Charlie Gavin v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-01934-COA
CHARLIE GAVIN A/K/A CHARLIE W. GAVIN
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
APPELLANT
APPELLEE
08/27/1999
HON. C. E. MORGAN III
GRENADA COUNTY CIRCUIT COURT
JOHNNIE E. WALLS, JR.
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DOUG EVANS
CRIMINAL - FELONY
CONVICTED AS FELON IN POSSESSION OF A
FIREARM (HABITUAL OFFENDER)-SENTENCED TO
LIFE IMPRISONMENT
REVERSED AND REMANDED IN PART AND
REVERSED AND RENDERED IN PART - 05/08/2001
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
5/29/2001
BEFORE SOUTHWICK, P.J., CHANDLER, AND MYERS, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Charlie Gavin was convicted after a jury trial on three counts of being a felon in possession of firearms
and a fourth of possessing a dangerous weapon. On appeal, Gavin argues that the evidence was insufficient,
that the court erred in admitting a hearsay statement, and that his change of venue motion should have been
granted. We agree that improper hearsay was admitted on one charge and that there was insufficient
evidence to demonstrate constructive possession of the remainder. We therefore reverse all convictions but
remand only the one based on improper hearsay.
FACTS
¶2. Law enforcement officials entered into an agreement with Perry Horton. Horton would buy crack
cocaine from his source in exchange for the State's dropping forgery charges. He was also given money to
relocate. On June 5, 1998, Horton entered Gavin's Quick Stop to purchase the drugs from the defendant,
Charlie Gavin. The store was owned by the defendant's brother, L.C. Gavin. The exchange was recorded
on a body transmitter and recording device worn by Horton.
¶3. After the exchange, Horton began to exit the store. Gavin asked Horton to stop as he wanted to search
Horton. A struggle ensued. The wires from the recording device were discovered, but before they were
ripped off, Horton gave a distress signal to the law enforcement officers surrounding the store. The officers
immediately arrived and found Horton on the floor with Gavin on top of him
¶4. Also present was store employee Linda Salley. She was detained, then given permission to leave
without being arrested. She told Officer Pigues that she wished to "get some bags out of the store" before it
was locked by the officers. Pigues searched her purse for safety reasons and discovered a .9mm handgun.
Once the gun was pulled from the purse, Salley stated that the handgun did not belong to her but belonged
to the defendant.
¶5. The store was searched after the officers secured a search warrant. Two additional guns were found in
a file cabinet behind the counter and a machete was found under a sink.
¶6. In addition to drug charges, Gavin was charged with three counts of a felon in possession of firearms
and one count of a felon in possession of a dangerous weapon. After a jury trial, he was found guilty on all
counts. He was sentenced as a habitual offender to consecutive life sentences.
DISCUSSION
1. Hearsay Exception
¶7. Gavin argues that the trial court erred in admitting hearsay statements allegedly made by Salley to Agent
Pigues. During the trial, Agent Pigues testified, over defense objection, that when he discovered the .9mm
handgun in Salley's purse, she stated that the gun belonged to the defendant. The statement appears to be
hearsay since it was a "statement, other than one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the matter asserted." M.R.E. 801(c). Salley's statement
was offered to prove that the .9mm belonged to Gavin.
¶8. Notwithstanding this definition, the State argues that the statement is not hearsay because the defendant
overheard it and did not object to its accuracy. This is the rule the State invokes:
A statement is not hearsay if:
...
(2) Admission by Party-Opponent. The statement is offered against a party and is
...
(B) a statement of which he has manifested his adoption or belief in its truth, . . .
M.R.E. 801(d)(2)(B). The State contends that because the statement was made in the presence of Gavin
and he did not deny or object to Salley's statement, it is admissible under this rule. We examine that
contention factually before analyzing the legal principle.
¶9. When Agent Pigues began to testify as to what Salley said after he found the weapon, the defense
objected. The trial court then stated that the prosecution must lay a predicate for the statement. Agent
Pigues was then questioned as to the location of the defendant in relation to Salley and the agent. He
testified that Gavin, who was in custody at the time of the statement, was standing two feet away. The court
then allowed the statement. However, the prosecution never asked the witness whether or how Gavin
reacted to the statement that the gun belonged to him. A rule that requires that the accused have "manifested
his adoption or belief in its truth" is unusable unless some evidence to support this manifestation is
presented. All we know is that Gavin was close to the declarant when the statement was made. Whether he
stood mutely, objected vociferously, or did something between those extremes is unknown. The trial judge
erred in admitting the statement. We note also that since Gavin was in custody and may have been aware of
his right to remain silent and the risk of not doing so even if he had not yet formally been warned, this
hearsay exception is of uncertain relevance. That issue can be addressed if this evidence is reconsidered on
remand.
¶10. Having determined that the statement was inadmissible, we next examine whether the error compels
reversal. Reversal is not required if the admission of the hearsay testimony was harmless beyond a
reasonable doubt. Mack v. State, 650 So. 2d 1289, 1310 (Miss. 1994). In applying the harmless error
standard, "this Court must determine whether the weight of the evidence against [the defendant] is sufficient
to outweigh the harm done by allowing admission of [improper] evidence." Fuselier v. State, 702 So. 2d
388, 391 (Miss. 1997).
¶11. Here, the other evidence regarding the .9mm weapon included Horton's testimony that Gavin placed
that weapon on the counter when Gavin stopped him from exiting the store. Horton's credibility was
attacked by the defense on the basis that Horton arranged the exchange of drugs in return for the charges
against Horton being dropped. The defense also pointed out that there was no evidence in the transcript of
the conversation transmitted through the body wire and tape indicating that a weapon had been placed on
the counter. Additionally, Salley denied making any statements concerning the weapon to the agent.
¶12. There was also testimony from a witness, Rod Stinson, who had worked at a different business owned
by Gavin's brother. Stinson was allowed to testify in rebuttal to impeach Gavin, since the defendant testified
that he never possessed that weapon, not on the day of the crime and not at other times. Stinson was
allowed to testify that he had seen Charlie Gavin with the .9mm weapon at the other business, and had
handed it to Stinson there. He also had previously seen him remove the gun from the filing cabinet at the
store where it was found on the day of Gavin's arrest, at least while Gavin was looking for something else in
the cabinet. At another time when "some strange guys pulled up," Gavin placed the .9mm in his pants and
pulled his shirt over it.
¶13. As impeachment, this testimony by Stinson can only undermine Gavin's credibility. It is not affirmative
evidence of possession on the day in question. Gavin was not indicted for possessing the weapon on any
day except the one stated in the indictment, the day of his arrest for selling crack cocaine. In cataloguing the
usable evidence, we note again that the hearsay statement by officer Pigues was improperly admitted.
However, the informant making the drug purchase, Horton, testified that Gavin had the gun. There was an
effort to impeach his testimony by showing the benefits to Horton of participating in the transaction. Both the
employee Salley and the defendant Gavin testified that he did not possess the .9mm.
¶14. The issue was strongly contested. The inadmissible hearsay was quite powerful evidence. We cannot
find that the jurors were unaffected by it in this closely divided factual issue. We reverse and remand for
further proceedings on the issue of the possession of the .9mm handgun.
2. Sufficiency of evidence of possession of other weapons
¶15. Gavin argues that the evidence of possession of the various other weapons was insufficient to sustain
his conviction. A reviewing court must accept all the evidence and reasonable inferences in the light most
favorable to the verdict. Holloman v. State, 656 So. 2d 1134, 1142 (Miss. 1995). With that view in mind,
then we must determine whether evidence on any element of the charge is lacking. Id. Only if a reasonable
juror had to reach a verdict of not guilty will we reverse. Id.
¶16. As there is no evidence that the defendant had actual possession of any of the weapons, the State was
proceeding under the theory of constructive possession. For that, "there must be sufficient facts to warrant a
finding that [the] defendant was aware of the presence and character of the particular substance and was
intentionally and consciously in possession of it." Curry v. State, 249 So. 2d 414, 416 (Miss. 1971).
"Constructive possession may be shown by establishing that the [item] involved was subject to his dominion
or control." Id. Proximity is usually an essential element, but by itself is not enough in the absence of other
incriminating circumstances. Id.
¶17. The owner of the premises where the contraband is found is rebuttably presumed to be in possession
of the contraband. Hamburg v. State, 248 So. 2d 430 (Miss. 1971). Charlie Gavin was not the owner.
Thus, in cases where the defendant is not the owner of the premises or in exclusive possession, then the
State must prove some "competent evidence connecting him with the contraband." Powell v. State, 355
So. 2d 1378, 1379 (Miss. 1978).
¶18. In one case, a conviction was reversed and rendered for possession of crack cocaine where the State
provided insufficient evidence that the accused possessed contraband. He was not the owner of the car in
which the drugs were found, though he had been using the vehicle for fifteen hours. Ferrell v. State, 649
So. 2d 831, 834 (Miss. 1995). The drugs were in a matchbox quite close to the driver, but the box was
"not positioned in such a way that its presence would be reasonably apparent to a person riding in the car."
Id. at 835. Ferrell's control over the car needed to be joined by "additional incriminating circumstances in
order to prove constructive possession." Id. Among the possible circumstances were drug paraphernalia in
the car, the accused's having drugs in his system, or his fingerprints being found on the matchbox. Id. None
of that applied.
¶19. The first possession count concerned the .9mm found in Salley's purse after the store had been
secured. We have already reversed that conviction and that judgment is remanded. We now review the
evidence on the other three weapons.
¶20. Brown-handled .38 caliber handgun. This weapon was found in a filing cabinet. The only evidence
that Gavin had knowledge of that weapon was from the witness Stinton, who testified that on a previous
occasion he had seen Gavin remove the weapon from the filing cabinet. That testimony proved actual
possession on the previous day of Stinton's observation, which indicates Gavin's knowledge of the weapon.
An inference was likely permissible that he would be willing to handle it on other occasions. However, the
State must gain an inference from this evidence not only "of the presence and character of the particular"
weapon, but that Gavin "was intentionally and consciously in possession of it" on the day charged. Curry v.
State, 249 So. 2d 414, 416 (Miss. 1971).
¶21. The Supreme Court in reliance on Curry found that a defendant's presence in a vehicle in which
contraband drugs are located, even when he handled the drugs briefly as someone else gave them to him to
hide in the glove compartment, did not support an inference of dominion and control. Berry v. State, 652
So. 2d 745, 748 (Miss. 1995). We find the same defect here. There was evidence that Gavin handled the
gun at an earlier time. We can infer that he continued to know of its existence. But there is no other
connection by Gavin with this weapon. Being in a closed area such as a vehicle or a room with contraband
does not by itself permit the inference of dominion and control. If the accused is the owner of the premises,
or if he is the exclusive user for some extended period of time, or if there are additional incriminating
circumstances, then the inferences might be permissible. None of that is present here.
¶22. We find insufficient evidence to support conviction of this count and reverse and render.
¶23. Second .38 caliber handgun and machete. As for these weapons, there is no evidence that Gavin
even had knowledge of their existence. The only evidence concerning the weapons is that they were found
in the store on the day Gavin was arrested. Gavin's mother testified that the machete belonged to her. She
had used it as some sort of farming tool. No additional testimony was offered as to the second .38 caliber
handgun. No one testified that Gavin had ever handled, mentioned, or otherwise dealt with those weapons.
¶24. On review, all reasonable inferences are given in the light most favorably to the verdict. McClain v.
State, 642 So. 2d 924, 928. (Miss. 1994). Here, the State presents a theory something like the following.
Gavin operates a drug business out of this store. In order to protect himself he has weapons placed in
various locations. The theory may be correct, but there was not any additional incriminating evidence
beyond his presence in the room to support constructive possession of two of the weapons. On the final
one, the fact that he had once handled it does not permit an inference of dominion and control on the day
covered by the indictment.
¶25. Therefore, we find the evidence insufficient to support the conviction on these two counts and reverse
and render.
3. Change of venue
¶26. Gavin also argues that he was entitled to a change of venue. A denial of change of venue is reviewed
for abuse of discretion. Lutes v. State, 517 So. 2d 541, 545 (Miss. 1985). Gavin argues that the jury pool
was tainted by an article about him that appeared sometime before the trial began. However, during voir
dire, only one or two potential jurors possibly read that or an earlier article. Of the seven potential jurors
who had heard about the case, only one stated that he had formed an opinion and could not be fair and
impartial. He was struck by the court for cause. All others stated that they could be fair. Only one of those
was selected for the jury. She was placed on the jury without an objection by either the State or defense.
¶27. In cases where there has been pretrial publicity, the trial judge looks at two factors when evaluating the
request for change of venue. Holland v. State, 705 So. 2d 307, 336 (Miss. 1997). "First is the level of
adverse publicity, both in extent of coverage and its inflammatory nature. Second is the extent of the effect
the publicity had upon the venire persons in the case." Id. Gavin presented only one article that discussed
him negatively. Gavin's counsel failed to question the potential jurors about it. When the judge denied the
motion for a change in venue, he noted that the defense did not question the jurors on this particular article.
There was no abuse of discretion in the denial of a change of venue.
CONCLUSION
¶28. We reverse and remand the judgment for further proceedings on Count I regarding the .9mm handgun
for which the improper hearsay was admitted. Whether that means a new trial or other action is initially in
the discretion of the prosecutor. We are not holding that if a proper predicate for the hearsay evidence is
shown in a new trial, that the hearsay is still nonetheless inadmissible. We only hold that the predicate was
not shown here. There was sufficient evidence to show possession, namely the drug buyer Horton's
testimony, but the admission of the hearsay requires us to reverse for additional proceedings. Since this
conviction was based in part on improper evidence, we should remand and not render. Tapp v. State, 347
So. 2d 974, 977 (Miss. 1977). Even when the only evidence on an issue has been declared inadmissible,
the proper procedure is to remand. An early and clear statement of this principle was by Chief Justice
Sydney M. Smith:
The record simply presents a case wherein a fact necessary to support the judgment rendered was
proven or made to appear by incompetent evidence, and in such a case the Supreme Court on appeal
thereto should not decide the case as if no evidence of the fact had been introduced, but should
remand the case for a new trial so that the fact may be made to appear by competent evidence. This,
in so far as we are aware, is the universal rule . . . .
Witherspoon v. State, ex rel. West, 103 So. 134, 139 (Miss. 1925).
¶29. As to Counts II, III, and IV involving the two .38 caliber revolvers and the machete, there was
insufficient evidence presented. The State is not entitled to a second opportunity to present an adequate
case. We reverse and order Gavin discharged from further jeopardy on those three possession offenses.
¶30. THE JUDGMENT OF THE GRENADA COUNTY CIRCUIT COURT OF CONVICTION
ON COUNT I FOR POSSESSION OF A FIREARM BY A FELON, HABITUAL OFFENDER
AND SENTENCE OF LIFE IMPRISONMENT IS REVERSED AND THE CAUSE IS
REMANDED FOR FURTHER PROCEEDINGS. THE JUDGMENT OF THE GRENADA
COUNTY CIRCUIT COURT OF CONVICTION ON COUNT II FOR POSSESSION OF A
FIREARM BY A FELON, HABITUAL OFFENDER, ON COUNT III FOR POSSESSION OF A
FIREARM BY A FELON, HABITUAL OFFENDER, AND ON COUNT IV FOR POSSESSION
OF A DEADLY WEAPON, AND SENTENCES OF LIFE IMPRISONMENT ON EACH
COUNT, ARE REVERSED AND CHARLIE W. GAVIN IS ORDERED DISCHARGED
FROM FURTHER JEOPARDY ON COUNTS II, III AND IV. COSTS OF THIS APPEAL ARE
ASSESSED TO GRENADA COUNTY.
McMILLIN, C.J., KING, P.J., PAYNE, BRIDGES, THOMAS, LEE, IRVING, MYERS
AND CHANDLER, JJ., CONCUR.
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