Rogers v. State, 90-KA-0690

• Decision Date: 25 March 1992
• Docket Number: No. 90-KA-0690,90-KA-0690
• Citation: 599 So.2d 930
• Parties: Malcom (Malcolm) ROGERS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 930

599 So.2d 930

Malcom (Malcolm) ROGERS v. STATE of Mississippi.

No. 90-KA-0690.

Supreme Court of Mississippi.

March 25, 1992.

Rehearing Denied June 17, 1992.

Herman F. Cox, McGuire & Cox, Gulfport, for appellant.

Michael C. Moore, Atty. Gen. and Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PRATHER and BANKS, JJ.

BANKS, Justice, for the Court:

INTRODUCTION

This appeal came before this Court from the Circuit Court of Jackson County. There, Malcolm Rogers (Rogers) was convicted on May 22, 1990, for distributing a controlled substance, crystal methamphetamine, to an undercover informant, Robbie Nelson (Nelson). Rogers was sentenced to serve a term of twenty-five (25) years with the Mississippi Department of Corrections and fined Five Hundred Thousand Dollars ($500,000). Aggrieved by the lower court's decision, Rogers appealed to this Court assigning nine (9) issues as error.

ANALYSIS

I.

Rogers' first assignment of error is that the trial court erred in overruling the defendant's Motion for a Directed Verdict at the close of the State's case and in overruling his Motion for a Judgment Notwithstanding the Verdict, or in the alternative, Motion for a New Trial because the prosecution failed to prove its case against him and the verdict was against the overwhelming weight of the evidence, in that the verdict evinced bias and prejudice against the defendant.

Once a party moves for a directed verdict or judgment notwithstanding the verdict, the trial court must examine all the evidence in the light most favorable to the state. Pate v. State, 557 So.2d 1183, 1184 (Miss.1990) (citing McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)). The motion for a new trial is an altogether different animal. While a motion for judgment notwithstanding the verdict presents to the court a pure question of law, the motion for a new trial is addressed to the trial court's sound discretion. That as a matter of law the motion for judgment notwithstanding the verdict must be denied in no way affects and little informs the trial judge regarding his disposition of the motion for a new trial.

Rogers argues that the State failed to establish that the substance he was charged with in the indictment was, in fact, crystal methamphetamine and a controlled substance. He submits that during the trial, the crime lab expert did not identify the substance as being solely methamphetamine but testified that the substance was a combination of amphetamine and methamphetamine. In the case of Copeland v. State, 423 So.2d 1333, 1336 (Miss.1982), we reaffirmed the following rule of law pertaining to charges in an indictment:

Every material fact and essential ingredient of the offense--every essential element of the offense must be alleged with precision and certainty, or, as has been stated, every fact which is an element in a prima facie case of guilt must be stated in the indictment.

In Copeland, the appellant sold a quantity of 3, 4 methylenedioxy amphetamine, a controlled substance to an undercover narcotics agent. The indictment charged the defendant with unlawfully selling a quantity of methylenedioxy amphetamine, a controlled substance. The defendant asserted that the indictment did not charge a crime and thus was void since methylenedioxy amphetamine is not a controlled substance. This Court agreed and reversed the conviction.

In reaching this decision, we relied on the Fifth Circuit case of United States v. Huff, 512 F.2d 66 (5th Cir.1975). The issue in Copeland was identical to the one presented in Huff. In Huff, the appellant was indicted and convicted on two counts of violation of a federal statute. Count II of the indictment charged Huff with "unlawful possession, with intent to distribute (a quantity) of methylenedioxy amphetamine." The Court of Appeals reversed the conviction on Count II and stated:

[t]he addition of the numbers "3, 4" would have indeed saved this count, but we cannot regard this defect as a mere technicality, for the chemical and legal definition of these substances is itself technical and requires precision.

Copeland v. State, 423 So.2d at 1336 (quoting from United States v. Huff, 512 F.2d at 69.)

In the case at bar, the indictment does in fact state a drug which was listed as a controlled substance under the statute. Rogers' indictment charged him with distribution of a controlled substance, crystal methamphetamine. Miss.Code Ann. Sec. 41-29-115(a), (c)(3) (1972) provides: "Any substance which contains any quantity (emphasis added) of methamphetamine, including its salts, isomers, and salts of isomers" is considered a Schedule II controlled substance. Rogers' argument that the word "crystal" should be construed as being a drug separate from methamphetamine is meritless. The statute is patently clear that a drug which contains any amount of methamphetamine is considered a controlled substance. In Copeland, the numbers of the drug "3, 4" were essential terms associated with the type of the drug. In the instant case however, the term 'crystal' is not essential to the type of the drug, because the statute makes it a crime if any amount of methamphetamine is present .

Rogers also presents the argument that the state did not offer any proof at trial as to what kind of schedule controlled substance crystal methamphetamine was. We held in Thomas v. State, 377 So.2d 593, 594 (Miss.1979), that sufficient proof existed where a drug was listed as a controlled substance under the laws of this state pursuant to Miss Code Ann. Sec. 41-29-119 (1972). In the case at bar, the expert testified that the substance contained amphetamine and methamphetamine. Under Sec. 41-29-115(a), (c)(3) of Miss Code Ann. (1972), methamphetamine is listed as a controlled substance. At trial, it was established that the bag containing the methamphetamine was recovered from Nelson, while the money was recovered from Rogers. Since the statute clearly lists the drug in question as a controlled substance, Rogers' claim lacks merit.

Rogers urges this Court to find that a material variance existed between the indictment returned against him and the evidence offered by the State. He states that the indictment reflects that he was indicted for distribution of crystal amphetamine, a controlled substance, but that the proof evinced a sale of the substance identified as amphetamine and methamphetamine. Rogers cites Jones v. State, 279 So.2d 650, 651 (Miss.1973), where the defendant was indicted on a charge of sale of marijuana by the grand jury. Before the trial commenced, the prosecution made a motion to amend the indictment to strike the word "sell" in the indictment and to substitute the words "deliver and possess." The defense counsel argued that the amendment substituted one charge for a new charge, which the grand jury did not consider, and that the lower court possessed no authority to change the charge. This Court reversed and remanded the conviction, noting the following:

We also agree that the trial court cannot amend an indictment so as to change the charge made in the indictment to another crime, except by the action of the grand jury who returned the indictment.

The motion for new trial should have been sustained; because although the charge of possession and delivery of marijuana the indictment actually charged the crime of sale of marijuana. There was no testimony in the record showing a sale of marijuana.

279 So.2d at 651, 652.

We find Jones inapplicable to the instant case. There, the amendment changed the crime. However, in this instance, the State did not change the indictment. Rogers was charged in the indictment with:

... unlawfully, wilfully, knowingly and feloniously distribute a certain controlled substance without authority of law, to-wit: crystal methamphetamine to Robert Nelson and receive ... the sum of $500.00 in good and lawful money of the United States of America."

The word "distribute" as stated in the statute and the indictment includes transactions which are sales as well as transactions which may not be considered sales. The State's proof established that Rogers distributed crystal methamphetamine to Nelson. Thus we hold that there was no material variance but that the indictment conformed to the evidence which was set forth at trial.

In reviewing the evidence in the light most consistent with the state, we hold that the trial court did not err in overruling Rogers' motion for a directed verdict, or judgment notwithstanding the verdict and that the motion for new trial was properly denied.

Rogers put forth the contention that the proper chain of custody was not laid. However, he did not support his contentions with any legal citations. We have repeatedly held that we are under no obligation to consider errors without citation to authority. Brown v. State, 534 So.2d 1019 (Miss.1988). See also Clark v. State, 503 So.2d 277 (Miss.1987); Kelly v. State, 463 So.2d 1070 (Miss.1985); Redmon v. State, 457 So.2d 1344 (Miss.1984). Because Rogers has failed to cite authority for his contention, we will not address it on review.

II.

Rogers' second issue for review is that the court erred in refusing defense instruction # D-1, which was a request for a peremptory instruction of not guilty. Rogers asserts that based on the authorities and argument set forth in Issue I, the Court was in error in refusing to grant the requested jury instruction.

In addressing challenges to a denial of peremptory instruction of not guilty, the standard of review is the same as that for challenges to a directed verdict.

The general rule is that all instructions must be supported by evidence. Where an instruction is not supported by evidence, it should not be given. Hicks v. State, 580 So.2d 1302 (Miss.1991); citing Dennis v. State, 555 So.2d 679, 683 (Miss.1989); Moffett v. State, 540 So.2d 1313 (Miss.1989); Nicolaou v. State, 534 So.2d 168 (Miss.1988). Furthermore, we have held...