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Subject eight feet from rifle found in constructive possession

Facts

In 2008, Donnie Adkins, Sheriff of Neshoba County, personally presented an affidavit for a search warrant to Justice Court Judge Steve Cumberland at the judge’s home. The affidavit was in standard form and stated that Sheriff Adkins believed Roy Lee Johnson had committed the crime of possession of controlled substance crack cocaine and marijuana.

Adkins’s underlying facts and circumstances in this matter stemmed from information supplied by a confidential informant, whom Adkins deemed credible; the information linked Johnson to contraband believed to be located at a mobile home. Paragraph two of the search warrant listed the person who was in control of the house or lived at the place to be served as “person or persons unknown.” Adkins later testified that although the warrant stated “person or persons unknown,” he has always known Johnson to live in that particular mobile home.

The next day, Sheriff Adkins; Officer Ralph Sciple, an investigator with the Neshoba County Sheriff’s Department; and other investigating officers executed the search warrant at the mobile home. Adkins testified that he announced himself, but no one immediately responded to his request to open the door. The law enforcement officers then opted to pry their way into the mobile home.

Adkins was the first official inside the mobile home. Once inside, Adkins testified that Johnson was reclining on a couch inside the mobile home, and a female identified as Ava Ward was coming from one of the bedrooms. Adkins observed at least ten pairs of shoes that Johnson admitted were his. No illegal drugs were found during the search of the mobile home.

Officer Sciple testified that he had seen a .22-caliber Remington rifle in plain sight on the opposite side of the mobile home. The rifle was leaning against a couch in a corner by the televison. The rifle contained ten rounds of .22-caliber bullets. Adkins testified that Johnson would have had enough time to get off the couch and use the rifle, but he did not; instead, Johnson cooperated with the law enforcement officers.

Law enforcement officers checked the rifle’s registration records, but they were unable to trace the legal owner. The investigating authorities were also unable to obtain any physical evidence linking Johnson to the rifle. No other evidence linking Johnson to the rifle was introduced into evidence at trial.

The relationship between Johnson, Ward, and the legal owner of the mobile home was not explored at trial. There was also a second bedroom, but the State did not introduce any evidence regarding its occupants or its contents. When asked about the second bedroom, Adkins testified that he could not remember the contents of the second bedroom and could not speculate as to whether it was occupied. Sciple testified that both bedrooms appeared to be occupied.

Sciple testified that he had been to the mobile home on other occasions to question Johnson about events unrelated to this proceeding, and Johnson had been at the mobile home on each occasion. Sciple clarified his lack of knowledge regarding paragraph two of the search warrant by acknowledging that he did not take out the search warrant and that he did not know where the warrant in question was being executed until he and the other law enforcement officers actually arrived at the mobile home.

When asked if he knew two other possible residents of the mobile home, Moleto Johnson or Darrell Griffin, Sciple testified that he had never known them to be at or live on the premises.

Johnson was convicted of being a felon in possession of a firearm and sentenced to ten years. On appeal, he argued he was not in possession of the firearm. MCOA affirmed.

Analysis

Upon entering the mobile home, law enforcement officers found Johnson and the rifle. They did not testify that the rifle was in his actual possession. Instead, they testified that Johnson was reclining on the couch, approximately eight feet from the rifle. There was no testimony that Johnson attempted to reach for the rifle. There was no testimony regarding who actually owned either the mobile home or the rifle. The conviction depends on whether there was sufficient evidence to find that Johnson was in constructive possession of the rifle.

Constructive possession is established by evidence showing that the contraband was under the dominion and control of the defendant. There must be sufficient facts to warrant a finding that the defendant was aware of the presence and character of the particular contraband and was intentionally and consciously in possession of it.

In Ginn, the MSC that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband.

We must examine the additional incriminating facts that connect Johnson to the rifle. All of the events took place in a single-wide mobile home. Adkins testified that he was aware that he had previously interviewed Johnson at the mobile home. There was also evidence that Johnson resided in the mobile home; Johnson admitted that he owned ten pairs of shoes, which were in one of the bedrooms.

More importantly, Adkins testified that the rifle was “eight feet” away from Johnson. No one else was in the room; Ward was walking down the hall. Thus, the crucial fact was that the rifle was just a little more than two steps from Johnson. The proximity of the rifle to Johnson was evidence that Johnson had dominion and control over it.

There was sufficient incriminating evidence for a reasonable juror to find beyond a reasonable doubt that Johnson was in constructive possession of the rifle.

 

https://courts.ms.gov/images/Opinions/CO64673.pdf