Proximity to drug plus statements equals constructive possession in this case


In 2002, Tommy Stewart was driving within the city limits of Brookhaven, Mississippi, in a car allegedly owned by an individual named Sharon Weathersby, an “ex-friend” of Stewart’s. Officer Tony Moak of the Brookhaven Police Department observed Stewart driving the car. Knowing that Stewart did not have a driver’s license, Officer Moak stopped the car.

When he approached the car, Moak detected the scent of alcohol. He questioned Stewart as to the source of the odor, where upon Stewart admitted that there was an open beer in the back of the car. Moak placed Stewart under arrest and escorted him to the back of the police cruiser.

Moak then returned to remove the keys from the car and to secure it. As he opened the door to the car, he looked down and noticed, in plain view, what appeared to be crack cocaine in the driver’s side door pocket. Moak collected the substance and proceeded to transport Stewart to jail.

During the trip to jail, Stewart told Moak that the cocaine was not his. Instead, Stewart claimed that the cocaine belonged to another individual, Cedric Watson, who had been riding in the car with Stewart earlier in the day. According to Moak’s version of events, Stewart told Moak that when he dropped Watson off, Watson indicated that he lost his cocaine, and that he accused Stewart of stealing it. However, Stewart told Moak that he was unaware that the cocaine had been in the pocket of the driver’s side door of the car.

Stewart was read his Miranda rights and questioned by Officer Scott Thompson of Southwest Narcotics. When asked if he would work with Thompson, he admitted, “I guess it’s mine.” However, Thompson failed to reflect this oral admission in the police report he prepared regarding the incident. Stewart denied making the admission, although he agreed that Officer Thompson had given him his card and asked for cooperation.

Stewart was convicted of possession of cocaine and sentenced to eight years. On appeal, he argued he was not in constructive possession of cocaine. MCOA affirmed.


We said in Beard that the State is not required to prove actual physical possession of a narcotic to show possession.

MSC said in Curry v State, 249 So. 2d 414 (Miss. 1971), that constructive possession may be shown by establishing that the drug involved was subject to the defendant’s dominion or control. There must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Stewart was driving a motor vehicle which was owned by someone else at the time of his arrest. However, Stewart was the sole occupant of the vehicle at the time of the arrest, and the cocaine was found in plain view in the pocket of the driver’s side door. Thus, while Stewart denied knowledge, the cocaine was located in an obvious position in very close proximity to his person.

Also, testimony established more than mere proximity to the cocaine. Thompson testified that Stewart admitted to him that he was the owner of the cocaine. Further, Moak testified that Stewart claimed that the cocaine was owned by Cedric Watson, who, according to Stewart, was accusing Stewart of having stolen the cocaine. This admission indicates Stewart had knowledge of the cocaine.

Additionally, Moak discovered the cocaine in a plainly visible position in close proximity to Stewart, the sole occupant of the vehicle. While Stewart denied at trial that he had admitted anything to either officer, this is a question of fact to be determined by the jury.