Dixon v. State

• Decision Date: 12 April 2007
• Docket Number: No. 2004-CT-01582-SCT.,2004-CT-01582-SCT.
• Citation: 953 So.2d 1108
• Parties: Tracy DIXON and Jerry Ford a/k/a Jerry Lee Ford v. STATE of Mississippi.
• Court: Mississippi Supreme Court

953 So.2d 1108

Tracy DIXON and Jerry Ford a/k/a Jerry Lee Ford v. STATE of Mississippi.

No. 2004-CT-01582-SCT.

Supreme Court of Mississippi.

April 12, 2007.

Glenn Sturdivant Swartzfager, Jackson, Bill Waller, Sr., attorneys for appellants.

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

EN BANC.

ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court.

¶ 1. Appellants Tracy Dixon and Jerry Ford were convicted in the Circuit Court of Sunflower County of possession of cocaine with intent to distribute, each being sentenced to a term of thirty years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $500,000. The Court of Appeals unanimously affirmed the trial court. Dixon v. State, 953 So.2d 1117, 2006 WL 1529703, 2006 Miss.App. LEXIS 434 (Miss.Ct.App. 2006). Defendants raise two issues in their petition for writ of certiorari, contending that (1) the sufficiency of the evidence was insufficient to prove the indictment and (2) the expert testimony of the police officers was improperly admitted. We affirm the judgment of conviction and sentence in the Court of Appeals and the trial court. However, it was improper to add the two separate amounts for a total of twenty grams and hold both Ford and Dixon possessed that total amount of cocaine with intent to distribute. Ford and Dixon are each guilty of possession of their separate amounts of cocaine with intent to distribute. However, the sentence each received of thirty years and a fine of $500,000 is unaffected by their proper conviction for possession with intent to distribute of thirteen and a half grams of cocaine by Ford and six and a half grams by Dixon. The trial court and the Court of Appeals result are thus correct, but for the wrong reason, since the separate amounts each defendant possessed justify the sentence imposed by the trial court.

FACTS AND PROCEDURAL HISTORY

¶ 2. The Court of Appeals stated the facts as follows:

On August 22, 2003, authorities with the Indianola Police Department received a tip that Jerry Ford and Tracy Dixon were leaving Ford's residence in a blue Mazda and that they would be carrying illegal drugs. Officer Ronald Ragon, driving in a marked patrol car, spotted the blue Mazda and turned on his blue lights in order to pull the car over. Upon stopping the Mazda, Officer Ragon was joined by a patrol car containing officers Edrick Hall and Tony Cooper. When the second patrol car arrived, the three occupants of the Mazda—Ford, Dixon, and Markeita Echols—exited the car and fled on foot. Officer Edrick Hall began a foot pursuit of Ford, while Cooper pursued Dixon on foot.

Officer Hall testified that, while he was pursuing Ford, Ford fell when he attempted to jump over a row of hedges. Hall testified that at this point, he observed Ford tossing an object from his body onto the ground nearby. Hall testified that before he ultimately apprehended Ford, Ford stopped and bent down in a wooded area. After securing Ford, Hall returned to the area where he saw Ford throw the object, and recovered a package containing what later proved to be thirteen or fourteen individually wrapped rocks of crack cocaine. Testimony by Theresa Hickmon of the Mississippi Crime Laboratory established that the cocaine weighed a total of 13.5 grams. Hall testified that the cocaine had a street value of approximately $1,400; furthermore, both Hall and Cooper testified that the packaging of the cocaine indicated an intent to distribute. The next morning, Hall returned to the wooded area where he saw Ford stop and bend over, and there Hall found $1,521 in cash. Hall testified that the serial number on one of the $100 bills recovered from the wooded area matched that of a bill used by a confidential informant to purchase drugs from Ford during the morning of August 22.

Officer Cooper testified that, during his lengthy pursuit of Dixon, he saw Dixon throw a small, white object to the ground. After apprehending Dixon, Cooper immediately revisited the area where he saw Dixon throw the object. Cooper testified that he recovered a small aspirin bottle containing approximately seventy-five small rocks of crack cocaine, and, furthermore, that the cocaine was valued at about $100 per gram. According to Hickmon's testimony, the bottle contained 6.5 grams of cocaine.

Dixon and Ford were convicted for possession of twenty grams of cocaine with intent to distribute. Each was sentenced to a term of thirty years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $500,000.

Defendants appealed the denial of their Motion for J.N.O.V., or in the alternative, Motion for a New Trial. See Dixon v. State, ___ So.2d at ____, 2006 Miss.App. LEXIS 434 at *1-4 (Miss.Ct.App.2006). The Court of Appeals affirmed the convictions of both defendants on June 6, 2006, and denied their Motion for Rehearing on November 14, 2006.

DISCUSSION

I. WHETHER THE VERDICT WAS AGAINST THE SUFFICIENCY OF THE EVIDENCE

¶ 3. Ford and Dixon assert that, in accordance with precedent, the evidence was insufficient to prove possession by each of them of the total twenty grams of cocaine found.

¶ 4. To determine whether the evidence is sufficient to sustain a conviction in the face of a motion for judgment notwithstanding the verdict (J.N.O.V.), the legal sufficiency of the evidence is viewed in a light most favorable to the State. Johnson v. State, 904 So.2d 162, 166 (Miss. 2005) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)). 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. The standard for overturning the trial court's denial is whether, after considering all of the evidence, the evidence shows "beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed." Carr v. State, 208 So.2d 886, 889 (Miss.1968). "[W]here the evidence fails to meet this test it is insufficient to support a conviction." Id.

¶ 5. First, it is clear that the record contains sufficient evidence to support "intent to distribute." The officer who arrested Ford testified that Ford had a bag of cocaine with thirteen or fourteen individually wrapped rocks, each rock being similar in size and worth a street value of approximately $100 each. The officer who arrested Dixon testified that Dixon had an aspirin bottle containing approximately seventy-five rocks, smaller than those Ford had. Each rock, in the officer's opinion, had a street value of about $20. The officers' testimony concerning the amount and packaging of cocaine found supports Ford's and Dixon's intent to distribute it.

¶ 6. Next, we address the issue of constructive possession. In this case, the defendants were convicted of possession of twenty grams of cocaine pursuant to the constructive possession doctrine. However, only thirteen and a half grams were attributed to having been in Ford's physical possession and six and a half grams were attributed to having been in Dixon's physical possession. Thus, this Court must determine whether the evidence was sufficient to show that each defendant constructively possessed the cocaine in the other's physical possession at the time of seizure.¹ We hold that it was not.

¶ 7. As to Ford, the evidence presented creates a closer call for constructive possession. Specifically: (1) He was involved in, and owned the home outside of which, a controlled buy with a confidential informant had occurred earlier that day; Lieutenant Flowers testified to observing him involved in the controlled buy of crack cocaine; (2) he owned and was driving the vehicle which was stopped by Officer Ragon; (3) he fled the vehicle upon being stopped; (4) he attempted to jettison the crack cocaine during the foot chase; (5) following arrest, the crack cocaine he attempted to jettison was recovered and weighed thirteen and a half grams; (6) the crack cocaine which was recovered was weighed and wrapped for distribution just as was the case with the crack cocaine recovered from Dixon, negating the significance of the difference in denomination, weight, and size of the drugs possessed (different customer base, for instance); particularly in light of the context (i.e., earlier surveillance of controlled buy); (7) one $100 bill of the cash recovered matched the serial number of the $100 bill given to the confidential informant for the earlier controlled buy.

¶ 8. As to Dixon, the evidence presented is not as convincing for constructive possession purposes. It shows that: (1) He was identified during police surveillance earlier that day as being at Ford's home;(2) he was in the passenger seat of Ford's vehicle at the time it was stopped by Officer Ragon; (3) he fled the vehicle upon being stopped; (4) he attempted to jettison the crack cocaine during the foot chase; (5) following arrest, the crack cocaine he attempted to jettison was recovered and weighed six and a half grams; (6) the crack cocaine which was recovered was weighed and wrapped for distribution just as was the case with the crack cocaine recovered from Ford, negating the significance of the difference in denomination, weight, and size of the drugs possessed (different customer base, for instance); particularly in light of the context (i.e., earlier surveillance of controlled buy).

¶ 9. Possession of a controlled substance may be actual or constructive, individual or joint. Berry v. State, 652 So.2d 745 (citing Wolf v. State, 260 So.2d 425, 432 (Miss.1972)). This Court has said

[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...