                           IN THE SUPREME COURT OF MISSISSIPPI
                                    NO. 95-CT-00162-SCT
THOMAS WAYNE HAMM AND

TERRI WRIGHT HAMM
v.
STATE OF MISSISSIPPI
                           ON PETITION FOR WRIT OF CERTIORARI
DATE OF JUDGMENT:                                 02/10/95
TRIAL JUDGE:                                      HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED:                        JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                           KENNETH K. CRITES
ATTORNEY FOR APPELLEE:                            OFFICE OF THE ATTORNEY GENERAL
                                                  BY: PAT FLYNN
DISTRICT ATTORNEY:                                DALE HARKEY
NATURE OF THE CASE:                               CRIMINAL - FELONY
DISPOSITION:                                      REVERSED AND RENDERED - 03/25/1999
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                   4/15/99




     EN BANC.


     PITTMAN, PRESIDING JUSTICE, FOR THE COURT:

                                     STATEMENT OF THE CASE

¶1. Terri Wright Hamm was convicted of possession of more than one kilogram of marijuana with intent to
distribute and possession of methamphetamine, and sentenced to serve five years in the custody of the
Mississippi Department of Corrections on the first count, and three years in the custody of the Mississippi
Department of Corrections on the second count, with said sentences to run concurrently. She appealed, and
her case was assigned to the Court of Appeals, which affirmed her conviction. Wright filed a Petition for
Writ of Certiorari wherein she challenges the Court of Appeals opinion regarding the sufficiency of the
evidence and the trial court's denial of certain jury instructions requested by her. Because we find that the
evidence presented at trial is insufficient to support Hamm's conviction, we reverse and render.

                                                  FACTS

¶2. On August 23, 1993, Sergeant Potts and Captain Randy Sibley of the Mississippi Highway Patrol were
working on Interstate 10 in Jackson County, Mississippi. Inspector Bruce Ford, Jr. and Inspector Wayne
Dupont of the Mississippi Public Service Commission (MPSC) were working in conjunction with Officers
Potts and Sibley, who used a radar device to determine that an eighteen-wheel tractor-trailer truck which
Thomas Hamm was driving, and his wife Terri Hamm was riding in as a passenger, was speeding. Officers
Potts and Sibley did not stop the vehicle immediately, but instead waited until Hamm drove it into the
Orange Grove weighing station off the Interstate, where MPSC Inspectors Ford and Dupont were waiting.

¶3. When Hamm pulled the truck onto the scales, Sergeant Potts pulled his patrol car beside the truck, and
signaled the scales' operator to turn on a light which directed Hamm to drive around to the rear of the scales
building where Inspectors Ford and Dupont were waiting to inspect the truck to determine if Hamm was
operating it legally. After Captain Sibley issued a warning citation for speeding to Thomas Hamm, Inspector
Ford began his inspection. It was determined that Thomas Hamm owned both the Peterbilt tractor and the
trailer which it was pulling.

¶4. Ford asked for, and obtained from, Thomas Hamm the paperwork he was required by state and
federal law to carry regarding the vehicle and its load. The paperwork contained five bills of lading for
Hamm's load of limes and mangoes. Sergeant Vernon Gazzo arrived on the scene and obtained Thomas
Hamm's permission to search the cab of his Peterbilt. As Terri Hamm stepped down from the truck
pursuant to the officer's, Gazzo saw a one-foot square cutting board with a single-edged razor blade and a
gray tube lying there with it between the seats. Gazzo then searched the closet in the sleeper behind the
truck seats, where he found a red tin can which contained a small quantity of marijuana.

¶5. Inspectors Ford and Dupont asked Thomas Hamm to open the refrigerated trailer, which was locked
with a padlock. Mr. Hamm unlocked the padlock with his key, and Inspector Dupont entered the trailer to
inspect the load. Toward the front of the trailer, Inspector Dupont observed a load of limes which he
testified were spoiled, rotten, and molded. In front of the limes he found four U-Haul cardboard boxes
containing several packages of marijuana, later determined to weigh 196 pounds, which had been
individually wrapped in transparent wrap.

¶6. Both of the Hamms were arrested, and Sergeant Potts drove Hamm's vehicle to a truck-freight yard in
Gulfport where he left it for the night. The next morning as he completed the search of the trailer, Sergeant
Potts found a small brown box wrapped in gray duct tape which contained methamphetamine, and $6,000
currency wrapped in a bundle.

¶7. Terri Hamm was jointly indicted with her husband for possession of more than one kilogram of
marijuana with intent to distribute and possession of methamphetamine. A joint trial resulted in a jury
convicting Terri Hamm and her husband being convicted of possession of more than one kilogram of
marijuana with intent to distribute and possession of methamphetamine. Terri Hamm was sentence to pay a
fine of $10,000, to pay a lab fee of $125, and to serve five years in the custody of the Mississippi
Department of Corrections for the possession of marijuana with intent to distribute conviction, and to pay a
fine of $1,000, to pay a lab fee of $125, and to serve three years in the custody of the Mississippi
Department of Corrections for the possession of methamphetamine conviction.

¶8. The Hamms appealed and filed separate briefs; however Thomas Hamm joined in all issues his wife
presented pursuant to Rule 28(i) of the Mississippi Rules of Appellate Procedure. The case was assigned to
the Court of Appeals which affirmed both convictions. Terri Hamm only filed a Petition for Writ of
Certiorari seeking review of the Court of Appeals' holding regarding the sufficiency of the evidence and the
trial court's denial of certain jury instructions she offered.

                                                    ANALYSIS

                                                          I.

                                  Insufficient Proof of Intent to Distribute

¶9. In her petition, Hamm first alleges that the evidence was insufficient to support her conviction in that the
State failed to prove that she had possession, either constructive or actual, of the illegal substances found in
the tractor-trailer. She alleges that the opinion of the Court of Appeals is in conflict with Fultz v. State,
573 So.2d 689 (Miss. 1990); Ferrell v. State, 649 So.2d 831 (Miss. 1995); Curry v. State, 249 So.2d
414 (Miss. 1971), and Berry v. State, 652 So.2d 745 (Miss. 1995).

¶10. On this issue, the Court of Appeals found:

      Unlike her husband, Terri Hamm did not own the truck, and she did not have a commercial driver's
      license. Neither did the State demonstrate that she had a key which would unlock the padlock on the
      doors of the refrigerated trailer.

      In her argument on this issue, Terri Hamm stresses that her counsel asked MHP Sergeant Potts,
      MPSC Inspector Ford, MHP Sergeant Gazzo, MPSC Inspector Dupont, and Agent Sam Owens
      with the Mississippi Bureau of Narcotics if any of them had any evidence to connect her with the
      contraband other then her proximity to it and that all six of them could supply no other evidence.

      We have already recited that Terri Hamm traveled with her husband in his Peterbilt truck and trailer
      from their home in Tennessee to Houston and on to South Texas where they were loaded with limes
      and mangoes for transportation to Jacksonville and Tampa, Florida. Sam Owens testified that Miami
      was recognized as a destination for controlled substances shipped into the United States from other
      countries and as a point from which these controlled substances were distributed throughout the
      United States. The State introduced into evidence a photocopy of a hotel bill from Budget Inn in
      Richmond, Texas, for the night of August 23, 1993, in the name of Terri Hamm. The Hamms testified
      that Terri Hamm alone spent the night in Budget Inn while her husband unloaded the freight in his
      trailer in Houston, Texas.

      The hotel bill included the charge for two long-distance telephone calls which were placed from the
      telephone in the room, the first of which was made to (813) 639-9870 at 10:08 p.m., and the second
      of which was made to (813) 639-9933 at 11:15 p.m. Sam Owens testified that both of these
      telephone numbers were pay telephones located in Miami, Florida. During the direct-examination of
      Terri Hamm, she testified that she did not remember making any telephone calls from her room in the
      Budget Inn the night of August 23. Terri Hamm's memory did not improve under the State's cross-
      examination about these telephone calls.

      In Martin v. State, 413 So. 2d 730, 732 (Miss. 1982), the Mississippi Supreme Court opined that
      the elements of constructive possession may be proved by circumstantial evidence. Terri Hamm
      testified in her own behalf, but from her inability to remember having made two telephone calls to pay
      phones in Miami, the jury may well have been warranted in infer [sic] that the calls related to the
      delivery of the contraband which Terri Hamm knew her husband was going to pick up in South Texas
     and deliver after he arrived in Florida. "If it be sufficient to support an inference of guilt and the
     defendant fails to offer a reasonable explanation consistent with innocence, such failure may be
     considered by the trier of fact." Ohio v. Clay, 280 N.E.2d 385, 388 (Ohio Ct. App. 1972).

                                              **********


     From all the evidence which the State adduced in the trial sub judice, we permit the jury to infer from
     the telephone calls made to two pay-phones in Miami by Terri Hamm, the presence of the
     paraphernalia and small quantity of marijuana in a tin can in the closet of the sleeper of her husband's
     truck, and her accompaniment of her husband from Tennessee to South Texas to Florida that Terri
     Hamm knew that her husband's trailer was carrying more than limes and mangoes. We hold that "a
     reasonable and fair-minded [jury] could . . . find [Terri Hamm] guilty," and we affirm the trial court's
     denial of her motion for JNOV.

(Court of Appeals opinion at pages 18-19).

¶11. The constructive possession rule was set forth in Curry v. State, 249 So.2d 414 (Miss. 1971),
wherein this Court stated:

     What 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 of 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.

249 So.2d at 416.

¶12. In Hudson v. State, 362 So.2d 645 (Miss. 1978), this Court held:

     The only evidence of constructive possession was: (1) the admissions of Randolph and Vincent that
     they had known Blue for about three weeks, had driven in the car previously with him, and on one
     occasion Vincent had driven in the car alone; (2) that when the marijuana was found, Vincent was in
     the backseat asleep and Randolph was in a cafe in front of which the car was parked; and (3) that
     Vincent told the officers Randolph had driven the car to the cafe with him and Blue as passengers,
     although Vincent denied this at trial and contended that he did not know who drove the car because
     he was asleep.

     There is no evidence in this case that the defendants exercised dominion and control over the
     marijuana. First, even the proximity is questionable since the marijuana was not inside the car, but
     secreted under the hood of the car. Second, even if such were sufficient to satisfy the proximity
     requirement, nevertheless, there is a total absence of "other incriminating circumstances" as required
     by the Curry decision.

     We also note that the test of Curry is dominion and control over the marijuana not dominion and
     control over the automobile. The proof arguably might show temporary dominion and control over the
      automobile, however absent other circumstances, this alone will not suffice to prove dominion and
      control over the marijuana in a situation such as here presented.

Hudson at 646-647.

¶13. In Cunningham v. State, 583 So.2d 960 (Miss. 1991) the Court stated:

      The prosecution in this case was required to prove Mr. Cunningham "knowingly or intentionally"
      possessed the cocaine found inside the truck. In Curry v. State, 249 So.2d 414 (Miss.1971), we
      acknowledged a single, mechanical rule could not serve to test whether the prosecution met this
      standard of proof in individual cases; rather, each case must be viewed in light of its individual facts
      and circumstances:

      [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 dominion or
      control. Proximity is usually an essential element, but by itself is not adequate in the absence of other
      incriminating circumstances. Curry at 416.

      In Keys v. State, 478 So.2d 266 (Miss.1985), we further found that "[a]n item is within one's
      constructive possession when it is subject to his dominion or control." Keys at 268.

      A presumption of constructive possession arises against the owner of premises upon which
      contraband is found. Hamburg v. State, 248 So.2d 430, 432 (Miss.1971); Pool v. State, 483
      So.2d 331, 336-337 (Miss.1986). However, when 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. As we stated in Fultz v. State, 573 So.2d 689, 690 (Miss.1990), "the state
      must show additional incriminating circumstances to justify a finding of constructive possession."
      Similarly, in Powell v. State, 355 So.2d 1378, 1379 (Miss.1978), we found "[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." Citing
      Sisk v. State, 290 So.2d 608, 610 (Miss.1974); see, also, Jackson v. State, 566 So.2d 477, 476
      (1990); Hudson v. State, 362 So.2d 645, 647 (Miss.1978).

      In summary, these cases establish that 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 v. State, 583 So.2d 960, 962 (Miss. 1991) (footnote omitted).

¶14. In Fultz v. State, 573 So.2d 689 (Miss. 1990), Fultz was pulled over for erratic driving and arrested
after failing three field sobriety tests. Upon conducting an inventory search of the vehicle Fultz was driving, a
blue duffel back containing several bags of marijuana was found in the trunk. A small amount of marijuana
was also found on Fultz when he was searched at the Desoto County Jail. Fultz denied any knowledge of
the marijuana in the trunk, and the vehicle in which the contraband was found belonged to his sister. Fultz
at 689-690. Fultz was convicted, and on appeal, he argued that the evidence was insufficient to prove he
knowingly and intentionally possessed marijuana(1).
¶15. We reversed and rendered his conviction stating:

      In this case, the only additional incriminating circumstance was that the defendant had a small amount
      of marijuana on his person at the time of the arrest. We hold that this factor, standing alone, is
      insufficient to prove any connection between the contraband and this defendant. The other facts that
      the state relies on to prove a connection between the contraband and this defendant are that he
      admitted smoking marijuana and that he had made several "unexplained stops during the night" and
      that it would be illogical for someone to leave their drugs in a vehicle that someone else would drive.
      We fail to see how these "facts" tend to connect the defendant to the drugs.

      Evidence of such a questionable quality cannot take the place of good police work. We cannot help
      but wonder why the police department failed to dust the trunk for fingerprints or for that matter the
      bags themselves. Also why didn't they try to determine if the defendant owned the duffel bag or any
      of the other items in the trunk. This could have bolstered their case considerably. It also would have
      been helpful to question the owner of the car. In light of this poor police work, and the absence of any
      evidence connecting the defendant with the trunk or any of its contents, we have no choice but to
      reverse this conviction and discharge the defendant.

Fultz at 691.

¶16. In Jones v. State, 693 So.2d 375 (Miss. 1997), Jones and Jawara were stopped by two deputy
sheriffs. A search of the vehicle yielded a jacket in the back seat which contained a bag of marijuana. Jones
and Jawara were arrested, and a subsequent inventory search of the vehicle was conducted. A revolver
was found in a brief case in the back seat, a set of scale was found in the car, and approximately twelve
pounds of marijuana was found in the trunk of the automobile. Jones at 375-376. Jones was convicted of
possession of more than one kilogram of marijuana, and on appeal he argued that the trial court erred in
denying his motion for a directed verdict. The Court reversed and rendered, and in so doing stated:

      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.

Jones at 377.

¶17. In the present case, there was no competent evidence which linked Terri Hamm to the any of the
contraband. There was no evidence that she made the telephone calls to Miami, nor was there any evidence
that she was in the room when the telephone calls were made. The only evidence the State brought forth
regarding the telephone calls was that the calls were made from Hamm's motel room to Miami, which is a
destination and distribution point for illegal narcotics. The fact that marijuana and marijuana cigarettes were
found in the cab of the truck is of no help to the State's case.

¶18. In Ferrell v. State, 649 So. 2d 831, Appellant was convicted of possession of crack cocaine. The
contraband was located in a matchbox between the front seats of the vehicle. We held:

      In Cunningham v. State, 583 So.2d 960, 961 (Miss.1991), a passenger in a vehicle was convicted
      of possession after police found cocaine on the floor of the vehicle. In overturning the conviction, the
      Court found that the prosecution failed to establish that the defendant had possession of the cocaine.
      Id. at 962.

Ferrell at 835.

¶19. The Court went on to say:

      As 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. Cunningham, 583 So.2d at 962. Furthermore, Ferrell's possession of the car for
      a mere 15 hours does not qualify as an incriminating circumstance.

Id.

¶20. In Berry v. State, 652 So.2d 745 (Miss. 1995), this Court held that there was insufficient evidence to
prove possession of cocaine even though Berry handled a package which contained crack cocaine. There
we stated:

      These facts are not sufficient to evince that Berry had any control over the drugs under Callahan. He
      simply place them in the glove compartment at Anderson's request, in Anderson's car, and in
      Anderson's presence. There was no evidence that he owned the drugs, paid for them, or controlled
      them in any manner.

Berry at 751. See also Fultz v. State, 573 So.2d 689 (Miss. 1990).

¶21. In the present case, the evidence shows that the contraband was located in the locked trailer of the
truck in which Terri Hamm was riding in as a passenger. Thomas Hamm was both the owner and operator
of the truck. Terri Hamm did not have a key to the trailer which was locked. There was no other competent
evidence to link her to the contraband, and therefore, because there was insufficient evidence to support the
conviction, Terri Hamm's conviction is reversed and rendered.

                                                      II.

                                Error in Denying Jury Instruction D 2-12

¶22. In her petition, Terri Hamm also argues that the Court of Appeals erred in affirming the trial court's
denial her jury instruction D 2-12. She argues that the instruction would have set forth the principle set forth
in Cunningham v. State, 583 So. 2d 960, 962-963 (Miss. 1991), which states that mere proximity is
insufficient to establish dominion and control. She alleges that this error forever closed the possibility of her
being acquitted over what was clear error by the trial court. Because we reverse and render based on
insufficiency of the evidence, we decline to address this issue.

                                               CONCLUSION

¶23. Terri Hamm did not own the vehicle in which the marijuana and methamphetamine were found, and as
such, there must be other evidence connecting her to the illegal substances to warrant a finding that she was
intentionally and consciously in possession of them. In this particular case there was no such evidence, and
therefore this Court has no alternative but to reverse and render the conviction. The judgment of the Court
of Appeals and the Jackson County Circuit Court is reversed and rendered.

¶24. REVERSED AND RENDERED. TERRI WRIGHT HAMM DISCHARGED.

PRATHER, C.J., SULLIVAN, P.J., BANKS, SMITH, MILLS AND WALLER, JJ., CONCUR.
McRAE, J., NOT PARTICIPATING.


1. Fultz did not deny knowledge of the marijuana found in his wallet, and was prosecuted for misdemeanor
possession in a separate proceeding which was not before the Court. Fultz at 690 (fn. 2).
