                          IN THE SUPREME COURT OF MISSISSIPPI
                                   NO. 1998-KA-01333-SCT
AL GLENN ALEXANDER
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                             08/28/1998
TRIAL JUDGE:                                  HON. ROBERT WALTER BAILEY
COURT FROM WHICH APPEALED:                    KEMPER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                       CHARLES W. WRIGHT, JR.
ATTORNEY FOR APPELLEE:                        OFFICE OF THE ATTORNEY GENERAL
                                              BY: W. GLENN WATTS
DISTRICT ATTORNEY:                            E. J. MITCHELL, III
NATURE OF THE CASE:                           CRIMINAL - FELONY
DISPOSITION:                                  REVERSED AND RENDERED - 11/18/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                               12/09/99



     BEFORE PITTMAN, P.J., MILLS AND WALLER, JJ.
     MILLS, JUSTICE, FOR THE COURT:
                                  STATEMENT OF THE CASE

¶1. Al Glenn Alexander was convicted by a Kemper County jury of possession of methamphetamine and
cocaine. Alexander received a three (3) year suspended sentence with a three (3) year supervised
probation. From that conviction and sentence, Alexander appeals. For the reasons set forth below, we
reverse and render this case.

                                               ISSUES

     I. WHETHER THE STATE PROVED CONSTRUCTIVE POSSESSION OF
     CONTROLLED SUBSTANCES.

     II. WHETHER THE CIRCUIT COURT ERRED IN DENYING THE REQUESTED
     CIRCUMSTANTIAL EVIDENCE INSTRUCTION OF THE DEFENDANT.

     III. WHETHER THE CIRCUIT COURT ERRED IN EXCLUDING A THEORY OF
     DEFENSE WITH EVIDENCE OF A WRONGFUL DEATH CIVIL SUIT RESULTING
     FROM THE ACCIDENT.

     IV. WHETHER THE CIRCUIT COURT ERRED IN ADMITTING CONTROLLED
      SUBSTANCES WITHOUT A CREDIBLE CHAIN OF EVIDENCE.

      V. WHETHER THE CIRCUIT COURT ERRED IN SENTENCING DEFENDANT TO A
      FELONY INSTEAD OF A MISDEMEANOR.

                                                     FACTS

¶2. Kemper County resident Al Glenn Alexander was involved in a traffic accident on June 27, 1997,
resulting in the death of Mark Wilson and serious injuries to himself. The accident involved two vehicles, an
International tractor trailer driven by Alexander, and a Ford pick-up truck driven by Wilson. The logging
truck was not immediately secured by law enforcement at the scene of the accident, and approximately fifty
(50) people surrounded the wrecked truck shortly after the collision.

¶3. At the scene of the accident and while still trapped in the wrecked tractor-trailer, Alexander asked Ray
"Tooney" Hill, Jr., a bystander, whether there was anyone else around the accident scene. Alexander told
Hill that there was something in the truck, "a box", that needed to be removed. Alexander was subsequently
removed from the wreckage and taken to the hospital. The tractor trailer rig was removed from the scene
of the accident and taken to the shop of Allen Logging Company. Approximately five hours after the wreck,
Hill approached the wrecked truck at Allen Logging to retrieve business papers and Alexander's wallet. Hill
found a flannel shirt in the wrecked truck that contained a coin purse and a 35 millimeter film canister in the
shirt pocket. The coin purse contained a mirror, straw and razor blade, while the film canister held a plastic
sack, in which there was "dust looking stuff."

¶4. Hill delivered the items to Joe Allen, owner of the truck, who placed the evidence in his bedroom chest
of drawers for two days before he gave it to Sheriff Mike McKee. Testimony at trial established that no one
knew that the evidence was stored in Allen's home during the two day period, and no one had access to
Allen's bedroom chest of drawers, nor did anyone tamper with the items. Sheriff McKee delivered the
evidence Officer Michael Cain with the Mississippi Highway Patrol. Officer Cain locked the evidence in his
trunk and subsequently delivered the material to Jamie Johnson at the Mississippi Crime Lab in Meridian for
analysis. Johnson testified that the result of her analysis showed residue of cocaine in the film canister and
residue of both cocaine and methamphetamine in the coin purse. Alexander was subsequently indicted for
possession of methamphetamine and cocaine.

¶5. Joe Allen, the owner of Allen Logging Company, was questioned during trial and outside the presence
of the jury in a proffer by the defendant on the wrongful death suit filed by the survivors of Mark Wilson,
who was killed as a result of the collision with the truck driven by Alexander. Allen admitted that there was
an allegation that drugs were involved in the accident but that drug tests determined that this was not true.
Toxicologist reports submitted by the Mississippi Crime Lab indicated an absence of drugs or alcohol in
both drivers. Allen testified that the civil suit had been settled prior to trial. Alexander's attorney argued that
the jury should have been given information about the civil suit because it involved a large amount of money,
which could supply a motive for persons to use the drugs later found by Hill in the wrecked truck.

¶6. Alexander moved for a mistrial at the conclusion of the State's case because of the alleged inability to
present his theory of defense, the contention being that drugs were planted to enhance his liability in the
wrongful death suit. This motion was overruled by the trial court. Alexander was found guilty and sentenced
to serve a three year suspended sentence with a three-year supervised probation.
                                              DISCUSSION

     I. WHETHER THE STATE PROVED CONSTRUCTIVE POSSESSION OF
     CONTROLLED SUBSTANCES.

¶7. Alexander argues that since traces of controlled substances were not found on his person, there is
insufficient evidence to warrant a finding of constructive possession. Alexander also points out that many
people had access to the wrecked truck since bystanders surrounded the wreck immediately following the
accident; the accident scene was not immediately secured; and a period of approximately five hours elapsed
from the time of the wreck until Hill discovered the contraband in the truck. Critically, Alexander alleges
that there was no evidence establishing that the shirt containing the drugs belonged to him. Because he
lacked control of the "premises" and actual possession of the drugs, Alexander argues that the State failed
to produce evidence connecting him to the methamphetamine or cocaine.

¶8. The State, on the other hand, argues that Alexander's statement to Hill that, "...there is something in a
box. I don't really want nobody to see it. You know, don't nobody need to see it" amounts to an admission
against interest sufficient to connect Alexander with the drugs.

¶9. For authority on the issue of possession, Alexander submits that the case sub judice is consistent with
Powell v. State, 355 So.2d 1378, 1379 (Miss.1978), where we held that "[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." We have reiterated our
position on this issue by requiring that:

     There must be sufficient facts to warrant a finding that the 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 to his dominion or control.

Pate v. State, 557 So.2d 1183, 1184 (Miss.1990) (quoting Guilbeau v. State, 502 So.2d 639, 641
(Miss. 1987)

(quoting Curry v. State, 249 So.2d 414, 416 (Miss. 1971)).

¶10. In Jackson v. State, 689 So.2d 760 (Miss.1997), we found that there was sufficient evidence for
inferring that a criminal defendant was aware of the presence and character of cocaine found in a car he
was driving while on a trip to New Orleans on behalf of his employer. We stated that:

     To prove constructive possession, the State must have provided evidence that the contraband was
     under the dominion and control of the defendant. Roberson v. State, 595 So.2d 1310, 1319
     (Miss.1992). Where the defendant is not in control of the premises, that is, the car, the State has the
     burden of proving competent evidence which would connect the defendant to the cocaine. Campbell
     v. State, 566 So.2d 475, 476 (Miss.1990).

Jackson, 689 So.2d at 767. Alexander was not in "exclusive dominion and control" of the wrecked truck
when the drugs were found. A period of approximately five hours elapsed between the time of the wreck
and the discovery of the drugs; consequently, following Powell and Pate, the facts in this case are
insufficient, by themselves, to prove constructive possession.
¶11. Since Alexander was not in exclusive dominion and control of the truck when the drugs were found,
Jackson places the burden upon the State to provide competent evidence which would connect Alexander
with the cocaine and methamphetamine residue. The State offered Alexander's statement to Ray Hill, that
there was "something in a box", presumably as an admission for sustaining this evidentiary burden. "An
admission is an acknowledgment by the accused of certain facts which tend, together with other facts, to
establish his guilt. Jackson v. State, 551 So.2d 132, 138 (Miss.1989)(quoting 4 Wharton's Criminal
Evidence, § 651 at 218 (14th ed. 1987)).

¶12. The jury was given a "constructive possession" instruction based on this statement alone. Whether
subsequent discovery of drug residue suffices for establishing a foundation of "other facts" for an admission
is a seriously diminished proposition when considering the five-hour lapse of the truck being unsecured.
Such a statement, by itself, goes beyond the outer limits of instances where a "constructive possession"
instruction is proper.

¶13. The statement by Alexander was relevant to the case. However, the State failed to establish that
Alexander owned the shirt or coin purse containing the contraband. Therefore, no evidence was introduced
linking the statement to the physical evidence. This defect renders this cause reversible.

      II. WHETHER THE CIRCUIT COURT ERRED IN DENYING THE REQUESTED
      CIRCUMSTANTIAL EVIDENCE INSTRUCTION OF THE DEFENDANT.

¶14. Alexander argues that since the evidence against him is purely circumstantial in nature, the State has the
burden of proving him guilty beyond a reasonable doubt and to the exclusion of every reasonable theory of
innocence under Givens v. State, 618 So.2d 1313 (Miss.1993). Good authority persuades us that there
should have been a jury instruction directing the exclusion of every reasonable hypothesis other than guilt in
order to convict. Alexander relies heavily upon Keys v. State, 478 So.2d 266, 267 (Miss.1985), where
we held that:

      It is the law in this state that, where the evidence for the prosecution is wholly circumstantial in nature,
      the accused is entitled upon request to have the jury instructed that, before they may convict, they
      must 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. See, e.g., Billiot v. State, 454
      So.2d 445, 461-62 (Miss.1984). There is, to be sure, loose talk in some of our cases to the effect
      that the circumstantial evidence instruction must be given where only one of the elements of the
      offense charged is established circumstantially. See, e.g., Collins v. State, 447 So.2d 645, 646
      (Miss.1984); King v. State, 315 So.2d 925, 926 (Miss.1975); Love v. State, 208 So.2d 755, 757
      (Miss.1968). A correct statement of the law is that the instruction must be given only where the
      prosecution is without a confession and wholly without eyewitnesses to the gravamen of the offense
      charged.

(footnote omitted).

¶15. We believe reasonable persons might disagree whether a statement about a "box" is tantamount to a
confession of possessing drugs. Alexander made the statement to Ray Hill while he was trapped in the
wrecked truck, hanging upside down, bleeding and suffering from a broken limb. Hill never testified that
Alexander mentioned anything about drugs, and no drugs were found at the scene of the accident.
Alexander was tested for the presence of drugs in his blood immediately after the accident, and the results
were negative. Joe Allen testified that Alexander wanted a piece of stereo equipment commonly referred to
as a "kick-box" removed from the wrecked truck. Instead of the drug residue being found in "a box", the
residue was found in a flannel shirt that was never identified as belonging to Alexander. No testimony was
offered by the State as to why Alexander would have been wearing a long-sleeve flannel shirt in late June --
the middle of summer.

¶16. We have noted that the definition of circumstantial evidence gives rise to linguistic problems which do
not fit into nice, neat mutually exclusive categories of either direct or circumstantial evidence, holding that,
"Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise
to a logical inference that such a fact does exist. Conversely, eye witness testimony is thought of as direct
evidence." Keys, 478 So.2d at 268. But Hill's testimony about Alexander mentioning "a box" would not
qualify as direct evidence because Alexander's statement, under the circumstances, was hardly an
admission and certainly not a confession.

¶17. In Jones v. State, 635 So.2d 884, 887 (Miss.1994), we concluded that where intent alone is sought
to be proved by circumstantial evidence, no instruction on circumstantial evidence is necessary. See also
Williams v. State, 445 So.2d 798 (Miss.1984); 23A C.J.S. Criminal Law § 1250 (1961). The case
sub judice is distinguishable from Jones because the defendant in that case was charged with possession of
a controlled substance with intent to sell, and he admitted to actual physical possession of marijuana. In the
instant case Alexander was not in physical possession of any controlled substance. The State was not
attempting proof of the singular element of intent but was trying to prove "constructive possession" with
competent evidence connecting Alexander to the cocaine and methamphetamine residue.

¶18. The most troubling fact of all is that the shirt containing the drug residue was not found until at least five
hours after the wreck. In that five hour period, the truck was unsecured by law enforcement, allowing a
dangerous window of opportunity for someone to plant the evidence. To take the State's position and
construe a statement concerning "a box" as an admission of drug possession is a radical expansion of the
testimony and facts contained in the record. The denial of Alexander's requested circumstantial evidence
instruction was therefore error.

      III. WHETHER THE CIRCUIT COURT ERRED IN EXCLUDING A THEORY OF
      DEFENSE WITH EVIDENCE OF A WRONGFUL DEATH CIVIL SUIT RESULTING
      FROM THE ACCIDENT.

¶19. Alexander argues that the conviction should be reversed because his theory of the criminal case, that
someone "planted" the contraband to bolster the wrongful death suit, was never presented to the jury. We
have held that:

      Defendants are entitled to have instructions on their theory of the case presented to the jury for which
      there is a foundation in evidence, even though the evidence might be weak, insufficient, inconsistent or
      of doubtful credibility, and even though the sole testimony in support of the defense is the defendant's
      own testimony.

Welch v. State, 566 So. 2d 680, 684 (Miss. 1990).

¶20. After considering Alexander's theory of defense and the accompanying plea to let the jury decide the
credibility of the evidence, the circuit court said:
      Yes. Well, I totally, one-hundred percent disagree with your theory, and I thinks it's totally
      inappropriate. It's not material, and it's not relevant. But your record is made...

¶21. Alexander promptly moved for a mistrial, alleging that based on the ruling, there was no way to
provide for an adequate defense consistent with his theory. The motion for mistrial was denied. A theory of
defense alleging that other persons may have had a motive to frame Alexander was relevant. "Relevant
Evidence" means evidence having any tendency to make the existence of any fact that is of consequence to
the determination of the action more probable or less probable than it would be without the evidence.
M.R.E. 401. The evidence of a civil action, while admittedly weak and possibly farfetched, was the only
evidence supporting Alexander's theory of defense. Welch mandates the conclusion that Alexander should
have been allowed to present the jury with his theory.

¶22. We must now consider whether the lower court's failure to give the "theory of defense" instruction was
harmless error. In Giles v. State, 650 So.2d 846 (Miss.1995), we considered the great importance of
granting a theory of defense to an accused, holding that:

      In a homicide case, as in other criminal cases, the court should instruct the jury as to theories and
      grounds of defense, justification, or excuse supported by the evidence, and a failure to do so is error
      requiring reversal of a judgment of conviction. (Citations omitted). Even though based on meager
      evidence and highly unlikely, a defendant is entitled to have every legal defense he asserts to be
      submitted as a factual issue for determination by the jury under proper instruction of the court.
      (Citations omitted). Where a defendant's proffered instruction has an evidentiary basis, properly states
      the law, and is the only instruction presenting his theory of the case, refusal to grant it constitutes
      reversible error.

Id. at 849 (quoting Hester v. State, 602 So.2d 869, 872 (Miss. 1992)).

¶23. This holding is consistent with precedent of the United States Court of Appeals for the Fifth Circuit.
United States v. Rubio, 834 F.2d 442, 446 (5th Cir.1987) ("It has long been well established in this
Circuit that it is reversible error to refuse a charge on a defense theory for which there is an evidentiary
foundation and which, if believed by the jury, would be legally sufficient to render the accused innocent."
(quoting United States v. Lewis, 592 F.2d 1282, 1285 (5th Cir.1979)).

¶24. In Hoover v. State, 552 So. 2d 834, 841 (Miss. 1989), this Court found that unless the substantial
right of a party to a fair trial is affected by an exclusion of evidence, an exclusion will be deemed harmless
error. When dealing with Constitutional issues such as the right to a fair trial involved here, reversal is not
required if "on the whole record, the error was harmless beyond a reasonable doubt." Id. at 841 (citing
United States v. Hastings, 461 U.S. 499, 509, 103 S.Ct. 1974, 1980, 76 L.Ed.2d 96 (1983);
Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 827-28, 17 L.Ed.2d 705 (1967)). See
also, Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Our then
existing rules required a judgment to be affirmed unless the exclusion affected a substantial right of the party
offering the evidence. Darby v. State, 538 So. 2d 1168, 1173-74 (Miss. 1989).

¶25. Examination of the record as a whole reveals that Alexander was unable to even draw an inference
that Wilson's survivors may have had a motive for framing Alexander with a wrongful death suit.
Application of Hoover with the record shows the circuit court's denial of the "theory of defense" instruction
did affect a substantial right in Alexander's quest for a fair trial. During this period of time there was a
possibility, however remote, that someone could have planted the flannel shirt containing drugs for use in
bolstering civil liability against Alexander. He was entitled to present this defense to the jury. Therefore, the
lower Court committed reversible error in failing to grant Alexander's theory of defense.

      IV. WHETHER THE CIRCUIT COURT ERRED IN ADMITTING CONTROLLED
      SUBSTANCES WITHOUT A CREDIBLE CHAIN OF EVIDENCE.

¶26. Alexander argues that the chain of custody for the drug residue was defective and specifically focuses
on the transfer of the contraband from Joe Allen to Sheriff Mike McKee. Allen received the film canister
containing the drug residue from Ray Hill, and he stored the evidence in his chest of drawers for two days
before finally delivering it to Sheriff McKee. Testimony at trial established that no one knew the evidence
was stored in Allen's home during the two day period, no one had access to Allen's bedroom chest of
drawers, and no one tampered with the evidence.

¶27. Sheriff McKee sealed the evidence and delivered it to Officer Cain of the Mississippi Highway Patrol.
Cain delivered the evidence to the Mississippi Crime Lab in Meridian on July the 7th for analysis. While
there is some indication of delays in terms of the time it took for Allen to pass the evidence to McKee, or
for Cain to make the delivery at the Crime Lab, nothing in the record suggests any tampering occurred
during these transfers.

¶28. The test for chain of custody is to ascertain whether there is any indication of tampering or substitution
of the evidence. Gibson v. State, 503 So.2d 230, 234 (Miss.1987). Whether a chain of custody has been
properly established is left to the discretion of the trial court. Nalls v. State, 651 So.2d 1074, 1077
(Miss.1995).

¶29. We are compelled to note the distinction between the "chain of custody" issue and the five-hour lapse
when the wrecked truck was unsecured after the accident and before Hill discovered the contraband. The
chain of custody did not begin until Hill discovered and took possession of the evidence in the truck after it
had been removed from the accident scene and taken to Allen's place of business. The more serious
problem is the fact that the wrecked truck was unsecured for at least five hours. Anyone could have had
access to the wreckage for purposes of "planting" or tampering with the evidence. While this is a critical fact
on the issues discussed above, it does not present a significant problem to the familiar law on "chain of
custody" as discussed here. Because there was no indication from the record that tampering or substitution
of the evidence occurred after Hill discovered the evidence in the wrecked truck, we find no merit in this
issue.

      V. WHETHER THE CIRCUIT COURT ERRED IN SENTENCING THE DEFENDANT
      TO A FELONY INSTEAD OF A MISDEMEANOR.

¶30. Alexander was convicted of possession of methamphetamine and cocaine and given a three (3) year
suspended sentence with a three (3) year supervised probation. The State cites the pertinent part of Miss.
Code Ann. § 41-29-139(c) (Supp.1999) as follows:

      (1) A controlled substance classified in Schedule I or II, except marihuana, in the following amounts
      shall be charged and sentenced as follows:

      (A) Less than one-tenth (0.1) gram or one (1) dosage unit or less may be charged as a
      misdemeanor or felony. If charged by indictment as a felony: by imprisonment not less than one (1)
      nor more than four (4) years and a fine not more than Ten Thousand Dollars ($10,000.00). If charged
      as a misdemeanor: by imprisonment for up to one (1) year and a fine not more than One Thousand
      Dollars ($1,000.00).

(emphasis added). Alexander argues that "[W]hen the facts which constitute a criminal offense may fall
under either of two statutes, or when there is a substantial doubt as to which of the two is to be applied, the
case will be referred to the statute which imposes the lesser punishment." White v. State, 374 So.2d 225,
227 (Miss.1979).

¶31. The present case is clearly distinguishable from White. In that case, we considered two kidnapping
statutes, one of which provided for punishment not to exceed ten (10) years in the penitentiary and the other
which provided the jury to return a sentence for life. The Court was unable to determine which statute was
contained in the indictment, so the defendant's conviction was reversed and remanded for proper
sentencing. We also admonished the Legislature to repeal one of the statutes, retain the other, and prescribe
a just penalty for the crime of kidnapping.

¶32. The case sub judice is different. All parties agree that Alexander was convicted of possession of
cocaine and methamphetamine under Miss. Code Ann. § 41-29-115(a)(C)(3) (Supp. 1999), which
establishes the elements of criminal possession for controlled substances and sentencing directives. In
White, there were two statutes for kidnapping which set forth the elements of the crime and different
punishments for a conviction in each statute. In the instant case, Alexander was convicted of possession
under one statute that defined the elements and the provisions for punishment according to whether the
indictment was for a felony or a misdemeanor, and the indictment was for a felony.

¶33. Since Alexander was convicted and sentenced under the only statute providing for the elements and
punishment of these crimes, the sentence would have been proper had he been justly convicted because
Miss. Code Ann. § 41-29-139(c)(1)(A) clearly says that the crime of possession in the indictment "may be
charged as a misdemeanor or felony." The statute then gives guidelines for sentencing on a felony charge or
a misdemeanor charge. Therefore, the sentence would have been proper but for the fact that the trial court
committed reversible error as set forth in the preceding issues. This issue is consequently without merit.

                                              CONCLUSION

¶34. Upon conviction of the criminal defendant, the presumption of innocence is replaced by a presumption
that the conviction is valid and may only be rebutted by a finding of reversible error on appeal. Chapman
v. State, 725 So.2d 744, 745 (Miss.1998) (citing Gollott v. State, 646 So.2d 1297 (Miss.1994)).
When a defendant challenges the sufficiency of the evidence to support a conviction, the evidence which
supports the verdict is accepted as true by the reviewing court, and the State is given the benefit of all
reasonable inferences flowing from the evidence. Id. at 745, citing Rhodes v. State, 676 So.2d 275, 281
(Miss. 1996). In spite of this highly deferential standard of review, we conclude that the evidence in the
record is insufficient to convict Alexander of possession of cocaine and methamphetamine.

¶35. The only evidence in this case which implicates Alexander is the film canister contained in the flannel
shirt which was recovered from the wreck five hours after the accident. The physical presence of the drugs
in the film canister is rendered highly suspect, however, by the fact that five hours elapsed from the time of
the accident until Ray Hill discovered the evidence. Moreover, there was no evidence in the record which
linked the drugs to Alexander. The State completely failed to establish that the shirt, coin purse or film
canister belonged to Alexander. Absent such proof, the circumstantial evidence remaining is insufficient to
support a verdict of guilty in this case. Giving all reasonable evidentiary inferences to the State, we
nevertheless conclude that the State failed to meet its burden of proving Alexander guilty beyond a
reasonable doubt. See McQueen v. State, 423 So.2d 800 (Miss.1972); Martin v. State, 361 So.2d 68
(Miss.1978); Cunningham v. State, 583 So.2d 960 (Miss.1991); Corbin v. State, 585 So.2d 713
(Miss.1991). Therefore, we reverse the judgment of the Kemper County Circuit Court, and we render
judgment here acquitting and discharging Al Glenn Alexander.

¶36. REVERSED AND RENDERED; APPELLANT DISCHARGED.

     PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE,
     SMITH, WALLER AND COBB, JJ., CONCUR.
