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McCarty v. State

December 08, 1998

TOBY R. MCCARTY A/K/A TOBY RAY MCCARTY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



Before Thomas, P.j., Diaz, And Southwick, JJ.

The opinion of the court was delivered by: Thomas, P.j.

DATE OF JUDGMENT: November 15, 1996

TRIAL JUDGE: HON. JOHN B. TONEY

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: POSSESSION OF COCAINE (HABITUAL OFFENDER): SENTENCED TO SERVE A TERM OF 3 YRS IN THE CUSTODY OF THE MDOC; SHALL NOT BE ELIGIBLE FOR PROBATION PAROLE, OR ANY OTHER FORM OF EARLY RELEASE; PAY ALL COURT COSTS, FEES & ASSESSMENTS

DISPOSITION: REVERSED AND RENDERED

¶1. Toby McCarty was convicted of possession of cocaine and sentenced to three years imprisonment as an habitual offender. On appeal, McCarty raises several assignments of error, but our Disposition of the case is based on consideration of the following issue:

THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT OF POSSESSION OF COCAINE BECAUSE THE STATE FAILED TO SHOW ADDITIONAL INCRIMINATING CIRCUMSTANCES OF GUILT.

¶2. Because we find that there was insufficient evidence of McCarty's guilt, we reverse and render the conviction and sentence.

FACTS

¶3. At 3:25 a.m. on April 15, 1996, McCarty was stopped for speeding on Highway 25 by two deputies of the Rankin County Sheriff's Department. After McCarty got out of the car, Deputy Scotty Thompson saw a crushed Dr. Pepper can partway under the driver's seat of the white Corvette. Deputy Thompson testified at the suppression hearing that he could see residue on the can and tiny pin holes in the can from a distance of three feet using his flashlight. At trial, Thompson testified that based on his training and experience the can was possibly used to smoke a controlled substance.

¶4. Deputy Thompson took the can from under the seat and asked McCarty if it was his. McCarty told the deputy that it could have been left in the car by two strippers from Legends Cabaret who had been the car earlier that evening.

ΒΆ5. The deputy walked around to the other side of the car, shined his light inside and saw a large rock of crack cocaine on the passenger side of the floorboard. When asked about the rock, McCarty again told the deputy ...


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