                       IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2003-CT-00648-SCT

RICHARD EARL KERNS, JR. AND HOWARD
THOMAS McKINNEY

v.

STATE OF MISSISSIPPI


                                ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                           11/20/2002
TRIAL JUDGE:                                HON. FRANK G. VOLLOR
COURT FROM WHICH APPEALED:                  WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                   CLAYTON LOCKHART
                                            TRAVIS T. VANCE
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: W. GLENN WATTS
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                THE JUDGMENT OF THE COURT OF
                                            APPEALS AS TO HOWARD THOMAS
                                            McKINNEY IS REVERSED, AND THE
                                            JUDGMENT OF THE WARREN COUNTY
                                            CIRCUIT COURT IS AFFIRMED - 12/08/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       RANDOLPH, JUSTICE, FOR THE COURT:

¶1.    Upon executing a search warrant on July 24, 2001, officers from the Warren County

Sheriff’s Department found numerous precursor chemicals to crystal methamphetamine, along

with the completed product, filters, scales, and plastic bags, under the stilt-structured mobile
home of Richard Earl Kerns, Jr. Kerns and Howard Thomas McKinney were present when the

officers conducted the search and were placed under arrest at that time. At trial, McKinney’s

motion for a directed verdict was overruled and he was subsequently found guilty of

manufacture of a controlled substance (Count I), possession of a controlled substance with

intent to distribute (Count II), and possession of precursor chemicals with intent to

manufacture a controlled substance (Count III).1        Following the jury verdict, McKinney was

sentenced to serve 30 years for Count I, 20 years for Count II, and 30 years for Count III.2 His

sentence under Count III was subject to enhancement for possession of a firearm under Miss.

Code Ann. § 41-29-152.3 Kerns was also convicted. After motions for JNOV or a new trial


       1
        As to Counts I and II, Miss. Code Ann. § 41-29-139(a)(1) applies:
       (a)Except as authorized by this article, it is unlawful for any person
       knowingly or intentionally:
       (1)To sell, barter, transfer, manufacture, distribute, dispense or possess with
       intent to sell, barter, transfer, manufacture, distribute, or dispense, a
       controlled substance . . . . (emphasis added).
       As to Count III, § 41-29-313(1)(a)(i) (Rev. 2001) applies:
       (1)(a)Except as authorized in this section, it is unlawful for any person to
       knowingly or intentionally:
       (i)Purchase, possess, transfer or distribute any two (2) or more of the listed
       precursor chemicals or drugs in any amount with the intent to unlawfully
       manufacture a controlled substance . . . . (emphasis added).
       2
         The time served for Count I was to be consecutive with 10 years suspended, while
the time served for Counts II and III was to be concurrent.
       3
        § 41-29-152(1) states, in part that:
       (1)Any person who violates Section 41-29-313 or who violates Section 41-
       29-139 with reference to a controlled substance listed in Schedule I, II, III,
       IV or V as set out in Sections 41-29-113 through 41-29-121 . . . and has in
       his possession any firearm, either at the time of the commission of the
       offense or at the time any arrest is made, may be punished by a fine up to
       twice that authorized by Section 41-29-139 or 41-29-313, or by a term of
       imprisonment or confinement up to twice that authorized by Section 41-29-
       139 or 41-29-313 or both.

                                                  2
were denied by the trial court, they appealed and this Court assigned the appeal to the

Mississippi Court of Appeals.

¶2.        The Court of Appeals affirmed Kerns’s convictions but reversed and rendered

McKinney’s convictions finding that:

           [a]t most, Pennington’s testimony evidences that McKinney exercised control
           over one enumerated chemical, not two chemicals as required by section 41-29-
           313(1)(a)(I). No testimony or evidence . . . produced support that McKinney
           exercised control over other precursor chemicals present at Kerns’s trailer.
           There was no testimony that McKinney participated in manufacturing the
           methamphetamine, other than testimony that he was present at the lab.
           Furthermore, there was no testimony that McKinney exercised any dominion or
           control over the methamphetamine that was retrieved from the trailer.

Kerns v. State, – So. 2d –, 2005 WL 757591 at *5 (Miss. Ct. App. 2005). The concurring-in-

part and dissenting-in-part opinion of Judge Griffis, joined by Presiding Judge Bridges and

Judges Myers and Barnes, dissented from reversing and rendering McKinney’s conviction,

finding:

           [c]onstructive possession may be shown by establishing that the drug involved
           was subject to the defendant’s dominion or control. . . . Control over the
           substance was evidenced by the fact that McKinney was found within two feet
           of the meth lab with a handgun and had ammunition for the handgun nearby.
           Surrounding him were numerous precursor chemicals and he smelled of ether.
           Furthermore, a witness testified that she heard McKinney make arrangements
           to buy the ingredients of meth. Based on this evidence, I am of the opinion that
           there was sufficient evidence to support McKinney’s convictions.

Id. at *6.

¶3.        On April 19, 2005, the State of Mississippi filed a motion for rehearing. That motion

was denied by the Mississippi Court of Appeals on June 28, 2005.         Thereafter, the State of

Mississippi filed a petition for writ of certiorari with this Court, seeking review of one issue:

was the decision of the Court of Appeals in conflict with its own decisions and with the criteria


                                                  3
for establishing constructive possession as stated by the Mississippi Supreme Court?           The

petition was granted by Order of this Court on September 8, 2005.

                                              FACTS

¶4.    Randy Lewis of the Warren County Sheriff’s Office testified that a working laboratory

for manufacturing methamphetamine was present under Kern’s stilt-structured mobile home.

Tara Milam of the Mississippi Crime Laboratory corroborated Lewis’s testimony, concluding

that the laboratory was in the final stages of producing consumable methamphetamine when

the arrests were made. At the time of arrest, McKinney was identified by Officer Jeff Crevitt

as being within two feet of methamphetamine in liquid form (“methamphetamine oil”). All that

remained necessary for crystal methamphetamine to be formed was exposure of the

methamphetamine oil to hydrogen chloride gas.        Hydrogen chloride gas can be formed using

the combination of Coke bottles with hoses inserted, rock salt, and sulfuric acid; all of which

were present at the scene.

¶5.    Lewis testified that the “Nazi method” for producing methamphetamine was being used

in the laboratory.   This method allows for the transformation of cold pills, pseudoephedrine,

into crystal methamphetamine.      This process requires numerous chemical reactions, with a

filtering of the resulting products, such that the substance(s) an individual would see at any

stage during the manufacturing process would depend upon the stage of the process.

¶6.    According to Milam, the precursor chemicals openly present near McKinney at the time

of his arrest included ether, sulfuric acid, and either ephedrine or pseudoephedrine. McKinney

offered no explanation for why he was within close proximity to the precursor chemicals.

According to Officer Crevitt, the lab smelled strongly of ether.        There were six, forty-eight


                                                 4
(48) count boxes of cold pills, the starting product under the “Nazi method,” in the room.

Moreover, tin foil and coffee filters in the room tested positive for burned methamphetamine,4

and scales and bags in the room provided further evidence for the jury to consider that the

methamphetamine was being manufactured for distribution.

¶7.     Jamie Pennington, the girlfriend of Richard Kerns, testified that McKinney was

involved    with   manufacturing      methamphetamine,      as   she   had    watched   him   “cook”

methamphetamine in the past. She also testified that McKinney had been at Kerns’s trailer on

a continuing basis for months and that she had heard him discussing the acquisition of

anhydrous ammonia 5 with Kerns.         Moreover, Pennington testified that she took McKinney to

get anhydrous ammonia “around the first of April,” and had taken him to purchase more just

two days prior to the search and his arrest.

¶8.     When arrested, a Lorcin .38 handgun halfway out of its holster, was found underneath

McKinney, and within his reach was a box of matching ammunition. This Court has recognized

weapons like handguns as “tools of the drug trade.” Hemphill v. State, 566 So. 2d 207, 209

(Miss. 1990). These facts undergirded the imposition of § 41-29-152(1).

                                               ANALYSIS

¶9.     The standard of review binding an appellate court in overturning a jury verdict is strictly

limited. In making that determination, the Court should weigh “the evidence in the light most



        4
         Tin foil and straws are used in the smoking or inhaling of methamphetamine.
Coffee filters are used to render the finished product by removing impurities.
        5
        Anhydrous ammonia is a precursor chemical used in the final stages of
manufacturing methamphetamine from pseudoephedrine and is listed as a “precursor drug
or chemical” under Miss. Code Ann. § 41-29-313(1)(b)(ii).

                                                  5
favorable to the prosecution.” Dilworth v. State, 909 So. 2d 731, 736 (Miss. 2005). However,

if the facts and evidence considered in a challenge to the sufficiency of the evidence “point in

favor of the defendant on any element of the offense with sufficient force that reasonable men

could not have found beyond a reasonable doubt that the defendant was guilty,” Edwards v.

State, 469 So. 2d 68, 70 (Miss. 1985), the appellate court should reverse and render the jury

verdict.

¶10.       McKinney argued to the Court of Appeals that the State failed to present any witnesses

who affirmatively observed McKinney manufacturing crystal methamphetamine on July 24,

2001, at Kerns’s residence or actually recovered any drugs, precursor chemicals, or other

contraband from McKinney’s person at that time. As such, the State was required to establish

“constructive possession” by McKinney to sustain his conviction.        McKinney argued, and the

Court of Appeals agreed, that the State had failed to meet that “constructive possession”

burden. 6

¶11.       This Court has established that:

           [w]hat constitutes a sufficient external relationship between the defendant and
           the narcotic property to complete the concept of ‘possession’ is a question
           which is not susceptible to a specific rule. However, there must be sufficient
           facts to warrant a finding that defendant was aware of the presence and
           character of the particular substance and was intentionally and consciously
           in possession of it. 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. Proximity is usually an essential element, but by itself
           is not adequate in the absence of other incriminating circumstances.



           6
         For instance, McKinney’s brief asserted that “the jury verdict of guilty for
possession of precursor chemicals cannot stand as there was never any evidence that
McKinney possessed more than one precursor chemical on July 22, 2001, and not the
requisite two or more that is required by [§ 41-29-313(1)(a)(I)].”

                                                  6
Curry v. State, 249 So. 2d 414, 416 (Miss. 1971) (emphasis added). See also Keys v. State,

478 So. 2d 266, 268 (Miss. 1985) (“[a]n item is within one’s constructive possession when

it is subject to his dominion or control.”). “[W]hen contraband is found on premises which are

not owned by a defendant, mere physical proximity to the contraband does not, in itself, show

constructive possession.” Cunningham v. State, 583 So. 2d 960, 962 (Miss. 1991) (emphasis

added).     In that situation, “the state must show additional incriminating circumstances to justify

a finding of constructive possession.” Fultz v. State, 573 So. 2d 689, 690 (Miss. 1990). See

also Powell v. State, 355 So. 2d 1378, 1379 (Miss. 1978) (“Where 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.”).

Essentially, “when contraband is found on premises, there must be evidence, in addition to

physical proximity, showing 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.

¶12.      In Bell v. State, the Court of Appeals found the jury had reasonably concluded that Bell

constructively possessed the methamphetamine found in her house because of:

          Bell’s proximity to the drugs, Garcia’s statements that Bell was involved with
          the methamphetamine production and that Bell received the finished product,
          and testimony that it would be nearly impossible for a resident to miss the
          strong smell generated by cooking methamphetamine.

830 So. 2d 1285, 1288 (Miss. Ct. App. 2002). Similarly, in Blissett v. State, this Court found

that an arresting officer’s testimony that the car Blissett was driving had a “strong,

overpowering odor of unburned marijuana” aided in establishing constructive possession


                                                  7
through “circumstantial evidence showing Blissett knew or should have known of the

marijuana’s presence in the trunk of the vehicle.” 754 So. 2d 1242, 1244 (Miss. 2000).

¶13.    By contrast, in Jones v. State, 693 So. 2d 375 (Miss. 1997), an automobile with Jones

and Jawara inside was stopped and searched. The search yielded a jacket containing a bag of

marijuana, a briefcase with a revolver inside, a scale, and approximately twelve pounds of

marijuana in the trunk.       See id. at 375-76.   However, Jones’s conviction for possession of

more than one kilogram of marijuana was reversed and rendered by this Court’s finding that:

        [i]n 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 . . . .

Id. at 377. Similarly, in Ferrell v. State, this Court reversed and rendered Ferrell’s conviction

for possession of crack cocaine (found in a matchbox between the front seats of the vehicle

driven by Ferrell) because:

        [a]s the operator of the car, Ferrell had dominion and control over the
        contraband discovered in the car. However, he was not the owner of the car;
        therefore, the State was required to establish additional incriminating
        circumstances in order to prove constructive possession. The State claims that
        the location of the matchbox next to the driver’s seat and the 15 hours which
        Ferrell had possession of the car amounted to additional incriminating
        circumstances.      These contentions are incorrect.    Just as in Fultz, the
        contraband was not positioned in such a way that its presence would be
        reasonably apparent to a person riding in the car. The mere fact that the
        matchbox was only a matter of inches from where the defendant was sitting,
        rather than in the trunk, does not overcome the fact that the crack was cloaked.
        . . . Furthermore, Ferrell’s possession of the car for a mere 15 hours does not
        qualify as an incriminating circumstance.



                                                   8
649 So. 2d 831, 835 (Miss. 1995) (emphasis added). This Court has also held that the mere

presence of “‘drug paraphernalia’ such as ziplock bags and a pager found at the scene” are not

“probative as to the issue of constructive possession.” Martin v. State, 804 So. 2d 967, 970

(Miss. 2001).

¶14.    Here, the methamphetamine was found on premises not owned by McKinney. As such,

additional incriminating circumstances connecting McKinney with the methamphetamine

and/or the precursor chemicals are required to establish constructive possession.                Obviously

the jury was satisfied, as this Court is, that such additional incriminating circumstances existed

to find constructive possession.      Since the Court should weigh “the evidence in the light most

favorable to the prosecution,” Dilworth, 909 So. 2d at 736, the Court of Appeals decision

should be overturned unless “reasonable men could not have found beyond a reasonable doubt

that the defendant was guilty.”       Edwards, 469 So. 2d at 70.            An evaluation of the evidence

presented establishes the reasonableness of the jury verdict.

¶15.    This case is clearly distinguishable from Jones, Ferrell, and Martin. Here, a plethora

of additional incriminating facts and circumstances supports McKinney’s awareness of the

“presence and character” of the precursor chemicals and methamphetamine, as well as his

intentional and conscious possession of them.           Curry, 249 So. 2d at 416.             Not only was

McKinney present at an operating methamphetamine laboratory which smelled strongly of

ether; he was within two feet of methamphetamine oil, surrounded by the necessary precursor

chemicals    for   both    creating    methamphetamine          oil   and   converting   it    into   crystal

methamphetamine, in possession of a Lorcin .38 handgun and within reach of ammunition, and

in close proximity to tin foil and coffee filters which tested positive for methamphetamine.

                                                    9
Furthermore, according to the uncontradicted testimony of Jamie Pennington, McKinney was

continually at the premises which housed the methamphetamine laboratory, had purchased

anhydrous ammonia as late as two days before his arrest, and was involved in the manufacture

of crystal methamphetamine.        This evidence soars above and beyond mere presence, and

conclusively establishes constructive possession.

                                           CONCLUSION

¶16.     Here, there was more than sufficient evidence from which jurors could reasonably

conclude that McKinney was in constructive possession of both the precursor chemicals and

the finished product at the lab.        Therefore, the Court of Appeals erred in reversing and

rendering the trial court’s judgment as to McKinney.     We affirm the trial court’s judgment in

its entirety.

¶17. AS TO HOWARD THOMAS McKINNEY: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED. COUNT I: CONVICTION OF MANUFACTURE OF
METHAMPHETAMINE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. PAYMENT
OF A FINE OF $5,000 IS SUSPENDED. COUNT II: CONVICTION OF POSSESSION
OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE AND SENTENCE OF
TWENTY (20) YEARS, TEN (10) YEARS TO SERVE, TEN (10) YEARS SUSPENDED
FOR FIVE (5) YEARS POST RELEASE SUPERVISION WITH CONDITIONS, IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH SENTENCE IN
COUNT I.      COUNT III: CONVICTION OF POSSESSION OF PRECURSOR
CHEMICALS WITH INTENT TO MANUFACTURE METHAMPHETAMINE AND
SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III SHALL
RUN CONCURRENTLY WITH SENTENCE IN COUNT I.

AS TO RICHARD EARL KERNS, JR.: COUNT I: CONVICTION OF MANUFACTURE
OF METHAMPHETAMINE AND SENTENCE OF THIRTY (30) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
PAYMENT OF A FINE OF $5,000 IS SUSPENDED. COUNT II: CONVICTION OF
POSSESSION OF METHAMPHETAMINE WITH INTENT TO DISTRIBUTE AND


                                                    10
SENTENCE OF TWENTY (20) YEARS, TEN (10) YEARS TO SERVE, TEN (10) YEARS
SUSPENDED FOR FIVE (5) YEARS POST RELEASE SUPERVISION WITH
CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED.       SENTENCE IN COUNT II SHALL RUN
CONSECUTIVELY WITH SENTENCE IN COUNT I. COUNT III: CONVICTION OF
POSSESSION OF PRECURSOR CHEMICALS WITH INTENT TO MANUFACTURE
METHAMPHETAMINE AND SENTENCE OF THIRTY (30) YEARS IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE
IN COUNT III SHALL RUN CONCURRENTLY WITH SENTENCE IN COUNT I.

     SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, CARLSON AND
DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS WITHOUT SEPARATE WRITTEN
OPINION. DIAZ, J., NOT PARTICIPATING.




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