Strong v. State

¶1dissenting. I respectfully dissent. The State offered no evidence to show that Strong ever actually or constructively possessed any drugs except those contained in the package that he received in the controlled delivery. The majority concludes that although police removed all but 12.7914 grams of the cocaine from the package, it was reasonable for the jury to conclude that Strong believed that the original 520 grams of cocaine were still in the crock pot when it was delivered. This conclusion could only be based on speculation. The evidence showed that Melvin Braddock called Strong from California and asked if he knew an address where a canning machine might be delivered and that Strong admitted to police that he asked Braddock to include “weed” in the package. This could imply that Strong ,knew something illegal was to be shipped; however, the State offered no evidence to show that Strong ever had knowledge that the package contained 520 grams of cocaine.

¶2Further, in holding that Strong had constructive possession of the entire 520 grams of cocaine shipped from California, the majority relies on a decision of the Ohio Court of Appeals:

We hold that when law enforcement has properly intercepted a package and proves the original contents, and then substitutes a benign material, the relevant amount of contraband is that amount in the original package, and if the defendant possesses the package thereafter, a jury is entitled to conclude that the defendant constructively possessed the original contents of the package, and not the substituted material.

¶3State v. Williams, 690 N.E.2d 1297, 1300 (Ohio Ct. App. 1996) (citing United States v. Jackson, 55 F.3d 1219, 1226 (6th Cir. 1995)).1 Without any meaningful discussion of how the evidence in the case showed that the defendant had control or dominion giving rise to a finding of constructive possession, the Eleventh District Ohio Court of Appeals merely states the above and affirms. In State v. Fabian, No. 2001-T-0080, slip op. at 5 (Ohio Ct. App. June 21, 2002), the Eleventh District Ohio Court of Appeals noted a concern that under Williams, “an individual motivated by animosity could mail prohibited narcotics to a completely innocent and unwitting victim. Such mailing, coupled with a contemporaneous anonymous phone call would set the stage for the arrest and prosecution of a law-abiding citizen.” Further, although the Ohio Court of Appeals relied on Jackson, supra, in Williams, Jackson does not support the decision reached in Williams. In Jackson, similar to the present case, a package was identified and examined in transit. It was found to contain approximately 75 grams of heroin concealed within the package. All but 2.5 grams were removed by law enforcement. A controlled delivery was undertaken, and the altered package was delivered. Jackson was apprehended with the altered package as he attempted to flee upon arrival of police. Jackson contains no discussion of constructive possession. In fact, the term “constructive possession” does not appear in the opinion. The issues presented and decided in Jackson included whether a search warrant was defective, whether the district court erred in fading to find that he was a “minor participant,” whether the government established his knowledge of the contents of the package, and whether the government presented sufficient evidence to establish his intent to distribute. Most telling is that inJackson, the defendants were charged with “attempting to possess with intent to distribute, and with attempting to import approximately 75 grams of heroin.” Jackson, 55 F.3d at 1222. The amount originally contained in the package was relevant to the crime of attempt. Evidence showing that the defendant made multiple calls to Nigeria regarding the package and to DHL, as well as his keen interest in its arrival, went to attempt. However, as to possession, the defendants were only charged with possession and intent to distribute the “2.5 grams of heroin, the amount left in the package upon delivery.” Id. This is consistent with a controlled delivery. In a controlled delivery, the criminal defendant is charged with possession of the contraband delivered and with attempted possession of the amount removed. Constructive possession is entirely another matter.

¶4Constructive possession is shown where “one controls a substance or has the right to control it.” Garner v. State, 355 Ark. 345, 355, 131 S.W.3d 734, 738 (2003). This exists where the “defendant exercised care, control, and management over the contraband.” George v. State, 356 Ark. 345, 354, 151 S.W.3d 770, 775 (2004). Constructive possession requires that the contraband be in a location “such that it could be said to be under the dominion and control of the accused.” Id. Relevant to this are factors such as “proximity of the contraband to the accused, the fact that it is in plain view, and the ownership of the property where the contraband is found.” Id.

¶5There is no evidence to show that Strong exercised control or dominion over the package until it was delivered by law enforcement. Further, according to the testimony of Sergeant Michael Todd Daley, when the package was opened at the UPS hub in Monticello, the drugs were “seized” at that time. Clearly, Strong had no control or dominion over the removed drugs.

¶6There was no evidence to show that Strong had anything to do with preparation or delivery of the package to UPS in California. None of the evidence in this case shows that the package was in Strong’s constructive or actual possession until the controlled delivery. Apparently, the majority concludes that Strong had constructive possession from the time the package was shipped in California. That is inconsistent with the law on constructive possession. A controlled delivery is made to obtain a charge of actual possession for the drugs left in the package and for the crime of attempt with respect to the drugs that were removed. SeeJackson, supra. There was no charge of attempt made in this case. Further, the majority opines that evidence was offered to show that Strong had the intent to deliver 520 grams of cocaine in the package when it arrived in Dermott rather than the 12.7914 grams actually delivered. The question of whether substantial evidence on that issue was presented need not be considered because there was no attempt charge in this case, and Strong did not possess the package until delivery.