The Minnesota Court of Appeals, in State v. Hunter, ordered a new trial due to an erroneous jury instruction that too broadly defined the meaning of constructive possession. The court held that a person constructively possesses a controlled substance when the person knowingly exercises dominion and control over the controlled substance. It is not sufficient merely that the person knowingly exercises dominion and control over the place in which the substance was found when others had access to that place.

In the underlying case, Hunter was sitting in the driver’s seat of his vehicle in a parking lot with two other occupants who had recently entered the vehicle. This, among other circumstances, caused officers surveilling the parking lot to approach the vehicle based on their suspicions that its occupants may be involved in a drug sale. One of the approaching officers believed he saw Hunter holding a bag of cocaine in his hand. The officer then opened the passenger door at which time the cocaine was observed on the passenger seat before being pushed on to the floor of the vehicle by passenger seat occupant.


Hunter was charged with a narcotics offense and, after unsuccessful pretrial motions, the case was resolved by jury trial. At the conclusion of the trial, over the defense’s objection, the trial court instructed the jury that “constructive possession exists when an object is not on the person or in his immediate presence but it is in a place subject to that person’s conscious dominion and control.” Hunter was convicted and appealed.

The state, in support of the jury instruction, pointed to language in State v. Florine as supportive of the proposition that an individual need only exercise dominion and control over the place in which the substance was found even when others had access to that place. However appellate court did not agree with this interpretation.

In Florine, the Minnesota Supreme Court held that a jury may find that a defendant constructively possessed a controlled substance “in a place to which others had access and there is a strong probability (inferable from other evidence) that defendant was at the time consciously exercising dominion and control over it.” The state interpreted “it” to refer to the place, rather than the controlled substance itself. The defense was of the belief, and the appellate court agreed, that “it” referred to the controlled substance and therefore the jury instruction was erroneous.

The state argued that any error was harmless because this was an actual possession case, but the appellate court, again, did not agree. The state argued that this was an actual possession case due to the officer’s observations of Hunter holding the bag of cocaine, but the appeals court was unpersuaded due to evidence that the tint of the windows may have inhibited the approaching officer’s view of anything going on inside the vehicle. The court held that because the jury was not properly instructed on constructive possession and competing credible evidence existed as to whether the officer could have seen Hunter holding the drugs from outside the car, there was no way of knowing whether the jury found Hunter guilty because it believed that the officer saw the drugs in Hunter’s hand or whether it instead found him guilty based on the erroneous constructive-possession jury instruction.

Because the erroneous jury instruction was held not to be harmless, the case was remanded for a new trial. The appellate court’s holding in favor of the historically narrower definition of constructive posses sion, that a person must exercise dominion and control over the substance itself, rather than the place it was found in, is a victory for citizens’ constitutional rights.

If you or someone you know has been charged with a crime of any type, call the attorneys at The Law Office of John J. Leunig for a free phone consultation at (952) 540-6800.

857 N.W.2d 537

Decided December 22, 2014

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