dissenting:
This case raises two related questions for our consideration. The first concerns perhaps a subtle modification in the way this court defines and explains the concept of possession. In turn, we are led to the question of proof, or legal sufficiency, where the components of possession are strongly contested issues.
As the majority opinion, at n. 2, indicates, this court, in a few recent decisions, has altered the manner in which we describe possession. In Brown v. United States, 546 A.2d 390, 394 (D.C.1988), we essentially applied a two-part analysis: (1) knowledge of the item, (2) and the exercise of dominion and control over it. See also Curry v. United States, 520 A.2d 255 (D.C.1987), Easley v. United States, 482 A.2d 779, 781 (D.C.1984), Tucker v. United States, 421 A.2d 32, 35 (D.C.1980).
More recently, in Speight v. United States, 599 A.2d 794, 796 (D.C.1991), and in In re T.M., 577 A.2d 1149, 1151 n. 5 (D.C.1990), we have modified our formulation. We state that the defendant must (1) have knowledge of the item, (2) intend to exercise dominion and control, and (3) have the ability to exercise dominion and control.
Whether this change in formulation represents a substantive change in the sum total of the meaning of possession is unclear. It is clear, as all of our opinions have consistently reiterated, that mere presence near an item or even knowledge of an item, by itself, cannot be construed as “possession” of the item. With this concern in mind, and comparing the two statements of the test, it seems clear that having knowledge of an item and exercising control over it, either directly or indirectly, necessarily includes the intent to exercise dominion and control. However, the ability to exercise dominion and control over an item is probably less than actually exercising dominion and control. In short, I think the newer formulation of possession redistributes the elements of the offense, now emphasizing knowledge and intent to control as primary mens rea.
These different formulations cause some problems for us as we review the legal sufficiency in close cases, as here. In this instance, the majority opinion recites the following facts:
Appellant was one of three passengers in a jeep. He was seated in the back seat of the jeep directly behind the driver. A third person,* Gerald Vines, was seated in the front passenger seat to the right of the driver. When Officer John Dunston stopped the vehicle to investigate a traffic violation, he observed a .9 millimeter handgun on the floor in front of Vines. Officer Dunston seized that gun and arrested Vines. Burnette and the driver were directed to get out of the jeep. A second weapon, a .357 magnum handgun, was recovered from under the floor mat where appellant was seated....
During its deliberations, the jury had at its disposal certain exhibits and testimony worthy of mention here. Admitted into evidence were both the instant weapon and the other handgun recovered from the floor in the front section of the jeep. That handgun was in plain view, in sight of both the driver and the front seat passenger. The live ammunition removed from the guns was admitted. Also admitted were four photographs, which accurately represented (1) the exterior of the jeep from the rear, *1086(2) the driver s seat and the front interior portion of the jeep, (3) the front passenger’s seat and floor area where the .9 millimeter handgun was found, and (4) the rear passenger’s seat, directly behind the driver’s seat, and the floor area where the .357 magnum was found. Officer Dunston, who conducted the initial search of the jeep, testified that he found the instant weapon bulging upwards from beneath the floor mat at appellant’s feet. His testimony also established that there was insufficient clearance through which to slide an object the size of a .357 magnum from the front section of the jeep under the driver’s seat to the back of the jeep.
This court has, of course, repeatedly stated that the evidence is sufficient to go to the jury if a rational juror could find guilt beyond a reasonable doubt. Conversely, if no rational juror could find guilt, then the case should not be submitted to the jury. Thus, we come to the ultimate point which divides this panel. It is not necessary that the government’s evidence compel a finding of guilt, or negate every possible inference of innocence. Wheeler v. United States, 494 A.2d 170, 174 (D.C.1985). Under either formulation of the possession analysis, but particularly under the earlier test, I suggest that if the jufy is allowed to perform its function, it is close, but it is difficult to hold that no rational juror could find guilt on these facts.
It has been intimated that what is lacking here is some specific manifestation of guilty knowledge, such as a furtive movement or an evasive action. I must observe that we have never held, nor should we, that circumstantial evidence must be particularized in that fashion. It seems inconsistent that a jury be permitted to infer constructive possession as a whole,1 but not be allowed to infer its component elements.
Respectfully, I dissent.
. See, e.g., Brown, supra, 546 A.2d at 395 (constructive possession of contraband based on evidence of joint criminal activity).