Overbroad non-exclusive possession instruction

Meryl Carver-Allmond won in State v. Douglas-Keough, No. 100,316 (Kan. App. June 19, 2009)(unpublished), obtaining a new trial in a Reno County drug prosecution. The district court gave a nonexclusive possession instruction based on P.I.K. Crim. 3d 67.13-D, but it included all of the possible factors under that pattern instruction. Ms. Douglas-Keough objected to three of the factors being included because the state had not presented evidence of those factors. The COA agreed:

The seven factors were set forth as if they were facts supported by the evidence at trial. For instance, the jury was instructed that it may consider Douglas-Keough's "previous participation in the sale of a controlled substance." However, there was absolutely no evidence that Douglas-Keough ever sold drugs, and any inference that she may have done so was highly prejudicial. The jury was also instructed that it may consider the fact the controlled substance was found in plain view. There was no evidence that the drugs were found in plain view in the vehicle, but instead the evidence showed that the drugs were found in an empty pack of cigarettes shoved down between the driver's seat and the center console. The contradiction between the language of the instruction and the evidence presented at trial could have easily misled the jury as it decided whether Douglas-Keough possessed the drugs in question.

Another example of when an objection makes the difference. This is a suspect instruction in general--we don't tell juries what factors are important with regard to essential elements very often. Look carefully if this instruction is being pushed by the court or the prosecutor.

[Update: the state filed a PR on July 16, 2009.]

[Further update: the KSC denied the PR and the mandate issued on September 8, 2009.]