               IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                  Docket Nos. 39169/39170

STATE OF IDAHO,                                 )     2013 Unpublished Opinion No. 679
                                                )
       Plaintiff-Respondent,                    )     Filed: September 24, 2013
                                                )
v.                                              )     Stephen W. Kenyon, Clerk
                                                )
TESHA JOWANE SUNDAY,                            )     THIS IS AN UNPUBLISHED
                                                )     OPINION AND SHALL NOT
       Defendant-Appellant.                     )     BE CITED AS AUTHORITY
                                                )

       Appeal from the District Court of the Third Judicial District, State of Idaho,
       Canyon County. Hon. Bradly S. Ford, District Judge.

       Judgment of conviction for felony possession of a controlled substance and
       possession of drug paraphernalia, affirmed.

       Sara B. Thomas, State Appellate Public Defender; Spencer J. Hahn, Deputy
       Appellate Public Defender, Boise, for appellant. Spencer J. Hahn argued.

       Hon. Lawrence G. Wasden, Attorney General; John C. McKinney, Deputy
       Attorney General, Boise, for respondent. John C. McKinney argued.
                 ________________________________________________
GRATTON, Judge
       Tesha Jowane Sunday appeals from her judgment of conviction for felony possession of a
controlled substance, Idaho Code § 37-2732(c)(1), and possession of drug paraphernalia, I.C.
§ 37-2734A(1). We affirm.
                                               I.
                    FACTUAL AND PROCEDURAL BACKGROUND
       Pursuant to a search warrant, the Caldwell Police Department searched the residence
where Sunday was staying. Four to six individuals were in the residence during execution of the
warrant including Sunday, who was in the living room. Sunday told an officer that she was
staying in the master bedroom and that she had personal belongings in that room.
       A search of the master bedroom led to the discovery of methamphetamine, marijuana,
and drug paraphernalia.        Officers found a cigarette pack containing a baggie of
methamphetamine and a pipe with a white powder residue in it. The cigarette pack was on an

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end table between two camping chairs that were situated next to the bed. Testimony revealed
that Sunday smoked cigarettes and that her purse and identification were found on the bed,
roughly two feet from where the methamphetamine was found. Officers also found two digital
scales, commonly used to measure illegal narcotics, on the end table and Sunday’s court
documents were found inside a dresser. The marijuana was located on a shelf inside the closet.
When the search began, a woman named Bethany was in the master bedroom’s bathroom.
Bethany admitted to possession of a “meth pipe,” but officers seized multiple pipes during the
search and it was unclear which pipe she claimed was hers.
       Sunday was charged with possession of methamphetamine, marijuana, and paraphernalia.
At trial, the court denied two of Sunday’s requested jury instructions relating to constructive
possession and the requirement of unity of act and intent.       The jury convicted Sunday of
possession of methamphetamine and paraphernalia, but acquitted her of the marijuana charge.
Sunday timely appeals.
                                               II.
                                          ANALYSIS
       Sunday claims there was insufficient evidence to support a conviction of possession of
methamphetamine, and that the trial court erred when it denied two of her requested jury
instructions.
A.     Sufficiency of the Evidence
       Sunday claims the State did not present sufficient evidence from which a reasonable trier
of fact could conclude she had constructive possession of the methamphetamine found in the
cigarette pack. Appellate review of the sufficiency of the evidence is limited in scope. A finding
of guilt will not be overturned on appeal where there is substantial evidence upon which a
reasonable trier of fact could have found that the prosecution sustained its burden of proving the
essential elements of a crime beyond a reasonable doubt. State v. Herrera-Brito, 131 Idaho 383,
385, 957 P.2d 1099, 1101 (Ct. App. 1998); State v. Knutson, 121 Idaho 101, 104, 822 P.2d 998,
1001 (Ct. App. 1991). We will not substitute our view for that of the trier of fact as to the
credibility of the witnesses, the weight to be given to the testimony, and the reasonable
inferences to be drawn from the evidence. Knutson, 121 Idaho at 104, 822 P.2d at 1001; State v.
Decker, 108 Idaho 683, 684, 701 P.2d 303, 304 (Ct. App. 1985). Moreover, we will consider the




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evidence in the light most favorable to the prosecution. Herrera-Brito, 131 Idaho at 385, 957
P.2d at 1101; Knutson, 121 Idaho at 104, 822 P.2d at 1001.
        Absent actual possession of the controlled substance, the State must establish
constructive possession by showing the defendant knew of the substance and had the power and
intention to control it. State v. Blake, 133 Idaho 237, 242, 985 P.2d 117, 122 (1999); State v.
Betancourt, 151 Idaho 635, 638, 262 P.3d 278, 281 (Ct. App. 2011). Constructive possession
exists where there is a sufficient nexus between the defendant and the controlled substance to
show the defendant had the power and the intent to exercise dominion or control over the
substance.    State v. Garza, 112 Idaho 778, 784, 735 P.2d 1089, 1095 (Ct. App. 1987).
Constructive possession may be “joint or exclusive.” Blake, 133 Idaho at 242, 985 P.2d at 122.
A jury may infer knowledge of the substance where a defendant is in control of the premises, but
additional circumstances showing knowledge are necessary when the control is not exclusive.
Id.
        The State presented evidence that Sunday told officers she had been staying in the master
bedroom where the methamphetamine was found and that she had personal belongings in the
room. Sunday’s purse, wallet, and identification were found approximately two feet from the
cigarette pack that contained the methamphetamine and pipe. Additionally, female apparel was
found on the chair between the bed Sunday had been using and the cigarette pack; Sunday’s
court documents were found in a dresser drawer located in the master bedroom.
        Further, the State presented evidence that two digital scales, known to measure illegal
narcotics, were found on the end table between two camping chairs. A spoon with white residue
was found located in the dresser drawer lying on top of Sunday’s court documents. A witness
testified that Sunday smoked cigarettes and a letter posted in the living room of the house
indicated the residents shared drugs. A jury could conclude from this evidence that not only did
Sunday have knowledge of the methamphetamine’s presence, but also that she had dominion or
control over it.
        Sunday argues Bethany’s presence and confession removes any inference the
methamphetamine was Sunday’s. Though Bethany did admit to ownership of a pipe, at least two
pipes were found at the residence and the jury could conclude that the pipe referenced was not
the one found in the master bedroom. And as noted in Blake, more than one individual can
possess an item; thus, Bethany’s ownership would not preclude the jury from finding Sunday had


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possession. Finally, the jury heard from two defense witnesses with varying contradictions to the
State’s evidence; however, questions of weight and credibility are left with the trier of fact. In
the light most favorable to the State, the jury could conclude that Sunday both knew of the
presence of methamphetamine and had the intent to exercise dominion or control over it.
B.     Jury Instructions
       Sunday challenges the denial of two of her proposed jury instructions: (1) an instruction
explaining that “mere proximity” alone cannot establish constructive possession; and (2) an
instruction on the requirement of the existence of “a union or joint operation of act and intent.”
The question whether the jury has been properly instructed is a question of law over which we
exercise free review. State v. Severson, 147 Idaho 694, 710, 215 P.3d 414, 430 (2009). When
reviewing jury instructions, we ask whether the instructions as a whole, and not individually,
fairly and accurately reflect applicable law. State v. Bowman, 124 Idaho 936, 942, 866 P.2d 193,
199 (Ct. App. 1993). A trial court must inform the jury on “all matters of law necessary for their
information,” I.C. § 19-2132(a), where sufficient evidence supports it. State v. Johns, 112 Idaho
873, 880-81, 736 P.2d 1327, 1334-35 (1987) (citations omitted).
       1.      Instruction on mere proximity
       Sunday requested a jury instruction that read, “mere proximity to contraband cannot
establish constructive possession.” The trial court denied this instruction, instead relying on the
definition for possession from the Idaho Criminal Jury Instructions:
              A person has possession of something if the person knows of its presence
       and has physical control of it, or has the power and intention to control it. More
       than one person can be in possession of something if each knows of its presence
       and has the power and intention to control it.

The instruction recites verbatim Idaho Criminal Jury Instruction 421. The I.C.J.I. are presumed
correct, and trial courts should closely follow the pattern instructions to avoid unnecessary
appeals. McKay v. State, 148 Idaho 567, 571 n.2, 225 P.3d 700, 704 n.2 (2010); State v. Hopper,
142 Idaho 512, 514, 129 P.3d 1261, 1263 (Ct. App. 2005).
       The trial court properly relied on the I.C.J.I. definition of possession because I.C.J.I. 421
provides the requirements necessary to convict a defendant of a possession charge. Specifically,
knowledge of the presence of the substance and power and intention to control it; therefore, a
jury is unable to find a defendant guilty based on mere proximity alone. The definition of



                                                4
possession in I.C.J.I. 421 adequately covers the law of constructive possession and an instruction
on “mere proximity” was unnecessary.
        2.      Instruction on union or joint operation of act and intent
        At trial, Sunday argued that an instruction on union of act and intent was necessary
because possession of a controlled substance is a general intent crime. The trial court denied the
proposed unity instruction because the court was concerned the instruction could confuse or
mislead the jury since one of the charges was a specific intent crime. On appeal, the State argues
that not only would the instruction have confused the jury, but also that the definition of
possession adequately covers the requirement of unity of act and intent.
        Sunday’s proposed instruction was taken from I.C.J.I. 305, “In every crime or public
offense there must exist a union or joint operation of act and intent or criminal negligence.”
I.C.J.I. 305 (brackets omitted). The comment for I.C.J.I. 305 further explains, “[t]he word
‘intent’ does not mean an intent to commit a crime but merely the intent to knowingly perform
the interdicted act, or by criminal negligence the failure to perform the required act” (citing State
v. Parish, 79 Idaho 75, 310 P.2d 1082 (1957)). Finally, the comment for I.C.J.I. 305 takes note
that the “instruction is unnecessary when the crime charged requires a specific mental element
and the jury is properly instructed regarding that mental element” (citing State v. Hoffman, 137
Idaho 897, 55 P.3d 890 (Ct. App. 2002)).
        A court should customarily give an instruction on the requirement that the act and intent
occur in unity when the charge is a general intent crime. See State v. Baldwin, 69 Idaho 459,
464, 208 P.2d 161, 164 (1949) (noting a trial court should “generally” give an instruction on
unity). Yet, as the comment explains, the instruction is unnecessary for specific intent crimes.
Sunday was charged with two general intent crimes for possession of a controlled substance and
the specific intent crime of possession of paraphernalia. The trial court correctly noted that to
include the instruction in the present case could lead the jury to apply the instruction to the
differing charges. More importantly, for the purpose of Sunday’s challenge on appeal, so long as
the unity of act and intent requirement was adequately covered elsewhere in the jury instructions,
there is no reversible error.
        The instruction given to the jury on possession provided adequate coverage of the legal
concept that the act must occur simultaneously with the requisite intent. The definition of
possession, taken from I.C.J.I. 421, indicates the State needed to establish that Sunday “knew” of


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the presence of the substance and “had physical control of it, or had the power and intention to
control it.” The instruction adequately provides for the concept of unity by expressing both
intent and act together in the instruction and the jury could not convict Sunday absent finding
that both existed. The instruction on possession adequately instructed the jury that a union or
joint operation of act and intent existed and thus, the proposed instruction was unnecessary.
                                               III.
                                        CONCLUSION
       The State presented sufficient evidence to convict Sunday of possession of
methamphetamine and the court did not err in refusing to give Sunday’s proposed jury
instructions. Sunday’s judgment of conviction is affirmed.
       Chief Judge GUTIERREZ and Judge MELANSON CONCUR.




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