The Mississippi Bureau of Narcotics (MBN) received reliable information that a possible drug transaction was to occur in Grenada, Mississippi. The informant was a police officer in Houston, Texas, who had a suspected drug distribution center in Houston under surveillance. During the surveillance, Frank Davis was seen carrying a dark colored duffel bag in the company of two men known to the Houston Police Department as drug traffickers.
According to the informant, a blue Nissan Maxima, with Tennessee license plate number “CGT 311,” was to arrive in Grenada carrying drugs for local distribution. MBN Agent Hamilton testified that he found the blue Nissan with the same Tennessee license plate in a parking lot in Grenada. When stopped and questioned, the occupant of the car, Frank Davis, denied having been out of state. A dark colored duffle bag was visible in the back seat of the car.
A trained drug dog indicated that there were narcotics inside the vehicle. Davis refused consent to search the vehicle and left the scene, leaving the vehicle in the care of the MBN agents. The vehicle was taken to the police narcotics office in Grenada and searched, pursuant to a valid search warrant.
Three thick compressed bricks of marijuana, collectively weighing 4,528 grams, were found inside the duffel bag. Other incriminating evidence was also found inside the vehicle and duffle bag including driving directions from Grenada to Houston, Texas, a weigh scale, personal and certified mail addressed to Frank Davis, photographs of Davis and friends, a rental agreement for the blue Nissan with Davis listed as the renter, and clothing which Davis identified as belonging to him. Furthermore, Davis acknowledged that the duffle bag and the items contained inside of it belonged to him.
Frank Davis was convicted of possession of a controlled substance, more than one kilogram but less than five kilograms of marijuana, and sentenced to 20 years. On appeal, he argued that he was not in constructive possession of the drugs. MCOA affirmed.
In Curry v. State, 249 So.2d 414 (Miss.1971), MSC said that 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 Boches v. State, 506 So.2d 254 (Miss. 1987), the MSC said when the defendant is not the owner of the premises the State must show additional incriminating circumstances to justify a finding of constructive possession. The same is true when a defendant is not in exclusive control of the premises.
Davis relies heavily, although in error, on Fultz v. State, 573 So.2d 689 (Miss.1990). In Fultz, the defendant was the sole occupant of the car, but not the owner, when marijuana was discovered in the trunk. Fultz had a key to the trunk but he was not the only driver of the car on the day in question. The only additional incriminating circumstance was that the defendant had a small amount of marijuana on his person at the time of the arrest. MSC ordered that this evidence was not credible to warrant a conviction, thereby reversing the trial court.
The Fultz case is distinguishable from the case at bar. Testimony at trial linked Davis and only Davis to the marijuana. MBN Agent Hamilton specifically testified that the agents did not find anything in the vehicle or the bag that would link any other suspect to the crime. The blue Nissan found in Grenada was the same blue Nissan with the same Tennessee license plate seen in Texas.
Furthermore, the Texas police officer linked Davis to the duffle bag found in the back seat, not the trunk, of the blue Nissan. Davis admitted that the bag belonged to him. Additionally, all of the personal information found in the bag belonged to Davis, a fact he does not dispute. Although Davis was not the owner of the blue Nissan, he was listed as the renter as per the car rental agreement also found in the vehicle.
It is apparent from the record that there was abundant evidence presented during trial implicating Davis’s guilt.