Andrew Acie Adams was spotted driving in Gulfport while there was a warrant out for his arrest. After pulling Adams over, the officers noticed a loaded magazine in the driver’s side door. Adams’s wife, who was in the passenger’s seat, was found to have been sitting on a pistol, and a search of the vehicle’s trunk revealed a .22-caliber rifle. Adams confessed to owning the rifle, but he claimed to know nothing of the pistol.
Adams testified in his own defense that he had lied about his owning the rifle in order to protect his wife.
He was convicted of felon in possession of a firearm and sentenced to ten years. On appeal, he argued he was not in possession of either gun. MCOA affirmed.
Since Adams was never seen in actual, physical possession of the rifle, he was prosecuted under a theory of constructive possession. Constructive possession allows the prosecution to establish possession of contraband when evidence of actual possession is absent.
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.
Here, the rifle was found in the trunk of the vehicle Adams was driving, and a loaded magazine that fit the rifle was in the driver’s side door. Adams further confessed that the rifle was his, in some detail, explaining how he had bought it from someone for sixty-five dollars and how he hoped to sell it to his uncle for more. He also stated that he liked guns and enjoyed possessing them.
On appeal, Adams contends that the evidence was insufficient because the vehicle belonged to his wife. He notes that the owner (or possessor) of a vehicle is presumed to be in constructive possession of the things found inside. The presumption, however, can be rebutted if it is shown that the vehicle was not under the exclusive control of the owner. Moreover, the presumption is simply that the owner is in possession of the items inside; it does not preclude the items from also being in the joint possession of others.
In Dixon, MSC said that possession of contraband may be actual or constructive, individual or joint.
Adams also contends that proximity is an element of constructive possession and that his conviction fails for a want of proximity to the weapon. He cites to Curry v. State, 249 So. 2d 414 (Miss. 1971), where the MSC had observed that proximity is usually an essential element of constructive possession, but by itself is not adequate in the absence of other incriminating circumstances.
Setting aside the factual futility of Adams’s argument (the rifle was in the trunk of the vehicle Adams was driving when he was arrested), the point of this oft-repeated maxim is that proximity alone is not sufficient to prove constructive possession. The observation that proximity is necessary in usual cases is dicta about the practical reality of proving constructive possession. Proximity is not literally an element of constructive possession.
Finally, Adams argues that his confession is inadequate evidence of possession because he spoke about his ownership of the gun rather than his possession of it at the relevant time. While we agree that there is a distinction between ownership and possession, an acknowledgment of ownership is clearly an incriminating circumstance.
That, along with Adams’s proximity to the weapon, his wife’s ownership of the car and his immediate control thereof, and the presence of the loaded magazine (which fit the rifle) in the driver’s door while Adams was operating the vehicle, is more than sufficient evidence to sustain a conviction under the theory of constructive possession.