State v. Cashen
| Decision Date | 16 July 2003 |
| Docket Number | No. 01-1655.,01-1655. |
| Citation | 666 N.W.2d 566 |
| Parties | STATE of Iowa, Appellee, v. Ross Ian Rivers CASHEN, Appellee. |
| Court | Iowa Supreme Court |
Linda Del Gallo, State Appellate Defender, and Robert P. Ranschau, Assistant Public Defender, for appellant.
Thomas J. Miller, Attorney General, Cristen C. O'Dell, Assistant Attorney General, Thomas J. Ferguson, County Attorney, and Randall Jackson, Assistant County Attorney, for appellee.
Marijuana was found near a man who claimed it wasn't his and his girlfriend said it belonged to her. The police charged Ross Cashen with possession of the marijuana. The Iowa Court of Appeals affirmed his conviction. Cashen sought further review arguing there was insufficient evidence to prove he committed a crime and his trial counsel was ineffective for failing to move for a new trial. Because we find insufficient evidence to prove Cashen possessed the marijuana, we vacate the decision of the court of appeals and reverse the judgment and sentence of the district court.
Ross Cashen was convicted of possession of marijuana. Cashen was a back seat passenger in a car that was stopped for a traffic violation. There were six people in the car, four of whom were sitting in the back seat. Cashen was sitting next to a window with his girlfriend sitting on his lap. Once the officer discovered one of the passengers had an outstanding warrant, he asked everyone to get out of the car.
After receiving Cashen's consent to a search, the officer found a lighter and Zig-Zag cigarette rolling papers on him. Another officer searched Cashen's girlfriend and found cigarette rolling papers and a small baggie of marijuana seeds in her pants pocket.
The driver consented to a search of the car. The officers found a baggie of marijuana wedged in the rear seat on the side where Cashen and his girlfriend had been seated. The baggie was stuck in the crack between the back and the bottom of the rear seat. Cashen twice denied any knowledge of the pot. At the jail, Cashen asked an officer if anyone had "fessed up" to owning the marijuana. The officer said no and asked if Cashen thought someone should claim ownership. Cashen said his girlfriend owned the marijuana. While at the jail, the girlfriend admitted the marijuana was hers.
The State charged Cashen with possession of marijuana. A jury found Cashen guilty. The court denied Cashen's motion for a judgment of acquittal. Cashen appealed claiming there was insufficient evidence to support the conviction because the State failed to prove he had constructive possession of the marijuana. He also asserted his trial counsel was ineffective for failing to move for a new trial on the basis the verdict was contrary to the weight of the evidence.
The Iowa Court of Appeals affirmed Cashen's conviction. The court determined there was sufficient evidence to conclude Cashen had constructive possession of the drugs. Specifically, the court found Cashen's initial denials about the marijuana and his later implication of his girlfriend were indicative of his knowledge of the nature and presence of the drug found in the car. The court also found there was sufficient evidence Cashen exerted dominion and control over the marijuana as evidenced by his proximity to it and his "suspicious activity." Finally, the court held trial counsel was not ineffective for failing to move for a new trial. This court granted Cashen's petition for further review.
On further review, we examine one issue. We consider whether there was sufficient evidence to establish Cashen's constructive possession of the drugs. We review challenges to the sufficiency of evidence for correction of errors of law. State v. Yeo, 659 N.W.2d 544, 547 (Iowa 2003). We will uphold the jury's verdict if there is substantial evidence to support it. Id. Evidence is substantial if it would convince a rational trier of fact that the defendant is guilty beyond a reasonable doubt. Id. We review the record in the "light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the evidence in the record." State v. Webb, 648 N.W.2d 72, 76 (Iowa 2002). The State has the burden to "prove every fact necessary to constitute the crime with which the defendant is charged." Id. "The evidence must raise a fair inference of guilt and do more than create speculation, suspicion, or conjecture." Id. (citing State v. Hamilton, 309 N.W.2d 471, 479 (Iowa 1981)).
This case turns on the legal concept of possession. In the realm of controlled substance prosecutions, possession can be either actual or constructive. State v. Maghee, 573 N.W.2d 1, 10 (Iowa 1997). A defendant has actual possession of the drugs if he or she has "direct physical control" over the drugs. Id. Possession is constructive where the defendant has knowledge of the presence of the drugs "and has the authority or right to maintain control of [them]." Id. (citation omitted). In the case before us, Cashen did not have actual possession of the marijuana. The officers did not find the marijuana on Cashen's person. Under these circumstances, the possession to be found, if any, must be constructive.
It is helpful to our discussion to address the progression of our case law regarding constructive possession. We begin with State v. Reeves where we articulated the test for possession. 209 N.W.2d 18 (Iowa 1973). In Reeves, we said the State need not prove actual possession; proof of constructive possession would be enough. Id. at 22. We identified various principles of law relating to possession of narcotics. To prove possession the State must establish by proof: (1) the accused exercised dominion and control over the contraband; (2) the accused had knowledge of the contraband's presence; and (3) the accused had knowledge the material was a narcotic. Id. at 21-22. We addressed the inferences the State is permitted to make in prosecuting a controlled substance case. For example, "possession may be imputed when the contraband is found in a place which is immediately and exclusively accessible to the accused...." Id. at 22 (emphasis added). The "immediate and exclusive" access requirement stood undisturbed until 1990 when we retreated from our earlier pronouncements of fair inferences to be made in proving the elements of constructive possession.
In State v. Rudd, we liberalized the inferences applicable to a finding of control and dominion over contraband and approved a jury instruction that defined constructive possession as follows:
Id. at 636 (citing Reid v. State, 212 Ga. App. 787, 442 S.E.2d 852, 853 (1994)).
In State v. McDowell we revisited the legal principles announced in Reeves regarding permissible inferences to be drawn in determining whether a defendant had possession of contraband. 622 N.W.2d 305, 308 (Iowa 2001). We noted "[p]roof of opportunity of access to a place where narcotics are found will not, without more, support a finding of unlawful possession." Id. (quoting Reeves, 209 N.W.2d at 22). In McDowell, we implicitly rejected the erroneous application in Simpson of the principles regarding inferences to be made and avoided in constructive possession cases. Specifically, we found evidence the defendant was in joint possession of the premises to be insufficient to permit an inference of possession. Id. In doing so, we returned to a proper application of the principles stated in Reeves:
If the premises on which such substances are found are in the exclusive possession of the accused, knowledge of their presence on such premises coupled with his ability to maintain control over such substances may be inferred. Although no further proof of knowledge by the State is required in cases of exclusive possession by the accused the inference of knowledge is rebuttable and not conclusive. But where the accused has not been in exclusive possession of the premises but only in joint possession, knowledge of the presence of the substances on the premises and the ability to maintain control over them by the accused will not be inferred but must be established by proof. Such proof may consist either of evidence establishing actual knowledge by the accused, or evidence of incriminating statements or circumstances from which a jury might lawfully infer knowledge by the accused of the presence of the substances on the premises.
Id. (quoting Reeves, 209 N.W.2d at 23) (emphasis added).
Most recently, we addressed the issue of constructive possession and again approved of the analysis...
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