Michael Guss, Jr. v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-01479-COA
MICHAEL GUSS, JR. A/K/A MICHAEL PAUL APPELLANT
GUSS, JR. A/K/A MICHAEL PAUL GUSS A/K/A
MICHAEL GUSS A/K/A MIKE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/21/2017
TRIAL JUDGE: HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE McMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
DISTRICT ATTORNEY: DEE BATES
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 04/02/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE BARNES, C.J., WESTBROOKS AND LAWRENCE, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. A Lincoln County jury convicted Michael Guss Jr. of unlawful trafficking of more
than thirty grams of methamphetamine. He was sentenced to thirty years in the custody of
the Mississippi Department of Corrections, with twenty-five years to serve and five years’
post-release supervision. Guss filed a motion for a new trial, arguing that the verdict was
against the overwhelming weight of the evidence. We find the verdict was not against the
overwhelming weight of the evidence and affirm the conviction and sentence.
FACTS
¶2. On December 2, 2015, Postal Inspector Dominick Riley was working at the United
States Postal Inspection Service Center in Jackson, Mississippi. Part of his duties as a postal
inspector included looking at packages for indicators that they may contain narcotics. During
a routine check, Inspector Riley noticed a suspicious express mail package. The package was
heavily taped with handwritten addresses for the return and sender labels. Neither of the
names matched the addresses on the package. The package was sent from California, which
Inspector Riley testified is a “drug source state.” After a drug dog alerted him about the
package, Inspector Riley applied for and obtained a search warrant. He testified that the
package contained about a pound and a half of methamphetamine. The methamphetamine
was wrapped in shrink wrap and surrounded by coffee grounds. According to Inspector
Riley, coffee grounds are known to mask the smell of narcotics.
¶3. Inspector Riley immediately contacted the Mississippi Bureau of Narcotics’ (MBN)
district office and spoke with Agent Kendrick Lewis. Inspector Riley and Agent Lewis
arranged a controlled delivery of the package to its intended address. The next day, Inspector
Riley delivered the package to Guss, who was sitting on the porch of the apartment residence.
Agent Lewis observed Guss accept the package. As Inspector Riley left the apartment, MBN
agents approached the residence to arrest Guss. Upon seeing the agents, Guss ran inside the
apartment and threw his cell phone. The agents caught Guss, arrested him, and secured the
residence. Guss was the only person at the apartment during the delivery of the package.
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¶4. Agent Lewis obtained a search warrant for the residence. The agents found the
unopened United States Postal Service (USPS) package near the front door, a cell phone, and
about one gram of marijuana in the front bedroom. While inspecting the cell phone, Agent
Lewis noticed a browser open for the USPS. The browser was tracking the same package
that was delivered to Guss. Agent Lewis testified that he also found various text messages
between Guss and other individuals regarding drug transactions. Specifically, Agent Lewis
found text messages describing the address and tracking number for the delivered package
of methamphetamine.
¶5. Agent Lewis contacted Lillian Bailey, the renter of the apartment. According to
Agent Lewis, Bailey told Guss that he could use her address to receive a package through the
mail. Bailey also told Agent Lewis that Guss had used her address two or three times before
to receive other packages. Agent Lewis testified that Bailey claimed ownership of the
marijuana located in the front bedroom but denied any knowledge of the USPS package
containing methamphetamine.
¶6. The Mississippi Forensics Laboratory tested the substance in the package and
identified it as 441.26 grams of crystal methamphetamine.
¶7. The defense rested without presenting any evidence.
STANDARD OF REVIEW
¶8. As an appellate court, we review the evidence in the light most favorable to the verdict
to determine whether the verdict is so contrary to the overwhelming weight of the evidence
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that allowing it to stand would amount to an unconscionable injustice. Little v. State, 233 So.
3d 288, 289 (¶1) (Miss. 2017). We review the circuit court’s decision to grant or deny a new
trial for an abuse of discretion. Id. at 292 (¶21).
DISCUSSION
¶9. “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.’” Glidden v. State, 74 So. 3d 342, 345 (¶12) (Miss. 2011) (quoting Wall v. State, 718 So.
2d 1107, 1111 (Miss. 1998) (quotation omitted)). The possession may be actual or
constructive. Kerns v. State, 923 So. 2d 196, 199-200 (¶11) (Miss. 2005). Constructive
possession arises from “dominion or control” over drugs and requires “incriminating
circumstances” to connect an accused to the substance. Id.
¶10. Guss argues that the State’s evidence is “unconvincing” that he knew the contents of
the delivered package. We disagree. Several incriminating facts were presented to the jury.
Guss was alone at the residence when he accepted the package. When the agents
approached, Guss tossed the package and his cell phone while fleeing. Additionally, his cell
phone showed that he was tracking the package on the USPS website and had been text
messaging someone named “Money” about the package since November 30. Guss’s text
messages with “Money” contained the receiving address for the package, the tracking
number for the package, and the date of expected delivery. The text messages clearly
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indicated that Guss was anxiously awaiting the delivery of the package and lamented its
delay. The text messages also referenced a monetary amount for the package ($1,600),
which, according to the State, represented a drug transaction.
¶11. The text messages clearly demonstrated Guss’s interest in the package and the relative
worth of the package. He only claimed disinterest in the package when the police arrived,
and he threw the package down. Guss’s actions prior to delivery, during delivery, and
immediately after delivery were evidence of his dominion and control over the package and
the incriminating circumstances of his possessing the package. After hearing all of the
evidence, the jury, as the finder of fact, chose to find that Guss knew the package contained
methamphetamine and that he intended to possess it. Accepting the evidence supporting the
jury’s verdict as true in this case, we do not find the verdict to be so contrary to the
overwhelming weight of the evidence that to allow the verdict to stand would sanction an
unconscionable injustice. Accordingly, we find that the circuit court did not err in denying
Guss’s motion for a new trial and affirm.
¶12. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ.,
CONCUR.
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