Black’s Law Dictionary defines constructive possession as “[c]ontrol or dominion over a property without actual possession or custody of it.”
If a person is arrested for possession of drugs, they are alleged to have constructively possessed narcotics, a different set of elements must be proven to achieve a conviction than would be required under a theory of actual possession.
To prove that a defendant constructively possessed narcotics, the state is required to prove that the defendant had “(1) dominion and control over the contraband, and (2) knowledge that the contraband was within his presence.”
When narcotics are found in a place that is jointly occupied by multiple persons, the state may prove that the defendant constructively possessed the contraband through circumstantial evidence.
Circumstantial evidence is defined as “evidence based on inference and not on personal knowledge or observation.”
Even if the state does present circumstantial evidence as to constructive possession, the weight of this circumstantial evidence is subject to being tested in trial through a motion for judgment of acquittal.
Further, if the trial court fails to grant a motion for judgment of acquittal where the state’s circumstantial evidence is insufficient, the trial court’s ruling is subject to reversal on direct appeal.
In jury trials where the state relies upon a constructive possession theory, the standard and relied-upon jury instructions specifically define that constructive possession “means the person is aware of the substance, the substance is in a place over which the person has control, and the person has the ability to control the substance.”
The forms further state that “mere proximity to a substance is not enough to establish the power and intention to control that substance when the substance is in a place that the person does not control.”
Raising a reasonable doubt as to any of these elements may provide a successful defense.