Carver v. State
| Decision Date | 01 November 2016 |
| Docket Number | NO. 2015-KA-00384-COA.,2015-KA-00384-COA. |
| Citation | 227 So.3d 1149 |
| Parties | Marvin Rerockus Demond CARVER a/k/a Marvin Rerocukus Demond Carver a/k/a Marvin Carver a/k/a Marvin Rerockus Carver a/k/a Marvin R. Carver a/k/a "Foot", Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND
EN BANC.
JAMES, J., FOR THE COURT:
¶ 1. Marvin Rerockus Demond Carver appeals from his conviction of possession of more than thirty grams but less than 250 grams of marijuana. Carver was sentenced as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013) and as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to six years in the custody of the Mississippi Department of Corrections without the possibility for parole or early release. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶ 2. On November 23, 2011, half-brothers Carver and Nicholas Ingram were traveling from Grenada, Mississippi, to the Mississippi Gulf Coast. Ingram was driving, and Carver was in the front passenger seat. Carver and Ingram were pulled over for speeding on Interstate 55 in Madison County by State Trooper Wade Zimmerman.
¶ 3. Trooper Zimmerman noticed a strong odor of marijuana coming from the vehicle when he approached the driver's side of the vehicle. Trooper Zimmerman observed that Ingram's eyes were "very bloodshot." Trooper Zimmerman asked Ingram to step out of the vehicle and questioned him while Carver remained in the vehicle. Trooper Zimmerman asked Ingram if he had been smoking marijuana. Ingram initially denied smoking marijuana, and Trooper Zimmerman gave him a field sobriety test. Ingram then admitted that he had been smoking marijuana, and he gave Trooper Zimmerman consent to search the vehicle.
¶ 4. Trooper Zimmerman discovered a handgun under the driver's seat and a small bag of marijuana in the center console. Trooper Zimmerman discovered two larger plastic bags containing a total of nearly four ounces of marijuana in the trunk. One bag was wrapped in a manila envelope, and the other bag was in a white plastic shopping bag. A digital scale was also discovered in the trunk near the bags of marijuana. Ingram told Trooper Zimmerman that the marijuana found in the trunk was not his, and he also denied having any knowledge of it.
¶ 5. Ingram and Carver were arrested and transported to the Madison County Jail. At the jail, police discovered $893 cash in Ingram's pocket. Agent Candace Edwards of the Mississippi Bureau of Narcotics interviewed Ingram and Carver. Ingram and Carver also provided written statements.
¶ 6. Ingram told Agent Edwards that the marijuana found in the center console was left over from a blunt he had just smoked. While on the roadside, Ingram had initially denied any knowledge of the marijuana in the trunk but claimed full responsibility for it and the handgun during his interview and in his written statement. Ingram's statement provided that the marijuana was for his personal use. He also told Agent Edwards: "[W]e [were] going to smoke it for the weekend."
¶ 7. Carver told Agent Edwards that he had previously served nine years in prison for a drug-possession charge. He told Agent Edwards that he and Ingram's grandmother had asked him to go with Ingram to the coast. Agent Edwards testified that "Carver stated that he knew about the marijuana in the vehicle and that he ... and Nicholas Ingram were going to smoke it for Thanksgiving." Carver told Agent Edwards that he did not know anything about the gun being in the vehicle. Carver's written statement provided, in part:
I knew nothing of [Ingram] possessing the firearm and by him knowing that I hate being around guns, he had kept it a secret—until we got pulled over! ... The marijuana he had, I knew about because he said he had [some] "weed" for us to smoke for Thanksgiving. Me being the older "square," as he calls me[,] agreed to "puff" for the special occasion. I didn't know he had all that much marijuana until the police pulled it out [of] the trunk! ... My brother is responsible for the marijuana and holding the firearm secretly!
(Emphasis in original).
¶ 8. On August 21, 2012, Carver and Ingram were indicted for possession of more than thirty grams but less than one kilogram of marijuana with intent to distribute, while in possession of a firearm, and for conspiracy to possess more than thirty grams but less than one kilogram of marijuana with intent to distribute. Carver was tried before a Madison County jury on June 12-13, 2013.
¶ 9. Ingram, who had pled guilty prior to Carver's trial, testified on behalf of Carver. Ingram testified that his grandmother rented a vehicle for him to drive to the coast for the Thanksgiving holiday. Ingram testified that he had purchased and placed the marijuana in the trunk outside of Carver's presence. Ingram also testified that he placed the handgun under the driver's seat outside of Carver's presence. Ingram testified that he picked Carver up and told him to throw his luggage in the trunk because he was in a hurry to go to the coast. Ingram testified that he did not intend to sell or distribute the marijuana that was found in the vehicle. Ingram testified that "[the marijuana] was only for my personal consumption ... and maybe [to] smoke with a couple of people at holiday time."
¶ 10. On cross-examination, when asked about whether Ingram had initially denied having marijuana in the vehicle to Trooper Zimmerman, he testified that he "didn't tell [Trooper Zimmerman] anything." When asked whether he had been smoking marijuana that day, Ingram testified: Ingram then testified that he could not remember if he told Trooper Zimmerman about the marijuana in the vehicle. Ingram also testified that he and Carver had not smoked marijuana in the vehicle during their trip between Grenada and Madison County.
¶ 11. Ingram testified that the marijuana in the center console had been taken from the larger amount in the trunk. Ingram admitted on the stand: "In the spirit of the holiday, I was going to freely smoke with others and for my own personal consumption."
¶ 12. Carver took the stand in his defense. Carver explained that on November 23, 2011, Ingram had called him earlier that day about riding to the coast together for the Thanksgiving holiday. Carver testified that he did not smoke marijuana with Ingram that day. Carver testified that he did not know there was marijuana in the trunk. Carver also testified that he did not know about the handgun under the driver's seat. Carver gave the following testimony:
During [mine and Ingram's] phone conversation, when we [were] talking about, you know, when he was telling me he was going to the coast and all, and I was asking him what we [were] going to do, what [were] we going to do. I was like what [were] we going to do for Thanksgiving. And that's when he told me that, he mentioned, he said that he will smoke some marijuana with me for Thanksgiving.
¶ 13. When Carver was asked whether he knew where the marijuana was that Ingram had mentioned on the phone, Carver testified: Carver also gave the following explanation regarding his written statement: Carver further testified: "I knew he said he had some for us to smoke for Thanksgiving." Later on cross-examination, when asked whether Ingram intended to share the marijuana with him that was found in the vehicle, Carver testified:
¶ 14. The jury found Carver guilty of the lesser-included offense of possession of more than thirty grams but less than 250 grams of marijuana. Carver was acquitted of the conspiracy charge. The trial court sentenced Carver as a habitual offender and subsequent drug offender to six years without the possibility for parole or early release.
¶ 15. Carver appeals to this Court raising three assignments of error: (1) whether there was sufficient evidence to support his conviction; (2) whether the trial court erred by admitting evidence his prior arrest for auto burglary, prior misdemeanor convictions, and details of his prior conviction for the sale of cocaine; and (3) whether the trial court erred in sentencing him as a subsequent offender under section 41-29-147. Finding no error, we affirm.
DISCUSSION
¶ 16. Carver argues that the evidence was insufficient to support the guilty verdict. Carver argues that the evidence failed to show that he had knowledge of the marijuana in the trunk. Carver claims that the evidence failed to show that he intentionally and consciously possessed the marijuana by exercising dominion and control over it.
¶ 17. "In reviewing the sufficiency of the evidence, this Court examines whether there was sufficient evidence to find that the defendant committed the crime beyond a reasonable doubt." Morgan v. State , 995 So.2d 812, 817 (¶ 16) (Miss. Ct. App. 2008) (citing Foley v. State , 914 So.2d 677, 690 (¶ 27) (Miss. 2005) ). Challenges to the legal sufficiency of the evidence are reviewed in the light most favorable to the State. Bush v. State , 895 So.2d 836, 843 (¶ 16) (Miss. 2005). "This Court must accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and must disregard evidence favorable to the defendant." Warwick v. State , 179...
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Carver v. State
...of the marijuana, had dominion and control over it, and intended to possess it." Carver v. State , No. 2015-KA-00384-COA, 227 So.3d 1149, 1155, 2016 WL 6471407, at *4 (Miss. Ct. App. Nov. 1, 2016), reh'g denied (Apr. 25, 2017), cert. granted , 222 So.3d 311 (Miss. 2017). Judge Irving's diss......