Proximity to drugs and a confession constitutes constructive possession


In 2007, police executed a search warrant on Jason McKee’s camper for drugs. Once inside, police found McKee, Malcolm Allen, and Wendy Cheatham inside. They recovered 170 grams of methamphetamine scattered throughout the small camper. Some was in the dining room in plain view, some was was in a bedroom, and some was in a bathroom.

Officer Clay McCombs, Leake County Sheriff’s Office, Mirandized Cheatham, who waived and confessed that the methamphetamine found inside the camper was hers. When asked where she obtained the methamphetamine, Cheatham stated she manufactured the methamphetamine. Despite this voluntary confession, Cheatham later claimed it was not true and attempted to prove such at trial.

She was convicted of possession of more than thirty grams of methamphetamine, and the court sentenced her to ten years. On appeal, she argued she was not in constructive possession of the drugs. MCOA affirmed.


With regard to constructive possession, MSC in Curry v. State, 249 So. 2d 414 (Miss. 1971), said that 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. 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 it is not adequate in the absence of other incriminating circumstances.

In Hamm, MSC said that when the illegal substances are found on premises not owned by the particular defendant (like our case), physical proximity, by itself, is not enough to prove constructive possession. In such a case, the State must show other incriminating circumstances, in addition to proximity, in order to prove constructive possession.

A. Other cases with proximity to drugs and a disputed confession

In Buie v. State, 761 So. 2d 892 (Miss. Ct. App. 2000), the defendant lived in a house with three other individuals, and while the defendant was not at home, police executed a search warrant on the house. The search revealed drugs, weapons, and large sums of cash in what police believed was Buie’s bedroom. Buie initially confessed that the drugs were his, but later he denied making the confession. Based on the defendant’s proximity to where the drugs were found and his confession, he was found to be in constructive possession of the contraband.

Significantly, we found that the confession was an additional incriminating fact connecting the defendant to the contraband. The dispute over the confession conjures a credibility issue within the realm of the jury, and the issue was obviously resolved by the jury in favor of the State.

In Stewart, Tommy Stewart was arrested for possession of cocaine when he was pulled over while driving a car belonging to someone else. The cocaine was found in plain view in the driver’s side door pocket, and Stewart stated at the police station, with regard to the cocaine: “I guess it’s mine.” Stewart was found to have constructively possessed the cocaine despite denying ever making the admission.

Upholding the verdict, this court found that the confession provided an incriminating circumstance in addition to mere proximity to the cocaine. Of substantial importance, we noted the dispute surrounding Stewart’s confession was a question of fact to be resolved by the jury.

B. This case

In this case, there is both proximity and an additional incriminating circumstance – Cheatham’s confession – as was the case in both Buie and Stewart. Specifically, Cheatham knew that methamphetamine was present in the small camper the night the search took place and that a portion of the methamphetamine was found in plain view on the dining room table in close proximity to where Cheatham was standing when officers entered the camper.

Having established close proximity, we must also take as true the additional incriminating circumstance: Cheatham’s voluntary confession to McCombs that the methamphetamine belonged to her. Such was enough for the jury to weigh the evidence in favor of conviction.