Kerns v. State, No. 2003-CT-00648-SCT.

• Decision Date: 08 December 2005
• Docket Number: No. 2003-CT-00648-SCT.
• Citation: 923 So.2d 196
• Parties: Richard Earl KERNS, Jr. and Howard Thomas McKinney v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 196

923 So.2d 196

Richard Earl KERNS, Jr. and Howard Thomas McKinney v. STATE of Mississippi.

No. 2003-CT-00648-SCT.

Supreme Court of Mississippi.

December 8, 2005.

Rehearing Denied March 23, 2006.

Clayton Lockhart, and Travis T. Vance, Vicksburg, attorneys for appellants.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

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 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, 923 So.2d 210, 216-17, 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 218, 2005 WL 757591 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 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 (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 ammonia⁵ 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 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.

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...