Michael B. Kittrell v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-KA-01686-COA
MICHAEL B. KITTRELL A/K/A MICHAEL BRIAN KITTRELL
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
APPELLANT
APPELLEE
09/22/1999
HON. KENT MCDANIEL
RANKIN COUNTY CIRCUIT COURT
DAN W. DUGGAN JR.
WILLIAM O. TOWNSEND
VICKI LACHNEY GILLIAM
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:
RICHARD D. MITCHELL
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
POSSESSION OF MARIJUANA: SENTENCED 3 YEARS
IN THE MDOC, 2 YEARS SUSPENDED; PAY COURT
COSTS OF $248, LAB FEES OF $425 AND BOND FEES
OF $300, COURT COSTS, FEES AND ASSESSMENTS
TO BE PAID IMMEDIATELY FROM CASH BOND.
DISPOSITION:
AFFIRMED - 09/18/2001
MOTION FOR REHEARING FILED: 10/2/2001; denied 11/13/2001
CERTIORARI FILED:
11/27/2001; denied 2/7/2002
MANDATE ISSUED:
2/28/2002
BEFORE SOUTHWICK, P.J., LEE, AND MYERS, JJ.
LEE, J., FOR THE COURT:
¶1. Michael B. Kittrell, the appellant, was indicted for possession of more than one kilogram of marijuana
with intent to distribute, pursuant to Miss. Code Ann. § 41-29-139 (Supp. 2000). Subsequently, the Circuit
Court of Rankin County granted the State's ore tenus motion to proceed under the lesser-included offense
of simple possession of marijuana in an amount of more than one ounce but less than a kilogram, of which
Kittrell was found guilty. He was sentenced to serve a term of three years, two years suspended and two
years supervised probation. Kittrell was also ordered to pay court costs, bond and lab fees. His motions for
JNOV and a new trial were denied and he now appeals, asserting, in essence, that his motion for JNOV
should have been granted or, in the alternative, that he should have been granted a new trial. We have
reviewed the record and having found no reversible error, affirm.
FACTS
¶2. The facts in this case are not in dispute. The sequence of events leading to the arrest of Kittrell for
possession of marijuana on April 22, 1998, was recounted at the trial by Teddy Casaver, who sold the
substance to Kittrell, and by Officer Roy Dampier, narcotics investigator for the Pearl Police Department.
Both testified as witnesses for the State.
¶3. Casaver testified that pursuant to a telephone conversation with Kittrell on April 21, Casaver purchased
three pounds of marijuana for resale to Kittrell at a profit. Arrangements were made for Casaver and
Kittrell to meet at Southern Hydraulics, Kittrell's place of business, for delivery. Casaver testified that
Kittrell was not at Southern Hydraulics when he first tried to deliver the substance and that when Casaver
left the business site, the gears on his truck jammed and he made an illegal turn. He was stopped by the
police and three pounds of marijuana was found in his vehicle. Casaver was then arrested and taken into
custody. Officer Dampier testified that the Pearl Police Department called him to investigate in response to
Casaver's arrest.
¶4. Dampier said that he explained to Casaver that it was the desire of law enforcement to take into
custody anyone else who was involved with the marijuana found in his possession. Casaver chose to
cooperate with a controlled delivery. Dampier said that Casaver was told that the district attorney would be
made aware of his cooperation, but that no promises were made to him.
¶5. Around midnight Casaver proceeded, equipped with a body wire and three pounds of marijuana, to
Southern Hydraulics where he met Kittrell and sold him a quarter pound of marijuana for $300. Kittrell
weighed the marijuana on an electronic scale. Casaver left the business after the sale was made and Kittrell
left about five minutes later. Kittrell immediately got into his car upon leaving the building and within thirty
seconds after he started his vehicle, the five officers providing surveillance during the controlled delivery,
activated the blue lights on their patrol cars and made a traffic stop in the parking lot as Kittrell drove off.
When Kittrell refused to exit his vehicle and grabbed his steering wheel, the officers pulled him out. Kittrell
was handcuffed and taken into custody. A loaded .45 caliber handgun was found in the vehicle but no drugs
were found. The officers, surmising that the drugs were left inside the business, entered the business and
found a quarter pound of what was later identified as marijuana in a box under some clothing. Upon leaving
Southern Hydraulics, Casaver returned to the Pearl Police Department where the three hundred dollars
Kittrell had given him in cash and the remaining two and three quarters pounds of marijuana were
recovered.
STANDARD OF REVIEW
¶6. In assessing the legal sufficiency of the evidence on a motion for a directed verdict or a motion for
JNOV, the trial judge is required to accept as true all of the evidence that is favorable to the State, including
all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the
defendant. Yates v. State, 685 So. 2d 715, 718 (Miss. 1996). If under this standard sufficient evidence to
support the jury's verdict of guilty exists, the motion should be overruled. Brown v. State, 556 So. 2d 338,
340 (Miss. 1990); Butler v. State, 544 So. 2d 816, 819 (Miss. 1989). A finding that the evidence is
insufficient results in a discharge of the defendant. May v. State, 460 So. 2d 778, 781 (Miss. 1984).
¶7. Where the weight of the evidence, as opposed to the sufficiency, is challenged, the jury's verdict is
vacated on grounds relative to the weight of the evidence so that a new trial is granted as opposed to final
discharge. Id. In determining whether a jury verdict is against the overwhelming weight of the evidence, this
Court must accept as true the evidence which supports the verdict and will reverse only when convinced
that the circuit court has abused its discretion in failing to grant a new trial. Herring v. State, 691 So. 2d
948, 957 (Miss. 1997) (citing Thornhill v. State, 561 So. 2d 1025, 1030 (Miss. 1989)). Only when the
verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
unconscionable injustice will it be disturbed on appeal. Benson v. State, 551 So. 2d 188, 193 (Miss.
1989) (citing McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987)). The motion, however, is addressed
to the discretion of the court, which should be exercised with caution, and the power to grant a new trial
should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.
United States v. Sinclair, 438 F.2d 50, 51 n. 1 (5th Cir. 1971). Thus, the scope of review on this issue is
limited in that all evidence must be construed in the light most favorable to the verdict. Mitchell v. State,
572 So. 2d 865, 867 (Miss. 1990).
¶8. In this appeal, Kittrell seeks relief in the form of a reversal and discharge or, in the alternative, remand
to the trial court for a new trial. The former is a consequence of legal insufficiency of the evidence while the
latter is the product of an examination of evidentiary weight. May v. State, 460 So. 2d 778, 781 (Miss.
1984). The evidence to be evaluated regarding sufficiency for sustaining a conviction for possession of more
than one ounce of marijuana, and the evidence relevant to ascertaining whether the jury's verdict was
against the overwhelming weight will be the same in this case; evidence regarding sufficiency requires the
court to accept as true all evidence favorable to the State, Yates, 685 So. 2d at 718, and evidence
regarding weight limits our review to that construed in the light most favorable to the verdict. Mitchell, 572
So. 2d at 867.
ISSUE AND DISCUSSION
WHETHER THE COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT
OR JNOV OR, IN THE ALTERNATIVE, FAILING TO GRANT A NEW TRIAL.
¶9. Kittrell argues that the verdict was against the overwhelming weight of the evidence presented by the
State to prove possession of marijuana, or, in the alternative, that the evidence was not sufficient to sustain
the verdict. The thrust of his argument rests on two undisputed facts regarding the evidence presented at the
trial: first, that neither the word "marijuana" nor "drugs" was mentioned in the recorded conversation of the
transaction of sale; second, that the marijuana was not found on his person. Kittrell also attacks the
credibility of Teddy Casaver. We are not persuaded.
¶10. Kittrell, in making his argument that drugs were never mentioned in the recorded conversation, asserts
that the conversation does not serve as proof that the sale was one for marijuana. However, there was
ample testimony from Officer Dampier regarding the translation of street language used in the drug culture
and which was used in the recorded conversation. Dampier explained that people dealing in drugs
intentionally do not use words such as "marijuana" and "cocaine", but instead use codes, referring to the
substance as a box or a bag, as was done in this case. In addition there is the testimony of Casaver, who
testified to having been wired prior to the transaction and who had listened to the tape. Casaver said that
the tape fairly and accurately depicted the conversation he had had with Kittrell when he sold the marijuana
to him. He also testified that he sold Kittrell one quarter of a pound of marijuana for $300. The testimony of
Dampier is explicit in that the language used in the recorded conversation referred to an illegal substance.
When coupled with the testimony of Casaver regarding the tape, it is clear that the conversation specifically
referred to marijuana. We therefore do not find merit in Kittrell's argument that because there is no mention
of "marijuana," "dope" or "drugs" in the recorded conversation, that the evidence on this issue is insufficient
to sustain the verdict or that the verdict is against the overwhelming weight of the evidence for possession of
marijuana.
¶11. Kittrell also argues that the State failed to prove that he had possession since the marijuana was not
found on his person. Although the law in this State has provided that possession is not a question
susceptible of a specific rule, it has been established that in order to show possession, the State must
present sufficient facts to warrant a finding that the defendant was aware of the presence and character of
the substance and that the defendant was intentionally and consciously in possession of the contraband.
Curry v. State, 249 So. 2d 414, 416 (Miss. 1971). The testimony presented on behalf of the State by
Debra Butler, a forensic scientist from the State's crime lab, established the chain of custody and
identification and weight of the substance confiscated by the officers after the transaction. Her testimony,
along with that of Dampier and Casaver, are sufficient to show that Kittrell was aware of the presence and
character of the substance and that he intentionally and consciously took possession of it. The fact that the
marijuana was not on Kittrell's person when it was found does not relieve him of being in possession of it,
for actual physical possession is not necessary to establish possession. A showing that the drug involved
was subject to the control and dominion of the defendant establishes constructive possession. Id.; Frazier
v. State, 770 So. 2d 986, 988 (Miss. Ct. App. 2000).
¶12. We believe that the State's evidence succeeded in showing that Kittrell had control and dominion of
the substance and therefore was in constructive possession of the marijuana. There is a rebuttable
presumption that contraband found on the premises of which the defendant has possession subjects the
defendant to constructive possession. Ducksworth v. State, 767 So. 2d 296, 300 (Miss. Ct. App. 2000);
Powell v. State, 355 So. 2d 1378, 1379 (Miss. 1978).
¶13. In Martin v. State, 413 So. 2d 730, 732 (Miss. 1982), the Mississippi Supreme Court opined that
the elements of constructive possession may be proved by circumstantial evidence. Casaver's testimony that
Southern Hydraulics, the site of the marijuana sale, was Kittrell's shop, was not challenged by Kittrell. In
fact, the record shows that Southern Hydraulics was referred to as Kittrell's place of business throughout
the trial. In addition, Kittrell admits in his brief that he himself unlocked the door to the premises. These
statements were not rebutted and alone imply dominion and control of the premises by Kittrell, at least
during the time period after Casaver left and the confiscation of the marijuana by the officers. There was no
evidence suggesting that anyone else was in the building during this time. Dampier testified that Casaver left
the building and that Kittrell left five minutes later. Kittrell was in the building without Casaver during that
time, just before leaving and entering his vehicle, while under surveillance, prior to having being stopped by
the officers. He was, at this time, in exclusive possession of the premises and the marijuana, for Casaver
had left. We thus find that the evidence supports that the contraband was under the dominion and control of
Kittrell and that he was in constructive possession of the marijuana when it was confiscated.
¶14. In regard to the appellant's assertion that there is no evidence which supports the testimony of Teddy
Casaver, other than the tape and marijuana, we point out that there is the testimony of Officer Dampier as
well. This "other" testimony suffices to carry the State's burden, for the testimony of a single uncorroborated
witness has been upheld as sufficient to sustain a conviction. Williams v. State, 512 So. 2d 666, 670
(Miss. 1987). The fact that the State did not produce the scales upon which the marijuana was weighed and
the $300 cash paid for the contraband as evidence, and that law enforcement failed to take fingerprints
from the bag which contained the marijuana, does not constitute reversible error, taking other evidence into
account. In addition, Casaver's credibility is a question for the jury, and not cause for reversible error. That
he had prior convictions and had made an agreement with the State in exchange for his testimony matters
not, for the jury was so informed. It is the jury's function, not that of a reviewing court, to assess the
credibility of the witnesses. Gathright v. State, 380 So. 2d 1276, 1278 ( Miss. 1980).
¶15. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION OF
POSSESSION OF MORE THAN AN OUNCE, BUT LESS THAN A KILOGRAM, OF
MARIJUANA AND SENTENCE OF THREE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH TWO YEARS SUSPENDED, AND
TWO YEARS SUPERVISED PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS AND CHANDLER, JJ. CONCUR. BRANTLEY, J., NOT PARTICIPATING.
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