State v. Perry. Appeal of possession of firearm by felon and habitual felony.
Police executed a search warrant in an apartment and found numerous people inside and a shotgun in a closet and a pistol in a dresser. Defendant was sitting in a car outside. They brought him in, Mirandized him, strip searched him, and questioned him. He acknowledged that the apartment was his parents, but said he didn't know where the guns came from. He also said "they were all looking at them" in the parking lot. He had seen others playing with the gun and had seen one of the others bring it into the house. He said the shotgun had been there for a long time and that it used to be in the other apartment. Defendant acknowledged that he had touched and played with the guns, but denied owning them.
During jury deliberations, the jury requested the definition of possession and a "list of criteria." The jury sent out highlighted instructions and asked, first, if the defendant had to have it on the day of arrest and if "playing with it" counts as possession. The Judge responded:
[T]he bailiff has handed me back the copy of the jury instructions that I provided to you folks that you all done some marking and writing on page number three. I have reviewed what you have handed back, particularly the – I’m going to address it I guess in two parts. The first part is the highlighted language. A person has actual possession of a firearm and the highlighted language person has constructive possession of a firearm if the person does not have it on them [sic]. And then there appears to be some question or language that reads day of arrest or can previous days be considered.
In my discretion I’m unable to determine exactly what it is that you’re asking for, looking at the form of the question or the writing that you handed back.
So I’m going to charge you that you are to apply your common understandings from your everyday use of the words that are contained within the jury instructions and the law that I’ve charged you, and apply that to the evidence that has been presented.
With respect to the question that’s on the bottom of the page, does playing with constitute power and intent to control disposition.
In my discretion, I’m going to charge you that you have heard the evidence in this case and you’ve heard the evidence and you’ve heard the law, and it is once again your duty as a jury to answer the question that’s been proposed based on the evidence and the law that I’ve provided for you.
That is my instructions to you. I’m going to give this back to the bailiff, ask you to return to the jury room and resume your deliberations, once you’re all present.
Judge Gessner instructed on both actual and constructive possession, even though the state only argued constructive possession. There was no evidence of actual possession, but no evidence of constructive possession. The court erred in instructing on constructive possession. Further, the state only argued constructive possession and told the jury not to consider actual possession, leading to confusion. Failure of the court to hold further inquiry after the jury's questions likely affected the finding of guilt.
Plain error. New trial.