WPIC 50.03 Possession—Definition

Use this instruction for controlled substance or legend drug cases only.

For many cases involving actual possession, the instruction may need to include only the first sentence. For cases involving constructive possession, the instruction should include the full first paragraph along with the other bracketed options that relate to the issues involved in the particular case.

Constructive possession. Constructive possession is established if a person has dominion and control over the drugs in question. See, e.g., State v. Davis, 182 Wn.2d 222, 340 P.3d 820 (2014) (constructive possession of a firearm); State v. Staley, 123 Wn.2d 794, 798, 872 P.2d 502 (1994); State v. Callahan, 77 Wn.2d 27, 459 P.2d 400 (1969); State v. Chavez, 138 Wn.App. 29, 156 P.3d 246 (2007).

Although a trial court is not required to define “dominion and control” for the jury, State v. Amezola, 49 Wn.App. 78, 741 P.2d 1024 (1987), many jurors find the phrase confusing and would benefit from further instruction as to its meaning.

Dominion and control-totality of the circumstances. Dominion and control is a single concept, which the jury must determine after considering all of the evidence in the case. Whether a person has dominion and control, and thus constructive possession, is determined by the various indicia of dominion and control, their cumulative effect, and the totality of the situation. State v. Jimenez-Macias, 171 Wn.App. 323, 286 P.3d 1022 (2012); State v. Partin, 88 Wn.2d 899, 567 P.2d 1136 (1977) (overruled on other grounds by State v. Lyons 174 Wn.2d 354, 275 P.3d 314 (2012)).

The court should include all relevant portions of the definitional instruction, based upon an assessment of the evidence in the case. State v. Shumaker, 142 Wn.App. 330, 174 P.3d 1214 (2007); State v. Cantabrana, 83 Wn.App. 204, 921 P.2d 572 (1996); State v. Lane, 56 Wn.App. 286, 786 P.2d 277 (1989).

The ability to take actual possession of the substance is but one of several factors for determining dominion and control. In State v. Hagen, 55 Wn.App. 494, 781 P.2d 892 (1989), it was held error to instruct that “dominion and control is the ability to reduce an object to actual possession.” The court noted that “[w]hile it is true that the ability to reduce an object to actual possession may be one aspect of dominion and control, there are other aspects such as physical proximity which must be included in a definitional instruction.” State v. Hagen, 55 Wn.App. at 499.

Constructive possession is a fact-sensitive determination. The jury should consider all relevant factors. State v. Hathaway, 161 Wn.App. 634, 251 P.3d 253 (2011); State v. George, 146 Wn.App. 906, 193 P.3d 693 (2008).

Exclusivity and proximity. It is not error to instruct the jury that control need not be exclusive. State v. Lane, 56 Wn.App. 286, 786 P.2d 277 (1989).

Sufficiency of the evidence-constructive possession. The issue of dominion and control in drug possession cases continues to be addressed frequently in the context of sufficiency of evidence claims. See, e.g., State v. Reichert, 158 Wn.App. 374, 242 P.3d 44 (2010).

Whether a person has dominion and control, and thus constructive possession, is determined by the totality of the circumstances relating to dominion and control and their cumulative effect. Although exclusive control is not necessary to establish constructive possession, a showing of more than mere proximity to the drugs is required. State v. George, 146 Wn.App. 906, 193 P.3d 693 (2008); State v. Shumaker, 142 Wn.App. 330, 174 P.3d 1214 (2007); State v. G.M.V., 135 Wn.App. 366, 144 P.3d 358 (2006). Similarly, passing control or momentarily handling the drugs is not sufficient to establish dominion and control. See State v. Werry, 6 Wn.App. 540, 494 P.2d 1002 (1972). The fact of temporary residence, personal possessions on the premises, or knowledge of the presence of the drug without more is insufficient to show the dominion and control necessary to establish constructive possession. State v. Hystad, 36 Wn.App. 42, 671 P.2d 793 (1983). Ownership of the home and passing possession was insufficient to establish constructive possession. State v. Davis, 182 Wn.2d 222, 340 P.3d 820 (2014) (constructive possession of a firearm).

Dominion and control over the premises where the drugs are found is insufficient, as the sole factor, to establish dominion and control. State v. Shumaker, 142 Wn.App. 330, 174 P.3d 1214 (2007). The jury instruction must include additional factors. However, if a defendant is the sole occupant of a vehicle and has possession of the keys, this may be sufficient to establish constructive possession of controlled substances within the vehicle, State v. Bowen, 157 Wn.App. 821, 239 P.3d 1114 (2010).

For a discussion of cases addressing the sufficiency of evidence as to constructive possession, see Fine, 13A Washington Practice, Criminal Law and Sentencing § 12:10 (3d ed.).

Lesser included offenses. Possession of drug paraphernalia is not a lesser included offense of possession of controlled substances. State v. LaPlant, 157 Wn.App. 685, 239 P.3d 366 (2010).