286 (Alaska 1978).
Both Adams and Moreau recognized that momentary or passing
control of drugs for purposes of disposal does not amount to
unlawful possession.
The trial court rejected Jordan's proposed instruction.
While acknowledging that an instruction on passing control might
be appropriate under some circumstances, the court concluded that
such an instruction was not justified by the evidence in Jordan's
case. The court gave the jury a possession instruction that
omitted reference to the concept of passing control for purposes
of disposal.1
On appeal, Jordan maintains that the trial court erred
in rejecting his proposed instruction. The state, in response,
likens Jordan's passing control theory to an affirmative defense.
Arguing that there must be at least some evidence to support each
element of a defense, see, e.g., Palmer v. State, 770 P.2d 296,
298 (Alaska App. 1989), the state maintains that Jordan did not
meet his burden of providing some evidence that his possession
was passing, or momentary.
The state's characterization of the passing control
issue as an affirmative defense -- one that imposed a burden on
Jordan to produce affirmative evidence -- is not altogether
accurate. Alaska cases have tended to treat the issue of passing
control as intrinsically related to the definition of possession
rather than as a matter of affirmative defense. Thus, for
example, in Moreau v. State, 588 P.2d at 286, the Alaska Supreme
Court quoted with approval the definition of possession adopted
in United States v. Landry, 257 F.2d 425, 431 (7th Cir. 1958)
(footnote omitted):
To "possess" means to have actual
control, care and management of, and not a
passing control, fleeting and shadowy in its
nature.
See also Adams v. State, 706 P.2d at 1186.
That issues of passing control are integrally related
to the definition of possession and are not merely matters of
affirmative defense also seems clear from People v. Mijares, 491
P.2d 1115 (Calif. 1971), another case relied on by the Alaska
Supreme Court in Moreau. In Mijares, the California Supreme
Court found that, even without a defense request, the trial court
had an affirmative duty to instruct the jury that passing control
of drugs for purposes of disposal did not amount to possession.
In reaching this conclusion, the court analogized the question of
passing control to the fundamental issue of whether the defendant
acted knowingly, concluding that "the issue of momentary handling
prior to abandonment . . . goes to the very essence of the
offense." Id. at 1120.
Ultimately, distinguishing the issue of passing control
from an affirmative defense may involve more form than substance.
But the distinction is nonetheless useful. In the context of the
present case, it helps shift the focus away from the somewhat
artificial question of whether Jordan "met his burden" of
producing some evidence to support each element of his defense.
The more relevant inquiry here is whether, under the totality of
the evidence, an instruction on passing control was necessary to
allow the jury to properly decide the issue of Jordan's guilt.
While trial courts traditionally have broad discretion
over requests for particularized jury instructions, the
instructions actually given must, at a minimum, address all
matters necessary to a fair verdict. See Alaska R. Crim. P.
30(b); Stoneking v. State, 800 P.2d 949 (Alaska App. 1990). When
the evidence in a given case could not fairly support an
inference that the defendant's control over drugs -- if
established -- was only temporary and for purposes of
abandonment, then the trial court will have no need to instruct
the jury that temporary control for purposes of abandonment does
not amount to possession.
On the other hand, when a reasonable juror, viewing the
totality of the evidence in the light most favorable to the
defendant, might entertain a reasonable doubt as to whether the
defendant exercised more than passing control for purposes of
disposal, then the court is obligated to instruct that such
control does not amount to possession. Absent such an
instruction, jurors might vote for conviction despite a
reasonable doubt as to whether the defendant exercised the type
of dominion and control that is necessary, under the law, to
constitute possession.
In this case, though Jordan presented no evidence to
establish that he had recently acquired the disputed drugs, the
affirmative evidence presented by the state showed only that
Jordan disposed of a packet of cocaine by placing it in the
wheelwell of a parked car -- an act that the jury might have
construed as an abandonment.2 The state presented no direct
evidence of possession apart from the brief possession
necessarily involved in the act of abandonment. Moreover, at
least some circumstantial evidence suggested that Jordan may have
been in control of the packet of drugs only briefly, for the
purpose of disposing of it. Jordan and Dennis Sandland had just
emerged from Sandland's apartment, where Sandland's wife had
suffered from a drug overdose. The two men were together
immediately before Jordan disposed of the packet of drugs, and
Jordan again joined Sandland, and spoke with him, after disposing
of the packet.
At trial, Jordan's counsel wanted to argue that Jordan
may have received the packet of drugs from either Dennis Sandland
or Sandland's wife, and that he may have been in possession of it
only until he placed it in the wheelwell of the parked car. In
our view, this scenario is fairly inferrable from the totality of
the evidence in the record and is not inherently implausible.
See, e.g., People v. Mijares, 491 P.2d at 1117.
The state nevertheless insists that, under the Alaska
Supreme Court's decision in Moreau v. State, no passing control
instruction was justified in the absence of affirmative evidence
establishing that Jordan had recently acquired possession of the
drugs. The state relies on a passage in Moreau that quotes with
approval from People v. Mijares, 491 P.2d at 1120:
In People v. Mijares, the California
court held that momentary possession for
purposes of disposal did not constitute
possession. The facts of that case reveal
that the person in question, in an attempt to
help an overdosing friend, pulled a
handkerchief containing heroin out of his
friend's pocket and threw it out the window
of the car, before driving his friend to aid.
The court stated:
We emphasize that our decision
in no way insulates from
prosecution under the narcotics
laws those individuals who, fearing
they are about to be apprehended,
remove contraband from their
immediate possession. We leave
intact the rule that from such
conduct "it could be inferred that
defendant at one time exercised
physical dominion" over the
narcotic.
We agree with this analysis, and our
holding does not insulate from prosecution
those who seek to dispose of contraband upon
discovering that the police are approaching.
In such cases, it may be inferred that the
defendant previously had more than momentary
possession.
Moreau v. State, 588 P.2d at 286 (citations omitted).
The thrust of this passage, however, is that antecedent
possession may be inferred from an act of abandonment, not that
it must be. While Moreau and Mijares establish that an act of
abandonment will in itself establish a prima facie case of
knowing possession -- a showing sufficient to withstand a motion
for judgment of acquittal -- nothing in either case suggests
that, without affirmative evidence of recent acquisition, proof
of an act of abandonment must give rise to a mandatory inference
of possession.3
The evidence in the present case showing that Jordan
left a packet of cocaine in the wheelwell of a parked car was
certainly sufficient to support a finding of possession, but that
evidence did not compel such a finding. The only act of
possession actually observed by the state's witnesses was
Jordan's act of abandonment. Because, under the totality of the
circumstances, a reasonable juror could have entertained a
reasonable doubt as to whether Jordan possessed the packet for a
period longer than reasonably necessary to dispose of it,4 an
instruction on the theory of passing control was necessary to
assure a fair verdict. We conclude that the trial court erred in
refusing to give Jordan's proposed instruction.
The conviction is REVERSED.
_______________________________
1. The trial court's instruction on possession read as
follows:
The law recognizes two kinds of
possession: actual possession and
constructive possession. Actual possession
means to have direct physical control, care
and management of a thing.
A person not in actual possession may
have constructive possession of a thing.
Constructive possession means to have the
power to exercise dominion or control over a
thing. This may be done either directly or
through another person or persons.
You may find that the element of
possession as that term is used in these
instructions is present if you find beyond a
reasonable doubt that the defendant had
actual or constructive possession, either
alone or jointly with others.
The language of this instruction is identical to Alaska Pattern
Criminal Instruction 81.900(b)(42), except that it excludes a
paragraph of the pattern instruction addressing the distinction
between joint and sole possession.
2. The passing control doctrine presumes that a
defendant's temporary control over drugs is for the sole purpose
of disposal or abandonment. The doctrine thus has no application
when a person secretes drugs with intent to reassert control over
them at a later time, or as a means of transferring them to
others. In the present case, the jury could certainly have
concluded that Jordan did not intend to abandon the packet of
cocaine when he placed it in the wheelwell of the parked car; had
the jury so found, the passing control doctrine would not have
shielded Jordan. On the other hand, Jordan's conduct was also
capable of being construed as an act of abandonment. Under the
evidence at trial, the decision as to Jordan's intent in placing
the drugs in the wheelwell of the parked car was one for the
jury.
3. The state cites three cases for the proposition that
affirmative evidence of recent acquisition is necessary. The
cases do not support the state's position. In People v. Ballard,
261 Cal. Rptr. 82 (Cal. App. 1989), the defendant was arrested
with drugs in a duffel bag. He claimed that he had recently
taken the drugs away from his wife to prevent her from abusing
them. However, on cross-examination, the defendant acknowledged
that he made no attempt to destroy the drugs after taking them
from his wife. The defendant never claimed that he planned to
destroy or dispose of the drugs, and the circumstances
surrounding the defendant's arrest indicated no such intent.
Finding that the defendant's "possession would presumably have
continued if the police had not arrested him . . . ," the court
in Ballard held an instruction on passing control unnecessary.
People v. Sonleitner, 228 Cal. Rptr. 96 (Cal. App.
1986), involved a defendant who flushed a quantity of cocaine
down a toilet as the police entered his home to serve a search
warrant for drugs. At trial, the defendant denied ever
possessing cocaine or flushing it down the toilet. He accused
the police of lying about his disposal of the drugs. The court
in Sonleitner held a passing control instruction unnecessary
under the circumstances, noting that such an instruction would
have been directly contrary to the defendant's theory of defense.
In Gallegos v. People, 337 P.2d 961 (Colo. 1959), no
issue of passing control was directly presented. A police
officer approached the defendant and another man as they were
exiting a bar. The two men turned and walked back into the bar.
The defendant's companion handed him a package containing
marijuana cigarettes, which the defendant hid behind a machine.
On appeal, the defendant contended, among other things, that the
evidence was insufficient to support his conviction. The court
in Gallegos, however, rejected this argument, indicating that a
reasonable inference from the defendant's conduct was that he had
been in joint possession of the marijuana cigarettes prior to the
approach of the police. The holding in Gallegos is consistent
with Moreau and Mijares, establishing only that an inference of
antecedent possession may arise from an act of abandonment.
4. The question of how long a period can be encompassed in
an act of passing control, or momentary or fleeting possession,
is not a simple one. It would appear that the permissible period
is variable, depending on the time that would be reasonably
necessary, under the totality of the circumstances, to allow for
disposal.
At one end of the spectrum, courts seem to require
little or no evidence of an intent to abandon or dispose of drugs
when the total time of possession is literally momentary. See,
e.g., Moreau v. State, 588 P.2d at 285-86. Under such
circumstances, courts recognize that, regardless of intent to
dispose, to allow possession to be established by momentary
contact "would give the act of touching an unwarranted talismanic
effect." United States v. Santore, 290 F.2d 74, 82 (2d Cir.
1960) (en banc)(Friendly, J., concurring).
On the other end of the spectrum, even relatively
protracted periods of possession have been held to be within the
passing control doctrine when the possessor's ultimate purpose
was to dispose of drugs lawfully and the period of possession was
reasonable to allow a decision on the precise means for disposal.
See, e.g., People v. Cole, 249 Cal. Rptr. 601 (Cal. App. 1988);
but see People v. Ballard, 261 Cal. Rptr. 82 (Cal. App. 1989).
In Adams v. State, we considered a supplemental
instruction that defined passing control to include "only such a
period of time as is reasonably necessary for the possessor to
learn of the nature of the substance and to make a legal
disposition of it . . . ." 706 P.2d at 1185 (emphasis deleted).
Although we found reversible error stemming from the language
that required the disposal to be by lawful means, we did not
otherwise disapprove of the instruction. We noted that the Model
Penal Code, 201(4), states: "Possession is an act, within the
meaning of this section, if the possessor knowingly procured or
received the thing possessed or was aware of his control thereof
for a sufficient period to have been able to terminate his
possession." Id. at 1186.
