IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2019-KA-00623-COA

CEPHUS CHANNING TERRY A/K/A CEPHUS C. TERRY A/K/A CEPHUS TERRY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/21/2018 TRIAL JUDGE: HON. MARK SHELDON DUNCAN COURT FROM W HICH APPEALED: NESHOBA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W I LLIAM B. JACOB ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY JR. DISTRICT ATTORNEY: STEVEN SIMEON KILGORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/18/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. BARNES, C.J., FOR THE COURT: ¶1. Cephus Terry was charged with possession of cocaine with intent t o sell, possession of m e tham

phetam ine, possession of Tram adol, a nd two counts of possession of a f i rearm by

a f e lon. He was c onvicted on all f ive counts by a N eshoba County Circuit Court jury , and the Neshoba County Circuit Court sentenced him to serve f orty -six y ears in t he custody of the Mississippi Departm ent o f Corrections (MDOC) as a habitual of f ender. The court denied his m otion f

or a new trial, and Terry appeals, arguing that there was insuf f icient evidence to support his convictions and that the j u r y w a s not properly instructed as to the elem ents ofconstructive possession. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Based on a t ip b y a c onf idential i nf

o rm ant ( CI) r e g a r d i n g i llicit drug activity , the Neshoba C ounty Sherif

f ’ s Departm ent executed a search warrant at an apartm ent on Ivy Street in Philadelphia, Mississippi, on August 2, 2017. W hen the c hief i nvestigator, Ralph Sciple, and deputies arrived at the apartm e nt, they o bserved a c ar p arked in the driveway , still running. Law enf

o rcem ent went to the door of the apartm e nt, whic h w a s a j ar. Sciple announced hims e l f

, s t a t e d t hat he had a warrant, and entered the a partm e n t. A child was asleep on a couch; Terry and another child were com i ng o ut of a bathroom

. The children

were a pproxim ately eight and t en y ears of age, and Terry was the only adult in the a partm ent. Terry told Sciple that he had been living in the apartm ent f or about a y ear. ¶3. Sciple observed a white, powdery substance on a kitchen table along with sandwich bags, a box of baking soda, and a set o f digital scales. There was a lso a “Cricket W ireless” bag containing a white residue in plain view o n the table. A white, powdery substance was f ound in a s andwich-bag box, a nd there was f o i l that appeared to have c ontained tablets. Pills were f

ound on the table and on a nearby wooden box. Star-shaped pills were f ound on

a c o f f ee table. Also in plain view were two pistols on a t elevision stand—a .22-caliber Ruger and a .40-caliber High-Point. Am m unition was f

ound, as well as two gun holsters. All of the item s were sent to a crim e laboratory f or analy sis. ¶4. Terry was indicted f o r (1) Count O ne: p ossession of cocaine with intent to sell, with

a f irearm enhancem ent; (2) Cou n t T w o : p ossession o f m etham phetam i ne, with a f

irearm

2enhancem ent; (3) Count T hree: p o ssession of f irearm by a f

e lon; (4) Count Four: p ossession of f irearm by a f

elon; and (5) Count Five: possession of Tram adol. A jury trial was held on Novem ber 13, 2018. ¶5. Sciple testif

i ed t hat t he CI had been a t the apartm ent o n I v y S t r e e t o n the night of Augus t 1 , 2 0 1 7 , and that the C I had seen cocaine and m e tham p hetam ine at the residence. The C I inf

orm ed S ciple of t he drug activity , and Sciple prom ptly requested a search warrant. Sciple served the warrant on the af ternoon of August 2, e n c o u n t e r i n g Terry , who was the only a dult at the a

partm ent. There w a s a loaded Ruger .22-caliber pistol and a H igh Point .45-caliber pistol f

ound on a television stan d i n t h e l iving r oom . There were boxes of

a mmu n i tion f

or o ther calibers of weapons f ound. S ciple also noted the presence o f t h e suspected controlled substances. On cross-exam ination, Sciple acknowledged that a casino play er’s club card with another person’s nam e on it (not Terry ’ s) was am ong the things f ound in the a p a r t me n t , a n d h e could not state that Terry ’s f i ngerprints were f

ound on any of the drugs or guns. ¶6. The jus t i c e c o u r t j u d g e w h o i s s u e d the warrant, Johnathan Spears, testif ied at a suppression hearing outside the j ury ’s presence that Sciple told him that the CI w a s a credible witness and that there was drug activity occurring at the apartm ent. ¶7. Jam ie J ohnson of the Mississippi Forensics Laboratory was tendered as a witness and accepted as an expert in t he f ield of f orensic science and drug analy sis. She received seven packets of substances f

rom law enf

orcem ent. The f

irst packet contained t wenty -two f actory

sealed c a f f eine tablets. The second packet contained two d osage u nits of m etham phetam ine

3and caf

f eine. The third packet did not con t a i n a controlled substance. The f ourth packet contained 26.917 gram s of cocaine. The f if t h packet contained dim ethy l sulf one, a noncontrolled substance c om m only f o und in m e tham

phetam ine. The sixth packet c o ntained ten dosage u nits of Tram adol. The s e v e nth packet also contained nineteen dosage units of
Tram adol. ¶8. The partie s a g r e e d t o s t i pulate to Terry ’s prior c onvictions, and the State rested. Def ense counsel m oved f

or a directed verdict, which the circuit cou r t d e n i e d

. Kiara
Baxstrum , the m other of Terry ’ s c hildren, testif ied that she resided at the apartm ent on Ivy Street on August 2, 2017. She said that T erry d id not live with her and had no possessions in the apartm e nt. Baxstrum explained that T erry was at the apartm ent that day because she had to go to work and T erry w as going to take t heir children to t heir grandf a ther’s h o u se. Baxstrum reiterated that Terry had no p ossessions i n the apartm ent, a nd she claim ed that the guns, drugs, and other item s f ound there belonged to her. ¶9. However, when questioned f urther, Baxstrum could not recall w here she obtained a prescription f

o r Tram adol or w hy the pills w ere not i n a prescription bottle. She also could

not identif

y where she g ot the g uns and claim ed that she did not shoot t hem of ten. Baxstrum denied u sing cocaine or m e tham p hetam ine. She said that she had the d i g i t a l s c a les f or “dif f erent reasons,” and th e b a g s o n t h e table w ere there because she is m essy . She acknowledged that she did not want to see Terry go to jail. ¶10. Terry testif

ied that he did not live with Baxstrum and their children on I vy Street and that, as of August 2, 2017, his residence was at 264 Davis Street, Philadelphia, M ississippi.

4He denied possession o f the cocaine, m e t h a mp hetam ine, and T ram adol f ound in the apartm ent; T erry also denied ownership of the p istols. He said t hat he did not have any personal possessions in the apartm ent and that he had not paid any expenses related t o leasing the apartm ent. Terry stated that h e was at the apartm ent because Baxstrum had asked him

to pick u p the children, which is why he had lef t hi s v e h icle running. According to Terry , he had no sooner told the children to get ready to leave when law enf orcem ent entered the apartm ent. W hen asked about telling Sciple that he had lived there one y ear, Terry e xplained that Sciple had b een a sking q uestions about his children; so he t hought the investigator was asking him

about how long the children had lived there. He denied being at the apartm ent the night bef

ore the search or having noticed the d rugs and t he pistols during the tim e he was in the apartm ent. ¶11. The d ef

ense rested. T he State re-calle d S c i p l e as a r ebuttal witness, who reiterated that Terry told him that he (Terry ) had lived i n the apartm ent f o r a y ear. S ciple also testif ied that Baxstrum cam e t o his o f f ice af ter the search, told him that the f irearm s belonged to her, and that she wanted them back. She said nothing to him about the drugs being hers. ¶12. Terry was convicted on all f ive counts, a nd t he circuit cou r t s e n t e n c e d Terry as a habitual o f

f ender under M ississippi Code A n notated section 99-19-81 (Rev. 2 015) to serve thirty y ears in t he custody of the MDOC f or C ount One; six y ears f

or Count Two; ten y ears f or Count Three with the sentence to run consecutively t o the sentences in Counts One and Two; t en y ears f

o r Count Four w i t h t h e s e n t e n c e t o r u n c o n c u r r e n t l y w i t h t h e s e n t e n c e s i n C o u n t s O n e , T w o , a n d T h r e e ; and one y e ar f or C ount Five with the sentence to run

5concurrently w i t h t h e sentences in Counts One, Two, Three, and F our. Aggrieved, Terry

appeals his convictions and sentences.
DISCUSSION
I. Whether the evidence w as sufficient to support the verdict. ¶13. Because Terry did not have the drugs o r guns on his per s o n , h e w as p rosecuted f or constructive possession. He contends on appeal that the State f ailed to p rove every elem ent of constructive p ossession. In reviewing a challenge to the suf f iciency of the evidence, we view “the evidence in the light m ost f avorable t o the p r o s e c ution,” accepting as true “[ a]ll credible evidence consistent with the def endant’s guil t

. . . together w ith all f avorable inf erences that m a y

be reasonably drawn f

r om t he evidence.” O ’ Donnell v. State , 173 So. 3d 907, 916 (¶20) (Miss. Ct. Ap p . 2 0 1 5 ) ( quoting Robinson v. State , 940 So. 2 d 235, 240 (¶13) (Miss. 2006)). “The c ritical inquiry is w h e ther the evidence shows ‘bey ond a reasonable doubt t hat the a ccused com m itted the act charged, and that he did so under such circum stances that e very elem ent of the of f ense existed.’” Id

. (quoting Bush v. State , 895 So. 2d 836, 843 (¶16) (Miss. 2005), overruled on other g rounds by Little v. State , 2 3 3 S o . 3d 288, 292 (¶¶19-20) (Miss. 2017)). ¶14. “Constructive possession exists where t he contraband was ‘subject to the def endant’s d o mi nion or control.’” Jordan v. State , 158 So. 3d 348, 350 (¶7) ( Miss. Ct. App. 2 0 1 4 ) (quoting Curry v. State , 249 So. 2d 414, 416 (Miss. 1971)). “W hen the def endant owns or controls t he prem ises where the contraband is f ound, there is a p resum

ption of constructive possession of

the contraband.” Id . at 351 (¶8) (citing Ferrell v. State , 649 So. 2d 831, 834

6(Miss. 1 995)). If , however, “the def

e ndant ’ s p o s s e s s i o n of the prem ises i s not exclusive, there m u st be additional incr i mi nating circum stances ty ing him t o the drugs.” Id. (citing Fultz v. State , 573 So. 2d 689, 690 (Miss. 1990)). Mere phy sical p roxim ity to the contraband, absent o ther evidence, is not suf f icient to establish c onstructive possession. Hamm v. State , 735 So. 2d 1025, 1028 (¶11) (Miss. 1999). ¶15. Terry asserts that the e vidence was insuf f icient to s upport his convictions because the
State did not present any evidence showing that h e lived at t he apartm ent, such a s personal item s or clothing. He notes that law enf orcem ent did not talk with the landlord to see who had leased the Ivy Street apartm ent and f aile d t o determ ine if he had paid any expenses related to the apar t me n t , s u c h as utilities. Theref o re, h e claim s that the S tate “f ailed to establish a connection between him self and the i llegal drugs as well as the w eapons f ound in the apartm ent.” ¶16. A l though we agree that law e n f o r c e me n t c o u l d h a v e

— a n d p r o b a b l y s h o u l d have—investigated f

urther as to w hether Terry resided at the apartm ent, we f ind there was suf f i cient evidence f

or the jury to determ ine that constructive possession existed with respect
to Terry based on his proxim ity to the drugs a nd his adm ission t o Sciple that he lived at the apartm ent. Sciple testif

ied that it was his belief “when [ he] m ade up t he search warrant that Cephus Terry was t he one that was living there and the one that controlled the house at the tim e.” This belief was based on inf o rm ation provided by

the CI, who told the investigator that T e r r y was a t the Ivy S treet apartm ent “the night bef ore” when the CI saw the drugs. Sciple also testif

i ed that Terry

told him he had lived at the apartm ent f o r a y ear.

7Q. Did [ T erry ], in f act, tell y ou that he had lived in the house.
A. He did. Q. And that he was currently living in the house?
A. Correct. Yes, sir.
As already noted, Terry claim ed that he m isunderstood the question, t hinking the investigator was asking how long his children had lived there. However, when Sciple was re-called as a witness, he m aintained that Terry responded that he lived there. Q.

. . . A s part of y our investigation, did Cephus T erry state to y o u that he lived in Apartm e nt No. 2 at 519 Ivy Street?
A. He did, y es, sir. Q. How long did he say he had been living there?
A. About a y ear. Q. And did he say

that he was presently living there on that date, August 2nd, 2017?
A. The question I asked him was how long he ’ d been living here. He s aid, “About a y ear.” (Em phasis added). W hen asked on cross-exam ination if Terry could have been a nswering that the k ids had lived there f or about a y ear, the deputy answered, “No.” The evidence also showed that the drugs and guns were in plain view and that Terry was the only person, other than his children, at the apartm ent. ¶17. Furtherm ore, e ven though B axstrum testif ied that s h e and her children were the only
persons who lived a t the apartm ent and that the f i r e a rm s a n d drugs belonged to her, when

cross-exam ined by the S tate, she could not provide any inf orm ation as t o where she obtained

8the guns and drugs:

Q. W here did y ou get the caf f eine pills f

rom ?
A. I don’t recall. Q. W here did y ou get the prescription f o r the gabapentin?
A. I don’t recall, sir. Q. W here did y ou get the prescription f o r the tram adol?
A. I’m

not sure. Q. W hy

didn’t y ou keep y our pills in a prescription bottle?
A. I’m

- just didn’t, sir. Q. W here did y ou get the cocaine f rom ?
A. I don’t recall. Q. W ho were y ou going to sell the cocaine to?
A. I’m

not sure. Q. W here did y ou get the black gun f rom ?
A. I don’t recall, sir. Q. W here did y ou get the silver gun f rom ?
A. I don’t recall.

. . . . Q. How of

ten do y ou use cocaine?
A. I don’t. Q. How of

ten do y ou use m etham

phetam i ne?

9A. I do not.

“[ I]t is the jury ’s responsibility as f act-f inder to resolve conf

licting testim ony and evaluate the credibility o f witnesses.” Vinzant v. State , 99 S o. 3d 767, 774 ( ¶25) ( Miss. Ct. App. 2012). Here, the jury , as the f act-f inder, could have determ ined that Baxstrum ’s f ailure to recall this inf

o rm a tion i ndicated that she was ly ing about possessing the contraband in order

to protect the f

ather of her two children. T he jury evidently f ound Sciple’s testim ony m ore credible and reliable than Terry ’s and Baxstrum ’s testim ony . ¶18. Viewing t he e vidence in t he light m o st f avorable t o the prosecution, we f ind that there was suf f icient evidence to support Terry ’ s convictions.
II. Whether the circuit court erred b y im properly i nstructing the jury as to the elem ents of constructive possession. ¶19. Terry claim s that t he circuit court erre d i n f a i l i ng to instruct t he jury t hat m ere proxim ity to controlled substances is insuf f icient to establish constructive possession. W e f ind no m erit to t his argum ent. Def ense counsel only objected t o the S tate’s Jury Instruction S-6, specif

ically the las t s e n t e n c e that stated “ a person is presum ed to b e i n constructive
p o s s e s sion o f the h ouse’s contents when he’s occupy ing or exercising control over t h e h ouse.” Af

ter som e discussion, t he parties a greed to r em ove that language f r o m t h e j u r y instruction, and the def

ense agreed to w ithdraw Jury Instruction D-9. 1 Jury Instruction S-6,

1 Ju ry In stru ctio n D -9 stated : Wh en th e D ef

en d a n t d o es n o t o w n th e p rem ises, th e S tate m u st sh o w ad d itio n al in crim in atin g circu m stan ces t o j u stif y a f in d in g o f co n stru ctiv e p o ssessio n . If th e S tate f a i l s t o sh o w th e ad d itio n al in crim in atin g c ircu m s tan ces to j u stif

y a f in d in g o f su c h co n s tru ctio n p o ssessio n b e y o n d a reaso n a b le d o u b t, th en y o u sh o u ld f in d th e d ef

en d a n t “n o t g u ilty .” 1 0as am ended and given, provided:

The C ourt instructs t h e [

j]ury that to constitute a possession, t here m ust be suf f icient f acts to warrant a f

inding that t he def

endant was a w a r e of the presenc e and character of the particular substance or w eapon and was intentionally and consciously in possession of it. It need n ot be actual phy sical possession; constructive possession ma y b e s hown by e stablishing that the substance o r weapon involved was subject to the def e ndant’s dom inion and control. Althoug h the instruction does not state specif ically that m ere proxim ity is insuf f icient, we f ind it does p roperly instruct the jury that in order to f ind constructive possession, there have

t o be f acts dem onstrating that Terry had to do m ore than m erely be in proxim i ty of th e contraband. In Bates v. State , 952 So. 2d 320, 323-24 (¶¶10-14) ( Miss. Ct. App. 2007), we considered a sim ilar claim m ade by a def endant—that the jury instructions “f ail[ ed] to

me n t ion that proxim i ty to the drug by itself is not enough to convict a def enda n t u n l e s s incrim inating circum stances are also p roven.” I d

. at 324 (¶12). This Court concluded that it w as “ u n n e c e ssary to state that proxim ity alone is insuf f icient, b ecause the instructions clearly state[ d] all of the elem ents required.” I d

. at (¶14); see also M

o s l e y v. State , 89 So. 3d 41, 48-49 (¶¶24-26) (Mis s . C t

. A p p . 2011) (rejecting argum ent that trial court erred in ref using t o give def

ense’s jury instruction , w h i c h r e q uired the State to prove “other incrim inating circum s tances” other than m ere proxim ity ). Furtherm ore, Jury Instruction D-8

was given and specif

ically addressed “proxim ity ,” albeit not as Terry now argues it should have been given. Jury

Instruction D-8 stated:
In order to convict a person of constructive possession of som e thing, it m

ust

T h u s, ev en th e d ef

en se’s j u ry in s tru cti o n d i d n o t ex p licitly state th at m ere p r o x im ity w as in su f f icien t to f in d co n stru ctiv e p o ssessio n . 1 1be proven bey ond a reasonable doubt, that the p erson, although it was not on

his person, the person was aware of the nature and of the quality

of the item

. If the State f

ails to prove, bey ond a reasonable doubt, that Cephus Terry was aware of the nature and quality of the item t hat was in his proximity , then y ou should f i nd the def

endant “not guilty .” (Em phasis added). Lastly , the specif ic objection raise d b y t h e d ef ense was resolved satisf a ctorily ; any

other objection is procedurally barred. ¶20. Accordingly , we af f irm the judgm ent. ¶21. AFFIRMED.
CARLTON AND J. WILSON, P.JJ., T INDELL A N D C. WILSON, JJ., CONCUR. McDONALD, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, WESTBROOKS, LAWRENCE AND McCARTY, JJ. McDONALD, J., DISSENTING : ¶22. I respectf

ully disagree with the m ajority on the i s s u e o f T e r r y ’s possession of the contraband, and I would reverse his conviction. The m ajority and I agree that the guns and drugs were not f

ound on Terry ’s person and t hat the State was r equired t o prove Terry “constructively possessed” these item s. I n m y o p inion, the rebuttable presum ption of constructive p ossession did n ot arise because t h e S tate f ailed to show Terry o wned or controlled the prem ises. The only evidenc e p r esented b y the State was Terry ’s a nswer to Sciple’s disputed question at the t i me o f t he search about who resided at the a partm ent. Terry ’s p resence ( or even residence) in the apartm ent i s one f actor, but it is not, in and of itself , suf f icient to establish constructive possession. I n addition, to establish constructive possession, the State needed to prove “ other incrim inating circum stances.” C arver v. State , 227 So. 3d 1090, 1094 ( ¶12) (Miss. 2017). I believe that there was insuf f icient evidence of

1 2any other i ncrim inating f acts f or a rational jury t o have f

o und bey o nd a r easonable doubt that Terry was i n c o n s t r u ctive possession of t he contraband seized, and I would reverse and render on that b a sis. “If any f acts or inf

e rences ‘point in f

a vor of the def

endant on any elem ent of the of

f ense with suf

f i cient f orce that r easonable m en could n ot have f o und bey ond

a reasonable doubt that the def e ndant was guilty , the proper rem edy is f o r the appellate court to reverse and render.’” Johnson v. State , 81 So. 3d 1020 1023 (¶6) (Miss. 2011) (quoting Bush v. S tate , 895 So. 2 d 836, 843 (¶16) (Miss. 2005), overruled on other grounds by Little
v. State , 233 So. 3d 288, 292 (¶¶19-20) (Miss. 2017)). ¶23. The f

ol l o wing precedent is relevant t o this c ase. “Possession o f a controlled substance

m ay be actual or constructive.” O’Donnell v. S t a t e , 1 7 3 S o. 3d 907, 917 (¶22) (Miss. Ct. App. 2015) ( quoting Johnson , 81 So. 3d at 1023 ( ¶7)). W hen a suspect “does n ot phy sically
possess the illegal drugs, the State m ust prove c onstructive possession o f the drugs.” Gidden
v. State , 74 So. 3d 342, 3 45 (¶12) (Miss. 2011). “W hen [ the] contraband is f ound on [ the]
prem ises owned by t he def endant, a [ rebuttable] p resum ption of constructi v e p ossession arises.” Grassaree v. State , 266 So. 3d 1038, 1 0 4 1 ( ¶ 1 2 ) ( M iss. Ct. App. 2018) (quoting Townsend v. State , 6 8 1 S o . 2d 497, 509 (Miss. 1996)). B ut the State m ust also “show additional incrim inating circum stances connecting the def e ndant to the contraband,” especially if there is no proof of o wnership of the p rem i ses o r if the premi s e s is not in the exclusive control and possession of the accused. Carver , 227 S o . 3 d at 1094 (¶12) (citing Fultz v. State , 5 7 3 S o. 2d 689, 6 90 (Miss. 1990). “Proxim ity [ to the c ontraband] is usually

an e s sential el e me n t , but by itself is not a dequate in the absence of other incrim inating

1 3circum stances.” Id. (quoting Hamm v. State , 735 So. 2d 1025, 1028 (¶11) (Miss. 1999)), see

also Haynes v. State , 250 So. 3d 1241, 1245 (¶8) (Miss. 2018) (“[ M]ere phy s ical proxim ity

to the contraba n d does not, in itself , show constructive possession.” (em phasis om itted)). Such other incrim inating c ircums t a n ces m ust prove that t he c ontraband in question was subject to the def

endant’s dom inion or control. H amm , 735 S o. 2d at 1 029 (¶13). “[ W ]hen contraband is f

ound o n prem ises, there m ust be evidence, in addition to phy sical proxim ity , showing that t he d ef

endant consciously exercised control over the contraband, and, absent this evidence, a f

inding of c onstructive possessio n c a n not be sustained.” Cunningham v. State , 583 So. 2d 960, 962 (Miss. 1991). ¶24. Im plicit in the proof of “ other incrim inating circum stances” i s the n eed to show “that the def e n dant was both aware of the contraband a nd intentionally , although not phy sically , possessed it.” Grassaree , 266 So. 3d at 1041 (¶12); see a lso C arver , 2 2 7 S o . 3 d a t 1 093 (¶12). The f

acts m u st show that t he def

e ndant was aware of the presence and character of the particular substance as well as his intentional and conscious possession of it. W eaver v. State , 282 So. 3 d 1 217, 1221 (¶15) (Miss. Ct. App. 2019) (citing Hamm , 735 S o. 2 d at 1028 (¶11)). M oreover, “absent s om e com petent evidence connecting him with the contraband, the d e f e n d a nt is entitled to acquittal.” Johnson , 81 So. 3d at 1023 (¶8) (internal quotation

m ark om itted). ¶25. Appellate courts h ave applied these principles in several cases r elevant to the one at hand. For exam

ple, in Harvell v. State , 281 S o. 3d 1024 (Miss. C t. App. 2019) we f ound that there was suf

f icient proof to support Harvell’s constructive p ossession of m etham phetam ine

1 4that was f

ound in a l ocked saf

e i n his bedroom

. Id. at 1 034-35 (¶36). In t hat case, the State presented proof that Harvell was living at t he a partm ent searched. I

d . at 1027 (¶3). Police testif i ed that the utilities had been in Harvell’s nam e since 2011, and they had searched the apartm ent on t wo p rior occasions. Id

. On the day in question, a wired conf idential inf

orm ant had gone to the apartm ent, and law enf orcem e nt overheard Harvell giving m etham phetam ine

to the inf orm ant. Id

. at ( ¶4). B ased on t his inf orm ation, p olice obtai n e d a search warrant. Id

. a t (¶5). However, when they arrived, Harvell h a d l ef t, and i nside the a

p artm ent was a lady , presum ably Harvell’s aunt. Id

. at 1028 (¶9). Police w ent to H arvell’s bedroom , where they f ound item s belonging to Harvell; am ong them were bank cards with Harvell’s nam e on
t h e m . Id

. at 1 034 (¶35). They f ound a saf

e i n the bedroom closet with 91.57 gra ms o f

m etham phetam ine in it. Id. Because the m etham phetam ine w as not f

ound in Harvell’s actual phy sical possession, and because Harvell d id not have exclusive possession or control of the
prem ises because dif

f erent people, including the aunt, w e r e i n a n d out a t tim es, the State

nee d e d t o prove constructive possession with additional incrim inating f acts. Id

. at 1034 (¶34). The State proved that Harvell lived there: u t i l i t i es were in his nam e , a nd the police who were f

am iliar with Harvell’s apartm ent f rom two other s e a r c hes f ound Harvell’s personal belongings in his bedroom

. Id. at (¶35). A saf e, equipped w ith a f

ingerprint lock and b olted to a concrete slab, was f ound i n Harvell’s bedroom closet. I d. In addition, they heard Harvell sell m etham phetam ine to the inf

orm a nt t hat day

. Id

. at 1034-35 (¶¶35-36).
W e f ound that a rational j ury could f ind that the bedroom w as Harvell’s bedroom , that the closet was Harvell’s closet, and the drugs were Harvell’s drugs. Id. at 1035 (¶37).

1 51. No p r e sumption of constructive possession arose because the State failed to p r ove that T

erry owned, resided or exclusively controlled the apartment. ¶26. In this case, the State presented no evidenc e t h a t T e r r y o w n e d o r e x c l u s i v e l y controlled the p rem ises to support a presum ption of constructive possession. Both Terry and Kiara Baxstrum testif

ied that the apartm ent belonged to Baxstrum

. T he State p resented no evidence c ontradicting this testim ony . Law enf orcem e n t had not questioned t he landlord to determ ine if Terry rented o r lived at the apartm ent. No ef f ort was m ade to determ ine who was billed f

or the utilities. So it is undisputed that Terry did not own the prem ises. ¶27. Whether Terry adm itted to living a t Baxstrum ’s apartm ent is disputed de s p i t e t h e
account of events f

ound i n paragraph 2 o f the m a jority o pinion. The only evidence the State presented that Terry resided at the apartm ent was Deputy Sciple’s testim ony tha t w h e n he asked Terry how long he had been living there, Terry responded, “[ A ]bou t a y ear.” Terry testif i ed that Sciple had asked h i m how long the children h ad l ived t here. The State provided nothing to support S ciple’s testim ony . None o f the f iv e o t h e r l a w enf

orcem ent p ersonnel with S ciple during t he s earch of the sm all a partm e n t said that they t oo heard Terry adm it to living t he r e . During their search, Sciple and o thers f ailed t o f ind any p ersonal item s belonging to Terry to show he was living there. None of them had any prior dealings with
T e r r y t o be able to say that t he apartm ent belonged to Terry

. In m y opinion, the proof presented by the State was insuf f icient to create a rebuttabl e p r e s um ption of constructive possession.
2. The State presented no proof of “ other incriminating facts” required to prove constructive possession.

1 6¶28. Sciple testif i ed t hat he considered any adult present in the apartm ent at the tim e of the search to be a possessor of the drugs f

ound. But, as stated a

bove, m ere proxim ity does not
prove c onstructive possession, and the State n eeded to present m ore evidence to support its charge of constructive possession of both the drugs and the guns. Here the State presented

no proof o f actions by

Terry that could been seen a s incrim inating. Even the m ajority f ails to identif y any “other incrim inating f

acts.” ¶29. The “other i ncrim inating f acts” required to establish constructive possession can be proved by testi mo n y f

r o m a co-def

endant or ey ewitness, as in W e aver v. State , 282 So. 3d
1217 (Miss. Ct. App. 2019). In that case, W eaver and his accom plice, Roberson, burglarized

a hom e, taking guns and v arious other item s. Id

. at 1219 (¶¶2-3). They had a rranged to m eet

a buy er f or these item s, but police arrived just a s t hey were about t o m ake the sal e . Id. Police f ound W eaver on the g r ound in f ront o f h is pickup truck. Id. He had no guns on him , but police f

ound guns in s om e bushes. Id. at (¶3). Because no guns were f ound on W eaver, the State needed to p r ove constructive possession. It did this through Roberson’s testim ony

a t t r i a l

. Id

. at 1219-20 (¶¶4-5). R oberson testif ied that i t w as W eaver’s idea to burglariz e the hom e and sell the s tolen item s. Id

. at 1219 (¶4). W eaver d rove the c a r, entered the hom e, and took the guns and electronics. Id. W eaver set up the m eeting to sell the s tolen item s. I d

. Based on Roberson’s testim ony , we held that “ t he f acts e stablished that W eaver was

aware of t he property , was c onsciously in possession of the p r o p e r t y , and a sserted control over the property

as evidenced by

his attem pt to sell the property .” Id. at 1221 (¶15). ¶30. In the case at hand, the only non-law-e n fo r c e m e n t w i t n e s s testim ony , Baxstrum ’s, was

1 7f

avorable to Terry

. Baxstrum verif ied that the prem ises was hers, not T erry ’s. She said Terry d i d n ot stay there and had no p ersonal item s a t her apartm ent (no clothing, et cetera). S h e verif ied Terry ’s account of how h e cam e to b e in the apartm ent on August 2, 2016—nam ely , to pick up her children a t her request. 2 Baxstrum c ontinued to testif y t h a t every

thing conf iscated in the search also belonged to her. This testim ony was partially conf irm ed by Sciple, who testif

ied that Baxstrum had c om e to see him af ter the search and wanted her guns back. He did not ask her about the drugs, b ut at t rial she stated under o ath they w ere hers. The m a j ority say s t hat a jury c ould have believed Baxstrum was ly ing to cover f or her children’s f

ather. But if that w ere the case, Baxstrum could h ave devised a story that was

m ore creative and less incrim inating. Instead, she testif i ed to f acts that could have led to her

own prosecution. Even i f the jury did not believe Baxstrum when she claim e d ownership of

t h e d rugs, Terry was not f ound “m anuf

acturing” or p ackaging t he drugs. No d r u g s w e r e f ound on h is person, a nd no d r ug residue was f

ound on h is hands. H is f

ingerprints were not f ound on the conf

iscated guns. There was still no evidence ty ing T erry t o the drugs or guns. ¶31. Moreover, Terry ’s conduct when S c iple e n tered the apartm ent could no t b e viewed

as incrim inat i ng either. Of t en the State can prove “other incrim inating circum stances” by the actions of the accused thems e l v es. I n Lavant v. State , 281 So. 3d 48 ( Miss. Ct. App. 2019), Of f icer Jam es Cowan stopped Lavant at 3:00 a .m . f or driving with no headlights. Id.

at 50 ( ¶2). As he approached the vehicle, he saw Lavant put som ething behind the passenger

2 T h e f act th at law en f

o rcem en t f

o u n d T erry ’s car at t h e ap artm en t, r u n n in g , an d th e d o o r a j ar su p p o rts th e tru th o f h er an d T erry ’s testim o n y th a t h e h ad j u st co m e b y to p ick u p th e ch i ld ren . 1 8seat. Id. Cowan saw a n open container of beer in the car and asked Lavant if he had been drinking. Id. Lavant adm itted to having a f ew drinks earlier at the casino, so Cowan called
f or a DUI of

f icer to conduct a f

ield sobriety test. I

d. W hile t hey waited, Lavant asked to be

a b l e t o g o u s e t h e restroom a t a nearby gas station. Id. Cowan ref u sed the request. Id. Of f icer J ason Cum m i ngs arrived and later t estif ied t hat as he approached Lavant’s vehicle,
Lavant appeared to b e stuf f ing som ething between the d river’ s s e a t a n d the console. Id.
Lavant p assed t he sobriety test but consented to a s earch of the vehicle. I d. a t ( ¶4). The of f icers f ound a pill b ottle with no nam e on it containing m u lti-colored, m

ulti-shaped pills stuf f ed down between the driver’s seat a n d t h e c o n sole. Id. at 51 (¶5). I nside the console, they also f

ound another clear pill bottle with a p rescription label on it with t he nam e Dorothy Parnell, the owner of the vehicle. Id

. The substance in the bottle was tested and f o und to be

m etham phetam ine. Id. The of

f icers also f

ound m a rijuana and $1,000 in cash. Id. Lavant had $200 in twenty

- dollar bills on him

. Id. ¶32. At trial, t h e o f

f i c e r s testif

ied as noted above, along w ith a f orensic scientist who identif ied the drugs. Id. at 51 (¶8). The State then called the lead investigator on the case, Clint Fore, who was qualif ied as an expert in the f

ield of narcotics investigation. Id. a t 52 (¶10). He testif

i ed that the m etham

phetam ines f

ound were a ty

pe of Ecstasy and t hat the 186 dosage units f

o u nd a nd the large am ount of cash f ound indicated t h at the person m ay be selling drugs. Id. He a l s o t e s t i f i e d that a lot of drug dealers do not travel in t heir own vehicles so t hey can claim that the drugs were not theirs. I d. The jury convicted Lavant of possession of t he drugs with intent to sell. Id. at (¶14). On appeal, we f o und that there was

1 9am

ple evidence supporting a f inding of cons t r u c t i v e possession. Id

. at 54, 56 (¶¶20, 25). This included C um m in g s ’ s t e stim ony that he saw Lavant s tuf f som ething between the driver’s seat a nd the c enter console, id

. at 56 (¶25), as well as C owan’s testim ony that
persons having illegal contraband of ten wan t t o d i stance them selves f rom their vehicle—conduct Lavant d isplay ed when he asked to go to the gas station. Id

. at 55 (¶22). Expert Fore also testif

ied that the standard price f or one d ose of e cstasy was t wenty dollars, id. at 56 (¶25), and L avant had $200 in twenty -dollar bills on him

. Id

. a t 5 5 (¶24). From this evidence a nd the testim ony of the of f icers on s i te, we did n ot f ind i t u nreasonable that the jury determ i ned Lavant constructively possessed the illicit drugs. I d. at 56 (¶25). See also Blissett v. State , 754 So. 2 d 1242, 1245 (¶9) ( Miss. 2000) ( During a vehicle stop, an arresting of f icer sm elled a strong, overpowering odor of m arijuana, and Blissett’s nervous dem eanor at the tim e of

the stop was inconsistent with a lack of k nowledge of

m arijuana in the car.)

. ¶33. Unlike the accused in Lavant , the State p resented no testim ony that Terry exhibited
any suspicious behavior. W hen Sciple a nd other law enf orcem ent arrived at the a

partm ent, Terry cam e f rom the rear accom

p anied by his daughter. He was n ot r ushing and there was

no testim ony that he w as nervous or hurried. He lef t the f r ont door a

jar, which is not what

one expects a person p ackaging drugs to do. There was no proof t hat he had any i nteraction with the drugs f

ound or was try ing to hide any thing. ¶34. There i s only one undisputed f act in this case—that Terry was the only adult present in Baxstrum ’s a

partm ent at the tim e of the search. But t his is insuf f icient to prove a connection between Terry and the contraband conf iscated or his knowledge and i ntentional

2 0control or dom inion over it. Proof stronger than this was presented in Fultz v. State , 573 So.

2d 689 ( Miss. 1990), and t he s u prem e court still f ound no constructive possession. Id

. at 691. There Fultz, who was driving his sister’s c ar, was pulled over, and police f ound a duf

f le bag o f m arijuana in the trunk. Id. at 689-90. Fultz him self h ad a sm all am ount of m arijuana

on his person a t t h e t im e of h is arrest and had m ade several unexplained stops d uring the evening. Id. at 691. I n reversing Fultz’s conviction of possession with intent to distribute,
our suprem e court said:
W e f ail to see how these “f

acts” tend to connect the d e f e n d a n t to the drugs. Evidence of

such a questionable quality cannot take the place of good police work. W e cannot help b ut w onder why t he police departm e nt f ailed to dust the trunk f or f ingerprints or f

or that m atter t he bags them selves. Also why didn’t they try to determ i ne if the def endant owned the d

uf f el bag or any of the other item s i n t he trunk. This could h ave bolstered their case c onsiderably

. It also would have been helpf

ul to question t he o wner of the car. In light of this poor police work, and t he absence of any evidence connecting the def endant with the trunk or any o f i t s contents, we have no choice but to reverse this conviction and discharge the def endant. Id. ¶35. Sim ilarly , in this case, it i s my o p i n i o n t h at the evidence presented by the State is insuf f icient to sustain Terry ’s conviction of p ossession o f either the drugs o r the f i r e arm s. I cannot help but wonder why n o steps were taken to a scertain who really owned the apartm ent. W ith no evidence to the contrary , t he only evidence was that Terry was not the

owner. Nor did law e nf

orcem ent search f

or item s undoubtedly belonging t o T erry (such as

m en’s c l othing or o ther p e rsonal ite ms ) to show that he lived there or had dom inion and control of the apartm ent or of the drugs seized. There was no proof that Terry was aware of the presence or character of the pills and powder ( s o me o f i t b enign) f o und am idst the

2 1clutter in the hom e. 3 Even Deputy Sciple agreed that h e did not k now w h a t t he pills and powder he eventually

f ound were: Q.

. . . There’s nothing f or a lay person like m e , y ou, or M r. T erry to walk i n to say that’s not i buprof en, Ty l enol or I would guess, other than having a crim e lab (inaudible) put in our m o uth, we wouldn’t know, Deputy

Sciple, what that is; correct?
A. That’s correct. That’s the reason I sent it to the crim e lab. Q. So t here’s n o -- do y ou have any knowledge t hat Mr. Terry knew that that was whatever it’s claim ed to be?
A. I have no knowledge of that, no. ¶36. I recognize t hat it is the jury ’s responsibility to resolve c onf licts in the testim ony

and evaluate the credibility

of witnesses. However, the State m ust still present evidence to the jury to prove every elem ent of constru c t i ve possession. The jury ’s resolution of the

con f l i c ting testim ony between Terry and Sciple concerning whether Terry l ived in the apartm ent m ay determ i ne o n e elem ent of constructive possession. But the State f ailed to
pre s e n t a ny evidence to prove “other incrim inating acts” by Terry

. Based on the evidence presented by the State to prove Terry ’s co n s tructive possession of the drugs and guns

3 A s s h o w n b y t h e p h o to g rap h s tak e n d u r in g th e search , th e k i tch en a n d liv in g areas w e re f u ll o f clu t ter an d tr a s h

. O n e o f th e t w o g u n s w as f o u n d o n th e co rn er o f a co n so le tab le am id st ch i ld ren ’ s to y s, c ray o n s, p h o to s, an d C D ’s, an d th e o th e r g u n w as o n th e tab le’s b o tto m sh elf ato p so m e m ag azin es. T h e w h ite, p o w d ery s ubs t an ces w ere f o u n d lo o se am o n g d eb ris o n th e k itch en tab le, o n th e co u n ter b y t h e sin k , an d o n a tab le b esid e an ash tray an d o th er litter. P o w d er w a s o n th e t ab le w ith a G a to rad e b o ttle, so m eo n e else’s d riv er’s licen se, so m e ch ild ren ’s T y l en o l, a lam p sh ad e, an d o th er item s. Additional powder was f ound inside the Cricket phone bag o n the kitchen table along with approxim ately twenty packets of Alert Aid caf f eine pills. Several white pills were f ound on a picture f

r am e on t h e k i tchen table underneath som e plastic shopping bags; others were f ound l oose o n a black wooden plate with salt and pepper p a cks, a pencil, a packet of jam , and a car jack f

or a phone; two other star-shaped pills were f

ound on a cof

f ee table inside a candle. 2 2conf

iscated, i t is m y opinion that m ore f acts and inf

erences point in T e r r y ’ s f avor with suf f i cient f orce such that reasonable m en could not have f ound bey ond a reasonable doubt that he was gui l t y . A c c o r d ingly , f or the State’s f

ailure to prove both of the e lem ents of constructive possession, I would reverse Terry ’s conviction.
G R E E N L E E , W E S T B R O O K S , L A W R E N C E A N D M c C A R T Y , J J . , J O I N T H I S OPINION.

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