Paul Edward Bone, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-00981-COA
PAUL EDWARD BONE, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
4/10/2003
HON. SAMAC S. RICHARDSON
RANKIN COUNTY CIRCUIT COURT
DAN W. DUGGAN
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CRIMINAL - FELONY
MOTION FOR JUDGMENT
NOTWITHSTANDING THE VERDICT OR IN
THE ALTERNATIVE A NEW TRIAL DENIED.
AFFIRMED: 05/24/2005
BEFORE LEE, P.J., GRIFFIS AND ISHEE, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Paul Bone, Jr. (“Bone”) was convicted of possession of precursor chemicals in the Circuit Court
of Rankin County. Bone was sentenced to serve sixty years in the custody of the Mississippi Department
of Corrections, with thirty years suspended and five years of post-release supervision. He was also
ordered to pay a fine of $25,000.
¶2.
On appeal, Bone contends that the trial court erred in not granting his motion for judgment
notwithstanding the verdict or, in the alternative, a new trial. Finding no error, we affirm.
FACTS
¶3.
Bone was arrested for the possession of precursor chemicals. Investigator Farris Thompson
testified that a confidential informant reported to him that the informant saw Bone and a female in Fred’s
purchasing several boxes of pseudoephedrine. Bone was next seen entering Kroger. Thompson went to
Kroger where he saw Bone purchase two boxes of pseudoephedrine. Bone then went to a local hardware
store, and Thompson saw him leave with a plastic bag. Thompson radioed a uniform officer to stop Bone
after he left the hardware store.
¶4.
Thompson questioned Bone after the stop but did not arrest him immediately. Bone told Thompson
that he did not have any weapons with him. However, while questioning him, Thompson noticed a “bulge”
in Bone’s pocket. A metal case was discovered in Bone’s front pant pocket. Thompson described the
metal case as a “large metal type case with a marijuana leaf on the front” about one and a half inches thick.
Thompson then opened the metal case where he found a marijuana cigarette. Bone was then arrested for
possession of a controlled substance. After the arrest, Thompson searched Bone’s vehicle and found 620
pseudoephedrine pills behind the seat of Bone’s truck.
¶5.
Bone was convicted by a jury of possession of precursor chemicals under Mississippi Code
Annotated Section 41-29-313(Rev. 2001). Bone filed a motion for judgment notwithstanding the verdict
or, in the alternative, a new trial. The trial court denied Bone’s motion. On appeal, Bone asserts the trial
court erred in: (1) failing to suppress the marijuana from the Terry search, (2) allowing the jury to hear
evidence that Bone was in possession of marijuana, and (3) allowing the jury to hear evidence of Bone’s
prior conviction.
STANDARD OF REVIEW
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¶6.
We must consider all of the evidence in the light most favorable to the verdict. The credible
evidence which is consistent with the guilt must be accepted as true. The prosecution must be given the
benefit of all favorable inferences that may reasonably be drawn from the evidence. We may reverse only
where the evidence is such that reasonable and fair-minded jurors could only find the accused not guilty.
Gleeton v. State, 716 So. 2d 1083, 1087 (Miss. 1998) (overruled on other grounds by Miss. Transp.
Comm'n v. McLemore, 863 So. 2d 31 (Miss. 2003)).
ANALYSIS
I.
¶7.
Whether the trial court erred in admitting the marijuana found during the
search.
The trial court denied Bone’s motion to suppress the marijuana found during the investigative stop.
Bone argues that Thompson was searching for precursors rather than weapons. He concludes that since
he was not under arrest at the time of the “pat-down” search, Thompson should have obtained a warrant
before searching the contents of the metal case.
¶8.
First, we address the legality of the stop. A warrant is not required for a law enforcement officer
to briefly detain an individual for questioning. Anderson v. State, 864 So. 2d 948, 950 (¶7)(Miss. Ct.
App. 2003). The investigative stop exception to the Fourth Amendment warrant requirement allows a
police officer to conduct a brief investigative stop if the officer had a reasonable suspicion, based upon
specific and articulable facts which, taken together with rational inferences from those facts, result in the
conclusion that criminal behavior has occurred or is imminent. Terry v. Ohio, 392 U.S. 1, 19 (1968).
¶9.
Thompson’s decision to stop Bone was reasonable. A clerk from Fred’s informed Thompson that
Bone had purchased a large amount of pseudoephedrine. Bone proceeded to Kroger. Thompson
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personally observed Bone purchase several boxes of pseudoephedrine at Kroger. Additionally, Thompson
verified with the police department that Bone was driving his vehicle. Furthermore, Thompson received
information regarding Bone’s criminal history before proceeding with the stop. Given the available
information, it was reasonable for Thompson to infer that Bone was purchasing these products with the
intent to manufacture narcotics thereby validating the stop.
¶10.
We next address Bone’s second argument that the “pat-down” search was illegal. “The officer
usually may pat the outer clothing of the individual who has been stopped to determine if a weapon is
possessed.” Anderson, 864 So. 2d at 950 (¶7), citing Terry, 392 U.S. at 30. It is not necessary that the
officer know with certainty that a suspect is armed before the limited Terry search is permissible. Id. at
27. If the reasonably prudent man would be warranted in believing his safety or the safety of others is at
risk under the circumstances, he may take the allowable steps to assure his personal safety. Id.
¶11.
Thompson saw a bulge in Bone’s pocket, and for his safety, he thought it necessary to investigate.
He testified that “in today’s society . . . we have cell phones that have weapons in them; we have cigarette
lighters that have switchblade knives in them . . . [and] the criminals are coming out with everything.”
Thompson concluded that since he had never seen this type of case before, he was “not going to take
anyone’s word” that the case did not contain a weapon. Thompson’s belief that a pat-down was necessary
was certainly reasonable. Accordingly, we find that this issue is without merit.
II.
¶12.
Whether the trial court erred in allowing testimony regarding Bone’s possession of
marijuana.
We next consider whether the trial court erred in allowing testimony regarding Bone’s possession
of marijuana. Although the marijuana was not the point of Thompson’s search in the first place, such
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chance discovery does not require suppression. Michigan v. Long, 463 U.S. 1032, 1050 (1983).
Thompson did not discover the marijuana by exceeding the scope of the permissible search of Bone. “He
did not discover it by prying into objects which could not have reasonably held a weapon, such as a
matchbox or small flat envelope.” Hill v. State, 865 So. 2d 371, 377 (¶17)(Miss. Ct. App. 2003).
Rather, Thompson testified that the metal case containing the marijuana was one and a half inches thick.
A small weapon, such as a knife, could have easily fit into such a container. ¶13.
The trial court
correctly determined that the evidence was properly seized and its admission at trial was proper. This issue
is also without merit.
III.
¶14.
Whether the trial court erred in admitting testimony regarding Bone’s past
conviction.
Finally, Bone argues that the trial court improperly admitted testimony of his prior criminal history.
Bone alleges that the trial court erred by allowing Thompson’s testimony wherein he stated that “a Paul
Bone, Jr., had a criminal history back in 1994 for possession of methamphetamine.” ¶15.
Evidentiary
issues are decided under an abuse of discretion standard. Lindsey v. State, 754 So. 2d 506,
511(¶23)(Miss. Ct. App. 1999). A case may be reversed based on the admission of evidence only if the
admission results in prejudice and harm or the admission affects a substantial right of a party. Smith v.
State, 839 So. 2d 489, 495(¶8)(Miss. 2003).
¶16.
Character evidence is not admissible to prove that one acted in conformity therewith. M.R.E.
404(a). Evidence of another crime or prior bad act is not usually admissible. Ballenger v. State, 667 So.
2d 1242, 1256 (Miss. 1995). However, according to Rule 404(b), evidence of other crimes or bad acts
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may be admissible to prove identity, knowledge, intent, motive or to prove scienter. Simmons v. State,
813 So. 2d 710, 716 (¶30)(Miss. 2002)(citations omitted).
¶17.
Upon finding that the evidence is admissible under M.R.E. 404(b), the court must still consider
whether the evidence passes the Mississippi Rule of Evidence 403 filter. Simmons, 813 So. 2d at 716
(¶33)(Miss. 2002)(citations omitted). Mississippi Rule of Evidence 403 provides that otherwise admissible
evidence may be excluded where the risk of undue prejudice substantially outweighs the probative value
of the evidence.
¶18.
Here, the State did not offer evidence of Bone's prior possession of methamphetamine to show
Bone’s character. Instead, the State claimed at trial that this evidence was presented to show Bone’s
knowledge of this particular crime. The trial court overruled Bone’s objection and issued the following
curative instruction:
Instruction Number 3: The Court instructs the jury that the testimony regarding the prior
conviction of Paul Edward Bone, Jr., for the unlawful possession of methamphetamine in
1994 was offered in an effort to prove motive, intent, preparation, plan, knowledge,
identity, or absence or mistake on the part of the defendant’s knowledge concerning the
use of precursor chemicals or drugs in the manufacturing of methamphetamine.
However, you cannot and you must not simply infer that the defendant acted in conformity
with his previous acts and that he is therefore guilty of the charges for which he is presently
charged. You shall give this testimony such weight and credibility as you deem proper
under the circumstances.
¶19.
Thompson’s testimony had no prejudicial effect. Bone does not offer any proof of how his prior
conviction’s probative value is outweighed by its potential prejudice. Rather, Bone merely asserts that he
was prejudiced. As stated, the trial judge found that Bone’s prior conviction was relevant under M.R.E.
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404(b) because it proved that Bone had “knowledge concerning the use of precursor chemicals or drugs
in the manufacturing of methamphetamine.”
¶20.
The trial judge expressly considered Rule 403 and granted a limiting instruction which was given
to the jury in the form of jury instruction number three. We find that the trial court did not err in admitting
the evidence of Bone’s prior conviction under Rule 404(b). Therefore, this issue is also without merit.
¶21. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF CONVICTION
OF POSSESSION OF PRECURSOR CHEMICALS AND SENTENCE OF SIXTY YEARS
WITH THIRTY YEARS SUSPENDED AND FIVE YEARS POST-RELEASE SUPERVISION
AND FINE OF $25,000 IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., MYERS, CHANDLER, BARNES AND
ISHEE, JJ. CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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