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Passenger lacks dominion and control for constructive possession in this case

Facts

In 2011, Nicholas Ingram, Marvin Carver’s half-brother, planned to drive from Grenada to the coast to surprise his mother for Thanksgiving. Ingram’s and Carver’s grandmother had rented a car for Ingram to take on the trip. She then asked Carver to accompany Ingram so he would not be alone. The trip was described as last-minute, and Carver stated that he had decided to go the same day that Ingram had planned to leave. In a rush, Ingram picked up Carver on his way to the coast.

Wade Zimmerman, a state trooper for the Mississippi Highway Patrol, pulled Ingram over for speeding in Madison County. Trooper Zimmerman testified that he first went to the passenger side of the vehicle, where Carver was sitting, to obtain identification. Zimmerman returned to his car and then proceeded to the driver’s side of the vehicle.

At that time, Zimmerman testified that he noticed a strong odor of marijuana emanating from the vehicle. He noted that Ingram’s eyes were bloodshot. Zimmerman asked Ingram to step out of the vehicle for questioning. Ingram first denied smoking marijuana but later admitted he had been smoking after Zimmerman performed a field sobriety test. Zimmerman testified that Ingram then consented to a search of the vehicle.

Under the driver’s seat, Zimmerman found a small hand gun. In the center console was a small bag containing less than a gram of marijuana. Zimmerman found two larger bags of marijuana in the right rear side of the trunk of the car, underneath the flap where the spare tire is stored. One bag was wrapped in bubble wrap inside a manila envelope. The second bag was bubble-wrapped and in a white plastic bag. A digital scale also was in the trunk of the vehicle. Ingram and Carver were taken into custody. Ingram had in his possession more than $800 dollars in cash.

Both Ingram and Carver waived their Miranda rights. Agent Candace Beth Edwards with the Mississippi Bureau of Narcotics first interviewed Ingram. At that time, Ingram admitted purchasing the marijuana from a bar in Grenada and claimed sole ownership of it. Ingram stated that he had paid $300 for the marijuana. He also stated that he had purchased the gun for protection around three months prior after a family member had been killed. Ingram testified that he had purchased the marijuana to smoke with a couple of people for the holiday and that he had been smoking marijuana prior to getting in the car that day. Ingram said that Carver had not known about the marijuana in the car. Agent Edwards testified that Ingram had taken full responsibility for everything illegal that was found in the vehicle.

Agent Edwards then interviewed Carver. She testified that Carver had stated that he had known about the marijuana in the vehicle and that he had agreed to smoke marijuana with Ingram for the holiday. Carver did not state that he had known specifically about the marijuana in the trunk. Edwards testified that she had assumed that he knew about all of the marijuana in the vehicle because the amount in the center console was not enough for a marijuana cigarette.

In Carver’s written statement, he said that the marijuana he had, I knew about because he said he had some weed for us to smoke for Thanksgiving. Me being the older square, as he calls me agreed to puff for the special occasion. I didn’t know he had all that much marijuana until the police pulled it out the trunk.

Ingram pleaded guilty to possession of marijuana, and Carver’s case went to trial. The jury acquitted Carver of conspiracy but convicted him of the lesser included offense of possessing more than thirty but less than 250 grams of marijuana. He was sentenced to six years. MCOA affirmed. MSC reversed, finding constructive possession was not proven.

Analysis

In Glidden, we said that in constructive possession cases, the State must prove that the defendant was both aware of the contraband and intentionally, although not physically, possessed it.

In Hamm, we established the following rule regarding constructive 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 Boches v. State, 506 So. 2d 254 (Miss. 1987), we said that the State must prove dominion and control over the contraband and not simply the automobile in order to satisfy constructive possession.

A. Cases where constructive possession has not been found

In Fultz v. State, 573 So. 2d 689 (Miss. 1990), we said that when the defendant does not own the premises, the State must show additional incriminating circumstances connecting the defendant to the contraband. The defendant had been driving his sister’s car when he was pulled over for driving erratically. More than seven ounces of marijuana were found in the trunk of the car. We reversed the defendant’s conviction and reasoned that, although the defendant had been the sole person in the car and had admitted to smoking marijuana, the State had failed to prove a connection between the defendant and the contraband.

In Hudson v State, 362 So. 2d 645 (Miss. 1978), this court expressed skepticism concerning the issue of proximity when marijuana was found under the hood of a car not owned by the defendant.

In Ferrell v. State, 649 So. 2d 831 (Miss. 1995), the defendant was the sole occupant of the car but was not the owner. Contraband was found concealed in a matchbox. We reversed the possession charge, stating that the contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car.

Even proximity coupled with knowledge previously has presented insufficient evidence to establish constructive possession. In Martin, the defendant was found standing over two Tupperware containers of marijuana in a kitchen where more than eight ounces of marijuana were recovered. The defendant admitted that he had known that the others had been messing with marijuana but denied he had been involved. We reversed the defendant’s conviction, finding that the defendant’s mere presence in the kitchen area where the marijuana was found, without more, is simply not enough.

In Naylor, a narcotics unit entered a bathroom and observed the defendant jumping into the bathtub while another individual attempted to flush cocaine down the toilet. The defendant also had been in possession of more than seven hundred dollars in cash. However, we reversed and rendered the defendant’s conviction, finding that the evidence was insufficient to prove that the defendant had possessed the cocaine.

In Berry v State, 652 So. 2d 742 (Miss. 1995), we held that mere presence does not indicate participation in the purchase. Nor does it support an inference of dominion and control. Dominion and control must be established by evidence more compelling than the momentary handling of the contraband. Momentary handling of the contraband is not enough to establish constructive possession.

Berry placed drugs in the glove compartment of a vehicle at his friend’s direction. In finding that constructive possession had not been established, we stated that, possession is defined in terms of the exercise of dominion and control. No evidence had been presented that the defendant had owned the drugs, had paid for them, or had controlled them in any way.

B. This case

This case, too, involves a situation in which we express skepticism of the proximity of Carver to the marijuana found in the trunk of a car not owned by him, in addition to Carver’s knowledge of the marijuana. However, the biggest obstacle in this case is the issue of dominion and control.

Evidence of dominion and control in this case is lacking. Ingram took full responsibility for everything illegal that had been found inside the vehicle. Moreover, Zimmerman testified that initially he had approached the passenger’s side of the car; yet it was not until he returned from his patrol car to the driver’s side of the vehicle that he noticed the strong odor of marijuana.

Ingram and Carver each testified that Carver had no knowledge of the marijuana in the trunk. Moreover, Ingram testified that the marijuana had been under the flap for the spare tire, not in plain view. And although Ingram and Carver were half-brothers, this court previously has held that it cannot be presumed that, simply because two people associate with one another, they are accomplices in a common crime.

MCOA found that Carver’s expression of his intention to smoke marijuana manifested constructive possession of an undivided interest in the amount of marijuana to be smoked. We disagree. Testimony shows that the marijuana was found in the right rear of the trunk of the vehicle, under the flap for the spare tire. Carver denied knowledge of the marijuana in the trunk, and Ingram testified that Carver had not known of the marijuana in the trunk.

Thus, proximity and knowledge of the contraband in this case present skepticism. Carver admitted that he had planned on smoking marijuana over the holiday. However, no evidence established that Carver had exercised dominion or control over the marijuana found in the trunk of the vehicle. Even had Carver had knowledge of the marijuana secreted in the trunk, the State must have proven beyond a reasonable doubt that Carver had constructively possessed the contraband. This it failed to do.

 

https://courts.ms.gov/images/Opinions/CO125356.pdf