        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-KA-00946-COA

CHRISTOPHER WORD A/K/A CHRISTOPHER                                         APPELLANT
ERNEST WORD

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         06/08/2018
TRIAL JUDGE:                              HON. JAMES McCLURE III
COURT FROM WHICH APPEALED:                PANOLA COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: MOLLIE MARIE McMILLIN
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY:                        JOHN W. CHAMPION
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 08/20/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GREENLEE, J., FOR THE COURT:

¶1.    Christopher Word was convicted in the First Judicial District of Panola County for

possession of 40 grams but less than 200 grams of MMB-FUBINACA and possession of 200

grams or more of 5-fluoro-ADB with intent. Word was sentenced, as a non-violent habitual

offender, to serve sixteen years for the charge in Count I and forty years for the charge in

Count II, concurrently, in the custody of the Mississippi Department of Corrections (MDOC).

We affirm Word’s conviction and sentence.

                       FACTS AND PROCEDURAL HISTORY
¶2.    In February 2018, a grand jury indicted Christopher Word for Count I, possession of

40 grams but less than 200 grams of MMB-FUBINACA with intent; Count II, possession of

200 grams or more of 5-fluoro-ADB with intent; and Count III, possession of 100 dosage

units but less than 500 dosage units of Buprenorphine and Naloxone without a valid

prescription. The indictment also charged Word as being a violent habitual offender pursuant

to Mississippi Code Annotated section 99-19-83 (Rev. 2015).

¶3.    On March 19, 2018, Word pled not guilty to the charges against him, and the court

entered an order setting trial for May 14, 2018. The State proceeded to trial on Counts I and

II, as scheduled. However, Word was not present at trial. Defense counsel stated, “Your

Honor, personally I am ready [for trial]; however, for whatever reason, my client has, which

he has the right to do so, has chosen not to exercise his right to be present for the trial today.”

Defense counsel then requested a continuance.

¶4.    The trial judge noted that Word had rejected a plea offer less than a month earlier.

The judge then asked defense counsel if he had attempted to contact Word that day, and

counsel replied, “No sir. Your Honor, I have not. I did not have any contact with him last

week when I attempted to contact him.” The judge then denied the request for a continuance.

Afterward, defense counsel stated, “Your Honor, I just would state for the record that Mr.

Word was told both verbally and in writing on numerous occasions when to be present for

trial, if he so desired to be present.”1

¶5.    During the State’s case-in-chief, Frank Caswell, a probation officer with MDOC,



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           The State similarly noted, “Mr. Word knew he had the right to be [at trial.]”

                                                2
testified that in May 2017, Word was on probation and was being monitored by a Global

Positioning System device (GPS). On May 9, 2017, Caswell and Gary Welch, another

MDOC employee, went to Word’s last known location—near an apartment complex in

Sardis, Mississippi—to find Word because he had failed to charge the battery on his GPS.

¶6.    When they arrived at Sardis Garden Apartments, Word was sitting outside on an air

conditioning unit. Both Casewell and Welch testified that Word was “out of it” and appeared

to be under the influence of a substance. They also testified that they noticed a plastic bag

with a green leafy substance hanging out of Word’s pocket. As a result, Caswell and Welch

placed Word in custody and transported him to the DeSoto County Jail.

¶7.    Wiley Lowder III resided at Sardis Garden Apartments, and he testified that Word

spent a few nights at his apartment. According to Lowder, his friend Ashley and her friend

Cody lived with him, and Word was Cody’s friend. Lowder testified that while Word was

staying at the apartment, Word put two boxes in a closet that was used for storage. Lowder

knew that one of the boxes contained a drone because he saw Word flying it in the backyard,

but he did not know what was in the other box. Lowder explained, “I figured it was parts for

the drone. It wasn’t my business, so I didn’t open . . . it.”

¶8.    Sergeant James Hawkins with the Sardis Police Department testified that he went to

the apartment complex around 7:30 p.m. to follow up on an unrelated issue. During that

time, Lowder approached him and told him that Word had left two boxes in his apartment—a

black plastic box and a cardboard box. According to Sergeant Hawkins, the plastic box

contained a drone and a receipt. The receipt indicated that Christopher Word was the



                                               3
recipient and listed a Hernando, Mississippi address. It also indicated that the drone was

purchased for $3,438. According to Sergeant Hawkins, the cardboard box contained a

vacuum sealer, shrink wrap, approximately nineteen cell phones, cell phone chargers, a

distributor cap,2 cigarettes, and what appeared to be marijuana in vacuum sealed bags. In

addition, the shipping label attached to the cardboard box listed Christopher Word as the

recipient, and it listed the same Hernando, Mississippi address as the receipt for the drone.

¶9.    Tyler Mills, a Narcotics Investigator with the Panola County Sheriff’s Department,

testified that a wallet was also found alongside the boxes. According to Investigator Mills,

the wallet contained Word’s ID, which listed a Hernando, Mississippi address. Investigator

Mills testified that the narcotics evidence was turned over to him, and he submitted it to the

Mississippi Forensics Laboratory. The prosecutor asked Investigator Mills, “As a narcotics

investigator, when you find a drone with some vacuum sealed [drugs], what are your

immediate thoughts?” And Investigator Mills replied, “That [the suspect is] dropping it off

somewhere that it probably [doesn’t] need to be,” such as a correctional facility.

¶10.   Finally, Steve Sanders, an employee with the Mississippi Forensics Laboratory,

testified that he analyzed four separate submissions for the presence or absence of a

controlled substance—one Ziploc bag containing a green leafy substance and four vacuum

sealed bags containing a green leafy substance. He testified that Submission 001 (the Ziploc

bag) contained 69.65 grams of MMB-FUBINACA. Submission 002, which constituted two

bags, contained 110.46 grams of MMB-FUBINACA and 5-fluoro ADB and 111.11 grams

       2
        Sergeant Hawkins explained that a distributor cap is often used to charge cell
phones in correctional facilities.

                                              4
of 5-fluoro ADB. Submission 003 contained 222.13 grams of 5-fluoro ADB. And

Submission 004 contained 190.80 grams of 5-fluoro ADB.3

¶11.   At the conclusion of its case-in-chief, the State reduced the charge in Count I from

“possession with intent” to “simple” possession. And at the conclusion of the trial, the jury

found Word guilty of the charges in Counts I and II. Subsequently, Word filed a motion for

a judgment notwithstanding the verdict or, in the alternative, a new trial. After a hearing, the

court denied Word’s motion. Then the court entered an order effectively amending the

indictment to charge Word as a non-violent habitual offender as opposed to a violent habitual

offender. Word was sentenced as a non-violent habitual offender to serve sixteen years for

the charge in Count I and forty years for the charge in Count II to be served concurrently in

the custody of the MDOC. The court also ordered Word to pay court costs.

¶12.   Now Word appeals, claiming the trial court erred by denying his attorney’s request

for a continuance and proceeding to trial in his absence. Word also claims sufficient

evidence did not support the jury’s verdict regarding the charge in Count II.

                                       DISCUSSION

       I.      Trial in Absentia

¶13.   This Court reviews a circuit court’s decision to try a defendant in absentia under an

abuse-of-discretion standard. McDonald v. State, 226 So. 3d 626, 629 (¶6) (Miss. Ct. App.

2017). An accused’s right to be present at every stage of his trial is guaranteed by the Sixth

Amendment to the United States Constitution and Article 3, Section 26, of the Mississippi



       3
           MMB-FUBINACA and 5-fluoro ADB are synthetic forms of marijuana.

                                               5
Constitution; “[h]owever, this right is not absolute and may be waived.” Carroll v. State, 196

So. 3d 1054, 1057 (¶11) (Miss. Ct. App. 2016) (citing Wales v. State, 73 So. 3d 1113, 1118

(¶12) (Miss. 2011)).

¶14.   Mississippi Code Annotated section 99-17-9 (Rev. 2015) states:

       In criminal cases the presence of the prisoner may be waived (a) if the
       defendant is in custody and consenting thereto, or (b) is on recognizance or
       bail, has been arrested and escaped, or has been notified in writing by the
       proper officer of the pendency of the indictment against him, and resisted or
       fled, or refused to be taken, or is in any way in default for nonappearance, the
       trial may progress at the discretion of the court, and judgment made final and
       sentence awarded as though such defendant were personally present in court.

In addition to the above statute, the Mississippi Supreme Court and this Court have held that

if a defendant takes willful, voluntary, and deliberate actions to avoid trial, he has waived the

right to be present at trial and may be tried in absentia. See Jefferson v. State, 807 So. 2d

1222 (¶18) (Miss. 2002); see also McDonald, 226 So. 3d at 629 (¶6).

¶15.   Word points out that in some cases “where the appellate court has upheld a trial in

absentia, the trial court . . . granted a continuance before proceeding to trial without the

defendant present.” Word also points out that “[i]n other cases, the appellate court has

affirmed the trial in absentia when the record clearly showed the defendant willfully avoided

trial.” See Haynes v. State, 208 So. 3d 4, 7 (¶13) (Miss. Ct. App. 2016) (“[W]hen a trial in

absentia has been affirmed where continuances have not been granted to the defendant, it has

been clear that the defendant willfully avoided trial.”). Word claims there was no evidence

that he willfully avoided trial and therefore the trial court abused its discretion when it

decided to try him in absentia without first granting a continuance. We disagree.



                                               6
¶16.    On March 19, 2018, Word pled not guilty to the charges against him, and the court

entered an order setting trial for May 14, 2018. In the meantime, Word rejected a plea offer

on April 17, 2018. Word signed the rejection and stated that he wished to proceed to trial.

¶17.    When trial commenced, defense counsel stated, “Your Honor, personally I am ready

[for trial]; however, for whatever reason, my client has, which he has the right to do so, has

chosen not to exercise his right to be present for the trial today.” (Emphasis added). Defense

counsel then requested a continuance. After the judge denied the request, defense counsel

stated, “Your Honor, I just would state for the record that Mr. Word was told both verbally

and in writing on numerous occasions when to be present for trial, if he so desired to be

present.” (Emphasis added). The State similarly noted, “Mr. Word knew he had the right

to be [at trial.]”

¶18.    During voir dire, defense counsel reiterated that Word chose not to attend his trial.

Counsel stated, “[Word] has a right, if he wants to be, not to be present for that trial. He’s

put all of his faith in me, I guess, which is what he’s chosen to do.” (Emphasis added). And

counsel stated, “I also ask anyone, again we’ve been through this before, not to hold it

against my client because he chose to exercise his right not [to] be here.” (Emphasis added).

¶19.    Because there was evidence that Word willfully avoided trial, we find that the trial

court did not abuse its discretion when it decided to try him in absentia. Therefore, this issue

is without merit.

        II.     Sufficiency of the Evidence

¶20.    Word claims the jury’s verdict regarding the charge in Count II, possession of 200



                                               7
grams or more of 5-fluoro-ADB with intent, was not supported by sufficient evidence. Word

does not challenge the jury’s verdict in Count I.

¶21.   When reviewing a challenge to the sufficiency of the evidence, “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.” Reynolds v. State, 227 So. 3d 428, 436 (¶32) (Miss. Ct. App. 2017). “The issue on

appeal is not whether the reviewing court would have found the defendant guilty; rather, the

conviction must be affirmed if there was sufficient evidence for ‘any rational trier of fact’

to have rendered a guilty verdict.” Id.

¶22.   “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.” O’Donnell v. State, 173 So. 3d 907, 916 (¶22) (Miss. Ct. App. 2015) (quoting Glidden

v. State, 74 So. 3d 342, 345 (¶12) (Miss. 2011)). Because Word was charged with possession

with intent, the State also had to prove that he intended to sell, barter, transfer, distribute, or

dispense the controlled substance. Miss. Code Ann. § 41-29-139(a)(1) (Rev. 2018). This

Court has held that “[p]ossession of a controlled substance may be actual or constructive.”

O’Donnell, 173 So. 3d at 917 (¶22) (quoting Johnson v. State, 81 So. 3d 1020, 1023 (¶7)

(Miss. 2011)). Because the synthetic marijuana in Count II was not found on Word’s person,

he was convicted under the theory of constructive possession. To establish constructive

possession, the contraband “merely has to be found near the defendant ‘in a place over which



                                                8
the defendant exercises dominion or control.’” Id. (quoting Glidden, 74 So. 3d at 348 (¶20)).

But when contraband is found on premises not owned by the defendant, “the State must show

other incriminating circumstances, in addition to proximity, in order to prove constructive

possession.” Id. (quoting Cheatham v. State, 12 So. 3d 598, 601 (¶7) (Miss. Ct. App. 2009)).

¶23.   At trial, Caswell testified that when he arrived at the Sardis Garden Apartments, Word

was sitting outside on an air conditioning unit. Sergeant Hawkins testified that, later that

evening, two boxes—one containing a drone and one containing synthetic marijuana,

cigarettes, cell phones, cell phone chargers, a distributor cap, a vacuum sealer, and shrink

wrap—were found inside one of the apartments. In addition to Word’s proximity to the

boxes, both boxes had Word’s name and address on them. Lowder testified that he saw

Word flying the drone, and both Investigator Mills and Welch testified that it had become

a common practice to use drones to smuggle contraband into correctional facilities.

Furthermore, when the MDOC officers found Word, he had a bag of synthetic marijuana in

his pocket.

¶24.   After viewing the evidence in the light most favorable to the prosecution, we find that

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. Therefore, this issue is without merit.

¶25.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., TINDELL, LAWRENCE
AND C. WILSON, JJ., CONCUR. McCARTY, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY WESTBROOKS AND McDONALD, JJ.

       McCARTY, J., DISSENTING:



                                              9
¶26.   Because our precedent would have our trial courts first grant a continuance before

trying a defendant in absentia when there was no actual evidence the defendant willfully

avoided trial, I must respectfully dissent.

¶27.   “[O]ur precedent supports granting [a defendant] a continuance before trying him in

absentia.” Haynes v. State, 208 So. 3d 4, 6 (¶12) (Miss. Ct. App. 2016). In this case, defense

counsel asked for a continuance, and it was denied. Defense counsel admitted that he had

made no effort to contact the defendant the morning of trial, and the trial court did not

attempt to have a deputy or any other agent contact or retrieve him. In accordance with our

precedent, a continuance should have been granted in order to safeguard the constitutional

rights of not only this defendant, but all those who face trial.

¶28.   Furthermore, we should only try a defendant in absentia when there is actual evidence

“based on willful, voluntary and deliberate actions by a defendant in avoiding trial . . . .”

Jefferson v. State, 807 So. 2d 1222, 1227 (¶18) (Miss. 2002). In that case, the defendant

“was clearly aware of the date of his trial, he was granted two continuances, and evidence

was presented that he had expressed a clear intention to evade trial.” Id.; accord Haynes, 208

So. 3d at 7-8 (¶16) (reversing for a new trial where there was evidence that the defendant was

indigent, having car trouble, and was unable to be contacted because his phone was out of

minutes).

¶29.   In contrast, in this case we have defense counsel saying his client “chose” not to show

up. The word may not have the heavy meaning imparted to it by this decision, and it may

have just been chosen to respectfully defer to the trial court. In any event, it was just a word



                                              10
counsel chose, and as a matter of law, “statements made by counsel are not evidence.”

Sullivan v. State, 2018-KA-00221-COA, 2019 WL 2428773, at *19 (¶92) (Miss. Ct. App.

June 11, 2019); Miskell v. State, 230 So. 3d 345, 359 (¶51) (Miss. Ct. App. 2017) (approving

a jury instruction that “[a]rguments, statements and remarks of counsel are intended to help

you understand the evidence and apply the law, but are not evidence”). There was no actual

evidence that the defendant was deliberately avoiding trial, and the defendant’s decision to

reject a plea deal a few weeks earlier has nothing to do with the morning of trial.

¶30.   If there had been an actual attempt to locate the defendant, coupled with a

continuance, and he still did not appear, I would agree with today’s decision. Yet those

precautionary steps to safeguard his constitutional rights were not taken, and in their absence

we should not affirm. For this reason, I respectfully dissent.

       WESTBROOKS AND McDONALD, JJ., JOIN THIS OPINION.




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