IN THE SUPREME COURT OF MISSISSIPPI

NO. 93-CT-00956-SCT

ROBERT LEWIS JONES

v.

STATE OF MISSISSIPPI

ON PETITION FOR WRIT OF CERTIORARI

DATE OF JUDGMENT: 8/18/93

TRIAL JUDGE: HON. HONORABLE JAMES BACKSTROM

COURT FROM WHICH APPEALED: CIRCUIT COURT, JACKSON COUNTY

FOR APPELLANT: H.M. YOSTE

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

DISTRICT ATTORNEY: NA

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND RENDERED - 5/8/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 5/23/97

EN BANC.

McRAE, JUSTICE, FOR THE COURT:

¶1. Robert Lewis Jones was indicted October 11, 1991, by the Jackson County Grand Jury for

possession of marijuana with intent to distribute. Jones went to trial in August 1993 and was

convicted of possession of more than one kilogram of marijuana. He was sentenced to nine years in

the custody of the Mississippi Department of Corrections and ordered to pay a $6,000 fine and costs.

Jones's appeal was assigned to the Court of Appeals, which affirmed his conviction and sentence by a

vote of 6-4. This Court granted Jones's petition for writ of certiorari concerning the issue of

constructive possession and the lower court's failure to grant a directed verdict. After consideration

we find that Jones's conviction and sentence must be reversed and rendered.

I.

¶2. Lillian Johnson was working as a cashier at the Amoco station on Highway 613 in Jackson

County on the night of March 12, 1991. That same night Imo Kibwe Jawara and Robert Lewis Jones
were riding through Jackson County in Jawara's car on their way from New Orleans back to their

homes in Georgia. About 9:00 p.m. the men stopped at the Amoco station on Highway 613 to put

some gasoline into Jawara's car. Jackson County Sheriff Deputy Billy Thicksten was inside of the

Amoco station when Jawara and Jones stopped there.

¶3. Jawara went inside the station after putting gas in his car. When he reached into his pocket for

money, he pulled out a cellophane bag which appeared to Johnson to contain marijuana. About that

time Deputy Ricky Rader entered the store. Johnson told Rader what she thought she had seen.

Deputy Rader informed Deputy Thicksten that the cashier believed that Jawara had marijuana in his

pocket. The two deputies walked out of the station just as Jawara and Jones were pulling out onto

Highway 613. The deputies followed Jawara and Jones in separate vehicles as they left the station

and subsequently pulled them over to the side of the road.

¶4. Jawara, who was driving, was informed that he was pulled over because of a suspected expired

Georgia tag. He was then asked if his car could be searched. Jawara allegedly gave his approval of

the search. Deputy Rader found a jacket in the back seat which contained a bag containing a "green

leafy substance." Jones and Jawara were then arrested for possession of marijuana. Deputy Rader

then inventoried the car on the scene. He found a revolver in a briefcase in the back seat and a set of

scales in the car and bags containing a similar leafy substance in the trunk of the car. The total

amount of marijuana seized was approximately twelve pounds. Jawara admitted that he had entered

the Amoco station to pay for the gas but denied that any of the marijuana found in his car belonged

to him, stating that it had been placed there by someone else in New Orleans. Jones did not testify at

trial.

II.

¶5. Jones argues that his motion for directed verdict should have been granted due to insufficient

evidence. Since Jones was not caught in actual possession, the rules concerning constructive

possession come into play, as stated by this Court in Pool v. State, 483 So.2d 331, 336-37 (Miss.

1986):

The theory of constructive possession has been explained, in Curry v. State, 249 So. 2d 414

(Miss. 1971), as follows:

[T]here 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. It need not be actual physical possession. Constructive possession may be shown by

establishing that the drug involved was subject due to his dominion or control. Proximity is

usually an essential element, but by itself is not adequate in the absence of other incriminating

circumstances.

Id. at 416. The theory was further defined in Hamburg v. State, 248 So.2d 430 (Miss. 1971), that

"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." Id. at 432. This presumption is rebuttable,

however, and does not relieve the State of its burden to prove guilt beyond a reasonable doubt. Id.

Thus, "[w]here 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." Powell v. State, 355 So.2d 1378, 1379 (Miss. 1978). See also Keys v. State, 478

So.2d 266, 268 (Miss. 1985).

¶6. In Cunningham v. State, 583 So.2d 960 (Miss. 1991), Cunningham was a passenger in a pick-up

truck owned and driven by Mr. Sipp. Sheriff's deputies sought to stop the truck because it was

driving erratically. A search of the passenger area turned up a medicine bottle on the passenger side

of the transmission hub which ran through the cab. The medicine bottle was found to contain cocaine.

Both passengers denied ownership or knowledge of the cocaine. This Court stated that its decisions

on constructive possession must "establish that when contraband is found on premises, there must be

evidence, in addition to physical proximity, showing that the defendant consciously exercised control

over the contraband, and, absent this evidence, a finding of constructive possession cannot be

sustained." Cunningham, 583 So.2d at 962. The three factors showing constructive possession

were: (1) Cunningham looked back repeatedly at the pursuing police car once the blue lights were

turned on; (2) the relationship between Sipp and Cunningham was such that contraband owned by

one was probably owned by both; and (3) Sipp's explanation about someone else using his truck

earlier was not credible. This Court found that the evidence of possession was insufficient and

reversed and rendered Cunningham's conviction. Cunningham, 583 So.2d at 962-63; see also

Curry, 249 So.2d at 414 (Miss. 1971)(evidence of constructive possession by owner of car was

sufficient where owner, who had made entire trip from Texas to Hattiesburg with car occupants, was

seated in front passenger seat in close proximity to marijuana and made suspicious downward

reaching motion when sighted by police); Hudson v. State, 362 So.2d 645 (Miss. 1978)(evidence of

constructive possession was insufficient where neither driver nor passenger of car owned the car and

marijuana was found hidden under hood near radiator); Fultz v. State, 573 So.2d 689 (Miss. 1990)

(evidence of constructive possession was insufficient as to driver where marijuana was found in trunk

of car which belonged to driver's sister, driver had been using car for about four hours, and driver

was found to have small amount of marijuana in his wallet).

¶7. In this case there is nothing to connect Jones to this marijuana except for his presence in the car.

Jones was not the one spotted by Lillian Johnson 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. The evidence was insufficient to

show Jones's constructive possession of the marijuana and a directed verdict should have been

granted in his favor. The judgment of the Court of Appeals and the Jackson County Circuit Court is

reversed and rendered.

¶8. REVERSED AND RENDERED.

PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, ROBERTS AND MILLS, JJ.,

CONCUR. LEE, C.J., CONCURS IN RESULT ONLY. SMITH, J., NOT PARTICIPATING.