                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CT-02016-SCT

VINCENT CARNELL HUDSON a/k/a SLIM

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI


DATE OF JUDGMENT:                         11/01/2007
TRIAL JUDGE:                              HON. C. E. MORGAN, III
COURT FROM WHICH APPEALED:                WINSTON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF INDIGENT APPEALS
                                          BY: PHILLIP W. BROADHEAD
                                          LESLIE S. LEE
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LISA LYNN BLOUNT
DISTRICT ATTORNEY:                        DOUG EVANS
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              REVERSED AND RENDERED - 03/25/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    This certiorari review arises from Vincent Hudson’s conviction of possession of a

“trace” amount of cocaine found in his clothes. Because the evidence introduced at trial was

insufficient to show that he knew the cocaine was present and that he consciously and

intentionally had possessed it, we reverse and render Hudson’s conviction and the Winston
County Circuit Court’s imposition upon him of a life sentence without the possibility of

parole.

                                             FACTS

¶2.       On February 6, 2007, Vincent Carnell Hudson (“Vincent”) was riding in the passenger

seat of a car driven by his brother, Hillute Hudson (“Hillute”).1 As the vehicle was traveling

on Barrymore Street in Louisville, Mississippi, Officer Patrick Estes of the Louisville Police

Department pulled it over for speeding. Just after the stop, Officer Estes noticed what he

called “extreme [and] unnecessary movement” by Vincent. When he approached the vehicle,

Officer Estes learned Hillute’s identity when he asked for his driver’s license. Prior to the

traffic stop and as Officer Estes was conversing with Hillute, Vincent was drinking beer and

eating chicken. Officer Estes returned to his patrol car and ran a background check on

Hillute, by which he learned that Hillute had a suspended license. Hillute also had an

outstanding warrant issued by the Philadelphia, Mississippi, Police Department for contempt

of court. While he was writing the citations, Officer Estes saw Vincent looking backward

toward the patrol car and reaching toward the back seat of the car. As a precaution, Officer

Estes called Lieutenant Andy Taylor to the scene and approached the vehicle again.

¶3.       Officer Estes arrested Hillute for driving with a suspended license and pursuant to the

outstanding warrant. Officer Estes patted down Hillute and found marijuana in a cigarette

package on his person. Hillute was handcuffed and secured in the back of the patrol car.

Then, Officer Estes returned to the vehicle, where he arrested Vincent for having the open



          1
         It was later determined that the car was registered to Osler M. Houston of Rock
Island, Illinois.

                                                 2
container of beer in violation of a local ordinance. Vincent was patted down, checked,

handcuffed, and placed in the back of the patrol car as well. Both Officer Estes and

Lieutenant Taylor searched Vincent, but neither officer found any controlled substances on

Vincent’s person or in his clothes during these pat-down searches. Officer Estes and

Lieutenant Taylor then searched the vehicle and found some marijuana in the ashtray.2 They

also found a bag on the back seat of the car near the area Officer Estes had seen Vincent

reaching. The bag contained cocaine, methylenedioxymethamphetamine (“ecstacy”), and

marijuana. Officer Estes then called Agent Barry McWhirter of the Mississippi Bureau of

Narcotics to the scene to handle the drugs.

¶4.    The Hudson brothers were transported to the Winston County jail for questioning.

Vincent stated during questioning that he did not know anything about the drugs in the car.

Agent McWhirter testified that, during questioning, Vincent appeared to have been impaired.

When Agent McWhirter asked Vincent about his impairment, Vincent stated that he had been

working around paint thinner earlier that day while painting a vehicle. At some point

thereafter, the clothes Vincent had been wearing at the time of his arrest were seized by jail

officials.3 Agent McWhirter was not present at the time Vincent’s clothes were seized.

¶5.    The day after the arrest, Agent McWhirter collected Vincent’s clothes from the jail.

The following day, Agent McWhirter personally transported the clothes, along with the bag

of drugs found on the back seat of the car, to the Mississippi Crime Laboratory. Agent


       2
        Hillute later admitted to possession of the marijuana found on his person and the
marijuana found in the ashtray.
       3
         The record does not indicate, and the State put forth no evidence at trial, that jail
officials found any controlled substances on Vincent’s person or in his clothes at the jail.

                                              3
McWhirter testified that he had seized Vincent’s clothes and had asked the crime lab to

“check the pockets of the pants and shirt . . . [i]n case there had been anything in the pocket

of evidentiary value that they could find that would be related to our case.” The Mississippi

Crime Laboratory tested Vincent’s clothing and later reported that “trace” amounts of

cocaine were found in them. Vincent was charged with one count of felony possession of

the cocaine in his clothes and one count, each, of felony possession of the cocaine, ecstacy,

and marijuana found in the bag on the back seat of the car.

¶6.    At trial on November 1, 2007, in addition to testimony from Officer Estes and Agent

McWhirter, the state crime lab forensic examiner, Brandy Goodman, testified that she had

tested Vincent’s clothing and had found a “trace” amount of cocaine in one shirt pocket and

one pants pocket. She described a “trace” amount as “an amount that I can physically see

that there is something there, but it is not a weighable amount of substance.” Goodman

stated that, by an amount which she can “physically see,” she means “just a very, very minute

amount of substance [such as] possibly flakes or crumbs.” Two vials were produced and

entered into evidence containing what was left of the substance found in Vincent’s clothes.

Goodman stated that some of the substance had been destroyed through the chemical testing,

but that the vials contained “most of what [she] found” in Vincent’s clothes. Nonetheless,

Goodman admitted on cross-examination that the substance in the vials was “a lot less” than

one-tenth of a gram. When Vincent’s defense counsel examined the vials and published

them to the jury, he stated, “I am having a terrible time seeing anything in there,” to which

Goodman replied, “[t]hat is because it was a trace amount.” At the conclusion of the State’s




                                              4
case-in-chief, Vincent’s defense counsel moved for a directed verdict, which was denied.

Vincent did not testify.

¶7.    The jury found Vincent Hudson not guilty of all three counts of possession of the

drugs in the bag on the back seat of the car, but returned a guilty verdict with respect to the

felony charge of possession of the “trace” amount of cocaine found in his clothes. Because

he was found to be a habitual offender pursuant to Mississippi Code Section 99-19-83 (Rev.

2007),4 the Winston County Circuit Court sentenced Vincent to life imprisonment in the

custody of the Mississippi Department of Corrections (“MDOC”) without eligibility for

parole. Vincent filed an unsuccessful post-trial motion for a judgment notwithstanding the

verdict (JNOV) or, alternatively, for a new trial.

¶8.    Aggrieved by his conviction and sentence, Vincent appealed, arguing that the

evidence was insufficient to convict him, and that his sentence is grossly disproportionate to

the crime of which he was convicted and amounts to cruel and unusual punishment. The

Court of Appeals affirmed Vincent’s conviction and sentence by a vote of nine to zero (9-0).

Hudson v. State, 2009 WL 311167 (Miss. Ct. App. Feb. 10, 2009). Vincent petitioned for

certiorari, which this Court granted on November 5, 2009. We find the first issue regarding

the sufficiency of the evidence dispositive.

                                STANDARD OF REVIEW



       4
         Vincent was convicted in 1978 and served nearly three years, from 1978 to 1981,
on a five-year sentence for felony shoplifting, a two-year sentence for possession of heroin,
and a one-year sentence for aggravated assault on a law enforcement officer. Vincent also
was convicted in 1982 for armed robbery and served more than fifteen years of a thirty-year
sentence, from 1982 to 1997. Finally, Vincent was convicted in 2005 for felony driving
under the influence (DUI) and served just over a year on a five-year sentence.

                                               5
¶9.    In considering whether the evidence is sufficient to sustain a conviction in the face of

a motion for directed verdict or for JNOV, 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.” Bush v. State, 895 So. 2d

836, 843 (Miss. 2005) (citing Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). Hence, 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.” Dilworth v. State, 909 So. 2d 731, 736 (Miss. 2005) (citing

Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). We

explained in Dilworth that:

       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, i.e. reverse and discharge. However, if a review
       of the evidence reveals that it is of such quality and weight that, “having in
       mind the beyond a reasonable doubt burden of proof standard, reasonable fair-
       minded men 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.

Dilworth, 909 So. 2d at 736 (internal citations omitted).

                                       DISCUSSION

                Whether the evidence was sufficient to convict Vincent.

¶10.   Vincent was charged and convicted under Mississippi Code Section 41-29-

139(c)(1)(A), which makes it a crime to possess less than one-tenth (0.10) gram of a



                                              6
controlled substance. Miss. Code Ann. § 41-29-139(c)(1)(A) (Rev. 2009).5 Possession of

a controlled substance may be actual or constructive. Berry v. State, 652 So. 2d 745 (Miss.

1995) (citing Wolf v. State, 260 So. 2d 425, 432 (Miss. 1972)). This Court has explained

that:

        [w]hat constitutes a sufficient external relationship between the defendant and
        the narcotic property to complete the concept of “possession:” is a question
        which is not susceptible to a specific rule. However, there must be sufficient
        facts to warrant a finding that 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 that the drug involved was subject
        to his dominion or control. Proximity is usually an essential element, but by
        itself is not adequate in the absence of other incriminating circumstances.

Dixon v. State, 953 So. 2d 1108, 1112 (Miss. 2007) (quoting Curry v. State, 249 So. 2d 414,

416 (Miss. 1971).

¶11.    In other words, “[t]he law states that actual possession is not needed, that constructive

possession will do.” Smith v. State, 839 So. 2d 489, 497 (Miss. 2003). 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, “[t]he State ha[s] to prove that [the




        5
         Section 41-29-139(c)(1)(A) gives the prosecutor discretion to charge the crime either
as a felony, which carries a maximum prison term of four years, or as a misdemeanor, which
carries a maximum prison term of one year. Id. As the constitutionality of Section 41-29-
139(c)(1)(A) has not been specifically pleaded, we do not address it here. Trainer v. State,
930 So. 2d 373, 377 (Miss. 2006); Martin v. Lowery, 912 So. 2d 461, 466 (Miss. 2005).

                                                7
defendant] was aware of the cocaine and intentionally, but not necessarily physically,

possessed it.” Id. (citing Curry, 249 So. 2d at 416) (emphasis added). “[T]o 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[.]” Cunningham v. State, 583 So. 2d 960,

962 (Miss. 1991) (citing Curry, 249 So. 2d at 416).

¶12.   Here, it is undisputed that the “trace” amount of cocaine which Vincent was convicted

of possessing was in the pockets of the clothes he was wearing when he was arrested. Hence,

at the time of his arrest, Vincent actually physically possessed the cocaine. The State found

it necessary to apply the “constructive possession” rationale regarding the drugs in the bag

found on the back seat of the car, but Vincent was acquitted of those charges. Thus, this

appeal does not involve an issue of constructive possession. But even if it did, as the dissent

argues, the State still was required to prove that Vincent “was aware of the cocaine and

intentionally . . . possessed it.” Smith, 839 So. 2d at 497.

¶13.   The State argues that it “established the clothes belonged to Hudson, the clothes

contained cocaine[,] and a juror could reasonably infer Hudson knew the clothes contained

[cocaine].” In other words, the State asserts that “[o]ne could reasonably infer that because

the cocaine was in the shirt and pants pockets Hudson was wearing at the time of arrest that

he had knowledge that he possessed the drug.” Vincent argues that possession of a “trace”

amount of cocaine is insufficient to support a conviction of actual possession. Specifically,

Vincent argues that the State did not prove that he knew the minuscule, unweighable amount

of cocaine was present in his pockets, and if he did not know it was there, then obviously,




                                              8
he could not have consciously and intentionally possessed it. See Dixon, 953 So. 2d at 1112-

13.6

¶14.      With regard to possession of a controlled substance, this Court previously has held

that “the statute requires no minimum amount[, but] any identifiable amount, however slight,

constitute[s] a crime.” Hampton v. State, 498 So. 2d 384, 386 (Miss. 1986) (noting that

majority of jurisdictions under the Uniform Controlled Substances Act hold any amount

sufficient). Thus, possession of a mere “trace” amount of illegal drugs is sufficient to support

a conviction. Id.

¶15.      In Hampton, the prosecution met its burden of proving the defendant’s knowing

possession of a controlled substance. The police officer who pulled over Hampton witnessed

him staggering and acting disoriented. The officer patted Hampton down, as he testified at

trial, “for his protection,” and in doing so, felt a syringe in Hampton’s coat. The officer

seized the syringe, and “[h]e noticed some clear liquid in [it],” which later was identified as

pentazocine (commonly known as Talwin), a Schedule II controlled substance. The officer

asked Hampton if he would take a breath test, and without asking Hampton any other

questions, Hampton “smiled and made a statement that there was nothing in the syringe that

[the State] could use against him because he had already used it all.” Hampton, 498 So. 2d

at 385.




          6
        Vincent also argued before the Court of Appeals that the prosecution had failed to
prove that the clothes in which the cocaine was found were his own clothes. However,
Vincent does not assert this issue before this Court, so we do not address it.

                                               9
¶16.   Hampton was convicted of possession of the “trace” amount of Talwin in the syringe

and argued on appeal that “there was an insufficient amount of Talwin found in his

possession to constitute a crime.” Id. This Court rejected that argument, noting that “we are

not confined to the Talwin that was found in the syringe, because that coupled with

Hampton’s boast when he was arrested that he had ‘used it all,’ evidence[s] possession of a

greater amount.” Id. at 386. Thus, Hampton’s conviction and this Court’s affirmance of it

were based not only on the “trace” amount of Talwin found in the syringe, but also on

additional facts evincing his awareness (“knowledge”) of its presence there and his intent to

possess it. Hampton appeared impaired, the police officer who stopped Hampton actually

noticed the small amount of liquid in the syringe, and Hampton admitted to having used the

rest of it. Id. at 385-86.

¶17.   Another factually similar case, decided by the Court of Appeals, is Nance v. State,

948 So. 2d 459 (Miss. Ct. App. 2007). In that case, Nance was pulled over while driving for

failure to dim his headlights to an oncoming car driven by a sheriff’s deputy. During the

course of the traffic stop, Nance was evasive with his identification. Eventually, though,

Nance provided the deputy with his correct name, and the officer discovered that Nance had

an outstanding warrant for his arrest. Nance was arrested on the warrant and transported to

jail. As Nance was being booked into jail, a detention officer discovered in Nance’s clothing

a corner of a sandwich bag, which was tied up and contained a white powdery substance.

Nance stated that the bag was a candy wrapper and directed the officer to throw it away in

the trash. However, the officer collected the bag as evidence and sent it to the crime lab for

testing, where it was determined that the bag contained cocaine. Id. at 460.

                                             10
¶18.   Nance was convicted of possession of the cocaine, and he argued on appeal that “there

was insufficient evidence presented to the jury to prove that he knowingly possessed

cocaine.” Id. The Court of Appeals rejected that argument, explaining that:

       [T]he facts deduced at trial showed that Nance was in actual physical
       possession of the cocaine. The substance was found on his person during a
       routine booking at the jail house. While there is no requirement that the
       defendant be in actual physical possession to be found guilty, in this case, the
       proof clearly established that Nance physically possessed the bag containing
       cocaine. When Nance was questioned about the bag, he told the officer that
       the bag was a candy wrapper and asked the officer to dispose of the bag in the
       garbage. At no time did Nance disclaim the bag, as to suggest that it did not
       belong to him. In fact, he identified the bag, falsely, as a candy wrapper.
       Nance’s statements to the officer establish by deduction that he was the owner
       and in possession of the bag. He claimed ownership over the bag by giving
       permission to the officer to dispose of the bag containing cocaine. These acts
       and statements made by Nance, taken together, have sufficient weight so that
       a reasonable jury could find that Nance was in knowing possession of the
       cocaine.

Nance, 948 So. 2d at 461. Therefore, as in Hampton, Nance’s conviction and the appellate

court’s affirmance of it were based not only on the fact that the cocaine actually was

physically present on his person, but also on additional facts evincing Nance’s ownership of

the cocaine, his knowledge of its presence in his pocket, and his intent to possess it. Id. The

booking officer actually found the bag, Nance did not disclaim possession of it, and Nance

claimed ownership of the small amount of cocaine by instructing the officer to dispose of the

bag. Id.

¶19.   Pursuant to Hampton, “any identifiable amount, however slight, constitute[s] a

crime.” Hampton, 498 So. 2d at 386. Regardless of the amount, however, the prosecution

in this case was required to prove beyond a reasonable doubt that Vincent was aware of the

presence and character of the cocaine in his pockets and that he intentionally and consciously

                                              11
possessed it. Dixon, 953 So. 2d at 1112-13; Smith, 839 So. 2d at 497. In other words, the

prosecution had to prove both “knowledge” and “intent,” i.e., that Vincent knew it was in his

pockets, knew it was cocaine, and intended to possess it. Id. This burden of proof is more

difficult to meet when “trace” amounts are involved, because such minuscule amounts can

go unnoticed. But it is not impossible to prove. In both Hampton and Nance, the officers

themselves noticed the drug. In Hampton, the defendant admitted to knowing the drug was

present, and in Nance, the defendant claimed ownership over the drug by instructing the

officer to dispose of it. Therefore, in convicting Hampton and Nance of possession of a

“trace” amount of drugs, in addition to proving that the substance was, in fact, found on the

defendant’s person, the prosecution introduced additional evidence sufficient to establish that

the defendant had been aware of its presence there and had intended to possess it.

¶20.   The State did not meet this burden in this case. Although the prosecution did establish

that the cocaine was, in fact, physically present in Vincent’s clothes, that is not enough. The

State still had to prove that Vincent knew it was there.      Because the “trace” amount of

cocaine ultimately was found in the clothes Vincent was wearing at the time of his arrest, the

State asserts that the jury could have inferred that he knew it was there and intentionally had

possessed it. But the evidence adduced at trial does not support such an inference.

¶21.   The only evidence presented at trial in this regard was the testimony of Brandy

Goodman, the forensic examiner who discovered the “trace” amount of cocaine in two of

Vincent’s pockets. Goodman testified that a “trace” amount is an amount that “[she] can

physically see that there is something there [such as] possibly flakes or crumbs.” However,

Goodman also testified that a “trace” amount is “a very, very minute amount” and “not a

                                              12
weighable amount of substance.” And although the vials introduced into evidence still

contained “most of what [she] found” in Vincent’s clothes, Goodman stated that it was “a lot

less” than one-tenth of a gram. Goodman conceded that, “because it was a trace amount[,]”

Vincent’s defense counsel was “having a terrible time seeing anything in there.”

¶22.     Several inferences may be drawn from Goodman’s testimony. Because a “trace”

amount of cocaine was found in Vincent’s clothes, and a “trace” amount is an amount that

one “can physically see,” we may infer that the cocaine found in Vincent’s pockets could be

seen with the naked eye. However, because the same “trace” amount of cocaine was “a lot

less” than one-tenth of a gram, “a very, very minute” amount which is “not a weighable

amount,” we may infer that it was extremely difficult to see. In other words, as Vincent’s

counsel pointed out and Goodman conceded, a person could have “a terrible time seeing” it.

Therefore, the fact that the cocaine could have been seen does not establish that Vincent did,

in fact, see it. It is entirely possible that the cocaine found in Vincent’s pockets was visible,

but Vincent never saw it or knew it was there. That possibility is tantamount to reasonable

doubt.

¶23.     The evidence presented at trial strongly favors this conclusion. Vincent was patted

down and searched twice at the scene of the traffic stop, once by Officer Estes and once by

Lieutenant Taylor. Presumably, he was searched again at the jail when he was booked.

Unlike in Hampton and Nance, the officers did not find any contraband or controlled

substances on Vincent, and the jail officials did not find any drugs when they seized

Vincent’s clothes. Further, Agent McWhirter did not find any drugs in the clothes even

though he personally handled the clothes when he transported them to the crime lab. The


                                               13
“trace” amount of cocaine in Vincent’s pockets was first discovered by the forensic examiner

at the Mississippi Crime Lab. And unlike the defendants in Hampton and Nance, Vincent

did not admit to using the drugs or claim ownership of the cocaine. In fact, Vincent

specifically denied any knowledge of any controlled substances in the car. Finally, the

prosecution in Hampton proved Hampton’s impairment was caused by drug use because

Hampton had admitted to using the Talwin. Here, although Agent McWhirter testified that

Vincent appeared impaired, the evidence introduced at trial did not establish that Vincent’s

impairment was the result of recent cocaine use.7

¶24.   Beyond Goodman’s testimony, the prosecution adduced no evidence whatsoever that

Vincent knew the “trace” amount of cocaine was in his pockets. Thus, the State did not

prove beyond a reasonable doubt that Vincent was “aware” of the cocaine’s presence in his

pockets, much less that he intentionally and consciously was in possession of it, both

required elements of the crime of possession. Dixon, 953 So. 2d at 1112-13; Smith, 839 So.

2d at 497; Bush, 895 So. 2d at 843.8 The evidence presented against Vincent reveals that

“reasonable men could not have found beyond a reasonable doubt that [Vincent] was guilty

       7
          Agent McWhirter testified that Vincent had stated during questioning that his
impairment may have resulted from recent exposure to paint thinner, and Officer Estes
testified that during the traffic stop and immediately prior to his arrest, Vincent had been
drinking beer. The prosecution offered no evidence to contradict this testimony.
       8
         The dissent asserts that the evidence regarding the bag of drugs on the back seat of
the car and Vincent’s excessive movement and reaching into that area are circumstantial
evidence from which an inference can be drawn that Vincent was aware of the presence of
the cocaine in his pockets. But Vincent was acquitted of possession of the drugs in the bag
on the back seat of the car, so as far as this Court is concerned, he did not “possess” them.
Thus, Vincent’s alleged relationship to the bag of drugs found on the back seat of the car
cannot support an inference that Vincent was aware of the presence of the “trace” amount
of cocaine in two of his pockets.

                                             14
. . . .” Dilworth, 909 So. 2d at 736 (internal citations omitted). Suffice it to say, no evidence

was put forth by the State that anyone knew the “trace” amount of cocaine was present in

Vincent’s pockets until the forensic examiner found it at the crime lab.

¶25.   Therefore, the evidence was insufficient to convict Vincent of possession, and the trial

court erred when it denied Vincent’s motions for a directed verdict and for a JNOV. Id.

Hence, the proper remedy is for this Court to reverse and render Vincent’s conviction, “i.e.

reverse and discharge.” 9 Id.

                                       CONCLUSION

¶26.   Because the State did not prove beyond a reasonable doubt that Vincent Hudson was

aware of the presence and character of the “trace” amount of cocaine in his pockets, or that

he consciously and intentionally possessed it, the evidence put forth at trial was insufficient

to support his conviction for possession of the cocaine. Therefore, we reverse the Court of

Appeals and reverse and render Hudson’s conviction and sentence and order him discharged.

¶27.   REVERSED AND RENDERED.

      CARLSON AND GRAVES, P.JJ., DICKINSON, LAMAR AND KITCHENS,
JJ., CONCUR. RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY CHANDLER AND PIERCE, JJ.

       RANDOLPH, JUSTICE, DISSENTING:

¶28.   I would affirm the decisions of a Winston County jury, a Winston County circuit

judge and a unanimous Court of Appeals. The issues raised on appeal are (verbatim et

literatim):


       9
         Since Vincent’s conviction must be reversed, we do not address the proportionality
of his sentence.

                                               15
       (1) Whether the mandatory sentence of life imprisonment without possibility
       of parole for possession of a trace amount of cocaine without considering the
       extenuating circumstances such as the proportionality of the type of conviction
       compared to the amount of cocaine petitioner was accused of having
       possession thereof and the fact that the petitioner has never been convicted as
       a drug trafficker constitutes cruel and unusual punishment prohibited under the
       Eighth Amendment;
       and
       (2) Whether the trial court erred when it failed to grant appellant’s motion
       J.N.O.V. or, in the alternative, a new trial, when the State failed to prove by
       legally sufficient evidence beyond a reasonable doubt all the essential elements
       of knowing and felonious possession of a trace amount of cocaine on his
       clothing and the jury returned a verdict of guilty on the meager amount of
       evidence where the substance in question is so small that it cannot be seen.

The Court of Appeals found no error. Hudson v. State, 2009 WL 311167 (Miss. Ct. App.

Feb. 10, 2009). The majority, in reversing and rendering the petitioner’s conviction, orders

that the jury verdict must be set aside, opining that the evidence was insufficient to convict,

and does not address issue one raised by the petitioner. (Maj. Op. at ¶8).

                               Proportionality of Sentence

¶29.   The Court of Appeals found no merit in Hudson’s constitutional argument. Id. at *3.

I would affirm, as “this Court . . . [has] repeatedly held that where a sentence is within the

prescribed statutory limits, it will generally be upheld and not regarded as cruel and unusual.”

Stromas v. State, 618 So. 2d 116, 123-24 (Miss. 1993). The Court of Appeals correctly

found that “Hudson’s sentence . . . did not arise solely from his conviction of possession of

cocaine. Hudson was sentenced to life without parole for his status as a habitual offender

with a record as a violent offender.” Hudson, 2009 WL 311167, at *3. Hudson has five

previous convictions, two of which, armed robbery and aggravated assault of a law

enforcement officer, are crimes of violence. Hudson has spent more than eighteen of his last



                                              16
thirty-two years in the state prison system. In 1978, Hudson was convicted separately of

aggravated assault on a law enforcement officer in October, possession of heroin in

September, and felony shoplifting in April, and was given prison sentences of one, two, and

five years by the circuit courts of Winston, Lauderdale and Jones Counties. However, he

served less than three years. Freedom was short-lived, for in 1982 Hudson was convicted

of armed robbery in Lauderdale County and received a sentence of thirty years. He served

more than fourteen years of that sentence. Hudson’s next conviction came in 2005 in

Winston County. Hudson was convicted of felony DUI and received a sentence of five

years, serving only one year and two months.

¶30.   Our statute mandates a sentence of life imprisonment without the possibility of parole

for “[e]very person convicted in this state of a felony who shall have been convicted twice

previously of any felony . . . and who shall have . . . served separate terms of one (1) year or

more . . . and where any one (1) of such felonies shall have been a crime of violence . . . .”

Miss. Code Ann. § 99-19-83 (Rev. 2007). This Court has recognized that “it is properly

within the purview of the Legislature to determine the range of sentences, enunciating our

citizens' determination of the social impact of harmful behavior.” Davis v. State, 724 So. 2d

342, 344 (Miss. 1998). Regarding drug offenses in particular, the “the public has expressed

grave concern [and] . . . [t]he legislature has responded in kind with stiff penalties . . . .”

Stromas v. State, 618 So. 2d 116, 123 (Miss. 1993). The will of the people is expressed

through their representatives. I would not only affirm the judgment, for the reasons stated

infra, but also the sentence, for our statutes and caselaw confirm that the penalty is not

grossly disproportional.

                                              17
                                   Sufficiency of Evidence

¶31.    The basis of my dissent necessarily focuses on the evidence presented to the jury, and

the instructions of law given by the trial judge. I remain in accord with the time-respected

principle that a “rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Dilworth v. State, 909 So. 2d 731, 736 (Miss. 2005) (quoting

Jackson v. Va., 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560 (1979)). Our

Court is required to view “the evidence in the light most favorable to the prosecution.” Id.

It is not the function of an appellate court to create or permit inferences that one or more of

its members might draw from evidence to run contrary to the well-reasoned judgment of a

jury. See Seeling v. State, 844 So. 2d 439, 443 (Miss. 2003) (“[T]his Court . . . gives the

State the benefit of all favorable inferences that may reasonably be drawn from the

evidence”).

¶32.    The arresting officer, Estes, related to the jury his observation of Vincent’s physical

demeanor at the traffic stop. He testified of Vincent’s “extreme and unnecessary movement.”

He testified that Vincent “kept looking back toward my position and at one time reached

back in the back seat of the car . . . .   He . . . turned all the way around in the seat and

reached back . . . .” He further testified that a bag of drugs was found “laying on top of a

coat in plain view.” Estes related that “[t]he back seat was full of junk. . . . clothes, a spare

tire, a heater . . . .”

¶33.    The narcotics detective, McWhirter, testified regarding Vincent’s lack of mental

acuity. “He seemed to me to be impaired. . . . having a hard time talking. I was having a

hard time understanding a lot of what he was saying.” When asked why he believed Vincent

                                               18
was impaired, McWhirter replied, “The demeanor that he was in, his voice, . . . his speech,

slurred, and I had had conversations with him before that were not that way.”

¶34.   A pat down of Vincent failed to disclose any controlled substances visible to the

naked eye. However, after finding evidence of drugs in the car, including marijuana in the

ash tray; marijuana in a cigarette package in Hillute’s pocket; marijuana, ecstacy and cocaine

in the bag behind the front seat (the same area where Vincent was observed reaching), the

petitioner was arrested.

¶35.   There was evidence of drugs other than the cocaine in, as opposed to on, Vincent’s

clothes. Cocaine was found inside the pockets of two different garments that Vincent was

wearing. Additionally, marijuana was found in one of Vincent’s pockets. Brandy Goodman,

a forensic specialist “in the field of drug identification,” was called to testify. She has been

employed by the Mississippi Crime Laboratory for more than eight years and has a primary

duty to “analyze substances submitted by law enforcement personnel for the presence or

absence of a controlled substance.” She has a Bachelor of Science degree with a major in

molecular biology and a minor in chemistry. She earned a medical-technology certificate

through the American Society of Clinical Pathology, and is certified by the American Board

of Criminalistics as a technical specialist in drug identification. She was tendered as an

expert witness in the field of drug analysis without objection by the petitioner. Goodman

testified that she had used a gas chromatograph mass spectrometer and had run a standard to

verify the results. What she found in the pockets was (1) cocaine and marijuana in Vincent’s

right front pants pocket; (2) cocaine in Vincent’s right shirt pocket; (3) a substance for which

the data was insufficient to identify in Vincent’s left front pants pocket and right back pants


                                              19
pocket, “which means the instrument picked up possibly something there, but there was not

enough scientific data to verify”; and (4) no controlled substance in Vincent’s left shirt

pocket, left back pants pocket, and right front small pants pocket. Goodman further testified

that “[a] trace amount is an amount that I can physically see that there is something there, but

it is not a weighable amount of substance.” She testified that, although it is common for a

portion of the drugs to be destroyed in the testing process, she was able to save some of the

cocaine in vials, which were admitted into evidence and “published” to the jury. Thus, the

jury had before it her testimony and two vials containing the remainder of the cocaine that

had come from Vincent’s pants and shirt.

¶36.   The majority opines that “[t]he State found it necessary to utilize the ‘constructive

possession’ rationale regarding the drugs in the bag . . . but Vincent was acquitted of those

charges. Thus, this appeal does not involve an issue of ‘constructive’ possession.” (Maj. Op.

at ¶12). This finding ignores that the jury rightly (based on the evidence) was given a

constructive-possession instruction, which covered all four counts without distinction. This

same instruction was proposed by the defendant. It incorporated a definition of constructive

possession as found in Dixon v. State, 953 So. 2d 1108, 1112-13 (Miss. 2007). The State

withdrew its proposed possession instruction. The instruction given to the jury was as

follows:

       The Court instructs the jury that to constitute a possession, there must be
       sufficient facts to warrant a finding that Vincent Hudson was aware of the
       presence and character of the particular substance and was intentionally and
       consciously in possession of it. Constructive possession may be shown by
       establishing that the controlled substance was subject to the defendant’s
       dominion and control. Proximity is usually an essential element, but by itself
       is not adequate in the absence of other incriminating circumstances.


                                              20
The majority’s disclaimer that this appeal does not involve an issue of “constructive

possession” does not conform to the trial court’s instruction and juror consideration of same.

It cannot be honestly debated that Vincent’s clothing, which contained the controlled

substance, was not subject to his dominion and control. Thus, constructive possession was

an issue before the trial court, and thus, necessarily before this Court.

¶37.   The majority states that, because the State relied on constructive possession of the bag

of drugs for which Vincent was acquitted; thus, “as far as this Court is concerned, he did not

‘possess’ [the drugs].” (Maj. Op. at ¶24, note 8). One can only state with a measure of

certainty that the jury found that at least one element of possession of the drugs in the bag

was not proven by the State beyond a reasonable doubt. However, an acquittal on those

charges does not preclude consideration of the presence of all drugs, given the totality of

circumstances surrounding his arrest and, specifically, for the undisputed evidence that drugs

were determined to be on his person. The bag of drugs was presented as evidence. It must

be viewed in like manner as any other evidence presented, with the jury entitled to give such

weight to all evidence as only they deem appropriate, be it great or of no significance. See

Dilworth, 909 So. 2d at 736. We are without the constitutional or statutory authority to

disregard properly admitted evidence, no matter how slight we deem its evidentiary value.

The majority states that “conscious intent to possess” is a necessary element. (Maj. Op. at

¶11). However, intent cannot be seen. It must be inferred, making it a classic jury issue.

The jury had every right to infer, based on the totality of circumstances, that Vincent had

“consciously exercised control over” the drugs scientifically determined (without objection)

to be in his pockets. See Dixon, 953 So. 2d at 1113.


                                              21
¶38.   The majority cites two cases in which the prosecution satisfied its burden of proving

possession of a controlled substance. See Hampton v. State, 498 So. 2d 384 (Miss. 1986);

Nance v. State, 948 So. 2d 459 (Miss. Ct. App. 2007). In Hampton, the arresting officer

testified that Hampton was impaired, just as the narcotics officer did here. Hampton, 498

So. 2d at 385. No drugs were identified on Hampton at the time of arrest, but a syringe

containing “some clear liquid” was found upon analysis at the crime lab to contain a trace

amount of a controlled substance. Id. The drug amount was so small that nothing was left

over after the analysis. Id. Here, the jury was presented with more. Vials of trace cocaine

were offered into evidence and published to the jury, unlike in Hampton.

¶39.   Nance was not a trace-evidence case. Nance, 948 So. 2d at 460. A white powdery

substance was found in a sandwich bag at the police station. Id. Nance’s conviction was

affirmed without evidence of impairment as in this case. However, all three cases offer a

common thread, i.e., an object (syringe, sandwich bag, pockets of clothing) was determined

by lab analysis to hold a small amount of a controlled substance. Nance’s and Hampton’s

convictions were affirmed. See Hampton, 498 So. 2d at 387; Nance, 948 So. 2d at 461.

Accordingly, those cases provide no precedential support to reverse petitioner’s conviction.

¶40.   The State summed up the proof as follows:

       If you found trace amounts of cocaine in clothes, is that enough to convict
       somebody? No. But you find trace amounts of cocaine in somebody’s clothes
       and you found that person was also right by a bunch of other drugs and the
       same kind of drugs, and you find that the officer saw the person put something
       in the area where he put those drugs; you find that the person also has trace
       amounts, that he was moving around, that he was acting like he was
       intoxicated, and you put all those things together. You have got the whole
       picture, and then that is enough to make a reasonable inference and look at the
       totality of the circumstances and to find him guilty.

                                             22
This was a fair summary of the facts presented to the jury. The argument was couched to

match the instruction offered.     Thus, the jury’s ultimate conclusion that Hudson had

possessed drugs by having them in his dominion and control was supported, both factually

and legally.

¶41.   In reviewing a decision to deny a motion for directed verdict or judgment

notwithstanding the verdict, it is not enough that we might have had a reasonable doubt, but

“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.” Dilworth, 909 So. 2d at 736. Applying this standard, I would affirm, and not

substitute my take on the evidence (or regrettably, disregard evidence) to overrule the

decision of a constitutionally appointed finder of fact, the jury.

       CHANDLER AND PIERCE, JJ., JOIN THIS OPINION.




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