Sanchez Duncan v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2017-KA-00249-COA

SANCHEZ DUNCAN A/K/A SANCHEZ D. APPELLANT
DUNCAN A/K/A SANCHEZ DEJUAN DUNCAN

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/09/2016
TRIAL JUDGE: HON. JON MARK WEATHERS
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 03/20/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶1. Sanchez Duncan appeals his convictions for possession of methamphetamine and

possession of a weapon by a convicted felon. Duncan’s appellate counsel filed a brief

pursuant to Lindsey v. State, 939 So. 2d 743 (Miss. 2005), and certified that the record

presented no arguable issues for appellate review. Duncan subsequently filed a pro se brief.

¶2. We have reviewed the record and find no arguable issues that necessitate

supplemental briefing. After reviewing the issues that Duncan raises in his pro se brief, we

find no error and affirm.
FACTS AND PROCEDURAL HISTORY

¶3. In May 2015, a confidential source, later identified as a neighbor or neighbors,

contacted the Hattiesburg Police Department regarding activity at a residence located at 505

Rebecca Avenue. Richard Hill, his girlfriend Janie Sistrunk, and Sistrunk’s brother, Jeremy

Morgan, lived at the residence. As a result of numerous complaints, active surveillance of

the residence began in early July 2015.

¶4. On August 6, 2015, Sistrunk contacted Duncan and asked him to come over.

According to Sistrunk, she and Duncan were “buddies,” and Duncan needed her to unlock

and activate some iPhones. In exchange for unlocking and activating the cell phones,

Sistrunk would receive methamphetamine.

¶5. Sistrunk testified that when Duncan arrived, he was carrying a backpack. Sistrunk

explained that she previously had given Duncan the backpack, so she knew “for a fact that

it was his backpack.” While Sistrunk worked on the cell phones, she and Duncan smoked

methamphetamine in her bedroom.

¶6. At the time Duncan arrived, Sergeant Joseph Kennedy was surveilling the house. He

called for assistance. Lieutenant Daniel Miller and Officer Jarrod Smith responded. They

then assisted Sergeant Kennedy with a “knock and talk.” Hill answered the door. Duncan

and Sistrunk then walked in view of the door. Duncan yelled, “Oh, s**t, police” and fled to

Sistrunk’s bedroom. For safety purposes, Sergeant Kennedy and Lieutenant Miller entered

and secured the residence. Duncan, Sistrunk, Hill, and Morgan were handcuffed and taken

outside.

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¶7. Hill signed a consent form to search the residence. Sergeant Kennedy and Lieutenant

Miller then reentered the residence wherein they found “several bags of methamphetamine,

a gun[,] . . . and pills, a couple of pills that [were] in the bag.” The “bag” was a green and

black backpack found on Sistrunk’s bed. Inside of the backpack was an oval white pill, four

bags of a crystalized substance, and a nine-millimeter handgun. Additionally, the officers

recovered from Duncan’s person a bag containing a crystalized substance as well as an oval

pill and a bullet. The oval pill found on Duncan was the same type of pill found in the

backpack. Moreover, the bullet found on Duncan was the same brand and caliber that was

loaded in the handgun located in the backpack.

¶8. Sistrunk testified that the green and black backpack belonged to Duncan and was the

same backpack that she had given Duncan “prior to [the] bust.” Sistrunk further testified that

after they were removed from the residence and taken outside, Duncan mouthed to her that

there was a gun in the backpack.

¶9. The crystalized substances subsequently were tested by a forensic scientist with the

Mississippi Crime Laboratory and determined to be methamphetamine. Specifically, 0.085

grams of methamphetamine were found on Duncan, and 1.402 grams of methamphetamine

were found in the backpack.

¶10. Duncan was indicted on the charges of Count I, possession of 0.1 gram or more, but

less than 2 grams of methamphetamine, and Count II, possession of a weapon by a convicted

felon. Duncan’s indictment subsequently was amended as to Count I to charge him as a

second or subsequent offender pursuant to Mississippi Code Annotated section 41-29-147

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(Rev. 2013).

¶11. Sistrunk also was indicted. She subsequently entered a guilty plea to a felony charge

related to the incident.1 As part of her plea, Sistrunk agreed to provide truthful testimony at

Duncan’s trial.

¶12. Following a jury trial, Duncan was found guilty on both counts and sentenced to serve

six years in the custody of the Mississippi Department of Corrections on Count I, and ten

years, with five years suspended, on Count II, with the sentences to run consecutively.

Additionally, Duncan was ordered to pay a $2,500 fine, a $200 assessment to the Mississippi

Crime Victim Compensation Program, restitution in the amount of $250 to the Forrest

County Public Defender Fund, $200 to the 12th Circuit Court Narcotics Enforcement Team,

restitution in the amount of $2,048.48 to the Forrest County Jury Account, and all court costs.

¶13. Duncan subsequently filed a motion for a judgment notwithstanding the verdict or,

alternatively, a new trial, which was denied. Duncan timely appealed.

ANALYSIS

¶14. In Lindsey, the Mississippi Supreme Court implemented the following procedure for

cases where appellate counsel does not believe any arguable issues exist for appellate review:

(1) Counsel must file and serve a brief in compliance with Mississippi Rule
of Appellate Procedure 28(a)(1)-[(5), (8).]

(2) As a part of the brief filed in compliance with Rule 28, counsel must
certify that there are no arguable issues supporting the client’s appeal, and he
or she has reached this conclusion after scouring the record thoroughly,
specifically examining: (a) the reason for the arrest and the circumstances

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Although the judgment and/or sentencing order are not included in the record, it
appears Sistrunk pled guilty to possession of methamphetamine.

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surrounding [the] arrest; (b) any possible violations of the client’s right to
counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e)
possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits,
whether admitted into evidence or not; and (h) possible misapplication of the
law in sentencing.

(3) Counsel must then send a copy of the appellate brief to the defendant,
inform the client that counsel could find no arguable issues in the record, and
advise the client of his or her right to file a pro se brief.

(4) Should the defendant then raise any arguable issue[s] or should the
appellate court discover any arguable issue in its review of the record, the
court must, if circumstances warrant, require appellate counsel to submit
supplemental briefing on the issue, regardless of the probability of the
defendant’s success on appeal.

(5) Once briefing is complete, the appellate court must consider the case on
its merits and render a decision.

Lindsey, 939 So. 2d at 748 (¶18) (internal citations omitted).

¶15. Here, Duncan’s counsel filed a brief in compliance with Rule 28 and asserted that he

had “diligently searched the procedural and factual history . . . and scoured the record” but

was unable to find any arguable issues that he could present in good faith for appellate

review.

¶16. Duncan’s counsel sent a copy of the brief to Duncan and informed him that although

he found no arguable issues in the record, Duncan had the right to file a pro se brief. Duncan

subsequently filed a pro se brief challenging: (1) the credibility of the State’s witnesses and

(2) the sufficiency of the evidence. Duncan further claims he should have been charged with

constructive possession.

I. Credibility of the State’s Witnesses

¶17. Duncan first argues that Sistrunk, Sergeant Kennedy, and Lieutenant Miller all

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provided inconsistent statements. He reasons that they were not credible. Witness credibility

is for the jury to determine. Winding v. State, 908 So. 2d 163, 168 (¶20) (Miss. Ct. App.

2005). “[T]he jury acts as fact-finder and must determine the credibility of the witnesses, and

the proper weight to be assigned to their testimony.” Id. Any conflicts in the evidence are

for the jury to resolve. Williams v. State, 64 So. 3d 1029, 1033 (¶13) (Miss. Ct. App. 2011)

(citation omitted).

¶18. Here, the record shows that the jury heard from all witnesses and was able to evaluate

their testimony, determine their credibility, and resolve any conflicts in the evidence.

Accordingly, this issue is without merit.

II. Sufficiency of the Evidence

¶19. Duncan next argues that “the State failed to provide sufficient evidence to support the

elements of Count I and Count II.” In considering whether the evidence is sufficient to

sustain a conviction, “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.” Williams v. State, 35 So. 3d 480, 485

(¶16) (Miss. 2010) (citations omitted). Where the facts and inferences “point in favor of the

defendant on any element of the offense with sufficient force that reasonable [jurors] could

not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy

is to reverse and render. Id. However, if “reasonable fair-minded [jurors] in the exercise of

impartial judgment might reach different conclusions on every element of the offense, the

evidence will be deemed to have been sufficient.” Id.

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¶20. Duncan was convicted of possessing 0.1 gram or more, but less than 2 grams of

methamphetamine, in violation of Mississippi Code Annotated section 41-29-139(c)(1)(B)

(Supp. 2014). “The two essential elements of drug possession are (1) knowledge and (2)

possession.” O’Donnell v. State, 173 So. 3d 907, 916 (¶22) (Miss. Ct. App. 2015) (citing

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.” Id. (citation omitted). “Possession of a controlled substance

may be actual or constructive.” Id. at 917 (¶22) (citation omitted). “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.” Id. (citation and internal quotation marks

omitted).

¶21. Duncan claims the State failed to show that he exercised dominion and control over

the backpack in which the methamphetamine was found. We disagree.

¶22. Sistrunk testified that she gave the backpack to Duncan prior to August 6, 2015, and

“knew for a fact that it was his backpack.” Sistrunk further testified that when Duncan

arrived at the house on August 6, 2015, he was carrying the backpack. Moreover, Sistrunk

testified that in exchange for unlocking and activating the cell phones, she received

methamphetamine.

¶23. Additionally, Sistrunk testified that she and Duncan worked on the cell phones and

smoked methamphetamine in her bedroom. When Sergeant Kennedy performed his “knock

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and talk,” he saw Duncan run to the bedroom. Once the house was secure, Sergeant Kennedy

searched the premises and found the backpack in the bedroom where Duncan previously was

located.

¶24. Moreover, further testimony showed that an oval white pill and methamphetamine

were found on Duncan’s person. The same type of pill and substance also was found in the

backpack. Accordingly, sufficient evidence existed for a rational juror to find that Duncan

exercised dominion and control over the backpack and possessed methamphetamine.

¶25. Duncan also was convicted of possession of a weapon by a convicted felon, in

violation of Mississippi Code Annotated section 97-37-5 (Rev. 2014). The State had to

prove that: “(1) the defendant was in possession of a firearm, and (2) the defendant had

previously been convicted of a felony crime.” Gunn v. State, 174 So. 3d 848, 866 (¶63)

(Miss. Ct. App. 2014) (citing Miss. Code Ann. § 97-37-5). “The possession element may be

shown by proof that the defendant actually or constructively possessed the firearm.” Short

v. State, 929 So. 2d 420, 427 (¶21) (Miss. Ct. App. 2006).

¶26. Duncan admits he previously was convicted of a felony but claims there was

insufficient evidence to show that he possessed the handgun found in the backpack. We

disagree.

¶27. Sistrunk testified that after she and Duncan were removed from the residence and

taken outside, Duncan mouthed to her that there was a gun in the backpack. Moreover, a

bullet was found on Duncan. It was the same brand and caliber that was loaded in the

handgun located in the backpack.

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¶28. Overall, considering the evidence in the light most favorable to the State, there was

sufficient evidence to support Duncan’s convictions for possession of methamphetamine and

possession of a weapon by a convicted felon. Thus, this issue is without merit.

III. Constructive Possession

¶29. Finally, Duncan argues that he “should have been charged with constructive

possession.” Duncan was charged with possession of methamphetamine and possession of

a weapon by a convicted felon. As previously noted, possession may be actual or

constructive.

¶30. The record shows the jury was instructed on constructive possession. Specifically,

State’s instructions S-1, S-2, and S-3 all defined and/or explained constructive possession.

Thus, we find this issue is meritless.

CONCLUSION

¶31. The issues raised in Duncan’s pro se brief are without merit, and we find no issues

that call for additional briefing. Accordingly, we affirm the judgment of the Forrest County

Circuit Court.

¶32. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR.

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