author: JAMES, J., IRVING, P.J.,

text:
    Marvin Rerockus Demond CARVER a/k/a Marvin Rerocukus Demond Carver a/k/a Marvin Carver a/k/a Marvin Rerockus Carver a/k/a Marvin R. Carver a/k/a “Foot”, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00384-COA
    Court of Appeals of Mississippi.
    11/01/2016
    Rehearing Denied April 25, 2017

      ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES, HUNTER NOLAN AIKENS
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND
   JAMES, J.,

FOR THE COURT:

¶ 1. Marvin Rerockus Demond Carver appeals from his conviction of possession of more than thirty grams but less than 250 grams of marijuana. Carver was sentenced as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013) and as a habitual offender under , Mississippi Code Annotated section 99-19-81 (Rev. 2015) to six years in the custody of the Mississippi Department of Corrections without the possibility for parole or early release. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2, On November 23, 2011, half-brothers Carver and Nicholas Ingram were traveling from Grenada, Mississippi, to the Mississippi Gulf Coast. Ingram was driving, and Carver was in the front passenger seat. Carver and Ingram were pulled over for speeding on Interstate 55 in Madison County by State Trooper Wade Zimmerman.

¶ 3. Trooper Zimmerman noticed a strong odor of marijuana coming from the vehicle when he approached the driver’s side of-the vehicle. Trooper Zimmerman observed that Ingram’s eyes were “very bloodshot.” Trooper Zimmerman asked Ingram to step out of the vehicle and questioned him while Carver remained in the vehicle. Trooper Zimmerman asked Ingram if he had been smoking marijuana. Ingram initially denied smoking marijuana, and Trooper Zimmerman gave him a field sobriety test. Ingram- then admitted that he had been smoking marijuana, and he gave Trooper Zimmerman consent to search the vehicle.

¶4. Trooper Zimmerman discovered a handgun under the driver’s seat and a small bag of marijuana in the center console. Trooper Zimmerman discovered two larger plastic bags containing a total of nearly four ounces of marijuana in the trunk. One bag was wrapped in a manila envelope, and the other bag was in a white plastic shopping bag. A digital scale was also discovered in the trunk near the bags of marijuana. Ingram told Trooper Zimmerman that the marijuana found in the trunk was hot his, and he also denied having any knowledge' of it.

¶ 5. Ingram and Carver were arrested and transported to the Madison County Jail. At the jail, police discovered $893 cash in Ingram’s pocket, Agent Candace Edwardk of the Mississippi Bureau of Narcotics interviewed Ingram and Carver. Ingram and Carver also provided written statements!

¶6. Ingram told Agent Edwards that the marijuana found in the center console was left over from a blunt he had just smoked. While on the roadside, Ingram had initially denied any knowledge of the marijuana in the trunk but claimed full responsibility for it and the handgun during his interview and in his written statement. Ingram’s statement provided that the marijuana was for his personal use. He also told Agent Edwards: “[W]e [were] going to smoke it for the weekend.”

¶ 7. Carver told -Agent Edwards that he had previously served nine years in prison for a drug-possession charge. He told Agent' Edwards that he and Ingram’s grandmother had asked him to go with Ingram to the coast. Agent Edwards testified that “Carver stated that he knew about the marijuana in the vehicle and that he ... and Nicholas Ingram were going to smoke it for Thanksgiving.” Carver told Agent Edwards that he did not know anything about the gun being in the vehicle. Carver’s written statement provided, in part:

I knew nothing of [Ingram] possessing the firearm and by him knowing that I hate being around guns, he had kept it a secret—until we got pulled over! ... The marijuana he had, I knew about because he said he had [some] “weed” for us to smoke for Thanksgiving. Me being the older “square,” as he calls me[,] agreed to “puff’ for the special occasion. I didn’t know he had all that much marijuana until the police pulled it out [of] the trunk! ... My brother is responsible for the marijuana and holding the firearm secretly!

(Emphasis in original).

¶ 8. On August 21, 2012, Carver and Ingram were indicted for possession of more than thirty grams but less than one kilogram of marijuana with intent to distribute, while in possession of a firearm, and for conspiracy to possess more than thirty grams but less than one kilogram of marijuana with intent to distribute. Carver was tried before a Madison County jury on June 12-13, 2013.

¶ 9. Ingram, who had pled guilty prior to Carver’s trial, testified on behalf of Carver. Ingram testified that his grandmother rented a vehicle for him to drive to the coast for the Thanksgiving holiday. Ingram testified that he had purchased and placed the marijuana in the trunk outside of Carver’s presence. Ingram also testified that he placed the handgun under the driver’s seat outside of Carver’s presence. Ingram testified that he picked Carver up and told him to throw his luggage in the trunk because he was in a hurry to go to the coast. Ingram testified that he did not intend to sell or distribute the marijuana that was found in the vehicle. Ingram testified that “[the marijuana] was only for my personal consumption ... and maybe [to] smoke with a couple of people at holiday time.”

¶ 10. On cross-examination, when asked about whether Ingram had initially denied having marijuana in the vehicle to Trooper Zimmerman, he testified that he “didn’t tell [Trooper Zimmerman] anything.” When asked whether he had been smoking marijuana that day, Ingram testified: “I told [Trooper Zimmerman] not in the vehicle. Yes, I had smoked weed earliér, but not before I got in the vehicle nor in the vehicle.” Ingram then testified that he could not remember if he told Trooper Zimmerman about the marijuana in the vehicle. Ingram also testified that he and Carver had not smoked marijuana in the vehicle during their trip between Grenada and Madison County.

¶ 11. Ingram testified that the marijuana in the center console had been taken from the larger amount in the trunk. Ingram admitted on the stand: “In the spirit of the holiday, I was going to freely smoke with others and for my own personal consumption.”

¶ 12. Carver took the stand in his defense. Carver explained that on November 23, 2011, Ingram had called him earlier that day about riding to the coast together for the Thanksgiving holiday. Carver testified that he did not smoke marijuana with Ingram that day. Carver testified that he did not know there was marijuana in the trunk. Carver also testified that he did not know about the handgun under the driver’s seat. Carver gave the following testimony:

During [mine and Ingram’s] phone conversation, when we [were] talking about, you know, when he was telling me he was going to the coast and all, and I was asking him what we [were] going to do, what [were] we going to do. I was like what [were] we going to do for Thanksgiving. And that’s when he told me that, he mentioned, he said that he will smoke some marijuana with me for Thanksgiving-

¶ 13. When Carver was asked whether he knew where the marijuana was that Ingram had mentioned on the phone, Carver testified: “[Ingram] didn’t tell me where it was or if he already had it or, you know, was he going to buy it or whatever. I didn’t know.” Carver also gave, the fol-. lowing explanation regarding his written statement: “[M]y statement said I knew about [the marijuana], because he said he had some for us to smoke for Thanksgiving. He was going to smoke some with me for Thanksgiving.” Carver further testified: “I knew he said he had some for us to smoke for Thanksgiving.” Later on cross-examination, when asked whether Ingram intended to share the marijuana with him that was found in the vehicle, Carver testified: “Ingram said he had some [marijuana] for me. He had some weed for us to smoke for Thanksgiving.”

¶ 14. The jury found Carver guilty of the lesser-included offense of possession of more than thirty grams but less than 250 grams of marijuana. Carver was acquitted of the conspiracy charge. The trial court sentenced Carver as a habitual offender and subsequent drug offender to six years without the possibility for parole or early release.

¶ 15. Carver appeals to this Court raising three assignments of error: (1) whether there was sufficient evidence to support his conviction; (2) whether the trial court erred by admitting evidence his prior arrest for auto burglary, prior misdemeanor convictions, and details of his prior conviction for the sale of cocaine; and (3) wheth-' er the trial court erred in sentencing him-as a subsequent offender under section 41-29-147. Finding no error, we affirm.

DISCUSSION

I. Sufficiency of the Evidence

¶ 16. Carver‘argues that the evidence was insufficient to support the guilty verdict. Carver argues that the evidence failed to show that he had knowledge of the marijuana in the trunk. Carver claims that the evidence failed to show that he intentionally and consciously possessed the marijuana by exercising dominion and control over it.

¶ 17. “In reviewing the sufficiency of the evidence, this Court examines whether there was sufficient evidence to find that the defendant committed the crime beyond a reasonable doubt.” Morgan v. State, 995 So.2d 812, 817 (¶ 16) (Miss. Ct. App. 2008) (citing Foley v. State, 914 So.2d 677, 690 (¶ 27) (Miss. 2005)). Challenges to the legal sufficiency of the evidence are reviewed in the light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). “This Court must accept' as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and must- disregard evidence favorable to the defendant.” Warwick v. State, 179 So.3d 1069, 1073 (¶ 12) (Miss. 2015) (quoting Anderson v. State, 904 So.2d 973, 977 (¶ 8) (Miss. 2004)). “If any reasonable trier of fact could have found the essential elements of the crime beyond a reasonable doubt, this Court will not disturb the verdict.” Id. (citing Bush, 895 So.2d at 843 (¶ 16)).

¶ 18. Possession of a controlled substance may be actual or constructive. Hudson v. State, 30 So.3d 1199, 1203 (¶ 10) (Miss. 2010). Constructive possession has been summarized by the Mississippi Supreme Court:'

[T]he law states that actual possession is not needed, that constructive possession will do. Nevertheless, the awareness and conscious intent to possess elements apply to both- actual and constructive possession. The only difference is that, with actual possession, the drug is actually found on the defendant’s person (i.e., in his hands, mouth, pockets, etc.), whereas, with constructive possession, the drug is simply found near the defendant’s person in a place over which the defendant exercises dominion or control. Thus, the ¡State has to prove that the defendant was aware of the cocaine and intentionally, but not necessarily physically, possessed it. To test whether the prosecution met this standard Of proof in individual cases, -each case must be viewed in light of its individual facts and circumstances'.

Glidden v. State, 74 So.3d 342, 348-49 (¶ 20) (Miss. 2011) (internal citations and quotations omitted) (quoting Hudson, 30 So.3d at 1203-04 (¶ 11)).

¶ 19. “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.” Hudson, 30 So.3d at 1203 (¶ 10). Constructive possession may be shown by showing that the drug involved was subject to the defendant’s dominion or control. Id. Generally, proximity is an essential element, but it is not adequate by itself in the absence of other -incriminating circumstances. Id. The elements of constructive possession may be proved by circumstantial evidence. Kittrell v. State, 806 So.2d 1140, 1145 (¶ 18) (Miss. Ct. App. 2001).

¶ 20. The evidence is uncontradict-ed that Trooper Zimmerman noticed a strong odor of burnt marijuana coming from the vehicle when he approched the driver’s side of the vehicle. In addition, a small amount of marijuana was found in the center console between Ingram and Carver. Trooper Zimmerman also observed that Ingram’s eyes were “very bloodáhót.” TTboper Zimmerman testified that he “could definitely tell that [Carver and Ingram] had been smoking, or someone had Smoked in the[] car, because the burnt smell was there as well.” Ingram admitted that the marijuana found in the console was left over from a blunt he had smoked. Plus, he admitted that the marijuana in the blunt had been taken from the larger bags of marijuana -in the trunk.

¶21. Carver testified that he and Ingram had discussed bringing marijuana to smoke that weekend. Although Carver stated that he did not know he had “that much” marijuana in the trunk, Carver stated multiple times that he knew that Ingram had marijuana for them to smoke. Agent Edwards testified that Carver told her' during his interview that he knew about the marijuana. Carver’s written statement stated: “The marijuana he had, I knew about because he had some weed for us to smoke.”

¶22. The issue before this Court is whether or not the evidence is legally sufficient to support the elements of the crime. By admitting that he intended to smoke the marijuana, Carver manifested that he had constructive possession of an undivided interest in the amount of marijuana to be smoked. This undivided amount was subject to Carver’s dominion, and he could, when he was ready to, retrieve and smoke it. The dissent emphasizes Carver’s supposed lack of dominion and control over the marijuana, but there was no evidence at trial that suggested that Carver did not exercise dominion and control over Ingram's rental car and the marijuana in it. The State met its burden at trial to show that Carver had dominion and control over the marijuana. Carver had access to the rental car and loaded his luggage into the trunk, and there was no suggestion that Ingram limited Carver’s access to the trunk.

¶ 23. Further, Carver admitted that he knew Ingram had marijuana—just not “that much” marijuana. The dissent—after recognizing that Carver planned to smoke Ingram’s marijuana that weekend—writes, “However, Carver stated that he ‘didn’t know [that Ingram] had all that much marijuana until the police pulled it out [of] the trunk!’” (Emphasis in original; first brackets added by dissent). Carver, though, did not state that he “didn’t know [that Ingram] had marijuana in the trunk.” Instead, he stated that he “didn’t know [that Ingram] had all that much marijuana ..,. ” (Emphasis in original). Carver agreed to smoke the marijuana, knew that Ingram had the marijuana, and had dominion and control over the marijuana.

¶ 24, We find that there was sufficient evidence to show that Carver was aware of the presence and character of the marijuana, had dominion and control over it, and intended to possess it. In viewing the evidence with all reasonable inferences drawn in the light most favorable to the State, it was sufficient to support Carver’s guilty verdict.

II. Prior-Bad-Act Evidence

¶ 25. Carver argues that he was denied his fundamental right to a fair trial by the admission of certain evidence in violation of Mississippi Rule of Evidence 404. Specifically, Carver argues that the trial court erred by admitting evidence of his prior auto-burglary arrest and prior misdemean- or., convictions. Carver concedes that his prior. convictions for the , sale of cocaine were admissible under Rule 404(b) for the purpose of proving intent to distribute. However, Carver argues that the trial court erred by admitting the details of the three prior convictions, ■ specifically, his sentence and time served.

¶ 26. “The standard of review regarding admission or exclusion of evidence is abuse oí discretion. Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.” Ladnier v. State, 878 So.2d 926, 932-33 (¶ 27) (Miss. 2004).

¶27. “The admissibility of evidence of other crimes or bad acts committed by the defendant is governed by Rule 404(b).” Denham v. State, 966 So.2d 894, 898 (¶ 18) (Miss. Ct. App. 2007). “Under Rule 404(b), ‘evidence of a crime other than the one for which the accused is being tried generally will not be admissible.’ ” Mitchell v. State, 110 So.3d 732, 734 (¶10) (Miss. 2013) (quoting Hargett v. State, 62 So.3d 950, 953 (¶ 8) (Miss. 2011)).

¶ 28. This assignment of error is procedurally barred because Carver failed to make any contemporaneous objections to any of this testimony at trial. See Hodges v. State, 14 So.3d 786, 789 (¶¶8-10) (Miss. Ct. App. 2009) (finding that arguments regarding evidence of prior bad acts were procedurally barred on appeal because the defendant failed to make any contemporaneous objections to the, testimony at trial).

¶ 29; Carver acknowledges that his trial counsel failed to object to the testimony regarding his prior convictions and arrest. As a result, he urges this Court to find plain error. “In order to prevail under the plain-error doctrine, an appellant must show that there was an error in the trial court and that the error resulted in a manifest miscarriage of justice.” Blunt v. State, 55 So.3d 207, 211 (¶ 16) (Miss. Ct. App. 2011). “Furthermore, this Court may-only apply the plain-error doctrine when the error complained of affects a defendant’s fundamental or substantial rights.” Id. We cannot say that the testimony about Carver’s 1998 burglary arrest, his misdemeanor convictions, and his sentence for his prior sale-of-cocaine convictions resulted in a manifest miscarriage of justice.

III. Sentencing

¶ 30. Carver argues that the trial court erred in sentencing him as a subsequent drug offender under section 41-29-147. Carver claims the trial court erroneously believed that it had no discretion in sentencing him.

¶31. Section 41-29-147 provides that “any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.”

¶ 32. The failure to object at sentencing bars Carver from challenging his sentence on appeal. See Foster v. State, 148 So.3d 1012, 1015-16 (¶ 10) (Miss. 2014). However, a procedural bar related to sentencing is waived only when the error results in an illegal sentence. Id. at (¶ 12). The Mississippi Supreme Court has consistently held that “sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Id. at (¶ 13). The maximum sentence for possession of more than thirty grams but less than 250 grams of marijuana is three years. • Miss. Code Ann. § 41-29-139(c)(2)(C) (Rev. 2013). Because Carver was found to be a subsequent drug offender under section 41-29-147, the trial court was authorized to double his maximum sentence for the possession of marijuana.

¶ 33. Carver’s sentence was within the statutory maximum. As a result, this issue is procedurally barred because Carver’s sentence was not illegal.

CONCLUSION

¶ 34. Finding no error, we affirm the judgment of the circuit court.

¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF POSSESSION OF MORE THAN THIRTY GRAMS BUT LESS THAN 250 GRAMS OF MARIJUANA AND SENTENCE AS A HABITUAL OFFENDER AND SUBSEQUENT DRUG OFFENDER OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.

LEE, C.J., GRIFFIS, P.J., CARLTON AND GREENLEE, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, ISHEE, FAIR AND WILSON, JJ.

IRVING, P.J.,

DISSENTING:

¶ 36. Carver was convicted of the possession of 3.8 ounces of marijuana that was discovered in the trunk of a car in which he was a passenger. Carver’s half-brother, Ingram, was driving the car, which had been rented for him. The two were en route from Grenada to Moss Point on the day before Thanksgiving when they were stopped and arrested on 1-55 in Madison County. Ingram, who also had a gun under his car seat and almost $900 in his pockets, claimed sole ownership of the marijuana, which he said was for personal consumption and to share with friends during the holidays.

¶ 37. Ingram pled guilty, but Carver proceeded to trial on charges of possession with the intent to distribute more than thirty grams but less than one kilogram of marijuana (Count I) and conspiracy to distribute the same (Count II). There was evidence from which a jury might have found that Carver was aware of the marijuana’s presence and that Ingram and/or Carver had smoked marijuana in the car. Also, a very small amount (0.2 grams) of marijuana was found in the center console of the car, and Carver had apparently told Ingram he was willing to smoke marijuana with him during the holidays. The jury acquitted Carver of conspiracy to distribute marijuana but convicted him on simple possession of more than thirty grams but less than 250 grams of marijuana, a lesser-included offense under Count I of the indictment. The majority now affirms that conviction. I respectfully dissent because, under longstanding Mississippi Supreme Court precedent, the evidence was insufficient to show that Carver exercised dominion or control over the marijuana or did anything to aid and abet Ingram’s possession of the marijuana.

FACTS

¶ 38. On November 23, 2011, Trooper Zimmerman of the Mississippi Highway Patrol pulled over a car for speeding on I-55 South in Madison County. Ingram was driving, and his half-brother, Carver, was in the front passenger’s seat. The car was rented to their grandmother, whom Ingram lived with in Grenada. Trooper Zimmerman testified that he concluded that Ingram and/or Carver had been smoking marijuana because he could smell burnt marijuana and Ingram’s and/or Carver’s eyes were bloodshot. Trooper Zimmerman asked for consent to search the car, and Ingram agreed. Trooper Zimmerman found approximately 0.2 grams of marijuana in a plastic shopping bag in the center console. He also found a pistol under Ingram’s seat. Trooper Zimmerman then searched the trunk of the car and discovered approximately 3.8 ounces (107 grams) of marijuana. The marijuana was divided between two plastic bags. One of the bags was in a manilla envelope that was wrapped in bubble wrap. The other was inside of a white plastic bag that was also wrapped in bubble wrap. Trooper Zimmerman also found a digital scale and an empty ziplock “baggy” in the trunk. Ingram had $893 in cash in his pockets; Carver did not have any money on him.

¶ 39. Ingram and Carver were taken to the Madison County jail where they were interviewed by Agent Candace Edwards of the Mississippi Bureau of Narcotics. Ingram readily admitted that the marijuana in the console and in the trunk and the gun under his seat all belonged to him alone. Ingram told Agent Edwards that he and Carver were on the way from Grenada to his mother’s house in Moss Point for Thanksgiving. Ingram also told Agent Edwards where in Grenada he had purchased the marijuana, that he had paid $300 for it, and how he had gone about wrapping it. He stated that the small amount of marijuana in the center console was left over from a blunt he had smoked earlier. He told Agent Edwards that the marijuana in the trunk was for him, Carver, and others to enjoy during the Thanksgiving holidays..

¶ 40. Carver gave a written statement to Agent Edwards. He stated that their grandmother had asked him to travel to Moss Point with Ingram for Thanksgiving. Carver stated that he “knew nothing!’ about the gun under Ingram’s seat and that the marijuana also belonged to Ingram. He stated that he “knew about” the marijuana because Ingram had told him that “he had [some] ‘weed’ for [them] to smoke for Thanksgiving.” Carver said that “being the older ‘square,’” as Ingram called him, he had “agreed to ‘puff for the special occasion.” However, Carver stated that he “didn’t know [that Ingram] had all that much marijuana until the police pulled it out [of] the trunk!”

¶ 41. Ingram testified at trial that he and Carver were on their way to Moss Point to visit Ingram’s mother for Thanksgiving.. Ingram testified that, his grandmother rented the car for him because his own car was unreliable. He testified that the gun and marijuana were his. He testified that Carver did not know about the gun or the marijuana in the trunk. He stated that' Carver had hurriedly tossed his luggage in the trunk earlier that day and would not have noticed the marijuana, which was not in plain view. Ingram testified that the marijuana was for his own personal consumption and to smoke with others during the holiday. He stated that he was not planning to sell the marijuana. He testified that he .had smoked some marijuana earlier in the day but not in the car or with. Carver. He stated that the money in his pockets was his savings from work and that he intended to use it -to buy Christmas gifts on “Black Friday.” He also testified that he and Carver planned to go to the Bayou Classic football game in New Orleans the day after Thanksgiving.

¶ 42. Carver testified that their grandmother asked him to ride to Moss Point with Ingram, so he did. He stated that he and Ingram first discussed' the trip the same day they departed, that Ingram came by his house that evening to pick him up, and that he hurriedly tossed his luggage in the back seat of the car before they left town. He testified that he did not know that there was marijuana or a gun in the car. He explained that when he stated in his written statement that he “knew about” the marijuana, he meant only that Ingram had told ’ him that they would smoke marijuana together during the holiday, Carver maintained that he did not know whether Ingram already had the marijuana or planned to buy it on the Gulf Coast. ,

¶ 43. Ingram and Carver were indicted for possession of thirty grams but less, than one kilogram of' marijuana with the intent to distribute (Count I) and conspiracy to distribute the same quantity of marijuana (Count II). See Miss. Code Ann. § 41-29-139(a)(l) & (b)(2) (Rev. 2013). Ingram pled guilty, while Carver proceeded to trial. At trial, Carver acknowledged that he pled guilty in January 2000 to selling cocaine on three occasions in 1998 and 1999. The jury was instructed that Carver’s prior convictions could “be considered for the sole purpose of determining [his] motive, opportunity, intent, plan or knowledge” but not “as evidence that he acted in conformity therewith.” At the close of the evidence, the circuit court instructed the jury on theories of constructive possession and accomplice liability. The jury found Carver not guilty of conspiracy to distribute marijuana but convicted him of simple possession, see Miss. Code Ann. § 41-29-139(c)(2)(C) (Rev. 2013), a lesser-included offense, under Count I of the indictment. The court sentenced Carver to six years in MDOC custody as a habitual offender and subsequent drug offender.

ANALYSIS

¶ 44. Carver argues that he is entitled to a.judgment of acquittal because the evidence at trial was insufficient to show beyond a reasonable doubt that he possessed the marijuana in the trunk of a rental car in which he was a passenger. Our standard of review on this issue is well settled:

[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. ... [T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.

Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005) (quotation marks, citation omitted). The State argues that the evidence was sufficient for the jury to convict Carver either on a theory of constructive possession or as an accomplice to Ingram’s possession. These alternative theories of the conviction are addressed in turn below.

I. Constructive Possession

1145. Since Carver did not have actual possession of the drugs at issue, “the rules concerning constructive possession come into play.” Jones v. State, 693 So.2d 375, 376 (Miss. 1997); see also Fultz v. State, 573 So.2d 689, 690 (Miss. 1990) (“The doctrine of constructive possession is a legal fiction used by courts when actual possession cannot be proven.”). Our supreme court has decided a number of cases regarding the sufficiency of the evidence necessary to sustain a conviction on a theory of constructive possession. Several of these decisions involved a defendant who, like Carver, was convicted of the possession of a controlled substance found in a car in which the defendant was only a passenger, nota driver or owner.

1146. For instance, in Cunningham v. State, 583 So.2d 960 (Miss. 1991), Bob Cunningham was a passenger in a pickup truck owned and driven by Kelvin Sipp. A pill bottle containing crack cocaine was found on the passenger-side floor of the truck. No fingerprints were taken from the bottle, and both men denied possessing the cocaine. See id. at 961. The supreme court explained that in order to convict a defendant on a theory of constructive possession,

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. It need not be actual physical possession. Constructive possession may be shown by establishing dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.

Id. at 962 (quoting Curry v. State, 249 So.2d 414 (Miss. 1971)) (alteration omitted). Thus, “[a]n item is one’s constructive possession when it is subject to his dominion or control.” Id. (quoting Keys v. State, 478 So.2d 266, 268 (Miss. 1985). “A presumption of constructive possession arises against the owner of premises upon which contraband is found,” but “when contraband is found on premises ... not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession.” Id. Rather, “the [S]tate must show additional incriminating circumstances to justify a finding of constructive possession.” Id. (quoting Fultz, 573 So.2d at 689)). “In summary, .,. when contraband is found on premises [not owned by the accused], there must be evidence, in addition to physical proximity, showing the defendant consciously exercised control over the contraband, and, absent this evidence, a finding of constructive possession cannot be sustained.” Id.

¶ 47. Applying these principles, the court held that there was insufficient evidence to convict Cunningham of constructive possession. The court rejected the State’s argument that Cunningham and Sipp “were good friends,” so “contraband owned by one was more likely than not owned by both.” Id. The court also rejected the argument that the conviction could be sustained because certain aspects of the defendants’ testimony was “unbelievable.” The court held that unbelievable testimony does not relieve the State of its burden of positively connecting a passenger to drugs found in a vehicle he does not own. See id. Finally, in closing, the court emphasized that the State did not attempt to obtain fingerprints from the pill bottle, although it could have done so. See id. at 962-63.

¶ 48. In Hamm v. State, 735 So.2d 1025 (Miss. 1993), Terri Hamm was indicted for possession with the intent to distribute after almost 200 pounds of marijuana was discovered in the padlocked trailer of an eighteen-wheeler in which she was a passenger but that was driven and owned by her husband, Thomas. See id. at 1026 (¶¶ 5-7). A small amount of marijuana was also found in the cab of the truck. Id. at (¶ 4). The court noted that there was no evidence that Terri had access to the trailer, and the court held that neither the presence of a small amount of marijuana in the cab of the truck nor the fact that Terri had accompanied Thomas from Tennessee to South Texas and then back to Mississippi was sufficient to connect her to the large quantity of marijuana in the trailer. See id. at 1027-28, 1031 (¶¶ 10, 21).

¶ 49. In Jones, 693 So.2d 375, a search of a car driven by Imo Kibwe Jawara uncovered marijuana, scales, a gun in the back seat, and several more pounds of marijuana in the trunk. See id. at 376. Jawara denied that the marijuana belonged to him, claiming “that it had been placed there by someone else [before he left] New Orleans,” while his passenger, Robert Lewis Jones, did not testify at trial. See id. The court held that the evidence was insufficient to convict Jones because he did not own or drive the car, and there was “nothing to connect [him] to [the] marijuana except for his presence in the car.” Id. at 377.

¶ 50. In Berry v. State, 652 So.2d 745 (Miss. 1995), the State presented evidence that Reginald Berry was a passenger in a car driven and owned by Wilbert Anderson; that Berry and Anderson got out of Anderson’s car and into a second car where Anderson purchased cocaine; that Berry and Anderson returned to Anderson’s car; that at Anderson’s request, Berry placed the cocaine into the car’s glove compartment; and that Anderson later began smoking the cocaine in Berry’s presence. See id. at 748, 750-51. The court held that Berry’s “momentary handling” of the cocaine (to place it into the glove compartment) was insufficient to sustain the conviction because “[possession is defined ... in terms of the exercise of dominion and control” over the controlled substance. Id. at 751 (emphasis added). The court emphasized that Berry “simply place[d] [the cocaine] in the glove compartment at Anderson’s request, in Anderson’s car, and in Anderson’s presence. There was no evidence that he owned the drugs, paid for them, or controlled them, in any manner.” Id. (emphasis added).

¶ 51. In other cases, the supreme court has held that evidence of constructive possession was insufficient even when the defendant was the driver and sole occupant of a car, though not its owner. In Fultz, 573 So.2d 689, the defendant was the driver and only occupant of his sister’s car when he was stopped for driving erratically, failed field sobriety tests, and admitted to having smoked marijuana. Id. at 689-91. A small amount of marijuana was found in his wallet, which he admitted was his, and a duffel bag with plastic bags containing a total of seven and a half ounces of marijuana was found in the trunk. Id. at 690. The defendant denied any knowledge of the marijuana in the trunk. Id. A unanimous supreme court held that the defendant’s possession of a small amount of marijuana and admission to having smoked marijuana were insufficient to establish dominion or control over the much larger quantity of marijuana found in the trunk. Id. at 691. The court rejected the State’s argument that it would have been “illogical” for the. car’s owner to leave such a large amount of marijuana in a car that she loaned to someone else. Id. Finally, the court emphasized that no attempt was made to establish ownership by questioning the ear’s owner or obtaining fingerprints from the trunk or the bags containing the marijuana. Id.; see also Ferrell v. State, 649 So.2d 831 (Miss. 1995) (holding that the State failed to prove constructive possession although cocaine was found in a matchbox next to the driver’s seat of a car that the defendant had possessed for approximately fifteen hours).

¶ 52. Based on these precedents, the evidence presented at trial in this case was insufficient to establish that Carver constructively possessed—i.e., exercised dominion or control—over the marijuana found in the trunk of the rental car. He did not own the car or rent it, and there was no evidence that he was anything other than a passenger. The mere fact that there was a small amount of marijuana in the console is also insufficient to establish dominion and control over the much larger quantity of marijuana in the trunk. See Cunningham, 583 So.2d at 962; Hamm, 735 So.2d at 1030 (¶ 17); Jones, 693 So.2d at 377. Indeed, the result is no different even accepting that there was sufficient evidence to support an inference that Carver knew that Ingram had smoked marijuana in the car or even smoked some himself. See Fultz, 573 So.2d at 691; Berry, 652 So.2d at 747-48, 750-51. Nor does the fact that Carver and Ingram were related or close support a finding of constructive possession. See Cunningham, 583 So.2d at 962; Hamm, 735 So.2d at 1026, 1031 (¶¶ 7, 21).

¶ 53. Moreover, in one notable respect, Carver's claim is stronger than those of the defendants in the cases discussed above because' Ingram unequivocally claimed sole ownership and pled guilty to possession of the drugs at issue. In Fultz, the court found it significant that the car’s owner was not questioned about the drugs, see Fultz, 573 So.2d at 691, but here the car’s driver was questioned and expressly claimed sole ownership of the drugs. Finally, given' Ingram’s confession that the drugs were his, it is understandable that the drugs were not tested for fingerprints; however, as discussed above, the lack of such testing is another factor that the supreme court has found significant in cases in which the State must establish constructive possession. See id.; Cunningham, 583 So.2d at 962-63.

¶54. The evidence at trial may have been sufficient for the jury to conclude that Carver knew about the small amount of marijuana in the console, had smoked marijuana in the car at some poipt, and .even was aware that there was a larger quantity of marijuana in the trunk. There was also sufficient evidence for a jury to find that Carver expected that Ingram would allow him to smoke some of the marijuana from the trunk during the holiday. But under our supreme court’s precedents, that is insufficient to establish constructive possession because it is insufficient to. establish beyond a reasonable doubt that Carver exercised dominion or control over the marijuana in the trunk. The only evidence in the record is that Ingram, not Carver, exercised dominion and control over the marijuana at issue. Put simply, evidence that Ingram intended to share some fraction of his marijuana with Carver does not ipso fac-to transform all of Ingram’s marijuana into Carver’s marijuana or their marijuana, Although Carver was present in the car and possibly aware of the drugs, “[tjhere was no evidence that he owned the drugs, paid for them, or controlled them in any manner.” Berry, 652 So.2d at 751 (emphasis added). Absent some evidence that Carver exercised control over the marijuana, there is no way to conclude—beyond a reasonable doubt—that' anyone other than Ingram possessed it within the meaning of the law.

¶ 55. The majority find that Carver’s admission that he intended to smoke some of Ingram’s marijuana is sufficient by itself to establish constructive possession. But Carver’s "willingness to partake in Ingram’s marijuana did not give him “dominion or control” over it. Based on the evidence presented at trial, Carver intended to smoke marijuana because he anticipated that Ingram would share with him, not because he had any right to it. The majority also finds that “there was no evidence at trial that suggested that Carver did not exercise dominion and control over Ingram’s rental car and the marijuana in it.” However, it was the State’s burden to prove that Carver exercised dominion or control over the marijuana; it was not Carver’s burden to prove a negative or his innocence. Cunningham, 583 So.2d at 962; Sisk v. State, 290 So.2d 608, 610 (Miss. 1974). Moreover, Ingram and Carver both told law enforcement and testified at trial that the marijuana belonged to Ingram alone, not Carver. Finally, the majority finds that there was no proof that “Ingram limited. Carver’s access to the trunk.” However, in nearly all of the supreme court decisions discussed above—Cunningham, Jones, Berry, Fultz, and Ferrell—the defendant plainly had “access” to the controlled substance at issue, but the court deemed that fact insufficient to support a conviction. Indeed, in Berry, 652 So.2d at 751, the court reversed and rendered even though the evidence was clear that the defendant knowingly handled the cocaine.

¶ 56. It is true that when we consider whether the State’s evidence was sufficient to sustain a conviction, “the relevant question is whether .,. any rational trier of fact” could have returned a guilty verdict. Bush, 895 So.2d at 843 (¶ 16). This indicates that the jury’s verdict is entitled to substantial deference, and it is. But it is also critical to keep in mind that the evidence must be of such quality that the hypothetical rational fact-finder could rely on it to find the defendant guilty “beyond a reasonable doubt.” Id. In this case, the evidence was sufficient to raise significant suspicions of guilt. However, consistent with the several supreme court precedents discussed above, the evidence was not sufficient to bridge the gap between suspicion and proof beyond a reasonable doubt that Carver exercised dominion or control over Ingram’s marijuana. As Carver’s conviction necessarily was based on some degree of speculation, as opposed to evidence, we are bound to reverse and render a judgment of acquittal.

II. Aiding and Abetting

¶ 57. The State also argues that Carver’s conviction can be sustained on the theory that he was an accomplice to—-i.e., aided and abetted—Ingram’s possession of the marijuana. To convict a defendant as an aider and abettor, the State must prove beyond a reasonable doubt that the defendant “deliberately associate^] himself in some way with the crime,” that he “participate[d].... with the intent,to. bring about the crime,” and that he “voluntarily particr ipated in its commission with the intent to violate the law.” Spann v. State, 970 So.2d 135, 138 n.1 (Miss. 2007) (quoting Milano v. State, 790 So.2d 179, 185 (¶21), (Miss. 2001)). “Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient ....” Id. The State must prove “beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.” Id. Indeed, it is well séttled that “the mere presence of a person [during the commission of a crime] is not sufficient [to convict] even though such person might have approved' of the crime.” Vaughn v. State, 712 So.2d 721, 724 (¶ 11) (Miss. 1998) (quoting Griffin v. State, 293 So.2d 810, 812 (Miss. 1974)) (emphasis added). The State must prove that the defendant was “present at its commission, doing some act to render aid to the actual perpetrator.” King v. State, 47 So.3d 658, 663 (¶ 12) (Miss. 2010) (quoting Smith v. State, 237 Miss. 498, 506, 115 So.2d 318, 322 (1959)) (emphasis added).

¶ 58. In the absence of proof that Carver himself exercised dominion or control over the marijuana at issue, the evidence was also insufficient to sustain his conviction on the theory that he was an accomplice to Ingram. As described abové, thé evidence was sufficient for the jury to conclude that Carver knew and even approved of the marijuana’s presence in the car, but the supreme court has held that knowing approval is insufficient to support an aiding-? and-abetting conviction. Vaughn, 712 So.2d at 724 (¶ 11). Carver also admittedly “agreed to ‘puff for the special occasion”; however, he did not “render aid to” Ingram by being willing to smoke some of Ingram’s marijuana. King, 47 So.3d at 663 (¶ 12). Stated differently, Carver did not assist Ingram in the possession of the entire quantity of marijuana found in the car’s trunk simply because he was willing to partake in whatever amount that Ingram might have decided to share with him. No evidence was presented at trial that Carver offered any other form of assistance. Accordingly, his conviction cannot be sustained on an aiding-and-abetting theory.

CONCLUSION

¶ 59. The evidence was insufficient to convict Carver of possession of the marijuana found in the trunk of the rental car. Therefore, I respectfully dissent.

BARNES, ISHEE, FAIR AND WILSON, JJ., JOIN THIS OPINION.

      . Alternatively, Carver argues that his trial counsel was ineffective for failing to object to this testimony. We find that this claim is more appropriate for postconviction-relief proceedings. Bowlin v. State, 154 So.3d 883, 886 (¶ 8) (Miss. 2015).

      . See Miss. Code Ann. § 41-29-139(a)(l) & (b)(1) (Rev. 2013);

      . See Miss. Code Ann. § 41-29-139(c)(2)(C) (Rev. 2013).

      . Ingram and Carver have the same father but different mothers.

      . Carver lived elsewhere in Grenada with his girlfriend.

      . At the time, Carver was thirty-three years old, and Ingram was twenty-two years old.

      . "Possession of a controlled substance may be actual or constructive,-individual or joint.” Dixon v. State, 953 So.2d 1108, 1112 (¶ 9) (Miss. 2007). The State proceeded on the theory that Ingram and Carver shared joint constructive possession of the marijuana found in the trunk of the car. .

      . Agent Agent Edwards testified that it would have been "a waste of resources” to test for fingerprints because of the likelihood that many people had touched the bags. She also testified that she “didn’t need to” test for fingerprints because she already "had two confession statements that indicated ... they were both in the vehicle, and they both knew about everything.”


source: Caselaw Access Project

author: ISHEE, J.,

license: Public Domain

text:
    Christopher A. DARDEN a/k/a Christopher Anthony Darden a/k/a Christopher Darden a/k/a Chris Darden, Appellant, v. STATE of Mississippi, Appellee
    NO. 2016-CP-01094-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEY FOR APPELLANT: CHRISTOPHER A. DARDEN (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
   ISHEE, J.,

FOR THE COURT:

¶1. In 2006, Christopher Darden was found guilty of robbery by displaying a deadly weapon. He was sentenced to a twelve-year term, with seven years to serve, and five years of postrelease supervision (PRS). In 2015, the circuit court found that Darden had violated four conditions of his PRS. And so, the circuit court revoked his PRS and ordered that he serve the remainder of his sentence in the custody of the Mississippi Department of Corrections (MDOC). Darden then challenged this revocation—filing a motion to clarify the invocation of his PRS. The circuit court denied Darden’s motion. Darden now appeals. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. In 2006, Darden was found guilty of robbery by displaying a deadly weapon. He was sentenced to a twelve-year term, with seven years to serve, and five years of PRS.

¶ 3. In 2015, the circuit court found that Darden had violated four conditions of his PRS. The circuit court then revoked Dar-den’s PRS and ordered that he serve the remainder of his sentence in the custody of the MDOC. Darden then filed a motion to clarify the revocation of his PRS. In the motion, Darden made three claims. First, Darden claimed that he had served two years of the five years of PRS, and so, instead of serving five years, he should have been given credit for the two years he served on PRS—leaving the remainder of his sentence as three years, not five. Darden refers to this time as “street time.” Second, Darden asserted that instead of revoking the remainder of his sentence, the circuit court should have sent him to a technical-violation center for a maximum of ninety days. And third, Dar-den claimed that he was entitled to have the MDOC set a parole-eligibility date— and that the MDOC had failed to give him such a date.

¶ 4. In July 2016, the circuit court entered an order denying Darden’s motion. In denying the motion, the circuit court addressed each of Darden’s assertions. First, the circuit court found that Darden’s “street time” claim was a matter that should have been addressed to MDOC authorities in the form of an administrative request. Second, as to Darden’s claim that he should have been sent to a technical-violation center, the circuit court found that because Darden had committed three technical violations, it had the discretion to impose the balance of the original sentence. And third, as to parole eligibility, the circuit court found that because Dar-den was serving time for armed robbery, he was not eligible for parole. Darden now appeals to this Court.

DISCUSSION

I. The circuit court did not err in finding that Darden was required to first seek an administrative remedy to determine if he was entitled to two years’ credit for the time he was on PRS.

¶5. Darden’s first assertion is that the MDOC failed to give him credit for the two years he served on PRS. Under Mississippi law, an inmate must first seek- administrative relief when seeking resolution of the amount of time served. Murphy v. State, 800 So.2d 525, 527 (¶ 10) (Miss. Ct. App. 2001). Indeed, this Court has held that “a post-conviction - relief pleading is not the proper means to calculate and receive credit for the initial ... time served.” Id.

¶ 6. After reviewing the record, there is nothing to suggest that Darden had exhausted his administrative' remedy with the MDOC as to the calculation of the amount of time served. And so, we find the circuit court did not err in finding that Darden was required to first seek administrative relief through the MDOC.

¶ 7. Even if Darden had exhausted his administrative remedies, we would find that Darden’s underlying claim itself is without merit. This Court has held that a defendant is not entitled to credit for time spent on PRS. Fluker v. State, 2 So.3d 717, 720 (¶ 12) (Miss. Ct. App. 2008). This issue is without merit.

II. The circuit court did not err in revoking the remainder of Dar-den’s sentence instead of sending him to a technical-violation center.

¶8. Darden next claims that the circuit court erred in revoking the remainder of his sentence instead of sending him to a technical-violation center for a maximum of ninety days. Mississippi law provides:

If the court revokes probation for a technical violation, the court shall impose a period of imprisonment to be served in either a technical violation center or a restitution center not to exceed ninety (90) days for the first technical violation and not to exceed one hundred twenty (120) days for the second technical violation. For the third technical violation, the court may impose a period of imprisonment to be served in either a technical violation center or a restitution center for up to one hundred eighty (180) days or the court may impose the remainder of the suspended portion of the sentence.

Miss. Code Ann. § 47-7-37(5)(b) (Rev. 2015).

¶ 9. Here, the record shows that Darden violated the conditions of his PRS numerous times. In fact, Darden violated four separate conditions, and violated one of the conditions multiple times. And so, the circuit court had the jurisdiction and the discretion to revoke all of Darden’s sentence. This issue is without merit.

III. The circuit court did not err in finding that Darden was ineligible for parole.

¶ 10, Finally, Darden argues that the circuit court erred in finding that he was ineligible for parole due to the fact that he was convicted of armed robbery. We disagree. Mississippi law provides that “[n]o person shall be eligible for parole who shall, on or after October 1,1994, be convicted of- robbery, attempted robbery or carjacking as provided in Section 97-3-115 et seq., through the display of a firearm!.]” Miss. Code Ann. § 47—7—3(c)(ii) (Rev. 2015).

¶ 11. Here, the record clearly shows .that Darden was convicted of robbery by the display of a firearm. And so, Darden is ineligible for parole. This issue is without merit.

¶ 12. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.


author: LEE, C.J.,

text:
    Johnny Ray SIMS, a/k/a Johnny R. Sims, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-01377-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEY FOR APPELLANT: JOHNNY RAY SIMS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
   LEE, C.J.,

FOR THE COURT:

¶ 1. This appeal concerns whether the trial court properly dismissed Johnny Ray Sims’s third motion for postconviction relief (PCR). Finding no error, we affirm.

PROCEDURAL HISTORY

¶ 2. In 2005, Sims pleaded guilty to one count of aggravated assault. The charge resulted from a car chase in which Sims, fleeing the police with his girlfriend, struck two other cars. Sims was initially charged with three counts of aggravated assault— Counts I and III involved the car-accident victims, and Count II involved Sims’s girlfriend. The State dismissed Counts I and II. He was sentenced to twenty years, with one year and two months to serve and the remainder on postrelease supervision. Sims was also ordered to pay restitution to the two victims of the car accidents. In 2006, Sims’s postrelease supervision was revoked after he was charged with capital murder.

¶ 3. Sims filed his first PCR motion in 2007, which the trial court summarily denied. Sims filed his second PCR motion in 2008, raising several issues, one of which was that ordering him to pay restitution to the victim in Count I resulted in an illegal sentence. The trial court dismissed Sims’s PCR motion, finding it was subject to the time bar and successive-writ bar as well as without merit. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (time-bar); Miss. Code Ann. § 99-39-23(6) (Rev. 2015) (successive-writ bar). This Court affirmed in Sims v. State, 134 So.3d 317, 326 (¶ 44) (Miss. Ct. App. 2013) (Sims I). The Mississippi Supreme Court granted certiorari and affirmed. Sims v. State, 134 So.3d 300, 302 (¶ 1) (Miss. 2014) (Sims II).

¶ 4. Sims filed his third PCR motion in February 2016, arguing one of the same issues raised in his second PCR motion and ruled upon in Sims I and Sims II— that his sentence was illegal because he was ordered to pay restitution to the victim in Count I, even though that count was dismissed. The trial court dismissed Sims’s motion, finding that Sims’s PCR motion was a successive writ and without merit. Sims now appeals, asserting that the trial court erred in dismissing his PCR motion.

STANDARD OF REVIEW

¶ 5. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

DISCUSSION

¶ 6. Sims takes issue with the trial court’s dismissal of his motion as a successive writ. Sims argues that the trial court was required to address the merits of his PCR motion since he claimed his sentence was illegal, and errors affecting fundamental rights are excepted from procedural bars. The trial court found that Sims’s PCR motion was a successive writ, and Sims had not overcome the procedural bar, stating it could find “no basis for the truth of [his] claim.” The trial court also determined that Sims’s claim was without merit since the supreme court had already ruled on the same issue in Sims II,

¶ 7. As previously stated, this is Sims’s third PCR motion. And section 99-39-23(6) provides that any order dismissing or denying a petitioner’s motion for relief “is a final judgment ... [and] shall be a bar to a second or successive motion[.]” To circumvent this procedural bar, Sims must assert a cognizable claim involving the violation of a fundamental constitutional right. See Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss. 2010). The right to be free from an illegal sentence is a fundamental constitutional right. Bosarge v. State, 141 So.3d 24, 26 (¶ 7) (Miss. Ct. App. 2014). Sims’s third PCR motion raises the same issue of illegal sentence raised in his second PCR motion—the trial court found that Sims was attempting to “re-argue” the illegal-sentence issue, implying res judicata barred Sims’s claim. “[A]n issue that has been addressed in a final judgment with specific findings of facts and conclusions of law may not be raised again by a PCR movant.” Savinell v. State, 147 So.3d 862, 863 (¶ 7) (Miss. Ct. App. 2014) (quotation omitted). The Mississippi Supreme Court held in Smith v. State, 149 So.3d 1027, 1032 (¶ 11) (Miss. 2014), that “neither the common law nor our own constitutional law applies the doctrine of res judicata to constitutional claims.”

¶8. However, “merely asserting a constitutional-right violation is insufficient to overcome the procedural bars. There must at least appear to be some basis for the truth of the claim before the procedural bar will be waived.” Fluker v. State, 170 So.3d 471, 475 (¶ 11) (Miss. 2015). As stated, Sims claims his sentence was illegal because he was ordered to pay restitution to a victim whose count was dismissed.

¶ 9. In Sims I, this Court determined that Sims waived the restitution issue since he failed to object. Sims I, 134 So.3d at 322 (¶ 23). We also determined that the sentence was not illegal. Id. at 322-23 (¶¶ 24-25). In Sims II, the supreme court affirmed Sims I, finding that Sims waived any objection to the restitution order. Sims II, 134 So.3d at 304 (¶ 9). The supreme court further held that “the trial court was well within its discretion to impose restitution for the benefit of any victim ‘whom the court determines ... suffered pecuniary damages as a result of [Sims’s] criminal activities.’” Id. at 303 (¶ 7) (quoting Miss. Code Ann. § 99-37-1(d) (Rev. 2015)). Upon review, we find no reason to rule differently on Sims’s claim at this time. This issue is without merit.

¶ 10. Sims also argues that the trial court erred in finding that his PCR motion was frivolous. The trial court stated Sims’s third PCR motion was frivolous and warned Sims that he would be subject to sanctions if he filed a future frivolous claim. It is within a trial court’s discretion to determine whether a PCR motion is frivolous. See Pickle v. State, 64 So.3d 1009, 1012 (¶ 11) (Miss. Ct. App. 2010). Here, the trial court determined Sims’s third PCR motion was successive and could find “no basis for the truth of Sims’s claim.” We find no abuse of discretion here.

¶ 11. AFFIRMED.

IRVING AND GRIFFIS, P. JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . See Sims v. State, 93 So.3d 37 (Miss. Ct. App. 2011) (affirmed capital-murder conviction and sentence).


author: IRVING, P.J.,

text:
    TELECOM TOWER GROUP, LLC, Appellant/ Cross-Appellee v. HONEYSUCKLE CREEK HOLDINGS, INC., Appellee/ Cross-Appellant
    NO. 2015-CA-01285-COA
    Court of Appeals of Mississippi.
    09/12/2017

      ATTORNEYS FOR APPELLANT: GARY DALE THRASH, JOHN NEWTON SATCHER II, ADAM FRAZIER THRASH
    ATTORNEYS FOR APPELLEE: MICHAEL JAMES BENTLEY, MICHAEL LELAND COWAN
    BEFORE IRVING, P.J., ISHEE AND FAIR, JJ.
   IRVING, P.J.,

FOR THE COURT:

¶ 1. Telecom Tower Group LLC (Tele-com) appeals the judgment of the Hinds County Chancery Court, Second Judicial District, allowing Honeysuckle Creek Holdings Inc. (HCH) to garnish income that Telecom received from a number of cellular-tower leases. The chancellor allowed the garnishment as a means to satisfy the equitable lien that HCH obtained against a property lease that Telecom obtained through an assignment from Cross Development LLC (Cross). Finding no error, we affirm the chancellor’s judgment.

FACTS

¶ 2. In February 2006, HCH obtained a lessee’s interest in approximately .23 acres of land via an Option and Lease Agreement that it entered with Judy Washington. Per that agreement, Washington leased her property to HCH so it could build a cellular tower. The initial term was five years, and HCH agreed to pay Washington $450 per month.

¶3. In April 2006, HCH entered an agreement with Cross. HCH would assign its lessee’s interest in the land to Cross for $75,000 (minus Cross’s expenses for preparing the site for construction of the tower). HCH also had to fulfill a number of other conditions before Cross had to pay, including obtaining a signed lease from Cingular Wireless LLC in which Cingular agreed to install telecommunications equipment on the tower. In November 2006, HCH assigned its land lessee’s interest to Cross, which subsequently began making lease payments to Washington. In January 2007, Cross finished building the tower.

¶ 4. It is unclear when HCH entered a lease agreement with Cingular, but it is undisputed that one existed. It is also undisputed that Cingular unilaterally decided not to honor the tower-lease agreement. The tower went unused for eleven months. In late 2007, Cross entered a separate tower lease with Cingular, which installed its equipment on the tower. In other words, Cross was the tower lessor, and Cingular was the tower lessee. Cross refused to pay HCH for the assignment of the land lease because Cross incurred damages due to the eleven-month delay in obtaining a paying tower lease.

¶ 5. In January 2008, HCH sued Cross for breach of contract. HCH wanted Cross to perform under the assignment agreement by paying the full assignment price plus interest. Alternatively, HCH wanted to cancel the assignment. HCH later filed a lis pendens notice on the tower site. The chancellor subsequently entered a default judgment for HCH and set the property to be sold at a public auction. Telecom successfully sought an injunction to prevent the public sale. Telecom also intervened in HCH’s lawsuit against Cross. By then, Cross had assigned its land-lessee and tower-lessor interests to Telecom in exchange for a reduction of the debt that Cross owed Telecom’s parent company. The chancellor consolidated both lawsuits.

¶ 6. In May 2011, T8 Unison Site Management LLC offered to buy Washington’s lessor interest in the land. T8’s offer contemplated additional adjacent land, thus creating what Telecom describes as a superior interest in a larger tract of real property. In June 2011, Telecom received notice from T8 that Washington had assigned her land lessor’s rights, and Tele-com should make its land-lease payments to T8.

¶ 7. Telecom told T8 that it planned to exercise its right of first refusal that it had obtained in the “double-assigned” land-lease agreement. In July 2011, Telecom sued T8 and Washington. Telecom also joined HCH as an interested party. HCH filed an answer, but it did not make a claim against Washington’s interest or comment on Telecom’s claim against T8’s interest. HCH later successfully sought to be dismissed from Telecom’s lawsuit.

¶ 8. In October 2011, the parties went to trial on the consolidated lawsuits involving HCH and Cross/Telecom. On March • 7, 2012, the chancellor entered a judgment memorializing his bench opinion. The chancellor ordered Cross to pay HCH approximately $50,000 in damages and prejudgment interest. HCH also received an equitable lien against the land lease. Tele-com appealed, but this Court affirmed the chancellor’s judgment. Telecom Tower Grp. LLC v. Honeysuckle Creek Holdings Inc., 130 So.3d 135, 139 (¶ 17) (Miss. Ct. App. 2013) (“Telecom I”).

¶ 9. On December 31, 2013, Telecom and T8 executed a “Wireless Communication Easement and Assignment Agreement.” Through that agreement, Telecom" acquired T8’s interest as the land lessor. As a result, Telecom no longer needed to make land-lease payments. On February 6, 2014, the mandate issued in Telecom I. One week later, Telecom filed a “Memorandum of Termination of the [Land] Lease.” Two weeks after the mandate issued, Telecom sent HCH a letter stating that Telecom did not owe HCH any money because' of the equitable lien.

¶ 10. On September 29, 2014, HCH filed a “motion .to unwind fraudulent termination of the leasehold interest, to enforce equitable lien, and to establish a constructive trust.” HCH claimed Telecom acquired T8’s land-lessor interest to fraudulently terminate the lease that was subject to HCH’s equitable lien. HCH wanted the chancellor to “unwind” the land-lease termination. HCH also claimed that Telecom had received tower-lease payments for the tower on the land-lease property, and Telecom had fraudulently retained that tower-lease income. HCH reasoned that it should be allowed' to garnish Telecom’s tower-lease income to satisfy HCH’s judgment against Cross. HCH also wanted to garnish any money that Cross or Telecom paid for the land lessor’s interest. Finally, HCH sought a constructive trust.

¶ 11. On September 30, 2014, HCH filed a suggestion for writ of garnishment against Cross and Telecom. HCH also filed a writ of garnishment against garnishee AT & T Mobility LLC (formerly Cingular). Telecom moved to quash the writ of garnishment. Telecom argued that HCH’s judgment'against Cross was not a basis to garnish its income. HCH responded to Telecom’s motion to quash the writ of garnishment, and Telecom responded as an “intervenor defendant” to HCH’s “motion to unwind.”

¶ 12. On January 5, 2015, the chancellor conducted a hearing. The chancellor entered his order on February. 19, 2015. The chancellor held that HCH’s equitable lien should not be extinguished under the doctrine of merger, and “reaffirm[edj” HCH’s equitable lien. The chancellor later denied Telecom’s motion for reconsideration. On August 10, 2015, HCH filed a motion to release the money held in the chancery court’s registry. Telecom appeals. According to Telecom, the chancellor erred by issuing the writ of garnishment and denying the motion to quash it. HCH has filed a “conditional” cross-appeal. Because we affirm the chancellor’s judgment, there is no need to address HCH’s cross-appeal.

STANDARD OF REVIEW .

¶ 13. We “employ a limited standard of review in appeals from chancery courts.”. Telecom I, 130 So.3d at 138 (¶ 13). We will not disturb the chancellor’s factual findings “when supported by substantial evidence unless the [chancellor] abused [his] discretion, was manifestly wrong, clearly erroneous[,] or applied an erroneous legal standard.” Id. We review questions of law de novo. Id.

DISCUSSION

¶ 14.-Telecom devotes a substantial portion of its brief to the concept that garnishment was improper because HCH does not have an equitable lien on the property. However, this was clearly resolved by Telecom I. Even so, we reiterate:

Equitable liens ... are not estates or property in the thing itself, nor are they rights to recover the thing, that is they are not rights which may be the basis of a possessory action. They are merely a charge on property for the purpose of security, and are ancillary to and separate from the debt. They are neither debts nor rights of property, but merely remedies for a debt. Of extreme importance is the fact that such liens do not divest the debtor of title or possession.

Baldwin v. Baldwin, 788 So.2d 800, 806 (¶ 16) (Miss. Ct. App. 2001) (quoting Lindsey v. Lindsey, 612 So.2d 376, 380 (Miss. 1992)). A chancellor may “impress a[n equitable] lien as security for a judgment”. Id. A chancellor may also use an equitable lien to prevent unjust enrichment when it would be inequitable for someone to retain a property interest acquired at someone else’s expense. Neyland v. Neyland, 482 So.2d 228, 230 (Miss. 1986).

¶ 16. What is more, we agree with the reasoning of the Colorado Supreme Court, which has held that “[a]n equitable lien is good as against all persons who acquired an interest with knowledge or notice of [a] plaintiffs equitable lien .... ” Leyden v. Citicorp Indus. Bank, 782 P.2d 6, 12 (Colo. 1989). “ ‘Notice,’ in the context of an equitable lien[,] ... is notice of the facts giving rise, to the lien[,] ... and ‘a person has notice of facts giving rise to a [lien] if he knows the facts or should know them.’ Id. (quoting Restatement of Restitution § 174 (1937)). Here, Telecom did not just obtain Cross’s interest as the property lessor and tower lessee. In 2007, Cross’s former president, Doug Irving, resigned and began working as Telecom’s site-development manager. Telecom I, 130 So.3d at 137 (¶ 8). It was then, that Cross assigned its rights to Telecom. Id. And Irving previously testified that HCH would have normally been paid for the assignment at the time that it occurred. Id. Accordingly, Telecom at least had constructive notice of the facts and circumstances giving .rise to the equitable lien when it obtained its interest in the property.

¶ 16. Telecom argues that garnishment was improper because HCH did not have a money judgment against it. It is true that the chancellor only awarded HCH a money judgment against Cross, but the chancellor also awarded HCH an equitable lien against Telecom’s property interest in the land. And Telecom makes much of the chancellor’s ruling that the equitable lien applied to the land lease— not the tower lease. At that time, Telecom was the lessee in that arrangement. Narrowly interpreting the equitable lien as though it was solely enforceable against Telecom’s obligation to pay Washington would render the equitable lien meaningless in a’practical sense. “An equitable lien would be meaningless unless the lienholder had the power to enforce it.” Baldwin, 788 So.2d at 811 (¶ 35). The equitable lien could only be a remedy if it also extended to Telecom’s interest as the tower lessor, and that interest only existed by virtue of the rights that Cross assigned Telecom as the land lessee. It follows that HCH could satisfy its equitable lien by tracing Tele-com’s tower-lease income that flowed through Telecom’s land lease. See First Nat’l Bank of Jackson v. Huff, 441 So.2d 1317, 1322 (Miss. 1983) (“Through tracing, a person who in the first instance would be entitled to the restitution of money or other property is often permitted to assert his claim against a substituted asset—an asset [that] is traceable to or the product of such money or other property.”). And “the chancery court has access to broad equitable powers to enforce its judgments ,... ” Ladner v. Ladner, 843 So.2d 81, 82 (¶ 4) (Miss. Ct. App. 2003).

¶17. Finally, Telecom argues that HCH’s equitable lien was terminated through merger of title when Telecom acquired Washington’s rights as the land lessor from T8. “A merger generally takes place when two estates, either related in-tér se as derivative and original, or else being both derived out of the same original, and both being held in the same right, meet together in the same”- owner. City Sav. Bank & Tr. Co. of Vicksburg v. Cortright, 122 Miss. 75, 84, 84 So. 136, 138 (1920). But “[t]his rule .... will not be applied by[] a court of equity when the extinguishment of the lessor estate will work an -injustice to ... another person interested in its preservation.” Id. We agree that the application of merger, to the extent that it would extinguish HCH’s equitable lien, would result in an injustice under the circumstances. We also find no merit to Telecom’s claim that HCH could only garnish its tower-lease income solely from rent payments on the tower at issue. To the extent that the garnished income flowed from other tower leases, that income may be set off from the income on the precise tower at issue. Based on the foregoing, we affirm the chancellor’s judgment.

ATTORNEYS’ FEES

¶ 18. HCH has filed a motion for attorneys’ fees under Rule 38 of the Mississippi Rules of Appellate Procedure and the Litigation Accountability Act set forth in Mississippi Code Annotated section 11-55-5(1) (Rev. 2012). Rule 38 provides that this Court “shall award just damages and single or double costs to the appellee” in the- event that we “determine that an appeal is frivolous.” Similarly, “the Litigation Accountability Act permits a court to impose sanctions on an attorney who asserted any claim or defense[ ] that is without substantial justification, or was interposed for delay or harassment,] or if the attorney unnecessarily expanded the proceedings by other improper conduct.” In re Spencer, 985 So.2d 330, 338 (¶ 26) (Miss. 2008). Although we agree .-with the chancellor’s conclusion that Telecom’s positions -were meritless, we decline to find that Telecom’s behavior- in this appeal or the underlying litigation merits sanctions or an award of attorneys’ fees.

CONCLUSION

¶ 19. Accordingly, the judgment permitting garnishment against Telecom to' an equitable lien on Telecom’s property is affirmed. Because we affirm the chancery court’s judgment on direct appeal, there is no need to address HCH’s “conditional” cross-appeal.

¶ 20. AFFIRMED.

LEE, C.J., GRIFFIS, P.J., BARNES,-ISHEE, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR. CARLTON, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., NOT PARTICIPATING.

      . Calvin Bailey is the former co-owner of Cross. Per Calvin, Cross officially dissolved sometime during 2007 because it could not pay its debts.

      . This company later changed its name to T8 Ulysses Site Management LLC.

      . In the bench opinion, the chancellor held that Telecom knew or should have known from prior dealings that HCH had an interest in the land, and Telecom should have cured that before closing on the lease or the land.


author: FAIR, J.,

text:
    John CATHCART, Appellant v. Kenneth FAIRLY, Individually, and in his Official Capacity as Justice Court Judge, and Jessica Massey, Individually, and in her Official Capacity as Justice Court Clerk, Appellees
    NO. 2016-CA-00964-COA
    Court of Appeals of Mississippi.
    09/19/2017
    ATTORNEY FOR APPELLANT: GEORGE MCDOWELL YODER III
    ATTORNEY FOR APPELLEES: JASON EDWARD DARE
   FAIR, J.,

FOR THE COURT:

¶ 1. John Cathcart, the alleged victim of a crime, seeks to collaterally attack a decision of the Rankin County Justice Court finding no probable cause to issue misdemeanor arrest warrants for the alleged perpetrators. The circuit court dismissed Cathcart’s petitions for a writ of certiorari and mandamus. We find that Cathcart lacks standing to seek either remedy, and so we affirm.

DISCUSSION

¶2. Cathcart alleges that, when he attempted to attend a neighborhood association meeting, two individuals bullied him and physically forced him to leave. He filed affidavits in the Rankin County Justice Court alleging that the two had committed simple assault. The justice court held a probable cause hearing, where Cathcart testified, and the justice court apparently found that there was no probable cause to issue arrest warrants. The disposition on the court abstract, however, reads only “no authority per Judge Fairley.”

¶ 3. Cathcart was not pleased with this outcome. He proceeded to file what he styled a “Petition for writ of certiorari, and complaint for declaratory judgment, and petition for writ of mandamus” in the Rankin County Circuit Court. The petition presented various allegations of defects in the probable cause hearing, allegations of misconduct and bias by the justice court judge, and so on. It alleged that there was no final disposition of the justice court case, and it requested that the circuit court conduct a “trial de novo” on the question of probable cause and proceed with trying the cases as misdemeanors or binding them over to a grand jury to consider felony charges. In the alternative, the petition alleged that Cathcart was entitled to a writ of mandamus ordering the justice court judge and justice court clerk to “follow their respective oaths of office in this matter” and apparently to conduct another probable cause hearing.

¶ 4. The circuit court found that it “lacked jurisdiction” over the matter and dismissed the complaint without prejudice.

¶ 5. On appeal, both parties present various arguments concerning jurisdiction and procedure. But it is apparent to us that these issues are moot, as Cathcart lacks standing to contest the justice court’s disposition (or not) of the prosecution. Even though misdemeanor prosecutions may be initiated by the filing of an affidavit by a victim, it is axiomatic that the victim is not a party to the prosecution. The Mississippi Constitution, Article 6, Section 169, provides in relevant part that “all prosecutions shall be carried on in the name and by authority of the ‘State of Mississippi.’ ” The Mississippi Code also explicitly provides that “[a] victim ... does not have standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.” Miss. Code Ann. § 99-36-5(3) (Rev. 2015). The statute further provides that “[t]he rights of the victim do not include the authority to direct the prosecution of the case.” Miss. Code Ann. § 99-43-17 (Rev. 2015). Other courts that have considered this issue have unanimously concluded that victims lack standing to contest the disposition of criminal cases. See Cooper v. District Court, 133 P.3d 692, 696-711 (Alaska Ct. App. 2006) (“[Cjourts from other states are unanimous in holding that a crime victim does not have the right to participate as an independent party in a criminal case.”).

¶ 6. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: FAIR, J., FOR THE COURT:

text:
    James Kwame TOPPS a/k/a James Topps a/k/a James K. Topps, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-KA-01547-COA
    Court of Appeals of Mississippi.
    09/26/2017

      ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINSWORTH ■
   FAIR, J., FOR THE COURT:

¶ 1. James Topps was convicted of felony fleeing a law enforcement officer and aggravated assault on a law enforcement officer. He was sentenced to serve concurrent life sentences on each count as a habitual offender. Topps appeals, claiming that there was insufficient evidence to sustain each verdict and that each verdict was against the overwhelming weight of the evidence. Finding no error; we affirm.

FACTS

¶ 2. On August 16, 2015, Officer Devari-us Smith from the Winona Police Department responded to a domestic-disturbance call from Topps.- When Officer Smith arrived, he first talked to Topps’s wife, Gloria. Topps talked over Gloria as she was trying to tell Officer Smith her account of what happened. According to Officer Smith, he asked Topps to quiet down and Topps responded, “F***-you and the Wi-nona Police Department. If /all put your hands on me, Fm-going to kill y’all.-” '

¶ 3. Officer Smith determined there was a domestic disturbance, so he called Lieutenant Dan Herrod for backup. Topps left and walked down the street. When Lieutenant -Herrod arrived, he and Officer Smith proceeded to get in their vehicles to find Topps. They saw‘Topps get into his tan Ford Expedition; put the car in reverse, turn the car around, and speed away. Both officers testified that Topps drove the car directly through an area where over twenty kids wére playing basketball. At trial, ’ Topps denied that there were any kids around.

¶ 4. Topps sped past the officers and ran a stop sign. At that point, Officer Smith got into his patrol car, activated his blue lights and sirens, and pursued Topps. During the pursuit, Officer Smith saw Topps run several more stop signs. He followed closely behind Topps, reaching speeds -of almost eighty miles per hour. As they reached construction on. a bridge, Topps drove through a fence and into a pasture. Topps’s car eventually came to a stop, and Officer Smith exited the patrol car with his weapon drawn. Smith testified that, as he approached Topps, Topps put his vehicle in reverse and backed up within about five feet of him. He also testified that he had to jump to the left to avoid getting hit. Officer Smith fired three rounds at Topps’s back tire in an attempt to disable the vehicle. His attempt was unsuccessful, and Topps drove away. When they crossed the county line, Lieutenant Herrod ordered Smith to terminate the pursuit, since he was alone and unfamiliar with the area.

DISCUSSION

1. Sufficiency of the Evidence

¶5. When reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). Where the facts and inferences “point in favor of the defendant on any element of the offense with sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is to reverse and render. Id. However, if “reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Id.

¶ 6. Topps first challenges the sufficiency of evidence for Count I—felony fleeing a law enforcement officer. Mississippi Code Annotated section 97-9-72 (Rev. 2014) provides:

(1) The driver of a motor vehicle who is given a visible or audible signal by a law enforcement officer by hand, voice, emergency light or siren directing the driver to bring his motor vehicle to a stop when such signal is given by a law enforcement officer acting in the lawful performance of duty who has a reasonable suspicion to believe that the driver in question has committed a crime, and who willfully fails to obey such direction shall be guilty of a misdemeanor, and upon conviction shall be punished by a fine not to exceed One Thousand Dollars ($1,000.00) or imprisoned in the county jail for a term not to exceed six (6) months, or both.
(2) Any person who is guilty of violating subsection (1) of this section by operating a motor vehicle in such a manner as to indicate a reckless or willful disregard for the safety of persons or property, or who so operates a motor vehicle in a manner manifesting extreme indifference to the value of human life, shall be guilty of a felony[.]

¶ 7. “To secure a conviction for fleeing a law officer in a motor vehicle, the State must prove that the officer’s attempted traffic stop was legal; that is, that the attempted traffic stop was the product of the officer’s reasonable suspicion.” Bacon v. State, 950 So.2d 250, 254 (¶ 16) (Miss. Ct. App. 2007). “The State need not 'prove the defendant’s guilt of an underlying crime.” Id.

¶ 8. Topps argues that Officer Smith did not have reasonable suspicion that he committed a crime, rendering the evidence insufficient for Count I. Reasonable suspicion can arise several ways, including from an officer’s personal observations. Cooper v. State, 145 So.3d 1164, 1168 (¶ 11) (Miss. 2014) (citing Florida v. J.L., 529 U.S. 266, 270-71, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000)). Here, Officer Smith testified that, based on his observations, he had reasonable suspicion of a crime of domestic violence. Further, Officer Smith and Lieutenant Herrod testified that, before the pursuit began, they saw Topps run a stop sign, which is also a crime. See Miss. Code Ann. § 63-3-309 (Rev. 2013). After review, we find there was sufficient evidence to support Topps’s conviction of felony fleeing a law enforcement officer.

¶ 9. Topps next challenges the sufficiency of evidence for Count II—aggravated assault on a law enforcement officer. Mississippi Code Annotated section 97-3-7(2)(a) (Rev. 2014) provides:

A person is guilty of aggravated assault if he (i) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; [or] (ii) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm ....

¶ 10. “An attempt to commit a crime consists of three elements: (1) an intent to commit a particular crime, (2) a direct ineffectual act done toward its commission, and (3) the failure to consummate its commission.” Craig v. State, 201 So.3d 1108, 1111 (¶ 9) (Miss. Ct. App. 2016) (quoting Brooks v. State, 18 So.3d 833, 841 (¶ 33) (Miss. 2009)). Officer Smith testified that, during his investigation, Topps said, “F*** you and the Winona Police Department. If y’all put . your hands on me, I’m going to kill y’all.” He also testified that, as he approached Topps’s vehicle after the pursuit, Topps tried to hit him with his vehicle. Specifically, he said that Topps “put the vehicle in reverse and backed [it] up to approximately five feet away from me. I had to jump to the left[,] and I fired three rounds at his back left tire to try and disable the vehicle.” Viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found Topps guilty of aggravated assault on a law enforcement officer.

2. Weight of the Evidence

¶ 11. Topps next argues that both verdicts were against the overwhelming weight of the evidence. ‘When reviewing a denial of a motion for [a] new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush, 895 So.2d at 844 (¶ 18). The evidence is weighed in the light most favorable to the verdict. Id.

¶ 12. A new trial based on the weight of the evidence should be granted “only in exceptional cases in which the evidence preponderates heavily against the verdict.” Bush, 895 So.2d at 844 (¶ 18) (citation omitted). And because the trial judge had a firsthand view of the trial, “reversal is warranted only if the trial court abused its discretion in denying [the] motion for a new trial.” Waits v. State, 119 So.3d 1024, 1028 (¶ 13) (Miss. 2013).

¶ 13. Topps’s argument on Count I largely rehashes his prior arguments above. On Count II, Topps’s argument focuses on Officer Smith’s testimony. As already stated, Officer Smith testified that Topps threatened to kill him and that Topps tried to hit him with his car. In his testimony, Topps denied both of those allegations. “Conflicting testimony does not evince overwhelming evidence; where the verdict turns on the credibility of conflicting testimony and the credibility of the witnesses, it is the jury’s duty to resolve the conflict.” Brown v. State, 995 So.2d 698, 702 (¶ 13) (Miss. 2008) (citation and quotation omitted).

¶14. After review, we find neither verdict is against the overwhelming weight of the evidence,

¶ IS. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ.', BARNES, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.


author: BARNES, J.,

text:
    James HILLIARD a/k/a James Stephen Hillard, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CP-00913-COA
    Court of Appeals of Mississippi.
    09/26/2017
    ATTORNEY FOR APPELLANT: JAMES HILLIARD (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
    BEFORE LEE, C.J., BARNES AND CARLTON, JJ,
   BARNES, J.,

FOR THE COURT:

¶ 1. James Hilliard, appearing pro se, appeals the Lafayette County Circuit Court’s denial of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In February 2011, Hilliard was indicted for one count of conspiracy to sell cocaine, and one count of possession of cocaine with intent to sell. In July -2012, the State filed a motion to amend Hilli-ard’s indictment to include habitual-offender status due to prior felony convictions in California for possession of a controlled substance. The trial court granted the motion.

¶ 3. On October 8, 2012, Hilliard pleaded guilty to conspiracy to sell cocaine. As a result of the State’s recommendation and the plea agreement, the trial' court dismissed the count of possession of cocaine with intent to sell* At Hilliard’s plea hearing, the State explained that it had two motions to amend the indictment. One motion was to sentence Hilliard as a subsequent offender, which the State withdrew due to the plea agreement. The other ore tenus motion was to enhance his sentence as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). The State pointed to two prior convictions in California, both for felony possession of a controlled substance in-1998 and 2000, respectively. Hilliard did not. object to the enhancement, as it was part of the plea agreement. The trial court-found Hilliard qualified for habitual-offender status under section 99-19-81. He was sentenced to seventeen years for the conspiracy charge, with four years suspended and thirteen to serve as a habitual offender.

¶4. On May 3, 2016, Hilliard filed an untimely PCR motion, claiming that his enhanced sentence as a habitual .offender was improper because one of his felony convictions from California was subsequently redesignated as a misdemeanor. He claims his sentence as a habitual offender is now invalid and requires him .to be resentenced as a nonhabitual offender. The trial court summarily denied his PCR motion,-and Hilliard timely appealed.

ANALYSIS

115.' Hilliard seeks to be resentenced as a nonhabitual offender. He argues that his sentence as a habitual offender under his plea agreement should be set aside after a prior felony conviction from California was amended to a misdemeanor. This issue is a question of law, which is reviewed de novo. See Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss. 2009).

¶ 6. First, this PCR motion is untimely and thus procedurally barred. A PCR motion challenging a guilty plea must be filed within three years of .the-entry of the judgment of conviction.- Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Hilliard pleaded guilty in July 2012, and his PCR motion was filed in May 2016, nearly one year late. Further, no exception to the three-year statute of limitations applies.

¶ 7. Second, Hilliard’s argument for resentencing is without merit. Hilliard references a procedure under California statute whereby certain felony convictions may be reclassified and resentenced as misdemeanors. The pertinent statute, California Penal Code section 1170.18, became effective on November 5, 2014, approximately two years after Hilliard pleaded guilty to the instant charge. In February 2016, Hil-liard requested the Superior Court of Santa Clara County, California, to redesignate and resentence his prior felony in 1998 as a misdemeanor. In March 2016, the court granted the request, two months before Hilliard filed his PCR motion. Hilliard claims that due to the redesignation of one of his felonies, he is no longer eligible to be sentenced in Mississippi as a habitual offender under section 99-19-81. We disagree.

¶ 8. The United States Court of Appeals for the Ninth Circuit has carefully analyzed and rejected this argument. In United States v. Diaz, 838 F.3d 968 (9th Cir. 2016), the defendant received a life sentence mandated by federal statute for those defendants who have two or more felony’ drug offenses. The defendant successfully petitioned the Los Angeles County Superior Court that his two prior drug convictions be reclassified as misdemeanors under section 1170.18. The defendant then appealed his federal life sentence, arguing that his federal enhancement should be invalidated because of the post-conviction reclassification of his two prior drug-related felonies. The court of appeals affirmed, holding that section 1170.18 “does not change the historical fact that [the defendant] had violated section 841 after two or more prior convictions for felony drug offenses had become final.” Id. at 971, The court continued that, even if a state were to eradicate fully a conviction by dismissing or expunging it—a much more drastic change than merely reclassifying it as a misdemeanor—the defendant still would have committed the federal crime “after a prior state felony conviction” had become final. Thus, under the plain statutory language of section 841, enhancement would be appropriate. Id. at 974 (citation omitted).

¶ 9. We find the situation here analogous. Hilliard’s reclassification of one prior California felony to a misdemeanor does not change “the historical fact” that he was convicted of two felonies in the past, for purposes of section 99-19-81’s sentence enhancement. Further, under the plain statutory language of section 99-19-81, Hilliard, at the-time of his conviction and ■ sentence, had been “convicted twice previously of any felony ... and ... sentenced to separate terms of one (1) year or more.” At the plea hearing, Hilliard told the court that he understood and stipulated to two prior felony convictions in California, which qualified him for habitual-offender status. He stated that he understood that his plea agreement would result in his being sentenced as a habitual offender. The subsequent amendment to California’s sentencing scheme does not change Hilli-ard’s qualification for habitual-offender status. We find this argument without merit.

¶ 10. The judgment of the circuit court denying Hilliard’s PCR motion is affirmed.

¶ 11. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      . The trial court ordered Hilliard’s indictment amended to habitual status under Mississippi Code Annotated section 99-19-83 (Rev. 2015), mandating a life sentence for violent offenders,-in supposed response to the State's motion of July 12, 2012; however, this motion is not included in the record on appeal. Obviously, since Hilliard did not commit any violent felonies, he would not be eligible for this enhancement. However, at the plea hearing, the State moved to amend the indictment-under the proper section 99-19-81. Under this section, Hilliard should have been sentenced to the maximum prison term, twenty years. As he was only sentenced to seventeen years and four years suspended, Hilliard apparently received an illegally lenient sentence. This, of course, is no basis for him to complain. Chambliss v. State, 188 So.3d 1262, 1266 (¶ 17) (Miss. Ct. App. 2016) (citations omitted).

      . The statute reads in part:
      A person who, on November 5, 2014, was serving a sentence for a conviction, whether by trial dr plea, of a felony or felonies who would have been guilty of a -misdemeanor under the act that added this section ("this act”) had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing ....
      Cal. Penal Code § 1170.18(a).

      . Section 99-19-81 reads:
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall siich person be eligible for parole or probation.

      . See 21 U.S.C. § 841(b)(1)(A) (2012).