Constructive possession found when friend testified they snorted cocaine together that night


In 2016, Darius Haynes and Kimmeisha Harris fought at a friend’s house. After the fight, Haynes left with Xavier Brown in Brown’s maroon Mercury Marquis, which had a broken-out back window. Meanwhile, Harris went to the hospital, where she gave Investigator Wendell Fountain a statement.

Harris told Fountain that, during the fight, she thought she had seen Haynes with a gun and that Haynes had threatened to shoot her. Harris also gave Fountain a description of the car in which Haynes had left.

After leaving the hospital, Fountain spotted a maroon Mercury Marquis with a broken-out back window at a nearby gas station. Brown was standing outside the car, pumping gas. Haynes was sitting in the passenger seat. Fountain approached the vehicle and noticed a small plastic bag containing a white substance, which was identified at trial as 0.34 grams of cocaine.

The plastic bag was in plain view, located in the ashtray between the driver and passenger seats. Fountain asked Haynes “if he knew why he was making contact with him.” According to Fountain, Haynes said, “It’s probably because of a little incident that I just had.”

Fountain then received consent from Brown to search the car, and he found a gun in the glove box. Brown testified that the gun in the glove box belonged to Haynes and was the same gun from the incident at the friend’s house.

Brown also testified that 1) he and Haynes had snorted some of the cocaine that night and 2) the cocaine found in the car belonged only to him, not Haynes.

Haynes was convicted of possession of cocaine while in possession of a firearm and possession of a weapon by a felon and sentenced to 10 years. On appeal, he argued that he was not in possession of the drugs. MSC affirmed.


In Dixon, we said that possession of a controlled substance may be actual or constructive, individual or joint. In Wolf v State, 260 So. 2d 425 (Miss. 1972), we said that two or more persons may be in possession where they have joint power of control and an inferable intent to control jointly.

In this case, the record is uncontradicted that Haynes lacked actual possession of the cocaine at the time of his arrest, so the State had the burden to prove Haynes had constructive possession of it.

In Hudson, we said for constructive possession, this court has developed the following framework:

What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible to a specific rule. However, there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Constructive possession may be shown by establishing that the drug involved was subject to the defendant’s dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Moreover, one who owns a vehicle in which contraband is found is presumed to be in constructive possession of those illicit items. See Dixon. However, we said in Ferrell v. State, 649 So. 2d 831 (Miss. 1995), that when contraband is found in a vehicle that is not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession. The State is required to establish additional incriminating circumstances in order to prove constructive possession.

Here, the evidence in the record is legally sufficient to support the conviction of possession of cocaine. The cocaine was discovered in plain view in a car in which Haynes was sitting. More so, Haynes was sitting in the passenger seat right next to the ashtray that held the cocaine.

The record also demonstrated that Haynes was aware of the cocaine as Brown admitted that he and Haynes had “snorted” cocaine from the package in the ashtray “that night” and that Fountain “saw the remainder of the” cocaine that the two had used. The fact that Brown and Haynes had “snorted” this same cocaine also shows that Haynes exerted “dominion and control” over the cocaine.

Possession—not ownership—is the issue before this court. Brown’s testimony that “the cocaine belonged to me” did not foreclose the jury from determining that Haynes also had possessed the cocaine, as Haynes exerted “dominion and control” over it.

Brown—a short while before the interaction with Officer Fountain—had broken up an altercation between Haynes and others, had seen Haynes brandish a weapon and had agreed to transport Haynes away from the scene. Brown knew Haynes. From his own testimony, he had used drugs with Haynes. The jury could have found that Brown had an incentive to claim ownership of the cocaine and shield his friend from further criminal liability in light of Haynes’s prior felony record and the fact that Haynes had a firearm in the vehicle.