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

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


                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@  

                                 IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                                  



                                                                                                                    Court of Appeals No. A-11534  


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


                                                                                                                                   O  P  I  N  I  O  N  



                                                             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                                                                               

----------------------- Page 2-----------------------


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




                     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  



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

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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

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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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