C.A.P. v. State (Ex parte C.A.P.)

• Decision Date: 09 April 2021
• Docket Number: 1190930
• Citation: 336 So.3d 189 (Mem)
• Parties: EX PARTE C.A.P. (In re: C.A.P. v. State of Alabama )
• Court: Alabama Supreme Court

336 So.3d 189 (Mem)

EX PARTE C.A.P.(In re: C.A.P.

v.State of Alabama )

1190930

Supreme Court of Alabama.

April 9, 2021

Petition for Writ of Certiorari to the Court of Criminal Appeals (Jefferson Juvenile Court, Bessemer Division, JU-19-732.01, Lorraine W. Pringle, Judge; Court of Criminal Appeals, CR-19-0441)

Michael S. Nissenbaum, Birmingham, for petitioner.

Steve Marshall, att'y gen., and Edmund G. LaCour, Jr., solicitor gen., A. Barrett Bowdre, deputy solicitor gen., and Yvonne A.H. Saxon, asst. att'y gen., for respondent.

WISE, Justice.

WRIT QUASHED. NO OPINION.

Bolin, Shaw, Bryan, and Mendheim, JJ., concur

Parker, C.J., and Sellers, Stewart, and Mitchell, JJ., dissent.

PARKER, Chief Justice (dissenting).

The Jefferson Juvenile Court, Bessemer Division, adjudicated C.A.P. ("the Defendant") delinquent on the ground that he unlawfully possessed a pistol as a minor. See § 13A-11-72(b), Ala. Code 1975. The Court of Criminal Appeals affirmed the judgment, C.A.P. v. State (No. CR-19-0441, June 26, 2020), 329 So. 3d 119 (Ala. Crim. App. 2020) (table), and this Court granted certiorari review. The Court now quashes the writ. I dissent because the evidence was insufficient to prove that the Defendant constructively possessed the pistol.

The Defendant was riding in the front passenger seat of a small car when the car nearly collided with a police officer's vehicle. The officer pursued the car, and after a short chase, the driver stopped the car. The driver started to jump out of the car as if to run, but he ultimately complied with the officer's command to stay in the car. The officer removed all three of the car's occupants (the third was in the backseat) and placed them in handcuffs. According to the officer, the Defendant "was jittery and appeared to be nervous." The officer then saw an "AR-style" pistol on the backseat floorboard behind the driver's seat. The pistol had been within the Defendant's reach, but the Defendant had not moved toward it.

The Defendant was adjudicated delinquent on the basis that he constructively possessed the pistol. The Court of Criminal Appeals affirmed by a vote of three to two, holding that, "given the type of weapon at issue, its proximity to [the Defendant], and his nervous behavior [following his removal from the car]," the evidence was sufficient to establish constructive possession.

The Defendant petitioned this Court for certiorari review, alleging that the Court of Criminal Appeals’ decision conflicted with prior decisions regarding sufficiency of the evidence to prove constructive possession of contraband. We granted review, but a slim majority now perceives no conflict with precedent, or no reason to issue a decision on the merits. I disagree.

The test for sufficiency of the evidence in criminal proceedings applies equally to delinquency proceedings: whether, viewing the evidence in the light most favorable to the State, a rational fact-finder could have found the defendant guilty beyond a reasonable doubt. C.L.F. v. State, 104 So. 3d 291 (Ala. Crim. App. 2012) ; see § 12-15-212(a), Ala. Code 1975 (a child may be adjudicated delinquent "[i]f the juvenile court finds on proof beyond a reasonable doubt ... that the child committed the acts by reason of which the child is alleged to be delinquent"); In re Winship, 397 U.S. 358, 368, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (holding that "the constitutional safeguard of proof beyond a reasonable doubt" applies to juvenile cases). The elements of constructive possession of an object are (1) actual or potential physical control, (2) intent to exercise dominion (control), and (3) external manifestations of control and intent. See Ex parte Fitkin, 781 So. 2d 182, 184 (Ala. 2000). The State must also prove the defendant's knowledge of the presence of the object. Ex parte D.B., 678 So. 2d 255, 257 (Ala. 1996).¹

Here, there was a complete lack of evidence that the Defendant intended to control the pistol. The Court of Criminal Appeals pointed to "the type of weapon at issue, its proximity to [the Defendant], and his nervous behavior." Under the circumstances, none of those facts is evidence of intent to control. The nature of the weapon had no logical bearing on the Defendant's intent. Nor was intent established by the Defendant's nervousness upon being detained. In Ex parte Tiller, 796 So. 2d 310 (Ala. 2001), we held that an adult defendant's running away from a vehicle, after a high-speed chase during which drugs had been discarded from the vehicle, was insufficient to establish the defendant's constructive possession of the drugs. Surely, then, a teenage passenger's jittery behavior -- after the car had almost crashed into a police vehicle, a chase had ensued, and the driver had almost fled but had been ordered back in the car -- is also insufficient.

The only other cited evidence was the pistol's proximity to the Defendant. But under the circumstances here, proximity alone could not establish intent to control. See Tiller, 796 So. 2d at 313 (" ‘ " ‘The kinds of evidence which might be relevant, but which by themselves do not add the necessary connection[, include]: ... evidence that showed the defendant's physical proximity to the contraband.’ " ’ " (quoting Posey v. State, 736 So. 2d 656, 659 (Ala. Crim. App. 1997), quoting in turn other authorities)); Smith v. State, 457 So. 2d 997, 999 (Ala. Crim. App. 1984) ("[P]hysical proximity to the contraband ... alone does not ‘add the necessary connection’ between [the defendant] and the contraband ...." (quoting Temple v. State, 366 So. 2d 740, 743 (Ala. Crim. App. 1978) )); Perry v. State, 534 So. 2d 1126, 1128 (Ala. Crim. App. 1988) ("[T]he close proximity of a defendant to an illegal substance ... alone is insufficient ... to support a finding of constructive possession."); Flake v. State, 980 So. 2d 440, 443 (Ala. Crim. App. 2007) (" ‘[P]roximity to a contraband alone is not enough to establish constructive possession ....’ " (quoting Mobley v. State, 563 So. 2d 29, 32 (Ala. Crim. App. 1990) )). In particular, the ability of a passenger in a multi-occupant small car to reach an object not located in his immediate vicinity, or what in common parlance might be called his "personal space," has no tendency to show that the passenger intended to possess the object. Moreover, it is not enough to say that an object can be jointly possessed. Regardless of whether the other occupants intended to control the object, the State must prove that the defendant intended to control it.

The law of constructive possession was applied to similar facts by the United States Court of Appeals for the Sixth Circuit in United States v. Bailey, 553 F.3d 940 (6th Cir. 2009). There, the defendant borrowed a car from a friend, used it to drop off another friend at that friend's home, and then was driving the defendant's girlfriend to drop her off at her home. Police officers identified the car as stolen and attempted to stop the defendant. He refused to stop and attempted to flee, but he was eventually apprehended. Police officers found two bags of cocaine in his pockets, and they also found a .357 Magnum pistol under the driver's seat. Id. at 945-46 ; United States v. Bailey, 510 F.3d 562, 564, 567 (6th Cir. 2007) (prior panel opinion in same case, other parts of which were vacated by panel's 2009 opinion).

In a thorough analysis, the Sixth Circuit held that the evidence was insufficient to prove the defendant's constructive possession of the gun. 553 F.3d at 944-49. The court emphasized that constructive possession requires intent to control the object. Id. at 944-45. And, like this Court, the Sixth Circuit recognized that proximity alone is not enough. The court found instructive a clarification from another circuit: "[I]n addition to knowledge and proximity, ‘[t]here must be some action, some word, or some conduct that links the individual to the [contraband] and indicates that he had some stake in [it], some power over [it].’ " Id. at 945 (quoting United States v. Clark, 184 F.3d 858, 863 (D.C. Cir. 1999), quoting in turn United States v. Pardo, 636 F.2d 535, 549 (D.C. Cir. 1980) ). The Sixth Circuit confirmed that "some amount of additional evidence beyond proximity is required." Id. at 947. Specifically, the court observed, " ‘the defendant's mere presence in a car where a gun is found and proximity to [the] gun are insufficient proof of constructive possession.’ " Id. at 947-48 (quoting United States v. Newsom, 452 F.3d 593, 609 (6th Cir. 2006) ). The court noted that the defendant's flight from police was not additional evidence because it might well have been prompted by the cocaine in his pockets. Further, the defendant did not own the car, and other people had been in it or had access to it that night. Id. at 946 & n.5. The court concluded that "[t]he fact pattern in this case falls within the category of cases ... in which ‘the sole connection between the defendant and the gun was the gun's proximity to the defendant.’ " Id. at 947 (quoting United States v. Arnold, 486 F.3d 177, 183 (6th Cir. 2007) ).

In sum, what we have here is a minor passenger in the front seat of a car, in which two other people were riding and in which there was a visible pistol of unknown origin lying on the backseat floorboard. The evidence did not support intent by the Defendant to control the pistol. Rather, this is a classic case of guilt by association: the Defendant was found guilty because he was there. See United States v. Ferg, 504 F.2d 914, 917 (5th Cir. 1974) (holding no constructive possession when only evidence was passenger's presence in vehicle; rejecting "the government's apparent invitation to infer guilt by association"). That unsupported conclusion violated the Defendant's due-process right to proof beyond a reasonable doubt of every element of the offense with which he was charged. Therefore, the Defendant's adjudication ought to be reversed.

Mitchell, J., concurs.

SELLERS, Justice (dissenting).

C.A.P. petitioned ...