        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CA-00153-COA

FELTON MARTIN, JR. A/K/A FELTON                                             APPELLANT
MARTIN

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         01/30/2015
TRIAL JUDGE:                              HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH APPEALED:                HINDS COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT:                  DAVID NEIL MCCARTY
                                          GRAHAM PATRICK CARNER
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: WILSON DOUGLAS MINOR
                                                JASON L. DAVIS
                                                LEE DAVIS THAMES JR.
NATURE OF THE CASE:                       CIVIL - OTHER
TRIAL COURT DISPOSITION:                  JUDGMENT ENTERED IN FAVOR OF
                                          APPELLEE DENYING APPELLANT’S
                                          WRONGFUL-CONVICTION-RESTITUTION
                                          CLAIM
DISPOSITION:                              AFFIRMED - 11/08/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    This is an appeal from Hinds County Circuit Court’s judgment in favor of the State

of Mississippi, denying Felton Martin Jr.’s claim for compensation under Mississippi’s

wrongful-conviction and restitution statute. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY
¶2.    On January 31, 1997, Martin was found guilty of constructive possession of marijuana

with intent to distribute under Mississippi Code Annotated section 41-29-139(a)(1) (Supp.

2016). On September 6, 2001, the Mississippi Supreme Court reversed and rendered Martin’s

conviction, holding that the State failed to prove beyond a reasonable doubt that Martin

constructively possessed the more than one-half pound of marijuana recovered at the scene

by the police. Martin v. State, 804 So. 2d 967, 970 (¶¶12-14) (Miss. 2001) (Justice Smith,

joined by Justices Waller and Easley, dissented). Martin served a total of five years and

eleven days in prison.

¶3.    On July 1, 2009, the Mississippi Legislature enacted the wrongful-conviction and

restitution statute, which allows those convicted and subsequently exonerated to make a

restitution claim when the convicted person has actually served a sentence. The statute allows

the wrongfully convicted to recover if he proves that he was actually innocent by a

preponderance of the evidence. Miss. Code Ann. § 11-44-7(1) (Rev. 2012). On June 27,

2012, Martin filed a restitution claim in Hinds County Circuit Court for his five years and

eleven days in prison prior to his release. Pursuant to the statute, a one-day bench trial ensued

on January 20, 2015.

¶4.    At Martin’s civil restitution trial, he testified that early on the Thursday morning of

his arrest, he was at his home when Darrin Fox, with whom he had a falling out in the months

prior, came to his house and asked Martin to look at a car Fox was considering purchasing.

Martin testified that they went to look at the car, but that Fox did not purchase it. Martin

testified that after looking at the car he went with Fox to the gas station and purchased a six-



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pack of beer. While at the gas station, Martin testified that he received what he described as

a “911” page requesting his mechanic services. Martin testified that instead of proceeding

to the mechanic services requested by the page, he continued with Fox to his mother’s

residence. Martin testified that he went into the home to offer Fox’s mother a beer. Martin

admitted that he knew Fox’s mother was not typically home during the day. Once inside the

home, Martin testified that he opened a beer for himself and put the remaining beers in the

refrigerator after having offered them to the other persons in the house. Martin testified that

he arrived at the home no later than 10:30 a.m. that day.

¶5.    Also, Martin proffered four witnesses, through their live testimony and their

deposition testimony. All four witnesses were arrested with Martin at the subject home, and

they all testified that Martin did not touch any marijuana, that the marijuana was not his, that

he did not sell marijuana, that he did not buy marijuana, that he did not possess marijuana,

that he did not cut marijuana that day, and that he was at the home anywhere from thirty

seconds to four minutes prior to the police entering the home. Martin’s own testimony

reiterated these assertions. Further, Martin testified that, when the police entered the home,

he was at the refrigerator and had just opened a beer, and not at the kitchen island where the

marijuana was being cut and bagged.

¶6.    Detective Richard Nations, Officer Preston Carter, and Officer Mike Cox, all of the

Jackson Police Department on the day of Martin’s arrest, testified on behalf of the State.

Upon entering the home to execute a valid search warrant, Detective Nations proceeded to

the kitchen while Officers Carter and Cox proceeded to the back of the house. Detective



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Nations testified that upon entering the kitchen, he observed Martin standing at the kitchen

island, with Martin’s hand stretched out over a bowl filled with small packages of marijuana,

and that it appeared to Detective Nations that Martin had either just put a package of

marijuana in the bowl or was in the process of reaching into the bowl to grab a package of

marijuana.

¶7.    Detective Nations, Officer Carter, and Officer Cox testified that they arrived at the

house at 12:00 p.m. that day. Martin had testified that he arrived at the home no later than

10:30 a.m. that morning. Based on the testimony of Martin and his witnesses, the police

would have arrived no later than 10:34 a.m. Neither Martin nor any of his witnesses offered

any explanation for the eighty-six- to eighty-nine-and-one-half-minute discrepancy between

their accounts of events that day and the testimony of all three officers of the time the officers

arrived at the home.

¶8.    On January 30, 2015, the circuit court ruled in favor of the State and denied Martin’s

claim, finding that Martin did not meet his burden of proving his innocence by a

preponderance of the evidence and that “Martin’s behavior [did] not comport with actual

innocence.” That same day, Martin appealed the circuit court’s decision to this Court.

                                        DISCUSSION

¶9.    The question on appeal is whether the circuit court erred when it found that Martin

failed to prove by a preponderance of the evidence that he did not possess marijuana with

intent to distribute. Section 11-44-7(1) provides that the claimant must prove by a

preponderance of the evidence that he did not commit the felony for which he was convicted.



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To prove a claim by a preponderance of the evidence, one must prove that his claim is more

likely true than not true. Hickman v. State ex rel. Miss. Dep’t of Pub. Safety, 592 So. 2d 44,

46 (Miss. 1991). The findings of a circuit-court judge sitting in a bench trial without a jury

are reviewed under the same standard as a chancellor in that the reviewing court will not

disturb the circuit court’s findings unless they are manifestly wrong or clearly erroneous, or

the court applied an erroneous legal standard. City of Jackson v. Lewis, 153 So. 3d 689, 693

(¶4) (Miss. 2014).

       I.     Possession of Marijuana with Intent to Distribute

¶10.   On appeal, Martin asserts he did not possess marijuana with intent to distribute.

“Possession of a controlled substance may be actual or constructive.” Hymes v. State, 121 So.

3d 938, 945 (¶27) (Miss. Ct. App. 2013) (citing Johnson v. State, 81 So. 3d 1020, 1023 (¶27)

(Miss. 2011)). “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.” Id. (citing Hudson v. State, 30 So. 3d 1199, 1203 (¶10)

(Miss. 2010)). Constructive possession is established when the defendant did not own the

premises but was sufficiently tied to the drugs found there by placing himself in the midst

of items implicating his participation in the processing of the substance. Knight v. State, 72

So. 3d 1056, 1063 (¶26) (Miss. 2011) (quoting Dixon v. State, 953 So. 2d 1108, 1113 (¶11)

(Miss. 2007)).1



       1
        See also United States v. Mackey, 249 Fed. App’x 420, 425 (6th Cir. 2007) (“The
position of Mackey’s outstretched hands near the marijuana, scales, and baggies suggests
that he was handling and packaging marijuana just prior to the officers’ entry[.]”).

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¶11.   Martin admitted that he was voluntarily in a home in which marijuana was actually

being cut and bagged for distribution. Further, Detective Nations testified that upon entry,

he observed Martin at the kitchen island with his hand outstretched, hovering over the bowl

of marijuana with packaged bags of marijuana in it, and that it appeared to Detective Nations

that Martin had either just placed a package of marijuana in the bowl, or that he was reaching

for a package of marijuana. Detective Nations further testified that there was another bowl

on the island of loose marijuana along with scissors for cutting the marijuana.

       II.    Witness Testimony

¶12.   Witness testimony and a deposition statement that was admitted and read into the

record were the only evidence considered at the restitution trial. “The trial judge has sole

authority to determine the credibility of a witness when sitting as the trier of fact in a bench

trial.” Matthews v. City of Madison, 143 So. 3d 571, 573 (¶4) (Miss. 2014). “[The Court] will

affirm a trial judge sitting without a jury on a question of fact unless substantial evidence

shows the trial judge was manifestly wrong.” Id.

¶13.   The circuit court found issue with Martin testifying that he arrived at the house at

10:30 a.m. and was only there for a few minutes before police arrived, while the police did

not execute the search warrant until 12:00 p.m. The court also found that it was inclined to

believe Detective Nations when he testified that Martin and Fox were the only individuals

in the kitchen when he entered, both were standing around the kitchen island, Fox had

scissors and was cutting marijuana, and Martin was standing over a bowl of bagged

marijuana and looked like he had either just placed a package of marijuana in it or was



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reaching for a package of marijuana.

¶14.   In deciding Martin’s restitution case, the trial judge found the State’s witnesses,

particularly Detective Nations, credible and Martin and his witnesses not credible. Findings

of credibility are within a judge’s sound discretion when sitting as the fact-finder. Hymes,

121 So. 3d at 944 (¶22) (citing Jones v. State, 920 So. 2d 465, 472-73 (¶22) (Miss. 2006))

(“It is within the province of the [fact-finder] to decide which witnesses are credible and to

resolve the conflicts in the testimony that [it] hear[s].”). On review, we find no manifest error

in the trial judge’s weighing of the witnesses’ testimony.

¶15.   Based on the record, we find Martin fails to present sufficient evidence to demonstrate

that he, more likely than not, did not constructively possess any marijuana recovered from

Fox’s home. Therefore, we agree with the circuit-court judge that Martin failed to prove by

a preponderance of the evidence that he was actually innocent and find Martin’s claim is

without merit.

                                       CONCLUSION

¶16.   We affirm the Hinds County Circuit Court’s judgment denying Martin’s claim for

wrongful-conviction restitution.

¶17. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY, FIRST
JUDICIAL DISTRICT, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS P.JJ., ISHEE, CARLTON, FAIR, JAMES
AND WILSON, JJ., CONCUR. BARNES, J., NOT PARTICIPATING.




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