Other people may have had access but subject found to be in constructive possession


Officers of the Montgomery County Sheriff’s Department conducted surveillance on Consimeon Gross’s residence for several months, during which time they observed numerous people going into the residence and then leaving shortly thereafter. Based on their suspicions, the officers obtained a search warrant for Gross’s residence. The warrant was executed as Gross was stopped and arrested for unrelated reasons. No one except the officers were at the house while the residence was searched.

The search of the residence yielded a considerable amount of contraband, including marihuana plants, a large amount of marihuana, heroin, ecstacy, cocaine, drug paraphernalia, and firearms. Some of the items, including the guns, were found in a game room that officers testified was located near the front of the house. Some of the contraband was found in a bathroom whose location in the house was not disclosed. The majority of the items were found in a plastic bag on top of a dresser in a bedroom.

Again, no testimony was introduced to indicate where this bedroom was in the house. One of the officers who executed the search warrant testified that, when Consimeon’s wife arrived at the house and while Consimeon was in the officer’s vehicle, Consimeon said, “She don’t know nothing. She don’t know nothing.” Partially on the basis of that statement, the officers chose not to pursue charges against Gross’s wife.

The State put on an expert who testified about the analysis of the chemical makeup of the contraband discovered. The State also called Gross’s father-in-law, Rudolph Hobbs, the actual owner of the house, as a witness. Hobbs testified that he was “by there [the house] all the time” because the residence “is right there on the highway” and Consimeon and his family were the individuals living in the residence at the time of the search warrant.

Gross called only his cousin, Shalamice Bibbs, as a witness. The essence of Bibbs’s testimony was that, at the time of the search warrant’s execution in June of 2003, her cousin, Teresa, and her cousin’s husband, Mike, were staying with Gross and his family. Bibbs testified that Teresa and Mike stayed in the back of the house, while Gross and his family stayed in the front of the house. Bibbs also testified that she knew that Mike had done drugs, although she also testified that she had never seen him with any of the contraband seized from the house and she had not seen any drugs in the back bedroom of the house while Teresa and Mike were staying there.

Consimeon Gross was convicted of five different counts arising from the possession and manufacture of various illegal substances and sentenced to 40 years. On appeal, he argued that he was not in possession of the drugs. MCOA affirmed.


In order to prove possession of an illegal substance, the State need not prove actual possession. Instead, the State may prove possession by showing that a defendant had constructive possession of an illegal substance:

Constructive possession may be shown by establishing that the drug involved was subject to his the defendant’s dominion or control. A presumption of constructive possession arises against the owner of premises upon which contraband is found. However, where an individual is not in exclusive possession of a premises, additional incriminating facts must connect the accused with the contraband.

We find MSC case Powell v. State, 355 So. 2d 1378 (1978), to be particularly illuminating on this issue. After the execution of a search warrant, marihuana was found in three locations in the house that Powell rented: the living room coffee table, a small ammunition box in front of the living room fireplace, and a larger ammunition box located in Powell’s bedroom closet. Testimony indicated that Powell shared the house with other adults. Testimony also indicated that there were many people who visited and had access to all the rooms of the apartment.

Essentially, the only additional incriminating fact indicated by the Powell court was the discovery of some of the marihuana in Powell’s bedroom, although the court recognized that numerous individuals had access to the bedroom. No fingerprints or eyewitness testimony was presented to corroborate Powell’s ownership of the marihuana.

In the present case, Gross presented evidence regarding three different individuals who might have also had possession of the contraband: his wife, Teresa, and Teresa’s husband, Mike. As to Gross’s contention that the evidence more strongly implicates Teresa and Mike than Gross because the contraband was supposedly found in the back bedroom that Teresa and Mike used, we note that the record does not reflect that the contraband was found in a back bedroom. In fact, officers testified that some of the contraband was found in a front game room.

The majority of the contraband was found in a bedroom, but no evidence at trial indicated where the bedroom was located in the house. Therefore, we cannot conclude from Gross’s brief alone that the contraband was found in the back bedroom where Teresa and Mike were allegedly staying.

Although Gross claims that the testimony of Bibbs regarding his cousin’s occupancy of the house is uncontested, we note that Hobbs testified that the sole occupants of the house at the time of the search warrant were Gross, Gross’s wife, and their two children. Hobbs did not mention Teresa or Mike when asked who occupied the house at the time of the search warrant. Therefore, a reasonable jury could have chosen to believe Hobbs’s testimony over that of Bibbs and chosen not to believe that Teresa and Mike stayed with Gross.

As to the presence of Gross’s wife, we note Gross’s statement in the police car as his wife arrived that “she don’t know nothing.” While we decline to treat this statement as an explicit admission, as the State urges us to do, we find that it is additional incriminating evidence indicating that Gross had knowledge of the contraband while his wife did not. Therefore, there was sufficient additional incriminating evidence to meet the standard for constructive possession.

On the facts before us, as in Powell, there is sufficient evidence supporting Gross’s conviction.