Non owner of vehicle had additional incriminating circumstances for constructive possession


In 1998, several officers at the Laurel Police Department had been asked to investigate reports of drug activities in a certain area of Laurel, Mississippi. During the time that the officers were present at the Laurel Housing Authority Projects in accordance with their investigation, Andrew Ducksworth was seated in the driver’s seat of a parked Buick Regal located in the parking lot.

The officers, noting suspicious activity, watched the car occupied by Ducksworth for some time. They observed that pedestrians in the area would walk over to the car, remain a few moments, and then leave. One of the officers testified that, at one point, a woman got into the passenger side of the car occupied by Ducksworth. A man, who had accompanied her to the car, stood outside of the car next to the passenger side door. At this time, the officers observed the driver crank the car as if to leave, but stopped the car a few moments later and backed into the parking space once again.

The officers, growing more suspicious of what type of activity was taking place, approached the car, and Officer Eric Varnado asked the driver for his name. The driver replied that he was “Otis Williams.” One of the other officers on the scene recognized the driver to be Ducksworth and informed Varnado that the driver was in fact Ducksworth rather than Otis Williams.

Varnado then asked Ducksworth for his driver’s license, but Ducksworth produced no license. Varnado subsequently placed Ducksworth under arrest and began a routine search of the vehicle. During the search, Varnado found a white bottle that was balanced carefully on the emergency brake of the car. He seized the bottle, opened it and discovered seven white rocks which were later confirmed to be crack cocaine.

Ducksworth was convicted of possession of cocaine and sentenced to three years. On appeal, he argued he was not in possession of the cocaine. MCOA affirmed.


The case of Curry v. State, 249 So. 2d 414 (Miss. 1971), provides the applicable law on possession:

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 Powell v. State, 355 So. 2d 1378 (Miss. 1978), MSC said that there is a presumption that contraband found on the premises of which the defendant has possession subjects the defendant to constructive possession. However, this presumption is a rebuttable one.

Also, where the contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband.

Ducksworth cites two MSC cases in his argument that he was not the owner of the car and thus could not be found in constructive possession of the drugs.

In Ferrell v. State, 649 So. 2d 831 (Miss. 1995), MSC reversed the defendant’s conviction on possession of cocaine where the cocaine was found in a car the defendant was driving, but did not own. The court ruled that because the defendant was not the owner of the car, the State was required to prove additional incriminating circumstances which would tend to show constructive possession of the cocaine.

Likewise, in Cunningham v. State, 583 So. 2d 960 (Miss. 1991), the defendant had his conviction reversed on possession of cocaine where there was no corroborating incriminating evidence.

The State, in this case, offers this court several other notable events and circumstances which the jury had for consideration and which convince us that Ducksworth may be sufficiently connected to the cocaine found in the Buick Regal that day. Those incriminating circumstances provided to this court in the record are as follows:

1. Ducksworth was seated in a parked car in the late hours of the night in an area that the police knew to be popular for drug activity and hence, was the subject of the police investigation taking place on February 18, 1998;
2. The officers who questioned Ducksworth had observed the suspicious activities going on around the car occupied by Ducksworth only moments before they approached him, arrested him and searched the car. The officers testified that a number of pedestrians were coming and going from the car, including one person who Officer Varnado knew to have prior drug violations;
3. Ducksworth immediately lied to the police upon being asked his identity and could not produce a valid driver’s license to prove his identity;
4. Ducksworth told the officers that he had driven the car to take his girlfriend to work prior to being in the parking lot that morning and did not know of the presence of the white bottle containing cocaine. However, the bottle was carefully balanced on the emergency brake of the car when the officers found it, as if it was placed there when Ducksworth realized the presence of the officers.