New Service Rule Applicable to the State Prosecuting Attorney Per Misc. Docket No. 19-012
1. “The Court of Appeals erred in holding the trial court did not improperly comment on the evidence by providing a jury instruction on ‘joint possession’ that added to the statutory definition of ‘possession.’”
2. “The Court of Appeals erred in alternatively holding it was not error to refuse Appellant’s requested jury instruction on ‘mere presence’ while holding the jury instruction on ‘joint possession’ was appropriate.”
Beltran de la Torre was indicted for possession of cocaine that police found on the center console of his car. Beltran de la Torre had been in the driver’s seat at the time, and there were also two female passengers. All three occupants had dilated pupils, suggesting cocaine use. At trial, Beltran de la Torre testified that the cocaine was not his and that he did not even know it was in the car. He said three others had occupied the car that day. At the charge conference, the trial court denied the defense’s request for an instruction that mere presence at the scene was insufficient to constitute knowing possession. The charge did include the non-statutory instruction “Two or more people can possess the same controlled substance at the same time.” The jury convicted Beltran de la Torre, and he appealed both jury charge issues.
The court of appeals held that because the “mere presence” instruction was not a statutory defense and merely negated an element of the State’s case, it was not error to refuse the defense instruction. While acknowledging that the joint possession instruction was also not statutory, the court of appeals concluded that joint possession had a particular legal meaning and that “jurors should not be left to their own devices to decide whether ‘possession’ includes ‘joint possession’ when the facts at trial raise the question.”
Beltran de la Torre argues that the joint possession instruction is an impermissible comment on the evidence because, even if a correct statement of law, it draws attention to the State’s theory while undermining the defense. He contends that the court of appeals’ holdings are in conflict and that if the joint possession instruct was proper, the mere presence instruction was likewise proper.