Kobely Clark v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-00441-COA
KOBELY CLARKE A/K/A KOBERLY D. CLARKE
A/K/A KOBERLY DONNELL CLARK
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
2/22/2002
HON. ROBERT WALTER BAILEY
CLARKE COUNTY CIRCUIT COURT
JAMES N. POTUK
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
BILBO MITCHELL
CRIMINAL - FELONY
POSSESSION OF MARIJUANA - SENTENCED
TWENTY-FIVE YEARS IN THE CUSTODY OF
THE MDOC AND PAY A FINE OF $5,000.
AFFIRMED: 9/16/2003
BEFORE KING, P.J., BRIDGES AND LEE, JJ.
KING, P.J., FOR THE COURT:
¶1.
Kobely Clarke was found guilty in the Circuit Court of Clarke County, Mississippi of possession
with intent to distribute marijuana. He was sentenced to serve a term of twenty-five years in the custody
of the Mississippi Department of Corrections and ordered to pay a fine and other court costs. Aggrieved
by his conviction and sentence, Clarke has appealed and raised the following issues which we quote
verbatim:
I. The trial court erred in allowing into evidence [Clarke's] prior conviction for sale of cocaine as proof of
an intent to distribute under Rule 404(b) of the Mississippi Rules of Evidence before any evidence was
introduced.
II. The trial court erred in allowing into evidence [Clarke's] prior conviction for cocaine as proof of an
intent to distribute under Rule 404(b) of the Mississippi Rules of Evidence as the prejudicial effect
outweighs the probative value of the evidence.
III. The evidence was insufficient to prove that [Clarke] was guilty of the offense of possession of
marijuana with intent to sell.
FACTS
¶2.
On February 1, 2001, Postal Inspector Tim Weisend received a phone call from an inspection
service representative in Los Angeles, California regarding a suspicious parcel that had been sent express
mail from Robert Stewart to Antwan Thomas. According to Weisend, the "sender," Robert Stewart, was
not known at the return address and the mailing zip code was different from the zip code reflected on the
Express Mail label. Weisend indicated the package weighed 36 pounds 4 ounces.
¶3.
Upon receipt of the package, Weisend contacted the Mississippi Bureau of Narcotics and
requested that a drug dog check the package. The dog alerted to the package. Weisend obtained a
federal search warrant to search the package and, upon doing so, discovered four bricks of what appeared
to be marijuana.
¶4.
On February 5, 2001, Weisend and the East Mississippi Drug Task Force arranged a controlled
delivery at the post office in Stonewall, Mississippi. A delivery slip was placed at 762 Erwin Road
indicating that a package had arrived for Antwan Thomas. The task force agents conducted surveillance
at this address and at the post office. At approximately 10:10 a.m., Thomas picked up the delivery slip at
his address and proceeded to the post office. According to Weisend, approximately five minutes later,
Thomas arrived at the post office and retrieved the package.
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¶5.
Upon retrieving the delivery slip, Antwan Thomas and Clarke proceeded to the post office.
Thomas went into the post office and signed for the package while Clarke stayed in the vehicle.
¶6.
Thomas came out of the post office with the package and got into a vehicle driven by Clarke. As
Clarke drove from the parking lot, task force agents attempted to stop the vehicle by signaling with their
blue lights and siren. Clarke sped away and pulled onto a dirt road. He lost control of the vehicle and
crashed into a tree. Clarke exited the vehicle and ran into the woods where he was subsequently
apprehended and arrested. Thomas, the passenger in the vehicle, was apprehended at the scene.
¶7.
In August 2001, Clarke and Thomas were indicted for possession with intent to distribute
marijuana. Thomas pled guilty.
¶8.
At trial on January 30, 2002, Agent Warren Cox testified that he delivered the four bricks of
suspected drugs to the crime lab where it was identified as marijuana. Cox also indicated that Clarke had
a prior conviction for the sale of cocaine. A certified copy of Clarke's prior conviction was introduced and
admitted into evidence.
¶9.
Antwan Thomas testified that Clarke agreed to pay him $500 to pick up the package.
¶10.
The jury found Clarke guilty of possession with intent to distribute marijuana.
ISSUES AND ANALYSIS
¶11.
Because issues I and II are interrelated, we will address them together.
I.
Whether the trial court erred in allowing into evidence Clarke's prior conviction for the
sale of cocaine as proof of intent to distribute under Rule 404(b) of the Mississippi Rules of
Evidence before any evidence was introduced.
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¶12.
Clarke asserts that his prior conviction for the sale of cocaine as proof of his intent to distribute
pursuant to Mississippi Rule of Evidence 404(b)1 should not have been allowed into evidence.
¶13.
Prior to trial, the State moved to use Clarke's prior conviction of the sale of cocaine for "the limited
purpose of proving intend [sic] to distribute or to deliver in accordance with the amount of marijuana in
this case. . . . [I]t's not used to prove guilt, but simply to prove intent."
¶14.
The trial court allowed the testimony regarding Clarke's prior conviction to be introduced at trial
noting that in Smith v. State, 656 So. 2d 95, 99 (Miss. 1995), a prior conviction for the sale of drugs was
admitted for the purpose of showing "intent to distribute" under Rule 404(b) of the Mississippi Rules of
Evidence.
¶15.
The trial court also relied on the exposition of the rule in Swington v. State, 742 So. 2d 1106
(¶¶10-12) (Miss. 1999), which stated that evidence of another offense is admissible when offered to show
identity, knowledge, intent, common scheme or plan or absence of mistake.
¶16.
While Rule 404(b) states that evidence of other crimes may be admissible for other purposes such
as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or
accident, Lindsey v. State, 754 So. 2d 506 (¶22) (Miss. Ct. App. 1999), "Rule 403 provides that
'[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative evidence.'" Id.
1
Mississippi Rule of Evidence 404(b) provides: (b) Other Crimes, Wrongs, or Acts. Evidence of
other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he
acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
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¶17.
Clarke maintains that the prejudicial effect of the testimony regarding his prior conviction
outweighed the probative value of the evidence. Clarke argues that because most of the evidence against
him was offered by Antwan Thomas, an accomplice, the judge should have viewed the testimony as being
"highly questionable and suspicious."
¶18.
The admissibility and relevancy of evidence are within the discretion of the trial court and, absent
an abuse of that discretion, the trial court's decision will not be disturbed on appeal. McCoy v. State, 820
So. 2d 25 (¶15) (Miss. Ct. App. 2002). As long as the trial court remains within the confines of the
Mississippi Rules of Evidence, its decision to admit or exclude evidence will be accorded a high degree of
deference. Id. Additionally, "the admission or exclusion of evidence must result in prejudice or harm, if a
cause is to be reversed on that account." Id.
¶19.
While evidence might be found relevant, the court must also determine that it is more probative than
prejudicial. Moore v. State, 806 So. 2d 308 (¶11) (Miss. Ct. App. 2001). In this case, the trial court
found that its probative value outweighed any possible prejudice. However, in an effort to minimize any
prejudice, the trial court correctly gave a limiting instruction, Robinson v. State, 735 So. 2d 208 (¶4)
(Miss. 1999), which stated:
The Court instructs the jury that the testimony of Warren Cox regarding the prior
conviction of Koberly Clarke for Sale of Cocaine in 1995 was offered in an effort to prove
motive, intent, preparation, plan, knowledge, identity or absence of mistake on the part of
the Defendant when he allegedly was in possession of marijuana with intent to distribute
on February 5, 2001. You may give this testimony such weight and credibility as you
deem proper under the circumstances. However, the Court further instructs the Jury that
under the circumstances you can not and must not consider this testimony in any way
regarding whether or not Koberly Clarke is guilty or not guilty of the charge for which he
is presently on trial, that being for the unlawful possession of marijuana with intent to
distribute.
¶20.
We find no error in the admission of this evidence.
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II.
Whether the evidence was sufficient to prove that Clarke was guilty of the offense
charged.
¶21.
Clarke claims that the evidence was insufficient to convict him of possession with intent to distribute
marijuana. The evidence offered by the State showed (1) that Clarke mailed a package weighing in excess
of 36 pounds to Antwan Thomas, (2) that Clarke drove Thomas to the post office to pick up the package,
(3) that Clarke agreed to pay Thomas $500 to pick up the package, (4) that after having picked up the
package, Clarke fled when law enforcement officers attempted to stop him and (5) that the package
contained drugs in an amount which far exceeded personal use amounts.
¶22.
In considering the sufficiency of the evidence questions, the Court is required to view the evidence
in the light favorable to the State, giving it the benefit of all reasonable inferences which may be drawn from
the evidence, and accepting as true that evidence which supports guilt. McClain v. State, 625 So. 2d 774,
778 (Miss. 1993). It must not weigh the evidence or its credibility as that is the province of the jury. Id.
Having done so, the Court may only reverse if the evidence is such that fair-minded jurors could only find
the defendant not guilty. Id.
¶23.
The record before this Court contains sufficient evidence upon which a jury could have, and
did, base a guilty verdict.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY OF
CONVICTION OF POSSESSION OF MARIJUANA WITH INTENT TO DISTRIBUTE AND
SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS AND FINE OF $5,000 IS AFFIRMED . ALL COSTS
OF THIS APPEAL ARE ASSESSED TO CLARKE COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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