Constructive possession may be proven by circumstantial evidence


In 2003, drug enforcement officers from the Madison County narcotics unit stopped a vehicle driven by Marcus Bates in Canton, Mississippi. The agents were in an unmarked car and all wore plain clothes. The vehicle was stopped after Lieutenant Randy Tucker noticed through his rearview mirror that the car Bates was driving did not have brake lights. Tucker also recognized Bates from a traffic stop a few days prior, in which Bates was found to be an unlicensed driver and in possession of marijuana.

As Agent Jay Houston approached the driver’s door, Houston observed Bates chewing something and mumbling. Houston thought Bates was trying to dispose of evidence and attempted to remove Bates from the vehicle. Bates tried to get away from Houston by hitting the gas pedal and leaning over into the passenger seat. A struggle ensued, whereby Lieutenant Tucker came over to the car and assisted in stopping the vehicle.

After Bates was arrested, the car was searched. White crumbs were found on the driver’s seat and a crack cocaine rock was found on the floorboard of the driver’s seat. A passenger, Bobby Brent, was also present in the car with Bates but no charges were brought against him.

Bates was convicted of possession of cocaine and sentenced to eight years. On appeal, he argued there was insufficient evidence in this case for him to be found guilty. MCOA affirmed.


A. Owner of car

On appeal, Bates argues that the jury instruction did not include language stating that the State must prove additional incriminating circumstances to establish constructive possession if the defendant is not the owner of the car. See MSC Hamm.

A presumption of constructive possession arises against the owner of premises upon which contraband is found. However, the presumption is rebuttable and when contraband is found on premises which are not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession. As such, the State is required to show additional incriminating circumstances to justify a finding of constructive possession.

Agent Houston testified that Bates stated that he was the owner of the vehicle even though the title had not yet been transferred. Bates did not offer any evidence to rebut this testimony. Whether or not Bates was the actual owner of the vehicle was a question for the jury to consider. Therefore, the instruction which established a presumption against the owner of the vehicle was proper.

B. Circumstantial evidence

MSC said in Neal that the State need not provide direct evidence to support a conviction so long as sufficient circumstantial evidence exists to establish guilt beyond a reasonable doubt. Circumstantial evidence need not exclude every possible doubt, but only every other reasonable hypothesis of innocence

In Curry v. State, 249 So. 2d 414 (Miss. 1971), MSC said that 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 of 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. It need not be actual 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 Martin v. State, 413 So. 2d 730 (Miss. 1982), MSC said that the elements of constructive possession may be proven by circumstantial evidence.

Testimony is undisputed that Bates was the driver of the vehicle. Agent Houston witnessed Bates furiously chewing and swallowing. After Houston asked Bates to open his mouth, Houston saw white residue consistent with the appearance of crack cocaine. As crack cocaine is chewed, Houston stated that the powder turns to a toothpaste like substance, which is consistent with what he witnessed.

Houston noted from his training and expertise in handling over 400 drug cases that a frequent hiding place for drugs is the mouth and, when caught with contraband, many criminals attempt to swallow the drugs. Houston also noted that “crumbs” were seen in plain view on the seat where Bates had been sitting. A rock of cocaine was later found directly underneath Bates’s leg on the floorboard.

Agent Houston testified that Bates admitted to being the owner of the vehicle, but that legal title had not yet passed. The defense offered no evidence to rebut this testimony. The defense also did not call any other witnesses on Bates’s behalf.

Bates asserts that the State failed to offer evidence to rule out the possibility that the passenger Brent could have been the actual possessor of the drugs. However, the officers stated that Brent was not considered to be in possession of the cocaine as a passenger because the drugs found were outside of his reach.

In addition, Bates was seen chewing and swallowing what was thought to be the contraband. When Houston told Bates to stop swallowing, Bates hit the accelerator on the car and attempted to get away from Houston by leaning over into the passenger seat. This testimony provided enough evidence for a jury to determine that Bates had constructive possession of the cocaine.