Sanchez Duncan v. State of Mississippi , 240 So. 3d 519 ( 2018 )


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  •         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
    NO. 2017-KA-00249-COA
    SANCHEZ DUNCAN A/K/A SANCHEZ D.                                            APPELLANT
    DUNCAN A/K/A SANCHEZ DEJUAN DUNCAN
    v.
    STATE OF MISSISSIPPI                                                         APPELLEE
    DATE OF JUDGMENT:                         12/09/2016
    TRIAL JUDGE:                              HON. JON MARK WEATHERS
    COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
    BY: W. DANIEL HINCHCLIFF
    ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
    BY: BILLY L. GORE
    DISTRICT ATTORNEY:                        PATRICIA A. THOMAS BURCHELL
    NATURE OF THE CASE:                       CRIMINAL - FELONY
    DISPOSITION:                              AFFIRMED: 03/20/2018
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.
    GRIFFIS, P.J., FOR THE COURT:
    ¶1.    Sanchez Duncan appeals his convictions for possession of methamphetamine and
    possession of a weapon by a convicted felon. Duncan’s appellate counsel filed a brief
    pursuant to Lindsey v. State, 
    939 So. 2d 743
    (Miss. 2005), and certified that the record
    presented no arguable issues for appellate review. Duncan subsequently filed a pro se brief.
    ¶2.    We have reviewed the record and find no arguable issues that necessitate
    supplemental briefing. After reviewing the issues that Duncan raises in his pro se brief, we
    find no error and affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶3.    In May 2015, a confidential source, later identified as a neighbor or neighbors,
    contacted the Hattiesburg Police Department regarding activity at a residence located at 505
    Rebecca Avenue. Richard Hill, his girlfriend Janie Sistrunk, and Sistrunk’s brother, Jeremy
    Morgan, lived at the residence. As a result of numerous complaints, active surveillance of
    the residence began in early July 2015.
    ¶4.    On August 6, 2015, Sistrunk contacted Duncan and asked him to come over.
    According to Sistrunk, she and Duncan were “buddies,” and Duncan needed her to unlock
    and activate some iPhones. In exchange for unlocking and activating the cell phones,
    Sistrunk would receive methamphetamine.
    ¶5.    Sistrunk testified that when Duncan arrived, he was carrying a backpack. Sistrunk
    explained that she previously had given Duncan the backpack, so she knew “for a fact that
    it was his backpack.” While Sistrunk worked on the cell phones, she and Duncan smoked
    methamphetamine in her bedroom.
    ¶6.    At the time Duncan arrived, Sergeant Joseph Kennedy was surveilling the house. He
    called for assistance. Lieutenant Daniel Miller and Officer Jarrod Smith responded. They
    then assisted Sergeant Kennedy with a “knock and talk.” Hill answered the door. Duncan
    and Sistrunk then walked in view of the door. Duncan yelled, “Oh, s**t, police” and fled to
    Sistrunk’s bedroom. For safety purposes, Sergeant Kennedy and Lieutenant Miller entered
    and secured the residence. Duncan, Sistrunk, Hill, and Morgan were handcuffed and taken
    outside.
    2
    ¶7.    Hill signed a consent form to search the residence. Sergeant Kennedy and Lieutenant
    Miller then reentered the residence wherein they found “several bags of methamphetamine,
    a gun[,] . . . and pills, a couple of pills that [were] in the bag.” The “bag” was a green and
    black backpack found on Sistrunk’s bed. Inside of the backpack was an oval white pill, four
    bags of a crystalized substance, and a nine-millimeter handgun. Additionally, the officers
    recovered from Duncan’s person a bag containing a crystalized substance as well as an oval
    pill and a bullet. The oval pill found on Duncan was the same type of pill found in the
    backpack. Moreover, the bullet found on Duncan was the same brand and caliber that was
    loaded in the handgun located in the backpack.
    ¶8.    Sistrunk testified that the green and black backpack belonged to Duncan and was the
    same backpack that she had given Duncan “prior to [the] bust.” Sistrunk further testified that
    after they were removed from the residence and taken outside, Duncan mouthed to her that
    there was a gun in the backpack.
    ¶9.    The crystalized substances subsequently were tested by a forensic scientist with the
    Mississippi Crime Laboratory and determined to be methamphetamine. Specifically, 0.085
    grams of methamphetamine were found on Duncan, and 1.402 grams of methamphetamine
    were found in the backpack.
    ¶10.   Duncan was indicted on the charges of Count I, possession of 0.1 gram or more, but
    less than 2 grams of methamphetamine, and Count II, possession of a weapon by a convicted
    felon. Duncan’s indictment subsequently was amended as to Count I to charge him as a
    second or subsequent offender pursuant to Mississippi Code Annotated section 41-29-147
    3
    (Rev. 2013).
    ¶11.   Sistrunk also was indicted. She subsequently entered a guilty plea to a felony charge
    related to the incident.1 As part of her plea, Sistrunk agreed to provide truthful testimony at
    Duncan’s trial.
    ¶12.   Following a jury trial, Duncan was found guilty on both counts and sentenced to serve
    six years in the custody of the Mississippi Department of Corrections on Count I, and ten
    years, with five years suspended, on Count II, with the sentences to run consecutively.
    Additionally, Duncan was ordered to pay a $2,500 fine, a $200 assessment to the Mississippi
    Crime Victim Compensation Program, restitution in the amount of $250 to the Forrest
    County Public Defender Fund, $200 to the 12th Circuit Court Narcotics Enforcement Team,
    restitution in the amount of $2,048.48 to the Forrest County Jury Account, and all court costs.
    ¶13.   Duncan subsequently filed a motion for a judgment notwithstanding the verdict or,
    alternatively, a new trial, which was denied. Duncan timely appealed.
    ANALYSIS
    ¶14.   In Lindsey, the Mississippi Supreme Court implemented the following procedure for
    cases where appellate counsel does not believe any arguable issues exist for appellate review:
    (1) Counsel must file and serve a brief in compliance with Mississippi Rule
    of Appellate Procedure 28(a)(1)-[(5), (8).]
    (2) As a part of the brief filed in compliance with Rule 28, counsel must
    certify that there are no arguable issues supporting the client’s appeal, and he
    or she has reached this conclusion after scouring the record thoroughly,
    specifically examining: (a) the reason for the arrest and the circumstances
    1
    Although the judgment and/or sentencing order are not included in the record, it
    appears Sistrunk pled guilty to possession of methamphetamine.
    4
    surrounding [the] arrest; (b) any possible violations of the client’s right to
    counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e)
    possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits,
    whether admitted into evidence or not; and (h) possible misapplication of the
    law in sentencing.
    (3) Counsel must then send a copy of the appellate brief to the defendant,
    inform the client that counsel could find no arguable issues in the record, and
    advise the client of his or her right to file a pro se brief.
    (4) Should the defendant then raise any arguable issue[s] or should the
    appellate court discover any arguable issue in its review of the record, the
    court must, if circumstances warrant, require appellate counsel to submit
    supplemental briefing on the issue, regardless of the probability of the
    defendant’s success on appeal.
    (5) Once briefing is complete, the appellate court must consider the case on
    its merits and render a decision.
    
    Lindsey, 939 So. 2d at 748
    (¶18) (internal citations omitted).
    ¶15.   Here, Duncan’s counsel filed a brief in compliance with Rule 28 and asserted that he
    had “diligently searched the procedural and factual history . . . and scoured the record” but
    was unable to find any arguable issues that he could present in good faith for appellate
    review.
    ¶16.   Duncan’s counsel sent a copy of the brief to Duncan and informed him that although
    he found no arguable issues in the record, Duncan had the right to file a pro se brief. Duncan
    subsequently filed a pro se brief challenging: (1) the credibility of the State’s witnesses and
    (2) the sufficiency of the evidence. Duncan further claims he should have been charged with
    constructive possession.
    I.     Credibility of the State’s Witnesses
    ¶17.   Duncan first argues that Sistrunk, Sergeant Kennedy, and Lieutenant Miller all
    5
    provided inconsistent statements. He reasons that they were not credible. Witness credibility
    is for the jury to determine. Winding v. State, 
    908 So. 2d 163
    , 168 (¶20) (Miss. Ct. App.
    2005). “[T]he jury acts as fact-finder and must determine the credibility of the witnesses, and
    the proper weight to be assigned to their testimony.” 
    Id. Any conflicts
    in the evidence are
    for the jury to resolve. Williams v. State, 
    64 So. 3d 1029
    , 1033 (¶13) (Miss. Ct. App. 2011)
    (citation omitted).
    ¶18.   Here, the record shows that the jury heard from all witnesses and was able to evaluate
    their testimony, determine their credibility, and resolve any conflicts in the evidence.
    Accordingly, this issue is without merit.
    II.    Sufficiency of the Evidence
    ¶19.   Duncan next argues that “the State failed to provide sufficient evidence to support the
    elements of Count I and Count II.” In considering whether the evidence is sufficient to
    sustain a conviction, “the 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.” Williams v. State, 
    35 So. 3d 480
    , 485
    (¶16) (Miss. 2010) (citations omitted). Where the facts and inferences “point in favor of the
    defendant on any element of the offense with sufficient force that reasonable [jurors] could
    not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy
    is to reverse and render. 
    Id. However, if
    “reasonable fair-minded [jurors] in the exercise of
    impartial judgment might reach different conclusions on every element of the offense, the
    evidence will be deemed to have been sufficient.” 
    Id. 6 ¶20.
      Duncan was convicted of possessing 0.1 gram or more, but less than 2 grams of
    methamphetamine, in violation of Mississippi Code Annotated section 41-29-139(c)(1)(B)
    (Supp. 2014). “The two essential elements of drug possession are (1) knowledge and (2)
    possession.” O’Donnell v. State, 
    173 So. 3d 907
    , 916 (¶22) (Miss. Ct. App. 2015) (citing
    Miss. Code Ann. § 41-29-139(c)). “To support a conviction for possession of a controlled
    substance, 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.” 
    Id. (citation omitted).
    “Possession of a controlled substance
    may be actual or constructive.” 
    Id. at 917
    (¶22) (citation omitted). “To establish constructive
    possession, the drug merely has to be found near the defendant in a place over which the
    defendant exercises dominion or control.” 
    Id. (citation and
    internal quotation marks
    omitted).
    ¶21.   Duncan claims the State failed to show that he exercised dominion and control over
    the backpack in which the methamphetamine was found. We disagree.
    ¶22.   Sistrunk testified that she gave the backpack to Duncan prior to August 6, 2015, and
    “knew for a fact that it was his backpack.” Sistrunk further testified that when Duncan
    arrived at the house on August 6, 2015, he was carrying the backpack. Moreover, Sistrunk
    testified that in exchange for unlocking and activating the cell phones, she received
    methamphetamine.
    ¶23.   Additionally, Sistrunk testified that she and Duncan worked on the cell phones and
    smoked methamphetamine in her bedroom. When Sergeant Kennedy performed his “knock
    7
    and talk,” he saw Duncan run to the bedroom. Once the house was secure, Sergeant Kennedy
    searched the premises and found the backpack in the bedroom where Duncan previously was
    located.
    ¶24.   Moreover, further testimony showed that an oval white pill and methamphetamine
    were found on Duncan’s person. The same type of pill and substance also was found in the
    backpack. Accordingly, sufficient evidence existed for a rational juror to find that Duncan
    exercised dominion and control over the backpack and possessed methamphetamine.
    ¶25.   Duncan also was convicted of possession of a weapon by a convicted felon, in
    violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014). The State had to
    prove that: “(1) the defendant was in possession of a firearm, and (2) the defendant had
    previously been convicted of a felony crime.” Gunn v. State, 
    174 So. 3d 848
    , 866 (¶63)
    (Miss. Ct. App. 2014) (citing Miss. Code Ann. § 97-37-5). “The possession element may be
    shown by proof that the defendant actually or constructively possessed the firearm.” Short
    v. State, 
    929 So. 2d 420
    , 427 (¶21) (Miss. Ct. App. 2006).
    ¶26.   Duncan admits he previously was convicted of a felony but claims there was
    insufficient evidence to show that he possessed the handgun found in the backpack. We
    disagree.
    ¶27.   Sistrunk testified that after she and Duncan were removed from the residence and
    taken outside, Duncan mouthed to her that there was a gun in the backpack. Moreover, a
    bullet was found on Duncan. It was the same brand and caliber that was loaded in the
    handgun located in the backpack.
    8
    ¶28.   Overall, considering the evidence in the light most favorable to the State, there was
    sufficient evidence to support Duncan’s convictions for possession of methamphetamine and
    possession of a weapon by a convicted felon. Thus, this issue is without merit.
    III.     Constructive Possession
    ¶29.   Finally, Duncan argues that he “should have been charged with constructive
    possession.” Duncan was charged with possession of methamphetamine and possession of
    a weapon by a convicted felon. As previously noted, possession may be actual or
    constructive.
    ¶30.   The record shows the jury was instructed on constructive possession. Specifically,
    State’s instructions S-1, S-2, and S-3 all defined and/or explained constructive possession.
    Thus, we find this issue is meritless.
    CONCLUSION
    ¶31.   The issues raised in Duncan’s pro se brief are without merit, and we find no issues
    that call for additional briefing. Accordingly, we affirm the judgment of the Forrest County
    Circuit Court.
    ¶32.   AFFIRMED.
    LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
    WESTBROOKS AND TINDELL, JJ., CONCUR.
    9
    

Document Info

Docket Number: NO. 2017–KA–00249–COA

Citation Numbers: 240 So. 3d 519

Judges: Griffis, Carlton, Wilson

Filed Date: 3/20/2018

Precedential Status: Precedential

Modified Date: 10/19/2024