IN THE SUPREME COURT OF MISSISSIPPI
NO. 2019-CT-00623-SCT
CEPHUS CHANNING TERRY a/k/a CEPHUS C. TERRY a/k/a CEPHUS TERRY
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 11/21/2018 TRIAL JUDGE: HON. MARK SHELDON DUNCAN TRIAL COURT ATTORNEYS: CHRISTOPHER M. POSEY BRIAN BURNS WADE WHITE COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: WILLIAM B. JACOB JOSEPH A. KIERONSKI, JR. ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: META S. COPELAND BARBARA BYRD DISTRICT ATTORNEY: STEVEN KILGORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 01/21/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. Cephus Terry was charged with possession of cocaine with intent to sell, possession
of methamphetamine, possession of Tramadol, and two counts of possession of a firearm by
a felon. He was convicted on all five counts, and the Neshoba County Circuit Court
sentenced him as a habitual offender to serve forty-six years in the custody of the Mississippi Department of Corrections. The trial court denied his motion for a new trial, and the
Mississippi Court of Appeals affirmed. Terry v. State, No. 2019-KA-00623-COA, 2020 WL
772949, at *5 (Miss. Ct. App. Feb. 18, 2020). Terry filed a petition for writ of certiorari,
which we granted.
FACTS AND PROCEDURAL HISTORY
¶2. On August 2, 2017, Deputy Ralph Sciple and five other officers executed a search
warrant on an apartment in Philadelphia, Mississippi. The warrant was issued based on a tip
from a confidential informant that there were drugs in the apartment. Upon arriving at the
apartment, the officers observed a vehicle with an open door and loud music playing. The
door to the apartment was open. Sciple stated that he knocked on the door and yelled,
“sheriff’s office, I’ve got a warrant.” Sciple then pushed the door open and entered the
apartment. Upon entering, Sciple noticed a small child asleep on the couch. Sciple repeated
himself and then saw Cephus Terry and another small child exit the bathroom. Sciple noticed
a white powdery substance on a table, along with sandwich bags, baking soda, and a set of
scales. The items were in plain view. Sciple also found a bag that contained a white
substance on the table. Sciple also found pills on the table and in other places throughout in
the apartment. The items were sent to the Mississippi Forensics Laboratory for
identification. Jamie Johnson of the forensics lab testified that the substances found in the
apartment included caffeine tablets, two dosage units of methamphetamine, 26.917 grams
of cocaine, dimethyl sulfone, and twenty-nine dosage units of Tramadol. Additionally, two
firearms, a .22 caliber pistol and a .45 caliber high-point pistol were found in the apartment
2 in the same room as the drugs.
¶3. Sciple testified that he read Terry his rights and that he then asked Terry how long he
had been living there. Sciple testified that Terry responded, “about a year.” However, Terry
testified at trial that he did not live at the apartment. Terry stated he thought Sciple was
asking how long the kids had lived there. Terry stated that the only reason he was at the
apartment was to pick up his kids, and he was not aware of the drugs or the firearms. Terry
stipulated that he had been charged previously with a felony and that he had pled guilty.
¶4. Kiara Baxstrum, the mother of the children, testified that Terry did not live at the
apartment. Baxstrum testified that she had asked Terry to pick up the children and take them
to their grandfather’s house. Baxstrum testified that all of the drugs and firearms belonged
to her.
¶5. Terry was convicted on all five counts by a Neshoba County jury, and the Neshoba
County Circuit Court sentenced him as a habitual offender under Mississippi Code Section
99-19-81 (Rev. 2015) to serve forty-six years in the custody of the Mississippi Department
of Corrections (MDOC). Terry filed a motion for a new trial, which was denied. Terry then
appealed his conviction and sentence, and the case was assigned to the Court of Appeals,
which affirmed. Terry v. State, No. 2019-KA-00623-COA, 2020 WL 772949, at *5 (Miss.
Ct. App. Feb. 18, 2020). Terry then filed a petition for writ of certiorari, which we granted.
STANDARD OF REVIEW
¶6. When reviewing a challenge to the sufficiency of the evidence, “[a]ll credible
evidence [that] is consistent with guilt must be accepted as true, and the State is given the
3 benefit of all favorable inferences that may be reasonably drawn from the evidence.” Haynes
v. State, 250 So. 3d 1241, 1244 (¶ 6) (Miss. 2018) (alterations in original) (internal quotation
marks omitted) (quoting Burrows v. State, 961 So. 2d 701, 705 (¶ 9) (Miss. 2007)). “Matters
regarding the weight and credibility of the evidence are to be resolved by the jury.” McClain
v. State, 625 So. 2d 774, 778 (Miss. 1993) (citing Neal v. State, 451 So. 2d 743, 758 (Miss.
1984)).
DISCUSSION
¶7. Terry argues that the State failed to prove he constructively possessed the drugs and
firearms. Terry further argues that the court erred by improperly instructing the jury
regarding constructive possession.
I. The State proved every element of the crime beyond a reasonable doubt.
¶8. Terry argues that insufficient evidence proved that he had constructively possessed
the charged contraband. “Possession of a controlled substance may be actual or constructive,
individual or joint.” Haynes, 250 So. 3d at 1244 (¶ 7) (internal quotation marks omitted)
(quoting Dixon v. State, 953 So. 2d 1108, 1112 (¶ 9) (Miss. 2007)). Additionally, the Court
has stated,
What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of “possession” is a question which is not susceptible to a specific rule. However, 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 [the defendant’s] dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
4 Haynes, 250 So. 3d at 1244-45 (¶ 8) (alterations in original) (quoting Hudson v. State, 30
So. 3d 1199, 1203 (¶ 10) (Miss. 2010)).
¶9. Additionally,
this Court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.
Dixon v. State, 953 So. 2d 1108, 1113 (¶ 11) (Miss. 2007).
¶10. Terry argues that the State failed to show “additional incriminating circumstances”;
however, the State did introduce testimony through Sciple that Terry stated that he lived in
the apartment. It is true that both Terry and Baxstrum disputed the testimony, but that merely
created an issue of fact. “Matters regarding the weight and credibility of the evidence are to
be resolved by the jury.” McClain v. State, 625 So. 2d 774, 778 (Miss. 1993) (citing Neal
v. State, 451 So. 2d 743, 758 (Miss. 1984)).
¶11. The Court also has held,
The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So. 2d 608, 611 (Miss. 1974).
Powell v. State, 355 So. 2d 1378, 1379 (Miss. 1978).
5 ¶12. The language in Powell was interpreted by the Court of Appeals: “if ownership or
possession of the vehicle does not create a presumption of constructive possession because
that ownership or possession was not exclusive, then the jury must find incriminating
circumstances in addition to the defendant’s non-exclusive ownership or possession.”
Mosley v. State, 89 So. 3d 41, 49 (Miss. Ct. App. 2011). While it is true that simply being
in nonexclusive possession of the residence is insufficient to prove constructive possession,
the drugs in the case sub judice were in plain view in a common area of the residence.
¶13. In Ferrell v. State, the driver of a vehicle was charged with constructive possession
of crack. Ferrell v. State, 649 So. 2d 831, 835 (Miss. 1995). However, on appeal the Court
stated,
[t]he State claims that the location of the matchbox next to the driver’s seat and the 15 hours which Ferrell had possession of the car amounted to additional incriminating circumstances. These contentions are incorrect. Just as in Fultz [v. State, 573 So. 2d 689, 691 (Miss. 1990)], 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. Cunningham v. State, 583 So. 2d 960, 962 (Miss. 1991).
Id. at 835 (emphasis added).
¶14. Unlike the drugs in Ferrell, the drugs in the case sub judice were in plain view, and
Terry was the only adult in the apartment at the time. The drugs were not “cloaked” in any
way. Again, convictions for constructive possession have been affirmed when,
the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the
6 midst of items implicating his participation in the processing of the substance.
¶15. The jury heard evidence that Terry lived in the apartment. At the time the search
warrant was executed, Terry was exerting control over the premises. Because the drugs were
in plain view, Terry knew or should have known of the presence of the substance.
Accordingly, considering the evidence in the light most favorable to the State, sufficient
evidence supported the jury’s verdict.
II. The trial judge did not err by improperly instructing the jury regarding the issue of constructive possession.
¶16. Terry argues that the trial judge erred by failing to instruct the jury that proximity
alone was insufficient to prove constructive possession and that “other incriminating
circumstances” were required to be proved beyond a reasonable doubt by the State.
However, Terry only objected to the jury instructions based on the rebuttable presumption
of control in jury instruction S-6, not based on proximity. Additionally, Terry agreed to
remove instruction D-9, which instructed the jury on the “other incriminating circumstances.”
“We do not consider matters on appeal that were not placed first before the trial judge for
decision. A trial judge cannot be put in error on a matter which was not placed before him
for decision.” Duplantis v. State, 708 So. 2d 1327, 1339 (¶ 49) (Miss. 1998) (citing Holland
v. State, 587 So. 2d 848, 868 (Miss. 1991)). While Terry did object to jury instruction S-6,
and the State agreed to a modification, the objection was based on the rebuttable
presumption. Terry did not base his objection to the instruction on proximity. “A specific
objection on a specific ground stated to the court does not warrant on appeal a reversal of a
7 case on another and different ground of objection.” Stringer v. State, 279 So. 2d 156, 158
(Miss. 1973) (quoting Peters v. State, 158 Miss. 530, 130 So. 695, 695 (1930)).
Accordingly, the jury-instruction issue is procedurally barred on appeal.
¶17. Notwithstanding the procedural bar, the jury instructions did inform the jury that a
person “must be aware of the nature and quality of the item” and that a person must be
“intentionally and consciously in possession of it” to be convicted of constructive possession.
Therefore, the instructions did inform the jury that more than proximity was required for
Terry to be convicted of constructive possession.
CONCLUSION
¶18. Because the jury heard evidence that the drugs were in plain view and that Terry lived
in the apartment, sufficient evidence supported the jury’s verdict. Additionally, Terry’s
argument that the trial judge erred by improperly instructing the jury as to the issue of
constructive possession is subject to a procedural bar. Accordingly, we affirm the judgments
of the Court of Appeals and of the Neshoba County Circuit Court.
¶19. AFFIRMED.
RANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ., CONCUR. KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., AND ISHEE, J. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND ISHEE, J.
KITCHENS, PRESIDING JUSTICE, DISSENTING:
¶20. The majority finds that “[b]ecause the jury heard evidence that the drugs were in plain
view and that Terry lived in the apartment, sufficient evidence supported the jury’s verdict.”
Maj. Op. ¶ 18. I disagree because the State did not prove that Terry exercised control over
8 the premises and the contraband. Additionally, I disagree with the majority’s finding that,
notwithstanding the procedural bar, “the instructions did inform the jury that more than
proximity was required for Terry to be convicted of constructive possession.” Maj. Op. ¶ 17.
Therefore, I respectfully dissent.
¶21. This Court has held that
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 [the defendant’s] dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
Haynes v. State, 250 So. 3d 1241, 1245 (Miss. 2018) (alterations in original) (quoting
Hudson v. State, 30 So. 3d 1199, 1203 (Miss. 2010)). This Court treats constructive
possession differently depending on whether the defendant is the owner of the property.
Specifically, this Court has said:
one who is the owner in possession of the premises . . . is presumed to be in constructive possession of the articles found in or on the property possessed. The presumption of a constructive possession, however, is a rebuttable presumption and must give way to the facts proven. Moreover, the rebuttable presumption of constructive possession does not relieve the State of the burden to establish defendant’s guilt as required by law and the defendant is presumed to be innocent until this is done.
Dixon v. State, 953 So. 2d 1108, 1113 (Miss. 2007) (quoting Hamburg v. State, 248 So. 2d
430, 432 (Miss. 1971)). If the defendant does not own the premises, “[t]his Court has found
the evidence to be sufficient when the defendant . . . was in control of the premises where the
controlled substance was found and due to the circumstances at the time, knew or should
have known that the substance was on the premises.” Id. at 1114. Simply, when the
9 defendant does not own the premises, as in this case, proof must be adduced of the
defendant’s control of the premises and knowledge of the contraband. Id.
¶22. Here, the State did not adduce substantial evidence that Terry was an owner or an
occupant of the apartment. The only evidence the State presented to establish Terry’s
ownership or residency was Deputy Sheriff Ralph Sciple’s disputed testimony that Terry said
he had lived at the apartment for a year. Yet no proof corroborated Sciple’s testimony that
Terry lived in the apartment, nor was any evidence presented that showed that Terry had paid
rent, utility bills, or that he had any personal items in the apartment. Such evidence, if any
existed, easily could have been discovered by the State. Because the State failed to prove that
Terry was an owner or resident of the apartment, the presumption does not apply.
Accordingly, the State was required to produce “additional incriminating facts . . .
connect[ing] the accused with the contraband.” Powell v. State, 355 So. 2d 1378, 1379 (Miss.
1978). It was incumbent on the State to “sufficiently tie[]” Terry to the contraband by either
showing that Terry was “exerting control over the premises when he knew or should have
known of the presence of the [contraband]” or showing that Terry was “in the midst of items
implicating his participation in the processing of the substance.” Dixon, 953 So. 2d at 1113.
There was no evidence “implicating [Terry’s] participation in the processing of the
substance.” Id.
¶23. The majority finds that the State provided sufficient evidence to support the jury’s
verdict because the drugs here “were in plain view, and Terry was the only adult in the
apartment at the time.” Maj. Op. ¶ 14. But the standard for constructive possession requires
10 a defendant to be “aware of the presence and character of the particular substance” and to
be “intentionally and consciously in possession of it.” Haynes, 250 So. 3d at 1245 (quoting
Hudson, 30 So. 3d at 1203). Knowing that an item is present and exercising dominion and
control over it are two different things, both of which are required to establish constructive
possession. While Terry may have seen the contraband in plain view, there is no evidence
proving that he exerted control over it.
¶24. The majority seems to equate “Terry[’s being] the only adult in the apartment at the
time[,]” maj. Op. ¶ 14, with “Terry[’s] . . . exerting control over the premises.” Maj. Op. ¶
15. But Terry’s being the only adult in the apartment proves his proximity only, not dominion
and control. This Court repeatedly has declared that proximity alone “is not adequate in the
absence of other incriminating circumstances.” Haynes, 250 So. 3d at 1245 (quoting
Hudson, 30 So. 3d at 1203); see also Kerns v. State, 923 So. 2d 196, 200 (Miss. 2005)
(“[W]hen 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.”
(alterations in original) (internal quotation marks omitted) (quoting Cunningham v. State,
583 So. 2d 960, 962 (Miss. 1991))). “[W]hen contraband is found on premises, there must
be evidence, in addition to physical proximity, showing the defendant consciously exercised
control over the contraband, and, absent this evidence, a finding of constructive possession
cannot be sustained.” Kerns, 923 So. 2d at 200 (emphasis added) (internal quotation marks
omitted) (quoting Cunningham, 583 So. 2d at 962). Here, the State relied solely on Terry’s
having been the only adult in proximity to the drugs. During closing argument, the
11 prosecuting attorney stated the following:
Who’s exercising dominion and control over this apartment when Ralph Sciple comes through that door? Cephus Terry is. He’s the only adult in there. He’s the only adult in close proximity to all these items. He’s in the same room as all these items. All right? He’s the only one exercising dominion and control over these items.
Additionally, the State’s witness, Deputy Sciple, on cross-examination, agreed that
ownership of the contraband was based on“whoever was there at that moment” and testified
that he did not attempt to verify who owned the property. While the State’s “theory may be
correct, . . . there was not additional incriminating evidence beyond his presence in the room
to support constructive possession[.]” Gavin v. State, 785 So. 2d 1088, 1094 (Miss. Ct. App.
2001); see also McGlothin v. State, 238 So. 3d 1, 6 (Miss. Ct. App. 2017).
¶25. In Naylor v. State, 730 So. 2d 561, 566 (Miss. 1998), this Court found that the State
had failed to prove constructive possession because the only evidence, in addition to the
defendant’s proximity to the drugs, was that the defendant’s “wallet was found in a closet”
and that the defendant “was in possession of $748.00 in cash.” By comparison, far less
evidence was presented here because none of Terry’s personal items were found in the
apartment—not a wallet, not a toothbrush, and none of his clothing. Kiara Baxstrum testified
that the only people who lived at the apartment were she and her kids. Both Baxstrum and
Terry testified that Terry had no personal belongings at the apartment. That testimony was
not contradicted. Baxstrum testified also that everything in the apartment, including the
contraband at issue, belonged to her and her alone. Baxstrum’s testimony in this regard was
reinforced by Deputy Sciple’s rebuttal testimony. Sciple testified that “[Baxstrum] came to
12 [his] office and said that the two pistols were hers, and she wanted them back.” Mississippi
law is clear: proximity to contraband is not enough to sustain a conviction for constructive
possession in the absence of other incriminating evidence. Haynes, 250 So. 3d at 1245
(“[M]ere physical proximity to the contraband does not, in itself, show constructive
possession . . . . [T]he State [is] required to establish additional incriminating circumstances
in order to prove constructive possession.” (second, third, and fourth alterations in original)
(internal quotation mark omitted) (quoting Ferrell v. State, 649 So. 2d 831, 834 (Miss.
1995))); Kerns, 923 So. 2d at 200 (“[T]he state must show additional incriminating
circumstances to justify a finding of constructive possession.” (internal quotation marks
omitted) (quoting Fultz v. State, 573 So. 2d 689, 690 (Miss. 1990))). Here, there is none.
¶26. “In reviewing a challenge to the sufficiency of the evidence, the critical inquiry is
‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt.’” Parish v. State, 176 So. 3d 781, 785 (Miss. 2015) (quoting Bush v. State, 895 So.
2d 836, 843 (Miss. 2005), abrogated on other grounds by Little v. State, 233 So. 3d 288
(Miss. 2017)). “The only question before us on a challenge to the sufficiency of the evidence
is whether the jurors could have found the essential elements of the charge beyond a
reasonable doubt after viewing the evidence in the light most favorable to the prosecution.”
Haynes, 250 So. 3d at 1246. Even considering the evidence in the light most favorable to the
State, the evidence here is insufficient to prove the necessary element of “intentionally and
consciously in possession” of the contraband. Id. at 1245 (quoting Hudson, 30 So. 3d at
13 1203). At best, the State’s evidence places Terry in proximity to the contraband.
¶27. I disagree also with the majority’s assessment of the sufficiency of the jury
instructions. Although Terry failed to preserve this issue for appeal, the majority found that,
notwithstanding the procedural bar, the jury was informed “that more than proximity was
required for Terry to be convicted of constructive possession.” Maj. Op. ¶ 17. With respect,
I disagree. The instructions do not inform the jury fully and directly that proximity alone is
insufficient to sustain a constructive possession conviction. See Richardson v. Norfolk S. Ry.
Co., 923 So. 2d 1002, 1010 (Miss. 2006) (“When we review a claim of trial court error in
granting or denying jury instructions, we are required to read and consider all of the jury
instructions together as a whole.” (citing Burr v. Miss. Baptist Med. Ctr., 909 So. 2d 721,
726 (Miss. 2005)). The State’s case relied heavily on Terry’s having been the only adult in
the apartment and his proximity to the contraband. The jury should have been told explicitly
what this Court consistently has held regarding proximity in constructive possession cases
because it goes directly to the State’s theory of the case. See Young v. Guild, 7 So. 3d 251,
259 (Miss. 2009) (“On appellate review of the trial court’s grant or denial of a proposed jury
instruction, our primary concern is that ‘the jury was fairly instructed and that each party’s
proof-grounded theory of the case was placed before it.’” (quoting Splain v. Hines, 609 So.
2d 1234, 1239 (Miss. 1992))); see also Haynes, 250 So. 3d at 1245 (“Proximity is usually
an essential element, but by itself is not adequate in the absence of other incriminating
circumstances.” (quoting Hudson, 30 So. 3d at 1203)). Additionally, the State’s evidence is
entirely circumstantial because no confession or eyewitness testimony established that Terry
14 exercised control over the contraband. This Court has held that, when a case lacks direct
evidence, a defendant is entitled to a circumstantial evidence instruction that requires the jury
to “find that each element of the offense has been established beyond a reasonable doubt and
to the exclusion of every reasonable hypothesis consistent with innocence.” Mack v. State,
481 So. 2d 793, 794 (Miss. 1985) (citing Keys v. State, 478 So. 2d 266 (Miss. 1985)); see
also Moore v. State, 247 So. 3d 1198, 1203 (Miss. 2018) (“[w]here the State ‘is without a
confession and wholly without eyewitness testimony to the gravamen of the offense charged,’
the defendant is entitled to an instruction requiring the jury to ‘exclude every other
reasonable hypothesis other than that of guilt before a conviction can be had.’” (internal
quotation marks omitted) (quoting Burleson v. State, 166 So. 3d 499, 509 (Miss. 2015))).
Terry did present a reasonable hypothesis that was consistent with his innocence, and it was
not overcome by proof of his guilt beyond a reasonable doubt and to the exclusion of that
hypothesis. Therefore, I would find that, notwithstanding the procedural bar, the jury was not
adequately informed of the applicable law and that this case should be reversed. See
Richardson, 923 So. 2d at 1011 (“[W]e are required to find reversible error if the instructions
in any given case, when considered together as a whole, do not fairly and adequately instruct
the jury.”).
¶28. When the entirety of the evidence is considered in the light most favorable to the
prosecution, the only evidence the State presented is Terry’s proximity to the contraband,
which alone is not sufficient to sustain a conviction for constructive possession. Regardless
of whether the contraband was in plain view, no evidence was presented that demonstrated
15 that Terry exerted control over the contraband. There must be evidence that demonstrates that
the defendant exercised control of the contraband and that the defendant had knowledge or
should have had knowledge of the contraband. I cannot believe that a rational juror who had
been adequately informed that proximity to contraband alone is insufficient to convict would
have voted for a guilty verdict. Therefore, I would reverse and render.
KING, P.J., AND ISHEE, J., JOIN THIS OPINION.
KING, PRESIDING JUSTICE, DISSENTING:
¶29. I join Presiding Justice Kitchens’s well-reasoned dissent. I also believe that additional
facts demonstrate that the State failed to prove that Terry had knowledge of the presence and
character of the drugs.
¶30. “It is elementary that the burden of proof is on the State to establish ownership . . . .”
Johnson v. State, 81 So. 3d 1020, 1024 (Miss. 2011). As pointed out by Presiding Justice
Kitchens in his dissent, the State offered no competent evidence that Terry lived at the
apartment. It produced no lease, no evidence that his belongings were at the apartment, no
mail to him addressed to the apartment, nothing. This Court has held that a failure by the
police to investigate ownership amounts to a failure to prove any such ownership. Id. at
1024-25; Fultz v. State, 573 So. 2d 689, 691 (Miss. 1990). We should likewise find a lack
of ownership of the apartment by Terry in this case.
¶31. To prove knowledge and intent in a possession case, the State must prove that Terry
knew the drugs were present, knew that the drugs were illegal drugs, and intended to possess
them. Hudson v. State, 30 So. 3d 1199, 1206 (Miss. 2010). The State adduced no evidence
16 that Terry knew the drugs (or guns) were present, nor did it adduce any evidence that Terry
knew the substances at issue were illegal drugs. The majority emphasizes that the drugs and
guns were in plain view. Yet, the photographs introduced into evidence show an extremely
cluttered apartment with extremely cluttered surfaces. The drugs and guns were all found
amongst trash, toys, kitchen utensils, and multiple other objects. One spattering of white
powder was next to a box of (white powder) baking soda. Another spattering of white
powder was found next to a container of (white powder) infant formula. More drugs were
cloaked within various bags. Some pills were found on a cluttered photo frame. More pills
were located on a plate amongst clutter. “[T]he fact that the [drugs] could have been seen
does not establish that [Terry] did, in fact, see [them].” Hudson, 30 So. 3d at 1206-07.
Indeed, “[i]t is entirely possible that . . . [drugs were] visible, but [Terry] never saw [them]
or knew [they were] there. That possibility is tantamount to reasonable doubt.” Id. at 1207;
see also Ferrell v. State, 649 So. 2d 831, 835 (Miss. 1995) (where drugs were cloaked by a
matchbox, constructive possession was not proven: “No drug paraphernalia was found in the
car, Ferrell was not on drugs at the time he was arrested, and his fingerprints were not found
on the matchbox. He was merely seated in the car next to what by all accounts appeared to
be an ordinary matchbox.”). The State introduced no evidence that Terry knew of the
presence of the drugs or guns.
¶32. The State likewise did not adduce any evidence that Terry knew the character of the
drugs. White powder was found next to legal items (baking soda and infant formula) that
consist of white powder. The pills could have been any number of legal medicines. These
17 failures by the State, in addition to those described in Presiding Justice Kitchens’s dissent,
render the evidence against Terry insufficient to prove constructive possession. I would
therefore reverse and render Terry’s convictions.
KITCHENS, P.J., AND ISHEE, J., JOIN THIS OPINION.