Terry v. State
| Decision Date | 18 February 2020 |
| Docket Number | NO. 2019-KA-00623-COA,2019-KA-00623-COA |
| Citation | 309 So.3d 1071 |
| Parties | Cephus Channing TERRY a/k/a Cephus C. Terry a/k/a Cephus Terry, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: WILLIAM B. JACOB, MERIDIAN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY JR.
EN BANC.
BARNES, C.J., FOR THE COURT:
¶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 by a Neshoba County Circuit Court jury, and the Neshoba County Circuit Court sentenced him to serve forty-six years in the custody of the Mississippi Department of Corrections (MDOC) as a habitual offender. The court denied his motion for a new trial, and Terry appeals, arguing that there was insufficient evidence to support his convictions and that the jury was not properly instructed as to the elements of constructive possession. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. Based on a tip by a confidential informant (CI) regarding illicit drug activity, the Neshoba County Sheriff's Department executed a search warrant at an apartment on Ivy Street in Philadelphia, Mississippi, on August 2, 2017. When the chief investigator, Ralph Sciple, and deputies arrived at the apartment, they observed a car parked in the driveway, still running. Law enforcement went to the door of the apartment, which was ajar. Sciple announced himself, stated that he had a warrant, and entered the apartment. A child was asleep on a couch; Terry and another child were coming out of a bathroom. The children were approximately eight and ten years of age, and Terry was the only adult in the apartment. Terry told Sciple that he had been living in the apartment for about a year.
¶3. Sciple observed a white, powdery substance on a kitchen table along with sandwich bags, a box of baking soda, and a set of digital scales. There was also a "Cricket Wireless" bag containing a white residue in plain view on the table. A white, powdery substance was found in a sandwich-bag box, and there was foil that appeared to have contained tablets. Pills were found on the table and on a nearby wooden box. Star-shaped pills were found on a coffee table. Also in plain view were two pistols on a television stand—a .22-caliber Ruger and a .40-caliber High-Point. Ammunition was found, as well as two gun holsters. All of the items were sent to a crime laboratory for analysis.
¶4. Terry was indicted for (1) Count One: possession of cocaine with intent to sell, with a firearm enhancement; (2) Count Two: possession of methamphetamine, with a firearm enhancement; (3) Count Three: possession of firearm by a felon; (4) Count Four: possession of firearm by a felon; and (5) Count Five: possession of Tramadol. A jury trial was held on November 13, 2018.
¶5. Sciple testified that the CI had been at the apartment on Ivy Street on the night of August 1, 2017, and that the CI had seen cocaine and methamphetamine at the residence. The CI informed Sciple of the drug activity, and Sciple promptly requested a search warrant. Sciple served the warrant on the afternoon of August 2, encountering Terry, who was the only adult at the apartment. There was a loaded Ruger .22-caliber pistol and a High Point .45-caliber pistol found on a television stand in the living room. There were boxes of ammunition for other calibers of weapons found. Sciple also noted the presence of the suspected controlled substances. On cross-examination, Sciple acknowledged that a casino player's club card with another person's name on it (not Terry's) was among the things found in the apartment, and he could not state that Terry's fingerprints were found on any of the drugs or guns.
¶6. The justice court judge who issued the warrant, Johnathan Spears, testified at a suppression hearing outside the jury's presence that Sciple told him that the CI was a credible witness and that there was drug activity occurring at the apartment.
¶7. Jamie Johnson of the Mississippi Forensics Laboratory was tendered as a witness and accepted as an expert in the field of forensic science and drug analysis. She received seven packets of substances from law enforcement. The first packet contained twenty-two factory-sealed caffeine tablets. The second packet contained two dosage units of methamphetamine and caffeine. The third packet did not contain a controlled substance. The fourth packet contained 26.917 grams of cocaine. The fifth packet contained dimethyl sulfone, a non-controlled substance commonly found in methamphetamine. The sixth packet contained ten dosage units of Tramadol
. The seventh packet also contained nineteen dosage units of Tramadol.
¶8. The parties agreed to stipulate to Terry's prior convictions, and the State rested. Defense counsel moved for a directed verdict, which the circuit court denied. Kiara Baxstrum, the mother of Terry's children, testified that she resided at the apartment on Ivy Street on August 2, 2017. She said that Terry did not live with her and had no possessions in the apartment. Baxstrum explained that Terry was at the apartment that day because she had to go to work and Terry was going to take their children to their grandfather's house. Baxstrum reiterated that Terry had no possessions in the apartment, and she claimed that the guns, drugs, and other items found there belonged to her.
¶9. However, when questioned further, Baxstrum could not recall where she obtained a prescription for Tramadol
or why the pills were not in a prescription bottle. She also could not identify where she got the guns and claimed that she did not shoot them often. Baxstrum denied using cocaine or methamphetamine. She said that she had the digital scales for "different reasons," and the bags on the table were there because she is messy. She acknowledged that she did not want to see Terry go to jail.
¶10. Terry testified that he did not live with Baxstrum and their children on Ivy Street and that, as of August 2, 2017, his residence was at 264 Davis Street, Philadelphia, Mississippi. He denied possession of the cocaine, methamphetamine, and Tramadol found in the apartment; Terry also denied ownership of the pistols. He said that he did not have any personal possessions in the apartment and that he had not paid any expenses related to leasing the apartment. Terry stated that he was at the apartment because Baxstrum had asked him to pick up the children, which is why he had left his vehicle running. According to Terry, he had no sooner told the children to get ready to leave when law enforcement entered the apartment. When asked about telling Sciple that he had lived there one year, Terry explained that Sciple had been asking questions about his children; so he thought the investigator was asking him about how long the children had lived there. He denied being at the apartment the night before the search or having noticed the drugs and the pistols during the time he was in the apartment.
¶11. The defense rested. The State re-called Sciple as a rebuttal witness, who reiterated that Terry told him that he (Terry) had lived in the apartment for a year. Sciple also testified that Baxstrum came to his office after the search, told him that the firearms belonged to her, and that she wanted them back. She said nothing to him about the drugs being hers.
¶12. Terry was convicted on all five counts, and the circuit court sentenced Terry as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) to serve thirty years in the custody of the MDOC for Count One; six years for Count Two; ten years for Count Three with the sentence to run consecutively to the sentences in Counts One and Two; ten years for Count Four with the sentence to run concurrently with the sentences in Counts One, Two, and Three; and one year for Count Five with the sentence to run concurrently with the sentences in Counts One, Two, Three, and Four. Aggrieved, Terry appeals his convictions and sentences.
DISCUSSION
¶13. Because Terry did not have the drugs or guns on his person, he was prosecuted for constructive possession. He contends on appeal that the State failed to prove every element of constructive possession. In reviewing a challenge to the sufficiency of the evidence, we view "the evidence in the light most favorable to the prosecution," accepting as true "[a]ll credible evidence consistent with the defendant's guilt ... together with all favorable inferences that may be reasonably drawn from the evidence." O'Donnell v. State , 173 So. 3d 907, 916 (¶20) (Miss. Ct. App. 2015) (quoting Robinson v. State , 940 So. 2d 235, 240 (¶13) (Miss. 2006) ). "The critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed.’ " Id. ().
¶14. "Constructive possession exists where the contraband was ‘subject to the defendant's dominion or control.’ " Jordan v. State , 158 So. 3d 348, 350 (¶7) (Miss. Ct. App. 2014) (quoting Curry v. State , 249 So. 2d 414, 416 (Miss. 1971) ). "When the defendant owns or controls the premises where the contraband is found, there is a presumption of constructive possession of the contraband." Id. at 351 (¶8) (citing Ferrell v. State , 649 So. 2d 831, 834 (Miss. 1995) ). If, however, "the defendant's possession of the premises is not exclusive, there must be additional incriminating circumstances tying him to the drugs." Id. (citing Fultz v. State , 573 So. 2d 689, 690 (Miss. 1990) ). Mere physical proximity to the contraband, absent other evidence, is not...
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