IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-KA-01202-COA JAMES CLARENCE MCGLOTHIN A/K/A JAMES MCGLOTHIN A/K/A JAMES C. MCGLOTHIN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/03/2016 TRIAL JUDGE: HON. ROGER T. CLARK COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN ELIZABETH BRIGGS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND RENDERED: 08/22/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Jam es Clarence McGlothin was convicted o f u n l awf ul p ossession of a f

irearm by a convicted f

elon, in violation of Mississippi Code Annotated sect i o n 9 7 -37-5 (Rev. 2014). Finding reversible error, we reverse and render the conviction.

FACTS AND PROCEDURAL HISTORY ¶2. In May 2014, M c Glothin was under surveillance by the Coasta l N a r c otics Enf orcem ent Team

. McGlothin m et with a crim inal inf orm ant. Thereaf

ter, a search warrant

was issued f

or the hom e where the m eeting took place. Upon execution o f t he w a r r a n t ,m em

bers of the narcotics team

entered the hom e and f

o und no one there. ¶3. Inside they f

ound that t he hom e contained two bedroom s . T h ere was wom en’s clothing i n one bedroom

. In the o ther bedroom , the agents f ound a m an’s wallet on a dresser.
T h e w a l let contained McGlothin’s identif i cation card, social-security card, bank card, and several c asino play er’s cards. There w e r e r e c e i pts in McGlothin’s nam e inside a dresser drawer. They also f

ound a loaded Titan .25 sem iautom atic handgun inside the pocket of a

m an’s jacket that was hanging inside the closet. ¶4. During the s e a rch, a wom an arrived at the hom e . S he identif ied herself as the hom eown e r a

nd McGlothin’s grandm o ther. She inf orm ed t he agents t hat her granddaughter, McGlothin’s sister, lived i n the hom e . The wom an contacted M cGlothin via cell phone and placed him on the line w ith a n agent. McGlothin inf orm ed the agent that he w ould arrive at the hom e within ten to f

if t een m inutes, but he did not. ¶5. A warrant was issued f or McGlothin’s arrest. He was arrested three m onths later. ¶6. The h andgun f

ound i n the hom e was exam ined and t ested at a f orensics lab. It was determ ined that the f

irearm w orked properly

. No f ingerprints were taken f

rom the weapon. ¶7. A grand j ury indicted McGlothin, as a habitual of f e nder, f or the unlawf

ul p ossession of a f i r e a r m b y a c onvicted f

elony

. The jury returned a guilty verdict. McGlothin was sentenced to serve ten y e a r s i n the custody of the M ississippi D epartm ent of Corrections (MDOC), as a habitual of f ender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015). ¶8. McGlothin f

iled a m otion f

or a new tri a l o r , in the alternative, a j udgm ent

2notwithstanding the verdict. He asserted t hat t he circuit judge should h a v e g r a n t ed his

m otion f or a directed verdict or perem ptory jury instruction D-1, because the State had f ailed

t o prove his guilt bey ond a reasonable d oubt. The circuit judge denied t h e mo t i o n . McGlothin appeals. S TANDARD OF REVIEW ¶9. In a challenge to the suf f iciency of the evidence presented at trial, the Mississippi Suprem e Court has held: [ I]n consideri n g w h e ther the evidence is s uf f icient to sustain a conviction in the f ace of a m otion

. . . f

or judgm ent notwithstanding the verdict, the critical inquiry i s whether the ev i d e n c e shows bey ond a reasonable doubt that [ the] acc u s ed c om m i tted the act c harged, and that he did so under such circum stances that every elem ent of the o f f ense existed; a n d w h e re the evidence f

ails to m e et this test it is insuf f icient to support a conviction. Bush v. State , 895 So. 2d 836, 8 43 (¶16) (Miss. 2005) (quoting Carr v
. Stat e , 208 So. 2d 886, 889 (Miss. 1968)) (internal quotation m arks om itted). W hen a naly zing the suf

f iciency of evidence, “the relevant question is wheth e r a f ter viewing the e vidence i n t he light m ost f avorable to the [ State], any rational trier of f act could h ave f

ound the essential elem ents of the crim e bey ond a reasonable d o u b t

. ” I d

. (citing J

ackson v. V

irginia , 4 43 U.S. 307, 315 (1979)). ANALYSIS ¶ 10. This court has held “to e stablish a f elon in possession of a f

i rearm , ‘[ t]he State has the burden to prove that the def endant was a convicted f

elon and willf

ully possessed a f

irearm .’” Davis v. S

tate , 199 So. 3d 701, 703 (¶9) (Miss. Ct. App. 2016) (citation om itted). T he State

o f f ered evidence that McGlothin had two prior f e lony convictions. In 200 6 , h e w a s
3convicted of possession o f a c ontrolled substance with intent, and in 2009, he was c onvicted

of possession of a controlled s ubstance. B oth of f enses were f

elonies. McGlothin does not challenge his status as a convicted f e lon. ¶11. Instead, in this appeal, McGlothin argues tha t t h e S tate f ailed to prove that he possessed a f

i rearm . He claim s t hat t he State did not prove: (1) he was in proxim ity to the f irearm ; (2) there was evidence that connected him to the f i rea r m; a n d (3) the f

irearm was located on prem ises that were exclusively under his control. ¶12. “It is undisputed that [ McGlothin] w as not a ctually in possession of the [ f irearm ].” Peden v
. S t a te , 132 So. 3d 6 31, 633 (¶3) (Miss. C t. App. 2014). “Theref ore, in order to sustain the conviction, t he State was required to prove that [ he] constructively possessed the [ weapon].” Id. “Constructive possession allows the p rosecution to establish possession of contraband when evidence of actual possession is a bsent.” Davis, 199 S o . 3 d a t 7 0 3 (¶9) (citation om itted). ¶ 13. “[ T]here m

ust be suf f i cient f acts to warrant a f

inding that the def

endant w as aware of the p resence and character of t he particular [ contraband] and was intenti o n a l l y a nd consciously

in possession of

it.” Id. at 704 (¶9). I. Dominion or Control ¶14. “Constructive possession m ay be shown by establishing that t he [ i tem ] involved was subject to [ McGlothin’s] d om inion or control.” I d. ( c i t a t i o n om itted). During the trial, a special agent testif

i ed that the hom e ’s owner was unknown prior to the e xecut i o n o f the search warrant. The agent also testif i ed t hat McGlothin’s g randm other c a me to the hom e

4while t he of f icers were searching the prem ises. She i ndicated that she o wned the hom e and that her granddaughter lived there. ¶15. “The owner of the prem ises where the contraband is f ound is rebuttably presum ed to be in possession of the contraband.” Gavin v. State , 7 85 So. 2d 1088, 1093 (¶17) (Miss. Ct. App. 2001). In Evans v. State , 802 So. 2d 137, 142 (¶13) (Miss. C t. A pp. 2001), this Court f ound that the presum

ption w as rebutted against the h om e o wner because the def endant and the hom eowner h ad equal access to the f irearm s located in a closet. There was evidence that established the f

irearm s were kept in the sam e closet as the def endant’s clothes, the def endant stay ed in the hom e overnight, and the def endant had handled t he guns on several occasions. Id. at 1 41 (¶¶12-13). This was ruled to e stablish constructive possession of the f irearm s by

the def endant. Id. ¶16. In this appeal, the State argues that McGlothin’s wallet a n d the receipts in the drawer

were suf f icient evidence to p r o v e t h a t M c Glothin lived in the hom e. None of these docum ents listed McGlothin’s address as 514 Jef f erson Street, which was the address of this hom e. Inst e a d , t h e i d entif ication card and a receipt f rom the circuit clerk’s o f f ice listed McGlothin’s hom e address as 258 Magnolia Street in Biloxi, Mississippi. W e f ind that this evidence of

f ered against McGlothin is distinguishable f rom E vans . T h ere was no testim ony that McGlothin l ived o r stay ed overnight in t he h om e, that the clothes in t he c loset belonged

to him , or that he h ad handled the f i r e a r m i n the past. There w as also no testim ony that McGlothin’s f

ingerprints were f

ound on the gun. ¶17. In Gavin, 785 So. 2d at 1091 (¶ ¶ 2

- 3 ) , a s e arch warrant was i ssued af ter a crim inal

5inf

orm ant was sent to m eet with the def endant. Af

ter a search, of

f icer s l o c a t e d s e veral
weapons, and the def

endant w as charged with m ultiple counts of possession o f a weapon by

a c o nvicted f

elon. I d. at (¶¶2-3). On appeal, there was evidence that the def endant handled

one of the guns at an earlier tim e, but no other evidence connected him to the weapon. Id.

at 1094 (¶21). This Court held that “being i n a closed area such as a vehicle or a room with contraband does not by

itself perm it the inf

erence of dom i nion and control. If the accused is t he owner of t he prem ises, or i f he is the exclusive user f or som e e xtended period of tim e,

or i f there are additional incrim inating circum stances, t hen the inf ere n ces m ight be
perm issible.” I

d. In that case, the State f ailed to prove that the def

endant was “intentionally

a n d c o n s c i o u sly in possession of the weapon on the day charged.” Id. at (¶20) (citatio n

om itted). In Gavin , we f

ound insuf

f icient evidence to support the conviction, a nd this Court reversed on the issue. ¶18. H e re, the State asserts that McGlothin was observed standing on the hom e’s f ront porch six day s bef

or e the warrant was executed. This f a ct alone does n ot indicate that McGlothin had d o m inion or control over the residence, any particular r oom in the hom e, or

even t he jacket w here the gun was f ound. There was no t estim ony that he owned the hom e

or r esided there. The State of f ered no evidence to establish when the f irearm was placed in the pocket of the jacket or any e vidence t hat McGlothin h ad ever worn the jacket. Finally , the state could not connect the f irearm to McGlothin through f i ngerprints. There was sim ply

no com petent evidence of

f ered to establish that M cGlothin had dom inion or c o ntrol over the residence.

6II. Proximity

¶19. “Proxim ity to [ the contraband] is a f a ctor, b ut i s not determ inative.” Affleck v. State , 210 So. 3d 1067, 1080-81 (¶46) (Miss. Ct. App. 2015) (citation om itted). In Affleck , police arrived a t an apparent crim e scene and f o und the def

endant standing near the shed where a shotgun w as f

ound. Id. The def

endant w as suspected of killing his girlf r ien d , a nd police

no t i c e d b l o o d in various locations of his p roperty , including on the o utside of the shed. Despite proof that the d ef endant h ad m

ultiple room m ates, t his Court f ound that he f

ailed to rebut the presum

ption that he constructively possessed the shotgun. Id. at 1081 (¶47). ¶20. In Peden, 132 So. 3d at 634 (¶¶5-6), t his Court f ound suf f icient evidence to convict

t h e d e f e n d ant of constructive possession because he was f ound ly ing in bed, within arm ’ s reach of a bag of crack cocaine. In B ody v. S tate , 147 So. 3d 890 ( Miss. C t. A p p. 2014), evidence established t hat the def endant had constructive possession of a gun that was f ound inside of a backpack. Id. at 893 ( ¶12). The backpack had been abandoned behind shrubbery , but an of f icer ident i f

i e d i t a s the sam e bag that the def endant was wearing when he was spotted running away f

r om the scene of a shooting. Id. at (¶13). This Court f ound that “[ the def endant] had constructive possession of the gun because of its close proxim ity to him in the backpack.” Id. a t (¶17). ¶21. In each of these cases, this Court f ound constructive possession of contraband af

ter each d ef endant was f

ound in close proxim ity t o the item

. Constructive possession was also established through o ther circum stances that co n n e c t e d t hem to the contraband. W hile McGlothin was observed standing o n t he hom e’s porch six day s bef ore the f i rearm was

7f

ound, this alone is n ot enough to establish constructive possession. There i s no evidence to indicate when the gun was placed in the hom e. There was also no testim ony conf irm ing who had access to the hom e. McGlothin was not observed wearing the jacket where t he gun had been located. T he S tate produced no e vidence indicating that he either owned the jacket or had accessed the jacket bef ore the search warrant was executed. ¶22. In cases where the d e f endant is not the owner o f the prem ises or in exclusive
p ossession, then t he State m ust prove som e “com

petent evidence connecting him with the contraband.” Id. (citatio n o mi t t ed). Here, that h as not been done. In Naylor v. State , 730 So. 2d 561, 566 (¶32) ( Miss. 1998), this Court reversed a n d rendered af ter it f ound that the “only e v idence linking [ the def endant] to the cocaine [ w as] that he was in close proxim ity

to the d rugs when it was f

ound i n the bathroom .” W hile the d ef endant w as at the hom e, the State did not prove t hat h e l i v e d i n t h e hom e. Id. This Court noted that the only other evidence adm i tted against t h e d e f endant w as that his wallet was f ound in a closet where police also f

ound f irearm s. I

d. In that case, we f

ound that the e vidence was insuf f icient to prove that the def

endant possessed cocaine. Id. ¶23. “ On review, all r e a s o n a b l e i n f erences are given in the light m ost f avorably to the verdict.” Gavin, 785 So. 2d at 1094 (¶24) (citation om i tted). The State presented a theory that McGlothin lived in the h om e where the gun was located. The theory was based on the f act that his wallet and identif ication were f

ound on a dresser in a room that contained m en’s clothing. The S tate f

urther based i ts theory on the f a c t that McGlothin was observed standing

on the hom e’s porch just day s bef ore the search warrant w as executed. “The theory m ay be

8correct, but there w as not any additional i ncrim inating e vidence bey ond [ the] presence [ of

McGlothin’s i dentif

ication in a r o o m] t o support constructive p ossession of

. . . the weapon[ ].” I

d

. ¶24. This Court has p revi o u s l y f ound that the m ere f

act t hat a def

endant m ay have once handled a weapon “does n o t perm it an inf erence of dom inion and c ontrol on t he day covered by the indictm ent.” Id. H ere, there was no evidence to establ i s h t h a t McGlothin had ever handled the f

irearm or that he had knowledge of its existence. W e f ind i nsuf f icient evidence

to support t he conviction. W e reverse and render McGlothin’s convictio n o f u n lawf ul possession of

a f irearm by a f e lon, in violation of

section 97-37-5. ¶25. REVERSED AND RENDERED. LEE, C.J., IRVING, P.J., BARN E S , ISHEE, FAIR, WILSON AND WESTBROOKS, JJ., C ONCUR. CAR L T O N , J ., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY GREENLEE, J. CARLTON, J., DISSENTING: ¶26. Because I would af f i rm the trial court’s judgm ent, I respectf u l l y dissent f

rom the

m ajority ’s opinion. ¶27. “In a circum stantial[ -]evidence cas e , ‘ the test to be applied i n considering the suf f i ciency o f proof is wh e t h e r a rational f act[ -]f inder m i ght reasonably c onclude that the

e v i d e nce excludes e very reasonable hy pothesis inconsistent w ith guilt o f t h e c r i m e c h a

r g e d

. ’ ” Harris v. State , 908 So. 2d 868, 8 71 (¶9) (Miss. C t. App. 2005) ( quoting Shields v
. State , 702 So. 2d 380, 382 (Miss. 1997)). Wh e n r e v i e w i ng a challenge t o the s u f f iciency of the evidence in a crim inal case, the State receives the benef i t of all f avorable inf

erences that m ay

9reasonably

be drawn f

rom the evidence. W

i lson v. S tate , 936 So. 2d 357, 363 (¶16) (Miss. 2006). In a case based entirely upon circum stantial evidence, “ [ a] m ere f ancif ul o r f arf etched

or unreasonable hy

pothesis o f innocence is not suf f i cient to require an acquittal[ .]” Cotton

v. State , 144 So. 3d 137, 140 ( ¶3) (Miss. 2014) ( q u o t i n g Montgomery v. State , 515 So. 2d 845, 848 (Miss. 1987)). ¶28. Pr e c e d e n t establishes that this Court will only reverse if the trial court abused its discretion in deny ing a m otion f or a new trial. Howell v. State , 8 60 S o. 2d 704, 764 (¶212) (Miss. 2 003). Moreover, “[ t]he power to grant a new trial, on t he basis of the weight of the evidence, should b e invoked only in exceptional c ircum stances, when the evidence weighs heavily against the jury ’s verdict.” W ilson , 936 So. 2d at 363 (¶16). ¶29. Precedent f

u rther establishes that “[ a]n item is within one’s constructive possession when it is subject to his dom i nion or control.” Keys v
. State , 478 S o . 2 d 2 6 6 , 2 68 (Miss. 1 9 8 5 )

. Also, “[ c]onstructive possession m ay be established b y direct evidence or circum stantial evidence.” Id. I n the present case, the record ref lects suf f icient circum stantial evidence, and f

avorable i nf

erences to be objectively drawn t heref rom , to support t he jury ’s verdict and f

rom which the jury could f ind that McGlothin, a f

elon, ex e r c ised possession, dom inion, and control over the loaded sem iautom atic f irearm in the room that the jury could conclude he inhabited. Theref ore, I dissent f

rom the m ajority ’s opinion. GREENLEE, J., JOINS THIS OPINION.

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