267 So. 3d 798
Miss. Ct. App.2018Background
- On November 7, 2015, Hattiesburg officers stopped a Dodge Charger; the driver fled and Kelton K. Hathorne was apprehended after leaving the vehicle and climbing stairs.
- After transport to the station, Officer Nix found a Crown Royal bag hidden under the rear seat of his patrol car containing marijuana, Xanax, counterfeit bills, and a white rock-like substance.
- Forensic testing identified the white substance as 31.959 grams of ethylone (a Schedule I cathinone); a field test had initially indicated methamphetamine.
- Hathorne was indicted under Mississippi Code §41-29-139(f)(2)(C) (trafficking for 30+ grams) and convicted by a Forrest County jury of possession of ethylone in excess of thirty grams.
- The trial court sentenced Hathorne to 30 years (10 years suspended, 20 years to serve) with five years post-release supervision; posttrial motions were denied and Hathorne appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether indictment was defective for charging trafficking vs. simple possession | Hathorne: Indictment charged only simple possession language and thus was defective for trafficking charge | State: Indictment tracked statutory language of §41-29-139(f)(2)(C) referencing §41-29-139(c) (possession) and was sufficient | Court: Indictment sufficient; tracked statute and was not defective |
| Sufficiency of evidence for trafficking (constructive possession of 30+ g) | Hathorne: No proof he had possession or intent; drugs found in patrol car, not on his person | State: Constructive possession established by location under seat where Hathorne had been seated, officer testimony no one else rode in car, and amount exceeded 30 g | Court: Evidence sufficient for trafficking; reasonable jurors could find dominion/control |
| Sufficiency as to simple possession (lesser offense) | Hathorne: Jury may have convicted only of simple possession; evidence insufficient for possession | State: Indictment and proof supported trafficking conviction; sufficiency review favors verdict | Court: No merit; trafficking conviction supported so simple possession challenge fails |
| Weight of the evidence (overwhelmingly against verdict) | Hathorne: Verdict against overwhelming weight given circumstances of recovery | State: Testimony and routine checks of patrol car support discovery and chain of custody | Court: Weight of evidence supports verdict; not an unconscionable injustice |
Key Cases Cited
- Ludwig v. State, 147 So. 3d 360 (Miss. Ct. App. 2014) (indictment generally sufficient if it tracks statutory language)
- Topps v. State, 227 So. 3d 1177 (Miss. Ct. App. 2017) (standard for reviewing sufficiency of evidence)
- Curry v. State, 249 So. 2d 414 (Miss. 1971) (constructive possession requires knowledge of presence and character of substance)
- Gavin v. State, 785 So. 2d 1088 (Miss. Ct. App. 2001) (proximity alone insufficient; exclusive use or additional incriminating circumstances required)
- Jefferson v. State, 964 So. 2d 615 (Miss. Ct. App. 2007) (upholding possession conviction on facts similar to drugs found in vehicle)
- Roberts v. State, 229 So. 3d 1060 (Miss. Ct. App. 2017) (standard for reviewing weight-of-evidence challenges)
- Faraga v. State, 514 So. 2d 295 (Miss. 1987) (legislature has broad authority to define crimes and punishments)