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Handling a weapon the day before doesn’t constitute constructive possession


Law enforcement officials entered into an agreement with Perry Horton. Horton would buy crack cocaine from his source in exchange for the State’s dropping forgery charges. He was also given money to relocate. On June 5, 1998, Horton entered Gavin’s Quick Stop to purchase the drugs from the defendant, Charlie Gavin.

The store was owned by the defendant’s brother, L.C. Gavin. The exchange was recorded on a body transmitter and recording device worn by Horton. After the exchange, Horton began to exit the store. Gavin asked Horton to stop as he wanted to search Horton. A struggle ensued. The wires from the recording device were discovered, but before they were ripped off, Horton gave a distress signal to the law enforcement officers surrounding the store. The officers immediately arrived and found Horton on the floor with Gavin on top of him.

The store was searched after the officers secured a search warrant. Two guns were found in a file cabinet behind the counter and a machete was found under a sink. He was convicted on felon in possession of a firearm and sentenced to life. On appeal, he argued he was not in possession of the weapons. MCOA agreed with Gavin and reversed.


As there is no evidence that the defendant had actual possession of any of the weapons, the State was proceeding under the theory of constructive possession.

In Curry v. State, 249 So. 2d 414 (Miss. 1971), MSC said there must be sufficient facts to warrant a finding that the 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 item involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not enough in the absence of other incriminating circumstances.

In Hamburg v. State, 248 So. 2d 430 (Miss. 1971), MSC said that the owner of the premises where the contraband is found is rebuttably presumed to be in possession of the contraband. Charlie Gavin was not the owner. Thus, in cases where the defendant is not the owner of the premises or in exclusive possession, then the State must prove some competent evidence connecting him with the contraband.

In Ferrell v. State, 649 So. 2d 831 (1995), Ferrell was not the owner of the car in which the drugs were found, though he had been using the vehicle for fifteen hours. The drugs were in a matchbox quite close to the driver, but the box was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car.

Ferrell’s control over the car needed to be joined by additional incriminating circumstances in order to prove constructive possession. Among the possible circumstances were drug paraphernalia in the car, the accused’s having drugs in his system, or his fingerprints being found on the matchbox. None of that applied.

A. First gun found in filing cabinet

This weapon was found in a filing cabinet. The only evidence that Gavin had knowledge of that weapon was from a witness, who testified that on a previous occasion he had seen Gavin remove the weapon from the filing cabinet. That testimony proved actual possession on the previous day of Stinton’s observation, which indicates Gavin’s knowledge of the weapon.

An inference was likely permissible that he would be willing to handle it on other occasions. However, the State must gain an inference from this evidence not only of the presence and character of the particular weapon, but that Gavin was intentionally and consciously in possession of it on the day charged.

MSC in Berry v. State, 652 So. 2d 745 (Miss. 1995), found that a defendant’s presence in a vehicle in which contraband drugs are located, even when he handled the drugs briefly as someone else gave them to him to hide in the glove compartment, did not support an inference of dominion and control. We find the same defect here.

There was evidence that Gavin handled the gun at an earlier time. We can infer that he continued to know of its existence. But there is no other connection by Gavin with this weapon. Being in a closed area such as a vehicle or a room with contraband does not by itself permit the inference of dominion and control. If the accused is the owner of the premises, or if he is the exclusive user for some extended period of time, or if there are additional incriminating circumstances, then the inferences might be permissible. None of that is present here.

B. Second gun and machete

As for these weapons, there is no evidence that Gavin even had knowledge of their existence. The only evidence concerning the weapons is that they were found in the store on the day Gavin was arrested. Gavin’s mother testified that the machete belonged to her. She had used it as some sort of farming tool. No additional testimony was offered as to the second .38 caliber handgun. No one testified that Gavin had ever handled, mentioned, or otherwise dealt with those weapons.

Here, the State presents a theory something like the following. Gavin operates a drug business out of this store. In order to protect himself he has weapons placed in various locations. The theory may be correct, but there was not any additional incriminating evidence beyond his presence in the room to support constructive possession of two of the weapons. On the final one, the fact that he had once handled it does not permit an inference of dominion and control on the day covered by the indictment.