Pearson v. State , 2009–KA–01582–COA.

• Citation: 64 So.3d 569
• Decision Date: 28 June 2011
• Docket Number: No. 2009–KA–01582–COA.,2009–KA–01582–COA.
• Parties: Raco PEARSON, Appellantv.STATE of Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

64 So.3d 569

Raco PEARSON, Appellant

v.STATE of Mississippi, Appellee.

No. 2009–KA–01582–COA.

Court of Appeals of Mississippi.

May 10, 2011.Rehearing Denied June 28, 2011.

Leslie D. Roussell, Laurel, attorney for appellant.Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.Before LEE, C.J., BARNES and MAXWELL, JJ.MAXWELL, J., for the Court:

¶ 1. Raco Pearson challenges his conviction and sentence for selling cocaine in a public park. We find no errors in his trial warranting reversal of his conviction for the sale of cocaine. But we agree with Pearson that the State failed to prove the sale took place within 1,500 feet of a public park, which is a sentencing-enhancement factor. However, we need not alter his sentence because the trial judge did not rely on the park-proximity enhancement to increase Pearson's penalty beyond the statutory maximum. Accordingly, we modify his conviction to “sale of cocaine” and affirm.

FACTS

¶ 2. In September 2007, Donnell Rutledge worked with Officer William Satcher as a paid confidential informant for the South Mississippi Narcotics Task Force. Rutledge participated in controlled undercover drug purchases wearing a hidden video camera.

¶ 3. Rutledge informed Officer Satcher he thought he could make a controlled purchase of cocaine from Pearson. On September 11, 2007, in Officer Satcher's presence, Rutledge called Pearson to arrange a cocaine sale later that day. Immediately before Rutledge left to meet Pearson, he again met with Officer Satcher, who searched Rutledge's person and car to ensure Rutledge had no drugs or cash on him. Officer Satcher then fitted Rutledge with a hidden camera with an audio transmitter and gave Rutledge fifty dollars to purchase the cocaine.

¶ 4. Pearson met Rutledge in Clarke County at a location referred to as Summerall Park. Rutledge testified that, in exchange for the buy money, Pearson gave him a small, sealed plastic bag containing a powder substance. After the sale, Rutledge met Officer Satcher at a pre-arranged location to hand over the drugs and camera. Officer Satcher weighed the baggie of what appeared to be cocaine and immediately sealed it in an evidence bag. The evidence bag was sent to the Mississippi Crime Laboratory for testing. Results showed the plastic bag contained 0.2 gram of cocaine.

¶ 5. In August 2008, a grand jury charged Pearson with the “sale of cocaine within 1,500 feet of a public park.” At his June 2009 trial, the State called as witnesses Officer Satcher, Rutledge, and a drug analyst from the Mississippi Crime Laboratory. The State also introduced the video of the exchange and the bag of cocaine. The jury found Pearson guilty of selling cocaine within 1,500 feet of a public park. At a separate hearing, the trial judge sentenced Pearson to fifteen years' imprisonment, with five years suspended and five years of supervised probation, and ordered him to pay a $5,000 fine upon his release.

¶ 6. Pearson filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, which was denied. Pearson timely appealed.

DISCUSSION

I. The Sale–of–Cocaine Conviction

A. Admission of Physical Evidence

¶ 7. Pearson first argues the trial court erred in admitting the bag of cocaine. His concerns focus on whether the powder cocaine admitted at trial was the same substance Pearson sold to Rutledge. Pearson admits he waived his right to raise this issue on appeal by failing to object to the admission of the bag of cocaine at trial. He asks that we review the evidentiary admission for plain error. Foster v. State, 639 So.2d 1263, 1289 (Miss.1994) (A “defendant who fails to make a contemporaneous objection must rely on plain error to raise the assignment on appeal.”). To establish plain error, there must be a showing of an error at the trial level resulting in a “miscarriage of justice.” Stephens v. State, 911 So.2d 424, 432 (¶ 19) (Miss.2005).

¶ 8. Pearson specifically claims the State admitted physical evidence that had not been properly authenticated or identified. Admission of evidence at trial falls within the trial judge's discretion. Turner v. State, 3 So.3d 742, 744 (¶ 9) (Miss.2009). This discretion “must be exercised within the boundaries of the Mississippi Rules of Evidence.” Thomas v. State, 711 So.2d 867, 872 (¶ 21) (Miss.1998) (citation omitted).

¶ 9. Pearson contends the trial court abused its discretion because the State failed to prove the cocaine tested by the crime lab was the same substance he sold to Rutledge. He relies on the following conflicting evidence: (1) Officer Satcher's case report, describing the charged crime as “sale of crack cocaine” and the contraband as 0.3 gram of “crack cocaine”; (2) the evidence-submission form to the crime lab requesting analysis of the sealed evidence bag, describing its contents as “an off white rock-like substance ... believed to be crack cocaine”; and (3) Rutledge's written statement about the sale, taken a year after it had occurred, describing the purchased substance as “crack cocaine.”

¶ 10. The Mississippi Supreme Court considered a similar argument in Turner—that there was a reasonable inference the evidence had been tampered with or substituted. Turner, 3 So.3d at 744 (¶ 10). As in Turner, although Pearson describes the error as a break in the chain of custody, he is clearly attacking the identification of the bag of cocaine under Mississippi Evidence Rule 901(a). Id. at 744 (¶ 11). “Rule 901(a) does not expressly require that a proponent prove a chain of custody, though it remains one avenue to Rule 901(a) identification.” Butler v. State, 592 So.2d 983, 985–86 (Miss.1991) (“pretermit[ting] chain of custody objections” when evidence has been identified by direct testimony). “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” M.R.E. 901(a).

¶ 11. Describing the level of evidence necessary to satisfy Rule 901(a), the Mississippi Supreme Court has stated:

Rule 901's phrase “support a finding” imports the same notions of legal sufficiency trial courts confront when a convicted defendant moves for judgment of acquittal notwithstanding the verdict and, as well, our de novo review of such matters. [Rule] 901(a) allow[s] receipt of the cocaine as evidence against [the defendant] if—and only if—all of the evidence, giving the prosecution the benefit of all favorable inferences that may reasonably be drawn therefrom, is such that reasonable and fair-minded jurors, having in mind the beyond-a-reasonable-doubt burden of proof standard, in the exercise of impartial judgment, may have reached different conclusions whether [the defendant] delivered it to [the confidential informant]. The question is not whether the trial court finds beyond a reasonable doubt [the defendant] delivered the cocaine, but whether a jury may so find.

Butler, 592 So.2d at 985 (emphasis added). “[A]ny discrepancies in the evidence [are] ‘subjects of cross-examination and argument, but [do] not detract from the fact that there [is] otherwise evidence to satisfy the strictures of Rule 901(a).’ ” Turner, 3 So.3d at 745 (¶ 14) (quoting Butler, 592 So.2d at 986).

¶ 12. Pearson's counsel cross-examined Officer Satcher and Rutledge about the “crack cocaine” discrepancies. Officer Satcher explained both the case report and evidence-submission form were created using a computer form that contained the phrase “crack cocaine.” His failure to delete the word “crack” when filling out the form was a typo. On re-direct, he further explained there is no separate crime in Mississippi for the “sale of crack cocaine.” Instead the offense is based on the “sale of cocaine”—regardless of the form. Rutledge testified he had originally written a statement right after the sale that used the word “cocaine,” not “crack.” He did not write the statement introduced at trial until a year after the sale had occurred. He explained that he had used Officer Satcher's report to jog his memory before erroneously writing that Pearson sold him “crack cocaine.”

¶ 13. We find these discrepancies in the case report, evidence-submission form, and witness statement do not detract from the State's satisfaction of the requirements of Rule 901(a). Rutledge testified he was positive Pearson sold him powder cocaine, and he identified the bag of cocaine as the same one Pearson sold him. Officer Satcher testified, the moment Rutledge handed over the plastic bag, he sealed it in an evidence bag with a distinct identification number. He identified the evidence bag as the same one he sealed right after the sale. And the lab analyst testified he analyzed the substance contained in the sealed evidence bag, identified with the same number Officer Satcher had written on the bag, and found it to be cocaine.

¶ 14. Witness credibility is for the jury to consider, not a reviewing court. Turner, 3 So.3d at 746 (¶ 15) (citing Doby v. State, 532 So.2d 584, 591 (Miss.1988)). And to the extent that Pearson attacks the chain of custody, we note that gaps in the chain of custody go to the weight of the evidence, not admissibility. Deeds v. State, 27 So.3d 1135, 1143 (¶ 24) (Miss.2009). Because a reasonable jury could have found the bag of cocaine introduced at trial was the same bag Pearson sold to Rutledge, there was no error, much less a miscarriage of justice, in admitting the bag of cocaine into evidence.

B. Denial of Motion for JNOV or New Trial

¶ 15. Pearson uses the same “crack” versus powder cocaine discrepancy to argue the trial court improperly denied his motion for JNOV or new trial.

1. Sufficiency of the Evidence

¶ 16. A motion for JNOV challenges the sufficiency of the evidence. Smith v. State, 839 So.2d 489, 495 (¶ 11) (Miss.2003). When addressing the legal sufficiency of evidence, we consider all evidence in a light most favorable to ...