DRUG OFFENSES - DRUG POSSESSION DEFINED
The law recognizes two kinds of possession, actual possession and constructive possession.
A person who knowingly has direct physical control over a thing, at a given time, is then in actual possession of it.
A person who, although not in actual possession, knowingly has the power and the intention at a given time to exercise dominion or control over a thing, is then in constructive possession of it.
The possession prohibited by the law is not only that of actual physical custody of a controlled dangerous substance but also the constructive possession of it.
[The law recognizes that possession may be sole or joint. In other words, possession need not be exclusive. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons share actual or constructive possession of a thing, their possession is joint. A person may be deemed to be in joint possession of a controlled dangerous substance which is in the physical custody of an associate if he/she willfully and knowingly shares with that other person the right to control the disposition or use of such substance.]
However, mere proximity to a substance is insufficient proof of possession. There must be additional evidence of the defendant's knowledge and control. Such knowledge and control may be established by circumstantial evidence. Each fact necessary to prove the guilt of the defendant must be established by the evidence beyond a reasonable doubt. All of the facts and circumstances, taken together, must establish to your satisfaction the defendant’s knowledge and control beyond a reasonable doubt.
If you find from the evidence beyond a reasonable doubt that the defendant, either alone or jointly with another, had constructive possession of [Specify Controlled Dangerous Substance] then you may find that such substance was in the possession of the defendant within the meaning of the word "possession" as used in these instructions.
Notes on Use
This instruction should be used if there is evidence that the defendant had constructive, rather than actual, possession of a controlled dangerous substance. The fifth paragraph should be given only if there is evidence that the defendant had joint possession of the controlled dangerous substance.
The Oklahoma Court of Criminal Appeals summarized the principles of constructive possession of drugs in Staples v. State, 1974 OK CR 208, ¶¶ 8-9, 528 P.2d 1131, 1133, as follows:
It has been frequently held in this State that the possession prohibited by the drug laws need not be actual physical custody of the controlled substance; it is sufficient that the State prove the accused to have been in constructive possession of the contraband material by showing that he had knowledge of its presence and the power and intent to control its disposition or use. [Citations omitted.] Further, possession need not be exclusive; a person may be deemed to be in joint possession of a drug which is in the physical custody of a companion, if he willfully and knowingly shares with the other the right to control the contraband. [Citation omitted.] We have, however, repeatedly held that proof of mere proximity to a prohibited substance is insufficient. Whether the case is tried on the theory of sole or joint possession, proof that the accused was present at a place where drugs were being used or possessed is, in and of itself, insufficient to justify a finding of possession. There must be additional evidence of knowledge and control. [Citations omitted.]
Guilty knowledge is rarely susceptible of direct proof. The fact that the accused knew of the presence of the contraband and had the right to control its disposition or use may be established by circumstantial evidence. [Citation omitted.] Nevertheless, it is the law of this jurisdiction that a conviction upon circumstantial evidence cannot be sustained if the proof does not exclude every reasonable hypothesis but that of guilt, and proof amounting only to a strong suspicion or mere probability is insufficient. [Citation omitted.] We have held that circumstantial evidence which shows that a narcotic substance was found on premises possessed by the accused and under his exclusive control, permits an inference of knowledge and control of that substance which is sufficient to carry the case to the jury. [Citations omitted.]
See also Johnson v. State, 1988 OK CR 246, ¶ 18, 764 P.2d 530, 535 (approving sixth paragraph of the above instruction as fairly stating the applicable law); Doyle v. State, 1988 OK CR 147, ¶ 7, 759 P.2d 223, 224 ("Constructive possession of a controlled dangerous substance is a showing that the accused had knowledge of its presence and the power or intent to control its disposition or use."); Miller v. State, 1978 OK CR 54, ¶ 9, 579 P.2d 200, 202.
In Easlick v. State, 2004 OK CR 21, ¶ 4, 90 P.3d 556, the Court of Criminal Appeals abolished the reasonable hypothesis test in Oklahoma, and accordingly, the former requirement of excluding every reasonable hypothesis but that of guilt has been deleted from this instruction. See also OUJI-CR 9-5, infra.