Johnson v. State , 2011 Miss. LEXIS 554 ( 2011 )

ON WRIT OF CERTIORARI

CHANDLER, Justice,

for the Court:

¶ 1. On February 27, 2009, Arvin Phillip Johnson was convicted of possession of cocaine and sentenced to sixteen years in the custody of the Mississippi Department of Corrections, with nine years suspended, five years of post-release supervision, and a $3,000 fine.¹ The Court of Appeals affirmed Johnson’s conviction and sentence. Johnson v. State, 49 So.3d 130, 138 (Miss.Ct.App.2010). Johnson petitioned this Court for a writ of certiorari concerning two issues: (1) whether the State presented sufficient evidence to sustain Johnson’s conviction of cocaine possession; and (2) whether the agents’ search of a nearby vehicle violated Johnson’s right to be free from unreasonable searches and seizures within the Fourth and Fourteenth Amendments to the United States Constitution and Sections 14 and 23 of the Mississippi Constitution.

¶2. This Court has granted Johnson’s certiorari petition, and we find Johnson’s first issue to be dispositive. The State failed to prove beyond a reasonable doubt that Johnson was in constructive possession of the cocaine found in the nearby vehicle. Therefore, the circuit court erred by denying Johnson’s motion for judgment notwithstanding the verdict (JNOV). Finding that proximity alone is insufficient to show constructive possession, and that the State presented no additional incriminating circumstances, we reverse the Court of Appeals’ judgment and that of the trial court and render judgment in Johnson’s favor.

FACTS

¶ 3. On December 5, 2006, at approximately 6:25 p.m., agents from the Mississippi Bureau of Narcotics (MBN) were in Marion County, Mississippi, conducting a drug buy/bust operation. The target of the operation was “Teddy,” who allegedly was selling drugs out of a small, locally owned convenience store located on Highway 13 South. The MBN agents used a wired, confidential informant to make contact with Teddy to buy some marijuana using marked “buy” money. There were two MBN teams: one located north of the store and one located south of the store.² When the informant arrived at the store to purchase drugs from Teddy, Teddy called a man named Walter to bring the marijuana to the store. Walter arrived with the drugs shortly thereafter, and Teddy sold the drugs to the informant. The informant then left the store with the marijuana. After Walter drove away with half of the marked buy money, one of the MBN teams left the scene to arrest him.

¶ 4. When the other MBN agents went to the store to arrest Teddy, they saw a car parked under the store’s awning between the gas pumps and the front door of the convenience store. The car had not been at the station when Teddy had sold the drugs to the informant just a few minutes prior. The agents also saw an unknown individual, later identified as Johnson, near the car, talking to Teddy. To secure the scene, the agents handcuffed Johnson and Teddy and had them lie face down on the ground. Johnson was not under arrest at the time. The agents conducted a pat-down search of both men, but found no incriminating evidence or weapons. After conducting a search of the nearby vehicle, the agents discovered a white, rock-like substance, later confirmed to be .7 gram of cocaine, above the car’s driver-side visor.

¶ 5. Johnson later was indicted for possession of a controlled substance (cocaine) in violation of Mississippi Code Section 41-29-139(c) (Rev.2009). Johnson was charged as a subsequent offender under Section 41-29-147 based on his previous conviction for possession of a controlled substance.³ During his trial, Johnson filed a motion to suppress the evidence of the cocaine, claiming the search was illegal. The circuit judge denied the motion, and Johnson was found guilty of cocaine possession. Johnson filed a motion for (judgment notwithstanding the verdict) or, in the alternative, a new trial, on the basis that the State had failed to present sufficient evidence to establish the elements of constructive possession. The circuit court denied the motion, and the Court of Appeals affirmed the judgment of the circuit court. Aggrieved, Johnson petitioned this Court for a writ of certiorari, which we granted.

STANDARD OF REVIEW

¶ 6. A motion for JNOV challenges the legal sufficiency of the evidence. Bush v. State, 895 So.2d 836, 843 (Miss.2005). When examining the sufficiency of evidence in the grant or denial of a motion for directed verdict or for judgment notwithstanding the verdict, it is necessary to determine whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Id. (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). If any facts or inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.” Bush, 895 So.2d. at 843 (quoting Edwards v. State, 469 So.2d 68, 70 (Miss.1985)).

DISCUSSION

¶ 7. “[Possession of a controlled substance may be actual or constructive. ...” Berry v. State, 652 So.2d 745, 748 (Miss.1995) (citing Wolf v. State, 260 So.2d 425, 432 (Miss.1972)). In Curry v. State, 249 So.2d 414, 416 (Miss.1971), this Court stated that, in order to establish 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.”

¶ 8. Because Johnson did not have actual possession of the cocaine, Johnson was found guilty of constructive possession; therefore, he asserts that the State failed to prove both elements for constructive possession. “Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.” Curry, 249 So.2d at 416. “Constructive possession may be shown by establishing that the drug involved was subject to [the defendant’s] dominion or control.” Hudson v. State, 30 So.3d 1199, 1204 (Miss.2010). This Court has held that “absent some competent evidence connecting him with the contraband,” the defendant is entitled to acquittal. Powell v. State, 355 So.2d 1378, 1379 (Miss.1978) (citations omitted).

¶ 9. The Court of Appeals found that the State had presented sufficient incriminating facts to support constructive possession. Johnson, 49 So.3d at 137. We respectfully disagree.

¶ 10. It is undisputed that the car in which the cocaine was found was not at the gas station at the time the informant bought the marijuana from Teddy. Neither was Johnson at the gas station at the time of the drug exchange. Both the vehicle and Johnson arrived at the gas station within the short time between the drug exchange and the MBN agents’ arrival. However, the State presented no evidence showing that Johnson had driven the car to the gas station or that he had been a passenger of the car. The Court of Appeals recognized that investigation had determined that Johnson was not the owner of the vehicle and that no actual evidence existed regarding who owned the car. Johnson, 49 So.3d at 137.

¶ 11. The Court of Appeals found that, because Johnson had raised no objection to the testimony regarding ownership of the car, the jury could have drawn a reasonable inference as to Johnson’s relation to the owner of the vehicle. Id. However, the State has the burden of establishing constructive possession. Sisk v. State, 290 So.2d 608, 610 (Miss.1974). The State solely used Agent Jonathan Harless’s testimony to establish Johnson’s connection to the cocaine in the vehicle. When asked if the vehicle was registered in Johnson’s name, Harless testified that it was not. Harless’s testimony also revealed that no legal documents indicated Johnson was the owner of the car. Further, Harless could not recall exactly who the car belonged to or who actually picked up the car from the scene. When asked about the ownership of the car, he stated, “I believe going from memory, and I could be incorrect, I believe the owner was Mr. Johnson’s mother.” He also stated that he was unsure whether Johnson’s father or another family member took custody of the vehicle.

¶ 12. The dissent relies on Dietz v. Consolidated Oil & Gas, Inc., 643 F.2d 1088, 1094 (5th Cir.1981) and would affirm the trial court. In that case, which concerned a dispute over mineral rights, the plaintiff testified to his lost profits based on his recollection. Also, the record in that case contained information which could have been used to impeach the plaintiffs testimony based on his recollection. Id. at 1093. Dietz is a civil case in which the plaintiff had merely to show, more likely than not, that the defendant was liable. The State in the present case was required to prove guilt beyond a reasonable doubt, and this Court finds that Harless’s testimony does not meet that burden. In the present case, the State did not provide any competent evidence as to the owner of the car or who moved the car from the scene. Black’s Law Dictionary defines speculation as “[t]he act or practice of theorizing about matters over which there is no certain knowledge.” Black’s Law Dictionary 1435 (8th ed. 2004). Harless admitted that his testimony might be incorrect. In fact, whenever he was asked if the police ever discovered the owner of the car, he replied, “I do not recall.” Harless’s testimony also was vague as to who took custody of the car after Teddy’s arrest. He stated, “I’m unsure if it was your client’s father or one of his family members arrived I believe to take custody of the vehicle.” His testimony is not supported by any other evidence found in the record.

¶ 13. It is elementary that the burden of proof is on the State to establish ownership of the automobile. Johnson’s failure to object to Harless’s testimony cannot be used to support an inference that Johnson was affiliated with the car. The State failed to present sufficient evidence as to the ownership of the car or who actually removed the car after Teddy’s arrest.

¶ 14. In addition to proving Johnson had dominion and control over the car, the State also is required to show additional incriminating circumstances. Specifically, the State must prove that Johnson was intentionally and consciously in possession of the cocaine.

¶ 15. This Court has deemed evidence insufficient in cases where the State presented far more evidence than in the present case. In Fultz v. State, 573 So.2d 689 (Miss.1990), the defendant was convicted on the grounds of constructive possession with the intent to sell marijuana. Id. The defendant was pulled over for suspicious driving and was the only occupant of the car. Id. The police later discovered that the car actually belonged to the defendant’s sister. Id. at 690. After the defendant was arrested, the police conducted an inventory search and found marijuana in the trunk of the car. Id. Not only did the defendant have marijuana on him at the time, but at the time of the arrest, he also admitted to having smoked marijuana. Id. This Court ultimately held that the State had failed to present sufficient evidence to establish constructive possession. In reversing Fultz’s conviction, this Court focused on the police’s lack of effort to investigate further:

Evidence of such a questionable quality cannot take the place of good police work. We cannot help but wonder why the police department failed to dust the trunk for fingerprints or for that matter the bags themselves. Also why didn’t they try to determine if the defendant owned the duffel bag or any of the other items in the trunk. This could have bolstered their case considerably. It also would have been helpful to question the owner of the car. In light of this poor police work, and the absence of any evidence connecting the defendant with the trunk or any of its contents, we have no choice but to reverse this conviction and discharge the defendant.

Id. at 691.

¶ 16. Similar to the defendant in Fultz, Johnson was not the owner of the car. In fact, no one ever saw Johnson in the car or driving the car. However, the State and the Court of Appeals referred to Johnson as the driver of the car, although no evidence was presented to that effect. Johnson, 49 So.3d at 137. The police did not determine who actually owned the car or who had arrived to recover the car from the crime scene. Even if Johnson had been driving the car, like the defendant in Fultz, the white plastic bag that contained the cocaine was above the sun visor, which was in the upright position. The police did not find Johnson’s fingerprints on the bag containing the cocaine. In fact, the police did not even check the bag for fingerprints. When the agents performed a pat-down on Johnson, they found no incriminating evidence or weapons. This Court reversed Fultz’s conviction based on lack of sufficient evidence, and we find that Johnson’s conviction must be reversed for the same reason.

¶ 17. Also, in Ferrell v. State, 649 So.2d 831, 835 (Miss.1995), this Court held the State had failed to prove constructive possession of drugs found in a matchbox next to the driver seat of the defendant’s car. Ferrell, 649 So.2d at 835. The defendant did not own the vehicle, but had been in possession of the vehicle for fifteen hours. Id. This Court reversed Ferrell’s conviction because there were no additional incriminating circumstances. Id. “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.” Id. This Court cited Fultz to support its reasoning, stating that:

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.

Id. (citing Cunningham v. State, 583 So.2d 960, 962 (Miss.1991)).

¶ 18. This Court’s decisions in Fultz and Ferrell further support our decision to reverse Johnson’s conviction and sentence based on the State’s failure to prove constructive possession. As in Ferrell, the cocaine found in the vehicle near Johnson would not have been apparent to a person riding in the car. It was found in a white plastic bag above the driver-seat sun visor in the upright position. Agent Harless admitted he was not sure whether Johnson had ever handled the bag. Also, it was never determined whether Johnson had been in the car at any time. Therefore, the State presented no incriminating circumstances to support the inference that Johnson constructively possessed the cocaine found in the nearby vehicle.

¶ 19. The dissent attempts to distinguish Fultz and Ferrell from the present case, based on the fact that the drugs were located above the car’s sun visor. However, as in Fultz and Ferrell, the cocaine would not have been reasonably apparent to someone driving the car, just as contraband located in a matchbox or duffle bag would not have been reasonably apparent. The incident occurred at approximately 6:25 p.m. The sun visor was in the upright position. Based on the evidence before us, we agree with the finding of our Court of Appeals that Johnson was not the owner of the car. Therefore, if Johnson did borrow the car from a relative, the State still has to prove beyond a reasonable doubt that Johnson knew the cocaine was above the sun visor and that he intended to possess the cocaine. The State presented no evidence to show Johnson intentionally and consciously possessed the contraband hidden above the car visor.

¶ 20. Additionally, the Court of Appeals mistakenly used Johnson’s relationship with Teddy to support its finding that the State had presented sufficient evidence for a finding of constructive possession. Johnson, 49 So.3d at 137. “Mere presence does not indicate participation in the purchase. Nor does it support an inference of dominion and control.” Berry v. State, 652 So.2d 745, 748 (Miss.1995). The Court of Appeals’ reliance on Johnson’s relationship with Teddy “is a prime example of a person being held guilty by association. Association will not suffice to satisfy the requirements” for constructive possession. Vickery v. State, 535 So.2d 1371,1379 (Miss.1988).

¶ 21. The State did not present any evidence that Johnson knew Teddy or knew that Teddy was a drug dealer. More importantly, Johnson was charged with constructive possession of cocaine, and Teddy was under investigation for the sale of marijuana. The fact that Johnson had a conversation with Teddy does not prove that they knew each other in advance or planned to engage in a drug transaction. See, e.g., Ybarra v. Illinois, 444 U.S. 85, 91, 100 S.Ct. 338, 342, 62 L.Ed.2d 238 (1979).

¶ 22. The State was required to present incriminating circumstances in addition to Johnson’s proximity to the vehicle. The State has the burden to prove the defendant was aware of the cocaine and intentionally possessed it. Hudson, 30 So.3d at 1204. “[V]iewing the evidence in the light most favorable to the prosecution” as required by our standard of review, we do not agree that a rational trier of fact could find that the elements of constructive possession existed based on this evidence alone. Bush, 895 So.2d. at 843. Therefore, we reverse Johnson’s conviction and render a judgment of acquittal.

CONCLUSION

¶ 23. Johnson’s location near the vehicle, absent “additional incriminating circumstances,” is not sufficient to sustain his conviction of constructive possession. Fultz, 573 So.2d at 690. Because the State failed to present sufficient evidence to support a finding of constructive possession, we reverse the Court of Appeals’ and the trial court’s decisions and render judgment in favor of Johnson.

¶ 24. REVERSED AND RENDERED.

WALLER, C.J., DICKINSON, P.J., KITCHENS AND PIERCE, JJ., CONCUR. CARLSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH AND LAMAR, JJ., KING, J„ NOT PARTICIPATING.

1 . As part of his sentence, Johnson also was required to participate in alcohol/drug testing and an intensive program within the Mississippi Department of Corrections.

2 . An MBN agent also was assigned to follow the confidential informant.

3 . Johnson was convicted of possession of a controlled substance in the Circuit Court of Marion County and was sentenced to serve eight years in the Mississippi Department of Corrections.