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HERNANDO BARNETTE v. STATE OF MISSISSIPPI

OCTOBER 30, 1985

HERNANDO BARNETTE
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, C.J., ROBERTSON AND SULLIVAN, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal arises out of events occurring on the evening of October 28, 1981, in a beer joint known as the Union Club in Laurel, Mississippi. At that time and place, Reginald Gage, an undercover agent for the Mississippi Bureau of Narcotics, purchased from Hernando Barnette, Defendant below and Appellant here, four dosage units of dilaudids for the sum of $100.00. On October 29, 1982, Barnette was formally charged with the sale of hydromorphone *fn1 in an indictment returned by the Jones County Grand Jury. The indictment charged that Barnette thus violated the Mississippi Controlled Substances Law, Miss. Code Ann. 41-29-139 (a)(1) and 41-29-115 (a)(1)(xi) (Supp. 1984). Barnette entered a plea of not guilty to the charges.

 On April 18, 1983, the case was called for trial in the Circuit Court for the First Judicial District of Jones County, Mississippi. That afternoon the jury returned a verdict finding Barnette guilty as charged. Hydromorphone being a Schedule II controlled substance, the Circuit Court sentenced Barnette to the custody of the Mississippi Department of Corrections for a period of twelve (12) years and imposed a fine of $5,000.00. Miss. Code Ann. 41-29-115 (a)(1)(xi) and 41-29-139 (b)(1) (Supp. 1984).

 From this conviction and sentence, Barnette appeals. We affirm.

 II.

 Barnette makes no challenge to the adequacy of the evidence to support the verdict of guilty returned by the jury. Suffice it to say that there is an abundance of evidence in this record which places the jury's verdict that Barnette sold an Schedule II illegal controlled substance well beyond our authority to disturb. Williams v. State, 463 So.2d 1064, 1067-68 (Miss. 1985).

 Barnette does, however, argue that his conviction and sentence should be vacated on grounds that the State should be held precluded from maintaining this prosecution by reason of

 a prior prosecution of Barnette on a separate charge of sale of a controlled substance. The record reflects that, in a cause independent of this one, Barnette has been prosecuted for the sale of cocaine on October 21, 1981--one week prior to the illegal sale with which he is charged in the case at bar. That record *fn2 reflects that Barnette was indicted for the sale of cocaine on October 29, 1982, (the same day as in the case at bar), and that he was tried and convicted on the cocaine charge on April 15, 1983 (three days prior to the trial in the case at bar).

 Barnette's theory, if we appreciate it accurately, is that a state undercover agent induced him to commit the crime of sale of cocaine on October 21, 1981, and that it is fundamentally unfair to allow the State to "manufacture" a second crime by inducing Barnette to sell the same agent dilaudids one week later. This is so, we are told, notwithstanding that the two charges occurred on separate occasions a week apart.

 We have repeatedly recognized that separate acts, though committed close in point of time to one another, may constitute separate criminal offenses. Lee v. State, 469 So.2d 1225, 1228-29 (Miss. 1985); Dixon v. State, 465 So.2d 1092, 1096-97 (Miss. 1985); Maycock v. Reed, 328 So.2d 349, 352 (Miss. 1976). The separate convictions approved in those cases were far more closely related than in the case at bar.

 The double jeopardy clauses of the federal and state constitutions proscribe multiple prosecutions for the same offense. Sanders v. State, 429 So.2d 245 (Miss. 1983); Laughter v. State, 241 So.2d 641 (Miss. 1970). They present no legal impediment to the State's mounting two separate prosecutions for two separate violations of our criminal laws, even where the two offenses arise out of a common nucleus of operative fact. Ohio v. Johnson, ___ U.S. ___, ___, 104 S. Ct. 2536, 2540-41, 81 L.Ed.2d 425, 433 (1984); Lee v. State, 469 So.2d at 1229; Pharr v. State, 465 So.2d 294, 299-301 (Miss. 1984). This approach certainly applies to separate charges of sales of illegal controlled substances factually arising from incidents occurring a week apart from each other. This is so notwithstanding that the same undercover agent induced the sale at the same general location using the same modus operandi. The assignment of error is rejected.

 III.

 Barnette next assigns as error the refusal of the trial judge to grant a mistrial on grounds that the prosecuting attorney impermissibly ...


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