Dirks v. State

         Appeal from the District Court, Third Judicial District, Trial Court No. 3KN-12-1034 CR Kenai, Matthew Christian, Magistrate Judge.

          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.

          OPINION

          MANNHEIMER Judge

         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 possessing a firearm "on [one's] person, or in the interior of a vehicle in which [one] is present, ... when [one's] physical or mental condition is impaired as a result of ... intoxicating liquor or a controlled substance".

         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 physical control, 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 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 ...