Facts
In 2010, Newton Police Chief Harvey Curry and Investigator Michael Williams responded to a disturbance call on Oak Street in Newton, Mississippi. At trial, Williams testified that he was informed that Kendrick Body was involved in the original disturbance. He further testified that once he arrived on the scene, he heard a gunshot from the woods.
However, Williams’s view was obstructed, and he was unable to see who fired the shot. Williams saw an unidentified black male wearing a white t-shirt and a backpack, running. Williams and other officers immediately started a search of the wooded area across from Railroad Street, behind Pine Street and Ruffin Drive.
When Williams encountered Body, he was wearing a white t-shirt, sitting on the ground behind shrubbery. Williams then pulled out his taser and instructed Body to come out of the shrubbery. Williams then handcuffed him and noticed an object left behind where Body was found, and instructed another officer to retrieve it. The item discovered was a backpack that contained a Manurhin handgun. Williams testified that he identified Body as the shooter because of his white t- shirt; he could not identify the man facially.
At trial, Williams was the State’s only witness. Body’s only witness was his friend, Justin Evans. Evans testified that Body did not arrive until after the original disturbance, but before the gunshot occurred. After Evans and Body heard the gunshot, they started running. Evans also testified that when he was with Body, he did not see Body with a gun. Evans admitted that he was not with Body the entire time; at some point while they were running, they split. He was not with Body when the police found him.
Body was convicted of being a felon in possession of a firearm and sentenced to eight years. On appeal, he argued he was not in possession of the firearm. MCOA affirmed.
Analysis
Body argues that the firearm was not in his actual, physical possession at the time of his arrest. Body also asserts that although proximity is essential to establishing constructive possession, it is not enough to prove that the gun was within his dominion and control.
Mississippi Code Annotated section 97-37-5 (Supp. 2013) provides:
It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the United States Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.”
Possession can be actual or constructive. We said in Johnson that constructive possession is established by evidence showing that the contraband was under the dominion and control of the defendant.
At trial, it was established that Body had constructive possession of the gun found in the backpack. Williams testified that he saw the backpack in close proximity to Body, or within arm’s length. Williams also testified that he found a gun inside the backpack found near Body.
Body did not testify in his defense. Evans testified that he was with Body, and they were chased by the police. While running, at some point Evans and Body separated. Evans admitted to not being with Body when he was arrested. Evans also stated that he did not see Body with a gun during the time he was with Body.
Here, the jury found Williams to be the more credible witness and returned a verdict of guilty. Accordingly, this issue is without merit.