Possession Crimes - 2 Types of Possession Can Convict

Actual and Constructive Possession Crimes

North Carolina Criminal Law

Under North Carolina law, certain people are not allowed to possess certain things. An example of this is a convicted felon possessing a firearm, which is a Class G Felony Crime in North Carolina. In other cases, certain substances are not allowed to be possessed by anyone without lawful authority, such as controlled substances (drugs). In my practice of law, I have found that many people do not understand that there are two types of possession, not just one, and think that they cannot be convicted because the item in question was not physically on their person or in their hand. This article explains the two types of possession recognized by North Carolina Law.

Possession of a substance or an article may be either actual or constructive. A person has actual possession of a substance or article if the person has it on the person, is aware of its presence, and either alone or together with others, has both the power and intent to control its disposition or use.

A person has constructive possession of a substance or article if the person does not have it on the person but is aware of its presence, and has, either alone or together with others, both the power and intent to control its disposition or use. A person’s awareness of the presence of the substance or article and the person’s power and intent to control its disposition or use may be shown by direct evidence or may be inferred from the circumstances.

As to constructive possession, the fact that a substance or article was found in close physical proximity to the defendant, that would be a circumstance from which, together with other circumstances, the jury may infer that the defendant was aware of the presence of the presence of the substance or article and had the power and intent to control its disposition or use. However, the defendant’s physical proximity, if any, to the substance or article does not by itself permit an inference that the defendant was aware of its presence or had the power or intent to control its disposition or use. Such an inference may be drawn only from this and other circumstances which the jury finds from the evidence beyond a reasonable doubt.

It is important to note that the doctrine of constructive possession may involve a defendant exclusively possessing a substance or article or it may involve the defendant possessing the substance or article together with other people. An example of this situation is when a controlled substance is found in an automobile containing multiple passengers and is in the console, dash, or other location where all passengers have access to the substance or article.

If you have been charged with a possession crime in North Carolina, then you need a lawyer who has extensive experience handling these cases, both before trial in plea negotiations and, if a satisfactory result cannot be reached, in a trial by jury. Attorney Garland Byers is a former police officer, former Assistant District Attorney, and has successfully investigated, prosecuted, and defended, all types of criminal cases in North Carolina Superior Court, from First Degree Murder to infractions like failing to wear a seatbelt.

One thing you need to know: you have options. There are very effective defenses to this charge. Each case is, of course, different and the facts of your case are totally unique. Regardless, there are things that can be done to maximize your chances of obtaining a favorable result. But these things must be done early on in your case in order to put your case on the best possible footing.

Whether you want to plead guilty to a lesser offense, to take the case to trial, or you aren’t sure what to do, you should retain an experienced criminal defense lawyer to advise you immediately. Please give the law office of Garland Byers a call and have a consultation about your specific case. If you are a friend or family member reading this because your loved one is in jail, you can make the call on your friend or family member’s behalf to begin the process of turning the ship around.

Any lawyer with a valid law license can represent you. The challenge is to find the right lawyer with the right skills and the right experience for your specific case. Give us a call and let’s see if we are a good fit to guide you through these dangerous legal times. The choice of a lawyer is of critical importance. Make the right one.

Call the Byers Law Firm today.

Rev. 10/11/23