Knowing About Contraband and Having the Ability to Control or Exercise Dominion over it does not Presume Intent to do that.

State v. Foster (HSC July 31, 2012)

Background. One summer's night near Kaupo--a remote part on the East side of Maui--DLNR officers were patrolling for unlawful night hunting when they noticed a bright light roving back and forth. The officers caught up to the light and found a 4Runner. Foster was in the driver's seat and Malano was riding shotgun. Wendy Gonsalves and Malia Saunders were sitting in the backseat. The officers approached the vehicle and saw an ammunition clip between the driver's seat and the passenger's seat. All four were ordered out of the vehicle.

As the women got out from the backseat, the front passenger's seat slid forward. One of the officers saw a rifle under the seat. During the stop, the officers confirmed that the vehicle was registered to Foster and that Saunders was wanted on a warrant. Foster was arrested and gave a statement.

Foster told the police that he had picked up Malano earlier that night and he had a black ukulele case. The men picked up the women and headed toward Kaupo. Once they got near Kanaio, they pulled over to the side of the road to take a break. Malano took out a MAK-90 out of the ukulele case and fired off a few rounds at an abandoned boat on the side of the road. They got back into the car and started driving out toward town. Gonsalves held the gun for a little while in the backseat.

Foster was indicted with offenses related to the prohibited ownership or possession of a firearm. HRS §§ 134-7(b) and (h). At trial and after the prosecution rested, Foster moved for judgment of acquittal. The motion was denied. During deliberation, the jury asked the judge if "possession [was] determined by just being present with the object[.]" The circuit court responded with the following instruction:

A person is in possession of an object if the person knowingly procured or received the thing possessed, or was aware of his control of it for a sufficient period of time to have terminated his possession.

The law recognizes two kinds of possession, actual possession and constructive possession. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing for a sufficient period of time to terminate his possession of it, either directly or through another person or persons, is then in constructive possession of it.

The fact that a person is near an object or is present or associated with a person who controls an object, without more, is not sufficient to support a finding of possession.

The law requires 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.

The element of possession has been proved if you find beyond a reasonable doubt that the defendant had actual or constructive possession, either solely or jointly with others.

The jury found Foster guilty as charged. Foster renewed his motion for acquittal. The circuit court concluded that there was insufficient evidence to show that Foster had the requisite intent to exercise dominion or control over the firearm and/or ammunition, and granted the motion. The prosecution appealed. The ICA, in a summary disposition order, held that the circuit court erred in granting the motion and reinstated the jury verdict. Foster applied for a writ of cert.

Actual and Constructive Possession in Hawai'i. Possession may either be actual or constructive. "A person who knowingly has direct physical control over a thing at a given time is then in actual possession of it. A person who, although not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion over a thing, either directly or through another person or persons, is then in constructive possession." State v. Jenkins, 93 Hawai'i 87, 110, 997 P.2d 13, 36 (2000).

"To support a finding of constructive possession the evidence must show a sufficient nexus between the accused and the [item] to permit an inference that the accused had both the power and the intent to exercise dominion and control over the [item]. Mere proximity is not enough." State v. Moniz, 92 Hawai'i 472, 476, 992 P.2d 741, 745 (App. 1999). Furthermore, finding constructive possession requires an evaluation of certain factors and circumstances:

Proof of the defendant's knowledge of the presence of [the item] and the defendant's ownership of right to possession of the place where the [items] were found, alone, are insufficient to support a finding of the exercise of dominion and control. Other incriminating circumstances must be present to buttress the inference of knowing possession and provide the necessary link between a defendant and illegal [items].

Id. at 476-77, 992 P.2d at 745-46.

Defendant's Knowledge that a Firearm and Ammo were in his car and the Ability to Control and Exercise Dominion over it is not Enough. The HSC held that there was sufficient evidence that Foster knew a firearm and ammo were in his car. The moment Malano took the gun out of the ukulele case and started firing it into the darkness, Foster knew about the gun, its ammo, and one could infer that he could have exercised dominion and control over them. However, that alone does not presume Foster's criminal intent "to make use of that knowledge and ability." Moniz, 92 Hawai'i at 479, 992 P.2d at 748. The HSC formulated the rule differently: "intent to exercise dominion and control over the items must thus be proven in addition to knowledge of the items and power to exercise dominion and control over them."

There was no Evidence Showing that Foster had the Intention to Exercise Dominion and Control. The HSC moved on and held that the prosecution failed to show any evidence that Foster had the intent to exercise dominion and control over the gun and ammo.

In Moniz, the ICA examined constructive possession of a scale as drug paraphernalia and marijuana found in apartment shared by husband and wife. The ICA held that even though they had lived together and even though the wife--Juliet Moniz--saw and could have used the scale and marijuana, there was no evidence establishing her intent to do just that. Similarly, in State v. Brown, 97 Hawai'i 323, 326, 37 P.3d 572, 585 (App. 2001), the ICA examined whether the defendant had constructive possession of a "burglar's tools." There, a van stolen from a seafood distributor crashed into a wall. When the police showed up, they found the defendant and a backpack on the floor of the van with bolt cutters in it. The ICA held that a jury could infer that the backpack was not part of the seafood distributor and that it must have come from the person who stole the van in the first place.

Here, the HSC held that Foster's case is akin to Moniz and distinguishable from Brown. The gun and ammo were known to Foster and he could have taken hold of it. But he didn't. That knowledge and ability alone was not enough to show constructive possession. And unlike the defendant in Brown, there was no evidence that Foster and Malano planned to go deer hunting or pleasure shooting out in Kaupo. Finally, the HSC turned to two federal cases to support its holding that merely being the driver is not enough to show a joint venture into criminal activity. See United States v. Crain, 33 F.3d 480, 486 (5thCir. 1994) ("when two or more people are occupying a place, a defendant's control over the place is not by itself enough to establish constructive possession of contraband found there."); United States v. Wright, 24 F.3d 732, 735 (5th Cir. 1994) ("while dominion over the vehicle certainly will help the government's case, it alone cannot establish constructive possession of a weapon found in the vehicle, particularly in the face of evidence that strongly suggests that somebody else exercised dominion and control over the weapon.").

In the end, the HSC vacated the ICA's judgment and reinstated the order of acquittal.

Justice Acoba's Concurrence. Justice Acoba agreed with the majority that there was no evidence establishing that Foster intended to exercise dominion and control over the gun and ammo. However, he wrote separately because he did not believe that there was evidence showing that Foster even had the power to exercise dominion and control. Justice Acoba pointed out that there was no evidence that Foster knew what was in the ukulele case when he picked up Malano. Malano at some point got out of the vehicle, fired off the rounds, and got back in. As they drove toward Ulupalakua, Gonsalves was loading the gun. Foster kept driving. For Justice Acoba there was no evidence that Foster touched the gun and ammo or that his access was freely accessible to him.

Proving Intent is Never Easy. Mere presence to an item is not enough to show possession of that item. Moreover, the HSC made it clear that knowing about the item and having the ability to possess it is not enough to show intent to possess. Something more is needed. So what would prove it?

Prosecutors have to wrestle with this question in not only firearms cases, but cases involving drugs, unlawful fishing/hunting, and even stolen property. Each case presents a different set of circumstances and challenges.


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