Lead Opinion
Pаtricia Bash appealed from her conviction and sentence for possession of marijuana. She contended among other things that the district court erred in finding there was sufficient evidence to support her conviction of the charge. We transferred the case to the court of appeals, which affirmed. We granted the defendant’s application for further review and now hold that there was insufficient evidence to support the conviction. Accordingly, we vacate the court of appeals decision, reverse the judgment of the district court, and remand the case for dismissal.
I. Background Facts and Proceedings.
On January 17, 2001, six Spirit Lake police officers executed a search warrant at an apаrtment shared by the defendant, her husband Kevin, and her three sons. The search warrant indicated that the officers were looking for, among other things, controlled substances and a safety deposit box.
The defendant, her husband, and their son Ty were home at the time the officers entered the apartment. The officers immediately arrested Kevin on an outstanding wаrrant and removed him from the residence.
One of the officers read the search warrant to the defendant whereupon, according to the officer, the defendant said she could “show [him] where the stuff is.” The officer testified that he believed the defendant was referring to “[a]ny illegal drugs or contraband that may be in the residence.” After reading the defendant her Miranda rights, the officer followed the defendant into the master bedroom and she told him, “it’s on his nightstand in a cardboard box, that it’s Kevin’s stuff, that his bong ... was sitting on the floor next to the bed.”
The defendant’s version was somewhat different from the officer’s testimony. She testified she heard officers talking about a lock box they were looking for in the residence. When officers asked her if thеre was “anything in the house they should know about,” she responded, “If there is anything here, it would be on Kevin’s side of the bed.” She pointed towards his nightstand which was on the left side of the bed. The officer then arrested her and read her Miranda rights to her.
On Kevin’s nightstand the officers found a cardboard box bearing the word “Frís-eos.” Inside the box, they found a green plant material later identified as 1.37 grams of marijuana. The defendant testified she did not know what was in the box
The defendant also directed the officers to the lock box, which contained a marriage certificate, birth certificates, insurance papers, and thе key to the box.
The State charged the defendant with possession of a controlled substance (marijuana), in violation of Iowa Code section 124.401(5) (Supp.1999). Later, the defendant moved to dismiss, contending the State would be unable to prove she exercised dominion and control over the controlled substance based on our decision in State v. Atkinson,
The parties tried the case to a jury. At the close of the State’s case and again at the close of all the evidence, the defendant moved for judgment of acquittal, contending, as she did in her motion to dismiss, that the State had failed to prove she had dominion and contrоl over the marijuana. The district court denied the motion for judgment of acquittal following which the jury found the defendant guilty as charged. Later, the district court denied the defendant’s motion in arrest of judgment and motion for new trial.
The district court sentenced the defendant to a thirty-day suspended sentence with credit for time served and imposed a $250 fine and a $75 surcharge.
Following the defendant’s appeal, we transferred the case to the court of appeals, which affirmed. We granted the defendant’s application for further review.
II.Issue.
Among other things, the defendant contends the district court erred in finding there was sufficient evidence to support her conviction for possession of a controlled substance. Because we find this issue dispositive, we confine our discussion to it.
III. Scope of Review.
Recently, we explained the scope of review for challenges to the sufficiency of the evidence supporting a guilty verdict:
We review challenges to the sufficiency of the evidence supporting a guilty verdict for correction of errors at law. We will uphold a verdict if substаntial record evidence supports it. Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.
We review the evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record, not just the evidence that supports the verdict.
The State must prove every fact necessary to constitute the crime with which the defendant is charged. The evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture.
State v. Webb,
IV. Sufficiency of the Evidence.
Unlawful possession of a controlled substance requires proof that the defendant: (1) exercised dominion and control over the contraband, (2) had knowledge of its presence, and (3) had knowledge that the material was a controlled substance. State v. Reeves,
We know from the State v. Atkinson case and other cases of a similar nature on constructive possession that mere proximity to contraband is insufficient to meet the State’s burden.
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Here, the facts are very similar [to those in Atkinson ]. We have the premises shared by these two people, the married persons, and contraband found in that location. It is undisputed that it was Kevin Bash that was the target of their investigation, undisputed that these were Kevin Bash’s effects, not [the defendant’s] effects, wherein the contraband was found.
There is no evidence that the State has brought forward to show that my client had any dominion or control, any ownership or proprietary interest in the contraband that was found, and we cannot infer that dominion and control where thе defendant is not in the exclusive possession of the premises. These were premises shared by her and her husband. And the State then has to come forward with some evidence that shows that she had that dominion and control. They have not provided any evidence of the dominion and control element as required.
As in the district court, the defendant’s sufficiency-of-the-evidence challenge here is to the first element of the crime charged: dominion and control. Possession can be either actual or constructive. State v. Maghee,
At the time of this incident, it is undisputеd that the premises were shared by the defendant, her husband, and their children. Under these circumstances, knowledge of the presence of the marijuana and the authority or right to maintain control of it, that is, constructive possession, could not be inferred by the jury from the defendant’s joint control of the premises, but had to be established by other proof. Webb,
In her motion for judgment of acquittal, the defendant’s sufficiency-of-the-evidence challenge did not include her lack of knowledge of the presence of the marijuana. Rather, as her argument on the motion indicates, such challenge only included the authority or right to maintain control of the marijuana. On this point, the State relies heavily on the following testimony from the defendant:
Q. Now, could you have — was there any legal reason that would prevent you from taking that box and disposing of it? A. It wasn’t mine.
Q. I understand that. But is there— it’s proper that you generally regard it as your husband’s? A. Correct.
Q. But you shared that apartment with him? A. Correct.
Q. Now, is there any legal reason why you could not have picked up that box and taken it and remоved it from the house. A. It was not mine.
Q. ... Could you have taken the contents of that box and flushed it down the toilet? A. No. It was not mine.
Q. Okay. Physically, would you have been able to do that? A. Physically, yes.
The State argues that the defendant’s admission that she could physically have flushed the marijuana down the toilet is proof that she had the authority or right to maintain control of the marijuana. This position is at odds with what we said in Atkinson:
While it seems anomalous to look at a defendant’s “right” to control illegal drugs in order to establish possession, that concept basically distinguishes a defendant’s raw physical ability to exercise control over contraband simply because of the defendant’s proximity to it and the type of rights that can be considered construсtive possession.
Atkinson,
Thus, the authority or right to maintain control includes something more than the “raw physical ability” to exercise control over the controlled substance. The defendant must have some proprietary interest or an immediate right to control or reduce the controlled substance to the defendant’s possession. See id. No such proof wаs produced here. The State seems to concede, as it must, that the box containing marijuana was located on the husband’s side of the bed with his personal effects. Additionally, there was no evidence that the defendant shared any ownership of the box or the marijuana in it or had any right to control either item.
Accordingly, we conclude the State failed to prove the defendant had dominion and control over the marijuana and thus failed to prove constructive possession of it. We therefore vacate the court of appeals decision, reverse the judgment of the district court, and remand the case for dismissal.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS.
Dissenting Opinion
(dissenting).
I respectfully dissent. With each constructive possession case since State v. McDowell,
State v. Reeves is our seminal case in the area of constructive possession of illegal contraband.
Despite some of our cases that followed, Reeves remains our polestar in constructive possession cases. However, in our persistent vigilance to protect innocent bystanders from being convicted of a drug possession charge simply because they were in the wrong place at the wrong time, we have lost contact with those principles that guide our jury process and we have established legal requirements to support a possession conviction unknown in other areas of the law. See State v. Simpson,
In recent years, we have, perhaps not musingly, elevated the judicially created inference, discussed in Reeves into a legal standard for determining the sufficiency of evidence. Consequently, if the facts of a constructive possession casе do not fit the Reeves judicial inference, we do not permit the fact finder to draw its own inferences based on its own mental processes and experiences from all the evidence in the case. Instead, we insist upon some form of direct or concrete evidence of possession such as incriminating statements, incriminating actions, or fingerprints and — with this сase — an additional legal requirement that a possessor maintain a proprietary interest or rights in the contraband.
The majority acknowledges, as do our recent cases, that the lack of evidence to support a judicial inference of constructive possession in a drug possession case only means the state must produce other еvidence of constructive possession. See State v. Cashen,
The error we have committed since McDowell can be traced to our failure to distinguish standardized court-created inferences based on prior judicial decisions finding proof of one fact to be sufficient to infer proof of an element of the crime from those common rational inferences from evidence used by fact finders in every case based on their mental processes and expe
Instead of allowing the jury to draw inferences and reach conclusions from the evidence, the majority, to compound matters, now finds it necessary to introducе a new rule of limitation. This new rule requires an accused to have “some proprietary interest ... or an immediate right to control or reduce the controlled substance to the defendant’s possession” in those cases where the illegal drug is not exclusively and immediately accessible to the defendant. This standard has little relationship to the original judicial inference from which it was derived. Constructive possession is not about proprietary interest in property, but control. The effect of this rule is to prevent a jury from weighing and considering all of the evidence in the case, as the fact finder is permitted to do in all other cases, to draw reasonable and rational inferences of possession.
I could perhaps agree with the majority that constructive possession was not established in this case based on the mere fact that the box of marijuana and the bong was found near the husband’s side of the bed in the bedroom the defendant shared with her husband. This alone may not amount to substantial evidence of control or the right to maintain control of the marijuana. However, instead of deciding the case on the evidence, the majority injects a new legal standard that in most cases will severely limit the concept of constructive possession.
Our law in this area has created murky jurisprudence. We should treat constructive possession cases like any other criminal case, and permit the jury to separate the innocent bystander from the guilty perpetrator under the same standards used in other criminal cases.