Carson v. State

• Decision Date: 07 June 2022
• Docket Number: 2021-KA-00436-COA
• Parties: Phillip James CARSON a/k/a Phillip Carson, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

341 So.3d 995

Phillip James CARSON a/k/a Phillip Carson, Appellant

v.STATE of Mississippi, Appellee

NO. 2021-KA-00436-COA

Court of Appeals of Mississippi.

June 7, 2022

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA WAKELAND BYRD, Jackson

BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Phillip Carson was arrested by the Vicksburg Police Department after he failed to yield to blue lights and sirens during a traffic stop. While in pursuit of Carson, officers observed Carson throw an object out of the window of his SUV. After Carson was in custody, one of the officers found a plastic bag of crack cocaine in the area where Carson had thrown the object. The officers also found a plastic bag of crack cocaine in the console of the SUV. Carson was indicted for possession of cocaine, and he was convicted following a jury trial.

¶2. On appeal, Carson's appointed counsel challenges the sufficiency and weight of the evidence, and Carson raises a series of issues in a pro se supplemental brief. We conclude that there is sufficient evidence to support the jury's verdict, that the trial judge did not abuse his discretion by denying Carson's motion for a new trial, and that Carson's pro se issues are all without merit. Accordingly, Carson's conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

¶3. On January 3, 2020, Vicksburg Police Department Investigator Donnie Heggins was on patrol with Investigator Mario Grady and Lieutenant Jeff Merritt. Around 11 p.m., they noticed a GMC Acadia with a temporary license plate parked with its lights on in the middle of a lane of traffic on Bowman Street. Heggins turned on his blue lights, but the Acadia drove away and then turned right on Washington Street. Heggins turned on his sirens and followed the Acadia. While in pursuit, Heggins and Grady observed an object fly out of the Acadia's passenger window. In response, Grady and Merritt radioed in to dispatch to report the object's location.¹ The Acadia continued north on Washington Street for several blocks before finally stopping in a parking lot. The officers arrested Carson, the driver and only occupant of the vehicle. Grady and another officer then returned to the marked location to look for the object Carson had thrown from the Acadia. Within a minute or two, they found a plastic bag containing a large "cookie" of crack cocaine on the street in that location.

¶4. Merritt and Heggins then searched the Acadia, and in the center console they found a bag containing a smaller amount of crack cocaine broken into pieces and $1,167 in cash. The Mississippi Forensics Laboratory later determined that the bag found on the street contained 13.825 grams of crack cocaine, and the bag in the console contained 0.298 grams of crack cocaine. Carson was indicted for possession of more than ten grams but less than thirty grams of cocaine. Miss. Code Ann. § 41-29-139(c)(1)(D) (Rev. 2018).

¶5. At trial, Carson's girlfriend, Kya Thomas, testified that she had rented the Acadia on December 20, 2019, because her vehicle was in the shop. She testified that around 11 p.m. on January 3, 2020, Carson borrowed the Acadia "to go pick his dad up." She did not know where Carson and his father were going. Thomas claimed that the cash found in the console of the Acadia was hers, but she denied knowledge of the cocaine found in the console. Thomas testified that during the two weeks since she had rented the Acadia, only she and Carson had access to the vehicle.

¶6. Carson likewise testified that Thomas had rented the Acadia, that the cash belonged to Thomas, and that he had never seen the cocaine found in the console. Carson claimed that he did not stop in response to the police car's lights and sirens because he believed that the officers were trying to stop a black Tahoe that "shot down Washington Street" in front of him. Carson testified that the driver of the Tahoe threw an object out of one of the Tahoe's windows. Carson denied that he threw anything out of the Acadia. Carson was adamant that if he had thrown any drugs out of his window, he would have thrown all the drugs out of the window, and he would have driven much faster to escape the police.

¶7. The jury found Carson guilty of possession of more than ten grams but less than thirty grams of cocaine, and the court sentenced him to a term of twenty years in the custody of the Department of Corrections, with ten years to serve, ten years suspended, and five years of post-release supervision. Carson filed a motion for judgment notwithstanding the verdict (JNOV) or a new trial, which was denied, and a notice of appeal.

ANALYSIS

¶8. Carson's appointed appellate counsel filed a brief arguing that there is insufficient evidence to support Carson's conviction or, in the alternative, that Carson is entitled to a new trial because the jury's verdict is against the overwhelming weight of the evidence. Carson then filed a pro se supplemental brief raising several additional issues. We address the issues raised by appointed counsel first and then turn to Carson's additional issues.

I. Sufficiency and Weight of the Evidence

¶9. When we review the denial of a motion for a directed verdict or JNOV, our standard of review is de novo, but "the legal sufficiency of the evidence [is] viewed in a light most favorable to the State." Johnson v. State , 904 So. 2d 162, 166 (¶7) (Miss. 2005). "Essentially, all credible evidence supporting a defendant's guilt should be accepted as true, and all favorable inferences drawn from the evidence must be reconciled in the prosecution's favor." Id. "We determine if any rational juror could have found the essential elements of the crime beyond a reasonable doubt." Williams v. State , 285 So. 3d 156, 159 (¶11) (Miss. 2019). "We are not required to decide—and in fact we must refrain from deciding—whether we think the State proved the elements." Poole v. State , 46 So. 3d 290, 293-94 (¶20) (Miss. 2010). Rather, we must affirm the conviction as long as there is sufficient evidence for a rational juror to find that the State proved its case. Id.

¶10. We review a trial judge's denial of a motion for a new trial only for an abuse of discretion. Little v. State , 233 So. 3d 288, 292 (¶21) (Miss. 2017). Our standard of review is deferential because the "trial judge is in the best position to view the trial." Id. at 291 (¶18) (quoting Amiker v. Drugs For Less Inc. , 796 So. 2d 942, 947 (¶16) (Miss. 2000) ). "The trial judge who hears the witnesses live, observes their demeanor and in general smells the smoke of the battle is by his very position far better equipped to [rule on a new trial motion]." Id. at 291-92 (¶18) (quoting Amiker , 796 So. 2d at 947 (¶16) ).

¶11. In addition, when we review the denial of a motion for a new trial, we afford great deference to the jury and its verdict. Little , 233 So. 3d at 289 (¶1). The jury is the fact-finder, and this Court will not "assume[ ] the role of juror on appeal." Id. As the Supreme Court made clear in Little ,

[w]e do not reweigh evidence. We do not assess the witnesses’ credibility. And we do not resolve conflicts between evidence. Those decisions belong solely to the jury. Our role as [an] appellate court is to view the evidence in the light most favorable to the verdict and disturb the verdict only when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

Id.

¶12. In the present case, Carson argues that the State failed to prove that he possessed cocaine. "Possession of a controlled substance may be actual or constructive ...." Dixon v. State , 953 So. 2d 1108, 1112 (¶4) (Miss. 2007). As our Supreme Court has explained,

t]he 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.

Id. (quoting Curry v. State , 249 So. 2d 414, 416 (Miss. 1971) ).

¶13. In the present case, it is unnecessary for us to address directly the smaller amount of cocaine found in the center console of the Acadia or the issue of constructive possession. As discussed above, the jury found Carson guilty of possession of more than ten grams but less than thirty grams of cocaine. Miss. Code Ann. § 41-29-139(c)(1)(D). The cocaine found on the street weighed 13.825 grams, while the cocaine in the console weighed 0.298 grams. Thus, the jury necessarily found that Carson possessed the cocaine found on the street.

¶14. As this Court previously stated, "actual possession can be established if an officer witnesses the defendant tossing an object later found to be drugs." Cooper v. State , 145 So. 3d 1219, 1228 (¶34) (Miss. Ct. App. 2013) (citing Dampeer v. State , 989 So. 2d 462, 465 (¶9) (Miss. Ct. App. 2008) ; Boyd v. State , 634 So. 2d 113, 116 (Miss. 1994) ; Lee v. State , 767 So. 2d 1025, 1027 (¶8) (Miss. Ct. App. 2000) ), aff'd , 145 So. 3d 1164 (Miss. 2014). "An officer's testimony stating that he observed the defendant throw the drugs is sufficient to show actual possession." Id. (quotation marks omitted) (citing Lee , 767 So. 2d at 1027 (¶8) ); accord Boyd , 634 So. 2d at 116 ("Hicks clearly stands for the proposition that actual possession of drugs can be established by testimony from an officer that he observed the defendant tossing an object which was subsequently located at the same site and, upon examination of the object, it was determined to be a controlled...