Facts
In 2011, Sunny Day Bayham was awakened by the sound of her dogs barking. She looked outside and saw George Affleck in her next door neighbor Diane Hearn’s yard. Affleck was screaming and yelling and throwing Hearn around, trying to get her in his truck, which was parked in Hearn’s front yard. Hearn tried to run, but Affleck grabbed her by her hair and pulled her back.
She escaped from the truck once, and Bayham, who had come outside, called out to Hearn to see if she needed help. Hearn did not respond, but Affleck yelled at Bayham to go back inside her house or she could have some of the same. Affleck then threw Hearn against the side of a tree. He yanked her up, threw her into the truck, and slammed the door, telling her, don’t get out again or you’ll be sorry. Affleck got in the truck and drove off.
Michelle Rushing was visiting a friend, Wendy Beckham, on May 22, 2011, at Beckham’s house on Creston Avenue in Jackson, Mississippi. Beckham’s house is approximately three houses down from Affleck’s, on the opposite side of the street. Rushing saw Affleck stop his truck in the middle of the street. Affleck and a female were fighting, and Affleck was really beating her. The female opened the truck door and tried to get out, but Affleck pulled her back into the truck.
Rushing heard Affleck threaten to kill the female, and he was asking her, “how much did you pay them?” Affleck then drove the truck into his driveway. The female jumped out and ran into Affleck’s house. Affleck followed her. Rushing did not see the female again. She heard Affleck say, “B—-, I’m going to kill you,” as he was trying to keep the female from escaping his truck. She heard the female screaming and yelling for help, and saying, “please don’t, please don’t.”
Pedro Lugo lived and worked with Affleck. Lugo was asleep on the night of May 22, 2011, when another roommate, Reyes Cruz, woke him and said Affleck and Hearn were fighting in Affleck’s bedroom. After two or three hours of hearing Affleck and Hearn yelling at each other, Lugo and Cruz left around 11:30 p.m. to stay in a hotel in Clinton, Mississippi. Lugo was scared of Affleck because he had a gun and a “big knife” in a holster on his waist.
Before they left, Lugo saw Hearn lying on the floor in Affleck’s room. Her face was bloody, but she was breathing. Lugo drove back to the home the next morning around 7:30 or 8 a.m. On his way back, he called police out of concern for Hearn. Affleck was in the front yard when Lugo arrived. Lugo did not go inside.
Cruz, who only spoke Spanish, testified through a translator that he also lived with Affleck. On the night of May 22, 2011, he was outside when Affleck and Hearn got out of Affleck’s truck. They were fighting. Hearn ran into the house, and Affleck chased her from room to room. Affleck was pushing her. She was crying and trying to defend herself. Cruz testified he could not sleep because the fighting was so loud, so he and Lugo chose to leave to get a hotel room.
Prior to leaving, Cruz saw Hearn lying on the floor in Affleck’s bedroom. Her face was bruised. When he returned to the house the next morning, Affleck was mopping up what appeared to be blood, and Affleck’s clothes from the night before were hanging up wet in the bathroom. Also, the bed was gone from Affleck’s room. Cruz did not see Hearn.
Two Jackson police officers, Investigator Felix Hodge and Officer Dwayne Smith, drove to Affleck’s home on Creston Avenue at approximately 8:20 a.m. on May 23, 2011, to conduct a welfare check for Hearn’s safety. Affleck was outside. He refused to let them in the house without a search warrant. The officers saw what appeared to be blood on the exterior of two trucks in the yard, one of which was Affleck’s Ford F-150. Then they noticed smoke coming from Affleck’s backyard.
They walked around the house and found a burning mattress. They also saw what appeared to be more blood on a shed and other items in the backyard. A spent shell casing was on the ground. Affleck was detained for questioning, as the officers called for backup and secured the scene. Detective Eric Smith went to Hearn’s house and knocked on the door, but no one answered. Detective Smith noticed tire tracks in Hearn’s front yard. And he saw Affleck’s business cards for his roofing business and roofing nails scattered in the yard.
A search warrant was obtained for Affleck’s Jackson home. Police found bloody boots and blood spattered on “everything” in Affleck’s bedroom. Chemical testing revealed the presence of blood in the corner of Affleck’s bedroom and throughout the house. Swabs taken from Affleck’s bedroom revealed Hearn’s DNA. There was no bed in the front bedroom. A 20-gauge Mossburg shotgun was found in the shed behind the house. Affleck’s F-150 was searched and swabbed. A partial profile of Hearn’s DNA was found on the steering wheel. A golf club, black rubber bungee straps, a black knuckle-handled knife, a silver hunting knife, and brass knuckles were found inside Affleck’s truck. Blood was found on the bed liner of the truck.
On May 26, 2011, an individual found a wallet next to Interstate 20 near Bolton, Mississippi. Police searched the area and found Hearn’s phone. Later that same day, Bolton police received a call that a motorist had seen a body in the grass along Interstate 20. Police discovered the body of a white female. Dental records confirmed it was Hearn’s body. The forensic pathologist was able to determine that her death was a homicide caused by severe blunt-force trauma.
Affleck was convicted of capital murder and felon in possession of a firearm and sentenced to life. On appeal, he argued he was not in possession of the firearm. MCOA affirmed.
Analysis
Police found a 20-gauge Mossburg shotgun in the shed in Affleck’s backyard. The State proceeded under a theory of constructive possession, since there was no evidence Affleck was in actual possession of the shotgun.
In Short, we said to prove constructive possession, the evidence must show the defendant was aware of the presence and character of the particular item and was intentionally and consciously in possession of it. Constructive possession may be established with proof that the item was under the defendant’s dominion or control.
In Hopkins, MSC said that proximity to the item is a factor, but is not determinative.
In Dixon, MSC said a rebuttable presumption of constructive possession exists when one owns the premises where the item is found.
The State introduced the deed to Affleck’s home on Creston Avenue to prove that he was the home’s owner at the time of his arrest, thus creating a rebuttable presumption of constructive possession. At the time of Affleck’s arrest on May 23, 2011, he was standing within close proximity of the shed, which had blood on it.
Although Affleck points out that he lived at the home with multiple roommates, no evidence was presented that the shotgun belonged to anyone other than Affleck. Affleck failed to present any evidence to rebut the presumption that he constructively possessed the shotgun.
https://courts.ms.gov/images/Opinions/CO109347.pdf