In 2006, several officers of the Mendenhall Police Department were patrolling the streets. As the officers proceeded down Lee Street, they stumbled upon a block party of sorts. The attendees consisted of Timothy Dampeer; his girlfriend, Shanda Hall; his cousin, Dorothy Norwood; Anthony Reed; and several others.
Officer Chris Seghini saw Reed standing in the middle of the street holding a brown bag, which Reed tossed as Seghini neared. Seghini parked his patrol car and noticed Dampeer standing beside a nearby vehicle. As he approached Reed, Dampeer took off running.
A foot chase ensued during which Seghini observed Dampeer toss a pill bottle. Seghini looked where the pill bottle was and proceeded after Dampeer. Seghini apprehended Dampeer, placed him in the patrol car, and went back to retrieve the pill bottle. He found the pill bottle, opened it, and discovered what appeared to be crack cocaine. A search of Dampeer’s person revealed $1,280 dollars in one of his pant’s pockets.
Dampeer was convicted of possession of cocaine and sentenced to four years as a habitual offender. On appeal, he argued he was not in possession of cocaine. MCOA affirmed.
Dampeer argues that the State failed to prove that he constructively possessed the cocaine due to a lack of facts connecting him to the cocaine, in addition to his physical proximity.
In Hamm, the MSC stated that in order for the State to prove possession 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. It need not be actual physical possession. Constructive possession may be shown by establishing dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
Dampeer’s reliance on a theory of constructive possession is misplaced.
MSC said in Dixon that possession of a controlled substance may be actual or constructive.
In Hicks v. State, 580 So. 2d 1302 (Miss. 1991), the MSC found that the trial court did not err in refusing defendant’s proposed jury instructions regarding constructive possession because a police officer observed the defendant throw the drugs across a ditch. In other words, it was an actual possession and not a constructive possession case.
In this case, we find that the State presented ample evidence to establish that Dampeer was in actual possession of the cocaine. Seghini observed Dampeer throw the pill bottle down. He noted where the pill bottle landed and recovered it within minutes. While persons other than Dampeer also fled from Lee Street when the officers pulled up, there was no evidence presented that anyone else passed over the same path of Dampeer’s flight.