Facts
In 2003, Sergeant Evan Smith, a Washington County deputy, received an anonymous phone call advising him that Dale Terry was manufacturing methamphetamine at 55 Penny Lane in Washington County. Smith contacted Deputy Dwight Donham and told him to meet at 55 Penny Lane. Upon arrival in separate patrol cars, the deputies proceeded to the back of the house, past a toolbox that emitted a strong smell of ether.
Upon knocking on the door, Paulette Terry, Dale Terry’s mother, answered the door and invited the two deputies into the house. The deputies informed Ms. Terry of the anonymous tip and she gave the deputies oral consent to search the premises. A short time later, Agent Rick McDaniel of the Central Delta Drug Task Force, at the request of Sergeant Smith, arrived at 55 Penny Lane and received written consent from Ms. Terry to search the premises.
Upon receiving written consent to search, the officers went outside of the house and directly to the toolbox that was emitting the strong smell of ether. Upon finding the toolbox locked, Agent McDaniel asked who owned the toolbox. Dale Terry said that it was his. Terry stated that he did not have a key to open the toolbox, but could get into it. Terry offered to assist the officers in prying open the toolbox with a screwdriver and hammer.
Upon almost turning over the toolbox, Terry was stopped by Agent McDaniel because the agent did not wish for the box and its contents to be destroyed. McDaniel then proceeded to open the lid with a crowbar. Inside, McDaniel found a thirty two ounce drinking cup, a box of salt, and some tubing.
Adrian Hall, a forensic scientist with the Mississippi Crime Lab, testified that after testing the substance it was found to contain ethanol and ephedrine, two precursors used in the manufacture of methamphetamine.
At trial, Ms. Terry testified that, prior to the arrival of the deputies, Nick Southerland had come by the house to drop off some tools for Terry. She directed him to place the tools in the toolbox outside. She also testified the salt and tubing were purchased from Wal-Mart that night for the kids to start a fish tank and that these items were not in the toolbox, but found in the floorboard of Terry’s truck. Dale Terry did not testify at trial.
Terry was convicted of possession of chemicals with intent to manufacture a controlled substance and sentenced to 20 years. On appeal, he argued he was not in possession of the items. MCOA affirmed.
Analysis
Since Terry did not have the precursors actually on his person, the State must prove possession by constructive means. Recently, in Kerns, the MSC said to establish 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.
In addition, for constructive possession, the drug involved must be subject to his dominion or control. In Kerns, the MSC upheld a finding of sufficient evidence for a constructive possession case involving possession of precursors with intent to manufacture. McKinney, a defendant in Kerns, did not own the property where he and the precursors were found, and the MSC looked to see if there were any additional incriminating facts. It found the following factors:
– Being present at an operating methamphetamine laboratory which smelled strongly of ether;
– He was within two feet of methamphetamine oil, surrounded by the necessary precursor chemicals for both creating methamphetamine oil and converting it into crystal methamphetamine;
– In possession of a Lorcin .38 handgun within reach of ammunition;
– In close proximity to tin foil and coffee filters which tested positive for methamphetamine.
Together, these facts were sufficient to find that McKinney was in constructive possession of the precursors.
Similar to the analysis in Kerns, we look to determine if there are incriminating facts to provide sufficient evidence of constructive possession in this case. The precursors were found combined in a drinking cup which was located in a locked toolbox outside. The combination of these precursors produced a very strong odor that the officers, while walking up to the house, were able to smell as they passed by.
As in Kerns, the strong odor arising from the use of precursors to manufacture methamphetamine was an incriminating fact suggesting that Terry was aware of the presence and character of the particular substance. Also, the officers arrived at the Terry’s residence only after they received an anonymous tip that Dale Terry was cooking crystal methamphetamine at 55 Penny Lane.
An important distinction between Kerns and the present case is that Terry actually owned the property where the precursors were found. The toolbox was locked, showing even more dominion and control of the property inside the toolbox. After learning that Terry was the owner of the toolbox, the officers asked for him to open it.
McDaniel testified that when Terry attempted to pry open the toolbox, it appeared as if he was trying to destroy the box and the contents within by slamming the toolbox down. Thus, the jury could have determined, from the testimony of McDaniel and Smith, that Terry knew exactly what was inside the toolbox and was trying to destroy any evidence that could possibly be used against him.
Therefore, we conclude that the evidence presented indicates that reasonable minds could differ as to whether Terry was in constructive possession of the precursors. With that being the case, this court finds that the evidence presented was sufficient to establish Terry in constructive possession of the precursors. This issue is without merit.