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Criminal Jury Instructions

Criminal Jury Instructions Home

2.11-1  Possession

Revised to November 17, 2015

Note:  "Possess" is defined by General Statutes 53a-3 (2) as "to have physical possession or otherwise to exercise dominion or control over tangible property."  A complete instruction on possession may require explanations of constructive possession and nonexclusive possession if relevant to the case.  Tailor this instruction according to the specific allegations of possession.

"Possession" means either having the (substance / object) on one's person or otherwise having control over the (substance / object), that is, knowing where it is and being able to access it.

Possession also requires knowledge.  The defendant must have knowingly possessed the (substance / object).  A person acts knowingly with respect to the possession of something when (he/she) is aware that (he/she) is in possession of it and is aware of the character of it.  The state must prove beyond a reasonable doubt that the defendant knew that (he/she) was in possession of a <insert substance or object allegedly possessed>.  <See Knowledge, Instruction 2.3-3.>

Constructive possession
"Possession" does not mean that one must have the illegal (substance/object) upon one's person. Rather, a person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise control over a thing is deemed to be in constructive possession of that item. As long as the (substance / object) is or was in a place where the defendant could, if (he/she) wishes, go and get it, it is in (his/her) possession.

The mere presence of the defendant (at the premises / in the vehicle) where the (substance / object) is found is not sufficient to support a finding of constructive possession. However, presence may be a material and probative factor for you to consider along with all of the other evidence.

If the defendant was the only person occupying the (premises / vehicle), then you may infer that (he/she) was in possession of the (substance / object), if such inferrence is reasonable under all the circumstances of the case.

If the defendant is not in exclusive possession of the premises where the illegal item is found, it may not be inferred that (he/she) knew of the presence of the illegal item and had control of it, unless there are other incriminating statements or circumstances tending to support that inference. If the evidence shows that more than one person had access to the (premises / vehicle), i.e., there was more than one occupant of the (premises / vehicle), then the defendant's knowledge and intent to possess the (substance / object) must be established by evidence other than the mere fact that the defendant, along with others, occupied or had access to the (premises / vehicle) where the (substance / object) was found.

Commentary

"In criminal law, the word 'possession' generally denotes an intentional control of a designated thing accompanied by knowledge of its character. . . .  Mere presence in the vicinity of stolen property does not establish possession."  (Citations omitted.)  State v. Kas, 171 Conn. 127, 130 (1976); see also State v. Gooden, 89 Conn. App. 307, 316-17, cert. denied, 275 Conn. 918-19 (2005) (reversed because instruction failed to require knowledge of the character of the substance); State v. Smith, 38 Conn. App. 29, 42 (1995) (court adequately explained that possession "signifies intentional control of a designated thing accompanied by a knowledge of its character").

"The essence of exercising control is not the manifestation of an act of control but instead it is the act of being in a position of control coupled with the requisite mental intent.  In our criminal statutes involving possession, this control must be exercised intentionally and with knowledge of the character of the controlled object."  State v. Hill, 201 Conn. 505, 516 (1986); see also State v. Jarrett, 82 Conn. App. 489, 495-96, cert. denied, 269 Conn. 911 (2004) (instruction that defendant must exercise direct control over the alleged contraband was sufficient); State v. Respass, 256 Conn. 164, 181-84, cert. denied, 534 U.S. 1002, 122 S.Ct. 478, 151 L.Ed.2d 392 (2001) (control must be intentional); State v. Fasano, 88 Conn. App. 17, 25, cert. denied, 274 Conn. 904 (2005), cert. denied, 546 U.S. 1101, 126 S.Ct. 1037, 163 L.Ed.2d 873 (2006) ("control of the object must be exercised intentionally").

Constructive possession
Constructive possession is "possession without direct physical contact."  State v. Davis, 84 Conn. App. 505, 510, cert. denied, 271 Conn. 922 (2004).  As with actual possession, "it is necessary to establish that the defendant knew the character of the substance, knew of its presence and exercised dominion and control over it."  Id.  "One factor that may be considered in determining whether a defendant is in constructive possession of narcotics is whether he is in possession of the premises where the narcotics are found."  State v. Smith, 94 Conn. App. 188, 193, cert. denied, 278 Conn. 906 (2006) (sufficient facts that defendant had exclusive control of motor vehicle).  "[O]ne who owns or exercises dominion or control over a motor vehicle in which a contraband substance is concealed may be deemed to possess the contraband."  (Internal quotation marks omitted.)  State v. Delassantos, 211 Conn. 258, 277-78, cert. denied, 493 U.S. 866, 110 S.Ct. 188, 107 L.Ed.2d 142 (1989).

Nonexclusive possession
"Where the defendant is not in exclusive possession of the premises where the [illegal item is] found, it may not be inferred that [the defendant] knew of the presence of the [illegal item] and had control of [it], unless there are other incriminating statements or circumstances tending to buttress such an inference. . . .  The doctrine of nonexclusive possession was designed to prevent a jury from inferring a defendant's possession of [an illegal item] solely from the defendant's nonexclusive possession of the premises where the [illegal item was] found. . . .  When the doctrine applies, an instruction focuses the jury's attention on the defendant's knowledge and intent to possess, precluding it from inferring possession from the mere fact that the defendant, along with others, occupied or had access to the premises wherein the contraband was found."  (Citations omitted; internal quotation marks omitted.)  State v. Williams, 258 Conn. 1, 7-8 (2001).  "The doctrine of nonexclusive possession provides that where there exists access by two or more people to the [contraband] in question, there must be something more than the mere fact that [contraband was] found to support the inference that the [contraband was] in the possession or control of the defendant. . . .  Thus, the charge is appropriate in circumstances where the defendant has possession of the premises along with at least one other individual."  (Citation omitted; internal quotation marks omitted.)  Id., 11.  See also State v. Johnson, 316 Conn. 45, 62 (2015) (distinguishing control over premises from control over the contraband); State v. Nesmith, 220 Conn. 628, 632-36 (1991) (evidence did not support instruction on nonexclusive possession); State v. Alfonso, 195 Conn. 624, 634 (1985) (no circumstantial evidence from which the jury could infer that defendant was aware of the presence of the marijuana in the apartment); State v. Straub, 90 Conn. App. 147, 152-53, cert. denied, 275 Conn. 927 (2005) (sufficient that court instructed that possession required more than mere presence); State v. Brunori, 22 Conn. App. 431, 436-37, cert. denied, 216 Conn. 814 (1990) (discussing evidence sufficient to support constructive possession of contraband found in a public place).
 


 

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