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Alex v. State (1/13/2006) ap-2024

Alex v. State (1/13/2006) ap-2024

     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

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) Court of Appeals No. A-8839
Appellant, ) Trial Court No. 3AN-02-11562 Cr
v. )
) O P I N I O N
Appellee. ) [No. 2024 January 13, 2006]
          Appeal  from the Superior Court,  Third  Judi
          cial  District,  Anchorage,  Larry  D.  Card,

          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
          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
          .  .  .
          [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

          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
          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
          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.

               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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