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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| TIMOTHY G. ALEX, | ) |
| ) Court of Appeals No. A-8839 | |
| Appellant, | ) Trial Court No. 3AN-02-11562 Cr |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) [No. 2024 January 13, 2006] |
| ) | |
Appeal from the Superior Court, Third Judi
cial District, Anchorage, Larry D. Card,
Judge.
Appearances: Carmen E. Clark, Law Offices of
Pamela Dale, for the Appellant. John A.
Scukanec, Assistant Attorney General, Office
of Special Prosecutions and Appeals,
Anchorage, and Gregg D. Renkes, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Timothy G. Alex was convicted of weapons offenses after
the police recovered a pistol from under the passenger seat of
the vehicle in which Alex was riding. At trial, Alex claimed
that he had no idea that the pistol was there.
Toward the close of the trial, Alexs trial judge
proposed to instruct the jury that a person is in constructive
possession of an item if the person has the power to exercise
dominion or control over that item. Alexs defense attorney
argued that proof of a persons power to exert dominion or control
over an object was not enough that the State was also obliged to
prove that the person actually exercised this power, or at least
intended to exercise it. After listening to the defense
attorneys argument, the trial judge decided not to alter the
wording of the jury instruction. In this appeal, Alex renews his
contention that the instruction, as given, was an erroneous
statement of the law.
It is not clear that this case even raises an issue of
constructive possession. As we explain in more detail below, the
item in question a semi-automatic assault pistol was found
underneath the passenger seat of the vehicle in which Alex was
riding (as the passenger). It would therefore appear that, if
Alex indeed possessed this pistol, he had actual possession of
it, not constructive possession.
The fact that the parties to this appeal have framed
the issue in terms of constructive possession may stem from the
fact that this concept suffers from a lack of precision. As the
United States Supreme Court has noted, the two concepts of actual
possession and constructive possession often so shade into one
another that it is difficult to say where one ends and the other
begins.1 Indeed, some legal commentators have suggested that the
words employed in Alexs case to define constructive possession
dominion and control do not really provide a workable
definition of this concept; rather, these words are nothing more
than labels used by courts to characterize given sets of facts.2
There is, in fact, some case law to support Alexs
contention that a person should not be convicted of
constructively possessing an object merely because the person
could have exercised dominion or control over the object that
the government must also prove either that the person did
exercise dominion or control over the object, or at least
intended to do so.
However, because of the way Alexs case was litigated,
we are convinced that the jurys decision did not turn on this
distinction. As we explain here, the jurys verdicts demonstrate
that the jurors must have concluded, not only that Alex knew
about the pistol under his seat, but also that Alex possessed
that pistol for the purpose of furthering a felony drug offense.
Thus, even assuming that the jury instruction on constructive
possession should have expressly required proof that Alex had
already exercised dominion or control over the pistol, or that he
intended to do so, this error had no effect on the jurys
decision. We accordingly affirm Alexs conviction.
Underlying facts
On the afternoon of December 14, 2002,
Anchorage Police Officer Leonard Torres made a traffic
stop of a vehicle. When Torres asked to see the
vehicle registration, the driver, Darryl Wilson, told
the passenger, Timothy Alex, to retrieve the
registration from the glove compartment. Torres moved
to the passenger side of the vehicle so that he could
see ... what [Alex] was reaching for in the glove
compartment. When he did so, Torres observed that Alex
had an open bottle of beer between his legs.
Wilson, too, had apparently been drinking.
Moreover, when Torres ran Wilsons and Alexs names
through the computer, he learned that both men were on
felony probation. Torres called for backup.
Torres focused his attention on Wilson while
two backup officers, Kevin Armstrong and Jeff Carson,
asked Alex to step outside the vehicle. During their
conversation with Alex, one of the officers asked if
there were any firearms in the vehicle. Alex told the
officers that there was a firearm under the passenger
seat. Carson looked on the floor of the vehicle,
underneath where Alex had been sitting, and discovered
a Tec 9 (i.e., an Intratec DC-9, a 9-mm semi-automatic
assault pistol).
Because Alex was a convicted felon, he was
prohibited from possessing a concealable firearm. See
AS 11.61.200(a)(1). Alex was arrested for this
offense. Later, during Alexs appearance in front of
the committing magistrate, a bag of cocaine fell from
his clothes.
Based on these events, Alex was indicted for
third-degree controlled substance misconduct
(possession of cocaine with intent to distribute),3 as
well as two other charges that hinged on his possession
of the Tec-9 pistol: second-degree weapons misconduct
(possession of a firearm in furtherance of a felony
drug offense), and third-degree weapons misconduct
(possession of a concealable firearm by a felon).4
Alex did not testify at his trial. However,
Alexs attorney elicited testimony (during cross-
examination of the police officers) that (1) both
Wilson and Alex told the police that the Tec-9 pistol
belonged to the owner of the vehicle, a man named Earl
Smith, and that (2) when the police spoke to Earl Smith
about this weapon, he confirmed that the Tec-9 pistol
did, in fact, belong to him. Indeed, Smith declared
that he had never told Wilson and Alex that there was a
pistol in the vehicle.
(This testimony was undercut somewhat by the
testimony of Officer Carson, who stated that, following
Alexs arrest, Earl Smith had come to the scene of the
traffic stop at about the time that the police were
loading the vehicle onto a tow truck, preparatory to
its impoundment. According to Carson, Smith asked if
he could retrieve his property from the vehicle before
it was towed away. After checking with his superiors,
Carson gave Smith permission to retrieve his property.
Smith then removed some snow machine gear from the
vehicle. Neither Carson nor Smith mentioned the Tec-9
pistol during their conversation. However, when Carson
asked Smith if the snow machine gear was all of his
property from the vehicle, Smith answered yes.)
At the end of the trial, during the defense
summation, Alexs attorney told the jury that Smiths
account was truthful: that the pistol belonged to
Smith, and that Alex had not known that the pistol was
in the vehicle.
The defense attorney acknowledged that two
police officers (Armstrong and Carson) had testified
that Alex did know about the pistol that, in fact,
Alex told them that the weapon was present in the
vehicle, and that he disclosed the weapons location
under the passenger seat. But the defense attorney
told the jurors that the officers were lying that the
officers were saying this only because they knew that
the States whole case depended on the argument that
Alex must have knowingly possessed the weapon because
he knew it was there.
The defense attorney repeatedly declared that
the jurors should disbelieve the officers testimony on
this point. She told the jurors: Look at the
foundation of [Alexs] alleged confession [that there
was gun underneath the seat]. Look at the root of that
information. Its tainted; its skewed; its biased; its
untrustworthy. A few moments later, she told the
jurors: We have the shadiest confession, completely
untrustworthy.
A little later in her summation, the defense
attorney returned to this theme. She told the jurors
that, because Alex was merely a passenger in the car
(not the owner of the vehicle, and not the driver), the
police must have known that they could not charge and
convict Alex of the weapons offenses unless they had a
confession i.e., Alexs admission that he knew that the
pistol was under his seat.
Defense Attorney: So they [purportedly]
get [the needed confession]. [But] did they?
I dont know. Do you know? I would think
not.
. . .
[The police] call[ed] Mr. Earl Smith [to
ask him about the gun]. And ... what did Mr.
Earl Smith say? Thats my gun. [Wilson and
Alex] dont know that its in there.
These arguments proved unavailing;
the jury convicted Alex of the two weapons
offenses (and the drug offense as well).
The discussion of the jury instruction regarding
possession
At the close of the evidence (that is, after
both the prosecution and the defense had rested their
cases), the parties and the trial judge, Superior Court
Judge Larry D. Card, met outside the presence of the
jury to discuss jury instructions.
All three of the crimes charged against Alex
possession of cocaine with intent to distribute,
possession of a firearm in furtherance of a felony drug
offense, and possession of a concealable firearm by a
felon all required proof that Alex had possessed a
particular object or substance. Thus, Judge Cards
packet of proposed instructions contained an
instruction defining the term possess. Here are the
four pertinent paragraphs of that instruction:
Possess means having physical possession
or the exercise of dominion or control over
property.
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.
The law recognizes also that possession
may be sole or joint. If one person alone
has actual or constructive possession of a
thing, possession is sole. If two or more
persons share actual or constructive
possession of a thing, possession is joint.
Alexs attorney objected to the
third paragraph of the instruction.
Specifically, the defense attorney asked
Judge Card to strike the words have the power
to from the second sentence of that
paragraph, so that it would read:
Constructive possession means to exercise
dominion or control over a thing. Alexs
attorney repeatedly asserted that the
presence of the phrase have the power to made
a significant alteration to the meaning of
constructive possession. However, the
defense attorney never actually explained
what this alteration was, or why the altered
definition made any difference to the
resolution of Alexs case. Judge Card decided
to leave the wording unchanged.
The potential problem with the definition of
constructive possession, and why we conclude that any
error was harmless
In retrospect (and after briefing), it is
easier to see the potential problem caused by including
the words have the power to in the definition of
constructive possession. This problem is illustrated
by the facts of State v. Harvey, 463 So.2d 706 (La.
App. 1985). In Harvey, a woman was convicted of
illegally possessing drugs after the drugs were found
in her mothers house, where she was living. The
Louisiana court noted that there was sufficient
evidence to infer that Harvey knew of the presence of
the drugs in the house, and knew that drug-dealing was
taking place in the house, but the court nevertheless
concluded that there was insufficient evidence that
Harvey personally exercised any dominion and control
over the drugs. Id. at 708.
In other words, because Harvey lived in the
house, and because the drugs were in locations that
were accessible to her (the bedroom and the kitchen),
Harvey may have had the physical power to exert control
over the drugs if she had wished. But there was no
evidence that she participated in the drug-dealing
activities or that she had anything else to do with the
drugs. Thus, the court concluded, the evidence was not
sufficient to establish her possession of the drugs for
purposes of the criminal law.
Alaska cases have never directly addressed
this point. In State v. Niedermeyer, 14 P.3d 264, 272
(Alaska 2000), the Alaska Supreme Court declared that
possession was a common term with a generally accepted
meaning: having or holding property in ones power;
the exercise of dominion over property. But the
supreme court may have been overly optimistic when it
declared that possession had a common, generally
accepted meaning.
There is an ambiguity in the word power.
This word can refer to a persons right or authority to
exert control, but it can also refer to anything a
person might be physically capable of doing if not
impeded by countervailing force. Thus, if constructive
possession is defined as the power to exercise dominion
or control over an object, this definition potentially
poses problems because it suggests that a person could
be convicted of possessing contraband merely because
the person knew of the contraband and had physical
access to it, even though the person had no intention
or right to exercise control over it.
For example, the children of a household
might know that there is beer in the refrigerator or
liquor in the cupboard. Assuming that it is within the
childrens physical power to gain access to these
alcoholic beverages, one might argue that the children
are in constructive possession of these beverages and
thus guilty of a crime under AS 04.16.050 (minor in
possession of alcoholic beverages) because the
children have the power to exercise dominion or control
over the beverages.
To avoid results like this, some courts have
worded their definitions of constructive possession in
terms of a persons authority or right to exert control
over the item in question. See, for example, State v.
Henderson, 696 N.W.2d 5, 9 (Iowa 2005). Other courts
have worded the test as the defendants power and
intention to exert control or dominion over the object.
See, for example, United States v. Cousins, 427 F.2d
382, 384 (9th Cir. 1970) (emphasis added).
This same type of problem might have arisen
in Alexs case if the case had been litigated
differently. For example, given the facts of the case,
one can imagine Alex conceding that he was aware of the
pistol under his seat, but then asserting that he had
no connection to the pistol and that he only became
aware of its presence underneath his seat when, during
his ride in the vehicle, the pistol bumped against his
feet.
But this was not the strategy that Alexs
defense attorney adopted at trial. Instead of
conceding that Alex knew that there was a pistol under
his seat, Alexs attorney denied that Alex knew about
the pistol, and further denied that Alex had ever said
anything to the police about the weapon. The defense
attorney relied on Earl Smiths statement that Alex and
Wilson did not know that there was a firearm in the
vehicle, and the attorney argued that the police
officers had lied when they testified that Alex
directed them to the weapon.
On this point, it is important to note that
the discussion about the wording of the jury
instruction occurred after the defense attorney had
presented her case. Assumedly, the defense attorney
had already formulated her summation to the jury. If
she had been considering a defense such as the one
described two paragraphs above, one would expect her to
have highlighted this defense when she discussed the
wording of the jury instruction with Judge Card, and to
have explained how the disputed language might lead the
jury to improperly reject this proposed defense.
But the defense attorneys arguments to Judge
Card were phrased in the abstract. Judge Card was
never alerted that the wording of the jury instruction
might pose a real-life problem in Alexs case. The
defense attorney never told Judge Card that the wording
of the instruction might either support or doom Alexs
chosen defense.
From this, it appears that Alexs attorney had
already decided to argue that Alex did not even knew
about the pistol under his seat. Given this defense,
it is unlikely that the claimed ambiguity or error in
the jury instruction defining constructive possession
affected the jurys decision because the alleged flaw
in the jury instruction would make a difference only if
Alex conceded that he was aware of the assault pistol
under his seat.
Even when a jury instruction contains an
erroneous statement of law, the flawed instruction will
require reversal of a conviction only if it can be said
that the verdict may have been different had the
erroneous instruction not been given.5 Here, given the
way that Alex litigated this case, there is no reason
to believe that the verdict would have been different
even if the jury instruction had been modified in the
manner that Alexs defense attorney proposed.
There is, moreover, a second reason for
concluding that any error in the constructive
possession instruction could not have affected the
jurys decision: the jury convicted Alex of second-
degree weapons misconduct.
Alex was charged with second-degree weapons
misconduct under the theory that he possessed a firearm
in furtherance of a drug felony. As we explained in
Collins v. State, 977 P.2d 741, 753 (Alaska App. 1999),
this crime requires proof of a nexus between a
defendants possession of the firearm and the defendants
commission of the felony drug offense. We elaborated
this point in Murray v. State, 54 P.3d 821, 824 (Alaska
App. 2002):
[T]o establish the [required] nexus ... , the
State must prove that the defendants
possession of the firearm aided, advanced, or
furthered the commission of the drug offense.
Possession of drugs and a firearm alone is
insufficient for such a finding even if the
drugs and firearm were located in close
physical proximity.
Alexs jury was instructed in accordance with Collins
and Murray. The jury was told that, before they could
convict Alex of second-degree weapons misconduct, the State
had to prove that Alexs possession of the firearm aided,
advanced[,] or furthered the drug offense.
Thus, when the jury found Alex guilty of this weapons
offense, the jurors necessarily found that Alex did more
than simply possess the assault pistol at the same time and
place that he was committing the drug offense (possession of
cocaine with intent to distribute). Alex was not simply a
passenger in a vehicle who discovered, to his surprise, that
he had physical access to a pistol under his seat. Rather,
the jurors found that Alex knowingly possessed the pistol in
aid or in furtherance of his drug offense.
For this reason, too, we conclude that the jurys
verdict was not influenced by any arguable error in the jury
instruction defining constructive possession.
Conclusion
As we have explained here, Alexs brief to
this Court identifies a potential problem in the
wording of the constructive possession instruction that
was given at his trial. We doubt that the trial judge
was adequately alerted to this problem. But in any
event, we conclude that this potential problem in the
wording of the jury instruction had no effect on the
jurys verdicts. Accordingly, the judgement of the
superior court is AFFIRMED.
_______________________________
1 National Safe Deposit Co. v. Stead, 232 U.S. 58, 67; 34
S.Ct. 209, 212; 58 L.Ed. 504 (1914), quoted in Wayne R. LaFave,
Substantive Criminal Law (2nd ed. 2003), 6.1(e) (crimes of
possession), Vol. 1, p. 433.
2 Charles H. Whitebread and Ronald Stevens, Constructive
Possession in Narcotics Cases: To Have and Have Not, 58
Va.L.Rev. 751, 759-760 (1972), quoted in Wayne R. LaFave,
Substantive Criminal Law (2nd ed. 2003), 6.1(e), Vol. 1, p. 432.
3 AS 11.71.030(a)(1).
4 AS 11.61.195(a)(1) and AS 11.61.200(a)(1), respectively.
5 See Reich v. Cominco Alaska, Inc., 56 P.3d 18, 25 (Alaska
2002), quoting Beck v. Dept. of Transportation & Public
Facilities, 837 P.2d 105, 114 (Alaska 1992).
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