Visitor had more than mere presence at site to justify constructive possession of drugs


Upon executing a search warrant in 2001, officers from the Warren County Sheriff’s Department found numerous precursor chemicals to crystal methamphetamine, along with the completed product, filters, scales, and plastic bags, under the stilt-structured mobile home of Richard Earl Kerns, Jr.

Randy Lewis of the Warren County Sheriff’s Office testified that a working laboratory for manufacturing methamphetamine was present under Kern’s stilt structured mobile home. Tara Milam of the Mississippi Crime Laboratory corroborated Lewis’s testimony, concluding that the laboratory was in the final stages of producing consumable methamphetamine when the arrests were made.

At the time of arrest, Thomas McKinney was identified by Officer Jeff Crevitt as being within two feet of methamphetamine in liquid form (“methamphetamine oil”). All that remained necessary for crystal methamphetamine to be formed was exposure of the methamphetamine oil to hydrogen chloride gas. Hydrogen chloride gas can be formed using the combination of coke bottles with hoses inserted, rock salt, and sulfuric acid; all of which were present at the scene.

Lewis testified that the “Nazi method” for producing methamphetamine was being used in the laboratory. This method allows for the transformation of cold pills, pseudoephedrine, into crystal methamphetamine.

According to Milam, the precursor chemicals openly present near McKinney at the time of his arrest included ether, sulfuric acid, and either ephedrine or pseudoephedrine. McKinney offered no explanation for why he was within close proximity to the precursor chemicals. According to Officer Crevitt, the lab smelled strongly of ether. There were six, forty-eight (48) count boxes of cold pills, the starting product under the “Nazi method,” in the room.

Moreover, tin foil and coffee filters in the room tested positive for burned methamphetamine, and scales and bags in the room provided further evidence for the jury to consider that the methamphetamine was being manufactured for distribution.

Jamie Pennington, the girlfriend of Richard Kerns, testified that McKinney was involved with manufacturing methamphetamine, as she had watched him cook methamphetamine in the past. She also testified that McKinney had been at Kerns’s trailer on a continuing basis for months and that she had heard him discussing the acquisition of anhydrous ammonia with Kerns. Moreover, Pennington testified that she took McKinney to get anhydrous ammonia around the first of April, and had taken him to purchase more just two days prior to the search and his arrest.

When arrested, a Lorcin .38 handgun halfway out of its holster, was found underneath McKinney, and within his reach was a box of matching ammunition. In Hemphill v. State, 566 So. 2d 207 (Miss. 1990), this Court recognized weapons like handguns as tools of the drug trade.

Kerns and McKinney were present when the officers conducted the search and were placed under arrest at that time. Both Kerns and McKinney were convicted of manufacture of a controlled substance, possession of a controlled substance with intent to distribute, and possession of precursor chemicals with intent to manufacture a controlled substance and sentenced to 30 years.

MCOA affirmed Kern’s convictions but reversed McKinney’s convictions. They said that at most, McKinney exercised control over one enumerated chemical, not two chemicals as required by section 41-29- 313(1)(a)(I). No testimony or evidence produced supported that McKinney exercised control over other precursor chemicals present at Kerns’s trailer. There was no testimony that McKinney participated in manufacturing the methamphetamine, other than testimony that he was present at the lab. Furthermore, there was no testimony that McKinney exercised any dominion or control over the methamphetamine that was retrieved from the trailer.

MSC agreed with MCOA on affirming Kern’s conviction. However, MSC reversed MCOA and re-affirmed the conviction of McKinney.


In Curry v. State, 249 So. 2d 414 (Miss. 1971), we said that for constructive possession there must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. Constructive possession may be shown by establishing that the drug involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

In Cunningham v State, 583 So. 2d 960 (Miss. 1991), we said when contraband is found on premises which are not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession. In that situation, the state must show additional incriminating circumstances to justify a finding of constructive possession.

A. Cases where constructive possession was found

In Bell v. State, 830 So. 2d 1285 (Miss. App. 2002), MCOA found Bell constructively possessed the methamphetamine found in her house because of Bell’s proximity to the drugs, Garcia’s statements that Bell was involved with the methamphetamine production and that Bell received the finished product, and testimony that it would be nearly impossible for a resident to miss the strong smell generated by cooking methamphetamine.

In Blissett, we found that an arresting officer’s testimony that the car Blissett was driving had a strong, overpowering odor of unburned marijuana aided in establishing constructive possession through circumstantial evidence showing Blissett knew or should have known of the marijuana’s presence in the trunk of the vehicle.

B. Cases where constructive possession was not found

In Jones, an automobile with Jones and Jawara inside was stopped and searched. The search yielded a jacket containing a bag of marijuana, a briefcase with a revolver inside, a scale, and approximately twelve pounds of marijuana in the trunk. We reversed Jones conviction and noted there is nothing to constructively connect Jones to this marijuana except for his presence in the car.

Jones was not the one spotted in the Amoco station as allegedly having marijuana. Jones was not connected with the jacket in the backseat of the car containing marijuana. Jones did not own or drive the car in question. Jones did not testify at trial. Jawara either denied or did not know of any connection between Jones and the marijuana in the car.

In Ferrell v. State, 649 So. 2d 831 (Miss. 1995), crack cocaine was found in a matchbox between the front seats of the vehicle driven by Ferrell. He had possession of the car for 15 hours. We reversed his conviction, saying as the operator of the car, Ferrell had dominion and control over the contraband discovered in the car. However, he was not the owner of the car; therefore, the State was required to establish additional incriminating circumstances in order to prove constructive possession.

The contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car. The mere fact that the matchbox was only a matter of inches from where the defendant was sitting, rather than in the trunk, does not overcome the fact that the crack was cloaked.

In Martin, we said that the mere presence of drug paraphernalia such as ziplock bags and a pager found at the scene are not probative as to the issue of constructive possession of drugs.

C. This case

In our case, the methamphetamine was found on premises not owned by McKinney. As such, additional incriminating circumstances connecting McKinney with the methamphetamine and/or the precursor chemicals are required to establish constructive possession.

This case is clearly distinguishable from Jones, Ferrell, and Martin. Here, a plethora of additional incriminating facts and circumstances supports McKinney’s awareness of the presence and character of the precursor chemicals and methamphetamine, as well as his intentional and conscious possession of them.

Not only was McKinney present at an operating methamphetamine laboratory which smelled strongly of ether; he was within two feet of methamphetamine oil, surrounded by the necessary precursor chemicals for both creating methamphetamine oil and converting it into crystal methamphetamine, in possession of a Lorcin .38 handgun and within reach of ammunition, and in close proximity to tin foil and coffee filters which tested positive for methamphetamine.

Furthermore, according to the uncontradicted testimony of Jamie Pennington, McKinney was continually at the premises which housed the methamphetamine laboratory, had purchased anhydrous ammonia as late as two days before his arrest, and was involved in the manufacture of crystal methamphetamine. This evidence soars above and beyond mere presence, and conclusively establishes constructive possession.