You can be sitting at work and “constructively possess” something tucked away in your bedroom closet at home. It is not whether you actually physically possess the piece of property at the time; it is whether you have the “power and intent” to control it. And you are presumed to both know about and have the power to control the contents of your bedroom closet, even if you have to drive across town to actually exercise that control.
On the other end of the continuum is actual possession. Actual possession is defined as physical possession of the property – you actually hold it in your hand or you have it “on or about” your person.
But what about having something “readily available?” This is the term that is included in D.C. Code 22-4502, the statute that enhances penalties for people convicted of committing a dangerous crime or crime of violence while armed. According to the D.C. Court of Appeal’s recent decision in Clyburn v. United States, 48 A.3d 147 (D.C. 2012), “readily available” falls somewhere in between constructive possession and actual possession on the possession continuum.
Charged with possession with intent to distribute a controlled substance while armed (PWIDWA), the defendant in Clyburn was arrested in his one-bedroom apartment by police officers conducting a “buy-bust” operation. (In a buy-bust operation, an undercover officer or informant uses pre-recorded bills to buy drugs. Police then use this sale as probable cause to arrest.) The drugs, drug money, and drug paraphernalia (including Ziploc bags, razor, glass plate) were found in the living room where Clyburn was arrested. A loaded assault rifle and ammunition clip were recovered from the bedroom.
Although police acknowledged that they never saw Clyburn touch either the assault rifle or the ammunition, the trial court denied the defendant’s motion for judgment of acquittal on the PWIDWA. Specifically, it concluded that, because Mr. Clyburn was proven to be the sole occupant of the apartment, a reasonable trier of fact could conclude that both the rifle and ammunition were “in his possession or under his control.”
In overturning this decision, the D.C. Court of Appeals pointed to the language of the enhancement statute requiring that the person who commits the crime of violence or dangerous crime either be “armed with” or has “readily available any pistol or other firearm (or imitation thereof) or other dangerous or deadly weapon.” Being “armed with” is actual possession. But having “readily available” is not the same thing as constructive possession:
. . . we conclude that under D.C. Code § 22-4502(a), “having readily available” means in close proximity or easily accessible during commission of the [crime of violence or dangerous crime], as evidenced by lay or expert testimony (and reasonable inferences) describing the distance between the [defendant] and the firearm, and the ease with which the [defendant] can reach the firearm during the commission of the offense.”
In this case, the defendant was arrested in the living room where the drugs, drug money, and drug paraphernalia was recovered, not in the bedroom where the assault rifle and ammunition were found. Because the government did not establish “the distance between the living room and the bedroom, or the ease of the path from the living room to the bedroom and the assault rifle,” the government “failed to produce evidence showing beyond a reasonable doubt Mr. Clyburn’s close proximity or easy access to the assault rifle during the PWID offense.”