DATE
OF JUDGMENT: 06/18/2019
ON WRIT
OF CERTIORARI
MADISON COUNTY CIRCUIT COURT HON. DEWEY KEY ARTHUR TRIAL
JUDGE:
TRIAL
COURT ATTORNEYS: KATIE NICOLE MOULDS CHRISTOPHER TODD McALPIN
BRAD MARSHALL HUTTO KEVIN DALE CAMP
ISHEE
JUSTICE
¶1.
While he was incarcerated in the Madison County Jail, Lavar
Williams's jailers recorded numerous telephone
conversations in which Williams appeared to be directing a
drug trafficking ring. A search of Williams's home
revealed large amounts of marijuana and cocaine, as well as
$93, 259 in cash. Williams was subsequently charged and
convicted of two counts of conspiracy and two counts of
possession with intent to distribute. On appeal, Williams
contends that he could not be in possession, constructive or
otherwise, of drugs found in his home when he had been had
been incarcerated for two months and others had access to the
home. The Court of Appeals affirmed Williams's conviction
on a constructive possession theory. We affirm as well,
though we take this opportunity to clarify that
Williams's conviction should be affirmed based on
accomplice liability rather than constructive possession.
¶2.
The Court of Appeals ably recited the relevant facts:
At trial, Lieutenant Trey Curtis with the Narcotics Division
of the Madison County Sheriff's Department testified that
in December 2017 he began monitoring Williams's phone
calls while Williams was in the Madison County Detention
Center. Lieutenant Curtis testified that Williams made
several calls to Jeremiah Kelly and used code words to
discuss narcotics. As a result, Lieutenant Curtis obtained
search warrants for Williams's residence on Kings
Crossing in Madison County and Kelly's mother's
residence on North Jackson Street in Madison County.
On January 27, 2018, law enforcement executed the warrants.
Lieutenant Curtis testified that law enforcement found
marijuana and cocaine at Williams's residence. They also
found currency, scales, sandwich bags, priority-mail postal
stickers, and drug ledgers. According to Lieutenant Curtis,
the currency was divided into stacks, and on top of each
stack were ledgers with names and amounts. Lieutenant Curtis
testified that the ledgers corroborated information that he
had overheard on Williams's phone calls with Kelly. On
cross-examination, Lieutenant Curtis admitted that Williams
had been in jail for approximately two months and therefore
had not had access to his residence.
The State played portions of several of Williams's phone
calls to Kelly for the jury. During the calls, Williams and
Kelly discussed "T-shirts," "presents,"
and "shoes." Lieutenant Curtis explained that
"T-shirts" was code for crack cocaine, and
"presents" and "shoes" were codes for
marijuana. Kelly assured Williams that he had written
everything down and that everything was
"copesetic."
During the calls, Williams and Kelly discussed someone named
"Young." Lieutenant Curtis testified that a box
found in the trash can suggested that Young lived in
California. Then Williams referenced "Mark in the
truck." Kelly asked, "Mark in the truck?"
Williams clarified, "In the brown truck."
Lieutenant Curtis testified he determined that Mark was a UPS
driver. Later, Kelly told Williams that everything was
"straight" with certain mail. According to
Lieutenant Curtis, Williams told Kelly to send Young
"750 times ten," which meant $750 per pound for
marijuana. Lieutenant Curtis testified that "7, 500
Young" was written on one of the ledgers.
Tommy Jones, Captain of the Narcotics Division of the Madison
County Sheriffs Department, testified that he participated in
the execution of the search warrant at Williams's house.
Captain Jones testified that law enforcement found a safe
inside a bedroom closet, containing what they suspected was
marijuana and cocaine, $93, 259, and a stolen fully automatic
. .. MP5 [-model submachine gun that had been stolen from the
Jackson Police Department]. Additionally, Captain Jones
testified that the ledgers mostly corroborated the phone
calls between Williams and Kelly. On cross-examination,
Captain Jones admitted that Williams had not had access to
his house for approximately two months and that other people
had access to the house.
Archie Nichols, with the Mississippi Forensics Laboratory,
testified that the safe at Williams's residence contained
167.66 grams of cocaine, a Schedule II controlled substance,
and 5, 556.71 grams of marijuana, a Schedule I controlled
substance. Additionally, 10.58 grams of cocaine and another
.48 gram[s] of cocaine were found in Williams's kitchen
Finally, the State called Lenaris Milton to testify at trial.
Milton had pleaded guilty to conspiracy to deliver marijuana
in this case and was sentenced to serve five years. As part
of his plea, he agreed to testify at Williams's trial.
According to Milton, he grew up with Williams, and he,
Williams, and Kelly were involved in the same drug business.
According to Milton, he sold drugs for Williams even while
Williams was in jail in January 2018. Milton specifically
testified that Williams had called him from jail and
directed him to distribute drugs. Milton also testified that
they used code words for drugs such as "presents"
and "T-shirts." According to Milton, he helped his
wife run a clothing store in 2018, but Williams did not have
anything to do with it.
After the State rested its case, the defense moved for a
directed verdict, which was denied. Then Williams testified.
Williams's defense was that he had been incarcerated
since December 4, 2017, and that other people had access to
his residence while he was incarcerated. He admitted to
calling Kelly from jail; however, he testified that they only
discussed Christmas presents for his kids, not drugs. He also
testified that when they discussed T-shirts, they were
referring to T-shirts at Milton's clothing store that he
helped run. Later, Williams testified that he never mentioned
presents or T-shirts. According to Williams, he instructed
Kelly to manage his appliance business. Williams testified
that he received scratch-and-dent appliances from a man named
Derek Young at Lowe's in Madison. Then he sold the
appliances to individual buyers. Williams testified that when
he said "$750," he was referring to refrigerators.
According to Williams, he had never been around any drugs and
did not know of any drug activity at his house.
After the defense rested its case, the State called
Lieutenant Curtis as a rebuttal witness. Lieutenant Curtis
testified that although they seized some appliances from
Williams's house, they did not find any ledgers that
referred to appliances.
Ultimately, the jury found Williams guilty.... Now Williams
appeals, claiming his convictions for possession with intent
were not supported by sufficient evidence, and his trial
counsel was ineffective for failing to file post-trial
motions.
Williams v. State, No. 2019-KA-01007-COA, 2020 WL
7350420, at *l-3 (Miss. Ct. App. Dec. 15, 2020). The Court of
Appeals majority concluded that the evidence was sufficient
to support Williams's convictions for possession with
intent, and it found his trial counsel had not been
ineffective. Id. at *4-5.
¶3.
This Court granted certiorari to address the sufficiency of
the evidence supporting Williams's convictions for
possession with intent to distribute.
¶4.
On review of the sufficiency of the evidence, "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; and where the evidence fails
to meet this test it is insufficient to support a
conviction." Pace v. State, 242 So.3d 107, 118
(Miss. 2018) (quoting Swanagan v. State, 229 So.3d
698, 703 (Miss. 2017)). This Court must decide if "any
rational trier of fact could have found each element of the
crime beyond a reasonable doubt...." Mujahid v.
State, 324 So.3d 275, 281 (Miss. 2021) (internal
quotation marks omitted) (quoting Pace, 242 So.3d at
119).
¶5.
To establish possession of a controlled substance, the State
must produce evidence that a defendant (1) was aware of the
presence of a substance, (2) was aware of the character of
the substance, and (3) was consciously and intentionally in
possession of the substance. Haynes v. State, 250
So.3d 1241, 1244-45 (Miss. 2018) (quoting Hudson v.
State, 30 So.3d 1199, 1203 (Miss. 2010)).
¶6.
The third element, the defendant's conscious and
intentional possession, can be established constructively if
the evidence demonstrates the defendant had dominion or
control over the substance. Id. at 1245 (quoting
Hudson, 30 So.3d at 1203). A finding of constructive
possession requires a finding that the defendant had
"some type of control over the drugs under the totality
of the circumstances[.]" Berry v. State, 652 So.2d
745, 750
(Miss. 1995) (citing State v. Staley, 872 P.2d 502
(Wash. 1994)). Evidence of ownership of substances or payment
for substances would establish dominion or control over the
substance. Id. at 751. Further, "one who is the
owner in possession of the premises, or the vehicle in which
contraband is kept or transported, is presumed to be in
constructive possession of the articles found in or on the
property possessed." Dixon v. State, 953 So.2d
1108, 1113 (Miss. 2007) (quoting Hamburg v. State,
248 So.2d 430, 432 (Miss. 1971)). This presumption can be
rebutted. Id. (quoting Hamburg,...
