State v. Lewis

• Decision Date: 07 October 1986
• Docket Number: No. C1-86-280,C1-86-280
• Citation: 394 N.W.2d 212
• Parties: STATE of Minnesota, Respondent, v. Roger Reidel LEWIS, Appellant.
• Court: Minnesota Court of Appeals

Page 212

394 N.W.2d 212

STATE of Minnesota, Respondent, v. Roger Reidel LEWIS, Appellant.

No. C1-86-280.

Court of Appeals of Minnesota.

Oct. 7, 1986.

Review Denied Dec. 12, 1986.

Syllabus by the Court

1. The term "possession" within the meaning of Minn.Stat. § 152.09, subd. 1(2) prohibiting unlawful possession of controlled substances does not include the presence of a substance within a person's body without other probative corroborating circumstantial evidence showing beyond a reasonable doubt that the defendant did have prior actual possession of the substance.

2. Any reasonable doubt about the legislative intent of a penal statute must be resolved in favor of the defendant.

3. Appellant was not in unlawful possession of morphine solely because traces of morphine appeared in his urine sample.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Robert F. Carolan, Dakota Co. Atty., Charles A. Diemer, Dakota County Government Center, Hastings, for respondent.

Robert G. Davis, Steffenson & Davis, Minneapolis, for appellant.

Heard, considered and decided by POPOVICH, C.J., and SEDGWICK and NIERENGARTEN, JJ.

OPINION

NIERENGARTEN, Judge.

Appellant Roger Riedel Lewis was convicted for unlawful possession of a Schedule II controlled substance. On appeal, he contends that mere presence of morphine within a person's body does not constitute "possession" within the meaning of Minn.Stat. § 152.09, subd. 1(2). We reverse.

FACTS

On January 23, 1984, Lewis sustained injuries in an automobile accident and was taken to the hospital. At the hospital the investigating police officer invoked the implied consent law and Lewis consented to give a urine specimen, which, upon analysis, revealed traces of morphine.

On the basis of the laboratory report, a complaint was issued charging Lewis with unlawful possession of a Schedule II controlled substance in violation of Minn.Stat. § 152.09, subd. 1(2). The case was tried without jury on stipulated facts and on the basis of the laboratory results from the urine sample. The only other evidence was the investigating officer's statement in the complaint that he observed what he believed were "needle marks on the inside elbow of both of Mr. Lewis' arms."

The trial court found Lewis guilty of unlawful possession of a Schedule II controlled substance on the grounds that "the presence of a controlled substance in the bloodstream is within the meaning of the Minnesota Statute the quintessential act of possession." Lewis appeals.

ISSUE

Is the presence of a trace of morphine within a person's system, without more evidence, sufficient to sustain a conviction for unlawful possession of a controlled substance under Minn.Stat. § 152.09, subd. 1(2) (1984)?

ANALYSIS

Lewis was charged and convicted of unlawful possession of morphine, a Schedule II controlled substance. Minnesota Statutes Chapter 152 provides:

Except as otherwise provided in this chapter, it shall be unlawful for any person, firm or corporation to

* * *

* * *

(2) Possess a controlled substance, except when the possession is for his own use and is authorized by law.

Minn.Stat. § 152.09, subd. 1(2) (1984).

"Possession "

The term "possession" is not defined in section 152.09 or in any other provision of Chapter 152. The Minnesota Supreme Court has stated:

[I]n order to convict a defendant of unlawful possession of a controlled substance, the state must prove that defendant consciously possessed, either physically or constructively, the substance and that defendant had actual knowledge of the nature of the substance.

State v. Florine, 303 Minn. 103, 104, 226 N.W.2d 609, 610 (1975) (citing LaFave & Scott, Criminal Law § 25, at 182). The defendant's conviction in Florine was based on constructive possession. Although the defendant did not physically possess the substance at the time of his arrest, physical evidence found in an unlocked abandoned car was sufficient to show that the defendant "physically possessed" the substance at one time, that he had not abandoned his "possessory interest" in the substance, and that he "continued to exercise dominion and control over it up to the time of the arrest." Id. at 104-05, 226 N.W.2d at 610. Since the defendant in Florine did not actually possess the substance, the State first had to prove that the defendant "consciously" exercised "dominion and control" over the substance because, as the court stated, "if defendant consciously possessed the substance, either constructively or physically, then the judge could easily infer from that and from the nature of the substance that defendant had knowledge of the substance's nature." Id. at 104, 226 N.W.2d at 610.

Other cases have defined "possession" in terms of actual physical possession or the exercise of "dominion and control" over a controlled substance. In State v. Hornaday, 105 Wash.2d 120, 713 P.2d 71 (1986), the Washington Supreme Court stated that a defendant could not be convicted for possession of alcohol merely because the defendant had alcohol within his system because "[o]nce it is within a person's system, the power of a person to control, possess, use or dispose of it is at an end." 713 P.2d at 75. According to the Washington court, "[a] defendant 'possesses' a controlled substance when the defendant knows of the substance's presence, the substance is immediately accessible, and the defendant exercises 'dominion or control' over the substance." Id. at 74. See also Nethercutt v. Commonwealth, 241 Ky. 47, 43 S.W.2d 330 (1931) (alcohol consumed and in the stomach does not constitute "possession" within the meaning of a statute prohibiting unlawful possession of intoxicating liquor); United States v. Philips, 496 F.2d 1395, 1397 (5th Cir.), reh'g denied, 503 F.2d 1403 (5th Cir.1974), cert. denied, 422 U.S. 1056, 95 S.Ct. 2680, 45 L.Ed.2d 709 reh'g denied, 423 U.S. 885, 96 S.Ct. 160, 46 L.Ed.2d 116 (1975) ("possession may be actual or constructive but in any event there must be dominion or control over the item or a power to exercise dominion and control"). ¹

Lewis argues that once a controlled substance is consumed the substance no longer is in anyone's possession because conscious control and dominion over that substance ceases. He cites State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983), in support of his argument. The facts in Flinchpaugh are nearly identical to this case. Janet Flinchpaugh was involved in an automobile accident. She was taken to a hospital where she consented to a blood sample. Subsequent analysis of the sample revealed traces of a metabolite which could not have been in the blood unless cocaine had first been present. Flinchpaugh was charged with possession of a controlled substance. The charge was based solely on the results of the blood test; the State had no direct evidence showing how or when the substance was introduced into her system.

The Kansas Supreme Court sustained the trial court's dismissal, rejecting the State's arguments that presence of a controlled substance in the bloodstream constitutes possession within the meaning of the State's controlled substance act, or is otherwise sufficient circumstantial evidence to prove possession before introduction of the substance into the person's system. The Kansas court stated:

Once a controlled substance is within a person's system, the power of the person to control, possess, use, dispose of, or cause harm is at an end. The drug is assimilated by the body. The ability to control the drug is beyond human capabilities. The essential element of control is absent. Evidence of a controlled substance after it is assimilated in a person's blood does not establish possession or control of that substance.

Flinchpaugh, 659 P.2d at 211.

The Kansas Supreme Court also stated that "knowledgeable possession" must be proved.

Discovery of a drug in a person's blood is circumstantial evidence tending to prove prior possession of the drug, but it is not sufficient evidence to establish guilt beyond a reasonable doubt.

Id. at 212. The Kansas court distinguished three cases from other jurisdictions which upheld convictions for possession or use of drugs based on testing and additional direct evidence. Franklin v. State, 8 Md.App. 134, 258 A.2d 767 (1969), cert. denied, 257 Md. 733 (1970) (obvious physical symptoms and defendant's admission to an attending physician that he had overdosed on an intravenous injection of heroin were sufficient evidence to support a conviction for heroin possession); State v. Yanez, 89 N.M. 397, 553 P.2d 252 (Ct.App.1976) (conviction was based on an analysis of a urine sample showing presence of morphine, police surveillance of the defendant making a probable drug deal and subsequently purchasing hypodermic needles, discovery of a used hypodermic needle in the filling station restroom where the defendant was arrested, and fresh needle marks on the defendant's arm); State v. Downes, 31 Or.App. 1183, 572 P.2d 1328 (1977) (undercover agent's observation of an injection of a controlled substance into the defendant by a third person may be sufficient evidence to show violation of "use" statute, but not possession under separate statute for "possession of dangerous drugs"). See also Anderson v. State, 9 Md.App. 639, 267 A.2d 302 (1970) (conviction for possession of narcotic paraphernalia and control of heroin upheld when evidence showed that defendant had recent needle marks as well as general access and control of premises containing paraphernalia and drugs).

The State argues that conscious, physical possession of a controlled substance necessarily includes ingestion, injection or any other means of administration. The State contends that Lewis' argument and the position taken by the Flinchpaugh court unduly restricts the term "possession" to include only manual control. The State maintains that the term "possession" also requires consideration of whether the defendant exercised exclusive control over the substance and that in ...