Terry v. State, 012121 MSSC, 2019-CT-00623-SCT

Docket Nº2019-CT-00623-SCT
Opinion JudgeCOLEMAN, JUSTICE
Party NameCEPHUS CHANNING TERRY a/k/a CEPHUS C. TERRY a/k/a CEPHUS TERRY v. STATE OF MISSISSIPPI
AttorneyTRIAL COURT ATTORNEYS: CHRISTOPHER M. POSEY BRIAN BURNS WADE WHITE ATTORNEYS FOR APPELLANT: WILLIAM B. JACOB JOSEPH A. KIERONSKI, JR. ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: META S. COPELAND BARBARA BYRD DISTRICT ATTORNEY: STEVEN KILGORE
Judge PanelRANDOLPH, C.J., MAXWELL, BEAM, CHAMBERLIN AND GRIFFIS, JJ, CONCUR KITCHENS, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, P.J., AND ISHEE, J. KING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J., AND ISHEE, J. KITCHENS, PRESIDING JUSTICE, DISSENTING: KING, P....
Case DateJanuary 21, 2021
CourtSupreme Court of Mississippi

CEPHUS CHANNING TERRY a/k/a CEPHUS C. TERRY a/k/a CEPHUS TERRY

v.

STATE OF MISSISSIPPI

No. 2019-CT-00623-SCT

Supreme Court of Mississippi

January 21, 2021

DATE OF JUDGMENT: 11/21/2018

NESHOBA COUNTY CIRCUIT COURT TRIAL JUDGE: HON. MARK SHELDON DUNCAN

TRIAL COURT ATTORNEYS: CHRISTOPHER M. POSEY BRIAN BURNS WADE WHITE

ATTORNEYS FOR APPELLANT: WILLIAM B. JACOB JOSEPH A. KIERONSKI, JR.

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: META S. COPELAND BARBARA BYRD

DISTRICT ATTORNEY: STEVEN KILGORE

EN BANC.

COLEMAN, JUSTICE

¶1. Cephus Terry was charged with possession of cocaine with intent to sell, possession of methamphetamine, possession of Tramadol, and two counts of possession of a firearm by a felon. He was convicted on all five counts, and the Neshoba County Circuit Court sentenced him as a habitual offender to serve forty-six years in the custody of the Mississippi Department of Corrections. The trial court denied his motion for a new trial, and the Mississippi Court of Appeals affirmed. Terry v. State, No. 2019-KA-00623-COA, 2020 WL 772949, at *5 (Miss. Ct. App. Feb. 18, 2020). Terry filed a petition for writ of certiorari, which we granted.

FACTS AND PROCEDURAL HISTORY

¶2. On August 2, 2017, Deputy Ralph Sciple and five other officers executed a search warrant on an apartment in Philadelphia, Mississippi. The warrant was issued based on a tip from a confidential informant that there were drugs in the apartment. Upon arriving at the apartment, the officers observed a vehicle with an open door and loud music playing. The door to the apartment was open. Sciple stated that he knocked on the door and yelled, "sheriff's office, I've got a warrant." Sciple then pushed the door open and entered the apartment. Upon entering, Sciple noticed a small child asleep on the couch. Sciple repeated himself and then saw Cephus Terry and another small child exit the bathroom. Sciple noticed a white powdery substance on a table, along with sandwich bags, baking soda, and a set of scales. The items were in plain view. Sciple also found a bag that contained a white substance on the table. Sciple also found pills on the table and in other places throughout in the apartment. The items were sent to the Mississippi Forensics Laboratory for identification. Jamie Johnson of the forensics lab testified that the substances found in the apartment included caffeine tablets, two dosage units of methamphetamine, 26.917 grams of cocaine, dimethyl sulfone, and twenty-nine dosage units of Tramadol. Additionally, two firearms, a .22 caliber pistol and a .45 caliber high-point pistol were found in the apartment in the same room as the drugs.

¶3. Sciple testified that he read Terry his rights and that he then asked Terry how long he had been living there. Sciple testified that Terry responded, "about a year." However, Terry testified at trial that he did not live at the apartment. Terry stated he thought Sciple was asking how long the kids had lived there. Terry stated that the only reason he was at the apartment was to pick up his kids, and he was not aware of the drugs or the firearms. Terry stipulated that he had been charged previously with a felony and that he had pled guilty.

¶4. Kiara Baxstrum, the mother of the children, testified that Terry did not live at the apartment. Baxstrum testified that she had asked Terry to pick up the children and take them to their grandfather's house. Baxstrum testified that all of the drugs and firearms belonged to her.

¶5. Terry was convicted on all five counts by a Neshoba County jury, and the Neshoba County Circuit Court sentenced him as a habitual offender under Mississippi Code Section 99-19-81 (Rev. 2015) to serve forty-six years in the custody of the Mississippi Department of Corrections (MDOC). Terry filed a motion for a new trial, which was denied. Terry then appealed his conviction and sentence, and the case was assigned to the Court of Appeals, which affirmed. Terry v. State, No. 2019-KA-00623-COA, 2020 WL 772949, at *5 (Miss. Ct. App. Feb. 18, 2020). Terry then filed a petition for writ of certiorari, which we granted.

STANDARD OF REVIEW

¶6. When reviewing a challenge to the sufficiency of the evidence, "[a]ll credible evidence [that] is consistent with guilt must be accepted as true, and the State is given the benefit of all favorable inferences that may be reasonably drawn from the evidence." Haynes v. State, 250 So.3d 1241, 1244 (¶ 6) (Miss. 2018) (alterations in original) (internal quotation marks omitted) (quoting Burrows v. State, 961 So.2d 701, 705 (¶ 9) (Miss. 2007)). "Matters regarding the weight and credibility of the evidence are to be resolved by the jury." McClain v. State, 625 So.2d 774, 778 (Miss. 1993) (citing Neal v. State, 451 So.2d 743, 758 (Miss. 1984)).

DISCUSSION

¶7. Terry argues that the State failed to prove he constructively possessed the drugs and firearms. Terry further argues that the court erred by improperly instructing the jury regarding constructive possession.

I.

The State proved every element of the crime beyond a reasonable doubt.

¶8. Terry argues that insufficient evidence proved that he had constructively possessed the charged contraband. "Possession of a controlled substance may be actual or constructive, individual or joint." Haynes, 250 So.3d at 1244 (¶ 7) (internal quotation marks omitted) (quoting Dixon v. State, 953 So.2d 1108, 1112 (¶ 9) (Miss. 2007)). Additionally, the Court has stated, What constitutes a sufficient external relationship between the defendant and the narcotic property to complete the concept of "possession" is a question which is not susceptible to a specific rule. However, there 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. . . . Constructive possession may be shown by establishing that the drug involved was subject to [the defendant's] dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Haynes, 250 So.3d at 1244-45 (¶ 8) (alterations in original) (quoting Hudson v. State, 30 So.3d 1199, 1203 (¶ 10) (Miss. 2010)).

¶9. Additionally, this Court has affirmed a conviction based on constructive possession when: (1) The defendant owned the premises where the drugs were found and failed to rebut the presumption that he was in control of such premises and the substances within; or (2) the defendant did not own the premises but was sufficiently tied to the drugs found there by (a) exerting control over the premises when he knew or should have known of the presence of the substance or (b) placing himself in the midst of items implicating his participation in the processing of the substance.

Dixon v. State, 953 So.2d 1108, 1113 (¶ 11) (Miss. 2007).

¶10. Terry argues that the State failed to show "additional incriminating circumstances"; however, the State did introduce testimony through Sciple that Terry stated that he lived in the apartment. It is true that both Terry and Baxstrum disputed the testimony, but that merely created an issue of fact. "Matters regarding the weight and credibility of the evidence are to be resolved by the jury." McClain v. State, 625 So.2d 774, 778 (Miss. 1993) (citing Neal v. State, 451 So.2d 743, 758 (Miss. 1984)).

¶11. The Court also has held, The correct rule in this jurisdiction is that one in possession of premises upon which contraband is found is presumed to be in constructive possession of the articles, but the presumption is rebuttable. We have held that where contraband is found upon premises not in the exclusive control and possession of the accused, additional incriminating facts must connect the accused with the contraband. Where the premises upon which contraband is found is not in the exclusive possession of the accused, the accused is entitled to acquittal, absent some competent evidence connecting him with the contraband. Sisk v. State, 290 So.2d 608, 611 (Miss. 1974).

Powell v. State, 355 So.2d 1378, 1379 (Miss. 1978).

¶12. The language in Powell was interpreted by the Court of Appeals: "if ownership or possession of the vehicle does not create a presumption of constructive possession because that ownership or possession was not exclusive, then the jury must find incriminating circumstances in addition to the defendant's non-exclusive ownership or possession." Mosley v. State, 89 So.3d 41, 49 (Miss. Ct. App. 2011). While it is true that simply being in nonexclusive possession of the residence is insufficient to prove constructive possession, the drugs in the case sub judice were in plain view in a common area of the residence.

¶13. In Ferrell v. State, the driver of a vehicle was charged with constructive possession of crack. Ferrell v. State, 649 So.2d 831, 835 (Miss. 1995). However, on appeal the Court stated, [t]he State claims that the location of the matchbox next to the driver's seat and the 15 hours which Ferrell had possession of the car amounted to additional incriminating circumstances. These contentions are incorrect. Just as in Fultz [v. State, 573 So.2d 689, 691 (Miss. 1990)], the contraband was not positioned in such a way that its presence would be reasonably apparent to a person riding in the car. The mere fact that the matchbox was only a matter of inches from where the defendant was sitting, rather than in the trunk, does not overcome the fact that the crack was cloaked. Cunningham v. State, 583 So.2d 960, 962 (Miss. 1991).

Id. at 835 (emphasis added).

¶14. Unlike the drugs in Ferrell, the drugs in the case sub judice were in plain view, and Terry was the only adult in the...

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