[00:00:00] Speaker 02:
We have six cases, but only four oral arguments this morning.

[00:00:03] Speaker 02:
We'll start with United States versus Thompson, 24-4006.

[00:00:06] Speaker 02:
Ms.

[00:00:07] Speaker 02:
Stengel.

[00:00:16] Speaker 03:
May it please the Court, Jessica Stengel on behalf of Brandon Thompson.

[00:00:21] Speaker 03:
The jury trial is a hallmark of the American criminal jurisprudence system.

[00:00:25] Speaker 03:
We don't expect jurors to be legal scholars.

[00:00:28] Speaker 03:
As such, we give them jury instructions.

[00:00:30] Speaker 03:
As this court said in United States versus Conn, quote, the purpose of jury instructions is to give jurors the correct principles of law applicable to the facts, end quote, so they can interact with the evidence in a legally meaningful manner and to give us confidence in the integrity of the verdict.

[00:00:49] Speaker 03:
No such instruction was given in this case.

[00:00:52] Speaker 03:
This case is unprecedented.

[00:00:55] Speaker 03:
And the standard circuit, the standard instruction, the circuit pattern instruction on possession was wholly insufficient.

[00:01:02] Speaker 03:
Both parties recognized this below and argued for instructions that more carefully defined, more carefully narrowed what actual possession, what direct... Well, Counsel, it seems to me, and correct me if I'm not understanding your argument, that you acknowledged in the jury instruction conference that

[00:01:23] Speaker 04:
the law was not quite as you would have preferred it to be with respect to actual possession and the concept of exclusivity, but that we're arguing today that it should be incorporated there is what counsel said.

[00:01:36] Speaker 04:
And so how is that?

[00:01:39] Speaker 04:
I certainly don't read that as a concession of any kind, but it does seem to me to be an acknowledgement that our law is different from what your argument

[00:01:48] Speaker 04:
suggests that it is, and that the district court correctly instructed the jury.

[00:01:51] Speaker 04:
Why is that not a correct understanding of this particular record?

[00:01:55] Speaker 03:
So I hear two separate questions in there, and first let me address the easier one, which is the district court's instruction was entirely incorrect.

[00:02:04] Speaker 03:
Based on this circuit's pattern instruction, it says constructive possession, although not actual possession, is, and goes on.

[00:02:13] Speaker 03:
is when someone has knowingly has the power and intention at a given time to exercise diminutive control over a thing.

[00:02:19] Speaker 03:
The district court incorrectly told the jury that constructive possession is indirect control, and that's just wrong.

[00:02:26] Speaker 03:
So that's the easier one, that instruction was incorrect.

[00:02:29] Speaker 03:
I think rather than say that this court's definition of actual possession, direct physical custody, is incorrect, I would say no, it is correct, but it's not sufficiently refined and it doesn't

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give the correct principles of law to fit the facts of this case.

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And this case is unique.

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This is basically highly appropriate.

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This is a held ball.

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And if you're not a basketball fan, I will briefly explain what a held ball is, because this is what makes the most sense to me.

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You've got two players from opposing teams.

[00:03:03] Speaker 03:
Each player manages to get their hands on the ball.

[00:03:06] Speaker 03:
So you've got four hands on the ball.

[00:03:08] Speaker 03:
At that moment in time,

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Both players are simultaneously trying to get possession and trying to prevent the other person from getting possession.

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And both players know that neither team has possession of the ball.

[00:03:23] Speaker 02:
That's what happened in this case.

[00:03:27] Speaker 02:
Do they think of it as both teams have possession of the ball?

[00:03:30] Speaker 03:
No, neither teams have possession.

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And the only way possession is decided is either by a possession error.

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The ref gets involved.

[00:03:36] Speaker 03:
So we get a possession error or it's a jump ball.

[00:03:39] Speaker 03:
But in that instance, when everyone's grappling for the ball, nobody has possession.

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And that's what this case was.

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We needed an instruction that said, when you've got multiple people vying for control, there is no control.

[00:03:55] Speaker 03:
And the only way jury

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You can find that any one person, be it the defendant or somebody else, has control of that, of this instrument.

[00:04:09] Speaker 01:
Counsel, excuse me.

[00:04:11] Speaker 01:
Didn't you or Ty stipulate that he knew he had his hands on the firearm and he intended to possess the firearm?

[00:04:20] Speaker 01:
And we have a picture here and it's a government exhibit too.

[00:04:27] Speaker 01:
It shows both of his hands wrapped around that gun and pulling at it with all his might.

[00:04:35] Speaker 01:
Now, why isn't that momentary position?

[00:04:39] Speaker 03:
Because he does not have exclusive, he does not have dominion and control over that weapon to the exclusion or others.

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And in this moment, we can look to define direct actual custody as a person knowingly have, excuse me,

[00:04:55] Speaker 03:
knowingly having the ability to use the object in the manner intended and purpose intended to the exclusion of all others.

[00:05:04] Speaker 04:
But that is not what our law requires direct physical control.

[00:05:08] Speaker 04:
It doesn't contemplate.

[00:05:11] Speaker 04:
Maybe it should.

[00:05:12] Speaker 04:
But is your key case Johnson?

[00:05:17] Speaker 03:
I think that's one of the critical cases.

[00:05:20] Speaker 03:
But I think there are other sources of law.

[00:05:23] Speaker 03:
Well, I guess I'm not suggesting that

[00:05:26] Speaker 04:
I'm not suggesting Johnson's the only case, but it's a case in our circuit that defines what actual possession means.

[00:05:38] Speaker 04:
And actual possession of an item means direct physical control over it.

[00:05:43] Speaker 04:
It doesn't incorporate this concept of exclusivity that you are grafting on.

[00:05:52] Speaker 03:
I respectfully disagree with your interpretation of Johnson.

[00:05:54] Speaker 03:
I think what is critical in Johnson is that he wasn't just touching the gun, which is what the government's best evidence shows.

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He has his hands on the gun in the holster, which is still attached to an officer.

[00:06:06] Speaker 03:
That's not direct physical custody.

[00:06:09] Speaker 03:
What Johnson does show is that by sitting on an object, you have direct physical custody to the exclusion of others.

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And this is consistent with how this court defines constructive possession.

[00:06:22] Speaker 04:
So are you relying on that language in Johnson that says exerting force on it and arguably preventing any other person from gaining control?

[00:06:30] Speaker 04:
I read that as sort of, in this case, a description of the facts, but you're suggesting that our law has recognized the concept of exclusivity here.

[00:06:43] Speaker 03:
I do, and I think Johnson, if I'm remembering the case correctly, and I apologize if I am not, I think Johnson is

[00:06:49] Speaker 03:
for them because they also talk about the guns in the trunk.

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And it's a nice comparison and contrast where he absolutely had constructive possession of those guns and other people could have shared in that constructive possession.

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But in the moment where he is sitting on the gun, nobody else is going to be able to get control of that gun and use it in the manner intended and for the purpose intended.

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And I think, which again, is consistent with how this court defines dominion.

[00:07:16] Speaker 03:
excuse me, constructive possession.

[00:07:17] Speaker 03:
It includes, as the Supreme Court does in Henderson, this idea of dominion.

[00:07:22] Speaker 04:
Constructive possession, but not actual possession.

[00:07:25] Speaker 03:
The way the Supreme Court and this Court has defined actual possession is it is not constructive possession.

[00:07:32] Speaker 03:
It would be a logical disconnect to have constructive possession, including dominion, but not for actual possession.

[00:07:38] Speaker 03:
Part of that direct physical custody and control is

[00:07:42] Speaker 03:
this element of dominion.

[00:07:44] Speaker 03:
It's a more carefully tailored, it's a more specifically tight, it's a tighter type of control, custody than this amorphous idea of control.

[00:07:54] Speaker 02:
And in this case, the way... Do you think that there was sufficient evidence for the jury to find that the defendant pulled the trigger and shot the gun?

[00:08:07] Speaker 02:
There was, wasn't there?

[00:08:10] Speaker 03:
If we are talking about a sufficiency of the argument,

[00:08:12] Speaker 03:
Sufficient to the evidence argument where we have to view the light and view the evidence in the light most favorable.

[00:08:18] Speaker 02:
Well, that's how we do it.

[00:08:18] Speaker 02:
We review this issue in the light.

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We view the evidence in the light most favorable to the prosecution.

[00:08:24] Speaker 02:
For sufficiency.

[00:08:26] Speaker 02:
Yes.

[00:08:29] Speaker 02:
I disagree.

[00:08:30] Speaker 02:
You don't think the jury could reasonably... I think it is a reasonable inference, however,

[00:08:35] Speaker 03:
Pulling the trigger to equal possession would be missing a fundamental piece of what direct fiscal control means.

[00:08:42] Speaker 02:
Let's get to that point first.

[00:08:45] Speaker 02:
You're not disputing that the jury could find that he pulled the trigger.

[00:08:48] Speaker 03:
It is a reasonable inference based on the evidence.

[00:08:52] Speaker 02:
Okay.

[00:08:52] Speaker 02:
In other words, the answer is yes.

[00:08:55] Speaker 02:
Now, don't you think it's strange to say that someone shot the gun and didn't possess it?

[00:09:02] Speaker 02:
Maybe he didn't have

[00:09:04] Speaker 02:
Maybe somebody else's grip was on another part of the gun, but he... You talked about the utility to... I can't remember your definition exactly, but it seemed to fit perfectly.

[00:09:17] Speaker 02:
In terms of the gun, the important thing is who's got control of the trigger, isn't it?

[00:09:22] Speaker 03:
No, Your Honor.

[00:09:22] Speaker 02:
Oh, it's not.

[00:09:23] Speaker 03:
It is a small... It is a portion of it.

[00:09:25] Speaker 03:
It's not the entire picture.

[00:09:26] Speaker 03:
And I think we can find... Under whose law?

[00:09:29] Speaker 03:
It would seem to me that... Well, let's go with what the prosecution argued below.

[00:09:33] Speaker 03:
What we need to have, the missing piece is the ability to aim the gun, and that was never there.

[00:09:39] Speaker 03:
Looking at the government's opening statement, they said that a witness, quote, on the ground with both hands pushing on that gun, trying to keep it in the holster because he will tell you if it's in the holster, the defendant can't aim it.

[00:09:52] Speaker 03:
They recognize aim is important.

[00:09:54] Speaker 03:
Again, in closing argument, the prosecution says, this particular witness, tell us all

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He was trying to do in that moment was make sure that the barrel of the firearm was not pointed at another human being.

[00:10:08] Speaker 03:
So we have somebody preventing the gun from being aimed, which prevents direct physical control.

[00:10:15] Speaker 02:
I should know this, but what happened to the bullet?

[00:10:17] Speaker 02:
Where did the bullet go?

[00:10:19] Speaker 02:
It didn't hit the officer's leg?

[00:10:20] Speaker 02:
No, no, no.

[00:10:21] Speaker 03:
There was a... Based on the testimony from the officers, there were a lot of misfunctions

[00:10:29] Speaker 03:
with the gun.

[00:10:30] Speaker 03:
It fired through the holster, right?

[00:10:32] Speaker 03:
Mm-hmm.

[00:10:32] Speaker 03:
But it didn't hit anybody.

[00:10:33] Speaker 03:
It didn't hit anybody, and it never left the holster.

[00:10:36] Speaker 03:
That gun remained completely holstered, which was intentional.

[00:10:39] Speaker 02:
I'm talking about the bullet.

[00:10:40] Speaker 03:
The bullet.

[00:10:42] Speaker 02:
We're not asking... The bullet didn't hit anybody.

[00:10:44] Speaker 03:
No, it did not.

[00:10:45] Speaker 03:
Okay, that's... In large part, that's because Mr. Thompson could not aim the gun.

[00:10:51] Speaker 03:
He did not have direct physical control and custody.

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to aim the gun.

[00:10:55] Speaker 04:
I think I'm misunderstanding your argument.

[00:10:57] Speaker 04:
I thought that there was no question that he had direct physical control, but your argument was that because it wasn't exclusive, it didn't satisfy the standard for actual possession.

[00:11:07] Speaker 03:
No, Your Honor.

[00:11:08] Speaker 03:
At no point did he have direct physical control.

[00:11:11] Speaker 03:
This is the jump ball.

[00:11:12] Speaker 03:
There were multiple hands, multiple

[00:11:14] Speaker 03:
everyone trying to get control, meaning nobody had control.

[00:11:17] Speaker 04:
So your argument doesn't depend on finding or agreeing with you that exclusivity is a part of our definition of actual possession?

[00:11:25] Speaker 04:
It's all... Seemed to me that was your whole argument.

[00:11:30] Speaker 03:
For the sufficiency argument, I can agree with that.

[00:11:32] Speaker 03:
But for the instructional error, exclusivity was just one of the missing pieces.

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And there's no way that we can say that the guilty verdict, quote, was surely unattributable.

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to the errors in this case.

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And those are just the affirmative errors.

[00:11:48] Speaker 03:
The district court.

[00:11:52] Speaker 03:
Yes, Your Honor.

[00:11:53] Speaker 03:
And I believe it's page 363 of volume one.

[00:12:05] Speaker 03:
There is one sentence that

[00:12:13] Speaker 03:
does track the pattern instruction in the Supreme Court with the Supreme Court Senate Henderson from Instruction 22.

[00:12:18] Speaker 03:
Unless there are further questions, I'm going to reserve the remainder of my time for rebuttal.

[00:12:29] Speaker 02:
Anything, Judge Kelly?

[00:12:32] Speaker 01:
No response.

[00:12:42] Speaker 00:
May it please the court, Tyler Murray on behalf of the United States.

[00:12:49] Speaker 00:
My friend is arguing for the astonishing position that a person can put two hands on a firearm, pull it partially out of a holster, far enough to get their finger on the trigger, overcome the safety mechanism on the trigger, and fire around which, by sheer luck, didn't hit the officer in the leg or another person and still not possess a firearm.

[00:13:14] Speaker 00:
The actions that Mr. Thompson took on that day showed direct physical control and the jury could reasonably conclude that he had such physical control and so this court should affirm.

[00:13:28] Speaker 04:
Can you talk about how our law in the government's view defeats the appellants argument in the sense that

[00:13:39] Speaker 04:
It seems to me that the appellant is advancing a concept of exclusivity as part of our actual possession law.

[00:13:46] Speaker 04:
But the government's argument is you can have joint actual possession, which also doesn't really seem to make sense.

[00:13:52] Speaker 04:
So help me with that.

[00:13:55] Speaker 00:
We do.

[00:13:56] Speaker 00:
Our position is that people can have joint actual possession.

[00:14:01] Speaker 00:
The synchonon of actual possession is direct physical control.

[00:14:09] Speaker 00:
And exclusivity has never been a part of that.

[00:14:12] Speaker 00:
I think in the Johnson case, you can see that exclusivity, the one person being able to control it might inform the actual possession concept.

[00:14:22] Speaker 00:
But the law has never been that a person can't have joint physical control.

[00:14:27] Speaker 00:
If a firearm is big enough, two people can carry it.

[00:14:30] Speaker 00:
If there's a load of narcotics that is big enough, two people can carry it.

[00:14:34] Speaker 00:
Here with a firearm,

[00:14:36] Speaker 00:
Two people can have direct physical control over that firearm.

[00:14:40] Speaker 00:
The situation we have here, the holster is essentially equivalent of just another person's hands on the gun.

[00:14:47] Speaker 00:
And we would not be arguing that the defendant didn't have direct physical control if the gun was out of the holster and the officers had their hands on the barrel and were preventing him from aiming it.

[00:14:59] Speaker 00:
We wouldn't say, I don't think.

[00:15:01] Speaker 00:
that that defendant didn't have direct physical control of that firearm.

[00:15:06] Speaker 00:
The Supreme Court in Henderson talked about the notion that 922G proscribes possession, but it covers possession in all of its forms.

[00:15:16] Speaker 00:
And in the case law, we've cited to the court, particularly first the Coleman case.

[00:15:22] Speaker 04:
Coleman doesn't seem to help you.

[00:15:23] Speaker 04:
It's about 924C in use.

[00:15:25] Speaker 04:
I wasn't persuaded that Coleman applies here.

[00:15:28] Speaker 00:
Why am I wrong?

[00:15:30] Speaker 00:
Coleman stands for the proposition.

[00:15:33] Speaker 00:
We're arguing for the proposition that 924C required use.

[00:15:38] Speaker 00:
And use in a firearms contract necessarily requires possession.

[00:15:43] Speaker 00:
Barella points that out.

[00:15:44] Speaker 00:
We cite that case for Barella in addition to that case to show that when someone possesses a firearm and then fires it, that's use.

[00:15:52] Speaker 00:
And the Supreme Court in Bailey talked that use is greater than possession.

[00:15:58] Speaker 00:
And so that's there.

[00:16:00] Speaker 00:
We've also cited a number of other cases that where the juries were instructed that both joint and actual, or both actual and constructive possession can be joined.

[00:16:13] Speaker 00:
And that's never been questioned.

[00:16:15] Speaker 00:
Conversely, my friend has not cited any cases where a jury was instructed that in order to find actual possession, that possession needed to be entirely exclusive.

[00:16:27] Speaker 00:
And so I think those factors altogether point to the result that actual possession need not be exclusive.

[00:16:38] Speaker 02:
That's interesting.

[00:16:39] Speaker 02:
You say use always encompasses possession.

[00:16:42] Speaker 02:
Here, use almost seems simpler than possession because you use the gun by shooting it, right?

[00:16:48] Speaker 02:
Correct.

[00:16:49] Speaker 02:
And you think that settles the matter then?

[00:16:52] Speaker 00:
It really does.

[00:16:53] Speaker 00:
Whatever the margin cases are, what possession means,

[00:16:57] Speaker 00:
We're right in the heartland of what possessing and using a gun is in this case because he was able to get his hands on the gun, get his hands on the trigger, overcome the safety mechanism, and then fire the gun.

[00:17:11] Speaker 02:
Do you have specific language from a Supreme Court opinion saying use always encompasses possession?

[00:17:18] Speaker 02:
If there's use, there must be possession.

[00:17:20] Speaker 00:
The case we're relying on that for is Bailey, Your Honor.

[00:17:23] Speaker 00:
And the notion in that case was that they were looking at whether mere possession of a firearm at the time would constitute use of a firearm in the 924C context.

[00:17:36] Speaker 00:
And at that time, 924C did not mention possession.

[00:17:39] Speaker 00:
And so the court said use in 924C requires active employment of the firearm.

[00:17:45] Speaker 00:
And the notion that they were dealing with with respect to firearms was that

[00:17:50] Speaker 00:
use of a firearm is a greater standard or a higher standard than just possession, than just mere possession.

[00:17:56] Speaker 04:
I thought use was synonymous with access.

[00:17:59] Speaker 04:
It's not?

[00:18:02] Speaker 04:
Which would be different from what you're saying.

[00:18:04] Speaker 04:
Maybe I'm misunderstanding.

[00:18:05] Speaker 00:
I think there was, I think the

[00:18:09] Speaker 00:
The issue in Bailey was that there were some courts that said maybe access to a firearm might have been sufficient under 924C, but the court said that active employment was required.

[00:18:19] Speaker 00:
And so use is required.

[00:18:21] Speaker 00:
And in the Borrella case, we cite that for the position that shows that the sentencing enhancement for using a firearm was present, was applicable when the defendant shot the firearm.

[00:18:35] Speaker 00:
Our position is just logically, with respect to a firearm, in order to use it, you have to have some measure of direct physical control, which constitutes actual possession.

[00:18:49] Speaker 04:
And your position would be that exclusivity is an example of how that's satisfied, but it's not necessary.

[00:18:56] Speaker 00:
Correct.

[00:18:57] Speaker 00:
Correct.

[00:18:58] Speaker 00:
It can inform the decision, but it's not something that's necessary in every case.

[00:19:04] Speaker 00:
You can have direct physical control.

[00:19:06] Speaker 00:
I think the basketball analogy is that both people can have direct physical control over that ball, and that's why we have a referee intervene.

[00:19:16] Speaker 00:
But here with respect to a firearm, in the 922G context, when we've got a man who's running from the police

[00:19:24] Speaker 00:
and who puts both his hands on the firearm and pulls with all his might to get it out of the holster and is able to do so enough to fire the gun, that's possession of a firearm.

[00:19:35] Speaker 04:
The appellant suggests that Instruction 22 didn't either sufficiently track the pattern or our pattern instruction on this is somehow deficient.

[00:19:46] Speaker 04:
What's the government's position on that?

[00:19:48] Speaker 00:
Our position is that the Datistic Court accurately described the law from both the 10th Circuit and the Supreme Court in its

[00:19:54] Speaker 00:
during instruction.

[00:19:55] Speaker 00:
It defined actual possession as direct physical control for a period of time.

[00:20:02] Speaker 00:
And then it described

[00:20:04] Speaker 00:
constructive possession in terms of a person, not an actual possession, but who has both the intent and power to direct that item in the future has construction, constructive possession.

[00:20:20] Speaker 00:
And I think both of those were accurately describing the jury instructions and the jury, there was no abuse of discretion in, in, in giving those instructions and they accurately described the law and guided the jury.

[00:20:37] Speaker 00:
In addition, Your Honor, with respect to the defendant's requested instructions, the district court did not abuse its discretion in refusing to instruct the jury that attempted possession is not a crime or that mere touching is not possession because for two reasons.

[00:21:00] Speaker 00:
First, that the instructions the district court did give were sufficient to cover the field.

[00:21:07] Speaker 00:
And then secondly, they were just a little bit, those proposed instructions were just a little bit too on the nose, so to speak.

[00:21:15] Speaker 00:
They directly tracked sort of what the defendant was arguing, both in opening and closing.

[00:21:20] Speaker 04:
Do you understand what the defendant was asking for was a theory of defense instruction?

[00:21:26] Speaker 00:
I think they do, and I think the law is that they can have a theory of defense instruction if it's supported by the facts of the case, but there's not an abuse of discretion in refusing to give those if the instructions that the court gives are already covered that.

[00:21:44] Speaker 04:
I'm just trying to discern what you think the appropriate, the applicable law or the point of departure is for assessing their argument.

[00:21:49] Speaker 04:
So the government agrees this was a theory of defense instruction, it's just there was no abuse of discretion here.

[00:21:54] Speaker 00:
That's correct.

[00:21:56] Speaker 00:
That's correct.

[00:22:04] Speaker 00:
In short, Your Honor, this was direct physical control, firing a firearm.

[00:22:10] Speaker 00:
The jury had sufficient evidence to determine that firing this firearm, or excuse me, that by firing the firearm, Mr. Thompson had direct physical control of the firearm, and therefore he possessed it.

[00:22:23] Speaker 00:
And unless the court has additional questions,

[00:22:26] Speaker 00:
I'll submit and ask the court to affirm.

[00:22:30] Speaker 00:
Thank you, counsel.

[00:22:35] Speaker 02:
You have two and a half minutes about.

[00:22:42] Speaker 03:
Just a few points that my learned counsel brought up.

[00:22:47] Speaker 03:
Touching does not equal possession.

[00:22:49] Speaker 03:
And that's exactly what the government was arguing.

[00:22:51] Speaker 03:
We cannot say, given the instructions in this case, to any degree of reasonable certainty,

[00:22:56] Speaker 03:
that the jury did not equate touching with direct physical control.

[00:23:02] Speaker 03:
Our briefing adequately addressed the government's misuse of 924C in this case.

[00:23:08] Speaker 03:
Congress fixed it to make it very clear that a 924C use and possession are not synonymous.

[00:23:15] Speaker 04:
So your position would be that Coleman shouldn't guide the inquiry here?

[00:23:19] Speaker 03:
Coleman is irrelevant, Your Honor, in this particular case.

[00:23:23] Speaker 03:
With regards to

[00:23:25] Speaker 03:
The defendant's requested instruction, the government's briefing failed to address any merits of the argument and it's properly waived.

[00:23:33] Speaker 03:
Moreover, in that argument, the government had the burden to show that the failure to instruct on the defendant's theory of the case was harmless beyond a reasonable doubt and they so failed to do that.

[00:23:42] Speaker 03:
This was not a requested instruction where it was in 11 or 9 paragraph recitation of the facts in the light most favorable to the defendant.

[00:23:51] Speaker 03:
It was a simple statement that attempt is not the same as possession.

[00:23:56] Speaker 03:
Finally, the government calls out Mr. Thompson for not having any cases where possession and exclusivity are linked.

[00:24:06] Speaker 03:
Let's look at United States v. Johnson, 37 F.

[00:24:09] Speaker 03:
3rd, 1352 out of the Ninth Circuit.

[00:24:13] Speaker 03:
Possession is defined as to have in one's actual and physical control to have the exclusive detention and control of.

[00:24:21] Speaker 03:
This was further cited by the Third Circuit in United States v. Whedon,

[00:24:25] Speaker 03:
145F3, 158.

[00:24:26] Speaker 03:
The Virgin Islands, given that they're sorted in the Third Circuit, adopted the same instruction.

[00:24:35] Speaker 03:
We included one from Kansas in our briefing, but let's go also further into the Midwest and look in Missouri.

[00:24:40] Speaker 03:
In State versus Norris, 460 Southwest Second, 672, possession in its legal sense means having the actual control, care, and management of something

[00:24:54] Speaker 03:
to the exclusion of others and not a mere passive control fleeting or shadowy in its nature.

[00:25:00] Speaker 03:
There were multiple instructional errors in this case and we cannot have confidence in the verdict as such.

[00:25:08] Speaker 03:
And with that I submit the case for decision.

[00:25:10] Speaker 02:
Thank you.