Lead Opinion
FOR THE COURT:
¶ 1. Mаrvin Rerockus Demond Carver appeals from his conviction of possession of more than thirty grams but less than 250 grams of marijuana. Carver was sentenced as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2013) and as a habitual offender under , Mississippi Code Annotated section 99-19-81 (Rev. 2015) to six years in the custody of the Mississippi Department of Corrections without the possibility for parole or early release. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2, On November 23, 2011, half-brothers Carver and Nicholas Ingram were traveling from Grenada, Mississippi, to the Mississippi Gulf Coast. Ingram was driving, and Carver was in the front passenger seat. Carver and Ingram were pulled over for speeding on Interstate 55 in Madison County by State Trooper Wade Zimmerman.
¶ 3. Trooper Zimmerman noticed a strong odor of marijuana coming from the vehicle when he approached the driver’s side of-the vehicle. Trooper Zimmerman observed that Ingram’s eyes were “very bloodshot.” Trooper Zimmerman asked Ingram to step out of the vehicle and questioned him while Carver remained in the vehicle. Trooper Zimmerman asked Ingram if he had been smoking marijuana. Ingram initially denied smoking marijuana, and Trooper Zimmerman gave him a field sobriety test. Ingram- then admitted that he had been smoking marijuana, and he gave Trooper Zimmerman consent to search the vehicle.
¶4. Trooper Zimmerman discovered a handgun under the driver’s seat and a small bag of marijuana in the center console. Trooper Zimmerman discovered two larger plastic bags containing a total of nearly four ounces of marijuana in the trunk. One bag was wrapped in a manila envelope, and thе other bag was in a white plastic shopping bag. A digital scale was also discovered in the trunk near the bags of marijuana. Ingram told Trooper Zimmerman that the marijuana found in the trunk was hot his, and he also denied having any knowledge' of it.
¶ 5. Ingram and Carver were arrested and transported to the Madison County Jail. At the jail, police discovered $893 cash in Ingram’s pocket, Agent Candace Edwardk of the Mississippi Bureau of Narcotics interviewed Ingram and Carver. Ingram and Carver also provided written statements!
¶6. Ingram told Agent Edwards that the marijuana found in the center console was left over from a blunt he had just smoked. While on the roadside, Ingram had initially denied any knowledge of the marijuana in the trunk but claimed full responsibility for it and the handgun during his interview and in his written statement. Ingram’s statement provided that the marijuana was for his personal use. He also told Agent Edwards: “[W]e [were] going to smoke it for the weekend.”
¶ 7. Carver told -Agent Edwards that he had previously served nine years in prison
I knew nothing of [Ingram] possessing the firearm and by him knowing that I hate being around guns, he had kept it a secret—until we got pulled over! ... The marijuana he had, I knew about because he said he had [some] “weed” for us to smoke for Thanksgiving. Me being the older “square,” as he calls me[,] agreed to “puff’ for the special occasion. I didn’t know hе had all that much marijuana until the police pulled it out [of] the trunk! ... My brother is responsible for the marijuana and holding the firearm secretly!
(Emphasis in original).
¶ 8. On August 21, 2012, Carver and Ingram were indicted for possession of more than thirty grams but less than one kilogram of marijuana with intent to distribute, while in possession of a firearm, and for conspiracy to possess more than thirty grams but less than one kilogram of marijuana with intent to distribute. Carver was tried before a Madison County jury on June 12-13, 2013.
¶ 9. Ingram, who had pled guilty prior to Carver’s trial, testified on behalf of Carver. Ingram testified that his grandmother rented a vehicle for him to drive to the coast for the Thanksgiving holiday. Ingram testified that he had purchased and placed the marijuana in the trunk outside of Carver’s presence. Ingram also testified that he placed the handgun under the driver’s seat outside of Carver’s presence. Ingram testified that he picked Carver up and told him to throw his luggage in the trunk because he was in a hurry to go to the coast. Ingram testified that he did not intend to sell or distribute the marijuana that was found in the vehicle. Ingram testified that “[the marijuana] was only for my personal consumption ... and maybe [to] smoke with a couple of people at holiday time.”
¶ 10. On cross-examination, when asked about whether Ingram had initially denied having marijuana in the vehicle to Trooper Zimmerman, he testified that he “didn’t tell [Trooper Zimmerman] anything.” When asked whether he had been smoking marijuana that day, Ingram testified: “I told [Trooper Zimmerman] not in the vehicle. Yes, I had smoked weed earliér, but not before I got in the vehicle nor in the vehicle.” Ingram then testified that he could not remember if he told Trooper Zimmerman about the marijuana in the vehicle. Ingram also testified that he and Carver had not smoked marijuana in the vehicle during their trip between Grenada and Madison County.
¶ 11. Ingram testified that the marijuana in the center console had been taken from the larger amount in the trunk. Ingram admitted on the stand: “In the spirit of the holiday, I was going to freely smoke with others and for my own personal consumption.”
¶ 12. Carver took the stand in his defense. Carver explained that on November 23, 2011, Ingram had called him earlier that day about riding to the coast together for the Thanksgiving holiday. Carver testified that he did not smoke marijuana with Ingram that day. Carver testified that he did not know there was marijuana in the trunk. Carver also testified that he did not know about the handgun under the driv
During [mine and Ingram’s] phone conversation, when we [were] talking about, you know, when he was telling me he was going to the coast and all, and I was asking him what wе [were] going to do, what [were] we going to do. I was like what [were] we going to do for Thanksgiving. And that’s when he told me that, he mentioned, he said that he will smoke some marijuana with me for Thanksgiving-
¶ 13. When Carver was asked whether he knew where the marijuana was that Ingram had mentioned on the phone, Carver testified: “[Ingram] didn’t tell me where it was or if he already had it or, you know, was he going to buy it or whatever. I didn’t know.” Carver also gave, the fol-. lowing explanation regarding his written statement: “[M]y statement said I knew about [the marijuana], because he said he had some for us to smoke for Thanksgiving. He was going to smoke some with me for Thanksgiving.” Carver further testified: “I knew he said he had some for us to smoke for Thanksgiving.” Later on cross-examination, when asked whether Ingram intended to share the marijuana with him that was found in the vehicle, Carver testified: “Ingram said he had some [marijuana] for me. He had some weed for us to smoke for Thanksgiving.”
¶ 14. The jury found Carver guilty of the lesser-included offense of possession of more than thirty grams but less than 250 grams of marijuana. Carver was acquitted of the conspiracy charge. The trial court sentenced Carver as a habitual offender and subsequent drug offender to six years without the possibility for parole or early release.
¶ 15. Carver appeals to this Court raising three assignments of error: (1) whether there was sufficient evidence to support his conviction; (2) whether the trial court erred by admitting evidence his prior arrest for auto burglary, prior misdemeanor convictions, and details of his prior conviction for the sale of cocaine; and (3) wheth-' er the trial court erred in sentencing him-as a subsequent offender under section 41-29-147. Finding no error, we affirm.
DISCUSSION
I. Sufficiency of the Evidence
¶ 16. Carver‘argues that the evidence was insufficient to support the guilty verdict. Carver argues that the evidence failed to show that he had knowledge of the marijuana in the trunk. Carver claims that the evidence failed to show that he intentionally and consciously possessed the marijuana by exercising dominion and control over it.
¶ 17. “In reviewing the sufficiency of the evidence, this Court examines whether there was sufficient evidence to find that the defendant committed the crime beyond a reasonable doubt.” Morgan v. State,
[T]he law states that actual possession is not needed, that constructive possession will do. Nevertheless, the awareness and conscious intent to possess elements apply to both- actual and constructive possession. The only difference is that, with actual possession, the drug is actually found on the defendant’s person (i.e., in his hands, mouth, pockets, etc.), whereas, with constructive possession, the drug is simply found near the defendant’s person in a place over which the defendant exercises dominion or control. Thus, the ¡State has to prove that the defendant was aware of the cocaine and intentionally, but not necessarily physically, possessed it. To test whether the prosecution met this standard Of proof in individual cases, -each case must be viewed in light of its individual facts and circumstances'.
Glidden v. State,
¶ 19. “There must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously.-in-possession of it.” Hudson,
¶ 20. The evidence is uncontradict-ed that Trooper Zimmerman noticed a strong odor of burnt marijuana coming from the vehicle when he approched the driver’s side of the vehicle. In addition, a small amount of marijuana was found in the center console between Ingram and Carver. Trooper Zimmerman also observed that Ingram’s eyes were “very bloodáhót.” TTboper Zimmerman testified that he “could definitely tell that [Carver and Ingram] had been smoking, or someone had Smoked in the[] car, because the burnt smell was there as well.” Ingram admitted that the marijuana found in the console was left over from a blunt he had smoked. Plus, he admitted that the marijuana in the blunt had been taken from the larger bags of marijuana -in the trunk.
¶21. Carver testified that he and Ingram had discussed bringing mаrijuana to smoke that weekend. Although Carver stated that he did not know he had “that much” marijuana in the trunk, Carver stated multiple times that he knew that Ingram had marijuana for them to smoke. Agent Edwards testified that Carver told her' during his interview that he knew about the marijuana. Carver’s written statement stated: “The marijuana he had, I knew about because he had some weed for us to smoke.”
¶22. The issue before this Court is whether or not the evidence is legally sufficient to support the elements of the crime. By admitting that he intended to smoke the marijuana, Carver manifested that he had constructive possession of an undivided interest in the amount of marijuana to be smoked. This undivided amount was subject to Carver’s dominion, and he could, when he was ready to, retrieve and smoke it. The dissent emphasizes Carver’s supposed lack of dominion
¶ 23. Further, Carver admitted that he knew Ingram had marijuana—just not “that much” marijuana. The dissent—after recognizing that Carver planned to smoke Ingram’s marijuana that weekend—writes, “However, Carver stated that he ‘didn’t know [that Ingram] had all that much marijuana until the police pulled it out [of] the trunk!’” (Emphasis in original; first brackets added by dissent). Carver, though, did not state that he “didn’t know [that Ingram] had marijuana in the trunk.” Instead, he stated that he “didn’t know [that Ingram] had all that much marijuana ..,. ” (Emphasis in original). Carver agreed to smoke the marijuana, knew that Ingram had the marijuana, and had dominion and control over the marijuana.
¶ 24, We find that there was sufficient evidence to show that Carver was aware of the presence and character of the marijuana, had dominion and control over it, and intended to possess it. In viewing the evidence with all reasonable inferences drawn in the light most favorable to the State, it was sufficient to support Carver’s guilty verdict.
II. Prior-Bad-Act Evidence
¶ 25. Carver argues that he was denied his fundamental right to a fair trial by the admission of certain evidence in violation of Mississippi Rule of Evidence 404. Specifically, Carver argues that the trial court erred by admitting evidence of his prior auto-burglary arrest and prior misdemean- or., convictions. Carver concedes that his prior. convictions for the , sale of cocaine were admissible under Rule 404(b) for the purpose of proving intent to distribute. However, Carver argues that the trial court erred by admitting the details of the three prior convictions, ■ specifically, his sentence and time served.
¶ 26. “The standard of review regarding admission or exclusion of evidence is abuse oí discretion. Where error involves the admission or exclusion of evidence, this Court will not reverse unless the error adversely affects a substantial right of a party.” Ladnier v. State,
¶27. “The admissibility of evidence of other crimes or bad acts committed by the defendant is governed by Rule 404(b).” Denham v. State,
¶ 28. This assignment of error is procedurally barred because Carver failed to make any сontemporaneous objections to any of this testimony at trial. See Hodges v. State,
¶ 29; Carver acknowledges that his trial counsel failed to object to the testimony regarding his prior convictions and arrest. As a result, he urges this Court to find plain error. “In order to prevail under the plain-error doctrine, an appel
III. Sentencing
¶ 30. Carver argues that the trial court erred in sentencing him as a subsequent drug offender under section 41-29-147. Carver claims the trial court erroneously believed that it had no discretion in sentencing him.
¶31. Section 41-29-147 provides that “any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized, fined an amount up to twice that otherwise authorized, or both.”
¶ 32. The failure to object at sentencing bars Carver from challenging his sentence on appeal. See Foster v. State,
¶ 33. Carver’s sentence was within the statutory maximum. As a result, this issue is procedurally barred because Carver’s sentence was not illegal.
CONCLUSION
¶ 34. Finding no error, we affirm the judgment of the circuit court.
¶ 35. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY OF CONVICTION OF POSSESSION OF MORE THAN THIRTY GRAMS BUT LESS THAN 250 GRAMS OF MARIJUANA AND SENTENCE AS A HABITUAL OFFENDER AND SUBSEQUENT DRUG OFFENDER OF SIX YEARS 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 MADISON COUNTY.
Notes
. Alternatively, Carver argues that his trial counsel was ineffective for failing to object to this testimony. We find that this claim is more appropriate for postconviction-relief proceedings. Bowlin v. State,
Dissenting Opinion
DISSENTING:
¶ 36. Carver was convicted of the possession of 3.8 ounces of marijuana that was discovered in the trunk of a car in which he was a passenger. Carver’s half-brother, Ingram, was driving the car, which had
¶ 37. Ingram pled guilty, but Carver proceeded to trial on charges of possession with the intent to distribute more than thirty grams but less than one kilogram of marijuana (Count I)
FACTS
¶ 38. On November 23, 2011, Trooper Zimmerman of the Mississippi Highway Patrol pulled over a car for speeding on I-55 South in Madison County. Ingram was driving, and his half-brother, Carver, was in the front passenger’s seat.
¶ 39. Ingram and Carver were taken to the Madison County jail where they were interviewed by Agent Candace Edwards of the Mississippi Bureau of Narcotics. Ingram readily admitted that the marijuana in the console and in the trunk and the gun under his seat all belonged to him alone. Ingram told Agent Edwards that he and Carver were on the way from Grenada to his mother’s house in Moss Point for Thanksgiving. Ingram also told Agent Ed
¶ 40. Carver gave a written statement to Agent Edwards. He stated that their grandmother had asked him to travel to Moss Point with Ingram for Thanksgiving. Carver stated that he “knew nothing!’ about the gun under Ingram’s seat and that the marijuana also belonged to Ingram. He stated that he “knew about” the marijuana because Ingram had told him that “he had [some] ‘weed’ for [them] to smoke for Thanksgiving.” Carver said that “being the older ‘square,’” as Ingram called him, he had “agreed to ‘puff for the special occasion.”
¶ 41. Ingram testified at trial that he and Carver were on their way to Moss Point to visit Ingram’s mother for Thanksgiving.. Ingram testified that, his grandmother rented the car for him because his own car was unreliable. He testified that the gun and marijuana were his. He testified that Carver did not know about the gun or the marijuana in the trunk. He stated that' Carver had hurriedly tossed his luggage in the trunk earlier that day and would not have noticed the marijuana, which was not in plain view. Ingram testified that the marijuana was for his own personal consumption and to smoke with others during the holiday. He stated that he was not planning to sell the marijuana. He testified that he .had smoked some marijuana earlier in the day but not in the car or with. Carver. He stated that the money in his pockets was his savings from work and that he intended to use it -to buy Christmas gifts on “Black Friday.” He also testified that he and Carver planned to go to the Bayou Clаssic football game in New Orleans the day after Thanksgiving.
¶ 42. Carver testified that their grandmother asked him to ride to Moss Point with Ingram, so he did. He stated that he and Ingram first discussed' the trip the same day they departed, that Ingram came by his house that evening to pick him up, and that he hurriedly tossed his luggage in the back seat of the car before they left town. He testified that he did not know that there was marijuana or a gun in the car. He explained that when he stated in his written statement that he “knew about” the marijuana, he meant only that Ingram had told ’ him that they would smoke marijuana together during the holiday, Carver maintained that he did not know whether Ingram already had the marijuana or planned to buy it on the Gulf Coast. ,
¶ 43. Ingram and Carver were indicted for possession of thirty grams but less, than one kilogram of' marijuana with the intent to distribute (Count I) and conspiracy to distribute thе same quantity of marijuana (Count II). See Miss. Code Ann. § 41-29-139(a)(l) & (b)(2) (Rev. 2013). Ingram pled guilty, while Carver proceeded to trial. At trial, Carver acknowledged that he pled guilty in January 2000 to selling cocaine on three occasions in 1998 and 1999. The jury was instructed that Carver’s prior convictions could “be considered for the sole purpose of determining [his] motive, opportunity, intent, plan or knowledge” but not “as evidence that he acted in conformity therewith.” At the close of the evidence, the circuit court
ANALYSIS
¶ 44. Carver argues that he is entitled to a.judgment of acquittal because the evidence at trial was insufficient to show beyond a reasonable doubt that he possessed the marijuana in the trunk of a rental car in which he was a passenger. Our standard of review on this issue is well settled:
[I]n considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction. ... [T]he 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. Should the facts and inferences considered in a challenge to the sufficiency of the evidence point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is for the appellate court to reverse and render.
Bush v. State,
I. Constructive Possession
1145. Since Carver did not have actual possession of the drugs at issue, “the rules concerning constructive possession come into play.” Jones v. State,
1146. For instance, in Cunningham v. State,
there must be sufficient facts to warrant a finding that [the] defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
Id. at 962 (quoting Curry v. State,
¶ 47. Applying these principles, the court held that there was insufficient evidence to convict Cunningham of constructive possession. The сourt rejected the State’s argument that Cunningham and Sipp “were good friends,” so “contraband owned by one was more likely than not owned by both.” Id. The court also rejected the argument that the conviction could be sustained because certain aspects of the defendants’ testimony was “unbelievable.” The court held that unbelievable testimony does not relieve the State of its burden of positively connecting a passenger to drugs found in a vehicle he does not own. See id. Finally, in closing, the court emphasized that the State did not attempt to obtain fingerprints from the pill bottle, although it could have done so. See id. at 962-63.
¶ 48. In Hamm v. State,
¶ 49. In Jones,
¶ 50. In Berry v. State,
¶ 51. In other cases, the supreme court has held that evidence of constructive possession was insufficient even when the defendant was the driver and sole occupant of a car, though not its owner. In Fultz,
¶ 52. Based on these precedents, the evidence presented at trial in this case was insufficient to establish that Carver constructively possessed—i.e., exercised dominion or control—over the marijuana found in the trunk of the rental car. He did not own the car or rent it, and there was no evidence that he was anything other than a passenger. The mere fact that there was a small amount of marijuana in the console is also insufficient to establish dominion and control over the much larger quantity of marijuana in the trunk. See Cunningham,
¶ 53. Moreover, in one notable respect, Carver's claim is stronger than those of the defendants in the cases discussed above because' Ingram unequivocally claimed sole ownership and pled guilty to possession of the drugs at issue. In Fultz, the court found it significant that the car’s owner was not questioned about the drugs, see Fultz,
¶54. The evidence at trial may have been sufficient for the jury to conclude that Carver knew about the small amount of marijuana in the console, had smoked marijuana in the car at some poipt, and .even was aware that there was a larger quantity of marijuana in the trunk. There was also sufficient evidence for a jury to find that Carver expected that Ingram would allow him to smoke some of the marijuana from the trunk during the holiday. But under our supreme court’s precedents, that is insufficient to establish constructive possession because it is insufficient to. establish beyond a reasonable doubt that Carver exercised dominion or control over the marijuana in the trunk. The only evidence in the record is that Ingram, not Carver, exercised dominion and control over the marijuana at issue. Put simply, evidence that Ingram intended to share some fraction of his marijuana with Carver does not ipso fac-to transform all of Ingram’s marijuana into Carver’s marijuana or their marijuana, Although Carvеr was present in the car and possibly aware of the drugs, “[tjhere was no evidence that he owned the drugs, paid for them, or controlled them in any manner.” Berry,
¶ 55. The majority find that Carver’s admission that he intended to smoke some of Ingram’s marijuana is sufficient by itself to establish constructive possession. But Carver’s "willingness to partake in Ingram’s marijuana did not give him “dominion or control” over it. Based on the evidence presented at trial, Carver intended to smoke marijuana because he anticipated that Ingram would share with him, not because he had any right to it. The majority also finds that “there was no еvidence at trial that suggested that Carver did not exercise dominion and control over Ingram’s rental car and the marijuana in it.” However, it was the State’s burden to prove that Carver exercised dominion or control over the marijuana; it was not Carver’s burden to prove a negative or his innocence. Cunningham,
¶ 56. It is true that when we consider whether the State’s evidence was sufficient to sustain a conviction, “the relevant question is whether .,. any rational trier of fact” could have returned a guilty verdict. Bush,
II. Aiding and Abetting
¶ 57. The State also argues that Carver’s conviction can be sustained on the theory that he was an accomplice to—-i.e., aided and abetted—Ingram’s possession of the marijuana. To convict a defendant as an aider and abettor, the State must prove beyond a reasonable doubt that the defendant “deliberately associate^] himself in some way with the crime,” that he “participate[d].... with the intent,to. bring about the crime,” and that he “voluntarily particr ipated in its commission with the intent to violate the law.” Spann v. State,
¶ 58. In the absence of proof that Carver himself exercised dominion or control over the marijuana at issue, the evidence was also insufficient to sustain his conviction on the theory that he was an accomplice to Ingram. As described abové, thé evidence was sufficient for the jury to conclude that Carver knew and even approved of the marijuana’s presence in the car, but the supreme court has held that knowing approval is insufficient to support an aiding-? and-abetting conviction. Vaughn,
CONCLUSION
¶ 59. The evidence was insufficient to convict Carvеr of possession of the marijuana found in the trunk of the rental car. Therefore, I respectfully dissent.
BARNES, ISHEE, FAIR AND WILSON, JJ., JOIN THIS OPINION.
. See Miss. Code Ann. § 41-29-139(a)(l) & (b)(1) (Rev. 2013);
. See Miss. Code Ann. § 41-29-139(c)(2)(C) (Rev. 2013).
. Ingram and Carver have the same father but different mothers.
. Carver lived elsewhere in Grenada with his girlfriend.
. At the time, Carver was thirty-three years old, and Ingram was twenty-two years old.
. "Possession of a controlled substance may be actual or constructive,-individual or joint.” Dixon v. State,
. Agent Agent Edwards testified that it would have been "a waste of resources” to test for fingerprints because of the likelihood that many people had touched the bags. She also testified that she “didn’t need to” test for fingerprints because she already "had two confession statements that indicated ... they were both in the vehicle, and they both knew about everything.”