January 20, 2015
VERENZO CARTRELL GREEN A/K/A VERENZO GREEN, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
OF JUDGMENT: 03/07/2013.
FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT. TRIAL JUDGE:
HON. FORREST A. JOHNSON JR. TRIAL COURT DISPOSITION:
CONVICTED OF COUNTS I, II, AND III, POSSESSION OF A WEAPON BY
A CONVICTED FELON, AND SENTENCED AS A HABITUAL OFFENDER TO
TEN YEARS FOR EACH COUNT, TO RUN CONSECUTIVELY; AND COUNT IV,
TRAFFICKING STOLEN FIREARMS, AND SENTENCED TO FIFTEEN YEARS,
TO RUN CONCURRENTLY TO THE SENTENCES IN COUNTS I, II, AND
III, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT ELIGIBILITY.
APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: ERIN
APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BARBARA
IRVING, P.J., FAIR AND JAMES, JJ. LEE, C.J., IRVING AND
GRIFFIS, P.JJ., ROBERTS, CARLTON, MAXWELLAND JAMES, JJ.,
CONCUR. BARNES, J., DISSENTS WITH SEPARATE OPINION, JOINED BY
Verenzo Green was convicted of three counts of possession of
a weapon by a convicted felon and one count of trafficking
stolen firearms. He was sentenced as a habitual offender to
ten years for each count of felon of possession of a firearm
in the custody of the Mississippi Department of Corrections,
to run consecutively; he also received a concurrent sentence
of fifteen years for trafficking stolen firearms. On the day
of trial, Green filed a motion to suppress, arguing the
police discovered the firearms through an illegal search of
his vehicle. The trial court denied the motion. Green claims
on appeal that (1) the trial court erred in denying his
motion to suppress, and (2) his conviction for trafficking
stolen firearms was not supported by sufficient evidence.
Finding no error, we affirm.
On February 28, 2012, Agents George Pirkey and David
Washington of the Adams County Sheriff's Department
spotted Green outside of a grocery store. There was an
outstanding warrant for Green's arrest for a burglary
committed a month before. When the agents first saw him,
Green and several other men were standing by a vehicle with
its trunk open. As soon as Green noticed the agents, he
closed the trunk and walked towards the entrance to the
store. But instead of walking into the store, he threw a set
car keys down and ran into some nearby woods. Agent Pirkey
attempted to chase Green on foot, while Agent Washington took
the police car, but they were unable to catch him. The agents
returned to the store a few minutes after the chase began and
spoke with the store manager. After Agent Pirkey explained
the situation to the manager, she requested that the car be
towed. The police called a tow truck and ran the plate of the
vehicle, which identified Green as the owner. Additionally,
the police conducted an inventory search of the vehicle.
During the inventory search, Agent Pirkey used the car keys
left by Green to open the trunk of the vehicle. Agent Pirkey
discovered three guns on top of two large speakers; the guns
included a Colt .38 special revolver, a .22 caliber Ruger
revolver, and a .22 caliber Heritage Rough Rider. Green was
indicted on three counts of possession of a weapon and one
count of trafficking a firearm. He was found guilty at trial.
Additional facts pertaining to the trial will be discussed
below, as necessary.
Suppression of Evidence
The court denied Green's motion to suppress introduction
and testimony about the handguns found in the trunk, finding
that (1) Green abandoned his vehicle on private property, and
(2) the police were reasonable in conducting an inventory
search before impounding the vehicle. " When reviewing a
trial court's ruling on a motion to suppress, we must
assess whether substantial credible evidence supports the
trial court's finding considering the totality of the
circumstances." Shaw v. State, 938 So.2d 853,
859 (¶ 15) (Miss. Ct.App. 2005) (citing Price v.
State, 752 So.2d 1070, 1073 (¶ 9) (Miss. Ct.App.
1999)). " The standard of review for the admission or
suppression of evidence is abuse of discretion."
Hughes v. State, 90 So.3d 613, 631 (¶ 53)
The Fourth Amendment protects " the right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures." U.S. Const.
amend. IV. But a person has no standing to complain of a
search or seizure of property that he has abandoned.
United States v. Quiroz-Hernandez, 48 F.3d 858, 864
(5th Cir. 1995) (citation omitted). The abandonment question
is one of intent, primarily " whether the person
prejudiced by the search had voluntarily discarded, left
behind, or otherwise relinquished his interest in the
property so that he could no longer retain a reasonable
expectation of privacy with regard to it at the time of the
search." United States v. Williams, 569 F.2d
823, 826 (5th Cir. 1978) (citation omitted). Further, "
intent may be inferred from words spoken, acts done, and
other objective facts . . . . All relevant circumstances
existing at the time of the alleged abandonment should be
considered." United States v. Colbert, 474 F.2d
174, 176 (5th Cir. 1973) (en banc).
In United States v. Edwards 441 F.2d 749, 751 (5th
Cir. 1971), the Fifth Circuit held that a defendant abandoned
his vehicle, and therefore had no Fourth Amendment protection
in regard to the vehicle, when he left his keys in the
ignition and fled on foot from the police. The defendant,
Edwards, jumped out of his car during a high-speed chase.
Id. at 750. The police chased Edwards but were
unsuccessful in catching him. Id. Afterwards, the
police searched the trunk of his car and discovered untaxed
whiskey. Id. The Fifth Circuit ruled Edwards's
actions constituted abandonment. Id.; cf. States
v. Smith, 648 F.3d 654, 659 (8th Cir. 2011) (finding
that the defendant abandoned the Cadillac in the Taco Bell
lane when he fled on foot from the police); State v.
Branam, 2006 MT 300, 334 Mont. 457, 463, 148 P.3d 635
(Mont. 2006) (finding that the defendant's fleeing from
the police and leaving an Escalade and its contents on the
street constituted abandonment sufficient to justify having
the car towed for impoundment).
Similarly, in United States v. Wolfe, 983 F.2d 232
(5th Cir. 1993) (unpublished), the Fifth Circuit held the
defendant abandoned his rental car. We acknowledge that
Wolfe was not selected for publication; the court
determined that the case had no precedential value.
Id. at *4. But we will address the facts in
Wolfe because they are synonymous with the facts in
this case. In Wolfe, the officers saw five men
gathered around an open trunk in a parking lot known for drug
trafficking. Id. at *1. The police asked the men who
owned the vehicle, to which the men replied they did not
know. Id. After noticing a rental-car sticker on the
car, one of the officers called the rental company and
discovered the identity of the renters, who were two of the
five men questioned by the police. Id. The police
then searched the vehicle and recovered a .357 magnum pistol,
which had been stolen in a burglary two weeks before.
Id. Wolfe was later indicted and found guilty at
trial. Id. at *2. On appeal, Wolfe challenged the
police's search of the rental car. Id. The court
stated that " where a driver walks away from a rental
car, disclaims any knowledge of it to the police, and leaves
the keys on the dashboard with the windows rolled down, . . .
he has abandoned that car for Fourth Amendment
purposes." Id. at *4. The court found that
Wolfe lacked standing because he abandoned the car; the court
further noted that when Wolfe abandoned the car, he abandoned
the contents of the car as well. Id.
We find the facts of this case akin to the circumstances in
Edwards and Wolfe. Here, the imperative
issue is whether Green's actions and the surrounding
facts indicate that he abandoned the car. The police had a
warrant for Green's arrest for another crime. When Green
saw the police officers, he eased away from the vehicle,
threw the keys to the ground, and ran towards some nearby
woods. Based on Green's actions and the relevant
circumstances, we agree with the trial judge's
determination that Green abandoned the vehicle. As a result,
Green had no Fourth Amendment protection in regard to the
Even if Green had not abandoned the car and thus had standing
to challenge the search, the search was reasonable as an
inventory search. We acknowledge that " [w]arrantless
searches and seizures are 'per se unreasonable unless
they fall within a few narrowly defined
exceptions.'" United States v. Kelly, 302
F.3d 291, 293 (5th Cir. 2002). One such exception is when law
enforcement performs an inventory search as part of a bona
fide " routine administrative caretaking function."
United States v. Skillern, 947 F.2d 1268, 1275 (5th
Cir. 1991); see also South Dakota v.
Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d
An inventory search must not be a " ruse for general
rummaging" to find incriminating evidence. Florida
v. Wells, 495 U.S. 1, 4, 110 S.Ct. 1632, 109 L.Ed.2d 1
(1990); O'Connell v. State, 933 So.2d 306, 309
(¶ 9) (Miss. Ct.App. 2005). " In order to prevent
inventory searches from concealing such unguided rummaging,
[the] Supreme Court has dictated that a single familiar
standard is essential to guide police officers, who have only
limited time and expertise to reflect on and balance the
social and individual interests involved
in the specific circumstances they confront." United
States v. McKinnon, 681 F.3d 203, 209 (5th Cir. 2012)
(quotation omitted). " Thus, an inventory search of a
seized vehicle is reasonable and not violative of the Fourth
Amendment if it is conducted pursuant to standardized
regulations and procedures that are consistent with (1)
protecting the property of the vehicle's owner, (2)
protecting the police against claims or disputes over lost or
stolen property, and (3) protecting the police from
danger." United States v. Lage, 183 F.3d 374,
380 (5th Cir. 1999) (citing United States v. Hope,
102 F.3d 114, 116 (5th Cir. 1996)); see also
Bolden v. State, 767 So.2d 315, 317 (¶ 9)
(Miss. Ct.App. 2000). And the specified standardized
regulations and procedures must " sufficiently limit the
discretion of law enforcement officers to prevent inventory
searches from becoming evidentiary searches." United
States v. Andrews, 22 F.3d 1328, 1336 (5th Cir. 1994)
" There is no requirement that the prosecution submit
evidence of written procedures for inventory searches;
testimony regarding reliance on standardized procedures is
sufficient, as is an officer's unrebutted testimony that
he acted in accordance with standard inventory
procedures." Lage, 183 F.3d at 380. The
officers' exercise of discretion does not violate the
Fourth Amendment " so long as that discretion is
exercised according to standard criteria and on the basis of
something other than suspicion of evidence of criminal
activity." Colorado v. Bertine, 479 U.S. 367,
375, 107 S.Ct. 738, 93 L.Ed.2d 739 (1987). " If there is
no showing of bad faith or for the sole purpose of
investigation, evidence discovered during an inventory search
is admissible." United States v. Gallo, 927
F.2d 815, 819 (5th Cir. 1991).
After careful review, we find that the inventory search of
Green's vehicle did not violate his Fourth Amendment
rights. Agent Pirkey and Agent Washington performed the
inventory search of Green's vehicle while waiting for the
tow truck to arrive. Agent Pirkey testified that it is the
Adams County Sheriff's Department's standard
procedure to inventory the contents of a vehicle that is
about to be impounded; he further stated that this policy is
used to record any damage to the vehicle and release officers
from any liability on subsequent claims of damage or theft.
See Lattimore v. State, 37 So.3d 678, 684
(Miss. Ct.App. 2010) (finding it permissible for officers to
conduct an inventory search of a vehicle when the
circumstances require it to be impounded). Further, the
record lacks any evidence of bad faith on the part of the
officers in conducting the search. Accordingly, this issue
has no merit.
Sufficiency of Evidence
A challenge of sufficiency of the evidence can be raised in a
motion for a directed verdict, made at the end of the
prosecution's case or at the close of all evidence, in a
request for a peremptory instruction, or in a motion for a
judgment notwithstanding the verdict. Higgins v.
State, 725 So.2d 220, 224 (¶ 22) (Miss. 1998).
Here, Green made an unsuccessful motion for a directed
verdict at the close of the prosecution's case. And he
failed to renew the motion at the conclusion of all the
evidence. " If a defendant puts on evidence in his own
defense after the denial of his motion for a directed
verdict, he waives his challenge to the sufficiency of the
State's evidence up to that point." Robinson v.
State, 749 So.2d 1054, 1058-59 (¶ 13) (Miss. 1999).
Further, Green's post-trial motion did not challenge the
sufficiency of the evidence. " It is well established
that 'questions will not be decided upon appeal which
were not presented
to the trial court and that court given an opportunity to
rule on them.'" Neese v. State, 993 So.2d
837, 843 (¶ 12) (Miss. Ct.App. 2008) (citations
omitted). Green concedes that this issue is procedurally
barred from our consideration. Procedural bar
notwithstanding, we find that this issue lacks merit.
The dissent employs Green's insufficiency-of-the-evidence
argument to find that " simultaneous possession of three
weapons in this instance is insufficient to convict Green on
all three counts." However, Green has never made that
argument; he only argues that the evidence was insufficient
for Count IV -- trafficking of stolen firearms. At no point
on appeal did Green or the State raise the issue of whether
Mississippi Code Annotated section 97-37-5(1) allows for
multiple convictions when weapons are possessed
simultaneously by the defendant. In all the cases cited by
the dissent, the issue of statutory interpretation in
relation to double jeopardy had been presented squarely and
As the dissent correctly notes, the interpretation of this
section and its constitutional implications is an issue of
first impression in Mississippi. Other states have differing
interpretations of similar statutes. Also, the word "
any" appears in other Mississippi criminal statutes,
including, for instance, statutes dealing with offenses
relating to child pornography. While we agree with the
dissent that certain instances permit our Court to address
the issue of double jeopardy as plain error, to do so using
plain error in this specific instance would be inappropriate.
We therefore decline to address the issue suggested by the
THE JUDGMENT OF THE ADAMS COUNTY CIRCUIT COURT OF CONVICTION
OF COUNTS I, II, AND III, POSSESSION OF A WEAPON BY A
CONVICTED FELON, AND SENTENCE AS A HABITUAL OFFENDER OF TEN
YEARS FOR EACH COUNT, TO RUN CONSECUTIVELY; AND COUNT IV,
TRAFFICKING STOLEN FIREARMS, AND SENTENCE OF FIFTEEN YEARS TO
RUN CONCURRENTLY TO THE SENTENCES IN COUNTS I, II, AND III,
ALL 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 ADAMS
While I agree with the majority that search of Green's
car did not violate his Fourth Amendment rights, I find that
imposing multiple convictions for the simultaneous possession
of three weapons was plain error, requiring reversal and
remand to the circuit court for vacation of two of the three
convictions and corresponding sentences.
In addition to his conviction for trafficking stolen
firearms, Green was convicted for three counts of possession
of a firearm by a convicted felon, under Mississippi Code
Annotated section 97-37-5(1) (Supp. 2012), and sentenced to
three consecutive ten-year terms of incarceration. Section
It shall be unlawful for any person who has been convicted of
a felony under the laws of this state, any other state, or of
the United States to possess any firearm
or any bowie knife, dirk knife, butcher knife, switchblade
knife, metallic knuckles, blackjack, or any muffler or
silencer for any firearm unless such person has received a
pardon for such felony, has received a relief from disability
pursuant to Section 925(c) of Title 18 of the United States
Code, or has received a certificate of rehabilitation
pursuant to subsection (3) of this section.
(Emphasis added). The issue of whether this statute, which
prohibits a convicted felon from possessing " any
firearm," allows for multiple convictions when several
weapons are possessed simultaneously is one of first
impression for Mississippi. However, other jurisdictions with
similarly worded statutes have found that the use of the term
" any" is ambiguous and its statutory construction
must be interpreted in favor of the defendant.
In State v. Garris, 191 N.C.App. 276, 663 S.E.2d 340
(N.C. Ct.App. 2008), Darrell Garris argued that North
Carolina General Statute section 14-415.1(a), which prohibits
" any person who has been convicted of a felony to
purchase, own, possess, or have in his custody, care, or
control any firearm or any weapon of mass death and
destruction[,]" " does not provide for multiple
convictions when several weapons are possessed
simultaneously." Garris, 663 S.E.2d at 346.
Garris, who was running from police, dropped a black plastic
bag that contained a firearm, in addition to illegal drugs.
Another firearm was found in a nearby trash can along the
route that Garris ran while being chased. He was convicted
for two counts of possession of firearm by a felon.
Discussing the federal statute and relevant caselaw regarding
the possession of a firearm by a felon, the North Carolina
Court of Appeals noted that caselaw " favor[ed] the
imposition of a single punishment unless otherwise clearly
provided by statute." Id. at 347. Applying that
rationale to section 14-415.1(a), the appellate court
determined that the term " any" in its statute was
ambiguous, and provided " no indication that the North
Carolina Legislature intended for [section] 14-415.1(a) to
impose multiple penalties for a defendant's simultaneous
possession of multiple firearms." Garris, 663
S.E.2d at 348. Therefore, it concluded that the trial
court's decision to convict Garris for two counts of
felony weapon possession was error. See also
State v. Wiggins, 210 N.C.App. 128, 707 S.E.2d 664,
672 (N.C. Ct.App. 2011) (finding that the
defendant/felon's simultaneous possession of weapons that
utilized over a short period of time " constituted a
single possessory offense rather then three separate
possessory offenses" ).
The Illinois Supreme Court has also supported this statutory
construction to its statute prohibiting the possession of a
weapon by a convicted felon, concluding that the term "
any firearm" may be interpreted to " mean either
the singular or the plural." People v. Carter,
213 Ill.2d 295, 821 N.E.2d 233, 237, 290 Ill.Dec. 182 (Ill.
2004). " Where a criminal statute is capable of two or
more constructions, courts must adopt the construction that
operates in favor of the accused." Id.
(citation omitted). In Carter, the defendant was
found guilty of four counts of unlawful possession of a
weapon by a felon for simultaneous possession of two firearms
and two rounds of ammunition. The Carter court
decided that " in the absence of a specific statutory
provision to the contrary, the simultaneous possession of two
firearms and firearm ammunition constituted a single
offense," and it reversed and remanded the judgment to
the trial court with instructions to vacate three of the
convictions. Id. at 238-40; see also
People v. Hamilton, 2014 IL App. (1st) 120369-U,
2014 WL 3893271, *19 (Ill. App. Ct., 2014) (applying the
rationale in Carter to Illinois's " armed
habitual criminal statute" and finding that " since
the [defendant's] three armed habitual criminal
convictions were based on the simultaneous possession of
three guns, only one conviction can stand and the other two
must be vacated" ).
Similarly, in Hill v. State, 711 So.2d 1221, 1224-25
(Fla. Dist. Ct.App. 1998), the Florida District Court of
Appeals held that " the prohibition against double
jeopardy preclude[d] more than one conviction for the
possession at the same time of multiple firearms by a
convicted felon." In its ruling, the court specifically
addressed the use of the term " any firearm" in the
corresponding statute and the ambiguity issues in
interpreting such language;  see also
Davis v. State, 96 So.3d 1116, 1117 (Fla. Dist.
Ct.App. 2012) (per curiam) (recognizing its holding in
Hill and vacating three of defendant's four
convictions for simultaneous possession of multiple firearms
by a convicted felon, as violating double jeopardy).
Mississippi Code Annotated section 97-37-5(1) states that it
is " unlawful for any person who has been convicted of a
felony under the laws of this state, any other state, or of
the United States to possess any firearm[.]"
(Emphasis added). This provision clearly contains the type of
ambiguity warranting a statutory construction in favor of
leniency and a finding that the simultaneous possession of
multiple firearms by a convicted felon precludes multiple
convictions. In the present case, the three weapons were all
found simultaneously and in the same location -- the trunk of
Although Green has not raised this particular argument, he
did raise an insufficiencyof-the-evidence claim. Based on the
foregoing authority, I find the simultaneous possession of
three weapons in this instance is insufficient to convict
Green on all three counts. Further, our supreme court has
specifically determined that double jeopardy is a fundamental
right that cannot be waived. Rowland v. State, 42
So.3d 503, 508 (¶ 14) (Miss. 2010).
A defendant's " fundamental constitutional right to
be free from being prosecuted twice for the same
offense" permits this Court to address this issue of
double jeopardy as plain error. Lyle v. State, 987
So.2d 948, 950 (¶ 9) (Miss. 2008) (citing White v.
State, 702 So.2d 107, 109 (Miss. 1997)).
Although the majority responds that neither Green nor the
State raised the issue of whether section 97-37-5(1) allows
for multiple convictions, Mississippi Rule of Evidence 103(d)
clearly states: " Nothing in this rule precludes taking
notice of plain errors affecting substantial rights although
they were not brought to the attention of the court."
Additionally, Mississippi Rule of Appellate Procedure
28(a)(3) states: " No issue not distinctly identified
shall be argued by counsel, except upon request of the Court,
but the Court may, at its option, notice a plain error not
identified or distinctly specified." In Flowers v.
State, 35 So.3d 516, 517-18 (¶ 3) (Miss. 2010), our
supreme court held that it was " appropriate" to
exercise its authority to address plain error (whether the
defendant's indictment for statutory rape was fatally
defective), even though the defendant " did not object
at trial, nor did he challenge [his indictment] on
Under proper circumstances, this Court " has noted the
existence of errors in trial proceedings affecting
substantial rights of the defendants although they were not
brought to the attention of the trial court or of this
Court." Grubb v. State, 584 So.2d 786, 789
(Miss. 1991). Generally, this Court will address issues on
plain-error review only " when the error has impacted
upon a fundamental right of the defendant." Sanders
v. State, 678 So.2d 663, 670 (Miss. 1996). We find that
this is such a case where it is appropriate to exercise this
Court's authority to address plain error.
Flowers, 35 So.3d at 517-18 (¶ 3). In the
present case, I find that it was plain error, and a violation
of Green's fundamental right against double jeopardy, to
convict and sentence Green for three separate counts of
possession of " any" weapon by a convicted felon.
Consequently, I would reverse and remand to the circuit court
with instructions to vacate two of the three convictions for
possession of a weapon by a convicted felon and the
J., JOINS THIS DISSENT.
" [I]f Congress does not fix the
punishment for a federal offense clearly and without
ambiguity, doubt will be resolved against turning a single
transaction into multiple offenses[.]" Bell v.
United States, 349 U.S. 81, 84, 75 S.Ct. 620, 99 L.Ed.
905 (1955). Federal courts have consistently interpreted the
federal felony-weapon-possession statute, 18 U.S.C. §
922(g) (2012), as allowing only a single conviction for
multiple firearms possessed simultaneously. See
United States v. Cejas, 761 F.3d 717, 730-31 (7th
Cir. 2014) (" Our holdings that multiple § 922(g)
firearm possession convictions and sentences violate double
jeopardy where the defendant's possession of the same
firearm is uninterrupted are premised on the fact that the
unit of prosecution in § 922(g) cases is the gun
possession itself; one gun (or several guns simultaneously)
possessed one time sustains one conviction." );
United States v. Richardson, 439 F.3d 421, 422 (8th
Cir. 2006) (" Congress intended the 'allowable unit
of prosecution' to be an incident of possession
regardless of whether a defendant satisfied more than one
§ 922(g) classification, possessed more than one
firearm, or possessed a firearm and ammunition." );
United States v. Berry, 977 F.2d 915, 920 (5th Cir.
1992) (discussing § 922(g) and holding that "
simultaneous convictions and sentences for the same criminal
act violate the double jeopardy clause" );
and United States v. Hodges, 628 F.2d 350,
352 (5th Cir. 1980) (" Congress did not intend . . . to
make the firearms themselves the allowable units of
prosecution, unless they were received at different times or
stored in separate places." ).
 Compare to Taylor v.
State, 929 N.E.2d 912, 921 (Ind.Ct.App. 2010)
(emphasizing that Indiana's statute, which states that
" [a] serious violent felon who knowingly or
intentionally possesses a firearm commits unlawful
possession of a firearm by a serious violent
felon," indicates the legislature's intent " to
make each unlawful possession of one firearm by a serious
violent felon a separate and independent crime" )