What is “Constructive Possession” as far as a Charge of Drug Possession?

November 22, 2013

Christopher Shaw appealed his 15-year sentence for drug possession as to whether the evidence supporting his convictions was sufficient to establish constructive possession.

Constructive possession is based on the circumstances of the case and may be based on circumstantial evidence. It is established when a person knowingly has the power and the intention at a certain time to exercise dominion and control over an object, either directly or through others
This case stems from a citizen complaint of “a problem” with Shaw at a Goodlettsville apartment complex. Rosetta Williams and Patricia Taylor (mother and daughter) resided in the apartment complex. They contacted the Police Department to report a problem with a person who frequently visited the complex in different cars. Williams met with Detective Les Carlisle and was told to take down the license plate tag numbers to help identify the person. She was told to contact them the next time she saw that person in the area. Williams testified that she saw the individual at the complex at least 10 times. Taylor said that she saw him three or four times a day.

Before the offense, Detective Carlisle investigated the license plate numbers given to him by Williams and determined that they were registered to Shaw. A photograph of Shaw was then shown to Williams and Taylor. Each identified Shaw as the man they had seen in their complex. One of the cars. Williams had observed Shaw driving while in their complex was a white Nissan SUV.

On the day of the offense, the ladies were sitting on Williams’s porch and saw Shaw drive a white SUV into their complex. With this, Williams called Detective Carlisle to notify him. Later, Williams called Carlisle again to let him know that he was leaving the complex. Carlisle drove to the complex and got another phone call from Williams as he neared the apartment exit. She told him that Shaw was leaving. He then saw Shaw driving out of the complex in the SUV. Carlisle testified that Shaw was the only person in the SUV. He followed the SUV and verified its tag number as one previously given to him by Williams. Sergeant Martin and Carlisle surrounded Shaw and activated their blue lights. Carlisle testified that Shaw “paus[ed] just for a few seconds … pull[ed] around [a] police car, and [took] off.” Carlisle followed the SUV until he lost sight of it. A white SUV, which Detective Carlisle confirmed as the same SUV driven by Shaw, later crashed into a fire hydrant. Shaw was not at the scene. After a short foot chase, Shaw was arrested. The Detective identified Shaw as the driver of the SUV that crashed.

The jury convicted Shaw of possession of more than 26 grams of cocaine with the intent to sell or deliver within 1,000 feet of a child care agency, evading arrest while operating a motor vehicle, and possession of drug paraphernalia.

On appeal, Shaw argued that the evidence failed to prove that he knew that the drugs or the scales were located in the SUV, and that he should only be held accountable for the 1.41 grams of drugs found on his body. The State responded that a rational jury could have found that he possessed the drugs and the scales found in the SUV with the intent to sell the drugs and to use the scales in that process.

Judge Camille R. McMullen of the Tennessee Criminal Court of Appeals wrote in her opinion that Shaw’s conviction, ordinarily a Class B felony, was punished as a Class A felony because he was a Range II, multiple offender, and because his offense occurred within 1,000 feet of a childcare center. He was subject to a sentence range of 12-20 years. He was also required to serve “at least the minimum sentence for [his] appropriate range” at 100%. The trial court sentenced him to 15 years, with 12 years at 100% and the remaining three years at 35%.

The judge also explained that Tennessee courts have long recognized that “possession” [as used in the drug statutes] “may be either actual or constructive.” It has been defined as “the ability to reduce an object to actual possession.” However, the judge wrote, “[t]he mere presence of a person in an area where drugs are discovered is not, alone, sufficient.”

In challenging the sufficiency of the evidence, Shaw contended that the State failed to establish constructive possession because the drugs and digital scales were concealed inside the SUV prior to the crash and that he was merely present in the area where the drugs were found. Judge McMullen said that a close review of the record showed that a clear plastic bag of powder cocaine was located in the front center console of the SUV Shaw was driving. Officer Wilson testified that it was “just tied and sitting there … along with [the chunk of crack cocaine]. I saw it first.” Shaw drove a car in which powder cocaine was seen in plain view. Despite his familiarity with the appearance of cocaine, as evidenced by the drugs recovered from his person, Shaw drove the SUV to the apartment complex, exited and later re-entered the SUV, and again drove away. Judge McMullen reasoned that “[C]ertainly, Shaw’s proximity to the drugs for the period in which he operated the SUV increased his ability to reduce the drugs to his control.”

In addition to the plain view nature of the drugs and Shaw’s proximity to and familiarity with the drugs, McMullen and the Criminal Court of Appeals found it significant that he was the only occupant of a car from which a large amount of drugs was seized. In addition, his repeated attempts to evade police officers implied guilty knowledge of the presence of the drugs and digital scales recovered from inside the SUV. Based on all of the above factors combined, any rational juror could have found that Shaw was in constructive possession of the drugs and the digital scales in this case.

The Tennessee Criminal Court of Appeals affirmed Shaw’s convictions for possession of cocaine with the intent to sell or deliver within 1,000 feet of a childcare center and possession of drug paraphernalia.
State v. Shaw, Slip Copy, 2013 WL 5310489 (Tenn.Crim.App. Sept. 20, 2013).

Questions about traffic stops or other issues in a criminal case?
Kevin Patterson has been providing professional legal services to individuals and businesses in the greater Memphis area since 1983. When you ask Kevin to assist you with your legal issue, he will treat your case with the dedicated service and attention it deserves. Call Kevin at 901.300.4820 or e-mail at kevin@kgplawfirm.com to discuss your legal matter. We look forward to hearing from you.

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