Jowers v. State, 89-KA-0630
| Decision Date | 29 January 1992 |
| Docket Number | No. 89-KA-0630,89-KA-0630 |
| Citation | 593 So.2d 46 |
| Parties | Rhonda Sue JOWERS v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Glen W. Hall, Jackson, for appellant.
Mike C. Moore, Atty. Gen., Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before DAN M. LEE, P.J., and ROBERTSON and SULLIVAN, JJ.
Rhonda Sue Jowers appeals her conviction of possession of marijuana in excess of one (1) ounce, with intent to distribute. This appeal addresses the sufficiency of the proof of possession of a controlled substance with intent to distribute. We find that the State failed to prove intent to distribute the controlled substance and, therefore, remand for appropriate sentencing of the lesser included offense of possession of the controlled substance.
Operating on a search warrant obtained from Justice Court Judge C.L. Quick, Agents Leonard Harrison and Faron Gardner of the Mississippi Bureau of Narcotics went to the residence of Rhonda Sue Jowers and found no one at home. They entered the house through the carport door which was not locked. The officers searched the house and found a large freezer bag of marijuana wrapped in aluminum in the freezing compartment of the refrigerator. Three separate bags of marijuana were found in the lower compartment of the refrigerator. A set of portable weighing scales was also discovered in the kitchen.
While the search was underway Jowers drove up into the driveway. The officers met her and informed her they were searching her home and placed her under arrest. Gardner searched the car where he found Jowers' purse, which contained more marijuana, a second set of portable scales On January 11, 1989, the Leake County Grand Jury indicted Jowers for the willful, unlawful and felonious possession of an amount of marijuana in excess of one (1) ounce, with the intent to deliver in violation of Miss.Code Ann., Sec. 41-29-139(a)(1) (Supp.1988). Jowers was tried on May 18, 1989, convicted and sentenced to a term of eight (8) years in the custody of the Mississippi Department of Corrections.
a "surgical tool," a cigarette lighter, rolling papers, and $356.00 in cash.
On appeal Jowers makes seven assignments of error, six of which are without merit and do not warrant discussion. The seventh assignment of error is that the State failed to prove an essential element of the crime, i.e., intent to deliver. In this regard Jowers is correct.
I.E., INTENT TO DELIVER.
There was no direct evidence to establish that Jowers intended to sell or deliver the marijuana. However, the intent to sell or deliver contraband may be established by inference from circumstantial evidence. Jackson v. State, 580 So.2d 1217, 1220 (1991); Bryant v. State, 427 So.2d 131 (Miss.1983); Hollingsworth v. State, 392 So.2d 515, 517 (Miss.1981).
Where the contraband is present in an amount which a person could reasonably hold for personal use, other evidence of possible involvement in the drug trade may be sufficient to establish intent. See, Breckenridge v. State, 472 So.2d 373, 378 (Miss.1985).
The items seized from Jowers show that she possessed:
1. One large freezer bag of marijuana weighing 219 grams (7.7 oz.).
2. A small bag of marijuana weighing 84.5 grams (.
3. A small bag of marijuana weighing 19.9 grams (.
4. Two sets of portable scales. One set found in the house, the other set found in Jowers' purse.
5. A surgical tool.
6. Rolling papers.
7. $356.00 in United States currency.
The amount of marijuana seized in this case is not sufficient to constitute direct evidence that possession alone establishes intent. The surgical tool, used as a holder, and the rolling papers are items commonly associated with personal marijuana use. Scales are used by drug dealers, but also have legitimate uses. The $356.00 does heighten suspicion of an intent to deliver, but not everyone who has $356.00 in cash is a drug dealer, or for that matter a drug user.
This evidence could just as well imply possession for personal use as intent to deliver. The items seized all together create a suspicion of intent but not an intent to deliver marijuana. The statute requires more than mere suspicion.
Based upon well recognized jurisprudence in this State commencing with Hollingsworth v. State, 392 So.2d 515 (Miss.1981); Bryant v. State, 427 So.2d 131 (Miss.1983); Coyne v. State, 484 So.2d 1018 (Miss.1986); Jackson v. State, 580 So.2d 1217 (Miss.1991); and Clayton v. State, 582 So.2d 1019, 1022 (Miss.1991), we hold that the State failed to meet its burden of proof of possession with intent to distribute and the conviction of Jowers on that charge is reversed.
However, the evidence clearly establishes that Jowers was guilty of the lesser included offense of possession of marijuana. The jury had more than sufficient evidence to find her guilty of that charge. Although the jury was presented with conflicting testimony concerning Jowers' possession of the marijuana, the jury resolved that conflict in favor of the State, and the jury is the sole judge of the weight and credibility of the witness. Dixon v. State, 519 So.2d 1226, 1228 (Miss.1988). We therefore reverse the defendant's conviction and sentence for possession of a controlled substance with intent to distribute, but affirm conviction for the lesser included offense of possession. Remand is ordered for proper sentencing for possession of marijuana in excess of one ounce.
CONVICTION OF POSSESSION OF MARIJUANA IN EXCESS OF ONE (1) OUNCE WITH INTENT TO DISTRIBUTE IS REVERSED AND SENTENCE VACATED; CONVICTION OF POSSESSION OF MARIJUANA IN EXCESS OF ONE (1) OUNCE IS AFFIRMED; REMANDED FOR RESENTENCING ON POSSESSION ONLY.
I would affirm the conviction of Rhonda Sue Jowers on the charge of intent to distribute a controlled substance. Therefore, I respectfully dissent.
Until recently, Mississippi law was well-settled that criminal intent may, and ordinarily can only be shown by surrounding circumstances. Shive v. State, 507 So.2d 898, 900 (Miss.1987); Boches v. State, 506 So.2d 254, 260 (Miss.1987); Fisher v. State, 481 So.2d 203, 213 (Miss.1985); Hollingsworth v. State, 392 So.2d 515, 517-518 (Miss.1981); Stinson v. State, 375 So.2d 235, 236 (Miss.1979); Ryals v. State, 305 So.2d 354, 356 (Miss.1974); Shanklin v. State, 290 So.2d 625, 627 (Miss.1974). As the majority acknowledges, the intent to sell or deliver contraband can be established in Mississippi by inference from circumstantial evidence. Jackson v. State, 580 So.2d 1217, 1220 (Miss.1991); Bryant v. State, 427 So.2d 131, 132 (Miss.1983); Hollingsworth, 392 So.2d at 517. Thus, Mississippi law has historically found that intent to distribute was an offense which called for some supposition, conjecture, or construction by law enforcement personnel.
The majority finds that the particular surrounding circumstances in the case sub judice are not enough to show intent. What would be enough? I contend that this Court will rarely find more than suspicion of intent to distribute. The only time when law enforcement authorities will have more than suspicion of intent to distribute is when the authorities can read the mind of the defendant, witness a transaction, or can elicit an admission of intent to distribute. Per the recent progeny of cases from this Court including Stringfield v. State, 588 So.2d 438 (Miss.1991), Thomas v. State, 591 So.2d 837 (Miss.1991), and the case at bar, the only time a prosecutor will be able to gain a conviction for intent to distribute is when the defendant is heard to say, "I intend to sell these drugs." This Court's recent direction in determination of intent to distribute creates a situation for prosecutors where intent to distribute is being pushed beyond proof. Since very few defendants admit an intent to distribute and since most defendants are careful to avoid apprehension while in the act of a drug sale, as a practical matter, criminal intent is almost always an offense that must be surmised from the surrounding circumstances.
What would be enough in Mississippi to delineate intent to distribute? In the case sub judice, an intent to distribute can be surmised. The aggregate of the paraphernalia found in Jowers' possession points to an intent to distribute. She possessed a substantial amount of cash, a substantial amount of a controlled substance (marijuana), and a substantial collection of drug tools and/or drug paraphernalia. Clearly, an intent to distribute could be inferred from the situation found at Jowers' home.
Because I believe that the quantum of evidence available for jury consideration is sufficient to allow a reasonable, fair-minded juror to conclude beyond a reasonable doubt that Jowers intended to sell all or a part of the marijuana she possessed, I respectfully dissent.
I differ from my Brother Pittman, also dissenting, concerning the import of recent decisions of this Court on the subject of intent to sell or distribute. He suggests that we would rarely find more than a suspicion of intent to deliver. That is not true. Even if it were true, our system of justice would not be well served by convictions based on suspicion.
Often persons who have made an offer to sell, or who have sold, are found in possession of controlled substances. See, e.g., Jones v. State, 523 So.2d 957 (Miss.1988). Their previous dealings allow the jury to draw an inference of intent. At times, the mere quantity of drugs alone, or together with the presence of...
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