133 So. 3d 841
Miss. Ct. App.2013Background
- Fay was convicted by a Forrest County jury of possession of between .1 gram and two grams of methadone, sentenced to eight years with two suspended and six to serve plus two years post-release supervision.
- Deputy Eubanks found a bag with pill fragments on Fay during a traffic stop of Darrell Fay; the fragments were later identified as methadone.
- Fay testified Darrell discarded the bag and Fay merely moved it to his pocket at Darrell’s request; Fay’s credibility was at issue.
- McMahan testified the bag’s contents weighed .6 gram of methadone, based on a representative sample of the homogeneous fragments.
- The court held that the weight statute allows if the mixture contains a detectable amount of the substance, and the fragments were sufficiently homogeneous to support a representative weight finding.
- The circuit court’s jury instructions were challenged; Fay argues one instruction was refused and two were given by the State.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence to prove possession | Fay: insufficient evidence due to testing only one fragment | State: representative testing suffices given homogeneous fragments | Sufficient evidence |
| Weight of the controlled substance proved | Fay: weight not proven for .1–2 g because not all fragments tested | State: total weight determined by representative sample applies | Weight proven under statute; adequate proof |
| Refusal of proposed jury instruction D-4 | D-4 shows momentary possession defense | Not supported; Fay maintained possession | Refusal proper; no reversible error |
| Effect of jury instruction S-3 and inclusion of elements | S-3 improperly shifts burden, omits elements | Instructions read together properly instructed elements | S-3 not reversible error; overall instructions adequate |
Key Cases Cited
- Bush v. State, 895 So.2d 836 (Miss. 2005) (sufficiency review; weight of evidence and JNOV standards)
- Mauldin v. State, 750 So.2d 564 (Miss.Ct.App.1999) (possession requires actual or constructive control)
- Nelson v. State, 10 So.3d 898 (Miss.2009) (jury credibility of witnesses; weight of evidence considerations)
- Banyard v. State, 47 So.3d 676 (Miss.2010) (instructional error not shifting burden; analysis of defense instructions)
- Adair v. People, 406 Ill.App.3d 133 (2010) (random testing permissible for homogeneous substances)
- Beale v. State, 2 So.3d 693 (Miss.Ct.App.2008) (instructional error harmless where other instruction covered elements)