Facts
On October 21, 2020, Jessica Walker and her then-boyfriend, Richard Buckley, were on their way home when they approached a safety check-point roadblock administered by the Newton County Sheriff’s Office. While Buckley was initially driving Walker’s vehicle, the two switched seats as they approached the roadblock because Buckley did not have a driver’s license. Deputy Donna Chapman approached Walker’s vehicle, took her driver’s license, and then asked Walker to exit the vehicle when she smelled unburned marijuana.
Deputy Chapman asked Walker if there was anything of concern in the vehicle, and Walker responded that she had a handgun under the driver’s seat. Deputy Chapman secured the weapon as well as a brown paper balled up in the driver’s seat, which she believed to be a small amount of marijuana. Deputy Chapman proceeded to search the vehicle and found a clear bag containing a white, crystallized substance between the driver’s seat and center console.
Walker was arrested, and Buckley, who had also exited the vehicle and was being supervised by another officer, Deputy Fred Hardy, was released. Buckley retreated from the scene on foot, leaving Walker’s car to be towed. Buckley was not investigated or charged with a crime. While Deputy Chapman suspected that the substance wrapped in brown paper was marijuana, it was never tested. The substance found between the driver’s seat and center console, however, was tested and was identified as 0.245 grams of methamphetamine.
Walker was indicted on one count of possession of methamphetamine with a firearm enhancement pursuant to Mississippi Code Sections 41-29-139(c)(1)(B) and -152 (Rev. 2018), respectively. While she readily admitted to possessing the firearm, as well as her occasional recreational use of marijuana, Walker vehemently maintained that the methamphetamine was Buckley’s and that she was unaware that he had stowed it in her vehicle. Indeed, Walker testified that she had never taken methamphetamine or dealt with it in any way.
Walker sought to elicit on cross-examination evidence of Buckley’s prior arrests and convictions for drug-related offenses from Investigator Benjamin Kelly, who evidently had some knowledge of Buckley through his work as the narcotics investigator with the Newton County Sheriff’s Department. The circuit judge did not allow that line of questioning, concluding that such evidence was irrelevant and inadmissible. Walker’s defense counsel proffered the following line of questioning (to Investigator Kelly):
Q. Was there anybody else in the car?
A. Yes, sir.
Q. Who was the other person in the car?
A. Richard Buckley.
Q. Richard Buckley, and you know that because of the report that Ms. Donna — Deputy Chapman did?
A. Yes, sir.
Q. Did you interview him?
A. No, sir.
Q. Did you search him in any way or interrogate him or follow him or in some how or another involve him in this crime on October 21st?
A. No, sir.
Q. So you didn’t do anything related to Mr. Buckley?
A. No, sir.
Q. Do you know who he is?
A. I do.
Q. Well, if you know who he is and you know he was in the car, why didn’t you investigate him?
A. No arrest was made on him that night.
Q. But you would agree you’re the narcotics officer and this is a person in the car with narcotics?
A. Yes, sir.
Q. And so you could not find him?
A. I didn’t look for him.
Q. Do you know him?
A. I do.
Q. Do you know where he lives at?
A. I’ve known where he stayed at points but as far as like can I go directly to where he’s staying now or anything, no, sir.
Q. And you have the resources, knowing him through the department — through the sheriff’s department, you could use those to find him; correct?
A. I could.
The circuit judge allowed the questions proffered. Walker testified at trial that Buckley was driving when he approached the checkpoint. Since he did not have a driver’s license, they switched places before being stopped at the checkpoint.
The jury returned a guilty verdict, and Walker was sentenced to six years’ imprisonment. On appeal, Walker argued she was not in constructive possession of the methamphetamine. MSC reversed.
Analysis
Possession can be actual or constructive. Constructive possession exists where the contraband was not found in the defendant’s actual physical possession but was subject to the defendant’s dominion or control. See MSC Curry v. State, 249 So. 2d 414 (Miss. 1971).
When the substance is not found on the defendant’s person, the State has to prove constructive possession—i.e., that the defendant was aware of the drug and intentionally in possession of it. Proximity is certainly an element, but by itself is not adequate in the absence of other incriminating circumstances. Indeed, other incriminating circumstances must be present to establish constructive possession. See Knight.
Because Walker was not alone in the vehicle and thus was not in exclusive control and possession of the methamphetamine, additional incriminating facts must connect her with the contraband. The Court finds there was insufficient evidence to support Walker’s conviction. While the State proved Walker’s ownership of the vehicle and her proximity to the substance found between the driver’s seat and the center console, the State failed to present any other competent evidence connecting her to the methamphetamine.
Similarly, in Smoots, law enforcement seized crack cocaine from Smoots’ pool hall after an informant reported that he purchased crack cocaine at the pool hall using marked bills, and Smoots was indicted and convicted for possession of cocaine, even though there were two other men present when the substance was seized. Specifically, when law enforcement arrived, Smoots and two other men were seated around a table when the officers heard a toilet running and, suspecting that one of the men had flushed drugs, the officers found the cocaine in the sewer cleanout outside. MCOA reversed Smoots’ conviction, holding that the evidence was insufficient for a rational juror to find beyond a reasonable doubt that Smoots—as opposed to either of the two men present in the pool hall—possessed and flushed the cocaine.
Like in Smoots, there is no evidence that Walker, as opposed to Buckley, possessed the methamphetamine. The fact that Walker owned the vehicle and was in close proximity to the methamphetamine only raises the inference that she possessed it. Thus, like in Smoots, without more, the jury could only guess that Walker possessed the methamphetamine rather than Buckley. As the Court has held, proof that Walker might have possessed the methamphetamine by virtue of her merely being in and owning the vehicle is insufficient to support her conviction; the State was required to show more than just ownership of the premises and proximity to the substance.
In MSC Ferrell v. State, 649 So. 2d 831 (Miss. 1995), the State charged a driver of a car with possession of crack cocaine. The State contended there that the proximity of the crack to the driver along with the duration of the driver’s control over the vehicle incriminated the driver, but the Court disagreed. Citing MSC Fultz v. State, 573 So. 2d 689 (Miss. 1990), the Ferrell Court wrote as follows:
Just as in Fultz, 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 contraband 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. Furthermore, Ferrell’s possession of the car for a mere 15 hours does not qualify as an incriminating circumstance.
We hereby reverse and render Jessica Walker’s conviction for insufficient evidence.