Kerns, et al. v. State


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Docket Number: 2003-CT-00648-SCT
Linked Case(s): 2003-CT-00648-SCT ; 2003-CT-00648-SCT ; 2003-KA-00648-COA ; 2003-KA-00648-COA

Supreme Court: Opinion Link
Opinion Date: 12-08-2005
Opinion Author: Randolph, J.
Holding: 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

Additional Case Information: Topic: Manufacture of a controlled substance - Constructive possession - Additional incriminating circumstances
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Carlson and Dickinson, JJ.
Non Participating Judge(s): Diaz, J.
Dissenting Author : Graves, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY
Writ of Certiorari: yes
Appealed from Court of Appeals

Trial Court: Date of Trial Judgment: 11-20-2002
Appealed from: Warren County Circuit Court
Judge: Frank G. Vollor
Disposition: 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. Kerns was also convicted.
Case Number: 02,0017-CRV
  Consolidated: The Supreme Court reversed the Court of Appeals decision as to McKinney. See the original COA opinion at http://www.mssc.state.ms.us/Images/Opinions/CO25318.pdf

  Party Name: Attorney Name:  
Appellant: Richard Earl Kerns, Jr. and Howard Thomas McKinney




CLAYTON LOCKHART, TRAVIS T. VANCE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS  

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Topic: Manufacture of a controlled substance - Constructive possession - Additional incriminating circumstances

Summary of the Facts: Howard McKinney was 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). McKinney was sentenced to serve 30 years for Count I, 20 years for Count II, and 30 years for Count III. Richard Kerns, Jr. was also convicted. They appealed, and the Court of Appeals affirmed Kerns’ convictions but reversed and rendered McKinney’s convictions. The State of Mississippi filed a petition for writ of certiorari which was granted.

Summary of Opinion Analysis: McKinney argued to the Court of Appeals that the State failed to present any witnesses who affirmatively observed McKinney manufacturing crystal methamphetamine 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. 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. In that situation, the state must show additional incriminating circumstances to justify a finding of constructive possession. 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 that such additional incriminating circumstances existed to find constructive possession. An evaluation of the evidence presented establishes the reasonableness of the jury verdict. 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. 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. Furthermore, according to uncontradicted testimony, 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.


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