this which was quote it was mr alexander and no one else that had the gun as he ran down the street the jury retired to begin its deliberations on the guilt or innocence of mr alexander on the charge of possession of a weapon by phone the jury then had a question that question was what is the definition of possession in accordance with the law and it's this question that was answered by the corps with an instruction on the definition of  there because it introduced a new theory of the offense of possession to the jury and that was a legal theory that state didn't argue defendant's counsel did not defend against or make any accountability theories of the state's theory was that the defendant was the prince of all of juries caution was raised accountability and then instruction of accountability if your defense was given and in that case the the state again the testimony of the state or the evidence was officer sylvester says there's a cargo hold over there's three people outside of the car woman two men he says mr alexander does not indicate why the letter was pulled over but it does save for they have the discussion about the vehicle says that he's part of the target offender unit which targets gang activity in certain areas of your  in his his testimony but somehow there's mr alexander is responsible for mr thomas possession of the gun is that the reason the jury asked for the definition we don't the defendant under that new theory the defendant and defense counsel have a chance to argue again i don't know specifically in this case i think at the motion for a new trial it might become a one little more clear is it assumed that the trial judge thinks well possessions possession actual constructive and so why almost why can't i instruct them on that and there's a common that you know if you don't know that there's two separate actual constructive the that's that's  from one of the cases that was what the defendant defense counsel said to during closing argument and then the others from both were then ultimately jury questions about accountability and you can almost read between the ones the prosecutor going oh my i've only done as a principal and the jury isn't thinking for the friends of principle but thinks they're accountable and now introduces that new theory of  appeal however this record is a physical record not an electronic and i was not able to obtain the record for my review so i relied on the briefs some handwritten notes and some randomly scanned pages  and so no it was not included in the original instructions however during its deliberations the jury was clearly debating ok well what is possession and they did follow with this state's theory of the case in providing the definition they did not change or expand the theory which was that the defendant was seen holding a gun when he was fleeing the vehicle however at one point the officer who was for seen him lost his line of sight on the defendant trying to ditch the gun because clearly he knows he's not supposed to have it that's the state's theory of the case now this didn't change the defendant's theory or his ability to respond because his whole theory was that he never had it so the certainly but there wouldn't necessarily you know for there is a certainly on and i think the interesting thing is that we have both in this case he was seen with the actual gun but then he's trying to get rid of it there's and of course the believability of the witnesses as up for the jury to decide as they're deliberating and so on a certain extent we don't know the answer to that what we have however are the rest of the facts of the case and  the jury wanted to know if it was still deemed possession this assuming based on your question if you're seen with it and then it's not discovered on your person anymore is it still going to be considered possession he says well your honor depends on the fact that it can be constructive possession can be established by evidence that permits the inference the defendant knew what the object was where it was located had previously obtained it or intended to obtain or treat it as some future point so the same way that a defendant was fleeing from the police in the same direction as him was found on the ground not really a normal thing to find in someone's yard twenty yards away from where someone is fled from the place and is now hiding underneath the desk and it's not going to take quantum leap for the jury to think it's not really normal  that that might indicate possession where is located not a normal place in close proximity to the defendant and while i understand that there was some debate because there were two men who fled the vehicle the other  that goes to if he knew what the object was where it was located we've got testimony and he had previously attained their intended to obtain or a tree that at some future point he got caught so we don't really know the full answer to defense counsel's argument and it could be inferred that they were saying even though they didn't say this was a constructive possession it can be inferred from them saying he tosses it in the yard next to him it's in his pocket traveled there inferring that it was a constructive possession and as the trial court stated defense counsel should have known that there's both ways to possess the gun that doesn't go into an air of the trial court that would have been on defense counsel but then defense counsel would have had to  be ok so what's my theory going to be i'm going to have to try to argue constructive possession he can't possess it at all so his only theory he could have had was that he just never had it was the only argument he could have made for his client to have been found not guilty in this case the only thing he could have done so he should have known that it was actually a constructive possession but a smart defense counsel is not really going to go into that station because he just doesn't want the jury to think about it now the trial court in this position also has its duty to the jury so that they can understand the legal principles and i believe that the direct quote for what they said was because they have the definition of position of possession in accordance with the law so that they are understood that like ok so the law is going to give me the specific definition of possession this is an element of what we're deciding right now but they haven't told us what that definition actually is is a to be able to be convicted as a principal or under the accountability theory but if the state is going forward i'm just going on the principle theory and not bringing up in the countability theory at all i'm not going to make an argument instruction and so that's the issue is that a person has constructive possession when he lacks actual possession so you can't have actual and constructive at the same time of a thing but he has all the power and the intention