Summary 2011 WY 18

Summary of Decision February 7, 2011

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Case Name: Taylor v. State

Citation: 2011 WY 18

Docket Number: S-10-0118

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461727

Appeal from the District Court of Campbell County, Honorable Dan R. Price II, Judge

Representing Appellant (Defendant): Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Andrew J. Kuhlmann, Assistant Attorney General.

Date of Decision: February 7, 2011

Facts: On October 30, 2008, police searched an apartment leased by the appellant’s girlfriend and found marijuana, cocaine, heroin, and methamphetamine. The appellant’s girlfriend told police that the drugs belonged to appellant, and he was charged with three counts of possession with intent to deliver a controlled substance. At trial, after the State presented its case in chief, the appellant moved for a judgment of acquittal claiming that the evidence presented by the State was insufficient to show that he had constructive possession of the drugs. This motion was denied and the appellant was convicted on all three counts

Issues: Whether the district court erred when it found that the State had presented sufficient evidence to establish the elements of constructive possession and denied the appellant’s motion for judgment of acquittal.

Holdings: Possession of a controlled substance is proved when the evidence establishes that the accused either individually or jointly with another exercised dominion and control over the substance, had knowledge of its presence, and knowledge that the substance was a controlled substance. Direct evidence of the defendant’s actual possession of the substance is not required. Rather, constructive possession is all that is necessary and such may be proved by circumstantial evidence linking together a series of facts allowing a reasonable inference that the defendant had the requisite knowledge and control of the substance. When determining whether sufficient evidence was presented demonstrating constructive possession, the Court must consider the totality of the circumstances.

Regarding the appellant’s “dominion and control” over the drugs, a witness testified that the drugs belonged to the appellant, and that the appellant placed them in the apartment. She also testified that the appellant frequently asked her to give packages of the drugs to people the appellant sent to the apartment. Further, the evidence also showed that the appellant had a key to the apartment where the drugs were found and many of the appellant’s personal items were discovered in the apartment, including clothes, shoes, hats, and his wallet. If a defendant is sufficiently associated with the persons having physical custody so that he is able, without difficulty to cause the drug to be produced for a customer, he can also be found by a jury to have dominion and control over the drug and, therefore, possession.

Constructive possession also requires knowledge of the presence of the drugs. Appellant’s friend testified that on the night after the search, the appellant told him that there was methamphetamine, cocaine, heroin, and marijuana in the apartment. He also testified that, a few days later, the appellant told him there was methamphetamine in the apartment “in the pantry on the top shelf to the right.” When the police searched the apartment, they found methamphetamine in that very spot. This evidence sufficiently demonstrates that the appellant was aware of the type and location of the drugs in the apartment.

Finally there must be sufficient evidence presented to show that the appellant knew the substances in question were illegal controlled substances. The fact that the drugs were concealed in bags and placed in hiding places, such as between the mattress in the bedroom and on the top shelf of the pantry, indicates that the appellant knew he was bringing illegal controlled substances into the apartment and needed to conceal them. Also, the appellant’s girlfriend’s testimony that the appellant directed her to give packages of the controlled substances to people the appellant sent to the apartment in exchange for money also indicates the appellant’s knowledge of the illicit nature of the substances. Finally, the fact that the girlfriend was told to exchange the packages for money only at the apartment, and not in a more public location or at the appellant’s residence, also creates an inference that the appellant knew that the substances in question were illegal controlled substances.

Finally, the appellant argues that even if he had constructive possession, the evidence does not support a finding that the elements of such were met on October 30, 2008 – the date the Felony Information alleges that the crime occurred and also the date listed as an element of the crimes in the jury instructions. The evidence clearly is sufficient to show that the appellant had constructive possession of the drugs on October 30, 2008. The appellant’s girlfriend testified that she had given the appellant a key to the apartment in 2007, and that since then the appellant always had unfettered access to the apartment. Another of appellant’s friends testified that the appellant sent him the key to the apartment after October 30, 2008, so that he could access the apartment. Furthermore, the friend’s testimony regarding the appellant’s behavior shortly after the search, and the appellant’s specific knowledge regarding the variety and location of the drugs, provide sufficient evidence that on October 30, 2008, the appellant knew of the location and illicit nature of the drugs.

J. Voigt delivered the opinion for the court.