concurring specially.
I concur in the result reached by the majority opinion. I write separately to note that the City’s reliance on State v. Morris, 331 N.W.2d 48 (N.D.1983), as controlling the result in this case is misplaced.
We have stated that “[pjossession may be actual or constructive, exclusive or joint ... and may be shown entirely by circumstantial evidence.” Morris at 53. We also have held that to prove constructive possession, evidence must be presented which establishes that “the accused had the power and capability to exercise dominion and control over the contraband.” Id. The evidence required to show an individual’s power and capability to exercise control must establish his right or his ability to control “in a realistic and practical sense” the area where the contraband is found. Id. at 54. Finally, constructive possession or the ability to exercise dominion and control over a controlled substance can be inferred from the totality of circumstances associated with a particular case. Id.
The inferences of possession, i.e., the ability to exercise control, to be drawn from the facts in Morris, which involved two people in a van with marijuana resting on the console between the driver and passenger’s seats, is considerably different than the inferences which can be drawn from the facts in this case in which eight to ten people were present at a party at the time Wilkie returned to the apartment. Under these circumstances, there simply is not enough evidence to show Wilkie’s power and capability to exercise control “in a realistic and practical sense,” the area, ie., the apartment. It follows there can be no inference from his mere presence in the apartment that Wilkie had constructive possession of the alcohol.