Gary Hollins v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00799-COA
GARY HOLLINS
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
APPELLANT
APPELLEE
04/21/2000
HON. R. I. PRICHARD III
PEARL RIVER COUNTY CIRCUIT COURT
DEBORAH J. GAMBRELL
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS JR.
DISTRICT ATTORNEY:
CLAIBORNE MCDONALD
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
SALE OR TRANSFER OF A CONTROLLED
SUBSTANCE: SENTENCED TO 25 YEARS IN THE
CUSTODY OF THE MDOC AND PAY ALL COSTS OF
COURT. SENTENCED TO SERVE 15 YEARS, THE
REMAINING 10 YEARS OF THE 25 YEAR SENTENCE IS
SUSPENDED.
DISPOSITION:
AFFIRMED - 8/21/01
MOTION FOR REHEARING FILED: 9/6/2001; denied 11/6/2001
CERTIORARI FILED:
MANDATE ISSUED:
11/27/2001
BEFORE KING, P.J., LEE, AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1. Gary Hollins was convicted by a jury for the sale or transfer of a Schedule II controlled substance in
violation of Miss. Code Ann. § 41-29-139 (b)(1) (Rev. 1993). The Circuit Court of Pearl River County
sentenced him to twenty-five years, with ten years suspended and a fine of $3,000. Aggrieved by his
conviction, Hollins cites the following issues on appeal: (1) the evidence presented at trial was insufficient to
establish the crime charged and the jury's verdict was against the overwhelming weight of the evidence and
(2) the court committed reversible error by submitting a jury instruction concerning the culpability of an
accomplice when Hollins was indicted as a principal. Finding no error, we affirm.
FACTS
¶2. On November 24, 1998, Gary Hollins, Defendant, and Roderick Jackson were standing in front of their
homes in Picayune, Mississippi, when a woman in a pickup truck approached them and asked if they had
"anything." Hollins and Jackson were not aware that the woman was Susan Taylor, an undercover agent for
the Mississippi Bureau of Narcotics. Taylor wore a body wire and had a video camera concealed in her
vehicle. When Taylor approached Hollins and Jackson and asked if they had "anything", they replied no, but
then instructed her to make the block. She drove to the end of the block and the pair walked down and met
her. As they approached Taylor, Hollis and Jackson agreed that Hollins would supply the drugs and they
would share the money from the sale. Jackson approached the vehicle and Agent Taylor asked him for a
"forty," meaning she wanted to purchase forty dollars of crack cocaine. Jackson turned his back to Taylor
and she heard him tell Hollins, "she wants a forty." Hollins gave Jackson two rocks of crack cocaine.
Jackson then turned around and handed her a rock of crack cocaine. She repeated that she wanted a forty
and Jackson handed Taylor a second rock. Taylor gave Jackson two twenties for the drugs and left.
LAW AND ANALYSIS
I. WAS THE EVIDENCE PRESENTED AT TRIAL SUFFICIENT TO ESTABLISH THE
CRIME CHARGED AND WAS THE JURY'S VERDICT AGAINST THE
OVERWHELMING WEIGHT OF THE EVIDENCE?
¶3. Hollins argues that because there was no hand-to-hand exchange of an illegal substance between him
and Agent Taylor, he could not be guilty of a selling or transferring the drugs. Since there was no direct sale
or transfer of illegal drugs, Hollins argues that the State failed to prove a required element of the crime
charged. Because the State failed to prove all of the elements of the crime, Hollins argues that the trial judge
should have either directed a verdict in his favor or granted his JNOV motion. Hollins also argues that the
jury's verdict was against the overwhelming weight of the evidence. He avers that the verdict hinged on
credibility issues. Hollins claims that the testimony of his co-defendant, Roderick Jackson, should be
discredited because of alleged contradictions in the testimony. It is these contradictions that Hollins argues
supports his argument that the jury's verdict was against the overwhelming weight of the evidence.
¶4. The State argues that a constructive sale took place between Hollins and Agent Taylor. The State
further asserts that the jury is the ultimate arbiter of credibility and the verdict should be upheld.
¶5. Hollins's first assignment of error attacks the sufficiency and the weight of the evidence presented at trial.
Whether the evidence is legally sufficient is an argument that is raised by a motion for a directed verdict or a
JNOV. McClain v. State, 625 So. 2d 774, 781 (Miss. 1993). In deciding whether the prosecution has
presented sufficient evidence to sustain the verdict, the court should accept as true all credible evidence
consistent with the defendant's guilt and the State must be given the benefit of all favorable inferences that
may be reasonably drawn from the evidence. Id. A reviewing court should only reverse where, with respect
to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded
jurors could only find the accused not guilty. Wetz v. State, 503 So. 2d 803, 812 ( Miss. 1987).
¶6. In the case sub judice, the State established a prima facie case that Hollins sold or transferred illegal
drugs to Agent Taylor through the testimony of the agent and Roderick Jackson. Hollins argued that Agent
Taylor's testimony was unhelpful because she did not testify as to an exchange of drugs between the two of
them. However, the State established a constructive sale between Agent Taylor and the defendant. In
Turner v. State, 573 So. 2d 1340 (Miss. 1990), the defendant arranged for a sale between an undercover
agent and a confidential informant and another seller. Id. at 1341. The sale was originally to be between
Turner and the agent, but because the agent arrived after the agreed upon time, Turner had taken the drugs
back to a safe spot. The court found that Turner aided and abetted in the sale and was guilty as a principal.
Id. As the court in Turner noted, it is not necessary that the defendant exercised dominion or control over
the drugs; simply that he aided and abetted in the sale is enough to make him guilty as a principal in the
crime. Id. "If on this evidence Turner has committed no offense, it would be a simple matter for drug dealers
to send flunkies to make their deliveries and thus avoid prosecution and punishment." Id.
¶7. A helpful extension of this theory is found in York v. State, 751 So. 2d 1194 (Miss. 1999). In this case,
the Mississippi Supreme Court adopted the idea of "constructive transfer" from Roberts v. State, 866
S.W. 2d 773 (Tex. Ct. App. 1993). In York, the defendant, like Hollins, argued that the State failed to
prove he had sold controlled substances to an undercover agent because there was no hand-to-hand
exchange. York, 751 So. 2d at (¶5). The supreme court rejected York's arguments and adopted the
definition of constructive transfer from Roberts. Id. In Roberts, an undercover agent paid the defendant for
drugs that were transferred from the defendant to an informant (present at the exchange), who gave the
drugs to the agent. York, 751 So. 2d at (¶8); Roberts, 866 S.W. 2d at 778. The defendant claimed that
because the informant actually transferred the drugs, there was insufficient evidence to convict him of selling
drugs to the agent. The Texas court rejected that argument and found that constructive delivery had
occurred. York, 751 So. 2d at (¶9); Roberts, 866 S.W. 2d at 778. It defined constructive delivery as "the
transfer of a controlled substance either belonging to the accused or under his control, by some other
person or agency, at the instance or direction of the accused." York, 751 So. 2d at (¶9); Roberts, 866
S.W.2d at 778. A constructive transfer is proven by showing that before the delivery, the transferor had
either direct or indirect control of the substance transferred, and the transferor knew of the existence of the
transferee. York, 751 So. 2d at (¶9); Roberts, 866 S.W. 2d at 778. Since Roberts had knowledge of the
transfer and of the undercover agent's existence, he was found to have constructively transferred the drugs.
York, 751 So. 2d at (¶9); Roberts, 866 S.W. 2d at 778.
¶8. The facts of the above cited cases are like to the one under consideration. Hollins handed the drugs to
Jackson who then transferred them to Taylor. Jackson received the money from Taylor and then turned and
gave Hollins half the proceeds. Hollins had knowledge of the transfer and he participated in the transaction
as required by Roberts and York. The State established a constructive sale or transfer of the drugs to Agent
Taylor from Hollins. Thus, it established all of the elements of the crime charged and the evidence was
sufficient to survive a directed verdict and a JNOV motion.
¶9. Hollins also argues that the verdict was against the overwhelming weight of the evidence. A motion for a
new trial is used to challenge the weight of the evidence. McClain, 625 So. 2d at 781. The decision to
grant a new trial rests in the sole discretion of the trial court. Id. Such a motion should only be granted when
the verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand, would be to
sanction an unconscionable injustice. Wetz, 503 So. 2d at 812. This Court, on appeal, will reverse and
order a new trial only upon a determination that the trial court abused its discretion, accepting as true all
evidence favorable to the State. McClain, 625 So. 2d at 781.
¶10. The crux of Hollins's argument that the verdict was against the overwhelming weight of the evidence
centers upon the credibility of the witnesses. Hollins attacked Jackson's testimony as unreliable because of
alleged contradictions contained in the testimony. A reviewing court need not concern itself with issues of
credibility. It is for the jurors to resolve conflicts in testimony. They may accept or reject any utterances
they hear based upon hearing and observing the witnesses as they testify. Jackson v. State, 614 So. 2d
965, 972 (Miss. 1993); Gandy v. State, 373 So. 2d 1042, 1045 (Miss. 1979). The reviewing court
cannot and need not determine which witness or testimony the jury believed or disbelieved; it is enough that
the conflicting evidence presented a factual dispute for jury resolution. Jackson, 614 So. 2d at 972;
Gandy, 373 So. 2d at 1045. "The jury is the sole judge of credibility of witnesses and the jury's decision
based on conflicting evidence will not be set aside where there is substantial and believable evidence
supporting the verdict." Billot v. State, 454 So. 2d 445, 463 (Miss. 1984); Harrigill v. State, 381 So. 2d
619, 623 (Miss. 1980); Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980).
¶11. Obviously the jury accepted the testimony of Taylor and Jackson. Accepting as true all evidence
favorable to the State, we find that the trial court did not abuse its discretion in overruling Hollins's new trial
motion.
II. DID THE COURT COMMIT REVERSIBLE ERROR BY SUBMITTING JURY
INSTRUCTION NO.10 (S-12) WHICH WAS AN INSTRUCTION ABOUT THE
CULPABILITY OF AN ACCOMPLICE WHEN HOLLINS WAS INDICTED AS A
PRINCIPAL?
¶12. Hollins argues that instruction S-12 was submitted in error because he was indicted as a principal, not
an accomplice. The jury instruction complained of states as follows:
The Court instructs the jury that an accomplice is someone who prior to or during the commission of a
crime, assisted, aided or abetted another person with the purpose of promoting or facilitating the
commission of said crime and is charged by said act as a principal to said crime.
Therefore, if you believe from the evidence and the testimony in this case beyond a reasonable doubt
that on or about the 24th day of November of 1998, in Pearl River County, Mississippi, Gary Hollins
assisted, aided or abetted Roderick Jackson or any other person before or during the commission of
the crime of sale of a controlled substance, cocaine, a schedule II controlled substance, in this case
defined and set out in the other instructions, with the purpose of promoting or facilitating said crime,
then you shall find the defendant, Gary Hollins, who is charged as a principal to said crime, guilty as
charged.
He contends that the instruction gave the jury more information than it needed and served to confuse the
issues. This argument is without merit.
¶13. In Hoops v. State, 681 So. 2d 521, 533 (Miss. 1996), the court defined an aider or abettor as one
who is present at the commission of the crime and aids, counsels, or encourages another in the commission
of that offense. The court stated that an aider or abetter is equally guilty with the principal offender. In In
Interest of J.P.C. v. State, the court stated that although a person engaged in a criminal act may not have
committed all of the elements of the crime, he may be punished for that crime if it can be shown that he
directly aided or abetted his accomplice(s) in the commission of the crime. In Interest of J.P.C. v. State,
783 So. 2d (¶11) (Miss. 2001). A person guilty of aiding and abetting will be punished as a principal; he is
exposed to the same sanctions as if he committed all of the criminal acts himself. Id.
¶14. In this case Hollins was present at the time the crime was committed, he gave the drugs to Jackson to
sell to the agent and he shared in the profits from the sale. He obviously aided and abetted the crime
committed. The instruction clearly informs the jury that if it finds that Hollins aided and abetted Jackson in
the commission of the crime, he can be held guilty as a principal and punished as such. Although aiding and
abetting was not officially part of Hollins's indictment, the evidence presented clearly supports the
instruction.
¶15. THE JUDGMENT OF THE PEARL RIVER COUNTY CIRCUIT COURT OF
CONVICTION OF SALE OR TRANSFER OF A CONTROLLED SUBSTANCE AND
SENTENCE OF TWENTY-FIVE YEARS WITH TEN YEARS SUSPENDED AND A FINE OF
$3,000 IS AFFIRMED. COSTS ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING AND MYERS, JJ., CONCUR.
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