Opinion
Court of Appeals No. A-9116.
February 7, 2007.
Appeal from the Superior Court, Fourth Judicial District, Fairbanks, Mark I. Wood and Randy M. Olsen, Judges, Trial Court No. 4FA-04-1496 CR.
Marcia E. Holland, Assistant Public Defender, Fairbanks, and Quinlan G. Steiner, Public Defender, Anchorage, for the Appellant. Kenneth M. Rosenstein, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and David W. MÁrquez, Attorney General, Juneau, for the Appellee.
Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges. MANNHEIMER, Judge, dissenting.
MEMORANDUM OPINION AND JUDGMENT
Defendant Bobby Sims appeals his convictions for third-degree misconduct involving a controlled substance and second-degree misconduct involving weapons. Fairbanks Police Officer Bruce Barnett received an anonymous tip that three men were transporting cocaine from Anchorage to Fairbanks in a green Mercury Mountaineer. Barnett and other officers set up surveillance in Ester on the Parks Highway, the usual route for road travel between Anchorage and Fairbanks, about the time the Mountaineer would pass by if the tip was accurate. As the officers anticipated, a green Mercury Mountaineer passed by heading towards Fairbanks.
The police officers stopped the vehicle, and when Barnett approached, he smelled the odor of marijuana coming from the Mercury. Sims was seated in the back seat. Investigator Barnett detained the individuals in the vehicle (Sims, Antonio Williams, and Teffin Goss II) and applied for a search warrant.
When the police executed the warrant, they discovered 361.7 grams of cocaine, three handguns, ammunition, and marijuana. The cocaine was in a duffel bag identified as Williams's that was found in the storage area behind the rear seat. Goss admitted that the .45 caliber handgun found in the center console beside the driver's seat was his. Williams was the only one carrying cash and had $886 on his person. There were also three cell phones in the car, one of which was found on Sims's person.
Sims stated that he was returning from Anchorage where he had gone the day before. He admitted that he had touched one of the handguns at some point during the trip.
At a joint trial, Sims and Goss were each convicted of third-degree misconduct involving a controlled substance and second-degree misconduct involving weapons.
AS 11.71.030(a)(1) AS 11.61.195(a)(1), respectively.
In this appeal, Sims raises several issues. Sims first argues that the superior court erred in denying his motion to suppress the evidence obtained during the search of the vehicle because he contends the police unlawfully stopped the Mercury. We reject this claim because we conclude that the police had reasonable suspicion to stop the vehicle Goss was driving.
Next, Sims claims that the superior court should have granted his motion to dismiss the indictment because there was insufficient evidence to support the charge. We conclude that the superior court properly denied the motion.
Sims argues that the superior court erred in denying his motion for a judgment of acquittal. Sims claims that there was insufficient evidence to support his convictions. But viewing the evidence in the light most favorable to the verdicts, a fair-minded juror exercising reasonable judgment could conclude that the State had proven the charges beyond a reasonable doubt. We therefore reject this claim of error.
See Dorman v. State, 622 P.2d 448, 453 (Alaska 1981).
Sims also contends that the superior court erred when it failed to instruct the jury on an element of second-degree misconduct involving weapons, namely the requirement that there be a nexus between Sims's possession of a firearm and the commission of a felony drug offense, an element that we recognized in Collins v. State. Because we conclude that it was plain error for the superior court to overlook an instruction on that element, we reverse Sims's conviction on that count.
977 P.2d 741, 753 (Alaska App. 1999).
Finally, Sims argues that the superior court erred by not instructing the jury that it had to consider the guilt of each defendant separately and independently. We conclude that the superior court did not commit plain error by not providing this instruction.
Background facts and proceedings
On May 4, 2004, Officer Barnett received a telephone call from an anonymous informant. The informant reported that three individuals — Williams, Goss, and a third person — were distributing cocaine and marijuana in the Fairbanks area. The informant stated that the trio used vehicles rented under the name "Dequan Thomas" to transport drugs from Anchorage. According to the informant, the three traveled weekly between Anchorage and Fairbanks.
The informant called Barnett again the next day and reported that Williams, Goss, and a third unidentified male had rented a light green Mercury SUV under the name "Dequan Thomas" and were currently in Anchorage. The informant stated that the men would be bringing "a large amount" of cocaine back from Anchorage for distribution in Fairbanks.
Barnett contacted Budget Rent-A-Car in Fairbanks and asked about the rented SUV and whether Budget had rented any vehicles to a Dequan Thomas. The employee recognized the name and said that Dequan Thomas had rented vehicles from Budget and probably used the vehicles for trips from Fairbanks to Anchorage and back because the mileage was consistent with these trips. The employee said that Budget did not rent Mercury Mountaineers but that Hertz did.
Barnett contacted Hertz, but Hertz advised him that they would not release rental information without a subpoena. Barnett contacted Agent William Stone at the federal Drug Enforcement Agency, and Stone obtained a subpoena for Hertz's rental records. Pursuant to the subpoena, Hertz gave Barnett and Agent Stone a copy of a rental agreement between Hertz and Dequan Thomas. According to the rental agreement, Dequan Thomas rented a light green Mercury Mountaineer (license plate number EMT 565) for the period beginning on April 28, 2004, and ending at approximately 7:00 p.m. on May 6, 2004. Officer Barnett checked the vehicle registration in the Alaska Public Safety Information Network computer and confirmed that the Mercury was light green. Barnett also searched the state computer for Dequan Thomas's name and address but could not find either because he did not have Thomas's date of birth.
On May 5, 2004, the informant left a message on Officer Barnett's answering machine. According to the message, the informant had received a call from one of the suspects stating that the three left Anchorage at 4:30 p.m. and were on their way back to Fairbanks. The informant reported that the individual who called said they had the cocaine. In the same conversation, the informant told Officer Barnett that the suspects had used a VISA card to pay for the rental; the rental agreement Barnett had received from Hertz also showed that the renter used a VISA card.
The police calculated the amount of time it would take the men to drive from Anchorage to Fairbanks. They set up surveillance in Ester along the Parks Highway. Within the time period that they had calculated, they saw three men pass by in the light green Mercury Mountaineer rented from Hertz. When the police stopped the Mercury, Officer Barnett approached and noticed the odor of marijuana coming from the car.
The police brought a drug-sniffing dog to the car and the dog gave an alert which indicated the presence of drugs in the Mercury. Barnett detained Williams, Goss, and Sims, and obtained a search warrant for the Mercury. The police found cocaine, marijuana, handguns, and ammunition when they executed the warrant.
The grand jury indicted Williams, Goss, and Sims for misconduct involving a controlled substance in the third degree (possession of cocaine with intent to distribute) and misconduct involving weapons in the second degree (possession of a firearm during the commission of a felony drug offense).
All three individuals joined in a motion to suppress the evidence seized from the Mercury. Superior Court Judge Mark I. Wood conducted an evidentiary hearing and denied the motion to suppress.
Sims and Goss went to trial. At the conclusion of the State's case, Sims moved for a judgment of acquittal, arguing that the State had not proven that he had the requisite mental state to be guilty of either offense because the State had not shown that he knew Williams had cocaine in his suitcase. Superior Court Judge Randy M. Olsen denied the motion.
Williams entered a Cooksey plea. See Williams v. State, 139 P.3d 1282 (Alaska App. 2006).
The police had reasonable suspicion to stop the Mercury
To conduct an investigatory stop under Alaska law, the police must have reasonable suspicion that imminent public danger exists or that serious harm to persons or property has recently occurred. Suspicion that an individual is transporting controlled substances for commercial distribution satisfies this test.
Coleman v. State, 553 P.2d 40, 46 (Alaska 1976); Pooley v. State, 705 P.2d 1293, 1307 (Alaska App. 1985).
Pooley, 705 P.2d at 1307.
In Williams v. State, a case involving Sims's co-defendant, we upheld Judge Wood's decision denying the motion to suppress. We reaffirm our decision on that issue here. The police obtained sufficient corroboration of the informant's tip to authorize the stop of the Mercury. That information together with the officers' observations after stopping the Mercury established probable cause for the search warrant.
139 P.3d 1282 (Alaska App. 2006).
The superior court properly upheld the indictment
Sims moved to dismiss the indictment, arguing that the evidence presented to the grand jury failed to establish that Sims possessed cocaine with the intent to deliver. Judge Wood denied Sims's motion. Sims renews this argument on appeal.
Evidence presented to a grand jury is sufficient to support an indictment "when all the evidence taken together, if unexplained or uncontradicted, would warrant a conviction of the defendant."
Officer Barnett was the only witness to testify before the grand jury in this case. In his testimony, Officer Barnett described the tips he received from the anonymous informant. The informant told Barnett that three men had left Anchorage in a light green Mercury Mountaineer and were traveling up the Parks Highway towards Fairbanks. The informant told Barnett that the vehicle was rented under the name Dequan Thomas; based on the informant's tip, Barnett obtained the vehicle's license number. Officer Barnett testified that the police set up surveillance on the Parks Highway near Ester, and that when the green Mountaineer passed by, he summoned a marked car to perform a traffic stop.
Barnett testified that when the vehicle was stopped, Goss was driving, Williams was in the front passenger's seat, and Sims was in the back seat. When the police executed the search warrant, they found a black duffel bag in the back of the vehicle containing close to 400 grams of cocaine packaged in 12 individual baggies, a .380 caliber handgun, and some paperwork with Williams's name on it. According to Barnett, the cocaine had a street value of between forty and one hundred thousand dollars. Officer Barnett also testified that the officers found both a .45 caliber handgun and a .25 caliber handgun in the center console of the vehicle and .45 caliber ammunition in a black suitcase that also contained a photograph of Goss. Officer Barnett told the grand jury that Goss admitted that one of the weapons was his, and Sims admitted to touching one of the guns. (Unlike the trial jury, the grand jury did not hear evidence that Sims had gone to Anchorage the day before.) Finally, Officer Barnett stated that, based on his training and experience, it appeared that the men had the guns in the vehicle to protect the cocaine.
Sims argues that this evidence was insufficient to indict him for possession of a controlled substance with intent to deliver. He also maintains that, because there was insufficient evidence to indict him on the drug charge, the weapons misconduct charge must necessarily fail.
Sims relies on Marion v. State, a case in which this court found that the State did not present sufficient evidence to the grand jury to sustain Marion's indictment for cocaine possession. In Marion, Anchorage Police Sergeant Ed Hofkins stopped a vehicle for running a red light. Sergeant Hofkins approached the vehicle and asked the driver to identify himself and produce his driver's license. The driver gave a false name and told Hofkins he did not have his driver's licence. While waiting for backup, Sergeant Hofkins noticed an open gun box, containing cartridges, on the seat between Marion and the driver. He also observed Marion make furtive movements from his jacket to the area beneath his seat.
806 P.2d 857 (Alaska App. 1991).
Id. at 860.
Id. at 858.
Id.
Id.
Id.
Id.
Another officer arrived and searched the vehicle. He discovered a .22 caliber pistol and a syringe on the driver's side floorboard and another .22 caliber pistol and an eyeglass case containing a syringe and three packets of cocaine under the passenger's seat.
Id.
Id.
Sergeant Hofkins did not testify before the grand jury. And although the other officer gave hearsay testimony about Marion's furtive movements toward the area under his seat, the grand jury was cautioned to rely on this evidence for the limited purpose of explaining the actions taken by the officer who searched the vehicle. Thus, the only grand jury evidence connecting Marion to the items found under his seat was his proximity to the contraband.
Id.
Id.
This court found that the indictment should have been dismissed because the grand jury "heard virtually no evidence of a nexus between Marion and the articles concealed under his seat apart from the location of those articles within Marion's proximity." The court observed that:
Id. at 860.
No evidence was presented indicating the origin, ownership, or registration of the derringer. The record is equally silent as to the origin and ownership of the eyeglass case. The grand jury was not even apprised whether Marion wore eyeglasses when he was arrested. Marion was not shown to be in possession of or involved with other drugs or firearms at or near the time of this incident.
Id.
Sims argues that his case is analogous to Marion because the only evidence connecting him to the cocaine was his presence in the vehicle. Sims asserts that "[t]he state presented no evidence that Mr. Sims was aware of what was in Mr. Williams's closed duffel bag, presented no evidence that Mr. Sims admitted to knowing that drugs were in the vehicle, and presented no evidence explaining why Mr. Sims was in the vehicle or how long he had been in the vehicle."
Sims also cites Egner v. State, a case in which the Alaska Supreme Court held that there was insufficient evidence admitted at trial to convict the defendant of drug possession. Egner drove his two co-defendants to a post office where one of them picked up a package addressed to a man with whom a co-defendant shared a post office box. The police knew that the package contained marijuana embedded in a candle. When the vehicle was stopped, the package was open and both of Egner's co-defendants had marijuana on them, but Egner did not. The supreme court held that, although Egner was driving the vehicle, there was insufficient evidence to prove beyond a reasonable doubt that Egner had knowing control over marijuana because "the state's evidence did not show by whom the package had been opened, when the package had been opened, . . . [or] that Egner was in the car when the package was opened." It further concluded that "the state's evidence did not show that at any pertinent time Egner, with knowledge of the contents of the package, exercised or had the right to exercise control over the package."
495 P.2d 1272 (Alaska 1972).
Id. at 1274.
Id.
Id. at 1273-74.
Id. at 1274.
Id.
Id.
The State relies on Maryland v. Pringle. In Pringle, the United States Supreme Court held that the police had probable cause to arrest each of the passengers in a vehicle for drug possession where five baggies of cocaine were hidden between the back-seat armrest and the back of the seat, $763 was found in the glove compartment, and none of the three men admitted ownership of the drugs and money. The Court noted that "a car passenger . . . will often be engaged in a common enterprise with the driver, and have the same interest in concealing the fruits or the evidence of their wrongdoing." The Court concluded that "it was reasonable for the officer to infer a common enterprise among the three men." It further reasoned that "[t]he quantity of drugs and cash in the car indicated the likelihood of drug dealing, an enterprise to which a dealer would be unlikely to admit an innocent person with the potential to furnish evidence against him."
540 U.S. 366, 124 S. Ct. 795, 157 L. Ed. 2d 769 (2003).
Id., 540 U.S. at 373, 124 S. Ct. at 801 (quoting Wyoming v. Houghton, 526 U.S. 295, 304-05, 119 S. Ct. 1297, 1302, 143 L. Ed. 2d 408 (1999)).
Id., 540 U.S. at 373, 124 S. Ct. at 801.
Id.
According to the State, Pringle stands for the proposition that mere presence in a vehicle with a large quantity of drugs is sufficient to support an inference that the occupants are engaged in a common enterprise. The State argues that Marion is factually distinguishable from the case at bar because Marion involved a personal stash of cocaine while the instant case, like Pringle, involved a "commercial quantity" of cocaine. The State also asserts that, while Egner may appear to undermine the inference that occupants of a vehicle are engaged in a common enterprise, Egner is also distinguishable because it did not involve a commercially relevant quantity of drugs. The State notes that "it was the indicia of drug dealing that cemented the common-enterprise inference in Pringle."
We accept the logic advanced in Pringle. Here, the evidence presented to the grand jury was sufficient to support the indictment because the evidence and reasonable inferences from the evidence establish probable cause to uphold the indictment. Sufficient evidence supports the conviction for controlled substance misconduct
See Adams v. State, 598 P.2d 503, 510 n. 11 (Alaska 1979).
Sims argues that the evidence presented at trial was insufficient to convict him of the charge of misconduct involving controlled substances, and that thus the weapons misconduct charge must also fail. Sims contends that the State failed to establish that he knew that he was transporting cocaine because the cocaine was found in Williams's duffel bag. Therefore, Sims argues, he did not have the requisite mental state for misconduct involving a controlled substance in the third degree.
When we review the denial of a motion for judgment of acquittal, we must decide whether fair-minded jurors exercising reasonable judgment could conclude that the State had proven the charges beyond a reasonable doubt.
Dorman, 622 P.2d at 453.
At trial, the court sustained a defense hearsay objection to evidence of the informant's tips to the police. The jury did not hear the details of the investigation that led the police to the stakeout on the Parks Highway. However, the evidence presented at trial and the reasonable inferences from the evidence are sufficient to uphold the conviction for controlled substance misconduct. Goss was driving the Mercury on the Parks Highway back to Fairbanks following an overnight trip to Anchorage when the police stopped the vehicle. Williams and Sims accompanied Goss on this trip in the rented Mercury to Anchorage and back. The police noticed the smell of marijuana in the Mercury, and after obtaining a search warrant for the Mercury, discovered three handguns, cocaine with a value in the tens of thousands of dollars, and the marijuana. In a black suitcase in the back of the Mountaineer, the police found .45 caliber ammunition and a photograph showing Goss and an unidentified female. On the other side of the rear was a black duffel bag containing the cocaine and another handgun. There was no other luggage. Williams had $886 in cash on his person. Neither Goss nor Sims had any cash. The Hertz rental agreement was in the Mercury. During the six days the Mercury was rented, it had traveled just over two thousand miles. Finally, according to the police, most of the cocaine brought to Fairbanks comes through Anchorage.
While the State did not have direct evidence that Sims had knowledge of the cocaine in the duffel bag, the jury was entitled to rely on circumstantial evidence and reasonable inferences from all the evidence when deciding whether the State had proven the case. The very large amount of cocaine recovered by the police suggested a joint criminal enterprise. From our review of the evidence, we conclude that a juror exercising reasonable judgment could conclude that the State had proven Sims's guilt of misconduct involving a controlled substance.
The failure to instruct on the nexus between possession of a firearm and a felony drug offense constitutes plain error
Sims was charged with second-degree weapons misconduct under the theory that he possessed a firearm in furtherance of a drug felony. In Collins v. State, we held that this crime "requires proof of a nexus between a defendant's possession of the firearm and the defendant's commission of the felony drug offense." We provided further definition of the required nexus in Murray v. State:
977 P.2d 741 (Alaska App. 1999).
Id. at 753.
54 P.3d 821 (Alaska App. 2002).
[T]he State must prove that the defendant's possession of the firearm aided, advanced, or furthered the commission of the drug offense. Possession of drugs and a firearm alone is insufficient for such a finding — even if the drugs and firearm were located in close physical proximity.
Id. at 824.
To aid this analysis, we set out a non-exhaustive list of relevant factors to consider when deciding whether a nexus has been proven: (1) the type of drug activity conducted, (2) the accessibility of the firearm, (3) the type of firearm, (4) whether the firearm was stolen, (5) the status of the defendant's possession (legitimate or illegal) of the firearm, (6) whether the firearm was loaded, (7) the proximity of the firearm to drugs or drug profits, and (8) the time and circumstances under which the gun was found.
Id.
Sims's jury was not instructed that the State had to prove a nexus between second-degree misconduct involving weapons and the felony drug offense. Sims did not object that the court's instructions failed to require this element. Therefore, we must find plain error.
We conclude it was plain error not to instruct on this required element. Sims's jury was never required to find that the required nexus existed. Therefore, Sims was convicted without the jury finding a required element of this crime. As the United States Supreme Court has stated, the Fifth and Sixth Amendments to the United States Constitution require that criminal convictions "rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged, beyond a reasonable doubt." We reject the State's argument that the prosecutor's final argument sufficiently apprised the jury of the need to find a nexus. Therefore, we must reverse Sims's conviction for second-degree misconduct involving weapons.
United States v. Gaudin, 515 U.S. 506, 510, 115 S. Ct. 2310, 2313, 132 L. Ed. 2d 444 (1995) (quoting Sullivan v. Louisiana, 508 U.S. 275, 277-78, 113 S. Ct. 2078, 2080-81, 124 L. Ed. 2d 182 (1993)).
Sims's other attack on the jury instructions
Sims argues that the superior court erred in failing to instruct the jury that it was required to consider Sims's guilt independently from that of his co-defendant at trial, Goss. As Sims points out, many of the jury instructions referred to Sims and Goss collectively as "the Defendants." But the jurors were never instructed that they could find one defendant guilty while acquitting the other. Although Sims did not ask the trial court to instruct the jury to consider the evidence against him separate from that against his co-defendant, he argues that the trial court's failure to give this instruction sua sponte amounted to plain error. In particular, Sims argues that the jury instructions referring to the defendants in the plural implicate his right to a unanimous verdict.
See Castillo v. State, 821 P.2d 133, 137 (Alaska App. 1991) (holding that defendant was deprived of the right to a unanimous verdict on which criminal act he committed where the prosecution's various theories of the case described different criminal acts).
Sims and Goss adopted the same trial strategy, arguing that the State had not presented sufficient evidence to prove that they knowingly possessed the cocaine in the duffel bag. Although not identical, the evidence against Sims and Goss was substantially similar. Thus, although it may have been error for the superior court not to instruct the jury to consider the evidence against each defendant independently, Sims has failed to show plain error because he has not shown the error was so obviously prejudicial that any competent judge would have seen the need for the instruction and acted sua sponte. Conclusion
See Mooney v. State, 105 P.3d 149, 155 (Alaska App. 2003).
Sims's conviction for weapons misconduct is REVERSED. Sims's conviction for misconduct involving a controlled substance is AFFIRMED.
I agree with my colleagues that the police could properly stop the vehicle in which Sims was riding. The information known to the officers — the anonymous tip that three men were transporting cocaine from Anchorage to Fairbanks in a rented green Mercury Mountaineer, combined with the officers' subsequent independent corroboration of significant facets of this tip — established a reasonable suspicion that this vehicle was being used to transport cocaine for illicit commercial purposes.
And, if all of this information had been presented to the jury at Sims's trial, it might have been sufficient to prove Sims's complicity in this drug-dealing scheme. But the State came to Sims's trial unprepared. When the prosecutor tried to offer this information ( i.e., the information supporting the investigative stop) through the hearsay testimony of a police officer, the defense raised a hearsay objection, and the trial judge sustained the objection. Following this adverse ruling, the prosecutor failed to call any other witnesses to fill in this part of the State's case.
Thus, the only evidence that the jury heard was: (1) the police stopped a vehicle on the highway, (2) the vehicle was found to contain cocaine and marijuana, plus handguns and ammunition, and (3) Bobby Sims was a passenger in this vehicle.
One could certainly speculate, based on Sims's presence in the vehicle, that he was an accomplice in the criminal venture to sell cocaine. But this evidence was insufficient to prove Sims's complicity beyond a reasonable doubt.
The Alaska Supreme Court confronted a similar situation in Egner v. State, 495 P.2d 1272 (Alaska 1972). In Egner, the police intercepted a postal package that contained "a cannabis material". After ascertaining the contents of the package, the police resealed the package and took it to the post office — and waited for someone to pick it up. Egner's two co-defendants picked up the package. Under police surveillance, Egner and his co-defendants spent several hours driving around Ketchikan. Egner was doing the driving. When the police finally stopped the vehicle, the package was found opened on the back seat of the car, and Egner's friends were found to have marijuana on their persons, but none was found on Egner's person.
Egner, 495 P.2d at 1273.
Id. at 1273-74.
The State contended that this evidence was sufficient to prove Egner's complicity. The supreme court disagreed:
Mere presence at the scene [of illegal drug possession], alone, is insufficient to prove knowing control of the prohibited substance. Here[,] the state's evidence did not show by whom the package had been opened, when the package had been opened, or that Egner was in the car when the package was opened. Additionally, the state's evidence did not show that[,] at any pertinent time[,] Egner [had] knowledge of the contents of the package [and either] exercised or had the right to exercise control over the package. Given the gaps in the [government's] proof, we hold the evidence [presented at Egner's trial] insufficient to prove beyond a reasonable doubt Egner's knowing control of hashish or marijuana.
Egner, 495 P.2d at 1274.
The supreme court's discussion of this point has obvious relevance to Sims's case.
Even though Egner's friends picked up the package from the post office, and even though Egner then drove his friends around Ketchikan for several hours with the package in the car, and even though the package was lying open on the back seat when the police finally stopped the vehicle, the supreme court nevertheless held that this evidence was insufficient to prove two major elements of the State's case: (1) that Egner had knowledge of the contents of the package (before the police arrived and seized it), and (2) that Egner, having knowledge of the contents, either exercised or had the right to exercise control over the package.
Sims's case presents an analogous situation. The State proved that Sims and his two co-defendants spent several hours in a car, traveling from Anchorage to Fairbanks. Sims was a passenger in this car. In the car was a duffel bag containing cocaine, but the duffel belonged to Sims's co-defendant, Antonio Williams, and there was no evidence that Sims had knowledge of the contents of the duffel. Moreover, even if Sims knew what Williams had in the duffel, there was no evidence that Sims exercised (or had the right to exercise) any control over the duffel. Likewise, the center console of the car contained marijuana, but Sims was sitting in the back seat, and there is no evidence that (1) Sims knew that there was marijuana in the console, or that, even if Sims knew what was in the console, (2) Sims exercised (or had the right to exercise) control over the marijuana.
The circumstances were certainly suspicious — just as the circumstances in Egner were suspicious. But our supreme court held that the facts of Egner were not legally sufficient to support Egner's conviction for knowing possession of controlled substances. I see no convincing way to distinguish Sims's case. Accordingly, I conclude that Sims's convictions must be reversed.