Subject’s statement and cocaine found in clothing sufficient for actual possession


In 2004, Charles Nance was pulled over while driving, for failure to dim his headlights to an oncoming car driven by Officer Draper Williams of the Oktibbeha County Sheriff’s Office. During the course of the traffic stop, Nance was unable to produce his driver’s license or proof of insurance, provided the officer with a false name and driver’s license number, and refused to give the officer his complete date of birth.

Eventually, Nance provided Draper with his correct name and the officer discovered that Nance had an outstanding warrant for his arrest. Nance was arrested on the warrant and transported to the Lowndes County Adult Detention Center. As Nance was being booked into jail, Detention Officer William Schaefer discovered in Nance’s clothing a corner of a sandwich bag, which was tied up, and contained a white powdery substance.

Upon finding the bag, Schaefer asked Nance what the bag was or what it contained. Nance responded that the bag was a candy wrapper and directed Schaefer to throw it away in the trash. Schaefer collected the bag as evidence and sent the bag to the Tupelo Crime Lab for testing, where it was determined that the bag contained cocaine.

Nance was convicted of possession of cocaine and sentenced to eight years. On appeal, he argued he did not knowingly possess cocaine. MCOA affirmed.


In order to convict a defendant of the offense of possession of a controlled substance, the State must prove actual or constructive possession of the narcotics by the defendant, coupled with knowledge of the presence of the drug. See Miss. Code Ann. § 41-29-139(c) (providing “it is unlawful for any person knowingly or intentionally to possess any controlled substance”).

What the State was required to show was that the defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. The possession need not be actual physical possession. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

In this case, the facts deduced at trial showed that Nance was in actual physical possession of the cocaine. The substance was found on his person during a routine booking at the jail house. While there is no requirement that the defendant be in actual physical possession to be found guilty, in this case, the proof clearly established that Nance physically possessed the bag containing cocaine.

When Nance was questioned about the bag, he told the officer that the bag was a candy wrapper and asked the officer to dispose of the bag in the garbage. At no time did Nance disclaim the bag, as to suggest that it did not belong to him. In fact, he identified the bag, falsely, as a candy wrapper. Nance’s statements to the officer establish by deduction that he was the owner and in possession of the bag.

He claimed ownership over the bag by giving permission to the officer to dispose of the bag containing cocaine. These acts and statements made by Nance, taken together, have sufficient weight so that a reasonable jury could find that Nance was in knowing possession of the cocaine.