Before Bridges, C.j., Payne, And Southwick, JJ.
The opinion of the court was delivered by: Bridges, C.j.
DATE OF JUDGMENT: 10/22/1996
TRIAL JUDGE: HON. L. BRELAND HILBURN JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA WITH INTENT TO DISTRIBUTE; SENTENCED TO 20 YEARS IN MDOC WITH 10 SUSPENDED
DISPOSITION: AFFIRMED - 2/9/99
MOTION FOR REHEARING FILED:
¶1. Joe Fuente, Jr. was convicted of the crime of possession of more than one kilogram of marijuana with the intent to distribute by the Circuit Court of Hinds County and sentenced to twenty years in the custody of the Mississippi Department of Corrections with ten years suspended. On appeal, he asserts (1) there was insufficient evidence to establish he knowingly or intentionally possessed the marijuana, as required under Miss. Code Ann. § 41-29-139(a)(1) (Supp. 1998); and (2) the trial court erred in allowing testimony and evidence of criminal acts not alleged in the indictment.
¶2. On October 6, 1993, at 10:00 p.m., Deputy Richard Thomas, an officer assigned with the canine division and criminal patrol of the Hinds County Sheriff's Department, was on routine patrol on Interstate 20 eastbound, when he observed a white Horizon traveling at an excessive speed passing another car. Deputy Thomas pulled in behind the Horizon and followed the vehicle, clocking the car traveling sixty-five miles an hour in a fifty-five mile an hour zone. The officer turned on his blue light, and the driver of the car, Charles Lee Moore, Jr., immediately pulled over to the shoulder of the interstate.
¶3. Upon approaching the vehicle, Deputy Thomas requested Moore's driver's license and asked if Moore owned the car. Moore identified the passenger, Joe Fuente, Jr., as the owner. Deputy Thomas confirmed Fuente was the owner and asked to see the insurance paperwork on the car. As Fuente opened the glove box to retrieve the requested information, Deputy Thomas saw two boxes of ammunition and asked Fuente if there were any guns in the car. Fuente answered affirmatively. Deputy Thomas requested and received permission to get the guns out of the vehicle.
¶4. While Moore and Fuente waited at the front of the patrol car, Deputy Thomas entered Fuente's car from the passenger side, leaned down and reached under the seat to get the guns where Fuente had indicated they were located. As he did so, Deputy Thomas detected the strong smell of marijuana.
¶5. Deputy Thomas found a .0380 caliber pistol and a nine millimeter pistol under the seat. After unloading one firearm, he called in the serial numbers on the handguns and placed both in his patrol car. The officer then took his canine, Brigg, out of the patrol car and led him around Fuente's vehicle. Brigg, an aggressive alert dog, scratched on the rear doors of the car indicating the dog had detected a controlled substance. Deputy Thomas testified when the dog alerted Fuente and Moore looked at each other but said nothing. Deputy Thomas returned the dog to the patrol unit.
¶6. Fuente refused the officer's request to search the car. When Deputy Thomas asked if Fuente had anything to hide inside the car, Fuente responded, "You are just not looking inside my car." The officer noted Moore and Fuente were becoming increasingly fidgety and belligerent and called for backup.
¶7. When the backup officers arrived, Deputy Thomas searched the vehicle and uncovered five bundles of marijuana secreted inside the rear door panels. Upon discovering the first bundle, Deputy Thomas showed it to Moore and Fuente. The two men dropped their heads and looked at each other. At no time did Fuente indicate the presence of the marijuana in the door panels of the car was unknown to him. More than $400 was recovered from Fuente's person. Fuente refused to sign a receipt for the money recovered.
¶8. Fuente was indicted for possession of more than one kilogram of marijuana with intent to distribute in violation of Miss. Code Ann. § 41-29-139 (Supp. 1998). At trial, the State put on evidence of marijuana and elicited testimony of all of the aforementioned events concerning the stop, the search of the vehicle, and the arrest. Patricia Barnes, a forensic scientist specializing in drug analysis employed with the Jackson Police Department, testified the seized bundles contained about two kilograms (approximately five pounds) of raw marijuana. Deputy Thomas testified that based on his experience the recovered marijuana was more than one person would be able to consume and the packaging was consistent with that used by persons transporting large amounts of marijuana. He estimated the street value of the marijuana was between $1,500 to $2,500 a pound.
¶9. At the end of the State's case, Fuente moved for a dismissal of the charge asserting the State had failed to prove a prima facie case against him of possession of marijuana with intent to distribute because there was no direct testimony that Fuente knew the marijuana was hidden in his automobile. The trial court denied the motion.
¶10. Taking the stand, Fuente testified Moore hired him for $200 plus expenses to drive Moore from Kerrville, Texas to Mississippi. Fuente loaned his car to Moore to load personal items into it the day before they were to leave. Fuente testified he had no knowledge of the marijuana being in his vehicle. Two witnesses, Larry Creech and Valerie Bario, testified they saw Moore conceal the marijuana inside the door panels of Fuente's car outside the presence of Fuente the afternoon before Fuente and Moore traveled to Mississippi. Neither told Fuente what Moore had done.
¶11. At the close of the evidence, Fuente again moved for a dismissal of the charge which was denied by the trial court.
¶12. After deliberations, the jury returned a verdict of guilty as charged. Fuente was sentenced to twenty years in the custody of the Mississippi Department of Corrections with ten years suspended. Thereafter, Fuente moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial which was overruled. Aggrieved, Fuente appealed alleging (1) the evidence was insufficient to prove he knowingly possessed marijuana, and (2) the trial court erred in allowing testimony of the partially smoked cigarette and rolling papers found in the vehicle.
ARGUMENT AND DISCUSSION OF LAW
I. WAS THE EVIDENCE SUFFICIENT TO SUPPORT FUENTE'S CONVICTION?
¶13. Fuente filed a motion in the trial court for a judgment notwithstanding the verdict or, in the alternative, for a new trial, attacking both the sufficiency and the weight of the evidence supporting his conviction. The trial court denied the motion. On appeal, the only issue Fuente raises is that the evidence was insufficient to support his conviction.
¶14. The standard of review in reviewing issues of sufficiency of the evidence was set out by the Mississippi Supreme Court in McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987):
"When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence, our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the evidence--not just that supporting the case for the prosecution--in the light most consistent with the verdict. We give prosecution the benefit of all favorable inferences that may reasonably be drawn from the evidence. If the facts and inferences so considered point in favor of the accused with sufficient force that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and discharge are required. On the other hand, if there is in the record substantial evidence of such quality and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different Conclusions, the verdict of guilty is thus placed beyond our authority to disturb."
¶15. Fuente was convicted under Miss. Code Ann. § 41-29-139 (Supp. 1998), which declares "it is unlawful for any person knowingly or intentionally . . . [t]o sell, barter, transfer, manufacture, distribute, dispense or possess with intent to sell, barter, transfer, manufacture, distribute or dispense, a controlled substance; . . . ." Fuente alleges the State failed to prove Fuente knowingly possessed the marijuana found secreted within the door panels of his automobile.
¶16. It is undisputed that Fuente was the owner of the vehicle in which the marijuana was discovered. As the owner of the vehicle where the contraband was found, Fuente is presumed to have constructive possession of the marijuana.
¶17. "Constructive possession allows the prosecution to establish possession of contraband when evidence of actual possession is absent." Robertson v. ...