Frank Smith v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00494-COA
FRANK SMITH
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
1/18/2008
HON. DAVID H. STRONG, JR.
PIKE COUNTY CIRCUIT COURT
LESLIE S. LEE
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
DEE BATES
CRIMINAL - FELONY
CONVICTED OF POSSESSION OF AT
LEAST ONE TENTH BUT LESS THAN
TWO GRAMS OF COCAINE WITH INTENT
TO DISTRIBUTE AND SENTENCED AS A
HABITUAL OFFENDER TO LIFE IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PAROLE OR
EARLY RELEASE
AFFIRMED - 2/24/2009
BEFORE LEE, P.J., GRIFFIS AND BARNES, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Frank Smith was found guilty by a jury in the Circuit Court of Pike County of
possession of at least one tenth but less than two grams of cocaine with intent to distribute.
Smith was sentenced as a habitual offender to life without eligibility for parole or early
release. Smith made a motion for a judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial, which was denied by the trial court.
¶2.
Smith now appeals, asserting the following issue: the verdict was against the
overwhelming weight of the evidence. Finding no error, we affirm the judgment of the trial
court.
FACTS
¶3.
According to Katrina Lyons’s testimony, Daphne Patterson, also known as Penny, and
Patterson’s stepfather, Smith, came to her house and tried to sell her cocaine, but she refused
to buy it. Lyons testified that she told Patterson and Smith, “Y’all need to leave; the law is
watching my house.” Lyons called the police after Patterson and Smith left and reported the
illegal activity on her property. Deputy Kennis Montgomery responded to the call. While
Deputy Montgomery was talking to Lyons at her house, a black truck pulled into the yard,
backed out, and drove back down the road. Lyons told Deputy Montgomery that the black
truck was the one Patterson and Smith came to her house in earlier that day.
¶4.
Deputy Montgomery followed the truck and performed a traffic stop after observing
the vehicle swerve off the road onto the edge of a ditch and then back onto the road.
Patterson was driving the truck. She informed Deputy Montgomery that she did not have a
driver’s license. As Deputy Montgomery was standing next to the truck, he noticed two open
beer cans on the floor of the truck. Patterson and Smith admitted that they had been drinking.
Patterson also admitted that she and Smith were “high.”
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¶5.
Deputy Montgomery asked Patterson and Smith for their consent to search the vehicle.
Patterson and Smith consented to the search. Deputy Montgomery found a pill bottle
wrapped in electrical tape inside a brown paper bag under the passenger seat where Smith
was sitting. The pill bottle contained what appeared to be cocaine. Both Smith and Patterson
denied that the pill bottle belonged to them. Deputy Montgomery placed Patterson and Smith
in custody. The substance tested positive for cocaine.
STANDARD OF REVIEW
¶6.
“When reviewing a denial of a motion for a new trial based on an objection to the
weight of the evidence, we will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). “[T]he
evidence should be weighed in the light most favorable to the verdict.” Id.
¶7.
A reversal on the grounds that the verdict was against the overwhelming weight of the
evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was
the only proper verdict.” Id. (quoting McQueen v. State, 423 So. 2d 800, 803 (Miss. 1982)).
Rather, it means that this Court, sitting as the “thirteenth juror,” simply disagrees with the
jury’s resolution of the conflicting testimony. Id.
DISCUSSION
¶8.
Smith argues that the jury verdict was against the overwhelming weight of the
evidence because it was based on the testimony of two admitted cocaine users, and without
their testimony, there was no evidence to link Smith to the pill bottle besides his proximity
to it.
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¶9.
To establish possession, “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.” Hamm v. State, 735 So. 2d 1025, 1028
(¶11) (Miss. 1999) (quoting Curry v. State, 249 So. 2d 414, 416 (Miss. 1971)). In the
absence of actual physical possession, the State must show constructive possession. Williams
v. State, 971 So. 2d 581, 587 (¶16) (Miss. 2007). “Constructive possession is established by
showing that the contraband was under the dominion and control of the defendant.” Id.
(quoting Roberson v. State, 595 So. 2d 1310, 1319 (Miss. 1992)). “[T]here must be sufficient
facts to warrant a finding that the defendant was aware of the presence and character of the
particular [contraband] and was intentionally and consciously in possession of it.” Id.
(quoting Curry, 249 So. 2d at 416).
¶10.
Since Smith was not in physical possession of the pill bottle, the State presented the
testimony of Patterson and Lyons to show that Smith was guilty of constructive possession.
Patterson, an admitted drug user, testified that she and Smith went to Lyons’s house on the
day of the arrest “[t]o sell her some dope.” However, Patterson could not remember certain
events of the day. She explained her lack of memory by saying, “Well, I had been smoking
dope! I was on drugs!” Patterson testified that she saw Smith with the pill bottle in his hand
that day, and she had seen him with it on previous occasions. Patterson told the jury that
when Deputy Montgomery came up behind the truck, she told Smith to give her the pill
bottle so she could hide it, but Smith refused. At trial, Patterson was shown the pill bottle
and asked to identify it. Patterson identified the bottle as “Daddy Frank’s pill bottle with his
dope in it.”
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¶11.
Lyons testified that she had a drug problem and had bought cocaine from Smith and
Patterson in the past, but she had stopped using drugs. Lyons testified that when Smith and
Patterson came to her house, Smith pulled out the pill bottle and poured the cocaine into his
hand to show it to her. She claimed that Patterson never had control of the pill bottle.
¶12.
Smith contends that Lyons and Patterson are friends and that Lyons was lying to
protect Patterson. Also, Smith argues that earlier on the day of the arrest, Patterson had been
sitting in the passenger seat, and he had been driving. Smith also takes issue with the fact
that the pill bottle was not checked for fingerprints. When asked if he attempted to recover
fingerprints from the bottle, Deputy Montgomery answered, “No, sir, I didn’t. Anytime
you’ve got something that slick, it’s like glass, it’s hard to take fingerprints off of something
like that.” He also testified that it was not usual practice in this type of situation to take
fingerprints on a piece of evidence as was found in the truck. When questioned further about
what evidence he had and why no fingerprints were needed, Deputy Montgomery responded:
Being that the drugs was [sic] found on his side of the vehicle where he was
sitting under the seat where he was sitting, under the edge of the seat, she
[Lyons] I.D.’d that it was going to be in a brown paper bag, pill bottle with
black electric tape on it, and that’s where I would find the crack cocaine. And
I did find that in the vehicle . . . just as she had described to me.
¶13.
Sitting as the “thirteenth juror” in this case and viewing the evidence in the light most
favorable to the verdict, we find that the jury’s verdict was not against the overwhelming
weight of the evidence. As for Smith’s argument that Patterson’s and Lyons’s testimony was
not credible, “[t]he jury is charged with the responsibility of weighing and considering
conflicting evidence, evaluating the credibility of witnesses, and determining whose
testimony should be believed.” Ford v. State, 737 So. 2d 424, 425 (¶8) (Miss. Ct. App.
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1999). The jury was aware that Patterson and Lyons were admitted drug users and was able
to consider that in weighing the testimony. We find that the trial court did not err in denying
Smith’s motion for a new trial.
¶14. THE JUDGMENT OF THE PIKE COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF AT LEAST ONE TENTH BUT LESS THAN
TWO GRAMS OF COCAINE WITH INTENT TO DISTRIBUTE AND SENTENCE
AS A HABITUAL OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR
EARLY RELEASE IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO PIKE COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR.
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