mr harden was convicted of felony possession that came about because they were too firearms found in a room that he shared with his wife and i house that he shared with his father  aerated a constructive possession theory that is the main issue in our people here today there was also a separate incident the same day that he was arrested and where he was seen outside the home by his probation officer with his hands in his pocket of his sufficient evidence of constructive possession because of the lack of exclusivity because there's no admissions there's no fingerprints there's nothing other than the fact that he shared this room with his wife in a house shared with his father to the problem that we have with the trial in that judge roll gave the standard if you will possession instruction it says it can be constructive are can be actually an argument here today is not th instruction is error in itself but under the facts in this particular circumstance where there is no legal some grounds for constructive possession that it is error then to give an alternative jury instruction  was back in back by the probation officer and was still soley if this case went to trial solely on the constructive possession i don't believe it would have survived rule twenty nine challenge and if you use that as a standard if you will then why is it proper then in a circumstance like this to get alternative theory instruction where standing alone either with either or both perhaps of those theories would not have generated the sufficient evidence necessary to sustain a correct argument is that there and you know if you disagree with this obviously you don't win the kill argument is that there's not enough information to support a constructive possession argument art instruction that being the probably should have been under these circumstances you know the first battle if you will is you guys don't get a constructive possession instruction you don't even let it go to the jury on that theory the second battle well if you're going to do it make sure that the jury understands what it is they're supposed to do especially the side on the theory now obviously there's a court decided by the government that there's no constitutional right if you dual theories can legally both apply to a case and in the government most recently cited cases the older cases united states the shatt where it's common practice in arizona where first degree murder in a single count goes to the jury both as telling murder and as premeditated murder and as problematic is that it is that seems to be ok argument here is not that the instruction is wrong that there is some constitutional bar to alternative theories but that when there is no legal ground to support one of those theories then it is error to give both theories as alternative means of criminal liability for example  well it was the circumstantial evidence case and the jury was instructed as they always are the circumstantial evidence is just as good as direct evidence and circumstantial evidence was presented and it's certainly indeed in the light most favorable to the to the prosecution as is the standard could certainly be enough for a rational jury to find the defendant guilty of the crimes that he was charged with and that's what the district court found and that was an error in this case the jurors that found actual possession would in fact also be finding constructive possession because they're the same thing they're part of the same definition of possession and constructive possession is actually subsumed by actual possession you can't actually  something and not have dominion and control over it so they're really the same thing and there needed to be no you know and i mean the instruction whatsoever in fact there's a case on point from the tenth circuit u s versus that he wasn't supposed to have some contraband he was intentionally trying to hide it he ran into his house and when he came out he didn't have it anymore so it was reasonable and rational for a jury to conclude that what he had were the guns that were found  it wasn't a period of just that and then and two year period and then and a second home visit it was home visits occurring throughout the supervision of this defendant so it wasn't as if this was a one time incident an infant and the entire house the sweatshirt and the running from the probation officer if you really over the earth it definitely does because that shows that he had something the probation officer ordered him to take his hands out of pocket and strong what he had he was worried about his own safety the senate refused to he in fact that's just hands in a sweater packet the entire time even when he was running from the probation aster refusal to take his hands out in the first place is a violation of probation so he was willing to risk violating his probation to hide whatever this was and when he came out and showed the probation officers this videotape and those items were clearly innocuous and  rational conclusion that he had something that he was trying to hide he didn't want it but they didn't find that the record contains nothing there was no contraband other than the firearms found in his bed under