        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KA-01715-COA

RYAN NICHOLAS O’DONNELL A/K/A RYAN                                       APPELLANT
O’DONNELL, JR. A/K/A RYAN O’DONNELL
A/K/A JOSEPH LYNN FRANCIS

v.

STATE OF MISSISSIPPI                                                       APPELLEE


DATE OF JUDGMENT:                        08/07/2013
TRIAL JUDGE:                             HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:               HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: GEORGE T. HOLMES
                                         PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                       JOEL SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF POSSESSION OF
                                         METHAMPHETAMINE AND SENTENCED
                                         AS A HABITUAL OFFENDER TO EIGHT
                                         YEARS IN THE CUSTODY OF THE
                                         MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS WITHOUT ELIGIBILITY
                                         FOR PAROLE OR PROBATION
DISPOSITION:                             AFFIRMED - 04/07/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., BARNES, AND MAXWELL, JJ.

      BARNES, J., FOR THE COURT:

¶1.   After a two-day trial, a Harrison County jury convicted Ryan O’Donnell of possession

of methamphetamine. The trial court sentenced him to eight years as a habitual offender in
the custody of the Mississippi Department of Corrections (MDOC). Finding no error, we

affirm.1

              SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶2.    On the morning of February 24, 2012, Investigator Matt Haley and Sergeant

Christopher Hearn of the Harrison County Sheriff’s Department participated in a drug

“roundup,” where a group of law enforcement officers went out together and attempted to

serve several outstanding warrants. They had an arrest warrant for O’Donnell and discovered

he was at the Broadway Express Inn, room 132, in Biloxi, Mississippi. Investigator Haley

testified that at approximately 11:00 a.m. they arrived at the motel and knocked on the door

of room 132. When there was no answer, the officers went to the check-in area of the motel,

and explained to motel management that they had an active warrant for someone believed to

be in room 132, and asked for assistance in getting into the room. It was past checkout time;

so the motel manager walked with the two law enforcement officers to the room and opened

the door. They found O’Donnell inside the room.

¶3.    When the motel door opened, O’Donnell was getting out of bed. There were two

other individuals in the other bed, later identified as Angela Warfield and Heath Gagney.2



       1
          Under a motion filed with this Court, law students from the University of
Mississippi School of Law Criminal Appeals Clinic were appointed as special counsel for
O’Donnell. Law students Erin N. King and Cori L. Benefiel prepared O’Donnell’s brief
under the supervision of Attorney-Professor Phillip W. Broadhead, director of the clinic.
Law students Brendon Clark and Kyle Prince orally argued the case.
       2
        Warfield testified that O’Donnell often shared methamphetamine with her and
Gagney, who was her boyfriend. O’Donnell testified that Gagney was a regular “cooker”
(manufacturer) of methamphetamine.

                                             2
Investigator Haley confirmed O’Donnell’s identity, placed him in handcuffs, and asked if he

had any identification. O’Donnell responded that he did, but did not know where it was; so

Investigator Haley asked if he could look around for it. O’Donnell said “okay.” Investigator

Haley began to look near O’Donnell’s bed, but O’Donnell directed him to the area near the

television. There, Investigator Haley found a white pouch. He picked it up, felt it, and

determined there to be some sort of card. Thinking he had located an identification card, he

unzipped the pouch. Inside of the pouch, he found O’Donnell’s Mississippi identification

card, a VISA card, and “a clear plastic bag containing an off-white powder substance.”

O’Donnell denied the powder substance was his. It was sent to the Mississippi Crime Lab

and found to be .79 grams of methamphetamine.

¶4.    In March 2013, O’Donnell was indicted for possession of methamphetamine, and the

indictment was later amended to charge him as a habitual offender. O’Donnell filed a motion

to suppress the evidence of the search, which was denied. During jury selection, the defense

raised a Batson challenge. The jury was selected, and the case proceeded to trial.

¶5.    In addition to Investigator Haley, John Moran testified for the prosecution. Moran,

a forensic scientist, was accepted as an expert in controlled-substance analysis and gave the

opinion that the substance obtained from the pouch was methamphetamine. Warfield

testified for the defense. She stated because of O’Donnell’s health issues, he takes a lot of

medicine, but even so, “when he is not on dope he gets really, really sick.” She also stated

that when O’Donnell had drugs, he “always shared.” O’Donnell testified in his own defense.

He admitted that he was addicted to methamphetamine, and that the white pouch belonged



                                             3
to him, but denied knowledge of the drugs found in the pouch. O’Donnell admitted that he

and his companions had been looking for methamphetamine the night before the roundup,

even though Gagney, who “cooks on a regular basis,” was with them. Without the drug,

O’Donnell became sick – throwing up, sweating, and shaking. He testified that if he had

known methamphetamine was in his pouch, he would have taken it immediately. The jury

convicted O’Donnell as charged, and he was sentenced as a habitual offender to serve eight

years in the custody of the MDOC. O’Donnell’s motion for a new trial or, in the alternative,

a judgment notwithstanding the verdict (JNOV), was denied.

¶6.    On appeal, O’Donnell argues that the trial court erred in failing to suppress evidence

found during the search of the motel room, in denying his Batson challenge, and in denying

his motion for a JNOV or new trial. Finding no error, we affirm.

                                        ANALYSIS

       I.     Motion to Suppress Evidence

¶7.    O’Donnell argues that the trial court erred in failing to suppress evidence found in his

motel room. He claims the initial entry and arrest were premised on an unsigned arrest

warrant, and Investigator Haley exceeded the scope of O’Donnell’s consent when he

unlawfully searched the white pouch, which was a closed container with Fourth Amendment

protection.

¶8.    Regarding the denial of a motion to suppress, the reviewing court will determine

whether the trial court’s findings, under “the totality of the circumstances, are supported by

substantial credible evidence.” Moore v. State, 933 So. 2d 910, 914 (¶9) (Miss. 2006)



                                              4
(citations omitted). “Where supported by substantial credible evidence, [the appellate court]

shall not disturb those findings.” Id. Additionally, the admission or exclusion of evidence

is reviewed for abuse of discretion. Brown v. State, 119 So. 3d 1079, 1082 (¶11) (Miss. Ct.

App. 2013).

              A.     Arrest Warrant

¶9.    O’Donnell first argues that the arrest warrant was invalid, as it lacked the signature

of a judge or magistrate, which is a nonjurisdictional defect, and the officers had no

independent probable cause for a warrantless arrest. See Lanier v. State, 450 So. 2d 69, 73

(Miss. 1984). As the State notes, however, this argument fails because it was not raised

before the trial court in the pleadings, transcript, or other rulings, and is thus procedurally

barred. See Ross v. State, 603 So. 2d 857, 861 (Miss. 1992). Moreover, the arrest warrant

was not introduced into evidence. While an unsigned and incomplete warrant does appear

in the record, it is an exhibit to O’Donnell’s pro se motion for reconsideration of his

sentence. There is nothing in the record to establish the origins or authenticity of this

document. Additionally, the transcript of the hearing indicates this arrest warrant was not

the one being executed on the day in question. During the hearing, O’Donnell’s motion in

limine and motion to suppress were heard. Regarding the motion in limine, the defense

argued, and the State confirmed, that when O’Donnell was arrested, law enforcement officers

were attempting to execute an arrest warrant for a methamphetamine-manufacturing charge,

not a possession charge. The unsigned warrant in the record is for a possession of

methamphetamine charge. We find this argument without merit.



                                              5
              B.     Consent

¶10.   Next, O’Donnell claims the search of the motel room was illegally conducted because

he did not voluntarily consent to the search for his identification, and even if he did,

Investigator Haley exceeded the scope O’Donnell gave him.

¶11.   Searches must be conducted under a valid warrant or probable cause unless consent

is given. Lee v. State, 100 So. 3d 982, 985 (¶10) (Miss. Ct. App. 2012) (citing Jackson v.

State, 418 So. 2d 827, 830 (Miss. 1982)); see Brown, 119 So. 3d at 1082 (¶6) (warrant is not

required when consent is given). When determining whether a consent to search is voluntary

and not the result of coercion, the totality of the circumstances is examined. Lee, 100 So. 3d

at 985 (¶10). Consent to a search not otherwise authorized by law is valid if “the person

searched [is] aware he has the legal right to refuse.” Moore, 933 So. 2d at 916 (¶19)

(citations omitted). The person must knowingly and voluntarily waive the right not to be

searched. Id. However, “the State is not required to demonstrate knowledge; rather, ‘the

burden is on the defendant to show impaired consent or some diminished capacity.’” Id. at

(¶20) (quoting Jones v. State, 607 So. 2d 23, 29 (Miss. 1991)). Facts to consider in

determining whether consent was voluntary are:

       [W]hether the circumstances were coercive, occurred while in the custody of
       law enforcement or occurred in the course of a station house investigation.
       The court must also look to the individual’s maturity, impressionability,
       experience and education. Further, the court should consider whether the
       person was excited, under the influence of drugs or alcohol, or mentally
       incompetent. If the consent occurred while the defendant was being generally
       cooperative, the consent is more likely to be voluntary . . . .

Id. at 916-17 (¶20) (emphasis added) (quoting Graves v. State, 708 So. 2d 858, 863 (¶24)



                                              6
(Miss. 1997)).

¶12.   Again, this argument is also procedurally barred because it was not specifically raised

before the trial court. See Ross, 603 So. 2d at 861. Further, the trial judge did not abuse his

discretion in finding O’Donnell’s consent was voluntary under the totality of the

circumstances. Though O’Donnell had been placed in handcuffs by Investigator Haley after

his identity was initially determined, O’Donnell was extremely cooperative in agreeing to the

search, and was not chemically impaired that morning. Law officers made no threats or

promises to O’Donnell when his consent to search for his identification was made. Instead,

O’Donnell assisted the officers in the search by directing them to the television-stand area

to find his identification, where they found the pouch. O’Donnell, however, claims the

officers pointed a gun to his head when they “barged” into the motel room, though

Investigator Haley does not mention this alleged fact in his testimony. The rest of

O’Donnell’s testimony corroborates Investigator Haley’s testimony regarding consent to the

search.

¶13.   In addition, O’Donnell claims the search exceeded any alleged consent. The standard

for the scope of a suspect’s consent under the Fourth Amendment is “objective”

reasonableness: “what would the typical reasonable person have understood by the exchange

between the officer and the suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991) (citations

omitted). A suspect may limit the scope of the search to which he consents. Id. at 252. In

O’Donnell’s case, he gave Investigator Haley consent to search for the identification, and




                                              7
directed him towards the area near the television.3 Haley saw the zipped pouch in this area,

picked it up, and felt what might be an identification card. He unzipped the pouch and found

the card. The drugs were in the pouch with the identification card; so it cannot be said that

the officer exceeded the consent to search. The testimony indicates that Investigator Haley

did not continue to “plunder” through the pouch after he located the card – he merely came

across the drugs at the same time he was looking for and found the identification card, as

they were in the same area of the pouch. It is reasonable that an officer looking for an

identification card would look inside a zipped pouch, especially when directed to the area by

the suspect. The consent to search was not exceeded under the facts of this case.

              C.     Search Warrant

¶14.   O’Donnell also argues that Investigator Haley should have obtained a search warrant

before opening and searching the white pouch in the motel room. To object to a warrantless

search, the defendant must have “a subjective expectation of privacy in the object of the

search.” United States v. Villarreal, 963 F.2d 770, 773 (5th Cir. 1992). Exceptions to the

requirement of obtaining a valid search warrant include a search incident to arrest and a

search in plain view. Graves v. State, 708 So. 2d 858, 862 (¶22) (Miss. 1997). The “plain

view” doctrine requires the police to have probable cause to search, without a warrant,

evidence in plain view. Carney v. State, 525 So. 2d 776, 787 (Miss. 1988) (citing Arizona



       3
         O’Donnell attempts to make the distinction that he directed Investigator Haley to
look “on” the television for his identification, which is where his credit card and cigarettes
were located, whereas Investigator Haley testified that O’Donnell stated it was “near” the
television. However, in reading the transcript, O’Donnell states his identification was both
“near” and “on” the television.

                                              8
v. Hicks, 480 U.S. 321, 326 (1987)). “[I]nformation obtained by means of the eye where no

trespass has been committed” in order to perform the search “is not illegally obtained.”

Franklin v. State, 587 So. 2d 905, 907 (Miss. 1991) (quoting Patterson v. State, 413 So. 2d

1036, 1038 (Miss. 1982)).

¶15.   Again, we note that a search warrant is not required if consent to search is given.

Brown, 119 So. 3d at 1081 (¶6). Here, O’Donnell gave Investigator Haley consent to search

for his identification card, and once Investigator Haley opened the pouch to get the card he

had felt, the baggie containing the drugs was in plain view. A search warrant was not

necessary under these facts.

       II.    Batson Challenge

¶16.   O’Donnell claims the trial court erred in denying his Batson challenge when the trial

judge found no systematic pattern of exclusion in the peremptory strikes exercised by the

State against two black jurors. During jury selection, the State used six peremptory strikes

to dismiss four white females, one white male, and one black female (Juror 7). Defense

counsel used six peremptory strikes to dismiss five white males and one black female. The

jurors accepted by the parties consisted of seven white females, two white males, two black

females, and one Hispanic male.

¶17.   “Peremptory strikes may not be used for the purpose of striking jurors based solely

on their race or gender.” Talbert v. State, 125 So. 3d 66, 73 (¶24) (Miss. Ct. App. 2013)

(citing Batson v. Kentucky, 476 U.S. 79, 89 (1986)). The trial judge’s Batson determinations

are given great deference on appeal, “as such determinations are based largely on



                                             9
credibility.” Id. (quoting Perry v. State, 949 So. 2d 764, 766 (¶5) (Miss. Ct. App. 2006)).

Batson challenges undergo a three-step analysis:

       (1) the defendant must make out a prima facie case by showing that the totality
       of the relevant facts gives rise to an inference of discriminatory purpose;

       (2) once the defendant has made out a prima facie case, the burden shifts to the
       State to explain adequately the racial exclusion by offering permissible,
       race-neutral justifications for the strikes; and

       (3) if a race-neutral explanation is tendered, the trial court must then decide
       whether the opponent of the strike has proved purposeful racial discrimination.

Smith v. State, 90 So. 3d 122, 132 (¶37) (Miss. Ct. App. 2012) (quoting Pruitt v. State, 986

So. 2d 940, 942-43 (¶8) (Miss. 2008)). “The ultimate ‘burden of persuasion rests with, and

never shifts from, the opponent of the strike.’” Id. (quoting Johnson v. California, 545 U.S.

162, 171 (2005)). A defendant satisfies Batson’s first step by “producing evidence sufficient

to permit the trial judge to draw an inference that discrimination has occurred. If the

defendant fails to make out a prima facie case showing a discriminatory purpose, the inquiry

ends.” Id. (internal quotation marks and citations omitted).

¶18.   The State used its first peremptory strike against a white male and its second strike

against the black female (Juror 7), at which point the defense pointed out that Juror 7 was

only the second black person reached on the panel.4 Later in the process, defense counsel

objected when the prosecution struck Juror 28, a black male, for the alternate juror, stating




       4
          Juror 2, a black female, had been accepted on the panel. The State also mentioned
for the record that the defendant is a white male.

                                             10
that the prosecution has “only accepted one other black on the whole venire.”5 The trial

judge responded to the defense’s objection by stating:

       [Juror 28] was the first venire man for the alternate’s position, so they struck
       one black on the main panel and accepted one black on the main panel. So the
       Court does not feel that that establishes a pattern of discrimination against any
       particular group, especially since that is an alternate strike. So I’m going to
       deny the Batson challenge on [Juror 28].

¶19.   O’Donnell argues on appeal that the trial court should have required the prosecution

to give race-neutral reasons for the strikes. However, the trial judge properly ruled that

O’Donnell did not establish the first step of Batson – a prima facie case that there was an

inference of discrimination; thus, the burden never shifted to the State, the second step of the

Batson analysis. The State’s initial peremptory strikes were used on four white females, one

white male, and one black female. The State used its one peremptory strike of an alternate

for a black male. The jury ultimately included two black females. We cannot say from the

record that O’Donnell met his burden of showing that the State “engaged in a pattern of

strikes based on race or gender.” See Pulliam v. State, 115 So. 3d 108, 112 (¶13) (Miss. Ct.

App. 2013) (quoting Puckett v. State, 788 So. 2d 752, 757 (¶10) (Miss. 2001)). Since

O’Donnell failed to establish a prima facie case showing a pattern of discrimination, the

inquiry ended. Accordingly, the trial court did not err in denying O’Donnell’s Batson

challenge.

       III.   Sufficiency and Weight of Evidence

¶20.   Finally, O’Donnell claims the jury verdict was against the sufficiency and weight of

       5
        We note the defense struck a white male for alternate, and ultimately, a white
female was chosen as the alternate.

                                              11
the evidence. A motion for a directed verdict and a motion for a JNOV challenge the

sufficiency of the evidence. Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005). “[T]he

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.’” Id. (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)).

“[A]fter viewing the evidence in the light most favorable to the prosecution, [if] any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt,”

the reviewing court will affirm the denial of the motion for a JNOV. Nolan v. State, 61 So.

3d 887, 893 (¶24) (Miss. 2011) (quoting Bush, 895 So. 2d at 843 (¶16)). All credible

evidence consistent with the defendant’s guilt will be accepted as true, together with all

favorable inferences that may be reasonably drawn from the evidence. Robinson v. State,

940 So. 2d 235, 240 (¶13) (Miss. 2006) (citing McClain v. State, 625 So. 2d 774, 778 (Miss.

1993)).

¶21.   “A motion for [a] new trial challenges the weight of the evidence. A reversal is

warranted only if the lower court abused its discretion in denying a motion for [a] new trial.”

Dilworth v. State, 909 So. 2d 731, 737 (¶20) (Miss. 2005) (quoting Howell v. State, 860 So.

2d 704, 764 (¶212) (Miss. 2003)). The appellate court will not disturb the verdict unless

allowing “it to stand would sanction an unconscionable injustice.” Bush, 895 So. 2d at 844

(¶18). The evidence will be viewed in the light most favorable to the verdict. Id. It is the

jury’s role to assess the weight and credibility of the evidence and to resolve any conflicts

in the evidence. Latiker v. State, 918 So. 2d 68, 73 (¶12) (Miss. 2005).



                                              12
¶22.   O’Donnell was charged and convicted under Mississippi Code Annotated section 41-

29-139(c)(1)(A) (Supp. 2014), which makes it a crime to possess less than one-tenth of a

gram of a controlled substance. The two essential elements of drug possession are (1)

knowledge and (2) possession. 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.” Glidden v. State, 74 So. 3d 342, 345

(¶12) (Miss. 2011) (quoting McClellan v. State, 34 So. 3d 548, 553 (¶15) (Miss. 2010)).

“Possession of a controlled substance may be actual or constructive.” Johnson v. State, 81

So. 3d 1020, 1023 (¶7) (Miss. 2011). O’Donnell did not have actual possession of the

methamphetamine; so he was convicted under the theory of constructive possession. 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.” Glidden, 74 So. 3d at 348

(¶20) (quoting Hudson v. State, 30 So. 3d 1199, 1204 (¶11) (Miss. 2010)). But a defendant’s

proximity to the drugs is not determinative in establishing constructive possession. Knight

v. State, 72 So. 3d 1056, 1063 (¶26) (Miss. 2011). When illegal substances are 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.”

Cheatham v. State, 12 So. 3d 598, 601 (¶7) (Miss. Ct. App. 2009) (citing Fultz v. State, 573

So. 2d 689, 690 (Miss. 1990)).

¶23.   O’Donnell argues the State failed to prove beyond a reasonable doubt that he



                                             13
knowingly and intentionally possessed the controlled substance, and that the white powdery

substance found in the common area of the motel room was methamphetamine. We disagree.

Investigator Haley testified that O’Donnell admitted the white pouch was his, and directed

Haley to it in order to locate his identification card. Inside the pouch, Haley found

O’Donnell’s ID card, a VISA card, and “a clear plastic bag containing an off-white powder

substance.” Although O’Donnell denied that the methamphetamine was his, the other items,

including the pouch, he claimed were his possessions, which he had brought to the motel.

The pouch was on the TV stand in front of O’Donnell’s bed, exactly where he directed

Investigator Haley to search for his identification card. According to this incriminating

evidence, O’Donnell was in constructive possession of the methamphetamine.

¶24.   As for the weight of the evidence, O’Donnell contends the State’s expert witness’s

testimony was inadequate to establish that the white powder substance was

methamphetamine. Again, we disagree. Moran, accepted as an expert in the area of forensic

controlled substances, testified as to the weight of the bag of the powder substance (.79

grams). It was his opinion the baggie contained methamphetamine “within a reasonable

degree of scientific certainty . . . . based upon [his] results and conclusions of the

examinations, [his] training, and [his] experience.” It is the province of the jury to determine

the credibility of the witnesses, and here, the jury believed Moran’s opinion.

¶25.   Nor were photographs necessary, as O’Donnell argues, to establish that the

methamphetamine was in the pouch, or where in the motel room it was found. Investigator

Haley testified that due to the “unique” nature of a drug roundup,



                                              14
       everything is touch and go. Once the word gets out that we’re picking up
       people on warrants, everybody seems to scatter and go in different directions.
       So there is some sense of urgency to put the handcuffs on whoever you’re
       taking to jail, take them, drop them off and go back to the next one.

Therefore, he justifiably did not take any photographs. However, there was sufficient

evidence to support the verdict without any photographs. Further, the verdict was not against

the weight of the evidence.

¶26. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF POSSESSION OF METHAMPHETAMINE AND SENTENCE AS
A HABITUAL OFFENDER OF EIGHT YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR
PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, MAXWELL
AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. CARLTON, J., NOT PARTICIPATING.




                                             15
