"Constructive Possession" Conviction Reversed in Franklin County


A Columbus man's conviction for having a Weapon under Disability and Possession of a Dangerous Ordnance (sawed off shotgun) was reversed by the Franklin County Court of Appeals on August 30, 2012. The relevant parts of this case that are important for the criminal lawyer to know come from R.C. 2925.01(K) and the 1971 Ohio Supreme Court case, State v. Haynes, 25 Ohio St.2d 264.

This is especially true for any drug possession cases where the defendant did not actually possess the contraband. Here is Mr. Burney's successful challenge to his conviction.

The defendant, Mr. Burney, was on probation and thus "disabled" to possess a gun. The State's evidence was the shotgun in question was found under a couch, with his DNA on it, in a home listed as his primary residence. The DNA evidence was a mixture that involved other people's DNA. The DNA analyst could not testify as to when Mr. Burney's DNA was placed upon it (before or after his probation being imposed).

The State was left to argue constructive possession. However, the Franklin County Court of Appeals found insufficient evidence to convict Mr. Burney.

"Possession, however, may not be inferred solely from "mere access" to contraband or occupation of the premises upon which contraband is found, particularly "where such premises are also regularly occupied by others as co-tenants and the [contraband is] found in an area ordinarily accessible to all tenants." R.C. 2925.01(K); State v. Haynes, 25 Ohio St.2d 264, 270 (1971).

In Haynes, a police search of Haynes' residence, rented and occupied jointly with three other people, revealed narcotics in the general living area. No additional evidence connected defendant to the drugs, and defendant testified without contradiction that he left the home a week before the search because of a dispute with another occupant.

The Supreme Court of Ohio held in Haynesthat when contraband is "in the general living area of jointly occupied premises, one can only speculate as to which of the joint occupiers have possession" Id.Accordingly, "no inference of guilt in relation to any specific tenant may be drawn from the mere fact of the presence of [contraband] on the premises." Id. See also State v. Dawson, 10th Dist. No. 97APA10-1300 (Aug. 13, 1998) (holding that when the defendant is not present for the search and does not have sole access to the premises where contraband is found, his occupancy as owner or lessee of the residence is not sufficient in itself to prove possession)

By contrast, here the record indicates multiple adults lived in, or had access to, the Whittier Street house, and the gun was not in plain view in the common area but instead was hidden under a couch. Although the DNA on the gun supports an inference that defendant touched the gun at some point, and thus was aware of it, the evidence does not allow the inference that he touched it while it was in his mother's home and thus was aware of its presence there, facts the State seeks to infer to advance its constructive possession argument.

Nor did the State prove the touching or awareness, necessary to support constructive possession, occurred after defendant's disability came to be.