holding State presented substantial evidence of constructive possession when even though defendant did not reside in house being searched, defendant "regularly visited and sold drugs from" house; defendant was present in room containing drugs prior to officers entering house for search; defendant sold cocaine to another person in house earlier in evening; other drug dealer, who lived in house, kept only small amount of cocaine on his person and kept his cocaine buried in yard; and defendant's gun was found in room containing drugs
How later courts described this case
- holding State presented substantial evidence of constructive possession when even though defendant did not reside in house being searched, defendant "regularly visited and sold drugs from" house; defendant was present in room containing drugs prior to officers entering house for search; defendant sold cocaine to another person in house earlier in evening; other drug dealer, who lived in house, kept only small amount of cocaine on his person and kept his cocaine buried in yard; and defendant's gun was found in room containing drugs
- "Our determination of whether the State presented sufficient evidence of incriminating circumstances depends on the totality of the circumstances in each case." (citation and quotation marks omitted)
- "A person has actual possession of a controlled substance if it is on his person, he is aware of its presence, and, either by himself or together with others, he has the power and intent to control its disposition or use." (citation omitted) (emphasis added)
Written by the judges who cited it.
The opinion
ELMORE, Judge,
dissenting.
I do not believe that the State established defendant’s constructive possession of the cocaine in the entertainment room by presenting additional incriminating circumstances sufficient to deny defendant’s motion to dismiss. Therefore, I respectfully dissent.
Simply put, there were too many other people with an interest in the cocaine to properly infer that defendant had constructive possession of the cocaine: There were four people besides defendant in the house at the time of the “bust.” One of those four people, Hughes, was also a drug dealer. A second person, Knight, received payment in kind from both defendant and Hughes for allowing them to use his house to sell drugs. The other two people, Bio and Reyes, were both drug users who were in the house for the purpose of purchasing and using cocaine. Moreover, Knight’s arrangement with defendant suggests that Knight, rather than defendant, was the owner of at least *718 some of the cocaine in the entertainment room. As the owner, Knight, rather than defendant, would have had the intent and power to maintain control over his portion of the cocaine’s use and disposition. Because of these factors, I disagree with the majority’s conclusion that the State proved that defendant had constructive possession of the cocaine found in the entertainment room, and therefore would hold that the State failed to establish that he knowingly possessed twenty-eight grams or more of cocaine.
Accordingly, I would hold that the trial court erred by denying defendant’s motion to dismiss and would vacate defendant’s conviction for trafficking in cocaine by possessing more than twenty-eight grams but less than two hundred grams of cocaine.