In 2017, Deputy Ralph Sciple and five other officers executed a search warrant on an apartment in Philadelphia, Mississippi. The warrant was issued based on a tip from a confidential informant that there were drugs in the apartment. Upon arriving at the apartment, the officers observed a vehicle with an open door and loud music playing. The door to the apartment was open.
Sciple stated that he knocked on the door and yelled, “sheriff’s office, I’ve got a warrant.” Sciple then pushed the door open and entered the apartment. Upon entering, Sciple noticed a small child asleep on the couch. Sciple repeated himself and then saw Cephus Terry and another small child exit the bathroom.
Sciple noticed a white powdery substance on a table, along with sandwich bags, baking soda, and a set of scales. The items were in plain view. Sciple also found a bag that contained a white substance on the table. Sciple also found pills on the table and in other places throughout the apartment. Additionally, two firearms, a .22 caliber pistol and a .45 caliber high-point pistol were found in the apartment in the same room as the drugs.
Sciple testified that he read Terry his rights and that he then asked Terry how long he had been living there. Sciple testified that Terry responded, “about a year.” However, Terry testified at trial that he did not live at the apartment. Terry stated he thought Sciple was asking how long the kids had lived there. Terry stated that the only reason he was at the apartment was to pick up his kids, and he was not aware of the drugs or the firearms. Terry stipulated that he had been charged previously with a felony and that he had pled guilty.
Kiara Baxstrum, the mother of the children, testified that Terry did not live at the apartment. Baxstrum testified that she had asked Terry to pick up the children and take them to their grandfather’s house. Baxstrum testified that all of the drugs and firearms belonged to her.
Terry was convicted of possession of cocaine with intent to sell, possession of methamphetamine, possession of Tramadol, and two counts of possession of a firearm by a felon and sentenced to 46 years. On appeal, he argued he was not in constructive possession of the drugs or firearms. MSC affirmed.
We said in Haynes that possession of a controlled substance may be actual or constructive, individual or joint. Additionally, the court stated: 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.
This court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance. See Dixon.
One in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband.
Terry argues that the State failed to show additional incriminating circumstances; however, the State did introduce testimony through Sciple that Terry stated that he lived in the apartment. It is true that both Terry and Baxstrum disputed the testimony, but that merely created an issue of fact.
While it is true that simply being in nonexclusive possession of the residence is insufficient to prove constructive possession, the drugs in this case were in plain view in a common area of the residence.
In Ferrell v. State, 649 So. 2d 831 (Miss. 1995), the driver of a vehicle was charged with constructive possession of crack. On appeal, we said the State claims that the location of the matchbox next to the driver’s seat and the 15 hours which Ferrell had possession of the car amounted to additional incriminating circumstances. These contentions are incorrect. Just as in Fultz v. State, 573 So. 2d 689 (Miss. 1990), the contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car. The mere fact that the matchbox was only a matter of inches from where the defendant was sitting, rather than in the trunk, does not overcome the fact that the crack was cloaked.
Unlike the drugs in Ferrell, the drugs in this case were in plain view, and Terry was the only adult in the apartment at the time. The drugs were not cloaked in any way. Again, convictions for constructive possession have been affirmed when the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.
The jury heard evidence that Terry lived in the apartment. At the time the search warrant was executed, Terry was exerting control over the premises. Because the drugs were in plain view, Terry knew or should have known of the presence of the substance.