        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-KA-00124-COA

SHAWN OLIFF LAVANT A/K/A SHAWN                                           APPELLANT
LAVANT

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                         01/11/2018
TRIAL JUDGE:                              HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT,
                                          SECOND JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: W. DANIEL HINCHCLIFF
                                              GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: KATY TAYLOR GERBER
DISTRICT ATTORNEY:                        JOEL SMITH
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 01/08/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      CARLTON, P.J., FOR THE COURT:

¶1.   Shawn Lavant was stopped by police at 3 a.m. for driving with no headlights on. The

car Lavant was driving was owned by Dorothy Parnell. Police recovered two pill bottles,

containing a total of 186 pills, from the car. The pills were tested and found to contain

methamphetamine. After a trial in Harrison County Circuit Court, Second Judicial District,

a unanimous jury found Lavant guilty of possession of forty or more dosage units of

methamphetamine with the intent to transfer or distribute in violation of Mississippi Code
Annotated section 41-29-139(a)(1) (Rev. 2013). Lavant was sentenced to serve twenty-five

years, with the first ten years to be served day-for-day, in the custody of the Mississippi

Department of Corrections (MDOC). The trial court denied Lavant’s post-trial motions.

Lavant appeals, asserting that the trial court erred in doing so because the State failed to

prove that he “possessed” the pills recovered from the Parnell vehicle and also failed to prove

that there were forty or more dosage units of methamphetamine recovered. Finding no error,

we affirm.

             STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    At about 3:00 in the morning on April 17, 2016, Lavant was stopped by Officer James

Cowan with the Biloxi Police Department for driving without his vehicle’s headlights on.

Lavant was the only person in the vehicle when Officer Cowan stopped him. The record

reflects that the vehicle belonged to Dorothy Parnell, but Lavant admitted that he frequently

used the vehicle. Officer Cowan testified that as he approached the vehicle, it appeared as

though Lavant was putting something behind the passenger’s seat. Officer Cowan noticed

an open container of beer and asked Lavant if he had been drinking. Lavant admitted to

having a few drinks at the casino earlier that day, so Officer Cowan called for a DUI officer.

According to Officer Cowan, Lavant asked him if he was calling for backup, and when

Officer Cowan told him that he was, Lavant asked if he could drive his vehicle or get out of

the vehicle and walk to a nearby gas station so he could use the restroom.

¶3.    Officer Cowan denied these requests. He testified that he did not allow Lavant to

leave or get out of the vehicle because in his experience it was fairly common for people with



                                              2
illegal contraband in a vehicle to want to distance themselves from the vehicle.

¶4.    Officer Cowan testified that when the DUI officer arrived (Officer Jason Cummings),

he approached the vehicle and then stepped back to tell him (Officer Cowan) that it looked

like Lavant was stuffing something between the driver’s seat and the center console. Officer

Cowan admitted that he did not see the stuffing motion, but he was not watching Lavant

“every second” because he was also keeping watch over the entire area and had other things

to do, including talking on the radio and running Lavant’s license. Based on the information

he received from Officer Cummings, Officer Cowan obtained Lavant’s consent to search the

vehicle.

¶5.    During the vehicle search, Officer Cowan testified that he found a clear pill bottle

stuffed down between the driver’s seat and the center console. That pill bottle did not have

a label and contained various multi-colored, multi-shaped pills. He also found another clear

pill bottle containing white pills in the center console. Officer Cowan testified that this pill

bottle had a prescription label for oxycodone, prescribed to Dorothy Parnell—the registered

owner of the vehicle. According to the impound report entered at trial as the State’s exhibit

D-1, Officer Cowan also found marijuana and male clothing in the vehicle and approximately

$1,000 cash inside the glove compartment. The record also reflects that Lavant had $200 in

twenty-dollar bills in his wallet.

¶6.    The State’s next witness, Officer Cummings, corroborated Officer Cowan’s

testimony. He testified that when he responded to the scene Lavant was still sitting in the

driver’s seat of the vehicle. Officer Cummings further testified that as he approached the



                                               3
vehicle he observed that Lavant’s body was turned completely sideways, his hands were

down, and it looked like he was “fiddling” with something, as if he were trying to put

something or remove something from between the driver’s seat and the center console.

Officer Cummings continued to observe Lavant for a few more seconds, and just as Officer

Cowan testified, Officer Cummings told him that it looked like Lavant was trying to stuff

something between the driver’s seat and the center console.

¶7.    Officer Cummings then explained to Lavant that he was going to conduct a field

sobriety test. He testified that the “fiddling movement” he described earlier in his testimony

was not associated with Lavant removing his seatbelt. He knew this because it was not until

he told Lavant that he was going to conduct the field sobriety test that Lavant removed his

seatbelt and exited the vehicle. Officer Cummings determined that Lavant was not impaired

and turned Lavant back over to Officer Cowan. He testified that Officer Cowan searched

the vehicle and he saw him recover the unlabeled pill bottle from the area between the

driver’s seat and the center console—the same area where he saw Lavant “fiddling around”

with something as he approached the vehicle when he first arrived on the scene.

¶8.    The State’s next witness was Diamonisha Jackson, who testified as an expert in the

field of forensic science, specializing in chemical analysis and drug identification. She

testified that she analyzed the pills to determine whether they contained any controlled

substances. With respect to the various multi-colored, multi-shaped pills, she testified that

there were 142 “dosage units,” with each “dosage unit” defined as a whole tablet. She sorted

these pills based on their color, shape, and imprint, creating sixteen groups. Jackson



                                              4
explained that she did not test all 142 pills; rather, she examined and tested each type of pill.

She testified that the pills appeared to be clandestine (i.e., not manufactured in a

pharmaceutical laboratory), and she determined that they contained methamphetamine and

ethylone. She further testified that methamphetamine is a Schedule II drug.

¶9.    Regarding the white pills, Jackson testified that there were forty-four dosage units,

and she tested one of the white pills. She testified that these pills appeared to have been

manufactured in a pharmaceutical laboratory, and she determined that they contained

Alprazolam (sold under the trade name Xanax, among others) and methamphetamine. These

pills did not contain oxycodone, which was the drug indicated on the prescription label.

Jackson was asked during cross-examination if the tests she performed could distinguish

between a pill that has an illegal substance manufactured into it and a pill with an illegal

substance “dusted” on the outside of it. Jackson admitted that it was possible that the forty-

four white pills could have been contaminated with methamphetamine by the 142

multi-colored, multi-shaped pills if they had been in the same bag.

¶10.   The State’s final witness was Investigator Clint Fore, the lead investigator in the case.

He testified as an expert in the field of narcotics investigation. Investigator Fore testified that

the multi-colored, multi-shaped pills recovered from the vehicle were commonly referred to

as ecstasy. He explained that ecstasy is a “generic brand” of what drug users would “like to

believe” is primarily methylenedioxymethamphetamine (MDMA), but is often

methamphetamine. Investigator Fore testified that it was the second-largest amount of

ecstasy that he had seen on one person in his ten years of law enforcement. Based on his



                                                5
training and experience, Investigator Fore testified that a person possessing 186 dosage units

of methamphetamine,1 as in this case, would possess with the intent to sell. He further

testified that in this case the presence of multiple bags containing the pills and the large

amount of cash recovered from the vehicle and found on Lavant’s person also indicate that

a person may be selling the drugs. Investigator Fore also opined that based on his

experience, people often sell drugs at the casino, and the standard price for one dosage unit

of ecstasy was twenty dollars. Additionally, Investigator Fore testified that “A lot of people

that [sell drugs] or travel around with [them do not] use their personal vehicles [so] they can

use . . . the line, [‘]It’s not my vehicle. It’s not my drugs[.’]”

¶11.   On cross-examination, Investigator Fore was asked why he did not send the pill bottles

to the Forensics Lab to be tested for fingerprints. Investigator Fore explained that

fingerprints were rarely recovered. In this case, multiple officers had touched the bottles, and

if the in-house fingerprint analyst was unable to obtain a latent print of value, he would not

send the evidence to the forensics lab. Defense counsel also asked Investigator Fore whether

he had the pill bottles tested for DNA. Investigator Fore responded, “No,” explaining that

DNA testing was not something that was normally done in a drug investigation and was

typically reserved for rape cases or similar crimes.

¶12.   After the State rested its case-in-chief, defense counsel moved for a directed verdict,

arguing that the State had failed to show that Lavant constructively possessed the pills in

question and, even if the State had met the possession element of the crime, there was no

       1
        There were 142 dosage units of the multi-colored, multi-shaped pills, and forty-four
white pills.

                                                6
evidence of any intent to sell on Lavant’s part. The trial court denied Lavant’s motion.

¶13.   Lavant then testified in his defense. Lavant testified that he had been gambling at the

casino when his friends asked him to make a “cigarette run” to a nearby gas station. He

testified that Dorothy Parnell, a family friend, gave him the keys to her vehicle and that

shortly after he left the casino parking garage he was stopped by the police for driving with

no headlights on. He testified that he had $200 in twenty-dollar bills in his wallet because

he played blackjack and bet forty dollars at a time. When defense counsel asked him about

Officer Cummings’s testimony that he was “fiddling or doing something” between the seat

and the console, Lavant said he was not doing anything and that he was already outside of

the vehicle when Officer Cummings arrived. According to Lavant, he did not “knowingly

possess” or “intend to distribut[e]” the pills that were recovered from the vehicle. On

cross-examination, Lavant admitted that he frequently used Parnell’s vehicle and had been

in the vehicle earlier that day. He testified that he sat in the passenger’s seat for thirty to

forty-five minutes on the way to the casino.

¶14.   The jury returned a unanimous guilty verdict against Lavant for possession of a

controlled substance of forty or more dosage units with intent to sell in violation of section

41-29-139(a)(1). The trial court conducted a separate sentencing hearing and determined that

Lavant had been previously convicted of felony possession of a controlled substance on June

28, 2013, which subjected Lavant to enhancement up to twice the maximum sentence

permitted by statute, pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2013).

The trial court sentenced Lavant to serve twenty-five years, with the first ten years to be



                                               7
served day-for-day, in the custody of the MDOC.2

¶15.   Lavant filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the

alternative, a motion for a new trial. The trial court denied the motions. Lavant appeals.

                                        DISCUSSION

       I.       Applicable Criminal Statute

¶16.   Lavant was charged and convicted under section 41-29-139(a)(1), which makes it a

crime “for any person knowingly or intentionally . . . [to] possess with intent to sell . . . a

controlled substance . . . .” The jury found that Lavant possessed forty or more dosage units

of methamphetamine, a schedule II drug; therefore Mississippi Code Annotated section 41-

29-139(f) (Rev. 2013 and Supp. 2014), the trafficking statute, applied.3

¶17.   Lavant asserts that the trial court erred in denying his motion for a JNOV because



       2
        The jury verdict was handed down on January 10, 2018, and Lavant’s sentencing
order was entered January 11, 2018.
       3
           Section 41-29-139(f) provided:

       (f) Trafficking. (1) Any person trafficking in controlled substances shall be
       guilty of a felony and, upon conviction, shall be imprisoned for a term of not
       less than ten (10) years nor more than forty (40) years and shall be fined not
       less than Five Thousand Dollars ($5,000.00) nor more than One Million
       Dollars ($1,000,000.00). The ten-year mandatory sentence shall not be
       reduced or suspended. The person shall not be eligible for probation or parole,
       the provisions of Sections 41-29-149, 47-5-139, 47-7-3 and 47-7-33, to the
       contrary notwithstanding.

             (2) “Trafficking in controlled substances” as used herein means:

                (A) A violation of subsection (a) of this section involving thirty
                (30) or more grams or forty (40) or more dosage units of a
                Schedule I or II controlled substance except marijuana . . . .

                                                8
there was insufficient evidence to support his conviction, or alternatively, that the trial court

abused its discretion in denying his motion for a new trial because the verdict was against the

overwhelming weight of the evidence. Lavant challenges the sufficiency or weight of the

evidence on two elements of his conviction: (1) that he “possessed” the pills found in the

Parnell vehicle; and (2) that the pills recovered constituted forty or more dosage units of

methamphetamine. Lavant does not challenge on appeal the “intent to sell” element

supporting his conviction under section 41-29-139(a)(1).

       II.    Sufficiency of the Evidence

              A.      Standard of Review

¶18.   The Mississippi Supreme Court has recently reiterated the familiar standard of review

on a “sufficiency of the evidence” challenge, as follows:

       This Court reviews de novo a trial court’s ruling on the legal sufficiency of the
       evidence. Brooks v. State, 203 So. 3d 1134, 1137 [(¶11)] (Miss. 2016). When
       reviewing a case for sufficiency of the evidence, “‘[a]ll credible evidence that
       is consistent with guilt must be accepted as true, and the State is given the
       benefit of all favorable inferences that may be reasonably drawn from the
       evidence.’” Burrows v. State, 961 So. 2d 701, 705 [(¶9)] (Miss. 2007)
       (quoting Daniels v. State, 742 So. 2d 1140, 1142 [(¶6)] (Miss. 1999),
       overruled on other grounds by Wilson v. State, 867-68 [(¶41)] (Miss. 2016)).
       We examine the evidence in the light most favorable to the State, while
       keeping in mind the beyond-a-reasonable-doubt burden of proof standard.
       Dees v. State, 126 So. 3d 21, 26 [(¶18)] (Miss. 2013). “Should the facts and
       inferences ‘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.” Brown v. State, 965 So. 2d 1023, 1030 [(¶25)]
       (Miss. 2007). Ultimately, “‘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.’” Shelton v. State, 214 So. 3d 250, 256 [(¶29)] (Miss. 2017) (quoting
       Bush v. State, 895 So. 2d 836, 843 [(¶16)] (Miss. 2005), overruled on other


                                               9
       grounds by Little v. State, 233 So. 3d 288, 291 [(¶19)] (Miss. 2017)).

Haynes v. State, 250 So. 3d 1241, 1244 (¶6) (Miss. 2018).

              B.     Constructive Possession

¶19.   Lavant asserts that the State did not prove that he “possessed” the pills found in

Parnell’s vehicle. The applicable law provides that “[p]ossession of a controlled substance

may be actual or constructive.” O’Donnell v. State, 173 So. 3d 907, 917 (¶22) (Miss. Ct.

App. 2015). Because Lavant did not have actual possession of the pills, the State was

required to prove that Lavant had constructive possession of the methamphetamine. Glidden

v. State, 74 So. 3d 342, 345 (¶12) (Miss. 2011) (“When, as here, a defendant does not

physically possess the illegal drugs, the State must prove constructive possession of the drugs

in order to prevail.”). “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.”

Fontenot v. State, 110 So. 3d 800, 804 (¶9) (Miss. Ct. App. 2012) (internal quotation mark

omitted). “The defendant’s proximity to the drugs is a factor in establishing constructive

possession, but it is not determinative.” Knight v. State, 72 So. 3d 1056, 1063 (¶26) (Miss.

2011). In this case, Lavant did not own the vehicle in which the pills were found. “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.” Fontenot, 110 So. 3d at 804 (¶9) (internal quotation mark omitted). Finally,

“[t]he elements of constructive possession may be proven by circumstantial evidence.” Id.

at (¶12).



                                              10
¶20.   According to Lavant, the State did not prove that he had the requisite dominion and

control over Parnell’s vehicle to prove constructive possession because he was not “the

exclusive user for some extended period of time” at the time of his arrest. Gavin v. State, 785

So. 2d 1088, 1094 (¶21) (Miss. Ct. App. 2001) (emphasis added). We find no merit in this

argument. Lavant relies on one statement from Gavin, and it is taken out-of-context. The

principle Lavant relies upon, stated in full, is that “[b]eing in a closed area such as a vehicle

. . . with contraband does not by itself permit the inference of dominion and control. If the

accused is the owner of the premises, or if he is the exclusive user for some extended period

of time, or if there are additional incriminating circumstances, then the inferences might be

permissible.” Id. (emphasis added). The record contains ample proof of “additional

incriminating circumstances” supporting a finding of constructive possession in this case.

¶21.   “It is the province of the jury ‘to decide the weight and credibility to be assigned to

the testimony of each witness.’” Fontenot, 110 So. 3d at 803 (¶8) (quoting Glidden, 74 So.

3d at 349 (¶21)). In this case, the record reflects that Lavant was the driver and sole occupant

of the vehicle when he was stopped by Officer Cowan. Lavant admitted at trial that he had

been in the vehicle earlier that day, sitting in the passenger’s seat for thirty to forty-five

minutes on the way to the casino. He further admitted that he frequently used Parnell’s

vehicle, so many times “that he could not count [them.]”

¶22.   Moreover, the jury heard Investigator Fore’s testimony that in his experience many

people who sell drugs or who travel around with drugs do not use their personal vehicles so

they can use “the line, [‘]It’s not my vehicle. It’s not my drugs[.’]” The jury also heard



                                               11
Officer Cowan’s testimony that persons who have illegal contraband in their vehicle often

want to distance themselves from the vehicle when they are stopped—conduct that Lavant

displayed in this case when, shortly after being stopped, Lavant asked to get out of the

vehicle to use the restroom at a nearby gas station. Officer Cowan refused his request.

¶23.   Proof of additional incriminating circumstances developed when DUI Officer

Cummings arrived on the scene. Although Lavant testified that he was out of the vehicle

when Officer Cummings arrived, both Officer Cowan and Officer Cummings testified to the

contrary. Officer Cowan testified that he denied Lavant’s request to leave the vehicle, and

Officer Cummings testified that Lavant was still in the vehicle when he got there. Officer

Cummings testified that at this point, he observed Lavant trying to stuff something between

the driver’s seat and the center console. He told Officer Cowan what he saw, and Officer

Cowan testified that he then obtained consent to search the vehicle, and he recovered the

unlabeled pill bottle containing 142 multi-colored, multi-shaped pills from between the

driver’s seat and the console—the same area where Officer Cummings saw Lavant “fiddling

around” with something when he first arrived on the scene. The record reflects that the

multi-colored, multi-shaped pills recovered from the vehicle contained methamphetamine

and were commonly referred to as ecstasy. The record also reflects that the white pills

recovered from the vehicle’s center console also contained methamphetamine.

¶24.   Finally, Lavant testified that he had been gambling at the casino since earlier that day,

and Investigator Fore testified that, based on his experience, people often sell drugs at the

casino. Lavant testified that he had $200 in twenty-dollar bills in his wallet on the night of



                                              12
his arrest, but according to Lavant, he had $200 in twenty-dollar bills because he played

blackjack and bet forty dollars at a time. The jury also heard Investigator Fore’s testimony,

however, that the standard price for one dosage unit of ecstasy was twenty dollars.

¶25.   In short, the record reflects substantial evidence that Lavant constructively possessed

methamphetamine under section 41-29-139(a)(1). See Patterson v. State, 37 So. 3d 702, 704

(¶12) (Miss. Ct. App. 2010) (finding sufficient evidence to sustain a possession-of-cocaine

conviction where police officers testified that they observed the defendant drop an object,

and that the recovered object contained an illegal drug); see also Cantrell v. State, 224 So.

3d 1278, 1281 (¶15) (Miss. Ct. App. 2017) (finding that “substantial evidence” supported the

jury’s determination that the defendant possessed syringes (one of which contained

methamphetamine) where the officer “observed [the defendant] remove something from his

pants pocket and throw it . . . [and, later] when [the officer] searched the area where he saw

[the defendant] throw the item, and he found two syringes.”). We do not find it unreasonable

that the jury determined that Lavant constructively possessed the methamphetamine in

Parnell’s vehicle. “If reasonable jurors could have reached different conclusions with respect

to every element of the offense, the evidence will be considered sufficient.” Fontenot, 110

So. 3d at 804 (¶12).

              C.       Possession of Forty        or   More     Dosage     Units    of
                       Methamphetamine

¶26.   Lavant also asserts that the State did not prove that he possessed forty or more dosage

units of methamphetamine because an insufficient amount of pills were tested. This Court

rejected a similar argument in Fay v. State, 133 So. 3d 841 (Miss. Ct. App. 2013),


                                             13
recognizing that “‘random testing is permissible when the seized samples are sufficiently

homogeneous so that one may infer beyond a reasonable doubt that the untested samples

contain the same substance as those that are conclusively tested.’” Id. at 845 (¶9) (quoting

People v. Adair, 940 N.E.2d 292, 295 (Ill. App. Ct. 2010)).

¶27.   In Fay, the accused was charged with possessing between .1 gram and two grams of

methadone, a controlled substance. Fay, 133 So. 3d at 844 (¶7). At trial, the forensic

scientist testified that the bag of pill fragments contained .6 gram of methadone based on his

analysis of one of the pill fragments. Id. (¶¶7-8). Fay argued that because not all the pill

fragments were tested, the State did not present sufficient evidence that he possessed between

.1 gram and 2 grams of methadone. Id. This Court disagreed, observing that the pill

fragments were the same color and had the same marking. Id. at 845 (¶11). As such, “based

on the relatively homogeneous nature of the pill fragments, it was not necessary . . . to test

every pill fragment.” Id. Consequently, this Court held, there was sufficient evidence for

the jury to conclude that Fay possessed between .1 gram and two grams of methadone. Id.;

see also O’Kelly v. State, No. 2016-KA-01147-COA, 2018 WL 4141037, at *5 (¶¶27-28)

(Miss. Ct. App. Aug. 30, 2018) (holding that testing eight out of 425 randomly selected

squares (hits) of NBOMe (a controlled substance) was sufficient evidence supporting

possession of at least forty dosage units of NBOMe given that the record lacked any evidence

that the 417 untested squares were any different from the eight that were tested).

¶28.   The same analysis used in Fay and O’Kelly applies in this case. Jackson, the State’s

forensic scientist, testified that she sorted the 186 multi-colored, multi-shaped pills into



                                             14
groups by color, shape, and imprint, creating sixteen groups. She further testified that

because the pills in each group were homogeneous (having the same color, imprint, and

shape), she tested one pill from each group. The pills tested positive for methamphetamine.

Based upon this evidence alone, there was sufficient evidence for the jury to conclude that

Lavant possessed forty or more dosage units of methamphetamine. Fay, 133 So. 3d at 844-

45 (¶¶7-11); O’Kelly, 2018 WL 4141037, at *5 (¶¶27-28). Regarding the forty-four white

pills in the other bottle, Lavant asserts that Jackson admitted that these white pills may have

been “dusted,” or contaminated, with methamphetamine from the 142 multi-colored, multi-

shaped pills. Nevertheless, there is sufficient evidence that Lavant possessed 142 dosage

units of methamphetamine based upon Jackson’s testing of the multi-colored, multi-shaped

pills, well over the forty dosage units required for a conviction.

              D.     Lack of Fingerprints or DNA Evidence

¶29.   Finally, Lavant asserts that his case is akin to the circumstances in Fultz v. State, 573

So. 2d 689 (Miss. 1990), a case in which the Mississippi Supreme Court found that the State

failed to prove constructive possession of marijuana where the defendant was found sleeping

in a vehicle he did not own, and marijuana was found in the vehicle’s trunk. Id. at 691.

Lavant emphasizes the supreme court’s observation in Fultz that the police did not collect

fingerprints from the trunk, asserting that the police in his case likewise failed to collect

fingerprints or DNA evidence on either of the pill bottles they recovered from Parnell’s

vehicle.

¶30.   The Fultz case is entirely distinguishable from the case before us. In relevant part, the



                                              15
Mississippi Supreme Court held in Fultz that “[i]n light of . . . the absence of any evidence

connecting the defendant with the trunk or any of its contents, we have no choice but to

reverse this conviction and discharge the defendant.” Id. (emphasis added). In contrast,

despite the lack of fingerprints in this case, sufficient evidence, as described above, supports

a finding of constructive possession of at least forty dosage units of methamphetamine in

Lavant’s case. Further, the jury also heard Investigator Fore’s explanation why fingerprints

were not collected. As Investigator Fore explained, multiple officers had touched the bottles,

and unlike what people have seen on television, fingerprints were rarely recovered. He also

explained that the police department had an in-house fingerprint analyst, and if that person

was unable to obtain a latent print of value, he would not send the evidence to the forensics

lab. Investigator Fore also explained that DNA testing was not something that was normally

done in a drug investigation, and was typically reserved for rape cases or similar crimes.

¶31.   “[I]n deliberating on its verdict, the jury had every right to apply common sense,

common experience, and sound honest judgment in considering and weighing the testimony

of the witnesses and the exhibits received into evidence.” Glidden, 74 So. 3d at 349 (¶21).

In viewing the evidence in the light most favorable to the prosecution, as we must do, we

find that the evidence was sufficient for a rational juror to find, beyond a reasonable doubt,

that Lavant possessed forty or more dosage units of methamphetamine. See Haynes, 250 So.

3d at 1244 (¶6).

¶32.   Lavant does not challenge the “intent to sell” element of his conviction, and, because

we find that sufficient evidence supports both the possession and quantity elements of



                                              16
Lavant’s conviction, we find Lavant’s “sufficiency of the evidence” assignment of error

without merit.

       III.   Weight of the Evidence

              A.      Standard of Review

¶33.   Alternatively, Lavant asserts that the trial court erred when it denied his motion for

a new trial because the evidence is against the overwhelming weight of the evidence. “[A]

motion for a new trial challenges the weight of the evidence and is reviewed by an

abuse-of-discretion standard.” Cantrell, 224 So. 3d at 1281 (¶13). Further, “[w]hen

determining whether a jury verdict is against the overwhelming weight of the evidence, this

Court must accept as true the evidence which supports the verdict and will reverse only when

convinced that the circuit court has abused its discretion in failing to grant a new trial.” Id.

(¶11). As this Court has held, “only in those cases where the verdict is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice will this Court disturb it on appeal.” Id.

              B.      Analysis

¶34.   As we detailed in the preceding section, we find that the record contains substantial

credible evidence that Lavant possessed forty or more dosage unites of methamphetamine.

We further observe that Lavant does not challenge the “intent to sell” element of his

conviction. Based upon the same evidence addressed above, we also find no abuse of

discretion in the trial court denying Lavant’s motion for a new trial. As this Court

consistently recognizes, “‘the jury is the sole judge of the credibility of witnesses, and the



                                              17
jury’s decision based on conflicting evidence will not be set aside where there is substantial

and believable evidence supporting the verdict.’” Cantrell, 224 So. 3d at 1281 (¶15)

(quoting Whitlock v. State, 47 So. 3d 668, 675 (¶21) (Miss. 2010)). Accepting the evidence

supporting the jury’s verdict as true in this case, “we cannot find that the verdict is so against

the overwhelming weight of the evidence as to sanction an unconscionable injustice.” Id. at

1281 (¶17). This issue is without merit.

¶35.   AFFIRMED.

    GRIFFIS, C.J., BARNES, P.J., WILSON, GREENLEE, WESTBROOKS AND
TINDELL, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ., NOT
PARTICIPATING.




                                               18
