DRUG OFFENSES: POSSESSION WITH INTENT TO
MANUFACTURE/DISTRIBUTE - ELEMENTS
No person may be convicted of possession with intent to manufacture/distribute a controlled dangerous substance unless the State has proved beyond a reasonable doubt each element of the crime. These elements are:
First, knowing and intentional;
Third, of the controlled dangerous substance of [Name of Substance];
Fourth, with an intent to manufacture/distribute [Name of Substance].
Statutory Authority: 63 O.S. Supp. 2000, § 2-401(A)(1).
The gravamen of the possession offense defined in section 2-401(A)(1) is dual: (1) knowing and intentional possession, and (2) specific intent. These elements are distinct and independent; neither can be proved by presumption. Brown v. State, 1971 OK CR 55, 481 P.2d 475.
The parameters of the element of "possession" have been refined by the Court of Criminal Appeals through a series of decisions. Brown, supra, established that the bare fact of physical proximity between the defendant and the contraband was insufficient to establish the "dominion and control" requisite to a finding of possession. The court stated:
Guilty knowledge and control cannot be presumed. Defendant did not have the burden of establishing lack of knowledge or control. There must be some link or circumstance in addition to the presence of the marijuana which indicates defendant['s] knowledge of its presence and his control of it. Absent this additional independent factor the evidence is insufficient to support conviction.
Id. ¶ 12, 481 P.2d at 477. See also McCarty v. State, 1974 OK CR 158, 525 P.2d 1391; Sturgeon v. State, 1971 OK CR 128, 483 P.2d 335.
The seminal case delineating the parameters of the requirement of possession is Staples v. State, 1974 OK CR 208, 528 P.2d 1131, wherein the court articulated the following principles for determining whether "possession" existed. A summary follows.
(1) Actual physical custody of a controlled substance is not required; the State meets the requisite burden of proof by demonstrating constructive possession of a narcotic substance. Constructive possession entails both knowledge of its presence as well as the power and intent to control its use or disposition. The element of possession is established where contraband is found on premises possessed by the defendant and under his exclusive control. (2) Possession need not be exclusive. An individual may be deemed to be in "joint possession" of a drug which is in the physical custody of a companion, if the two willfully and knowingly share the right to control the narcotic substance. (3) As held in Brown, however, mere proximity to contraband is insufficient to establish control. Whether the State alleges sole or joint possession, evidence in addition to the defendant's presence at a place where narcotics are possessed or used must be adduced to demonstrate knowledge and control. (4) Since the mens rea aspect of knowing possession is rarely susceptible of direct proof, the defendant's knowledge and right of control may be established by circumstantial evidence. Circumstantial proof may permit an inference of knowledge and control that is sufficient to permit the case to go to the jury. (5) Although the court declared in Brown that mere presence, absent additional independent factors, is insufficient to raise an inference of knowledge and control, such independent factors may be plumbed from a variety of sources, such as the defendant's incriminating statements or conduct, or prior police investigation. However, the threshold test of independent factors remains unfulfilled where the only factor adduced in addition to the defendant's physical proximity to the narcotic substance is the fact that the drug was located in an extremely confined area such as the interior of a motor vehicle.
See also Miller v. State, 1978 OK CR 54, 579 P.2d 200 (possession not established where proof failed to demonstrate that bedroom where contraband found belonged to defendant, who claimed defendant's brother had dominion and control over contraband); Hishaw v. State, 1977 OK CR 276, 568 P.2d 643 (proof that marijuana cigarette found on floor adjacent to feet of defendant, a passenger in an automobile, insufficient to establish possession); Clarkson v. State, 1974 OK CR 217, 529 P.2d 542 (fact that person carrying drugs was apprehended after exiting from defendant's residence insufficient to establish control and access).
The element of possession may be established, however, regardless of the insufficiency of the State's proof of dominion and control, by the defendant's evidence during trial. Johnson v. State, 1977 OK CR 188, 564 P.2d 664, overruled on other grounds, Omalza v. State, 1996 OK CR 80, n.29, 911 P.2d 286, 310; Walker v. State, 1973 OK CR 369, 512 P.2d 208.
In addition to possession, the specific intent of the defendant to distribute or dispense the contraband substance must be established. The element of specific intent to disseminate the drugs possessed involves a question of fact to be determined by the jury. In many instances, the sheer quantity of the narcotic substance found, as well as the presence of sale paraphernalia, or the fact of individual packaging, is deemed sufficient circumstantial evidence of intent to allow presentation of the case to the jury. King v. State, 1977 OK CR 136, 562 P.2d 902; Massengale v. State, 1976 OK CR 265, 556 P.2d 282; Davis v. State, 1973 OK CR 416, 514 P.2d 1195; Reynolds v. State, 1973 OK CR 284, 511 P.2d 1145.