In 2015, Officer Corey Henderson of University of Southern Mississippi P.D. was on patrol when he observed a vehicle he had dealt with on several prior occasions. When he was approximately 15 feet from the car, he could smell the very strong odor of burnt marijuana in the air. He stopped the car which had four people, including Kasey Kelly, who sat in the back behind the driver.
Kelly was removed from the car and Henderson had to keep telling Kelly to put his hands back on the hood of the police car. As Henderson was searching the vehicle, Kelly fled and was eventually caught by Henderson behind a house. He ordered Kelly to come to him and noticed a magazine and something resembling a wallet but he did not recover the items at that time. After securing Kelly in the police car, Henderson went back to the arrest site and retrieved the magazine and wallet.
Hattiesburg P.D. had responded to the chase and officer Jacob Byrd retraced Kelly’s probable path and found a handgun approximately 50 feet from where Kelly was arrested. Byrd examined the Ruger P89 handgun and removed the magazine. The magazine recovered from Kelly’s arrest site fit into this gun. No officer testified that they saw Kelly with a gun when he was fleeing. Kelly was convicted of being a felon in possession and sentenced to eight years. On appeal, he argued constructive possession did not apply here. MSC affirmed.
An item is within one’s constructive possession when it is subject to his dominion or control. Constructive possession may be established by direct evidence or circumstantial evidence. This court has stated that proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
Kelly argues that he did not have exclusive dominion or control of the premises and that there was no evidence presented that connected him to the gun. In Dixon, we said that one who is the owner in possession of the premises, or the vehicle in which contraband is kept or transported, is presumed to be in constructive possession of the articles found in or on the property possessed.
In Kerns, we said that 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. Therefore, when contraband is found on premises, there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband, and, absent this evidence, a finding of constructive possession cannot be sustained.
This court finds that the State did not rely on Kelly’s physical proximity alone. First, the State provided testimony from the residents of the premises in question, and all denied ownership of the recovered weapon.
Second, the State provided evidence that established that Kelly had the opportunity and motive to dispose of the weapon. Henderson’s testimony shows that Kelly was near the area and had the opportunity to throw the gun over the fence and into the yard. The State also presented evidence that Kelly had a motive for tossing the weapon over the fence because he was fleeing from police officers.
Third, the State presented to the jury the fact that an additional handgun magazine was found next to Kelly at the time of his arrest and that the additional handgun magazine fit the recovered pistol.