Jimmie Leshaun Gardner a/k/a Jimmie L. Gardner a/k/a Jimmie Gardner v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2023-KA-00903-COA

CONSOLIDATED WITH

NO. 2018-KA-01337-COA

JIMMIE LESHAUN GARDNER A/K/A JIMMIE APPELLANT
L. GARDNER A/K/A JIMMIE GARDNER

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/31/2018
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: SANFORD E. KNOTT
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALLISON ELIZABETH HORNE
DISTRICT ATTORNEY: JOHN K. BRAMLETT JR.
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND REMANDED - 12/10/2024
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Following a jury trial, Jimmie Gardner was convicted of cocaine possession and

felony evasion. On appeal, he argues that (1) the trial court erred by admitting evidence of

his prior convictions for impeachment purposes, (2) the evidence was insufficient to sustain

his conviction for cocaine possession, (3) the trial court erred in giving a flight instruction,

and (4) the trial court erred by sentencing him as a habitual offender.

¶2. We conclude that the trial court committed reversible error by admitting evidence of
Gardner’s prior convictions under Mississippi Rule of Evidence 609 and Peterson v. State,

518 So. 2d 632 (Miss. 1987). We also conclude that the State presented sufficient evidence

to sustain Gardner’s conviction for cocaine possession. Therefore, we reverse and remand

the case for a new trial on both counts of the indictment without reaching Gardner’s

remaining issues on appeal.

FACTS AND PROCEDURAL HISTORY

¶3. Around 9 p.m. on September 4, 2016, Officer Ryan Jungers of the Ridgeland Police

Department was on his way to join other officers conducting a safety checkpoint near the

Ross Barnett Reservoir spillway on Lake Harbour Drive in Ridgeland. As Jungers neared

the checkpoint, cars began braking in front of him, and suddenly a car with its headlights off

began driving toward him against traffic. The approaching car nearly struck Jungers’s car

and other cars head-on. Jungers activated his lights and sirens and turned around, but the car

did not stop and drove away at a high rate of speed. The car turned south on Pear Orchard

Road, crossed County Line Road, turned left onto Old Canton Road, and finally turned right

on Pine Knoll Drive. The chase lasted approximately fifteen minutes, and the fleeing car ran

multiple red lights and reached speeds approaching 100 miles per hour. The chase finally

ended when the car turned into a residential neighborhood off Pine Knoll Drive and drove

into a ditch at the end of a dead-end street. The driver and passenger quickly abandoned the

car and fled on foot. Jungers gave chase and apprehended the passenger, Julian Smith, but

the driver escaped. Smith was questioned, and he identified Gardner as the driver.

¶4. Jungers conducted an inventory search of the car and found two prescription pill

2
bottles on the driver’s side floorboard, one of which contained a partial marijuana blunt and

a small amount of marijuana. The pill bottles’ labels both showed prescriptions for Gardner.

Jungers also found a small amount of “suspected cocaine” in the car. Testing confirmed that

the substance was 0.17 grams of cocaine. In addition, Jungers found an Enterprise rental

agreement signed by Gardner’s mother in the car’s glove box. Based on Smith’s

identification and the evidence in the car, a warrant was issued for Gardner’s arrest.

¶5. Several days later, the United States Marshals Service arrested Gardner at his home.

In April 2017, a grand jury indicted Gardner for possession of one-tenth of a gram but less

than two grams of cocaine and felony evasion1 as a subsequent drug offender and nonviolent

habitual offender. Gardner’s jury trial commenced in July 2018.

¶6. Smith testified he was with Gardner on the night of September 4, 2016. Smith stated

that he knew Gardner from “just being in Jackson and living.” Smith claimed that on the

night in question, he and Gardner had been at a barbershop, and Gardner was giving him a

ride home. As they approached the spillway on Lake Harbour Drive, they encountered a

roadblock. Gardner then stopped the car in the middle of the road, made a U-turn, and began

driving in the opposite direction. Both Gardner and Smith saw Jungers in pursuit. Smith

1
A driver is guilty of a misdemeanor if he “willfully fails to obey” “a visible or
audible signal by a law enforcement officer by hand, voice, emergency light or siren
directing the driver to bring his motor vehicle to a stop when such signal is given by a law
enforcement officer acting in the lawful performance of duty who has a reasonable suspicion
to believe that the driver in question has committed a crime.” Miss. Code Ann. § 97-9-72(1)
(Rev. 2020). The offense is upgraded to a felony if it is committed “by operating a motor
vehicle in such a manner as to indicate a reckless or willful disregard for the safety of
persons or property, or who so operates a motor vehicle in a manner manifesting extreme
indifference to the value of human life.” Id. § 97-9-72(2).

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testified that he asked Gardner several times to stop the car so he could get out. Smith stated

that after Gardner drove the car into a ditch, they both fled on foot. When Smith was

apprehended, he told officers that Gardner had been driving the car. Smith denied that any

of the drugs in the car belonged to him.

¶7. Gardner called two alibi witnesses at trial. His girlfriend, Crystal Gray, testified that

Gardner was at home with her from 9 p.m. to 11 p.m. on the night in question. Gray said she

did not know Smith. Gardner’s sister, Tonya White, also testified that she was with Gardner

and Gray that night.

¶8. Gardner also testified in his own defense. At the beginning of his direct examination,

Gardner acknowledged that he had prior convictions for burglary and possession of codeine,

having pled guilty to both charges. Gardner then stated that on the night in question, he was

at his home with his girlfriend and their children. Gardner denied that he drove the car that

Jungers pursued and denied that the drugs in the car belonged to him. Gardner testified that

his brother knew Smith and had served time in federal prison with him. However, Gardner

stated that he and Smith did not even know one another.

¶9. The jury convicted Gardner of both counts of the indictment. The court sentenced

Gardner as a nonviolent habitual offender to serve consecutive terms of six years for cocaine

possession2 and five years for felony evasion in the custody of the Department of

2
The maximum penalty of three years, Miss. Code Ann. § 41-29-139(c)(1)(B) (Rev.
2023), was doubled because Gardner was a subsequent drug offender, Miss. Code Ann.
§ 41-29-147 (Rev. 2023).

4
Corrections.3 At sentencing, Gardner’s trial counsel represented to the court that he was

“going to file an appeal.”

¶10. Unfortunately, Gardner’s trial counsel did not file any post-trial motions and filed his

notice of appeal fourteen days late. After the record on appeal had been prepared and the

appeal fully briefed, a divided Mississippi Supreme Court dismissed Gardner’s appeal as

untimely.4 Gardner v. State, 302 So. 3d 615 (Miss. 2020).5

¶11. So Gardner filed an application in the Mississippi Supreme Court for leave to file a

motion for post-conviction relief in the trial court. Gardner requested an out-of-time appeal,

arguing that his appeal was not perfected due to his trial counsel’s ineffective assistance. In

response, the State agreed that Gardner was entitled to an out-of-time appeal.6 A panel of

3
The maximum sentence was five years at the time of Gardner’s offense and trial,
Miss. Code Ann. § 97-9-72(2) (Rev. 2020), but has since been increased to ten years, Miss.
Code Ann. § 97-9-72(2) (Supp. 2023).
4
Gardner’s previously dismissed appeal has been consolidated with the present
appeal for purposes of the record.
5
The dissent argued that the Court should suspend the rules pursuant to Rule 2(c) of
the Mississippi Rules of Appellate Procedure and allow the appeal to proceed, stating:
“Nothing in the record indicates that Gardner caused his appeal to be untimely filed. His
attorney simply did not perfect Gardner’s appeal in a timely manner. The defendant and the
State fully briefed the appeal on the merits. The appeal was days, not years, out of time, and
this Court has the entire record before it. In the interests of justice, this Court should address
this appeal on the merits. Additionally, judicial economy would be better served by
addressing the appeal on the merits. Dismissing the appeal will likely spark motions to
suspend the rules and post-conviction relief petitions to allow an out-of-time appeal.
Addressing the appeal on the merits would consequently expedite the decision.” Id. at 616-
17 (¶8) (King, P.J., dissenting).
6
See Chapman v. State, 250 So. 3d 429, 437 (¶26) (Miss. 2018) (stating that to obtain
“an out-of-time appeal, the movant must show . . . that he asked his attorney to appeal within
the time allowed,” “that the attorney failed to perfect the appeal[,] and that such failure was

5
the Supreme Court then granted Gardner’s request for an out-of-time appeal. Gardner v.

State, No. 2023-M-00422 (Miss. June 28, 2023).

ANALYSIS

¶12. On appeal, Gardner argues that (1) the trial court erred by admitting evidence of his

prior convictions for purposes of impeachment, (2) there is insufficient evidence to sustain

his conviction for cocaine possession, (3) the trial court erred by giving a flight instruction,

and (4) the trial court erred in sentencing him as a habitual offender.

¶13. We conclude that the trial court abused its discretion by ruling that the State could use

Gardner’s prior convictions to impeach him, and we reverse and remand the case for a new

trial on that ground. We also conclude that the evidence presented at trial was sufficient to

sustain Gardner’s conviction for cocaine possession.7 Since we remand for a new trial, we

decline to address Gardner’s remaining issues on appeal.

I. Admissibility of Gardner’s Prior Convictions

¶14. After the State rested its case-in-chief, Gardner informed the court that he had decided

to testify. The State then indicated that it intended to use Gardner’s prior convictions to

impeach him pursuant to Mississippi Rule of Evidence 609(a)(1)(B) and Peterson v. State,

through no fault of the movant” (emphasis omitted) (quoting Diggs v. State, 784 So. 2d 955,
956 (¶5) (Miss. 2001))).
7
We are required to address Gardner’s challenge to the sufficiency of the evidence
even though we reverse and remand the case for a new trial on other grounds. Newell v.
State, 175 So. 3d 1260, 1267-68 (¶5) (Miss. 2015). We address the issue because we would
reverse and render Gardner’s conviction for cocaine possession—and the Double Jeopardy
Clause would bar a retrial on that count—if we concluded that the State had presented
insufficient evidence to support the conviction. Id.

6
518 So. 2d 632 (Miss. 1987). Specifically, the State argued that it should be allowed to

impeach Gardner by showing that he had been convicted of burglary of a dwelling in

February 2010 and had been convicted of possession of codeine in July 2014. Defense

counsel argued that the convictions should not be admitted because they were “prejudicial”

and that neither conviction reflected negatively on Gardner’s “veracity.” Counsel further

argued, “[W]hat’s going to happen is we’re going to tell the jury that he’s been convicted of

two crimes, and then that sort of seals the deal at that point.” The trial court then ruled:

In considering the Peterson factors, these – at least one of these crimes is not
similar at all, that being the burglary of a dwelling. The defendant has had two
prior witnesses – two alibi witnesses to testify on his behalf. In looking at all
those Peterson factors, I believe that, considering everything, it weighs in
favor of admissibility. And doing the 403 balancing test, I do find that the
prejudicial effect of the admission of those convictions is not – excuse me, the
probative value of the admission is not substantially outweighed by the
prejudicial effect, so they will be admitted subject to a limiting instruction.

In light of the court’s ruling, Gardner acknowledged on direct examination that he had prior

convictions for burglary and possession of codeine.8 In addition, the State questioned

8
The State argues that Gardner waived this issue because after the trial court’s in
limine ruling, his own attorney brought out his prior convictions on direct examination.
However, the Mississippi Supreme Court rejected this same argument in McGee v. State,
569 So. 2d 1191, 1194-95 (Miss. 1990) (emphasis added), overruled on other grounds by
White v. State, 785 So. 2d 1059, 1062 (¶¶5-6) (Miss. 2001). There, the Court stated that
following “an unequivocal trial court decision that the convictions were admissible, defense
counsel employed what we all know to be conventional trial strategy. Faced with damaging
evidence, counsel sensibly chose to be up front with the jury and have the defendant bare
his breast to the end the jury would consider him candid on other issues as well. In such
circumstances we are not about to imply a waiver from [the defendant’s] personal proffer
of his prior convictions.” Id. (emphasis added). The State also argues that Gardner waived
this issue because he did not sufficiently “challenge” the “trial court’s Peterson analysis”
during trial. This argument is also without merit. Gardner’s trial counsel objected to the
admission of the convictions and explained why they were more prejudicial than probative,
and the trial court then ruled that the convictions were admissible under Peterson. Counsel’s

7
Gardner about his prior convictions twice during his cross-examination, once near the

beginning and again at the end.

¶15. On appeal, Gardner argues that the trial court erred by “only partially addressing one

Peterson factor,” failed to apply Rule 609’s balancing test, and abused its discretion by

admitting Gardner’s prior convictions for impeachment purposes. We review the admission

of evidence under Rule 609 for an abuse of discretion. Robinson v. State, 42 So. 3d 598, 602

(¶14) (Miss. Ct. App. 2010). “However, where a court has exercised its discretionary

authority in such a way that it misperceives the correct legal standard for admitting the

evidence, the deference customarily afforded trial courts in decisions concerning the

admissibility of evidence is precluded, because the error has become one of law.”

Trowbridge Partners L.P. v. Miss. Transp. Comm’n, 954 So. 2d 935, 938 (¶8) (Miss. 2007)

(quotation marks and brackets omitted). We “will reverse for erroneous interpretation or

applications of the law.” Id.

¶16. Under Rule of Evidence 609(a)(1), a testifying defendant may be impeached with

evidence of a prior conviction if the crime “was punishable by death or by imprisonment for

more than one year” and “the probative value of the evidence outweighs its prejudicial

effect.” In Peterson, the Mississippi Supreme Court held “that Rule 609(a)(1) requires the

trial judge to make an on-the-record determination that the probative value of the prior

conviction outweighs its prejudicial effect before admitting any evidence of a prior

conviction.” Peterson, 518 So. 2d at 636. The Peterson Court held that a trial court should

objection was sufficient to preserve the issue for appeal.

8
consider the following factors “when weighing the probative value of the convictions against

the prejudicial effect of their admission”:

(1) The impeachment value of the prior crime.

(2) The point in time of the conviction and the witness’ subsequent history.

(3) The similarity between the past crime and the charged crime.

(4) The importance of the defendant’s testimony.

(5) The centrality of the credibility issue.

Id. While a trial court “ought to consider [all these factors] in determining whether to allow

in evidence of prior criminal acts for the purpose of impeachment, we do not apply

[Peterson] so rigidly that we reject honest efforts by trial courts to carefully weigh the

probative value of prior acts against their prejudicial effect for the purposes of

impeachment.” Bush v. State, 895 So. 2d 836, 848 (¶30) (Miss. 2005), abrogated on other

grounds by Little v. State, 233 So. 3d 288 (Miss. 2017).

¶17. Here, the trial court failed to address all the Peterson factors. At best, the court

specifically mentioned one factor and alluded to another. Moreover, the trial court applied

the wrong balancing test. The court expressly stated that it was applying “the [Rule] 403

balancing test” and found that “the probative value of the [convictions was] not substantially

outweighed by [their] prejudicial effect.” (Emphasis added). The trial court correctly recited

Rule 403, which provides that relevant evidence is admissible unless “its probative value is

substantially outweighed by a danger of . . . unfair prejudice.” MRE 403 (emphasis added).

As this Court has explained, “Rule 403’s scope is narrow, and it is an extraordinary measure

9
that should be used very sparingly.” Wallace v. State, 369 So. 3d 83, 89 (¶19) (Miss. Ct.

App. 2023) (brackets omitted) (quoting Curry v. State, 202 So. 3d 294, 298-99 (¶13) (Miss.

Ct. App. 2016)). But this case is governed by Rule 609(a)(1)(B)’s balancing test, which

provides that evidence of a testifying defendant’s prior convictions must be excluded unless

its “probative value . . . outweighs its prejudicial effect.” Whereas Rule 403 tilts the scales

“substantially” in favor of admitting relevant evidence, Rule 609(a)(1) tilts the scales against

evidence of a defendant’s prior convictions by requiring the State to show that the evidence’s

probative value actually “outweighs its prejudicial effect.” Given the material difference

between the two standards, the trial court’s application of the wrong one is significant.

¶18. Based on a proper application of the Peterson factors, we further conclude that the

trial court abused its discretion by admitting evidence of Gardner’s prior convictions.

1. The Impeachment Value of the Prior Convictions

¶19. Gardner’s prior convictions were for burglary and possession of codeine. This Court

has stated that “we see little, if any, impeachment value in . . . prior burglary convictions.”

Triplett v. State, 881 So. 2d 303, 307 (¶15) (Miss. Ct. App. 2004); accord Malone v. State,

829 So. 2d 1253, 1260 (¶20) (Miss. Ct. App. 2002) (holding that “the impeachment value”

of a prior burglary conviction “would be slight”). And in Peterson, the Supreme Court held

that a prior felony conviction for possession of a controlled substance “ha[d] little, if any,

impeachment value.” Peterson, 518 So. 2d at 637. Accordingly, this factor weighs in favor

of Gardner and against admission of the prior convictions.

2. The Point in Time of the Conviction and the Witness’s
Subsequent History

10
¶20. Gardner was convicted of burglary in 2010 and was convicted of possessing codeine

in 2014. The incident at issue in this case occurred in 2016, and he was brought to trial in

2018. Gardner pled guilty to possessing codeine less than two years before the incident at

this case, which weighs in favor of the admissibility of that conviction. See id. (holding that

this factor weighed in favor of admissibility because the defendant’s prior conviction

occurred less than a year before the crime for which he was being tried). However, he pled

guilty to burglary more than six years before the incident in this case and more than eight

years prior to his trial, “lessening the[] probative value” of that conviction. Townsend v.

State, 605 So. 2d 767, 770 (Miss. 1992) (seven-year-old burglary conviction); accord

Triplett, 881 So. 2d at 307 (¶15) (noting that the defendant’s prior conviction for receiving

stolen property occurred eight years prior to trial and stating that “we see little probative

value in the admission of an offense this old”).

3. The Similarity Between the Past Crime and the Charged
Crime

¶21. When a prior crime is similar to the crime for which the defendant is being tried, “the

prejudicial effect of the conviction is very high.” Peterson, 518 So. 2d at 637; see also

Settles v. State, 584 So. 2d 1260, 1264 (Miss. 1991) (“The dangerous convictions are for

crimes which are substantially similar to the crime charged . . . .”). Gardner’s previous

burglary conviction is not similar to either of his present charges, which weighs in favor of

the admissibility of that conviction. However, Gardner’s prior conviction for possessing

codeine is similar to his present charge for possessing cocaine. Both codeine and cocaine are

Schedule II drugs. See Miss. Code Ann. § 41-29-115(b) (Rev. 2023). Moreover, Officer

11
Jungers testified at trial that he found “some suspected codeine” in the subject vehicle,

further linking Gardner’s prior conviction to the present charge. “In such a situation the jury

is very likely to infer present guilt from past conviction for a similar offense.” Peterson, 518

So. 2d at 637. Therefore, “[t]he ‘likeness’ of the conviction and the present charge weighs

very heavily against admissibility.” Id. (emphasis added).

4. The Importance of the Defendant’s Testimony

¶22. In Peterson, a law enforcement officer testified that the defendant, Peterson, sold her

marijuana, but Peterson testified that he could not have been involved in the drug sale

because he was at home with his mother at the time of the alleged sale. Id. at 634.

Peterson’s mother testified and corroborated his testimony. Id. The Supreme Court stated,

Peterson and his mother were the only defense witnesses. Under his theory of
the case (alibi), Peterson was one of the only witnesses who could establish his
defense. Rule 609(a)(1) aids in the search for truth by insuring that important
testimony from the defendant will not be excluded because he fears the
prejudicial effect his previous conviction might have on the jury. The
importance of Peterson’s testimony weighs against the admissibility of the
conviction.

Id. at 637 (emphasis added).

¶23. Likewise, Gardner testified that he could not have committed the subject crimes

because he was at home at the time, and his girlfriend and sister corroborated his testimony.

Gardner “was one of the only witnesses who could establish his defense.” Id. Therefore,

“[t]he importance of [his] testimony weighs against the admissibility of the conviction[s].”

Id.; accord Jordan v. State, 592 So. 2d 522, 523 (Miss. 1991).

5. The Centrality of the Credibility Issue

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¶24. In Peterson, the Supreme Court reasoned that Peterson’s credibility was “important”

because his alibi defense depended on it. Peterson, 518 So. 2d at 637. The Court held that

“[t]he importance of his credibility . . . weigh[ed] in favor of the admissibility of his prior

conviction, but only to the extent, if any, that his prior conviction reflects adversely on his

credibility.” Id. (emphasis added). In another case, the Court indicated that when the

defendant’s “prior convictions have little or no bearing on veracity or credibility,” this factor

carries little weight. Jordan, 592 So. 2d at 524.

¶25. As we explained under the first Peterson factor, Gardner’s prior convictions for

burglary and drug possession have little, if any, impeachment value. Therefore, although

Gardner’s credibility was an important issue at trial, this factor only weighs slightly, if at all,

in favor of the admissibility of those prior convictions.

* * * * *

¶26. In summary, the slight impeachment value of Gardner’s prior burglary conviction was

outweighed by the importance of Gardner’s testimony to his alibi defense. In addition, the

slight impeachment value of Gardner’s prior conviction for drug possession was outweighed

not only by the importance of his testimony but also by the prior conviction’s “likeness” to

his present charge for drug possession. Considering all five Peterson factors together, we

cannot say that the slight probative value of Gardner’s prior convictions “outweighs [their]

prejudicial effect.” MRE 609(a)(1)(B). Therefore, the convictions should not have been

admitted for purposes of impeachment. Indeed, our analysis of the Peterson factors in this

case is substantially similar to the Supreme Court’s analysis in Peterson, where the Court

13
held that the erroneous admission of the defendant’s one prior drug conviction required

reversal of the conviction and a new trial. See Peterson, 518 So. 2d at 637-38.

¶27. In the present case, the trial court erred by making an incomplete analysis of the

Peterson factors and by applying the wrong legal standard. The trial court applied “the

[Rule] 403 balancing test” and found that “the probative value of [Gardner’s prior

convictions was] not substantially outweighed by [their] prejudicial effect.” However, Rule

609 provides that prior convictions may not be admitted for impeachment unless their

“probative value . . . outweighs [their] prejudicial effect.” MRE 609(a)(1)(B). The prior

convictions in this case cannot meet the Rule 609 test, and Gardner was unfairly prejudiced

by their admission. Therefore, we are bound to reverse Gardner’s convictions and remand

the case for a new trial.

II. Sufficiency of the Evidence

¶28. Gardner also argues the State’s evidence was insufficient to support his cocaine

possession conviction.9 We review challenges to the sufficiency of the evidence de novo.

Sanford v. State, 247 So. 3d 1242, 1244 (¶10) (Miss. 2018). “We view the evidence in the

light most favorable to the prosecution to determine whether rational, reasonable fair-minded

jurors could have found that the State proved each essential element of the crime.” Poole v.

State, 46 So. 3d 290, 293 (¶20) (Miss. 2010) (quotation marks and emphasis omitted). “[A]ll

credible evidence supporting a defendant’s guilt should be accepted as true, and all favorable

inferences drawn from the evidence must be reconciled in the prosecution’s favor.” Johnson

9
We address this issue for the reason noted above in footnote 7. Gardner does not
challenge the sufficiency of the evidence with respect to his conviction for felony fleeing.

14
v. State, 904 So. 2d 162, 166 (¶7) (Miss. 2005). “We are not required to decide—and in fact

we must refrain from deciding—whether we think the State proved the elements.” Poole,

46 So. 3d at 293-94 (¶20). “Rather, we must affirm the conviction as long as there is

sufficient evidence for a rational juror to find that the State proved all elements of the

offense.” Williamson v. State, 375 So. 3d 1158, 1167 (¶19) (Miss. Ct. App. 2023) (citing

Poole, 46 So. 3d at 293-94 (¶20)).

¶29. “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.” Sills v. State, 359 So. 3d 603, 610 (¶34) (Miss. 2023) (quotation marks and brackets

omitted) (quoting Glidden v. State, 74 So. 3d 342, 345 (¶12) (Miss. 2011)). “Possession may

be actual or constructive.” Id. (ellipses omitted) (quoting Terry v. State, 324 So. 3d 753, 755

(¶8) (Miss. 2021)). “With actual possession, the drug is actually found on the defendant’s

person (i.e., in his hands, mouth, pockets, etc.).” Id. at (¶35) (quotation marks and ellipsis

omitted). “With constructive possession, the drug is simply found ‘near’ the defendant’s

person in a place over which the defendant exercises dominion and control.” Id. (quotation

marks omitted). “Thus, with constructive possession, the State has to prove the defendant

was aware of the drug and intentionally, but not necessarily physically, in possession of it.”

Id. (quotation marks and brackets 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). “Other incriminating circumstances must be

15
present to establish constructive possession.” Id. Here, because Gardner was not alone in

or in exclusive control of the subject vehicle, some “additional incriminating facts must

connect [him] with the [drugs].” Walker v. State, 390 So. 3d 504, 509 (¶15) (Miss. 2024)

(quoting Powell v. State, 355 So. 2d 1378, 1379 (Miss. 1978)).

¶30. Gardner argues that “[i]n the absence of evidence showing where [in the car] the

police found the cocaine, there were not sufficient facts to warrant a finding beyond a

reasonable doubt that Gardner was aware of the presence of the particular substance and was

intentionally and consciously in possession of it.” (Quotation marks and brackets omitted).

In addition, Gardner argues that the State failed to show any additional “incriminating

circumstances” connecting him to cocaine found in a car that he neither owned nor

exclusively possessed.

¶31. As an initial matter, we agree with Gardner that the evidence failed to establish where

in the car the cocaine was found. Jungers’s testimony is unclear on this point. Jungers stated

that he conducted an inventory search of the car and “[f]ound numerous different items,

including some pills, suspected cocaine, some suspected codeine in different bottles, as well

as two pill bottles that were on the driver’s floorboard,” “one of [which] contained a partial

marijuana blunt and also a small amount of marijuana.” Thus, Jungers testified that the two

pill bottles (with Gardner’s name on them) were found on the driver’s floorboard, but he

never specified where in the car the cocaine was found.

¶32. Nonetheless, there were other incriminating circumstances sufficient to support the

jury’s finding of constructive possession. To begin with, Smith—the car’s only other

16
occupant—testified that the cocaine found in the car did not belong to him.10 In addition,

Smith testified that Gardner was driving the car, that Gardner made a U-turn into oncoming

traffic as soon as he saw the police roadblock, and that Gardner ignored Smith’s pleas to stop

the car and let him out. Smith identified Gardner as the driver soon after he was apprehended

and again at trial. We must accept Smith’s identification as true for purposes of our review

of the sufficiency of the evidence. Poole, 46 So. 3d at 293 (¶20); Johnson, 904 So. 2d at 166

(¶7). Therefore, there was sufficient evidence for the jury to find that Gardner led police on

a dangerous and prolonged high-speed chase before finally crashing the car into a ditch and

fleeing on foot. As our Supreme Court has stated, “[f]light is a circumstance from which an

inference of guilt may be drawn and considered along with all the other facts and

circumstances connected to the case.” Burgess v. State, 178 So. 3d 1266, 1278 (¶36) (Miss.

2015). Here, the circumstances of Gardner’s flight were extreme, and the jury logically

could have inferred that Gardner fled in order to avoid arrest and prosecution for possessing

cocaine. Smith’s identification and testimony at trial along with Gardner’s extreme flight

from the police roadblock provide sufficient evidence for a rational juror to find that Gardner

constructively possessed the cocaine. Accordingly, Gardner is not entitled to a judgment of

acquittal on that charge.

CONCLUSION

¶33. The trial court applied the wrong legal standard and abused its discretion by admitting

Gardner’s prior convictions for purposes of impeachment under Rule 609. However,

10
On cross-examination, Smith admitted that he was in federal prison from 2005 to
2015 for possession of cocaine and was still on probation on September 4, 2016.

17
Gardner is not entitled to a judgment of acquittal on either charge because the State presented

sufficient evidence to support his convictions. Therefore, we reverse Gardner’s convictions

and remand for a new trial on all charges.

¶34. REVERSED AND REMANDED.

BARNES, C.J., WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND
WEDDLE, JJ., CONCUR. CARLTON, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY SMITH, J. EMFINGER, J., NOT
PARTICIPATING.

CARLTON, P.J., DISSENTING:

¶35. I dissent in part because I find that the trial court did not commit reversible error by

admitting evidence of Gardner’s prior convictions in this case. Rule 609(a)(1)(B) provides

that a defendant may be impeached with evidence of a prior criminal conviction if the crime

“was punishable by . . . imprisonment for more than one year” and “if the probative value of

the evidence outweighs its prejudicial effect[.]” MRE 609(a)(1)(B). In applying this

balancing test, the trial court must examine the prior convictions under the five-factor

guidelines set forth in Peterson v. State, 518 So. 2d 632 (Miss.1987), as the majority has set

forth above. See MRE 609 cmt. In this regard, as the majority acknowledges,

While a trial court ‘ought to consider [all these factors] in determining whether
to allow in evidence of prior criminal acts for the purpose of impeachment, we
do not apply [Peterson] so rigidly that we reject honest efforts by trial courts
to carefully weigh the probative value of prior acts against their prejudicial
effect for the purposes of impeachment.’

Maj. Op. at ¶16 (quoting Bush v. State, 895 So. 2d 836, 848 (¶30) (Miss. 2005), abrogated

on other grounds by Little v. State, 233 So. 3d 288 (Miss. 2017)).

¶36. In Bush, the supreme court observed that “[alt]hough th[e] trial judge did not directly

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address Peterson’s five factors, it is apparent that he . . . satisfied the requirements of Rule

609(a)(1) by conducting a substantive balancing test in line with the spirit of Peterson.”

Bush, 895 So. 2d at 848 (¶30). Like the trial court in Bush, the trial court here did not

address all five Peterson factors on the record. Unlike the majority, however, I find that the

trial court’s analysis was sufficient.

¶37. In ruling that the prior convictions were admissible, the experienced trial court judge

considered the timing of Gardner’s prior convictions, the similarity (and lack thereof) of

Gardner’s prior convictions to the current charges, and the importance of Gardner’s

testimony. And although the trial court framed the balancing test as being whether “the

probative value of the admission is not substantially outweighed by the prejudicial effect,”

see MRE 403, I find that the trial court’s analysis on the admissibility issue in this case was

effectively the same as required pursuant to Rule 609(a)(1)(B) and not in error.

¶38. Accordingly, I do not find that allowing Gardner’s prior convictions into evidence

constituted reversible error. I find that this is particularly true here, where the trial court sua

sponte admitted these prior convictions “subject to a limiting instruction” that explicitly

cautioned the jury “that the evidence of prior convictions is not to be considered by you as

evidence that the Defendant committed the crime charged in the Indictment, but may be

considered by you only for the limited purpose of impeaching his credibility.”

SMITH, J., JOINS THIS OPINION.

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