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Penton v. State

Court of Appeals of Mississippi

July 16, 2019

WILLIAM A. PENTON A/K/A WILLIAM ALFRED PENTON JR. A/K/A WILLIAM PENTON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/11/2017

          PEARL RIVER COUNTY CIRCUIT COURT HON. PRENTISS GREENE HARRELL TRIAL JUDGE

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER NOLAN AIKENS WILLIAM A. PENTON (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER

          DISTRICT ATTORNEY: HALDON J. KITTRELL

          BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

          CARLTON, P.J.

         ¶1. A Pearl River County jury found William A. Penton guilty of one count of possession of methamphetamine. The trial court sentenced Penton as a habitual offender to serve eight years in the custody of the Mississippi Department of Corrections (MDOC). Penton appeals his conviction and sentence. Penton's counsel has filed a brief pursuant to Lindsey v. State, 939 So.2d 743 (Miss. 2005). His counsel represents that he diligently searched the record for any arguable issues that could be presented on appeal but found none. Penton filed a pro se supplemental brief. In his pro se brief, Penton offers his description of what took place on the day of his arrest, but there is no support in the record for his assertions. Penton also does not set forth any assignments of error in his pro se brief or provide any argument that would support reversal of his conviction and sentence. Based upon our thorough review of Penton's supplemental pro se brief and the record, we find no arguable issues for appellate review. We therefore affirm Penton's conviction and sentence without prejudice to his right to seek post-conviction relief.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. Penton was indicted on October 24, 2016, for possession with the intent to distribute 2.44 grams of methamphetamine, a Schedule II Controlled Substance, in violation of Mississippi Code Annotated section 41-29-139(a) (Rev. 2013). In August 2017, the State moved to amend the indictment to charge Penton as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015). At a pretrial motion hearing on December 1, 2017, the trial court granted the State's motion and entered an order on the same day amending the indictment to charge Penton as a habitual offender.

         ¶3. The State also filed a pretrial motion to allow testimony at trial under Mississippi Rule of Evidence 404(b)[1] that Penton had been the target of a narcotics investigation on December 29, 2015. Penton was captured on video selling methamphetamine to a confidential informant. An unidentified black male was also in that video. The State argued that the evidence was relevant to show intent and to explain the circumstances of the investigatory stop that took place the next day when Penton and the same unidentified black male who was in the video were arrested. That motion, as well as defense counsel's omnibus motion in limine, were also heard on December 1, 2017.

         ¶4. Regarding the State's Rule 404(b) motion, the trial court held that it would not allow any mention of the video showing Penton selling the methamphetamine but granted the State's motion to a limited extent. The prosecutor and defense counsel agreed to prepare an order delineating the scope of any testimony regarding the narcotics investigation that would be allowed at trial. The trial court's order granting this motion allowed the State to introduce evidence and testimony at trial that William Penton "was also the target of a narcotics investigation concerning methamphetamine on December 29, 2015 which continued through December 30, 2015." The trial court also granted the defense counsel's omnibus motion in limine "for the most part" and noted the specific requests that were not ripe but that may become so as the trial progressed.

         ¶5. Penton was tried on December 7, 2017. Before trial started Penton's counsel stated on the record that there was no objection to the State adding a lesser-included offense of simple possession of the same substance and amount as in the possession-with-intent-to-distribute charge (2.44 grams of methamphetamine).

         ¶6. The trial transcript reflects that on December 29, 2015, narcotics investigators Joe Garcia and Van Giadrosich of the Pearl River County Sheriff's office started an investigation targeting William Penton. As noted, on that day they captured Penton on video selling methamphetamine, and there was also an unidentified black male in the video. Detectives Garcia and Giadrosich both testified that the next day they saw Penton riding as a passenger with the unidentified black male in the same car (a silver Honda Accord) that they were in the day before when the investigation was started.[2] Detectives Garcia and Giadrosich further testified that they pulled the car over and made an investigatory stop in order to identify the driver based on the information they had gathered in the investigation the day before, which led them to believe that Penton was in possession of methamphetamine.

         ¶7. Both witnesses testified that Detective Giadrosich approached the passenger's side of the vehicle, and Detective Garcia approached the driver's side of the vehicle. Detective Garcia asked the driver for his identification. The driver said he did not have any written identification, but he identified himself as Drayvious Johnson. The transcript reflects that Detective Garcia then asked Johnson to exit the car to check his identity with dispatch and to conduct a protective search of Johnson for weapons. Detective Giadrosich testified that while this was happening, he saw Penton "moving his hand around leaning up," so he asked Penton to exit the car to pat him down for weapons. Detective Giadrosich testified that as he began to pat-down Penton, Penton himself pushed off the car, turned around, "and grabbed me and started fighting with me." Detective Giadrosich further testified that he saw that Penton's face was turning red, and that he saw a plastic bag in Penton's mouth. Penton continued to fight, and Detective Giadrosich testified that he took him to the ground and that "a bagg[ie] popped out of his mouth." Detective Garcia testified that he saw the struggle and saw "[P]enton be took to the ground and a baggie popped out of his mouth." The transcript reflects that the baggie contained a substance which Detectives Garcia and Giadrosich believed to be crystal methamphetamine, so Detective Garcia photographed and collected the baggie.

         ¶8. Detective Garcia testified that he submitted the baggie to Kristen Thibodeaux, the evidence custodian at the sheriff's office. Thibodeaux testified that she delivered the substance for testing at the Mississippi Forensics Laboratory. Velveeta Harried, a forensic scientist who was accepted as an expert in the field of drug analysis without objection, testified ...


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