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Dirks v. State (1/6/2017) ap-2531

Dirks v. State (1/6/2017) ap-2531

                                                                                          NOTICE
  

                The text           of   this opinion can be corrected before the opinion is published in the                                         

               Pacific Reporter                  .   Readers are encouraged to bring typographical or other formal                                            

               errors to the attention of the Clerk of the Appellate Courts:    



                                                          303 K Street, Anchorage, Alaska  99501  

                                                                             Fax:  (907) 264-0878  

                                                                E-mail:  corrections@ akcourts.us  



                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                  



DAVID  P.  DIRKS,  

                                                                                                                                                                    

                                                                                                                    Court of Appeals No. A-11534  

                                                                                                                                                                                    

                                                             Appellant,                                          Trial Court No. 3KN-12-1034 CR  



                                              v.  

                                                                                                                                   O  P  I  N  I  O  N  

                                                                                                                                                                    

STATE  OF  ALASKA,  



                                                             Appellee.                                                No. 2531 - January 6, 2017  

                                                                                                                                                                          



                               Appeal from the District Court,  Third Judicial District, Kenai,  

                                                                                                                                                          

                               Matthew Christian, Magistrate Judge.  

                                                                                                  



                               Appearances:  David T. McGee, Anchorage, under contract with  

                                                                                                                                                               

                               the  Public  Defender  Agency,  and  Quinlan  Steiner,  Public  

                                                                                                                                                        

                               Defender, Anchorage, for the Appellant.   Donald Soderstrom,  

                                                                                                                                             

                               Assistant   Attorney   General,   Office   of   Criminal   Appeals,  

                                                                                                                                                   

                               Anchorage, and Michael C. Geraghty, Attorney General, Juneau,  

                                                                                                                                                        

                               for the Appellee.  

                                                                     



                               Before:  Mannheimer, Chief Judge, and Allard, Judge.  

                                                                                                                                     



                               Judge MANNHEIMER.  

                                             



                               David P. Dirks was convicted of fourth-degree weapons misconduct for                                                                                            



possessing a holstered handgun in the backseat of his car while he was impaired by                                                                                                             



alcohol.   See AS 11.61.210(a)(1), which forbids possessinga   firearm "on [one's] person,  



or in the interior                       of   a   vehicle in which [one] is present, ... when [one's] physical or                                                                               


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mental  condition  is  impaired  as  a  result  of  ...  intoxicating  liquor  or  a  controlled  



                    

substance".  



                                                                                                                            

                     The issue in this case arises because the holstered handgun did not belong  



                                                                                                                                   

to Dirks.  Rather, it belonged to Dirks's friend, Matthew Pemberton, who was riding as  



                                           

a passenger in Dirks's car.  



                                                                                                                        

                     The State's theory of prosecution was that, even though the gun belonged  



                                                                                                                         

to Pemberton, Dirks "possessed" this weapon - and thus violated the statute - because  



                                                                                                                                    

Dirks knew that the gun was "in the interior of a vehicle in which [he was] present".  



                                                                                                                         

                     For  the  reasons  explained  in  this  opinion,  we  conclude  that  Dirks's  



                                                                                                                                 

knowledge that the gun was present in the interior of his vehicle, and the fact that the  



                                                                                                                                  

weapon was physically within  his reach, are not legally sufficient (standing alone) to  



                                                                                                                                       

establish that Dirks "possessed" the weapon.  We therefore reverse Dirks's conviction.  



                                                                          

           The pertinent procedural history of this case  



                                                                                                                                  

                     At the close of Dirks's trial, the trial judge gave the jurors an instruction on  



                                                                                                                              

the meaning of "possess".   This instruction presented the jurors with a jumble of legal  



                                                                                              

concepts, many of which had no application to Dirks's case:  



                      

                                                                                                            

                               "Possess"  means  having physical possession  or  the  

                                                                              

                     exercise of dominion or control over property.  



                                                                                                        

                               The law  recognizes two kinds of possession:  actual  

                                                                                                              

                     and  constructive  possession.                  Actual possession  means  to  

                                                                                                         

                    have direct physicalcontrol, 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 right, authority or intention to exercise dominion over the  

                                                                                                             

                     control  of  a  thing.  This  may  be  done  either  directly  or  

                                                                                                           

                     indirectly or through another person or persons.                              The  law  



                                                               - 2 -                                                          2531
  


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                              recognizes also that possession may be sole or joint. If the                                                                  

                              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.                                                                   You  

                              may find 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,                                                                     either  

                              alone or jointly with others.                                  

                                

                              This  instruction  could  easily  have  been  confusing to  the  jurors.                                                                                   For  

                                                                                                                                                                                        



instance,  even though the instruction  makes  a  great point of distinguishing between  

                                                                                                                                                                              



"actual" and "constructive" possession, there was no evidence of constructive possession  

                                                                                                                                                                          



in Dirks's case.  

                                     



                              "Constructive  possession"  refers  to  a  person's  authority  to  exercise  

                                                                                                                                                                              



dominion  or control over property even though it is not in their immediate physical  

                                                                                                                                                                              



possession.                  Thus,  a person continues to "possess" their household belongings even  

                                                                                                                                                                                      



though the person is physically away from home.  

                                                                                                                



                              (The law uses the adjective "constructive" to refer to a situation where an  

                                                                                                                                                                                            



action or a state of  affairs  does not actually fit within the normal definition of some  

                                                                                                                                                                                     



relevant concept, but the action or state of affairs will nevertheless be treated as the legal  

                                                                                                                                                                                       



equivalent.                   Black's  Law  Dictionary  gives  the  following example  of  the  usage  of  

                                                                                                                                                                                           



"constructive":  "[T]he court held that the shift supervisor had constructive knowledge  

                                                                                                                                                                         



                                                                                                                                                                                              1 

of the machine's failure even though he did not actually know until two days later[.]"  

                                                                                                                                                                                               )  



                              In  Dirks's  case,  the  prosecutor  never  argued  a  theory  of  constructive  

                                                                                                                                                                     



possession.  That is, the prosecutor did not argue that Dirks was authorized to exercise  

                                                                                                                                                                               



dominion or control over a handgun that was located elsewhere.  Rather, the prosecutor  

                                                                                                                                                                          



argued that Dirks "possessed" Pemberton's handgun because the holstered weapon was  

                                                                                                                                                                                         



        1      Bryan A. Garner (editor in chief),                                     Black's Law Dictionary                              (8th ed. 2004), p. 333.                           



                                                                                            - 3 -                                                                                       2531
  


----------------------- Page 4-----------------------

                                                                                                                                 

in Dirks's vehicle, lying on the back seat, and Dirks knew that it was there.   Thus, if  



                                                                                                                    

Dirks "possessed" this handgun, his possession was an immediate "physical" possession  



                                                                                                                              

-  not a "constructive" possession of a weapon  located somewhere else.                                                See our  



                                                                                                                                     

discussion of this point in Alex v. State , 127 P.3d 847, 848, 850-52 (Alaska App. 2006).  



                                                                                                                          

                    The jury instruction also spoke about how two or more people can jointly  



                                                                                                                                  

possess property, and how a person can possess property through an agent, and how a  



                                                                                                                              

person can possess property "indirectly".  But there was no evidence to suggest that any  



                                                                 

of these concepts applied to Dirks's case.  



                                                                                                                               

                    In particular, there was no evidence to suggest that Pemberton was not the  



                                                                                                                        

sole owner of the  gun, or that Pemberton owned the gun but possessed it as Dirks's  



                                                                                                                             

agent, or that Dirks possessed the weapon "indirectly" in some other manner.  The only  



                                                                                                                               

relevant evidence on these matters was Pemberton's testimony that Dirks did not use this  



                                                                                                                           

gun - although Pemberton acknowledged that he would have been willing to let Dirks  



                                                                                                                              

shoot the gun if Dirks had asked (as long as "[they] were somewhere [where it was] safe  



                   

to shoot").  



                                                                                                                            

                    But  given  the  hodgepodge  of  legal  theories  embedded  in  this  jury  



                                                                                                                            

instruction, the prosecutor was able to argue that Dirks "possessed" the handgun, even  



                                                                                                                                 

though the gun belonged to Pemberton, simply because Dirks knew that the gun was in  



                                                                                                             

his car and within his reach.  This theory of prosecution was improper.  



                                                

           Why we reverse Dirks's conviction  



                                                                                                                              

                    The legalconcept of "possession" does not include all items of property that  



                                                                                                                             

are within a person's reach or in a person's presence.  Shoppers walking down the aisle  



                                                                                                                               

of a store do not "possess" all of the merchandise lying before them on the shelves, nor  



                                                                                                                        

do museum visitors "possess" all of the artwork that they pass within reach of.  



                                                              - 4 -                                                          2531
  


----------------------- Page 5-----------------------

                                                                                                                          

                     In  State  v.  Niedermeyer,  14 P.3d 264,  272 (Alaska 2000),  the Alaska  



                                                                                                                                  

Supreme Court declared that "possession" was generally understood to mean "having or  



                                                                                                                                

holding property in one's power; the exercise of dominion over property."                                           But as the  



                                                                                                                                

facts of Alex  demonstrated,  and as the facts of Dirks's case  again demonstrate,  the  



                                                                                         

supreme court's formulation presents certain difficulties.  



                                                                                                                                  

                     As we explained in Alex , the word "power" is ambiguous.   It can refer to  



                                                                                                                              

a person's right or authority to exert control over people or property, but it can also refer  



                                                                                                                                

to  anything  a  person  might  be  physically  capable  of  doing  if  not   impeded  by  



                                  

countervailing force.  



                                                                                                                                  

                     Thus, if "possession" of property were defined as simply the "power" to  



                                                                                                                            

exercise control over an object, this would suggest that a person could be found guilty  



                                                                                                                       

of "possessing" an item of property that they did not own, and that they had no intention  



                                                                                                                               

of using or even touching, merely because the  person  knew where the property was  



                                                                                             

located and the person had immediate physical access to it.  



                                                                                                                                  

                     This, in fact, was the State's theory of prosecution in Dirks's case.  And in  



                                                                                    

Alex , we pointed out the problem with this approach.  



                                                                                                                               

                    Alex  gave the example of children living in a household who know that  



                                                                                                                    

there is beer in the refrigerator or liquor in the cupboard - i.e., alcoholic  beverages  



                                                                                                                                      

stored in places where "it [was] within the children's physical power to gain access".  



                                                                                                                         

We pointed out that if "possession" was broadly defined to mean "the power to exercise  



                                                                                                                     

dominion or control over property", one could argue that the children were in possession  



                                                                                                                                  

of these alcoholic beverages, and thus guilty of a crime under AS 04.16.050 (minor in  



                                                                                           

possession of alcoholic beverages).  Alex , 127 P.3d at 851.  



                                                                                                                                 

                     To avoid results like this,  some courts have  framed  their definition of  



                                                                                                                                      

"possession" in terms of a person's "authority" or "right" to exert control over an item.  



                                                                                                                             

See, for example, State v. Henderson, 696 N.W.2d 5, 9 (Iowa 2005).  Other courts have  



                                                               - 5 -                                                          2531
  


----------------------- Page 6-----------------------

                                                                                                                            

worded the test as whether the defendant had both the "power and intention" to exert  



                                                                                                                             

control or dominion over the item.  See, for example, United States v. Cousins, 427 F.2d  



                                         

382, 384 (9th Cir. 1970).  



                                                                                                                               

                    These two approaches to defining "possession" do not yield exactly the  



                                                                                                                              

same results in all situations, but they are both designed to avoid the kind of result that  



                                                                                                                             

occurred in Dirks's case.  A defendant may not be found guilty of "possessing" an item  



                                                                                                                               

of property that belongs to someone else merely because the owner of the property has  



                                                                                                                               

brought the property to the defendant's residence, vehicle, or place of business, and has  



                                                                                                                               

placed the property within the defendant's reach, and the defendant is aware that the  



                            

property is there.  



                                                                                                      

                    For these reasons, we REVERSE Dirks's conviction.  



                                                              - 6 -                                                          2531
  

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