DAVID P. DIRKS, Appellant,
STATE OF ALASKA, Appellee.
from the District Court, Third Judicial District, Trial Court
No. 3KN-12-1034 CR Kenai, Matthew Christian, Magistrate
T. McGee, Anchorage, under contract with the Public Defender
Agency, and Quinlan Steiner, Public Defender, Anchorage, for
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.
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
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
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".
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
pertinent procedural history of this case
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
"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.
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 ...