Mitchell v. State, 98-KA-00199-COA.

• Decision Date: 16 November 1999
• Docket Number: No. 98-KA-00199-COA.,98-KA-00199-COA.
• Citation: 754 So. 2d 519
• Parties: David Gerome MITCHELL, a/k/a "Bayrome", Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

754 So.2d 519

David Gerome MITCHELL, a/k/a "Bayrome", Appellant, v.STATE of Mississippi, Appellee.

No. 98-KA-00199-COA.

Court of Appeals of Mississippi.

November 16, 1999.

Scott Watson Weatherly, Jr., Gulfport, Attorney for Appellant.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

EN BANC.

IRVING, J., for the Court:

¶ 1.David Gerome Mitchell was convicted in the Circuit Court of Harrison County as a habitual offender of possession of cocaine with intent to distribute.Feeling aggrieved, he appeals and raises the following issues which are taken verbatim from his brief:

I.THE LOWER COURT ERRED IN NOT SUSTAINING MITCHELL'S MOTION FOR A DIRECTED VERDICT AS THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE STATE'S THEORY OF CONSTRUCTIVE POSSESSION

II.THE LOWER COURT ERRED IN NOT SUSTAINING MITCHELL'S MOTION FOR A DIRECTED VERDICT AS THE EVIDENCE WAS INSUFFICIENT TO SUPPORT A CONVICTION FOR POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DELIVER

Finding no merit in Mitchell's first issue but finding merit in his second issue, we affirm in part and reverse in part.

Facts

¶ 2.Pursuant to a domestic violence call from a Tasha Turner, a friend of Natasha Porter, Deputy Leonard Bentz of the Harrison County Sheriffs Department went to the W.A. Ladner Apartments in Gulfport and spoke with Natasha Porter who informed him that she and her boyfriend, David Mitchell, had been involved in an altercation and that Mitchell was on the other side of the vehicle which was parked on the side of the house.While Porter and Bentz were talking, Sergeant Mark Hoskins, who also responded to the call, arrived at Porter's duplex.Sergeant Hoskins testified that as he was pulling into the driveway of the duplex, he saw Mitchell duck down beside a parked car.Hoskins testified that he called Mitchell by name; however, Bentz and Mitchell testified that Hoskins called Mitchell by Mitchell's nickname, Bayrome.In any event, while Hoskins distracted Mitchell, Bentz went around to the other side of the parked car and took Mitchell into custody for domestic violence.Mitchell testified that Hoskins told him to get on the ground and Bentz attacked him, knocking him to the ground.While Mitchell was being handcuffed by Bentz, Hoskins, using Hoskins's flashlight, started searching the immediate area.

¶ 3.During the search, Hoskins spotted a spare tire a short distance from where Mitchell was arrested, shined his flashlight in the direction of the tire and noticed something that was not a part of the tire.He lifted the tire and found a bag containing 7.1 grams of cocaine formed to resemble one-half of a homemade cookie.Mitchell, at the time of his arrest, had been in the process of changing his tires which had been cut by Porter.As a result of the discovery of the cocaine, Mitchell was charged with possession of cocaine with intent to distribute.

¶ 4.At trial, the State presented the testimonial evidence of Bentz, Hoskins and Ricardo Dedeaux, along with the cocaine, and certified copies of two felony convictions obtained against Mitchell in 1986: one for possession of a controlled substance with intent to distribute and one for sale of a controlled substance.The previous convictions were admitted into evidence, with the proper cautionary instruction, for the limited purpose of proving the intent to distribute the cocaine in question.Dedeaux's testimony was that Mitchell admitted ownership of the cocaine shortly after Mitchell was taken in to custody.

¶ 5.The defense presented the testimonies of Porter and Mitchell who testified in his own defense.Porter testified that she did not see any crack cocaine lying around Mitchell's car when she slashed his tires.Mitchell testified that after seeing Porter slash his tires, he got mad, pushed her out of the way, popped the trunk of his car, took out his spare tire, kicked the tire and prepared to change the rear passenger tire of his car.As he prepared to change the tire, he noticed the other rear tire was also flat.He further testified that the spare tire which he had kicked came to rest nine or ten feet from where he was kneeling to change the rear tire.Mitchell denied that he possessed the cocaine and also denied telling investigator Dedeaux that the cocaine belonged to Mitchell.

¶ 6.Mitchell was found guilty of possession of cocaine with intent to distribute and sentenced as a habitual offender to thirty years in the custody of the Mississippi Department of Corrections.Mitchell's post-trial motion for judgment notwithstanding the verdict, or in the alternative, for a new trial, was denied.Thereafter, he perfected this appeal.

DISCUSSION OF THE ISSUES

I.Sufficiency and Weight of the Evidence on the Element of Possession

Standard of Review

¶ 7.When there is a challenge to the sufficiency of the evidence, we may reverse only where, in consideration of all of the evidence at the close of the trial, we are convinced that reasonable and fair-minded jurors could only find the accused not guilty of the offense with which he is charged.Wetz v. State,503 So.2d 803, 808(Miss.1987), Harveston v. State,493 So.2d 365, 370(Miss.1986).A motion for a new trial implicates the discretion of the trial court and seeks to procure a new trial on the theory that, while there is some evidence in support of the conviction of the accused, the verdict of the jury is against the overwhelming weight of the entire evidence.We, sitting as an appellate court, will not reverse the trial court's denial of a motion for a new trial unless there has been a manifest abuse of that discretion.Quinn v. State,479 So.2d 706, 709-10(Miss.1985).

¶ 8.Having set forth the parameters of our reviewing power, we now turn to the application of those standards to the factual issues involved.As stated, Mitchell challenges both the sufficiency and weight of the evidence as to the element of possession.His contention is that the cocaine was found on the ground under a tire some five to ten feet away, and that since the cocaine was not found on his person, the State was required to prove that he constructively possessed the cocaine, a burden which he contends the State wholly failed to carry.We agree that the State was required to prove constructive possession, but we disagree with Mitchell's assertion that the State failed to meet its burden of proof in this respect.

¶ 9.Before we proceed to a discussion of the law on constructive possession, we review some facts already stated as well as some additional relevant facts.The cocaine was found under the spare tire which Mitchell had taken out of the trunk of his car.As Officer Hoskins drove into the driveway of Porter's duplex, he saw someone duck behind a vehicle in the parking lot of the residence where Deputy Bentz was located.Hoskins immediately confronted this individual who turned out to be Mitchell.At that time, Officer Hoskins did not see any other people in the area.Hoskins testified that Mitchell was right beside the tire when he first saw Mitchell and that Mitchell had to walk around the tire to arrive at the location where he was taken into custody.Bentz testified that when he took Mitchell into custody, Bentz did not see anybody at the immediate scene although he might have seen some people when he pulled into the Ladner housing project area.He also testified that the spare tire was within a five foot radius or a little more of Mitchell.

¶ 10.In Cunningham v. State,583 So.2d 960, 962(Miss.1991), the Mississippi Supreme Court, quoting Curry v. State,249 So.2d 414(Miss.1971), provided the following guidance on what must be proven to warrant a finding that a defendant has constructive possession of contraband not found on his person:

[T]here 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 physical possession.Constructive possession may be shown by establishing dominion or control.Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

However, when contraband is found on premises which are not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession.Cunningham,583 So.2d at 962.The State must show additional incriminating circumstances to justify a finding of constructive possession, and where the premises is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband.Id. at 962, (quotingFultz v. State,573 So.2d 689, 690(Miss.1990));Powell v. State,355 So.2d 1378(Miss.1978), (citingSisk v. State,290 So.2d 608, 610(Miss.1974)).In the casesub judice, that link of competent evidence is the testimony of Dedeaux that Mitchell admitted possession of the cocaine.Although Mitchell vigorously denied that he made such an admission, nevertheless, the jury was entitled to believe Dedeaux over Mitchell, and we are without power to interfere with their finding.Therefore, we are unable to conclude that fairminded jurors could have only found Mitchell not guilty or that the trial judge abused his discretion in denying Mitchell's motion for a new trial after the jury found him guilty.

II.Sufficiency and Weight of the Evidence on the Element of Intent to Distribute

¶ 11.Mitchell also contends that even if the evidence was sufficient to prove that he constructively possessed the cocaine, the evidence offered against him is insufficient to sustain a conviction for possession with intent to distribute because the only evidence offered as proof of intent was the amount of the cocaine and two prior drug convictions: one for sale and the other for possession with intent to distribute.Mitchell further argues that the amount...