Found weed in the house charged us all can I beat it?

[chetsonlaw]

Also there are several such cases. Constructive possession must meet several specific criteria. One very specific is that the state would have to prove he knew of the drug and had control over it. No where does o.p. even insinuate this,therefore he was not in constructive possession of the drug. You would of had us believe just being within a certain proximity o.p. was guilty. That is not the case at all and o.p. meets none of the criteria for cons. poss. It is a theory in every sense of the word. So how about this, you go play lawyer somewhere else.

First, constructive possession does not require the state to prove the defendant "knew of the drug." That's the whole point of constructive possession. Constructive possession merely requires that the state prove defendant have control over the property - car, home, etc. - in which the illegal substance was found.

Second, internet postings can be used against the defendant under the right circumstances - assuming they are authenticated to be by him. They are admissions by a party opponent, and not hearsay. In addition, there's no privilege protecting the internet communication. If the original poster had consulted an attorney, that would be protected by attorney-client confidentiality.

As to the specific facts, it's pretty unlikely that the original poster will be convicted of the crime. First, they can't show constructive possession. It wasn't his place, there were multiple people around, he made no admissions to the police, and was not found in actual possession of the drugs.

He should get a lawyer because they will try to scare him into a misdemeanor plea on the charge.

 

[HappyWanderer]

By my reading of the internet, constructive possession DOES require knowledge of the drug. One cannot have a vicarious criminal liability from mere ownership.

I think the guy knew and does have constructive possession. It's just that the possession came from his knowledge and not from his situation.

 

[ERAUPIKE]

By my reading of the internet, constructive possession DOES require knowledge of the drug. One cannot have a vicarious criminal liability from mere ownership.

I think the guy knew and does have constructive possession. It's just that the possession came from his knowledge and not from his situation.

chetsonlaw is right. The state does not have to prove knowledge, they have to prove control. I do agree the case is weak but the OP should still retain council.

 

[ERAUPIKE]

Actually, he's wrong, as are you. Possession of contraband in Tennessee, at least according to the statute, REQUIRES the person to "knowingly possess". Please explain how one can knowingly possess simply through control.

Here's a little help from Tennessee case law regarding "constructive possession" (Even though they're talking about a handgun, if you come up with any reasonable argument I'll spend 30 seconds and find something directly related.)

[I put the key part in bold for the reading impaired.]


You can pick up the Rice-a-Roni on your way out.

(That does not mean this guy isn't in constructive possession. I was merely pointing out the actual law.)

Gun laws do not apply to drugs. Try again.

 

[Joshuaace2]

chetsonlaw is right. The state does not have to prove knowledge, they have to prove control.

Wrong again, Happywanderer tried to lead you to the well knowledge on the subject, instead, you continue to parade your ignorance around.

The statute cleary says:


39-17-418. Simple possession or casual exchange. —


(a) It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice.


So, will you continue to argue the state need not prove knowledge? Will you admit you are wrong? Will you report the thread, now that you have been PROVEN wrong?


In an earlier post on this thread, you called me misinformed. Do you care to retract that statement now?

 

[ERAUPIKE]

Wrong again, Happywanderer tried to lead you to the well knowledge on the subject, instead, you continue to parade your ignorance around.

The statute cleary says:


39-17-418. Simple possession or casual exchange. —


(a) It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice.


So, will you continue to argue the state need not prove knowledge? Will you admit you are wrong? Will you report the thread, now that you have been PROVEN wrong?


In an earlier post on this thread, you called me misinformed. Do you care to retract that statement now?

Wow you can use google, I am impressed misinformed josh. You are still wrong. I report posts that violate the terms of use for this forum.

If one person in a residence has illegal drugs, law enforcement will often charge every person in the domicile for possession of these illegal drugs. This certainly does not mean that every person in the domicile is guilty of possession of the drugs. The term “possession,” as used in the Tennessee drug statutes, means both actual and constructive possession. Constructive possession of drugs occurs when a person has the power and intention at a given time to exercise dominion and control over the drugs either directly or through others. The mere presence of a person in an area where drugs are discovered is not alone sufficient to support a finding that the person possessed the drugs. State v. Cooper, 736 S.W. 2d 125, 129 (Tenn Cr. App. 1987)

You may also want to reference State of Tennessee V. Carlos Burris. Here is an excerpt from the ruling:

“the power and intention at a given time to exercise dominion and control over . . . [the drugs] either directly or through others.” State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App. 1996) (citations omitted); see also Shaw, 37 S.W.3d at 903. In other words, “constructive possession is the ability to reduce an object to actual possession.” State v. Ross, 49 S.W.3d 833, 845-46 (Tenn. 2001) (citations omitted). The element of knowledge of the presence of a controlled substance, for purposes of unlawful possession, is oftentimes not susceptible to direct proof. However, knowledge may be circumstantially proven by evidence of acts, statements, or conduct. Transou, 928 S.W.2d at 956.

I will await your humble apology and an explanation on what "well knowledge" is.

Case closed.

 

[Joshuaace2]

Wow you can use google, I am impressed misinformed josh. You are still wrong. I report posts that violate the terms of use for this forum.

Not only can I use google, I read, and comprehend what I search.
Which, apparently you are unable to do.

If one person in a residence has illegal drugs, law enforcement will often charge every person in the domicile for possession of these illegal drugs. This certainly does not mean that every person in the domicile is guilty of possession of the drugs. The term “possession,” as used in the Tennessee drug statutes, means both actual and constructive possession. Constructive possession of drugs occurs when a person has the power and intention at a given time to exercise dominion and control over the drugs either directly or through others. The mere presence of a person in an area where drugs are discovered is not alone sufficient to support a finding that the person possessed the drugs. State v. Cooper, 736 S.W. 2d 125, 129 (Tenn Cr. App. 1987)

Did you even read this? Or did you just not comprehend it? The two sentences I highlighted, why do you think they are there? Because knowledge is a necessity for the burden of proof to be met. You have successfully defeated your own argument. BRILLIANT.

“the power and intention at a given time to exercise dominion and control over . . . [the drugs] either directly or through others.” State v. Transou, 928 S.W.2d 949, 956 (Tenn. Crim. App. 1996) (citations omitted); see also Shaw, 37 S.W.3d at 903. In other words, “constructive possession is the ability to reduce an object to actual possession.” State v. Ross, 49 S.W.3d 833, 845-46 (Tenn. 2001) (citations omitted). The element of knowledge of the presence of a controlled substance, for purposes of unlawful possession, is oftentimes not susceptible to direct proof. However, knowledge may be circumstantially proven by evidence of acts, statements, or conduct. Transou, 928 S.W.2d at 956.

And you think this proves your point? Wrong again. This explains how "proof" of the knowledge you contend is uneccessary, can be attained. It(knowledge) can be proven directly, or circumstantially, but it must be proven. Clearly there is nothing in the OP that suggests his acts(leaving), statements(None), or conduct(compliance with the officers), are circumstantial proof of his knowledge.


To convict OP of this statute:

39-17-418. Simple possession or casual exchange. —

(a) It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice.

The prosecution has to prove every element, one of those being "knowingly" possessed. Your reading comprehension skills are not near what you think they are.

I will await your humble apology and an explanation on what "well knowledge" is.

Apologize for what? If you think I am going to apologize for ONCE AGAIN PROVING you spoke outside your knowledge; you will be waiting awhile.

That would be the "well of knowledge". Since you can't comprehend when all the words are there, I'm sure this threw you for a loop.

Case closed.

ROFL, you keep saying this. Wouldn't be near so funny if you were right, you're not.


BTW, I never heard you say you were wrong on the other thread either.

When an overwhelmingly persuasive argument is presented opposing your position (like here), and you cling to your insistance that you are right, it diminishes your credibility.

I will humbly await for you to own up to the fact that you are wrong.

 

[AndyMarie]

Fair Warning to ERAUPIKE

MR. ERAUPIKE:

You are in imminent danger of being banned from the Free Advice Legal Forum for name calling, internet bullying, fear mongering, and the hijacking of threads in order to pursue unrelated arguments with posters from previous discussions. Your continued threats to report others as violators of this forum's code of conduct have ironically backfired.

The intent of the FA Forum is to enable consumers to benefit from the experience of other consumers who have faced similar legal issues. When a registered user consistently exploits that privilege by using the forum as a venue for unrelenting, venomous debate or vehicle to deliver disparaging remarks in anonymity, he is not adhering to the rules, terms, and conditions agreed to upon registration.

The FreeAdvice Forum exists to be of service to its visitors and users. When a member habitually answers questions in a manner determined to be or perceived to be abusive, harassing, or defamatory, it turns visitors, new users, and experienced members away, and discourages them from seeking advice. A member who violates these terms can be banned and fined $250 for each offensive post.

You are being extended a brief window of opportunity to amend your behavior. Even offering the best legal advice in the world would not grant you immunity from the obligation of respectfully addressing other members of this online community. Continuing to disparage a member of any level will not be tolerated.

Please see your private messages for additional information.

 

[ERAUPIKE]

MR. ERAUPIKE:

You are in imminent danger of being banned from the Free Advice Legal Forum for name calling, internet bullying, fear mongering, and the hijacking of threads in order to pursue unrelated arguments with posters from previous discussions. Your continued threats to report others as violators of this forum's code of conduct have ironically backfired.

The intent of the FA Forum is to enable consumers to benefit from the experience of other consumers who have faced similar legal issues. When a registered user consistently exploits that privilege by using the forum as a venue for unrelenting, venomous debate or vehicle to deliver disparaging remarks in anonymity, he is not adhering to the rules, terms, and conditions agreed to upon registration.

The FreeAdvice Forum exists to be of service to its visitors and users. When a member habitually answers questions in a manner determined to be or perceived to be abusive, harassing, or defamatory, it turns visitors, new users, and experienced members away, and discourages them from seeking advice. A member who violates these terms can be banned and fined $250 for each offensive post.

You are being extended a brief window of opportunity to amend your behavior. Even offering the best legal advice in the world would not grant you immunity from the obligation of respectfully addressing other members of this online community. Continuing to disparage a member of any level will not be tolerated.

Please see your private messages for additional information.

Says the divorced junior member, nice try though.

 

[ERAUPIKE]

Not only can I use google, I read, and comprehend what I search.
Which, apparently you are unable to do.



Did you even read this? Or did you just not comprehend it? The two sentences I highlighted, why do you think they are there? Because knowledge is a necessity for the burden of proof to be met. You have successfully defeated your own argument. BRILLIANT.




And you think this proves your point? Wrong again. This explains how "proof" of the knowledge you contend is uneccessary, can be attained. It(knowledge) can be proven directly, or circumstantially, but it must be proven. Clearly there is nothing in the OP that suggests his acts(leaving), statements(None), or conduct(compliance with the officers), are circumstantial proof of his knowledge.


To convict OP of this statute:

39-17-418. Simple possession or casual exchange. —

(a) It is an offense for a person to knowingly possess or casually exchange a controlled substance, unless the substance was obtained directly from, or pursuant to, a valid prescription or order of a practitioner while acting in the course of professional practice.

The prosecution has to prove every element, one of those being "knowingly" possessed. Your reading comprehension skills are not near what you think they are.





Apologize for what? If you think I am going to apologize for ONCE AGAIN PROVING you spoke outside your knowledge; you will be waiting awhile.

That would be the "well of knowledge". Since you can't comprehend when all the words are there, I'm sure this threw you for a loop.




ROFL, you keep saying this. Wouldn't be near so funny if you were right, you're not.


BTW, I never heard you say you were wrong on the other thread either.

When an overwhelmingly persuasive argument is presented opposing your position (like here), and you cling to your insistance that you are right, it diminishes your credibility.

I will humbly await for you to own up to the fact that you are wrong.

You are still wrong. I am done with this battle of wits with an unarmed opponent.

 

[dave33]

Guys, since the op's question was "do I have a good chance at beating the charge?" Can we all just agree that with a decent lawyer we would all likely turn down any plea deal offered by the state? It would be difficult to put a % on his chances, but can we agree the answer to his question is "yes". Of course we posess no crystal balls, but agree the case is a weak one. Would this be an acceptable response by everyone? Anyway, that is my answer and hope that it is agreeable.goodluck. Dave

 

[Joshuaace2]

You are still wrong. I am done with this battle of wits with an unarmed opponent.

Go pout if you want to. To say you refuse to do battle with an unarmed opponent is comical. You mean the unarmed opponent that keeps hitting you squarely over the head with the hammer of truth?

You mean the opponent that pointed out your argument supporting your position, soundly defeats it?

You have been pompous and arrogant. You have repeatedly attempted to belittle fellow posters on this forum. You have insulted people repeatedly (including this post), yet when insulted you report the offender. You have posted clearly incorrect information on this forum, and when corrected, you launch a personal attack.

Your actions are juvenile at best. It is time to grow up. The first step should be to apologize to those you have intentionally offended. Second step should be to own your ignorance (admit you were wrong). If you fail to do so, it severely diminishes your credibility, and people will not respect you.

 

[HappyWanderer]

I thought it was a little Orwellian to use my Google search and claimed it as meaning the exact opposite of what it actually meant. Peace is War. Knowledge does not require knowledge.

Gun laws don't apply to drugs? No, but, when I looked at the cases they used as an example FOR the possession of handguns, they used drug cases. I should have used the 30 seconds back then to get a more precise example.

We shall overcome! No knowledge, but a wealth of internet information available to those who know how to do a Boolean search.

 

[Joshuaace2]

We shall overcome! No knowledge, but a wealth of internet information available to those who know how to do a Boolean search.

This should not be misinterpreted to mean ERAUPIKE will comprehend what he searches for; he clearly did not, at least on two occasions now.

 

[ERAUPIKE]

This should not be misinterpreted to mean ERAUPIKE will comprehend what he searches for; he clearly did not, at least on two occasions now.

This will be my last post stubborn josh and I am going to bet it will be yours too.

You are failing to see the importance or comprehend what I have posted. Each post clearly defines possession as when a person has the power and intention at a given time to exercise dominion and control over the drugs either directly or through others. I noticed you failed to address that.

I have shown that possession does not require knowledge, only the power and intention to exercise dominion. I am still awaiting any type of reference or citation to back up your self important childish rants.

dave, I do agree that the case is somewhat weak but like I said before he could still be convicted. There is plenty of case law that would support his constructive possession of the narcotics found in the area. I have yet to see any case law posted by those that oppose my view.

Case closed.