                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________                    FILED
                                                             U.S. COURT OF APPEALS
                                 No. 10-11409                  ELEVENTH CIRCUIT
                                                                   JUNE 14, 2012
                             Non-Argument Calendar
                                                                    JOHN LEY
                           ________________________
                                                                     CLERK

                   D. C. Docket No. 8:08-cr-00413-JSM-TGW-1


UNITED STATES OF AMERICA,
                                                                  Plaintiff-Appellee,

                                         versus

LONNIE DAVIS, JR.,
                                                               Defendant-Appellant.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                   (June 14, 2012)


Before EDMONDSON, HULL and BLACK, Circuit Judges.


PER CURIAM:

      Lonnie Davis, Jr., appeals his convictions for possession with intent to

distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(iii), and
(b)(1)(B)(iii), for which he was sentenced to 240 months’ imprisonment. No

reversible error has been shown; we affirm.

      Davis’s convictions arose from two traffic stops where Davis was driving a

car that contained crack cocaine. In both instances, Davis had a passenger in the

car; the car did not belong to Davis; and the drugs were discovered either in the

car’s center console or behind the glove compartment.

      At trial, Davis requested jury instructions about constructive possession and

mere presence. The district court denied the request, concluding that the standard

jury instructions covered the requested language. On appeal, Davis argues that the

district court abused its discretion in denying the requested jury instructions.

      “We review a district court’s refusal to give a requested jury instruction for

abuse of discretion.” United States v. Martinelli, 454 F.3d 1300, 1309 (11th Cir.

2006). The refusal to give a requested jury instruction constitutes reversible error

if “(1) the requested instruction was a correct statement of the law, (2) its subject

matter was not substantially covered by other instructions, and (3) its subject

matter dealt with an issue . . . that was so important that failure to give it seriously

impaired the defendant’s ability to defend himself.” Id.

      Because Davis’s requested instructions on constructive possession and mere

presence were covered substantially by other instructions given to the jury, we see

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no reversible error. As part of its instructions, the district court explained that “[a]

person who is not in actual possession, who has both the power and the intention

to later take control over something . . . is in constructive possession of it.” This

instruction encompasses Davis’s requested instruction that, “[f]or constructive

possession to exist, the Government must show that the Defendant has knowledge

of the thing possessed, coupled with the ability to maintain control over it or

reduce it to his physical possession.” Having the intent to take control over an

object presumes that the defendant has knowledge of the object, and having the

power to take control over an object is synonymous with having “the ability to

maintain control over it or reduce it to his physical possession.”

      In addition, the district court instructed the jury that the government had to

prove beyond a reasonable doubt that Davis “knowingly and willfully possessed”

the drugs and “possessed the substance with the intent to distribute it.” The court

defined the term “knowingly” to mean “that the act was done voluntarily and

intentionally and not because of mistake or accident,” and defined the term

“willfully” to mean “that the act was committed voluntarily and purposely with the

specific intent to do something the law forbids.” “Having received these

instructions, ‘the jury could not have attributed possession to [Davis] through his

mere presence alone, because mere presence would not establish voluntary [and]

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intentional possession.’” See United States v. Woodard, 531 F.3d 1352, 1365

(11th Cir. 2008). Thus, Davis’s requested instruction that “mere presence near

contraband or awareness of its location is insufficient to establish possession” was

covered substantially by the court’s other instructions.

      AFFIRMED.




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