                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2015-KA-00562-SCT

BRODRICK AKEEM MOODY a/k/a BRODRICK
MOODY

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                           05/16/2014
TRIAL JUDGE:                                HON. MARCUS D. GORDON
TRIAL COURT ATTORNEYS:                      JACK THAMES
                                            CHRISTOPHER COLLINS
COURT FROM WHICH APPEALED:                  LEAKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     EDMUND J. PHILLIPS, JR.
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                          MARK SHELDON DUNCAN
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                REVERSED AND REMANDED - 10/27/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE RANDOLPH, P.J., COLEMAN AND MAXWELL, JJ.

       RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:

¶1.    Brodrick Moody was found guilty of possession of a cell phone while confined in a

correctional facility and was sentenced to serve ten years, to run consecutively to the sentence

he was serving. Moody asserts the trial court erred in instructing the jury as to the applicable

law and burden of proof. We find that the trial court erred in instructing the jury and reverse

Moody’s conviction, vacate his sentence, and remand for a new trial consistent with this

opinion.

           STATEMENT OF THE FACTS AND PROCEEDINGS BELOW
¶2.    Moody was indicted by a Leake County grand jury for “willfully and feloniously

possess[ing] a cell phone while confined in a correctional facility . . . in violation of Section

47-5-193, Miss. Code Ann. (1972).” At trial, Tommy Duck, an officer for the Leake County

Correctional Facility (“Facility”) and the Sheriff’s Office, testified that on October 2, 2013,

he was involved in conducting a “shakedown” by which prisoners are strip-searched,

common areas are searched, and prisoners’ personal items and areas are searched. Duck

searched inmate Moody in a common area of the prison. While Moody was dressing, Duck

observed Moody reach down to pick up something off the floor. Duck asked Moody to hand

him what Moody had picked up off the floor. Moody handed him a cell phone. Duck then

turned the phone over to Lieutenant Michael Beasley, the officer in charge of the shakedown.

Duck filled out an incident report and a rules violation report. Duck testified that he found

no other cell phones or cell phone accessories during his search of other prisoners while

conducting the shakedown.

¶3.    Beasley, Assistant Chief of Security for the Facility, testified that he was observing

the officers during the shakedown strip-search of inmates at the Facility on October 2, 2013.

Beasley testified that he was given a phone found by Duck after Duck searched inmate

Moody. Beasley then placed the phone in an evidence bag and placed the bag in the evidence

locker located in the captain’s office.

¶4.    Investigator Justin Sims, employed by the Leake County Sheriff’s Office, testified that

he retrieved the cell phone from the Facility on October 14, 2013. The cell phone was then




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placed in an evidence locker at the Sheriff’s Office and later was moved to a vault. Following

Sims’s testimony, the State rested.

¶5.    Moody moved for a directed verdict, but this motion was overruled by the trial court.

Moody elected not to testify, and the defense rested without putting on any witnesses. The

jury returned a verdict which found Moody “guilty as charged.” Moody was sentenced to a

term of ten years in the custody of the Mississippi Department of Corrections, with his

sentence to run consecutively to the sentence he already was serving.

¶6.    Moody filed a motion for a new trial, which was denied. Moody was granted leave to

file an appeal in forma pauperis. Moody raises only one issue on appeal– whether the trial

court erred in granting jury instruction S-4.1

                                STANDARD OF REVIEW

¶7.    “Jury instructions are generally within the discretion of the trial court and the settled

standard of review is abuse of discretion.” Bailey v. State, 78 So. 3d 308, 315 (Miss. 2012).

This Court reviews jury instructions as a whole. Boyd v. State, 47 So. 3d 121, 123 (Miss.

2010). When those instructions, “taken as a whole fairly–although not perfectly–announce

the applicable primary rules of law . . . no reversible error will be found.” Id. at 124.

                                         ANALYSIS

¶8.    Moody asserts that the trial judge erred when he instructed the jury as follows:

       A person who is charged with the crime of possession of a cell phone in a
       correctional facility is presumed to be in constructive possession of a cell



       1
         This instruction was a revision of S-3 and was handwritten on the bottom of jury
instruction S-3.

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       phone that is found unless that presumption is overcome by competent
       evidence.

Moody argues that the jury instruction denied him “due process and a fair trial because it

violated the requirement of proof beyond a reasonable doubt for conviction and violated the

presumption of innocence.”

¶9.    The United States Supreme Court has held emphatically that presumptive instructions

violate the Due Process Clause in that presumptive instructions shift the burden of proof to

the defendant on an essential element of the charged offense (in this case, possession).

Sandstrom v. Montana, 442 U.S. 510, 521, 99 S. Ct. 2450, 61 L. Ed. 2d 39 (1979); Francis

v. Franklin, 471 U.S. 307, 325, 105 S. Ct. 1965, 85 L. Ed. 2d 344 (1985). Additionally, the

Supreme Court found that “general instructions as to the prosecutor’s burden and the

defendant’s presumption of innocence do not dissipate the error. . . .” Francis, 471 U.S. at

319-20. This Court similarly has held that presumptive instructions are improper. In Tran v.

State, 681 So. 2d 514, 516 (Miss. 1996), the jury was given the following instruction:

“Deliberate design may be presumed from the unlawful and deliberate use of a deadly

weapon.” (Emphasis added.) This Court held that the instruction was given in error because

“it relieved the prosecution of its [burden of] persuasion.” Id. at 518. In Williams v. State,

111 So. 3d 620 (Miss. 2013), this Court stated that:

       “presume” . . . is defined as “to assume to be true without proof to the
       contrary.” Webster’s II New College Dictionary 875 (2001). . . . As a
       presumption is accepted as true without proof to the contrary, it follows that
       the burden was shifted to the defendant to provide proof.




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Williams, 111 So. 3d at 625. Likewise, in the present case, the burden was shifted improperly

to Moody to provide proof that he was not in constructive possession of the cell phone.

¶10.   In cases discussing possession of other types of contraband, this Court has held that:

       [c]onstructive possession has been the subject of frequent interpretation by this
       Court. Actual physical possession need not be shown for conviction if the
       contraband is in the constructive possession of the accused. If the substance is
       subject to the defendant’s dominion or control, it is said to be within . . . his
       constructive possession.

Miller v. State, 634 So. 2d 127, 129 (Miss. 1994). This jury was wrongly instructed that

possession was presumed. The presumptive nature of the instruction is contrary to the law

of our State.

¶11.   Often, less grievous errors are cured by other instructions. However, no other

instruction could cure S-4. Moody argues, and this Court agrees, that the instruction relieved

the State of its burden of proving an element of the offense beyond a reasonable doubt and

presumed Moody’s guilt. Therefore, we find that the trial court erred in granting the jury

instruction.

¶12.   As the focus of our inquiry is on an instruction, we would be remiss, in light of this

case being remanded for a new trial, if we did not note that an instruction offered by Moody

and granted by the trial court should not have been given. Moody provided the following

instruction as D-8:

       The Defendant, Brodrick Akeem Moody, has been charged with the offense
       of Possession of a Cell Phone in a Correctional Facility.

       Before you can return a verdict of guilty as charged, the State of Mississippi
       must have proven to you beyond a reasonable doubt from the evidence that:



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               1. The Defendant did on October 2, 2013

               2. take, attempt to take, or assist in taking an unauthorized
               electronic device, cell phone or any of its components or
               accessories to include, but not limited to, a black cell phone

               3. on the property of the Leake County [C]orrectional Facility.

        If the State of Mississippi has failed to prove any one or more of the above
        listed elements beyond a reasonable doubt, then you shall find Brodrick
        Akeem Moody, “Not Guilty.”

(Emphasis added.) This instruction is not supported by the record evidence. Moody was

indicted under Section 47-5-193, which reads that it is unlawful for a prisoner to:

        possess, furnish, attempt to furnish, or assist in furnishing to any offender
        confined in this state any weapon, deadly weapon, unauthorized electronic
        device, contraband item, or cell phone or any of its components or accessories
        to include, but not limited to, Subscriber Information Module (SIM) cards or
        chargers.

Miss. Code Ann. § 47-5-193 (Rev. 2015) (emphasis added). Section 47-5-193 further reads

that:

        [i]t is unlawful for any person or offender to take, attempt to take, or assist in
        taking any weapon, deadly weapon, unauthorized electronic device,
        contraband item, cell phone or any of its components or accessories to include,
        but not limited to, Subscriber Information Module (SIM) cards or chargers on
        property within the state belonging to the department, a county, a municipality,
        or other entity that is occupied or used by offenders, except as authorized by
        law.

Id. (emphasis added). Moody was indicted and convicted of possessing a cell phone in a

correctional facility. However, Moody’s Instruction D-8 instructed the jury as to persons

taking cell phones into correctional facilities. Transporting contraband and possessing




                                                6
contraband are distinctly different. On remand, all instructions should properly track the

language of the applicable statute and have an evidentiary basis.

                                      CONCLUSION

¶13.   For the reasons stated above, we find that the trial court erred in instructing the jury,

even when viewing the instructions as a whole. Instruction S-4 improperly shifted the burden

of proving Moody was not in constructive possession of the cell phone to Moody. We reverse

Moody’s conviction, vacate his sentence, and remand this matter to the Leake County Circuit

Court for a new trial consistent with this opinion.

¶14.   REVERSED AND REMANDED.

   WALLER, C.J., DICKINSON, P.J., LAMAR, KITCHENS, KING, COLEMAN,
MAXWELL AND BEAM, JJ., CONCUR.




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