State v. Sherman

Constructive possession of a controlled substance occurs when the defendant exercises control, or has the right to exercise control, over the substance. However, merely being proximately close to the substance does not indicate constructive possession. Evidence needs to be established connecting defendant to his right to control the substance and that evidence can be circumstantial, including defendant's own statements.

Defendant appealed his conviction of manufacturing, unlawful delivery, and possession of cocaine. After a period of surveillance of Defendant and his co-defendant, a search warrant was issued for an apartment and a rental car. The rental car was pulled over by police and searched, along with Defendant and his co-defendant. 5.67 grams of cocaine were found in the co-defendant's vagina which was added to Defendant's possession charge of cocaine found in his pants at the apartment. Defendant contends that the trial court erred in denying his motion for judgment of acquittal stating that there was not enough evidence for a reasonable juror to have found him in possession of over 10 grams of cocaine. Constructive possession can occur when the defendant exercises control, or has the right to exercise control, over a substance, and when evidence is presented indicating the defendant's right to control said substance. While Defendant argued that the evidence presented was not conclusive enough to prove that he had adequate control of the cocaine found in his co-defendant's vagina, the Court concluded that there was sufficient circumstantial evidence demonstrating a joint enterprise with co-defendant and that Defendant had sufficient control of the cocaine. Affirmed.