X.

The Record Is Devoid Of Evidence Of Possession Of Marihuana

By Joslin.

As stated in the Michigan Controlled Substances Benchbook,

“[p]ossession is a term that signifies dominion or right of control over the drug

with knowledge of its presence and character.” Michigan Controlled

Substances Benchbook, §2.3, quoting People v Norfleet, 317 Mich App 649;

659 (2016) (“Benchbook”) (emphasis added).

The Benchbook also notes that Michigan Crim. Jury Inst. 12.7 requires

that [“i]It is not enough that the defendant merely knew about [the

substance]; the defendant possessed the [marihuana] only if /she had

control of it or the right to control it, either alone or together with

someone else.” Id., quoting MCJI 12.7.

In the instant case, the record is devoid of anybody’s actual or

constructive knowledge of the contents of the white bags (discussed, supra),

as well as any evidence that Joslin had actual control, or the right to control,

and marihuana allegedly found at Pure Wellness.

As set forth in the Benchbook, “[t]o establish constructive possession,

“‘the ultimate question is whether, viewing the evidence in a light most

favorable to the government, the evidence establishes a sufficient connection

between the defendant and the contraband to support the inference that the

defendant exercised a dominion and control over the substance.’” Benchbook,

§2.3, P2-15, quoting People v Wolfe, 440 Mich 508, 521 (1992), quoting

United States v Disla, 805 F2d 1340, 1350 (CA 9, 1986).

 Mere presence is insufficient. Rather, proof that the defendant “knew

of the character” of the controlled substance is required:

a person’s presence, by itself, at a location where drugs are found

is insufficient to prove constructive possession. Instead, some
additional connection between the defendant and the contraband
must be shown.” Wolfe, 440 Mich at 520 (citations omitted). …
Constructive possession of an illegal substance requires proof that
the defendant knew of its character.” People v McGhee, 268 Mich
App 600, 610 (2005). Id.

As set forth in the Benchbook, far more than a single electric bill is

required to prove constructive possession. The following cases found

constructive possession.1 All of them have a much more ingrained nexus

than the case at bar:

[w]here no evidence that defendant actually possessed the heroin

recovered in a motel room, but where testimony established that
the substance recovered from the motel room was heroin and
“that defendant had control over it at the time because he was the
one who directed [the people renting the motel room] to deliver
the heroin to its intended recipients.” Benchbook, supra, quoting
Norfleet, 317 Mich App at 659-660;2

People v Hardiman, 466 Mich 417, 422-423 (2002) (evidence

supported an inference that defendant resided at the apartment,
apartment’s mailbox and nightstand where some of the drugs
were discovered contained mail addressed to defendant,
defendant herself discovered in rear parking lot of building, heroin
was in a dress hanging in the closet; record contained no evidence
that another woman resided at the apartment. Id.;

1 All of these cases are set forth in the Benchbook at §2.3.

2 Said testimony was corroborated by another witness “who testified that
defendant was the one whom she would call to request the heroin from and
that [the people renting the motel room] simply delivered it.”
People v Konrad, 449 Mich 263, 273-274 (1995) (defendant paid
for drugs to be delivered to him by a person acting as his agent);
Wolfe, supra at 523 (defendant invited others to the premises,
was the only person with a key, fled into a back room when the
police entered the apartment, was trying to conceal crack cocaine,
sales of cocaine were made from the apartment earlier that day
with defendant’s involvement, including the arranging of
meetings, and possession of a beeper;

Cohen, supra, 294 Mich App at 77 (close proximity to contraband

in plain view);

Although McGhee, supra, 268 Mich App at 623, found constructive

possession and also featured an electric bill, also found on the
premises were an insurance document for a car with the
property’s address and defendant’s name, and the registration for
a vehicle in the defendant’s name, the vehicle itself was found in
the garage where the raid took place, photographs of the
defendant, an insurance application with the address of the
property, a note addressed to the defendant, an expired driver’s
license belonging to the defendant bearing the property’s address,
and a warranty deed to the defendant and another person for the
property were all discovered on the premises;

People v Head, 211 Mich App 205, 210 (1995) (defendant lived
with several people in a house and controlled substances were
found sitting in plain view in a room containing the defendant’s
belongings and a bed upon which the defendant was lying when
police entered the house);

People v Catanzarite, 211 Mich App 573, 578 (1995) (defendant

arrested holding a bag containing cocaine substantial additional
cocaine was found in the vehicle that the defendant was driving
at the time of arrest);

People v Richardson, 139 Mich App 622, 625-626 (1984) (cocaine,

receipts, and personal papers with defendant’s name on them in
a drawer in a bedroom to which the defendant and others had
access).