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Being in the room with drugs not enough for constructive possession in this case


In 1996, six police officers, pursuant to a search warrant, entered the Jackson home owned by Darrin Fox’s mother, where they arrested six individuals and recovered slightly more than eight ounces of marijuana. Those arrested included: Felton Martin, Jr. (the defendant); Darrin Fox (Martin’s co- defendant); DeMarcus Kelly; Gregory Fox (Darrin’s brother); Marland Buckley; and Shannon Hunter.

The police discovered the marijuana in the kitchen, and according to one officer’s testimony, Martin was standing over two Tupperware containers filled with marijuana and “looked like he was pulling his hands out of them or didn’t know what to do with them”. He subsequently described Martin as standing “with his hands like he was going to grab something but he didn’t really know what to do.”

On cross-examination this officer, when asked if Martin had a bowl in his hand, stated “I didn’t say it was in his hand. I said he was standing over it.” No other testimony from any of the officers indicated Martin had any contact with the marijuana.

The same officer testified that Darrin Fox was standing over the bowls and “had a pair of scissors that was over the containers” and that one container was filled with small plastic bags of marijuana, of the type used for distribution and referred to as “dime bags”.

Testifying in his own defense, Martin denied that he had been handling the marijuana and claimed that he had only entered the home a few minutes before the police arrived. Although Martin admitted that he knew the others “they was [sic] over there messing with marijuana,” he denied that he was in any way involved, saying he was just trying to put the beer in the refrigerator so he could get on back outdoors.

Martin also called Marland Buckley, Shannon Hunter and Gregory Fox in his defense, and each of these witnesses testified that the marijuana belonged to DeMarcus Kelly (who was not subpoenaed to testify) and that Martin and Darrin Fox had only arrived minutes before the raid commenced.

Martin was convicted of possession of marijuana with intent to distribute and sentenced to 20 years. On appeal, he argued he was not in constructive possession of the marijuana. MSC agreed with Martin and reversed.


In Hamm, we said there must be sufficient facts to warrant a finding that defendant was aware of the presence of the particular substance and was intentionally and consciously in possession of it. It need not be actual or physical possession. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

In Jones, we applied this rule to reverse a marijuana conviction where the defendant was a passenger in a car where the drugs were found, and where there was no other evidence connecting him to the drugs.

Likewise, in Naylor, we reversed a conviction for possession of cocaine where the defendant was found in a bathroom along with another suspect who was trying to flush the cocaine down the toilet to prevent its seizure by police.

In affirming the conviction of Martin’s co-defendant Darrin Fox, we held that the State had provided sufficient evidence to allow a reasonable jury to conclude that Fox was in constructive possession of the marijuana, stating: The fact that Fox had a pair of scissors in his hand while standing near containers with freshly cut marijuana in a house owned by his mother and with no one else in the house shown to have had a substantial connection to it or control of it, shows Fox had constructive possession.

Unlike Fox, Martin was not holding any scissors or anything else which directly tied him to the marijuana, and the house was owned by Fox’s mother, rather than anyone with a connection to Martin. Furthermore, none of the prosecution testimony indicates that Martin exercised actual or constructive dominion over the marijuana.

Detective Richard Nations stated, “He looked like he was trying to – – Felton Martin looked like he was trying to grab the bowl, but when I entered the room he didn’t – – like I said, he looked confused and like he didn’t know what to do.”

Detective Wallace Jones stated “They were in the closest proximity to the marijuana that was recovered by myself.” He then said he did not see Martin holding marijuana.

Detective Preston Carter, the only other prosecution witness who had been present at the scene, conceded that he did not see Martin until after he had been secured.

The State suggests in its brief that “drug paraphernalia” such as ziplock bags and a pager found at the scene are further proof of Martin’s guilt. While the State is correct that such paraphernalia might be probative as circumstantial evidence of intent to distribute, we do not find it probative as to the issue of constructive possession.

Martin’s mere presence in the kitchen area where the marijuana was found, without more, is simply not enough. Thus, even if all inferences drawn from the evidence are viewed in the light most favorable to the verdict, there is still no evidence to support a finding that Martin was in constructive possession of the marijuana, or that he had any intent to distribute, and Martin’s conviction therefore must be reversed and rendered.