Being Present Where Object Is Located Is Not Possession (Tennessee)

In United States v. Morrison [excerpt after the jump] the trial court correctly clarified the meaning of possession when it granted the defense’s request to instruct that "just being present where something is located does not equal possession."

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
33.4.8 - Possession Of Recently Stolen Property: Defense Theory That Prosecution Has Not Proven That Possession Was Exclusive
56.2 - Possession: Sufficiency Of Proof
The Shellow Instructions
Drugs, Controlled Substances: Possession
Forecite California™
F 1.24 Possession
F 3306 Possession Based Offenses—Defense Theories

United States v. Morrison, slip opn. p. 5 (6th Cir. Tenn., No. 08-6203, 2010)
Morrison also argues that the district court's jury instructions regarding actual possession were inconsistent and confusing. In general, we "may reverse a judgment based on an improper jury instruction only if the instructions, viewed as a whole, were confusing, misleading, or prejudicial." United States v. Harrod, 168 F.3d 887, 892 (6th Cir. 1999) (internal quotation marks omitted). But Morrison did not object to the relevant jury instructions in the district court, so we review them only for plain error. See Fed. R. Crim. P. 30(d); Fed. R. Crim. P. 52(b). "In the context of challenges to jury instructions, plain error requires a finding that, taken as a whole, the jury instructions were so clearly erroneous as to likely produce a grave miscarriage of justice." Newsom, 452 F.3d at 605 (internal quotation marks and brackets omitted).

The instructions in this case were not ideal. The court first told the jury that possession "does not necessarily mean that the defendant must hold [the weapon] physically, that is, have actual possession of it. As long as the firearm is in the defendant's control he possesses it." The court then said the jury could find possession if it found "that the defendant had actual possession of the firearm[.]" Later, the court added that the "government must prove that the defendant had actual possession[.]" The second statement is nearly a tautology; and the third is at odds with the first. So to some extent Morrison has a point.

Taken as a whole, however, the instructions sufficiently conveyed the elements of the charge. The instructions accurately stated that possession requires "control" of a firearm; that possession must be "knowing[]"; and that the firearm must be "possessed purposefully and voluntarily and not by accident or mistake." The court also clarified the limits of the concept, at Morrison's request, by instructing the jury that "just being present where something is located does not equal possession." The district court would have done well to clarify further. But as they were, the instructions were not plain error.