Fox v. State, No. 1999-KA-00186-SCT.

• Decision Date: 24 February 2000
• Docket Number: No. 1999-KA-00186-SCT.
• Citation: 756 So.2d 753
• Parties: Darrin C. FOX v. STATE of Mississippi.
• Court: Mississippi Supreme Court

756 So.2d 753

Darrin C. FOX v. STATE of Mississippi.

No. 1999-KA-00186-SCT.

Supreme Court of Mississippi.

February 24, 2000.

Rehearing Denied May 4, 2000.

Dan W. Duggan, Jr., Brandon, Attorney for Appellant.

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

EN BANC.

MILLS, Justice, for the Court:

STATEMENT OF THE CASE

¶ 1. This case is before this Court on appeal from a judgment based on a jury verdict convicting Darrin C. Fox for possession of marijuana with intent to distribute, as an habitual offender. He was sentenced to twenty years (20) in the custody of the Mississippi Department of Corrections. From that conviction and sentence, Fox appeals to this Court assigning the following as error:

1) Whether the trial court erred by failing to grant defendant's motion for a directed verdict and motion for judgement notwithstanding the verdict and/or the verdict was against the overwhelming weight of the evidence.

2) Whether the trial court erred by improperly allowing the introduction of prior bad acts?

3) Whether the trial court erred by failing to grant a mistrial after the improper comment by prosecution on the failure of defendant to call a witness?

STATEMENT OF FACTS

¶ 2. A Grand Jury for the First Judicial District of Hinds County, Mississippi, indicted Darrin C. Fox (hereinafter "Fox"), along with co-defendant Felton Martin (hereinafter "Martin"), for the offense of possession of marijuana in an amount greater than one ounce with the intent to distribute, pursuant to Miss.Code Ann. § 41-29-139 (Supp.1996). The indictment was later amended to charge Fox as an habitual offender pursuant to Miss.Code Ann. § 99-19-81 (Supp.1996).

¶ 3. On March 21, 1996, members of the Jackson/Hinds County Drug Enforcement Unit, went to 1069 Deer Park Street in Jackson, Mississippi, with a search warrant for illegal drugs. After knocking and announcing, the officers went through the front door, which was "wide open." Detective Richard Nations estimated it took him about ten seconds to get from the front door to the kitchen. In the kitchen, Officer Nations saw the defendants, Fox and Martin, standing over the marijuana. Fox had a pair of scissors in his hand. On the kitchen island there were two Tupperware containers, one with loose marijuana in it, and the other containing some forty small "Ziplock" bags each filled with marijuana. There was also a small brown bag that contained some ten additional bags filled with marijuana. The officers found a total of more than eight (8) ounces of marijuana.

¶ 4. The police arrested defendant Darrin Fox ("Fox"), co-defendant Felton Martin ("Martin"), Fox's brother Gregory Fox, Marland Buckley, Shannon Hunter and Demarcus Kelly, all of whom were at the house at the time of the raid. Fox and Martin were the only co-defendants in this trial.

¶ 5. Although Fox's mother owned the house, there were two pieces of mail addressed to Fox at 1069 Deer Park. Both Fox and Martin had pagers on their persons. Fox had $413 on his person; Martin had $220 on his person. Fox testified that he borrowed the $413 from his mother for a down payment on a car.

¶ 6. At trial, Gregory Fox testified that his brother, Fox the defendant, would not tolerate marijuana in his mother's house. The prosecution pointed out that Gregory Fox's testimony was misleading to the jury. Outside the presence of the jury, the prosecution told the judge that Fox, while free on bail on the charge here under consideration, was found in the same house with an additional quantity of marijuana, some six months after this charge arose. The circuit court sustained defense counsel's objection about the comments concerning the incident that happened six months later but agreed, over a defense objection, to allow another line of questioning to be asked in the form of a hypothetical. Bobby Delaughter (hereinafter "Delaughter"), assistant district attorney, referred to this subsequent event by asking Gregory Fox if his opinion, i.e., Fox's intolerance for marijuana in his mother house, would change if marijuana was in the house "on another occasion" and Fox knew about it. Defense counsel objected again. Gregory Fox never answered the question. The trial judge instructed the jury that the question was merely a hypothetical question and not intended to convey any new factual information for them to consider in this case. Fox's counsel moved for a mistrial because of the supposed unfairly prejudicial question by Delaughter. The motion was denied.

¶ 7. Also at trial, Fox called Marland Buckley, Shannon Hunter and Greg Fox. All testified that Demarcus Kelly brought the marijuana into the house. Buckley admitted that he purchased two bags of marijuana from among the bags found by police in the house.

¶ 8. At the conclusion of the State's case, Fox's counsel moved for a directed verdict based upon his belief that there was insufficient evidence to show that Fox intended to distribute or sell the marijuana.

¶ 9. During closing arguments, Delaughter argued that the defense's witnesses blamed the crime on Demarcus Kelly, who was neither there nor searched for by the defendant's investigator. Fox's counsel objected that this was an improper comment about a witness equally available to both sides and moved for a mistrial. The trial judge overruled his objection and denied the motion for a mistrial.

¶ 10. The jury returned verdicts of guilty for both defendants. Fox was given a twenty (20) year sentence. Following the denial of defendants' motions for JNOV or a new trial, Fox timely appealed his conviction and sentence to this Court.

ANALYSIS

1) Whether the trial court erred by failing to grant defendant's motion for a directed verdict and motion for judgement notwithstanding the verdict and/or the verdict was against the overwhelming weight of the evidence.

¶ 11. When reviewing the sufficiency of the evidence, this Court looks to all of the evidence before the jurors to determine whether a reasonable, hypothetical juror could find, beyond a reasonable doubt, that the defendant is guilty. Jackson v. State, 614 So.2d 965, 972 (Miss. 1993). This Court will not reverse a trial judge's denial of a motion for a new trial unless the verdict is so contrary to the weight of the evidence that, allowing it to stand would sanction an unconscionable injustice. Groseclose v. State, 440 So.2d 297, 300 (Miss.1983).

¶ 12. Fox filed a Motion for JNOV requesting that the judge consider as part of the motion the fact that the State did not prove the necessary elements for possession of marijuana with intent to distribute. Fox argues that the verdict of the jury is contrary to law, against the overwhelming weight of the substantive evidence produced at the trial and manifestly wrong as a matter of law. In essence, Fox argues that the State did not successfully prove either "possession" or "intent to distribute."

¶ 13. In appeals from the denial of a motion for JNOV, the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. Tait v. State, 669 So.2d 85, 88 (Miss.1996); Smith v. State, 646 So.2d 538, 542 (Miss.1994); McClain v. State, 625 So.2d 774, 778 (Miss.1993); May v. State, 460 So.2d 778, 781 (Miss.1984); Glass v. State, 278 So.2d 384, 386 (Miss. 1973).

¶ 14. On "possession," Fox argues that the evidence in this case does not support a finding of constructive possession of the drugs. The constructive possession rule was set forth in Curry v. State, 249 So.2d 414 (Miss.1971). There, this Court stated:

What 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 of 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 or 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.

Hamm v. State, 735 So.2d 1025, 1028 (Miss.1999) (quoting Curry v. State, 249 So.2d 414, 416 (Miss.1971)). Fox asserts that he was not the only person who had control over his mother's house. Fox contends that the best evidence linking him with the drugs was that he was holding a pair of scissors in his hand "standing behind a food bar with freshly cut marijuana in plastic bags in the middle of the kitchen." Fox urges that the State's strongest evidence, taken in the light most favorable to the State, does not show his constructive possession of the marijuana.

¶ 15. The State asserts that the fact that Fox had a pair of scissors in his hand while standing near containers with freshly cut marijuana in a house owned by his mother and with no one else in the house shown to have had a substantial connection to it or control of it, shows Fox had constructive possession.

¶ 16. We agree with the State. There was sufficient evidence for constructive possession. Also, the verdict was not so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Herring v. State, 691 So.2d 948, 957 (Miss. 1997); McFee v. State, 511 So.2d 130, 133-34 (Miss.1987).

¶ 17. On "intent to distribute," Fox argues that there was not enough evidence to show that there was an intent to distribute. Here, Fox says that over eight ounces of marijuana is not enough to show possession with intent to distribute. Fox cites to Girley v. State, 602 So.2d 844 (Miss.1992) for support. Fox, citing no authority, also insists that possessing a pager alone is not evidence of intent to distribute drugs. Similarly, Fox argues that the $413 on his person at the time of the arrest was...