In 2009, the Gulfport Police Department received an anonymous tip that Justin Overall was making methamphetamine at the Ramada Inn in Gulfport, Mississippi. Police obtained a photo of Overall for identification purposes and proceeded to the hotel. However, the hotel clerk told police that no one under that name was registered at the hotel.
The police continued to observe the hotel and became suspicious when they saw a man, who was later identified as James White, quickly cross the parking lot and enter Room 102. They also spotted Overall, who exited and quickly re-entered the room. The plain clothed officers decided to question the men.
As the police approached the hotel room, they encountered Overall and White exiting the room, leaving the door partially open. The police identified themselves and detained the men. The officers observed a hollowed out ink pen, which is commonly used to smoke methamphetamine, behind Overall’s ear.
Looking through the open door, the officers noticed another man, who was later identified as Nicholas Fontenot, in the hotel room. He had his back to the officers and was leaning over a small table with various items on it. One of the items was a plastic bag that contained a white, powdery substance, which was later determined to be .2 grams of methamphetamine.
Police asked Fontenot to come out of the room, and he complied. Fontenot fumbled with something in his hands, and he dropped several pills and a small, empty vial on the ground. The pills were Xanax, a drug used to treat anxiety disorders.
After obtaining a search warrant, the police found no precursors for the production of methamphetamine. They did find Fontenot’s wallet next to the plastic bag containing the methamphetamine. Fontenot was convicted of possession of a controlled substance and sentenced to eight years. On appeal, he argued he was not in constructive possession of the methamphetamine. MCOA affirmed.
In Glidden, the MSC said to support a conviction for possession of a controlled substance, there must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it.
Because Fontenot did not have actual possession of the methamphetamine, he was convicted under the theory of constructive possession. Fontenot claims there was insufficient evidence that he was in constructive possession of methamphetamine.
In Berry v. State, 652 So. 2d 745 (Miss. 1995), the MSC said that possession, no matter how fleeting, is sufficient to sustain a conviction. Possession is defined, however, in terms of the exercise of dominion and control.
In Knight, the MSC said that a defendant’s proximity to the drugs is not a determinative factor in establishing constructive possession.
We said in Cheatham that when illegal substances are found on premises not owned by the defendant, the State must show other incriminating circumstances, in addition to proximity, in order to prove constructive possession.
Fontenot admitted that he was aware of the “presence and character” of the methamphetamine. The question is whether Fontenot had demonstrated “dominion or control” over the contraband.
Fontenot cites Mauldin to support his argument that his momentary handling of contraband did not constitute dominion and control. Mauldin, however, is distinguishable from the present case. Derward Mauldin picked up a cigarette case owned by someone else, and then returned it to the original owner’s possession. Immediately afterwards, security personnel searched the case, and found a small amount of methamphetamine inside.
Mauldin was convicted of constructive possession of a controlled substance. This court reversed and rendered the judgment, finding that Mauldin had no control over the case; it had been handed back to its owner.
In this case, Fontenot was standing over a night stand that bore several items, including the plastic bag containing the methamphetamine, which was lying right next to his wallet. He was the only one in the room; Overall and White had already left of their own accord. Fontenot also admitted to police he had picked up the bag and looked at it, and he was aware the substance was methamphetamine or cocaine.
At the post arrest police interview, Overall said that Fontenot had been smoking methamphetamine with White. Overall also stated that he left the room that morning to get more clothes, and when he returned, there were pieces of foil on the floor, which is used for smoking methamphetamine.
However, Overall later contradicted this statement, testifying at trial that the bag of methamphetamine was his. Overall claimed that he bought the Xanax from someone at a local Walmart, and then traded Xanax for some methamphetamine. Overall also said that, on the evening prior to the arrests, he had picked up a woman at a local bar, taken her to the hotel room, and proceeded to smoke methamphetamine with her. He admitted that Fontenot was present in the room that evening but claimed that Fontenot did not take drugs.
It was never established who had rented the hotel room. However, there were clothes and shoes scattered around the room, and many of the items belonged to Fontenot. Fontenot also possessed Xanax and a vial that had contained the pills he had dropped. A cap matching the container (vial) that he had in his possession was on the table next to his wallet and the bag of methamphetamine.
It is the province of the jury to decide the weight and credibility to be assigned to the testimony of each witness.
As we said in Bates, the elements of constructive possession may be proven by circumstantial evidence.