Facts
In 2016, Shawn Lavant was stopped by Officer James Cowan with the Biloxi Police Department for driving without his vehicle’s headlights on. Lavant was the only person in the vehicle when Cowan stopped him. The vehicle belonged to Dorothy Parnell, but Lavant admitted that he frequently used the vehicle.
Cowan testified that as he approached the vehicle, it appeared as though Lavant was putting something behind the passenger’s seat. Cowan noticed an open container of beer and asked Lavant if he had been drinking. Lavant admitted to having a few drinks at the casino earlier that day, so Cowan called for a DUI officer.
According to Cowan, Lavant asked him if he was calling for backup, and when Cowan told him that he was, Lavant asked if he could drive his vehicle or get out of the vehicle and walk to a nearby gas station so he could use the restroom. Cowan denied these requests because in his experience it was fairly common for people with illegal contraband in a vehicle to want to distance themselves from the vehicle.
When DUI Officer Jason Cummings arrived, he told Cowan that it looked like Lavant was stuffing something between the driver’s seat and the center console. Cowan admitted that he did not see the stuffing motion as he was doing other things on the scene at the time. Based on the information he received from Cummings, Cowan obtained Lavant’s consent to search the vehicle.
Cowan found a clear pill bottle stuffed down between the driver’s seat and the center console. That pill bottle did not have a label and contained various multi-colored, multi-shaped pills (methamphetamine). He also found another clear pill bottle containing white pills in the center console. Cowan testified that this pill bottle had a prescription label for oxycodone, prescribed to Dorothy Parnell—the registered owner of the vehicle (testing came back methamphetamine).
According to the impound report Cowan also found marijuana and male clothing in the vehicle and approximately $1,000 cash inside the glove compartment. The record also reflects that Lavant had $200 in twenty-dollar bills in his wallet.
Cummings determined that Lavant was not impaired and turned Lavant back over to Cowan.
Lavant testified that he was at the casino and borrowed Parnell’s car to go get cigarettes. He denied stuffing anything in the car.
Lavant was convicted of possession with intent to distribute methamphetamine and sentenced to 25 years. On appeal, he argued he did not possess the drugs. MCOA affirmed.
Analysis
To establish constructive possession, the drug merely has to be found near the defendant in a place over which the defendant exercises dominion or control. The defendant’s proximity to the drugs is a factor in establishing constructive possession, but it is not determinative.
In this case, Lavant did not own the vehicle in which the pills were found. When illegal substances are found on premises not owned by the defendant, the State must show other incriminating circumstances, in addition to proximity, in order to prove constructive possession. Finally, the elements of constructive possession may be proven by circumstantial evidence.
In this case, the record reflects that Lavant was the driver and sole occupant of the vehicle when he was stopped by Cowan. Lavant admitted at trial that he had been in the vehicle earlier that day, sitting in the passenger’s seat for thirty to forty-five minutes on the way to the casino. He further admitted that he frequently used Parnell’s vehicle, so many times that he could not count them.
Moreover, the jury heard Investigator Fore’s testimony that in his experience many people who sell drugs or who travel around with drugs do not use their personal vehicles so they can use the line, “It’s not my vehicle. It’s not my drugs.”
The jury also heard Cowan’s testimony that persons who have illegal contraband in their vehicle often want to distance themselves from the vehicle when they are stopped—conduct that Lavant displayed in this case when, shortly after being stopped, Lavant asked to get out of the vehicle to use the restroom at a nearby gas station. Cowan refused his request.
Finally, Lavant testified that he had been gambling at the casino since earlier that day, and Fore testified that, based on his experience, people often sell drugs at the casino.
Proof of additional incriminating circumstances developed when DUI Officer Cummings arrived on the scene. Although Lavant testified that he was out of the vehicle when Cummings arrived, both Cowan and Cummings testified to the contrary. Cowan testified that he denied Lavant’s request to leave the vehicle, and Cummings testified that Lavant was still in the vehicle when he got there.
Cummings testified that at this point, he observed Lavant trying to stuff something between the driver’s seat and the center console. He told Cowan what he saw, and Cowan testified that he then obtained consent to search the vehicle, and he recovered the unlabeled pill bottle containing 142 multi-colored, multi-shaped pills from between the driver’s seat and the console—the same area where Cummings saw Lavant “fiddling around” with something when he first arrived on the scene.
In short, the record reflects substantial evidence that Lavant constructively possessed methamphetamine under section 41-29-139(a)(1). See Patterson, where we found sufficient evidence to sustain a possession-of-cocaine conviction where police officers testified that they observed the defendant drop an object, and that the recovered object contained an illegal drug and Cantrell, where we found sufficient evidence that the defendant possessed syringes (one of which contained methamphetamine) where the officer observed the defendant remove something from his pants pocket and throw it and, later when the officer searched the area where he saw the defendant throw the item, and he found two syringes.