POSSESSION

POSSESSION A person is in possession of an object if the person knowingly procured or received the thing possessed or was aware of his/her control of it for a sufficient period to have terminated his/her possession. The law recognizes two kinds of possession: actual possession and constructive possession. A person who, although not in actual possession, knowingly has both the power and the intention, at a given time, to exercise dominion or control over a thing for a sufficient period to terminate his/her possession of it, either directly or through another person or persons, is then in constructive possession of it. The fact that a person is near an object or is present or associated with a person who controls an object, without more, is not sufficient to support a finding of possession. [The law recognizes also that possession may be sole or joint. 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, possession is joint.] The element of possession has been proved if you find beyond a reasonable doubt that the defendant had actual or constructive possession, [either solely or jointly with others.] Commentary Possession is a voluntary act only if the defendant knowingly procured or received the thing possessed or if the defendant was aware of the defendant's control of it for a sufficient period to have been able to terminate the defendant's possession. HRS § 702-202. State v. Jenkins , No. 22071, slip op. (Apr. 6, 2000) (overruling State v. Mundell). See State v. Auwae, 89 Hawai`i 59, 968 P.2d 1070 (App. 1998); State v. Lloyd, 61 Haw. 505, 514 n. 7, 606 P.2d 913, 919 (1980). Thus, under HRS § 702-202, an individual may be found to have possessed a thing only if he/she did so knowingly or intentionally. However, the knowing requisite applies only for the possession of the physical object itself. State v. Jenkins, supra. The particular qualities or properties of the object that make it a crime to possess the object are governed by the state of mind specified in the offense. When the offense lacks a scienter requirement, possession as to the particular qualities of an object that make possession of it a crime may be satisfied by a finding of recklessness. HRS § 702-204. Therefore, possession must be analyzed as a two-prong analysis: (1) possession of an object itself is satisfied where the person acts knowingly; and (2) the attendant circumstances - - the particular qualities of the object that make it illegal to posses it -- are satisfied by the specific state of mind stated in the offense or by a reckless state of mind when the offense lacks a scienter requirement. State v. Jenkins, supra (overruling State v. Mundell, 8 Haw.App. 610, 822 P.2d 23 (1991) and State v. Auwae, 89 Hawai`i 59 (App. 1998) to the extent incompatible with the Jenkins analysis.) The term "control" is subsumed in the definition of "possession" and the same two-pronged analysis would apply. State v. Jenkins, supra. While " carrying" and "possessing" are not synonymous (e.g. the place to keep offense, HRS § 134-6, employs "carry" in terms of carrying on the person and carrying in a vehicle), "carrying" implies personal agency and some degree of possession. Thus, the knowing requirement of HRS § 702-202 is triggered, and the two-pronged analysis applies. In State v. Mundell, 8 Haw.App. 610, 822 P.2d 23 (1991), the defendant argued that drug offenses require him to have actual possession of contraband on his person and that constructive possession is not sufficient to support the charge. "[T]he legislature intended to impose penal sanctions," ruled the Mundell court, "for constructive as well as actual possession of contraband items." 8 Haw.App. at 618-619, 822 P.2d 27-28. To support a finding of constructive possession the evidence must show "a sufficient nexus between the accused and the drug to permit an inference that the accused has both the power and the intent to exercise dominion and control over the drug." 8 Haw.App. at 622. "Mere proximity to the [object], mere presence, or mere association with the person who does control the [object] is insufficient to support a finding of possession." Id; see also State v. Opupele, 88 Hawai`i 433, 967 P.2d 265 (1998). HRS § 712-1251 (possession in a motor vehicle) states, "the presence of a dangerous drug, harmful drug, or detrimental drug in a motor vehicle, other than a public omnibus, is prima facie evidence of knowing possession thereof by each and every person in the vehicle at the time the drug is found." State v. Brighter, 61 Haw. 99, 595 P.2d 1072 (1979) (absent a clarifying statement that HRS § 712-1251 creates a prima facia inference as to dealership quantities, and not a certainty, an instruction based on HRS § 712-1251 improperly shifted the burden of proof of possession from the prosecution to the defendant); State v. Pimental, 61 Haw. 308, 603 P.2d 141 (1979); State v. Fabio, 1 Haw.App. 544, 622 P.2d 619 (1981). In State v. Reed, 77 Hawai`i 72, 88, 881 P.2d 1218, 1234 (1994), the Hawai`i Supreme Court held that despite the fact the prohibited drug was delivered in three separate bindles on the day of the incident, nothing in the statute requires that the defendant "possess at any one time" 1/8 ounce or more of the substance or that the substance be delivered all at once in a single container. The defendant had agreed to give, and actually delivered a substance weighing more than 1/8 ounce in the aggregate, and actual delivery is not required for distribution. Id. Possession of a microscopic amount of a drug in combination with other factors indicating an inability to use or sell the narcotic may constitute a de minimis infraction, although "traffic in narcotics can hardly be said to be a de minimis offense." State v. Reed, 77 Hawai`i 72, 85, 881 P.2d 1218, 1231 (1994); see also State v. Schofill, 63 Haw. 77, 84, 621 P.2d 364, 370 (1980); State v. Vance, 61 Haw. 291, 307, 602 P.2d 933, 944 (1979). However, dismissal of a prosecution pursuant to HRS § 702-236 is within the discretion of the court, and is not a defense. State v. Reed, 77 Hawai`i 72, 85, 881 P.2d 1218, 1231 (1994). The Hawai`i appellate courts have not previously addressed the defense of possession for the sole purpose of disposing of contraband or reporting it to police. State v. Opupele, 88 Hawai`i 433, 967 P.2d 265 (1998). While the Opupele decision noted that "courts in other jurisdictions have recognized this as a defense to a criminal prosecution," the supreme court found that under the facts present in the Opupele case it was unnecessary to decide whether this defense should be recognized. Id. at 439.