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              IN THE COURT OF APPEALS OF THE STATE OF ALASKA


DAVID P. DIRKS,
                                                     Court of Appeals No. A-11534
                           Appellant,               Trial Court No. 3KN-12-1034 CR

                    v.
                                                             O P I N I O N
STATE OF ALASKA,

                           Appellee.                   No. 2531 — January 6, 2017


             Appeal from the District Court, Third Judicial District, Kenai,
             Matthew Christian, Magistrate Judge.

             Appearances: 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.

             Judge MANNHEIMER.


             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 possessinga 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 physicalcontrol, 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
                                            –2–                                          2531

              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 of constructive possession
in Dirks’s case.
              “Constructive possession” refers to a person’s authority to exercise
dominion or control over property even though it is not in their immediate physical
possession. Thus, a person continues to “possess” their household belongings even
though the person is physically away from home.
              (The law uses the adjective “constructive” to refer to a situation where an
action or a state of affairs does not actually fit within the normal definition of some
relevant concept, but the action or state of affairs will nevertheless be treated as the legal
equivalent. Black’s Law Dictionary gives the following example of the usage of
“constructive”: “[T]he court held that the shift supervisor had constructive knowledge
of the machine’s failure even though he did not actually know until two days later[.]” 1)
              In Dirks’s case, the prosecutor never argued a theory of constructive
possession. That is, the prosecutor did not argue that Dirks was authorized to exercise
dominion or control over a handgun that was located elsewhere. Rather, the prosecutor
argued that Dirks “possessed” Pemberton’s handgun because the holstered weapon was

   1
       Bryan A. Garner (editor in chief), Black’s Law Dictionary (8th ed. 2004), p. 333.

                                            –3–                                          2531

in Dirks’s vehicle, lying on the back seat, and Dirks knew that it was there. Thus, if
Dirks “possessed” this handgun, his possession was an immediate “physical” possession
— not a “constructive” possession of a weapon located somewhere else. See our
discussion of this point in Alex v. State, 127 P.3d 847, 848, 850-52 (Alaska App. 2006).
              The jury instruction also spoke about how two or more people can jointly
possess property, and how a person can possess property through an agent, and how a
person can possess property “indirectly”. But there was no evidence to suggest that any
of these concepts applied to Dirks’s case.
              In particular, there was no evidence to suggest that Pemberton was not the
sole owner of the gun, or that Pemberton owned the gun but possessed it as Dirks’s
agent, or that Dirks possessed the weapon “indirectly” in some other manner. The only
relevant evidence on these matters was Pemberton’s testimony that Dirks did not use this
gun — although Pemberton acknowledged that he would have been willing to let Dirks
shoot the gun if Dirks had asked (as long as “[they] were somewhere [where it was] safe
to shoot”).
              But given the hodgepodge of legal theories embedded in this jury
instruction, the prosecutor was able to argue that Dirks “possessed” the handgun, even
though the gun belonged to Pemberton, simply because Dirks knew that the gun was in
his car and within his reach. This theory of prosecution was improper.


      Why we reverse Dirks’s conviction


              The legalconcept of “possession” does not include all items of property that
are within a person’s reach or in a person’s presence. Shoppers walking down the aisle
of a store do not “possess” all of the merchandise lying before them on the shelves, nor
do museum visitors “possess” all of the artwork that they pass within reach of.

                                          –4–                                        2531

              In State v. Niedermeyer, 14 P.3d 264, 272 (Alaska 2000), the Alaska
Supreme Court declared that “possession” was generally understood to mean “having or
holding property in one’s power; the exercise of dominion over property.” But as the
facts of Alex demonstrated, and as the facts of Dirks’s case again demonstrate, the
supreme court’s formulation presents certain difficulties.
              As we explained in Alex, the word “power” is ambiguous. It can refer to
a person’s right or authority to exert control over people or property, but it can also refer
to anything a person might be physically capable of doing if not impeded by
countervailing force.
              Thus, if “possession” of property were defined as simply the “power” to
exercise control over an object, this would suggest that a person could be found guilty
of “possessing” an item of property that they did not own, and that they had no intention
of using or even touching, merely because the person knew where the property was
located and the person had immediate physical access to it.
              This, in fact, was the State’s theory of prosecution in Dirks’s case. And in
Alex, we pointed out the problem with this approach.
              Alex gave the example of children living in a household who know that
there is beer in the refrigerator or liquor in the cupboard — i.e., alcoholic beverages
stored in places where “it [was] within the children’s physical power to gain access”.
We pointed out that if “possession” was broadly defined to mean “the power to exercise
dominion or control over property”, one could argue that the children were in possession
of these alcoholic beverages, and thus guilty of a crime under AS 04.16.050 (minor in
possession of alcoholic beverages). Alex, 127 P.3d at 851.
              To avoid results like this, some courts have framed their definition of
“possession” in terms of a person’s “authority” or “right” to exert control over an item.
See, for example, State v. Henderson, 696 N.W.2d 5, 9 (Iowa 2005). Other courts have

                                            –5–                                         2531

worded the test as whether the defendant had both the “power and intention” to exert
control or dominion over the item. See, for example, United States v. Cousins, 427 F.2d
382, 384 (9th Cir. 1970).
              These two approaches to defining “possession” do not yield exactly the
same results in all situations, but they are both designed to avoid the kind of result that
occurred in Dirks’s case. A defendant may not be found guilty of “possessing” an item
of property that belongs to someone else merely because the owner of the property has
brought the property to the defendant’s residence, vehicle, or place of business, and has
placed the property within the defendant’s reach, and the defendant is aware that the
property is there.
              For these reasons, we REVERSE Dirks’s conviction.




                                           –6–                                        2531

