The Court of Appeals in Lesher v. United States, decided on December 1, 2016, addressed and highlighted legal elements for constructive possession of a controlled substance in affirming the trial court decision.

Lesher was found guilty of attempted possession with intent to distribute a controlled substance (marijuana) (“attempted PWID”) and possession of drug paraphernalia (“PDP”).

He argued on appeal that the evidence was insufficient to sustain the convictions and that the trial court erred by allowing the police officer to testify about the results of a field test.

The facts were as follows: pursuant to a valid search warrant the officers found in the residence in question and in the middle of the floor, a social security card, a notice of unsatisfied parking ticket, and a police report from an unrelated incident, all with Mr. Lesher’s name.

No clothing and other personal belongings connecting the defendant to the residence was found — however, green weed-like substance was found on the defendant who appeared during the search.

Moreover, significant amount of cash, three plastic bags containing a green weed-like substance behind a radiator containing smaller sized bags, and on the floor in front of a futon and in close proximity to the bags of green weed-like substance, a box of empty zip-lock sandwich bags and a digital scale all were also found in the room.

The field test of the substance revealed positive test of THC, active ingredient for marijuana.

The Court articulates that packaging in smaller distribute-able zip locks was consistent with distribution rather than personal use. There was also assortment based on size, which again provided intent for sale and distribution. The cash, digital scale, and various sized zip lock bags all were evidence consistent with a PWID (possession with intent to distribute).

The court also reasoned that the appellant had constructive possession of the drugs found in that he had dominion and control over the room, constructive possession of the green weed-like substance found behind the radiator, including knowledge and the ability to guide its destiny with specific intent to do so.

To prove constructive possession — the evidence must show that the defendant knew of its presence and had both the ability and intent to exercise dominion and control over it.

Constructive possession can also be inferred from proximity to the drugs and the drugs also being found among personal belongings of the defendant such as here.

In short the court concluded that: the presence of appellant’s social security card, police report, and parking violation notice — an assemblage of important documents that an individual would be unlikely to leave in a room where he was a casual visitor — permitted the trial court to infer that the room where officers found the green weed-like substance was, if not appellant’s bedroom, at least a room over which appellant had dominion and control.

Moreover: the evidence of the digital scale and sandwich bags in plain sight and in close proximity to the location of the bags of green weed-like substance permitted the court to infer that appellant was able to and intended to exercise control over that stash of marijuana-like substance.

This case is significant as it expands the legal elements and paradigm for constructive possession to a property were the defendant did not resided or had any meaningful personal possessions or belonging.

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Categories: Criminal Defense.