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Sherman v. State

Supreme Court of Mississippi

March 20, 2014

ROBERT D. SHERMAN a/k/a ROBERT SHERMAN
v.
STATE OF MISSISSIPPI

COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/03/2012. TRIAL JUDGE: HON. ISADORE W. PATRICK, JR.

FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, MOLLIE MARIE MCMILLIN, GEORGE T. HOLMES.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ELLIOTT GEORGE FLAGGS, JOHN R. HENRY, JR.

BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ. WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ., CONCUR. DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CHANDLER AND KING, JJ.

OPINION

Page 862

NATURE OF THE CASE: CRIMINAL - FELONY

KITCHENS, JUSTICE.:

¶1. Robert Sherman was indicted for willfully, unlawfully, and feloniously possessing pseudoephedrine and sodium hydroxide, two ingredients used in the manufacture of methamphetamine, with the unlawful intent to manufacture a controlled substance.[1] He was tried and convicted in the Warren County Circuit Court, then sentenced to twelve years in the custody of the Mississippi Department of Corrections, with eight years to serve and four years suspended, plus five years of post-release supervision. Sherman appeals, arguing that his conviction (1) was based upon insufficient evidence, or (2) was against the overwhelming weight of the evidence. We affirm Sherman's conviction and sentence.

FACTS

¶2. The following facts are gleaned from the testimony of the several witnesses who

Page 863

testified at trial. On October 9, 2009, Dwayne Smith, a narcotics investigator for the Vicksburg Police Department, received a complaint regarding possible methamphetamine production at 4407 Halls Ferry Road in Vicksburg, Mississippi. He called Agent Norman Harris of the Mississippi Bureau of Narcotics to accompany him to the site of the alleged criminal activity. Smith testified that it was getting dark as the officers arrived around 7:30 or 8:00 p.m. Smith and Harris knocked on the door of the trailer at 4407 Halls Ferry Road, and the knock was answered by Sherman's girlfriend. The officers obtained her permission to search the trailer, but the search yielded nothing.

¶3. Upon leaving the trailer, the officers saw two men, Sherman and Calvin Brewer, walking out of the woods about fifteen feet behind Sherman's trailer. Sherman was carrying a fishing pole and tackle box, and Brewer was holding a machete. The officers instructed Brewer to drop the machete, which he did. They patted him down, finding a marihuana grinder on his person. Brewer was placed in police custody.

¶4. The officers began investigating the area around Sherman's trailer with the aid of a flashlight. Officer Smith found a bottle of liquid drain cleaner [2] near someone else's trailer in the general vicinity of the area where Sherman and Brewer had walked out of the woods. He acknowledged under cross-examination that the cleaner was not next to Sherman's trailer. The State's Exhibit 12 showed that the cleaner was found two trailers away from Sherman's, near the path on which the two men had walked out of the woods. The drain cleaner formed the basis for Sherman's sodium hydroxide, precursor possession charge. Officer Smith testified that drain cleaner can be used to manufacture crystal methamphetamine. According to Smith, when Harris showed the bottle of drain cleaner to Sherman, Sherman dropped his head and began to cooperate with the officers. Sherman agreed to show the officers where the meth lab was located and led them to a " cook site" near the edge of the woods. Smith testified that the cook site was " in some bushes, under some mud, probably about two feet buried in mud." Smith said that the visibility was poor and the officers would not have been able to find the cook site without Sherman's assistance.

¶5. The " cook" itself was a plastic, two-liter Mountain Dew bottle, which Smith testified was used to make methamphetamine by means of the " shake-and-bake" method. He stated that the chemicals found in the bottle " had just been cooked" when they found it. As Sherman and the officers walked back from the cook site, toward Sherman's trailer, the officers noticed a black bag approximately fifteen to twenty feet away. Inside the bag was a box of pseudoephedrine, a known precursor of methamphetamine. Sherman was placed under arrest. Harris testified that another man on a motorcycle emerged from the woods several hundred yards away from the place at which the officers were interviewing Sherman. The man was never identified.

¶6. Brewer testified for the State in exchange for a deal which resulted in his being placed in the drug court program. Brewer testified that, on the day the two were arrested, he had been doing some electrical work for Sherman. The two men had made an arrangement by which

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Sherman would pay Brewer for working with him with methamphetamine. According to Brewer, he was to act as a decoy by fishing in the lake near the trailer park while Sherman and a man named James Hawkins [3] cooked the meth. He also testified that Sherman had possession of the black bag, in which the police later found pseudoephedrine, approximately thirty minutes before they were arrested. Brewer said Sherman had ditched the bag as he and Sherman were walking back to the trailer park, and Sherman was the last person Brewer had seen with the bag.

¶7. Sherman testified in his own defense. His version of events differs dramatically from the officers' testimony and Brewer's. Sherman denied leaving the black bag containing precursors in the woods, he denied possessing the bottle of drain cleaner, and he denied performing a " one-pot cook" at the cook site in question. According to Sherman, on the day he was arrested, he had been fishing in the pond behind the trailer park. He did not catch any fish, he said. On the way out of the woods, he ran into Brewer just before the two were arrested. Sherman denied having led the officers to the cook site, saying instead that he had been showing them where he had been fishing that day and, on the way, the officers had discovered the cook site and the black bag.

¶8. The jury found Sherman guilty, and he was convicted of having been in possession of precursor substances in violation of Mississippi Code Section 41-29-313(1)(a)(ii). Sherman filed a motion for judgment notwithstanding the verdict (JNOV), or, in the alternative, for a new trial. The trial court denied the motion, finding that sufficient evidence was presented to the jury to convict Sherman, and that the verdict was not against the overwhelming weight of the evidence. Sherman was sentenced to twelve years in the custody of the Mississippi Department of Corrections, with eight years to serve and four years suspended, and five years of post-release supervision. Sherman appeals, arguing that his motion for JNOV or new trial should have been granted, claiming that there was insufficient evidence at trial to support a conviction, or, in the alternative, his conviction was against the overwhelming weight of the evidence.

ANALYSIS

1. Whether the trial court erred in denying Sherman's motion for JNOV because the evidence presented against him was insufficient to support a conviction.

¶9. When reviewing the sufficiency of the evidence against an accused in the face of a motion for JNOV, " 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). If " reasonable fair-minded men 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. (quotation omitted).

¶10. Section 41-29-313(1)(a)(ii), the code section Sherman was charged with violating, provides:

(1)(a) Except as authorized in this section, it is unlawful for any person to knowingly or intentionally:
. . .
(ii) Purchase, possess, transfer, manufacture, attempt to manufacture or distribute any two ...

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