Ex parte Demetrius Issac Carey PETITION FOR WRIT OF CERTIORARI TO THE COURT OF CRIMINAL APPEALS (In re: Demetrius Issac Carey v. State of Alabama) ( Mobile Circuit Court: CC-18-6270 Criminal Appeals: CR-2022-0718).

Rel: December 8, 2023

Notice: This opinion is subject to formal revision before publication in the advance sheets of Southern
Reporter. Readers are requested to notify the Reporter of Decisions, Alabama Appellate Courts,
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SUPREME COURT OF ALABAMA
OCTOBER TERM, 2023-2024
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Ex parte Demetrius Issac Carey

PETITION FOR WRIT OF CERTIORARI
TO THE COURT OF CRIMINAL APPEALS

(In re: Demetrius Issac Carey

v.

State of Alabama)

(Mobile Circuit Court, CC-18-6270;
Court of Criminal Appeals, CR-2022-0718)

PARKER, Chief Justice.

Demetrius Issac Carey was convicted of possessing a firearm in

violation of § 13A-11-72(a), Ala. Code 1975, and was sentenced as a
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habitual offender to 50 years in a state penitentiary. The Court of

Criminal Appeals affirmed his conviction in an unpublished

memorandum, Carey v. State (No. CR-2022-0718, Dec. 9, 2022), ____ So.

3d ____ (Ala. Crim. App. 2022) (table). Carey sought certiorari review,

which this Court granted. We affirm the judgment of the Court of

Criminal Appeals.

Facts

In 2017, Officer Mark McCormick of the Mobile Police Department

responded to a report of a domestic-violence incident involving a firearm

at a single-story apartment complex. Officer McCormick called out for

anyone in the apartment to come out. A woman named Lakeisha Sims

immediately came out with her hands in the air, followed a few minutes

later by Carey, who was naked. Carey asked Officer McCormick to

retrieve a pair of jeans, which he specifically identified as "brown on the

front." Officer McCormick found the jeans where Carey had directed him,

and he searched them for weapons before returning them to Carey. In the

left hip pocket of the jeans, Officer McCormick found a single blue pill

and a magazine for a Springfield Armory XD 9mm handgun, containing

13 rounds of ammunition. Officer McCormick found a Springfield Armory

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XD 9mm handgun under a few items of clothing in a basket containing

dirty laundry. The handgun was the model for which the magazine

located in Carey's jeans pocket was designed, and it contained a similar

magazine.

Detective Jeremy Burch of the Mobile Police Department

interviewed Carey later at police headquarters. Carey admitted to

ownership of the jeans and the blue pill found in the pocket, but he denied

ownership or knowledge of the magazine found in the same pocket or of

the handgun found in the laundry basket.

A grand jury indicted Carey for unlawful possession of a firearm in

violation of §13A-11-72(a), which provides, in relevant part:

"No person who has been convicted in this state or elsewhere
of committing or attempting to commit a crime of violence,
misdemeanor offense of domestic violence, violent offense as
listed in Section 12-25-32(15), [Ala. Code 1975,] anyone who
is subject to a valid protection order for domestic abuse, or
anyone of unsound mind shall own a firearm or have one in
his or her possession or under his or her control."

Testimony at trial showed that the registered occupant of the apartment

was not Carey, but Darinicia Sims. The evidence also showed that the

apartment was not Carey's residence; that there was no indication of how

long he had been there that day; and that the handgun was not found on

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his person. Carey moved for a judgment of acquittal on the basis that

insufficient evidence had been presented to establish that he owned,

controlled, or had knowledge about the handgun found in the laundry

basket. The circuit court denied the motion and submitted the case to the

jury, which returned a guilty verdict on the same day as the trial. The

circuit court sentenced Carey as a habitual offender to 50 years’

imprisonment.

Carey appealed to the Court of Criminal Appeals. That court, in an

unpublished memorandum, held that "there was sufficient

circumstantial evidence from which the jury could infer that Carey

constructively possessed the firearm found in the laundry basket," and it

affirmed Carey's conviction and sentence. Carey timely filed an

application for rehearing, which the Court of Criminal Appeals

overruled. Carey petitioned this Court for a writ of certiorari, arguing

that the precedents addressing constructive possession are conflicting.

We granted the petition and issued the writ.

Standard of Review

Carey filed a motion for a judgment of acquittal, asserting that the

evidence was not sufficient to support a conviction, which the circuit

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court denied. In reviewing whether the evidence is sufficient to support

a conviction,

" '[T]his court must view that evidence in the light most
favorable to the prosecution. The [inquiry] is whether the jury
might reasonably find that the evidence excluded every
reasonable hypothesis except that of guilt; not whether such
evidence actually excludes every reasonable hypothesis but
guilt, but whether a jury might reasonably so conclude.' "

Dolvin v. State, 391 So. 2d 133, 137 (Ala. 1980) (quoting Cumbo v. State,

368 So. 2d 871, 874 (Ala. Crim. App. 1978)).

Analysis

Carey argues that the prosecution presented no evidence at trial to

show that he "owned or controlled" the dwelling where the handgun was

found. He relies on Williams v. State, 340 So. 2d 1144, 1145 (Ala. Crim.

App. 1976), Crane v. State, 401 So. 2d 148, 149 (Ala. Crim. App. 1981),

and their progeny. The Court of Criminal Appeals did not address this

issue in its unpublished memorandum. The State counters that the

magazine in Carey's jeans pocket clearly linked him with the handgun

and that "jurors need not leave their common sense at the door" when

making findings of this sort.

Because Carey had not been in actual control of the handgun, the

State had to prove that he had constructively possessed it by showing the

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following: (1) actual or potential physical control; (2) intention to exercise

dominion; (3) external manifestations of intent and control (Radke v.

State, 52 Ala. App. 397, 398, 293 So. 2d 312, 313 (Crim. 1973), aff’d, 292

Ala. 290, 293 So. 2d 314 (1974)); and (4) knowledge of the presence of the

prohibited item (Ex parte Tiller, 796 So. 2d 310, 312 (Ala. 2001)). 1 These

requirements have long been treated as the "elements" of constructive

possession. See, e.g., Ex parte Fitkin, 781 So. 2d 182, 183 (Ala. 2000);

Bright v. State, 673 So. 2d 851, 852 (Ala. Crim. App. 1995); Radke, 52

Ala. App. at 398, 293 So. 2d at 313. Carey essentially asks this Court to

adopt a fifth element of constructive possession -- ownership or control of

the premises where the prohibited item was located. We decline to do so.

Carey relies upon a rule adopted by the Court of Criminal Appeals

and this Court in certain cases in which there was no direct evidentiary

link between the prohibited item and the person charged with

constructive possession. In Williams v. State, 340 So. 2d 1144, 1145 (Ala.

Crim. App. 1976), "the State had only shown that the [defendant] was

1Although the first three of these elements have sometimes been

referred to as "attributes," see, e.g., Radke, 52 Ala. App. at 398, 293 So.
2d at 313, we clarify here that these are, in fact, the elements of
constructive possession in Alabama law.

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present in the apartment of some other person, dressed in rumpled

clothing, sans shoes and jacket," and "[w]hether [the defendant] knew

that prohibited drugs were in the apartment … [was] left to mere

conjecture and speculation." The Williams court held that because the

defendant did not own or control the apartment, the State had failed to

prove constructive possession. Id.

In Crane v. State, 401 So. 2d 148 (Ala. Crim. App. 1981), the Court

of Criminal Appeals reversed the conviction of a defendant who had been

standing in the downstairs foyer of an apartment when police arrived. He

was charged with constructive possession of marijuana discovered by

police in an upstairs bedroom of the apartment. "No evidence whatsoever

was presented to the jury which would indicate that the [defendant] had

any knowledge of or connection with the marijuana found by the police."

Id. at 149. The Court in Crane held that, because the defendant did not

own or control the apartment, and because there was no evidence

connecting him with the marijuana, the State had failed to prove

constructive possession. Id. at 150-51.

In Ex parte J.C., 882 So. 2d 274 (Ala. 2003), this Court reversed the

judgment of the Court of Criminal Appeals affirming the conviction of a

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juvenile defendant for trafficking in marijuana found in his father's

bedroom. The juvenile was not even in the house when the search began.

At trial, the State presented no evidence indicating that the juvenile had

ever entered his father's bedroom or that he had any intent to exercise

dominion over the marijuana found therein. Some drug paraphernalia

was found in the juvenile's bedroom. However, this Court held that that

evidence, by itself, did not show that the juvenile had possessed the

particular marijuana found in the father's bedroom, especially when

considering that no drugs had been found in the juvenile's bedroom. The

Court in J.C. held that, in the absence of a direct evidentiary link between

the juvenile and the marijuana, the State had failed to prove constructive

possession. Id. at 278. 2

A review of those cases reveals that the courts likely employed this

requirement for one purpose: to keep third parties from being charged

2Carey does not rely directly on this part of J.C. in his petition or

his brief, but the J.C. Court's adoption of the rule from Williams and
Crane regarding ownership or control of the premises means that this
Court must treat this rule as binding precedent. J.C. is also useful as a
contrast to the instant case, because it helps illustrate the difference
between the presence and absence of a direct evidentiary link between
the prohibited item and a defendant charged with constructive
possession.

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with constructive possession of items located in someone else's dwelling

in the absence of any evidentiary connection between the third parties

and the items. In each of these cases, the defendant was charged with

constructive possession of narcotics located inside a dwelling the

defendant did not own. See, e.g., Williams, 340 So. 2d at 1145; Crane, 401

So. 2d at 150. Tellingly, in none of those cases was any evidence

presented at trial linking the defendant directly with the narcotics. And

even in J.C., in which it was shown that the juvenile defendant did live

in his father's house, the State introduced no evidence at trial to connect

the juvenile directly with the narcotics found in the house. J.C., 882 So.

2d at 278. Viewed in this light, the rule on which Carey relies was likely

adopted to prevent criminal liability based on constructive possession

from attaching to any third party unlucky enough to be in a dwelling

where a prohibited item or contraband has been found. However, under

that reasoning, criminal liability based on constructive possession could

attach to the owner of the dwelling.

Carey is correct that those cases indicate that, in certain

circumstances when no other evidence of constructive possession is

present, "[w]here contraband is seized inside a residence, 'constructive

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possession can only arise "where the prohibited material is found on the

premises owned or controlled by the [defendant]." ' " J.C., 882 So. 2d at

277 (quoting Crane, 401 So. 2d at 149, quoting in turn Williams, 340 So.

2d at 1145). However, this Court would be construing the reasoning and

holdings in those cases too broadly by making the ownership or control of

the dwelling where a prohibited item or contraband is found a categorical

element of constructive possession. When contraband is seized inside a

dwelling and there is no direct evidentiary link between the contraband

and a defendant, then the rule of J.C., Crane, and Williams holds. When

there is such a link, however, as there is in this case, whether the

defendant had the ownership or control of the dwelling is not a

requirement for finding constructive possession. Under those

circumstances, ownership or control of the dwelling is a sufficient, but

not necessary, basis for finding constructive possession. Temple v. State,

366 So. 2d 740, 743 (Ala. Crim. App 1978) ("While nonexclusive

possession may raise the suspicion that all occupants had knowledge of

the contraband found, a mere suspicion is not enough. ... What is required

is some evidence that connects the defendant with the contraband that is

found." (emphasis added)); Radke, 52 Ala. App. at 398, 293 So. 2d at 313

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(" 'Constructive possession may arise where [contraband] is found on

premises owned or controlled by the accused, provided the State further

shows facts enabling a jury to conclude beyond a reasonable doubt that

the accused knew of the presence of the [contraband].' " (quoting Davis v.

State, 40 Ala. App. 609, 611, 119 So. 2d 236, 238 (Crim. 1960).

Holding that only the owner or controller of the dwelling can ever

be held criminally liable based on constructive possession of a prohibited

item in his dwelling takes the analysis too far. By such logic, no one can

ever constructively possess any item, no matter how direct the

evidentiary connection between the person and the item, in any dwelling

that is not his own. This strict application can only lead to absurd

results.3

Indeed, this Court has hinted at an alternate test for cases in which

3If Carey's argument is correct, then a drug dealer could not be

convicted of possessing drugs located inside another person's dwelling, so
long as the drugs were not on his person at the time the drugs were found
by law enforcement and his actual possession of the drugs could not
otherwise be established. Even if a large sum of cash was found in the
drug dealer's pocket, the trial court would be prohibited from
determining that the jury could reasonably infer that the money was the
price of the drugs and that, therefore the drug dealer had constructively
possessed the drugs. It would be absurd to interpret the rule of J.C.,
Crane, and Williams as Carey suggests so as to prevent a finding of
constructive possession under these circumstances.

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the defendant does not exclusively own or control the dwelling where a

prohibited item or contraband is found. This Court has held that " '[w]hile

non-exclusive possession may raise a suspicion that all the occupants had

knowledge of the contraband found, a mere suspicion is not enough. Some

evidence that connects a defendant with the contraband is required.' "

J.C., 882 So. 2d at 277-78 (quoting Grubbs v. State, 462 So. 2d 995, 997

(Ala. Crim. App. 1984) (emphasis added)). This Court has also stated that

" 'evidence that debris of the contraband was found on defendant's person

or with his personal effects' " is sufficient to prove the defendant's

constructive possession of the contraband, even when the defendant was

merely an occupant of the dwelling. Id. at 278 (quoting Grubbs, 462 So.

2d at 997-98). This precedent would seem to dictate that, when

circumstantial evidence establishes a direct inferential link between the

defendant and the item he is charged with constructively possessing,

whether the defendant owns or controls the dwelling is less material. See

also 79 Am. Jur. 2d Weapons and Firearms § 10 (2013) ("Constructive

possession of a weapon can be inferred from incriminating statements or

circumstances linking the defendant to the weapon."); Emile F. Short,

Conviction of Possession of Illicit Drugs Found in Premises of which

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Defendant Was in Nonexclusive Possession, 56 A.L.R. 3d 948 § 4

("[W]here the defendant is in nonexclusive possession of premises on

which illicit drugs are found, it cannot be inferred that he knew of the

presence of such drugs and had control of them, unless there are other

incriminating statements or circumstances tending to buttress such an

inference.").

In this case, a magazine designed for a particular handgun and

containing ammunition for that handgun was found in a pocket of a pair

of jeans Carey admittedly owned. The same pocket also contained a blue

pill he identified as his own. A handgun of the exact make and model for

which the magazine was designed was found nearby in a laundry basket,

with a matching magazine. When viewed in favor of the prosecution, this

evidence tends to connect Carey directly to the handgun found in the

apartment. The question before this Court " 'is not whether [the] evidence

excludes every reasonable hypothesis but guilt, but whether a jury might

reasonably so conclude.' " Dolvin, 391 So. 2d at 137 (quoting Cumbo, 368

So. 2d at 874). The evidence presented by the prosecution was sufficient

to warrant submitting the case to the jury, and the circuit court

reasonably concluded that the evidence was sufficient to support direct

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inferences by the jury that Carey (1) had potential physical control of the

handgun, (2) had the intent to exercise dominion over the handgun, (3)

exhibited external manifestations of intent and control over the handgun,

and (4) had knowledge of the presence of the handgun.4

IV. Conclusion

The rule of Williams, Crane, and their progeny remains good law.

This decision does not overturn those precedents. It merely recognizes

that they are subject to a simple, commonsense limitation, and are not to

be too strictly applied when the evidence establishes a direct inference

connecting the defendant with the prohibited item he is charged with

4Williams and Crane apply to "contraband." Because guns are not

prohibited items per se, the only way the handgun at issue in this case
could be "contraband" is if Carey possessed it even though he is a person
legally prohibited from possessing guns. But if the handgun belonged to
Carey, a strict application of Williams and Crane would dictate that the
jury could not find that Carey possessed the handgun because the
handgun was not inside Carey's own residence. If the handgun was not
Carey's, the handgun was not "contraband," and Williams and Crane do
not apply. In that case, the jury could find that Carey constructively
possessed the handgun -- at which point the handgun becomes
"contraband" again. This kind of circular reasoning is a problem for the
strict application of Williams and Crane outside of the context of
possession of controlled substances. Neither party has asked this Court
to overturn Williams, Crane, or J.C., but this Court may need to clarify
them in an appropriate case.

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constructively possessing.

For the foregoing reasons, we affirm the judgment of the Court of

Criminal Appeals.

AFFIRMED.

Wise, Bryan, Mendheim, Stewart, and Cook, JJ., concur.

Shaw, J., concurs in the result.

Mitchell, J., concurs in the result, with opinion, which Sellers, J.,

joins.

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MITCHELL, Justice (concurring in the result).

I agree that the Court of Criminal Appeals' judgment upholding

Demetrius Issac Carey's conviction and sentence should be affirmed.

The State presented substantial evidence connecting Carey to the

firearm hidden in the apartment; thus, the jury could have therefore

reasonably concluded that Carey was in constructive possession of the

firearm and in violation of § 13A-11-72(a), Ala. Code 1975. 5

As the majority opinion explains, a defendant can be found to be in

constructive possession of contraband only when there is substantial

evidence connecting him to the contraband. See, e.g., Temple v. State,

366 So. 2d 740, 743 (Ala. Crim. App. 1978) (emphasizing that "[w]hat is

required is some evidence that connects the defendant with the

contraband that is found"). There is no requirement that the contraband

be found on premises that the defendant owns or controls,

notwithstanding some imprecise language that can be found in previous

5Section 13A-11-72(a) provides that "[n]o person who has been
convicted in this state or elsewhere of committing or attempting to
commit a crime of violence … shall own a firearm or have one in his or
her possession or under his or her control." Carey has previous
convictions for robbery and assault.

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caselaw. See, e.g., Crane v. State, 401 So.2d 148, 149 (Ala. Crim. App.

1981); Williams v. State, 340 So. 2d 1144, 1145 (Ala. Crim. App. 1976).

But just as a finding that a defendant owns or controls premises is

not required to make a finding of constructive possession, neither is a

finding of ownership or control over the premises on which contraband is

found sufficient by itself to support a finding of constructive possession.

See Radke v. State, 52 Ala. App. 397, 398, 293 So. 2d 312, 313 (Crim.

1973), aff'd, 292 Ala. 290, 293 So. 2d 314 (1974) (" 'Constructive

possession may arise where [contraband] is found on premises owned or

controlled by the accused, provided the State further shows facts

enabling a jury to conclude beyond a reasonable doubt that the accused

knew of the presence of the [contraband].' " (emphasis added; citation

omitted)). In other words, there must still be substantial evidence

connecting the defendant to the found contraband even when there is

evidence showing the defendant's ownership or control over the premises

on which the contraband is found. I'm concerned that the majority

opinion's statement that "ownership or control of the dwelling is a

sufficient, but not necessary, basis for finding constructive possession,"

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___ So. 3d at ___, could be misunderstood as suggesting otherwise. I

therefore concur in the result. 6

Sellers, J., concurs.

6Additionally, I express no opinion as to footnotes 3 and 4, which I

do not believe are essential to the opinion's holding.

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