The appeals court on May 13, 2010 overturned a conviction for constructive possession in COMMONWEALTH vs. JEROLD HUMPHRIES 76 Mass.App.Ct. 702 (2010)
The court in deciding the case stated “The defendant, Jerold Humphries, seeks to overturn two drug offense convictions, claiming that his motion for a required finding of not guilty after the Commonwealth’s case in chief should have been allowed. We conclude that the evidence of constructive possession was insufficient to support his conviction and we reverse.
The defendant argues that his motion for a required finding of not guilty should have been allowed because the evidence failed to link him with the marijuana found in the vacant bedroom. He argues that the evidence, at most, showed his presence in the apartment sometime prior to the date of the search, but because he previously had moved out of the apartment, was not the target of surveillance or the subject of the search warrant, and was not present at the time of the search, the evidence was insufficient to show that he exercised any control of the apartment or its contents. He also argues that the discovery of his identification card and a piece of mail in the vacant bedroom, with no indication where they were found or if or how they were proximately related to the marijuana, was insufficient to establish constructive possession of the marijuana.
We review the question of sufficiency of the evidence under the familiar Latimore standard, Commonwealth v. Latimore, 378 Mass. 671, 676-678 (1979), viewing the evidence in the light most favorable to the Commonwealth. To convict a defendant on a theory of constructive possession, the Commonwealth must prove beyond a reasonable doubt that the defendant had knowledge of the contraband, coupled with the ability and intention to exercise dominion and control over it. Commonwealth v. Brzezinski, 405 Mass. 401, 409 (1989). In general, intent to exercise control “is not easily susceptible of proof and is a close question.” Commonwealth v. Sadberry, 44 Mass. App. Ct. 934, 936 (1998).
Our typical constructive possession cases tend to concern situations where the defendant is present and we turn to other incriminating evidence to determine whether there is sufficient evidence of constructive possession. See, e.g., Commonwealth v. Figueroa, 74 Mass. App. Ct. 784, 786 (2009). Here, the defendant was not present and the only indicia on the Commonwealth’s case that he may have been present was an identification card in his name and an envelope addressed to him at a different address.
The identification card and the envelope did not, in and of themselves, show beyond a reasonable doubt that the defendant had knowledge of the presence of the marijuana and did not prove, even considering any reasonable inferences, that the defendant had the intent and ability to exercise dominion and control over the marijuana. Compare Commonwealth v. Frongillo (No. 1), 66 Mass. App. Ct. 677, 682-683 (2006) (evidence was insufficient to show that defendant intended to exercise dominion and control over guns and ammunition found in bedroom closet of fiancée’s apartment where defendant was in vicinity of apartment but not present at time of search and no evidence connected *705 defendant to guns and ammunition other than unidentified men’s clothing), with Commonwealth v. Schmieder, 58 Mass. App. Ct. 300, 303 (2003) (documentary evidence that defendant rented dwelling is relevant to constructive possession). There was no evidence that the defendant “rented, occupied, spent a great deal of time at or exercised control over the apartment or its contents.” Commonwealth v. Caterino, 31 Mass. App. Ct. 685, 689 (1991).
No cases have been brought to our attention, and we are not aware of any, where we have concluded that there was sufficient evidence of constructive possession despite the defendant’s absence. See Commonwealth v. Duffy, 4 Mass. App. Ct. 655, 660 (1976); Commonwealth v. Booker, 31 Mass. App. Ct. 435, 438 (1991); Commonwealth v. Delarosa, 50 Mass. App. Ct. 623, 628 (2000) (all cases in which court specifically notes defendant’s absence at time police discovered contraband and concludes that there was insufficient evidence of constructive possession). Contrast Commonwealth v.DePina, 75 Mass. App. Ct. 842, 854 (2009) (sufficient evidence of constructive possession where defendant walked toward building in which contraband found, with set of keys that unlocked building’s main door, apartment front door, and door to bedroom where drugs were found). Accordingly, we conclude that the motion for required finding should have been allowed.
Dissent Sikora: the doctrine of constructive possession does not command the presence of the defendant simultaneously with the discovery and seizure of drugs by the police. That circumstance may strengthen the Commonwealth’s evidence, but it does not constitute a requirement for conviction. Constructive possession functions as a realistic alternative to actual possession. Physical separation of the defendant from the contraband is a premise of the doctrine. We cannot feasibly require a drug dealer to be at the scene of a search at the moment at which the police execute a warrant. Evidence specifically linking the defendant to the storage site of the drugs can be sufficient for constructive possession. See Commonwealth v. DePina, 75 Mass. App. Ct. 842, 854 (2009) (police arrest the defendant outside a dwelling; his keys to the apartment and bedroom containing cocaine connect him to the contraband and permit a finding of constructive possession and trafficking). In sum, the defendant’s lengthy familiarity with and access to the apartment, the presence of his personal effects in the room, the apparent exclusivity of his connection to the room, his inferable continuing presence there, and his self-defeating testimony and demeanor provided the jury with ample evidence for a finding of constructive possession.”
I included the dissent by Justice Sikora because I believe it better illustrates the principle. Unfortunately the majority of the court did not agree. Perhaps the SJC would agree.
Attorney Ronald A. Sellon