        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                             NO. 2015-KA-01703-COA

ANDREW ACIE ADAMS A/K/A ANDREW                                         APPELLANT
ADAMS

v.

STATE OF MISSISSIPPI                                                     APPELLEE

DATE OF JUDGMENT:                       08/27/2015
TRIAL JUDGE:                            HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:              HARRISON COUNTY CIRCUIT COURT,
                                        FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                        BY: PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY:                      JOEL SMITH
NATURE OF THE CASE:                     CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                CONVICTED OF POSSESSION OF A
                                        WEAPON BY A CONVICTED FELON AND
                                        SENTENCED AS A HABITUAL OFFENDER
                                        TO TEN YEARS IN THE CUSTODY OF THE
                                        MISSISSIPPI DEPARTMENT OF
                                        CORRECTIONS, WITHOUT ELIGIBILITY
                                        FOR PAROLE OR PROBATION, WITH THE
                                        SENTENCE TO RUN CONSECUTIVELY TO
                                        THE SENTENCE IN CAUSE NUMBER
                                        B2401-14-498
DISPOSITION:                            AFFIRMED: 01/24/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE FAIR, P.J., WILSON AND GREENLEE, JJ.

      FAIR, P.J., FOR THE COURT:

¶1.   Andrew Acie Adams was spotted driving in Gulfport while there was a warrant out

for his arrest. After pulling Adams over, the officers noticed a loaded magazine in the
driver’s side door. Adams’s wife, who was in the passenger’s seat, was found to have been

sitting on a pistol, and a search of the vehicle’s trunk revealed a .22-caliber rifle. Adams

confessed to owning the rifle, but he claimed to know nothing of the pistol.

¶2.       Adams was tried on two counts of possession of a weapon by a convicted felon. After

the State presented its case, the trial court directed a verdict of acquittal for possession of the

pistol. Adams testified in his own defense that he had lied about his owning the rifle in order

to protect his wife. The jury convicted him anyway, and he appeals.1 We find no error and

affirm.

                                           DISCUSSION

          1.     Suppression of Confession

¶3.       In his first issue on appeal, Adams contends that the Harrison County Circuit Court

erred in not suppressing his confession. Adams alleges that the confession was induced by

an officer falsely stating during the arrest that Adams’s wife was a convicted felon who could

not legally possess the rifle, so Adams claimed ownership of it to protect his wife.

¶4.       It is apparent that this claim is procedurally barred because it was not raised in the trial

court. Adams presented numerous pretrial motions, but none of them challenged the



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         Phillip W. Broadhead, clinical professor and director of the University of
Mississippi School of Law Criminal Appeals Clinic, was appointed as Adams’s appellate
counsel. Third-year law students under Professor Broadhead’s supervision were appointed
as special counsel pursuant to Mississippi Code Annotated section 73-3-207 (Rev. 2012).
Jay Clay and Derek T. Cantrell assisted in the preparation of Adams’s briefs, and Adreain
Reynolds and Darian R. Etienne presented oral argument.

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voluntariness of his confession. Instead, Adams sought to have parts of the arrest and

interview recordings redacted to prevent the jury from being exposed to various prejudicial

statements, relief that he was largely granted. While the trial judge did observe that Adams’s

confession was voluntary, the failure to make this argument and present any evidence in

support procedurally bars this issue on appeal. See, e.g., Williams v. State, 994 So. 2d 821,

828 (¶24) (Miss. Ct. App. 2008).

¶5.    Moreover, this claim appears to have no evidentiary support in the record. Adams did

testify (in his own defense, at trial) that he had falsely claimed to have owned the rifle to

prevent his wife from being arrested. But on cross-examination, Adams admitted he knew

his wife was not a convicted felon.2 He claimed instead that he was worried she would be

arrested for possession of a stolen firearm since she had previously been arrested for that

offense, though not convicted. Adams said he was afraid the rifle was stolen “because [his

wife] had got caught with another stolen weapon before and [he did not] know where she

gets the weapons from.”

¶6.    This issue is procedurally barred and lacks evidentiary support in the record.

       2.     Sufficiency of the Evidence

¶7.    Adams next challenges the sufficiency of the evidence supporting his conviction. In

evaluating the sufficiency of the evidence, we must decide whether it allows a jury to find



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        Adams was testifying about what he knew at the present time (the time of trial), but
he never suggested he did not know it at the relevant time as well.

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“beyond a reasonable doubt that [the] accused committed the act charged, and that he did so

under such circumstances that every element of the offense existed; and where the evidence

fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So. 2d 836,

843 (¶16) (Miss. 2005). “[T]he relevant question is whether, after viewing the evidence in

the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia,

443 U.S. 307, 315 (1979)).

¶8.    Since Adams was never seen in actual, physical possession of the rifle, he was

prosecuted under a theory of constructive possession. “Constructive possession allows the

prosecution to establish possession of contraband when evidence of actual possession is

absent. Constructive possession is established by evidence showing that the contraband was

under the dominion and control of the defendant.” Roberson v. State, 595 So. 2d 1310, 1319

(Miss. 1992). “[T]here must be sufficient facts to warrant a finding that the defendant was

aware of the presence and character of the particular [contraband] and was intentionally and

consciously in possession of it.” Glidden v. State, 74 So. 3d 342, 345-46 (¶12) (Miss. 2011)

(citations omitted).

¶9.    Here, the rifle was found in the trunk of the vehicle Adams was driving, and a loaded

magazine that fit the rifle was in the driver’s side door. Adams further confessed that the

rifle was his, in some detail, explaining how he had bought it from someone for sixty-five

dollars and how he hoped to sell it to his uncle for more. He also stated that he liked guns


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and enjoyed possessing them.

¶10.    On appeal, Adams contends that the evidence was insufficient because the vehicle

belonged to his wife. He notes that the owner (or possessor) of a vehicle is presumed to be

in constructive possession of the things found inside. Pool v. State, 483 So. 2d 331, 336

(Miss. 1986). The presumption, however, can be rebutted if it is shown that the vehicle was

not under the exclusive control of the owner. Id. at 336-37. Moreover, the presumption is

simply that the owner is in possession of the items inside; it does not preclude the items from

also being in the joint possession of others. See Dixon v. State, 953 So. 2d 1108, 1112 (¶9)

(Miss. 2007) (“Possession of [contraband] may be actual or constructive, individual or

joint.”).

¶11.    Adams also contends that proximity is an element of constructive possession and that

his conviction fails for a want of proximity to the weapon. He cites to Curry v. State, 249

So. 2d 414, 416 (Miss. 1971), where the Mississippi Supreme Court had observed that

“[p]roximity is usually an essential element [of constructive possession], but by itself is not

adequate in the absence of other incriminating circumstances.” Setting aside the factual

futility of Adams’s argument (the rifle was in the trunk of the vehicle Adams was driving

when he was arrested), the point of this oft-repeated maxim is that proximity alone is not

sufficient to prove constructive possession. The observation that proximity is necessary in

“usual” cases is dicta about the practical reality of proving constructive possession.

Proximity is not literally an element of constructive possession.


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¶12.   Finally, Adams argues that his confession is inadequate evidence of possession

because he spoke about his ownership of the gun rather than his possession of it at the

relevant time. While we agree that there is a distinction between ownership and possession,

an acknowledgment of ownership is clearly an “incriminating circumstance.” Curry, 249 So.

2d at 416. That, along with Adams’s proximity to the weapon, his wife’s ownership of the

car and his immediate control thereof, and the presence of the loaded magazine (which fit the

rifle) in the driver’s door while Adams was operating the vehicle, is more than sufficient

evidence to sustain a conviction under the theory of constructive possession.

       3.     Weight of the Evidence

¶13.   Adams also argues that the verdict was against the overwhelming weight of the

evidence. A new trial based on the weight of the evidence should be granted “only in

exceptional cases in which the evidence preponderates heavily against the verdict.” Bush,

895 So. 2d at 844 (¶18) (citation omitted). “[T]he evidence must be viewed in the light most

favorable to the verdict[.]” Jenkins v. State, 131 So. 3d 544, 551 (¶23) (Miss. 2013). And

the motion for a new trial is entrusted to the circuit judge, who had a firsthand view of the

trial. “[R]eversal is warranted only if the trial court abused its discretion in denying [the]

motion for a new trial.” Waits v. State, 119 So. 3d 1024, 1028 (¶13) (Miss. 2013).

¶14.   Adams contends that the evidence was overwhelming that the rifle actually belonged

to his wife, because it was found in her vehicle. He repeats many of the same arguments

regarding the presumptions of constructive possession that we addressed in the prior issue.


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We find this contention meritless. The vehicle did belong to Adams’s wife, but he was

driving it, a loaded magazine to the rifle was found in the driver’s door, and Adams

confessed that the rifle was his. The jury was the judge of the credibility of Adams’s

confession and his trial testimony. Hartfield v. State, 161 So. 3d 125, 140 (¶23) (Miss.

2015).        It found Adams guilty, and we cannot say that the verdict was against the

overwhelming weight of the evidence.

         4.       Jury Instruction

¶15.     Finally, Adams contends that the trial court erred in refusing instruction D-6, which

would have instructed the jury on the elements of constructive possession. Instead, the court

gave S-6, which was also a constructive possession instruction:

         Possession, as that term is used in this case, may be actual or constructive. A
         person has actual possession when he or she knowingly has direct, immediate,
         and exclusive physical control over the thing or object. A person has
         constructive possession when he or she lacks actual possession of the thing or
         object but knowingly has both the power and the intention, at a given time, to
         exercise control or dominion over the thing or object, either directly or through
         another person.

Adams contends that D-6 was “more detailed” and would have required the State to prove

“additional incriminating circumstances other than mere proximity.” Adams also complains

that the instruction allowed the jury to find that he constructively possessed the rifle “through

another person.”

¶16.     Instruction S-6, which was given, was identical to the instruction approved of by the

Mississippi Supreme Court in Watkins v. State, 101 So. 3d 628, 635-36 (¶¶23-25) (Miss.


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2012). In Floyd v. State, 155 So. 3d 883, 887-88 (¶¶10-11) (Miss. Ct. App. 2014), this Court

also approved of the instruction, noting that it was a model jury instruction. It is axiomatic

that jury instructions are entrusted to the sound discretion of the trial court, and that “[w]hen

read together, if the jury instructions state the law of the case and create no injustice, then no

reversible error will be found.” Watkins, 101 So. 3d at 635 (¶22) (citations omitted).

Instruction S-6 was a correct statement of the law and sufficiently instructed the jury on the

elements of constructive possession.

¶17.   Also, this Court has specifically rejected the argument regarding the other-

incriminating-circumstances language:

       We recognize D-1 contains language from Curry that is not contained in C-2,
       specifically that: “Proximity is usually an essential element, but by itself is not
       adequate in the absence of other incriminating circumstances.” See Curry, 249
       So. 2d at 416. But this court has previously found this language is not required
       when instructing a jury on constructive possession. In Bates v. State, 952 So.
       2d 320, 323-25 (¶¶10-18) (Miss. Ct. App. 2007), the defendant made an
       argument similar to Mosley’s—that the jury instructions “failed to mention
       that proximity to the drug by itself is not enough to convict a defendant unless
       incriminating circumstances are also proven.” Id. at 324 (¶12) (citing Curry,
       249 So. 2d at 416). This court found that it was “unnecessary to state that
       proximity alone is insufficient, because the instructions clearly stated all of the
       elements required.” Id. at (¶14). Here, C-2 instructed that the jury had to find
       beyond a reasonable doubt that (1) Mosley was aware of the presence and
       character of the drugs and (2) Mosley intentionally and consciously possessed
       the drugs—which, in the absence of actual possession, may be shown by
       establishing the drugs were in Mosley’s dominion and control. Smith v. State,
       839 So. 2d 489, 497 (¶21) (Miss. 2003) (citing Curry, 249 So. 2d at 416) (“The
       State had to prove that Smith was aware of the cocaine and intentionally, but
       not necessarily physically, possessed it. Constructive possession may be
       shown by establishing dominion or control.”). Because C-2 clearly stated the
       required elements of constructive possession, the “proximity” language in D-1
       was unnecessary.

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Mosley v. State, 89 So. 3d 41, 49 (¶26) (Miss. Ct. App. 2011). We further noted that “the

absence of a defendant’s exclusive ownership or possession of the premises where the

[contraband was] found do[es] not add elements to constructive possession.” Id. at (¶27).

¶18.   As to Adams’s concern with the inclusion of the language that constructive possession

may be “either directly or through another person,” he presents no authority showing this to

be an incorrect statement of the law. As noted previously, the language has been quoted with

approval in several decisions by our appellate courts. See Watkins, 101 So. 3d at 636 (¶23);

Floyd, 155 So. 3d at 887-88 (¶¶10-11). And it appears to be widely or even universally

accepted by other courts. See, e.g., United States v. Berrios-Bonilla, 822 F.3d 25, 29 (1st Cir.

2016); United States v. Vichitvongsa, 819 F.3d 260, 275 (6th Cir. 2016); State v. Robinson,

400 S.W.3d 529, 534 (Tenn. 2013); C.B.D. v. State, 90 So. 3d 227, 246 (Ala. Cr. App. 2011).

¶19.   We find no merit to this issue.

¶20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY,
FIRST JUDICIAL DISTRICT, OF CONVICTION OF POSSESSION OF A WEAPON
BY A CONVICTED FELON AND SENTENCE AS A HABITUAL OFFENDER OF
TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION,
WITH THE SENTENCE TO RUN CONSECUTIVELY TO THE SENTENCE IN
CAUSE NUMBER B2401-14-498, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO HARRISON COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT
PARTICIPATING.




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