Johnson v. State
| Citation | 194 So.3d 191 |
| Decision Date | 14 June 2016 |
| Docket Number | No. 2015–KA–00070–COA.,2015–KA–00070–COA. |
| Court | Court of Appeals of Mississippi |
| Parties | Jeffery JOHNSON a/k/a Jeffrey Johnson a/k/a Jeff Johnson a/k/a Bullet, Appellant v. STATE of Mississippi Appellee. |
Charles Bruce Brown, attorney for appellant.
Office of the Attorney General by Alicia Marie Ainsworth, Jason L. Davis, attorneys for appellee.
Before IRVING, P.J., BARNES and GREENLEE, JJ.
GREENLEE
, J., for the Court:
¶ 1. On October 30, 2014, Jeffrey Johnson was convicted of possession of marijuana in an amount more than ten grams but less than thirty grams with the intent to distribute, and was sentenced as a habitual offender to six years' imprisonment and fined $500. Johnson appealed his conviction to this Court. Finding no error, we affirm.
¶ 2. In 1987, Johnson was convicted of felony burglary.1 In 1997, Johnson was convicted of a second felony, possession of cocaine, and sentenced to two years' imprisonment. In 2004, after being convicted of a third felony, possession of cocaine in an amount greater than ten grams but less than thirty grams, Johnson was sentenced to fifteen years' imprisonment.
¶ 3. On November 29, 2012, Starkville Police Department Officer Derek Nelson observed Johnson apparently driving without a seatbelt. After stopping Johnson, Nelson observed that Johnson's seatbelt was buckled around his waste, but that the seatbelt strap was tucked underneath his shoulder. Upon asking Johnson for his driver's license and insurance, Nelson noticed a light smell of marijuana emanating from the vehicle. Nelson asked Johnson to step out of his car and interviewed Johnson. Nelson then called Joe Huffman, Johnson's probation officer, to assist.
¶ 4. When Huffman arrived, he also smelled marijuana coming from the car. Huffman immediately put Johnson in handcuffs, taking him into custody. Johnson admitted to Huffman that Johnson had marijuana in the console of his vehicle. Huffman searched the vehicle and discovered a plastic bag containing 29.6 grams of marijuana. Johnson admitted to Huffman, Nelson, and Sergeant George Coleman of the Starkville Police Department that the marijuana was “for the women.” Upon further search of the vehicle, Huffman discovered boxes of sandwich bags and condoms in the trunk.
¶ 5. Johnson was originally indicted on August 5, 2013, for possession of marijuana in an amount less than thirty grams with the intent to distribute, in violation of Mississippi Code Annotated section 41–29–139
(Rev.2013). More than three weeks before trial on August 4, 2014, the State filed a motion to amend the indictment, charging Johnson as a habitual offender, pursuant to Mississippi Code Annotated section 99–19–81 (Rev.2015), and also as a second or subsequent drug offender, pursuant to Mississippi Code Annotated section 41–29–147 (Rev.2013). The trial court held a hearing on the State's motion and granted it. During the same week, the State informed Johnson's attorney of possible sale-of-cocaine charges being considered by the grand jury against Johnson. Johnson's trial commenced on October 28, 2014.
¶ 6. At trial, Huffman testified that, based on this and his experience, in his opinion, Johnson intended to take the marijuana, break it down into smaller amounts, and trade it for sexual encounters. Further, Johnson testified that he was headed to a friend's house to watch football, that he expected fifteen to twenty people to be there, that everyone shares what they bring, and that if someone wanted some of his marijuana they could have it. The court denied proposed defense jury instructions D–5 and D–6 concerning witness testimony. On October 30, 2014, the jury found Johnson guilty of possession of marijuana in an amount less than thirty grams with intent to distribute. As a result of his habitual—and subsequent-offender status, the trial court sentenced him to six years' incarceration, to be served day-for-day, without the possibility of parole, earned or early release, or weekend passes. Following the jury's guilty verdict and the trial court's sentencing, Johnson filed a motion for a directed verdict and, alternatively, a judgment notwithstanding the verdict (JNOV). The circuit court denied his motion. Johnson now appeals to this Court. We affirm.
¶ 7. Johnson argues that the State did not prove his intent to distribute, that there was an improper jury instruction, that the circuit court erred in not allowing him to “fully” cross-examine Nelson, that the amending of the indictment was improper, that his attorney provided ineffective assistance of counsel, and that plain error occurred. Johnson later filed an amended brief in which he asserts further ineffective-assistance-of-counsel claims for his counsel's failure to object to testimony and not wanting to go to trial. He also claims that the trial judge should have recused himself, and that Johnson was wrongly denied post-conviction bail.
¶ 8. Johnson argues that his conviction for possession of marijuana in an amount less than thirty grams with the intent to distribute was against the weight and sufficiency of the evidence because the State failed to prove the intent-to-distribute element of his charge. To support his argument he asserts that no rational trier of fact could have found intent to distribute and that the State “used conjecture to imply that [he] was going to share the marijuana.”
A. Sufficiency of the Evidence
¶ 9. “The standard of review for the denial of a motion for directed verdict and JNOV is the same.” Parks v. State, 884 So.2d 738, 743 (¶ 15) (Miss.2004)
. “[D]irected verdict and JNOV [motions] both challenge the legal sufficiency of the evidence presented at trial.” Id. The Court “considers all of the evidence in the light most favorable to the State and gives the State the benefit of all favorable inferences that may reasonably be drawn from the evidence.” Id. The critical inquiry in addressing a challenge to the sufficiency of the evidence “is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968) ). “The relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citing Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) ). The Court must reverse if the facts, viewed in that light, are so overwhelmingly in favor of the appellant that reasonable minds could not have arrived at a guilty verdict. Parks, 884 So.2d at 744 (¶ 15). The Court must affirm when there is substantial evidence in support of the verdict of such quality and weight that reasonable and fair-minded jurors exercising impartial judgment might have reached different conclusions. Id.
¶ 10. A “transfer” under the statute for the delivery and transfer of narcotics is a change of possession from one person to another. White v. State, 842 So.2d 565, 576 (¶ 32) (Miss.2003)
. To establish the defendant's intent to transfer within the meaning of the statute, all that is required is proof of the defendant's intent to relinquish possession and control. Id. The purpose of the statute is to thwart the exchange or transfer of the substance regardless of whether there was consideration for it. Id.
¶ 11. Johnson testified that he possessed marijuana, that he purchased it for himself and others, that he was on his way to a party to get high, that he was bringing the marijuana with him to the party, that everyone would share what they brought to the party, and that he would share his marijuana with others if they wanted it. Johnson's admission that he was bringing marijuana to a party fully aware that he would be “sharing” whatever he brought is sufficient to prove his intent to distribute. Viewed in the light most favorable to the State, we find that there is sufficient evidence to support the jury's verdict. Therefore, we find Johnson's claim is without merit.
B. Weight of the Evidence
¶ 12. When reviewing a claim that a conviction is against the weight of the evidence, this Court will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice. Bush, 895 So.2d at 844 (¶ 18)
(citing Herring v. State, 691 So.2d 948, 957 (Miss.1997) ). A reversal on the grounds that the verdict was against the overwhelming weight of the evidence means that, “as the thirteenth juror, the court simply disagrees with the jury's resolution of the conflicting testimony.” Id. (citing McQueen v. State, 423 So.2d 800, 803 (Miss.1982)
). “[The] difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves.” Id. “Instead the proper remedy is to grant a new trial.” Id.
¶ 13. At trial, Johnson testified that he purchased the marijuana in preparation for going to a gathering where everyone would share what they brought. Coleman, Huffman, and Nelson testified that Johnson said that the marijuana was “for the women.” Further, Nelson and Huffman testified that, based on their experience, the condoms and sandwich bags, as well as the amount of marijuana found, were strong indicators that Johnson intended to trade the marijuana for sexual encounters. We do not see any indication that the trial court abused its discretion in denying Johnson's request for a new trial. We find that this claim is without merit.
¶ 14. Johnson argues that the jury instructions did not correctly state the law, whereas his instructions D–5 and D–6 did. The Court applies an abuse-of-discretion standard to jury instructions....
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