Abdulkhaliq Mohammed Murshid a/k/a Andy v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: April 20, 2021
• Docket: 2020-KA-00033-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-KA-00033-COA

ABDULKHALIQ MOHAMMED MURSHID APPELLANT A/K/A ANDY

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/25/2019 TRIAL JUDGE: HON. CHARLES W. WRIGHT JR. COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: P. SHAWN HARRIS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: META S. COPELAND DISTRICT ATTORNEY: KASSIE ANN COLEMAN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 04/20/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE CARLTON, P.J., LAWRENCE AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. On July 28, 2016, a Lauderdale County grand jury indicted Abdulkhaliq Murshid for

the following: Count I, possession with intent to sell counterfeit goods; Count II, possession

with intent to sell more than one kilogram of synthetic cannabinoids (spice); Counts III-V,

possession with intent to sell recordings without the display of required information; and

Count VI, conspiracy to sell spice. On May 29, 2019, the State reindicted Murshid. The

2019 indictment contained identical charges except with regard to Count II, which provided

the specific net weight—3,419.16 grams—of spice that law enforcement had seized at the

time of Murshid’s arrest. After Murshid’s reindictment in 2019, the State dismissed the 2016 indictment against him.

¶2. Following a jury trial on the 2019 indictment, the Lauderdale County Circuit Court

entered a directed verdict as to Count VI and allowed the State to amend Count II of

Murshid’s indictment to conform to the trial evidence. As amended, Count II charged

Murshid with possession of more than thirty grams but less than one kilogram of spice with

the intent to sell. A Lauderdale County Circuit Court jury convicted Murshid of Counts I-V.

The circuit court then sentenced Murshid to serve three years in the custody of the

Mississippi Department of Corrections (MDOC) for Count I and to serve a consecutive five-

year sentence in MDOC’s custody for Count II. The circuit court also fined Murshid a total

of $35,000: $20,000 for Count II and $5,000 for each of the convictions in Counts III, IV,

and V.

¶3. On appeal, Murshid argues that the circuit court erroneously denied (1) his motion to

suppress evidence; (2) his motion to dismiss; (3) his motion for a mistrial; and (4) his motion

for a directed verdict. Finding no error, we affirm the circuit court’s judgment.

FACTS

¶4. At the time of his arrest, Murshid owned and operated multiple convenience stores in

Meridian, Mississippi. On July 9, 2015, agents from the Mississippi Bureau of Narcotics

(MBN) executed search warrants at two of Murshid’s stores for evidence related to the sale

of spice. The MBN agents obtained a search warrant for Murshid’s Meridian Tobacco store

located on 8th Street in Meridian after confidential informants purchased spice from the store

2 on two separate dates. The MBN agents obtained a second search warrant for Murshid’s

Grey Cloud Discount Tobacco store located on Highway 45 in Meridian after a store

employee showed the agents an inventory of spice labeled as incense.

¶5. At trial, Murshid moved to suppress the evidence seized as a result of the search

warrant executed at the Grey Cloud store. Murshid asserted that the agents had obtained the

warrant after illegally searching the store. During the hearing on Murshid’s motion to

suppress, MBN Agent Will Peterson testified that he participated in the investigation into

Murshid and that he applied for and obtained the warrant to search the Grey Cloud store.

Agent Peterson stated that two other agents initially entered the Grey Cloud store on July 9,

2015, with the knowledge that an arrest warrant had been issued for Murshid and with the

belief that Murshid might be inside that particular store location. The two agents wore

clothing that clearly identified them as law-enforcement officers. Upon entering the Grey

Cloud store, the agents made contact with an employee, who informed them that Murshid

was not there. In response to the agents’ questions, the employee indicated that the store

contained no illegal items and did not sell spice because the substance was illegal in

Mississippi. When asked whether the store sold incense, however, the employee responded

affirmatively. The employee opened a drawer behind the counter and invited the two agents

to walk behind the counter to view the drawer’s contents. The open drawer contained

numerous foil packages with assorted markings, and the agents recognized that the packages

were consistent with the type used to store and distribute spice. The markings indicated that

3 the packages contained incense, and Agent Peterson testified that incense and potpourri were

terms often used to refer to spice. Based on their belief that the packages in plain view inside

the open drawer contained contraband, the two agents contacted Agent Peterson. After

confirming the basis for the agents’ belief that the Grey Cloud store contained spice, Agent

Peterson applied for a search warrant.

¶6. After considering the parties’ arguments and evidence, the circuit court concluded that

the two MBN agents acted in good faith when they initially entered the Grey Cloud store and

asked the employee whether Murshid was present. The circuit court found that the agents

continued to act in good faith as they questioned the employee about whether the store sold

any illegal items. The circuit court also found that the employee had invited the agents

behind the counter to view the incense inside the open drawer and that probable cause existed

for the agents’ belief that the foil packages they observed in plain view contained spice. The

circuit court further found that the agents’ good-faith conduct continued as they secured the

store and applied for a search warrant. As a result of these findings, the circuit court denied

Murshid’s motion to suppress the results of the search warrant executed at the Grey Cloud

store.

¶7. Agent David Creel, who worked for MBN at the time of Murshid’s arrest, executed

the search warrant for Murshid’s Meridian Tobacco store. Agent Creel testified that law-

enforcement officers arrested Murshid after they seized counterfeit goods, $1,700 in cash,

ledgers, multiple firearms, digital scales, and loose and packaged material that appeared to

4 be synthetic cannabinoids.

¶8. On May 29, 2019, the State reindicted Murshid. The 2019 indictment contained

identical charges except with respect to Count II, which provided that law enforcement had

seized exactly 3,419.16 grams of spice from the Meridian Tobacco store. On August 1,

2019, Murshid moved to dismiss the charges against him on the basis that the new indictment

violated both his constitutional right and statutory right to a speedy trial. After thoroughly

analyzing Murshid’s speedy-trial claims and ultimately concluding that they lacked merit, the

circuit court denied Murshid’s motion to dismiss.

¶9. On November 19, 2019, Murshid moved to prevent the State from presenting evidence

of his alleged prior bad acts. Specifically, Murshid sought to prevent the State from

introducing testimony about the following: (1) a 2013 charge against him, which was later

dismissed, for the possession of synthetic cannabinoids, and (2) a video recording that

purportedly showed he was present while another person sold contraband. Following a

hearing, the circuit court found that the prejudicial effect of the State’s proffered evidence

outweighed any probative value. The circuit court therefore granted Murshid’s motion to

exclude the evidence of his alleged prior bad acts unless the defense opened the door to such

evidence during the trial. When the State sought clarification as to whether the circuit court’s

ruling to exclude the evidence included testimony about Murshid’s interview statements to

law-enforcement officers, the circuit court explained that its ruling related to “the

interrogation by the law[-]enforcement officers in which they . . . stated that they saw a

5 videotape in which he [(Murshid)] was . . . present when there was an illegal sale.”

¶10. At trial, the State asked Agent Creel about his participation in Murshid’s arrest and

subsequent interview. Agent Creel testified that Murshid signed a waiver of his Miranda1

rights and provided a statement to Agent Creel. During the interview, Murshid denied selling

spice. Agent Creel stated that Murshid said his wife Susan Murshid began operating the

Meridian Tobacco store after the United States Drug Enforcement Agency (DEA) arrested

Murshid in 2013. Murshid’s attorney immediately objected to Agent Creel’s testimony about

the 2013 arrest and moved for a mistrial. The circuit court sustained the defense’s objection

but denied the mistrial motion.

¶11. When questioning resumed, Agent Creel testified that Murshid claimed Susan had

purchased the spice from a company in Florida, which the Murshids had verified with the

Florida Secretary of State’s Office was a legal business. Murshid told Agent Creel that he

then purchased the already prepackaged substance from Susan to sell at the Grey Cloud store.

According to Murshid, he and Susan had asked the Florida seller to test the spice to ensure

that it was legal for them to sell. Agent Creel testified, however, that even if the Florida

company had told the Murshids they could legally sell the spice, such assurances did not

make the sale of the substance legal in Mississippi.

¶12. At trial, Susan testified that Murshid owned and operated several convenience-store

locations but that she alone managed the Meridian Tobacco store. Susan acknowledged that

1 Miranda v. Arizona, 384 U.S. 436 (1966).

6 Murshid paid the taxes, bills, and rent for the Meridian Tobacco store, but she stated that she

oversaw all business aspects of the store, including the purchase and sale of all inventory.

Susan admitted, however, that Murshid essentially held the “purse strings” because she gave

him the store’s proceeds, and he funded the purchase of the store’s merchandise. Although

Murshid was present at the Meridian Tobacco store when the MBN agents executed their

search warrant, Susan testified that Murshid usually only checked in at the store about twice

a week. Susan maintained she was unaware at the time of the search and seizure that she had

purchased illegal products that contained synthetic cannabinoids. Based on the information

she had received from the Florida company that sold the product, Susan claimed she had

believed she could legally sell the products in Mississippi.

¶13. Susan further testified that she had purchased the counterfeit purses and wallets seized

from the Meridian Tobacco store without Murshid’s knowledge or participation. Susan

stated that she believed the products were legal when she purchased them, and she

maintained that Murshid had no involvement in selling any of the products at the Meridian

Tobacco store. Although she acknowledged that the MBN agents had seized some of the

spice-containing items from the Grey Cloud store, Susan claimed that her son-in-law had

shipped those items directly to the Grey Cloud store rather than to the Meridian Tobacco

store. Susan denied that Murshid had ever purchased any of the spice-containing items from

her so that he could then sell the products at the Grey Cloud store.

¶14. Agent Peterson testified that he executed the search warrant for Murshid’s Grey Cloud

7 store. As a result of the search, MBN agents seized a ledger, two firearms, foil packages

believed to contain synthetic cannabinoids, and approximately $227,000 in cash. Agent

Peterson testified that the foil packages with the suspected synthetic cannabinoids were

transported to the Mississippi Forensics Laboratory for analysis.

¶15. Forensic scientist Keith McMann, who worked at the forensics laboratory and

specialized in drug analysis, reviewed the test results conducted on the suspected drug items

seized from Murshid’s two convenience stores. McMann testified that the total net weight

of the tested substance amounted to 650.08 grams—536.08 grams from the Meridian

Tobacco store and 114 grams from the Grey Cloud store. McMann confirmed that the test

results showed the analyzed substances contained spice.

¶16. Investigator Leland McDivitt with the Mississippi Attorney General’s Office testified

that he participated in the MBN’s investigation into Murshid. Investigator McDivitt met the

MBN agents at the Meridian Tobacco store on the day they executed the search warrant.

Upon entering the store, Investigator McDivitt observed in plain sight a counterfeit Louis

Vuitton wallet and multiple counterfeit Michael Kors purses and wallets for sale.

Investigator McDivitt testified that although some of the counterfeit items were in a back

storage room, one counterfeit item was on display inside a glass case by the cash register, and

several other counterfeit items were displayed in the store’s aisles. According to Investigator

McDivitt’s calculations, the aggregate retail value of the purses and wallets, had they been

genuine, would have totaled about $5,426. After helping with the search of the Meridian

8 Tobacco store, Investigator McDivitt went to the Grey Cloud store to assist the MBN agents

there. While at the Grey Cloud store, Investigator McDivitt observed three counterfeit CDs

and/or DVDs for sale in plain sight.

¶17. After Murshid had been arrested and advised of his Miranda rights, Investigator

McDivitt questioned him about the counterfeit purses and wallets seized from the Meridian

Tobacco store. Murshid did not deny that he owned the items. He also did not feign

ignorance as to their presence within his store. Instead, Murshid told Investigator McDivitt

that he had obtained the majority of the counterfeit purses and wallets from a business in

Jackson, Mississippi.

¶18. Because Count II of the indictment provided that law enforcement had seized a total

net weight of 3,419.16 grams of spice at the time of Murshid’s arrest, the State moved to

amend Count II to conform with the trial evidence showing that law enforcement had actually

seized between thirty grams and one kilogram of spice. The circuit court allowed the

amendment, and as amended, Count II provided that Murshid possessed more than thirty

grams but less than one kilogram of spice at the time of his arrest.

¶19. At the close of the State’s case-in-chief, Murshid moved for a directed verdict on all

six counts in the indictment. Although the circuit court denied the motion at that time, it later

granted the motion as to Count VI for the charge of conspiracy to sell spice. At the close of

the parties’ evidence, Murshid unsuccessfully renewed his directed verdict motion as to the

five remaining counts.

9 ¶20. After considering all the testimony and evidence, the jury found Murshid guilty of

Counts I-V. For Count I, possession with intent to sell counterfeit goods, the circuit court

sentenced Murshid to serve three years in MDOC’s custody. For Count II, possession with

intent to sell more than 30 grams but less than one kilogram of spice, the circuit court ordered

Murshid to serve a consecutive five-year sentence in MDOC’s custody and fined him

$25,000. The circuit court also fined Murshid $5,000 for each of the charges in Counts III,

IV, and V for possession with intent to sell recordings without the display of required

information. Murshid unsuccessfully moved for a new trial. Aggrieved, he appeals.

DISCUSSION

I. Motion to Suppress

¶21. Murshid argues that the circuit court erroneously denied his motion to suppress the

results of the search warrant executed at the Grey Cloud store. We apply a “‘mixed standard

of review’ with respect to the denial of a motion to suppress under the Fourth Amendment.”

Holloway v. State, 282 So. 3d 537, 541 (¶13) (Miss. Ct. App. 2019) (quoting Dies v. State,

926 So. 2d 910, 917 (¶20) (Miss. 2006)). Although we review de novo any determinations

for reasonable belief or probable cause, “we are bound by the trial judge’s findings as to the

underlying ‘historical facts’ unless those findings are ‘clearly erroneous.’” Id. (quoting Dies,

926 So. 2d at 917 (¶20)).

¶22. As this Court has previously explained:

The Fourth Amendment of the United States Constitution and Article 3, Section 23 of the Mississippi Constitution guarantee a person’s right to be free

10 from unreasonable searches and seizures. As a general rule, our state and federal Constitutions prohibit searches without a valid warrant unless an exception applies. The State bears the burden to show that a warrantless search falls under one of the permissible exceptions. If no exception is found, the evidence seized as a result of the search should be suppressed as fruit of the poisonous tree. A search is not unreasonable when it is based on probable cause.

Jones v. State, 261 So. 3d 1131, 1139 (¶26) (Miss. Ct. App. 2018) (quoting May v. State, 222

So. 3d 1074, 1078 (¶¶7-8) (Miss. Ct. App. 2016)). Exceptions to the warrant requirement

include consent to search, which is not limited to the property owner and can be given by a

third party “if that party possesses ‘common authority, mutual use, and joint control over

property not in the exclusive control or possession of the defendant and where the defendant

had no reasonable expectation of privacy.’” Brown v. State, 119 So. 3d 1079, 1081 (¶6)

(Miss. Ct. App. 2013) (quoting Brown v. State, 358 So. 2d 1004, 1005 (Miss. 1978)).

¶23. On appeal, Murshid challenges the Grey Cloud employee’s authority to consent to a

search. Murshid claims that as the store’s owner and operator, he was the only individual

authorized to consent to a search or to give permission for the MBN agents to walk behind

the counter. Because he neither consented nor gave his permission, Murshid asserts that the

evidence seized from the Grey Cloud store resulted from an illegal search and should have

been suppressed.

¶24. Although Murshid owned the Grey Cloud store, he was not present when the two

MBN agents entered on July 9, 2015. The record evidence reflects that the employee behind

the counter was the only individual present and was authorized during Murshid’s absence to

11 continue operating the store unsupervised. As part of her duties, the employee possessed

absolute authority to occupy the space behind the counter, to operate the cash register, and

to sell the store’s merchandise. The employee appeared to have unlimited and unrestricted

access to, as well as complete control and dominion over, the area behind the counter. That

area included the unlocked drawer in her immediate vicinity that contained the products

labeled as incense.

¶25. Based on such facts, we conclude that the Grey Cloud employee possessed sufficient

“common authority, mutual use, and joint control over” the area behind the store counter to

invite the agents to view the drawer’s contents and to voluntarily consent to a search of that

particular space. See Brown, 119 So. 3d at 1081 (¶6) (quoting Brown, 358 So. 2d at 1005).

We therefore hold that no unreasonable search and seizure resulted when the two agents

accepted the employee’s invitation and walked behind the counter to view the contents of the

open drawer. Accordingly, we find no error in the circuit court’s denial of Murshid’s motion

to suppress the evidence seized from the Grey Cloud store.

II. Motion to Dismiss

¶26. Murshid next contends that the two-year statute of limitations applicable to his

indicted charges expired without the State ever prosecuting him. Miss. Code Ann. § 99-1-5

(Rev. 2020). He further asserts that his reindictment was both untimely and improper and

that the circuit court therefore erred by denying his motion to dismiss the charges against

him. “Because ‘statutes of limitations are questions of law, we employ a de novo standard

12 of review with this issue.’” Stevens v. State, 294 So. 3d 699, 704 (¶16) (Miss. Ct. App. 2020)

(quoting Smoot v. State, 780 So. 2d 660, 662 (¶6) (Miss. Ct. App. 2001)).

¶27. “A prosecution may be commenced . . . by the issuance of a warrant, or by binding

over or recognizing the offender to compel his appearance to answer the offense, as well as

by indictment or affidavit.” Miss. Code Ann. § 99-1-7 (Rev. 2020); see also MRCrP 2.1(a)

(“All criminal proceedings shall be commenced either by charging affidavit, indictment, or

bill of information.”). As this Court recently explained:

While it is true that an indictment is required to prosecute one charged with a felony, our [caselaw] suggests and our statute mandates that the process of prosecution commences prior to indictment. This is true whether the prosecution involves a felony or a misdemeanor. Therefore, the issuance of an arrest warrant signals the commencement of prosecution.

Stevens, 294 So. 3d at 704 (¶17) (citations and internal quotation marks omitted).

¶28. Here, the MBN agents executed the search warrants for Murshid’s two convenience

stores on July 9, 2015.2 The agents also executed a warrant for Murshid’s arrest on the same

day, and a grand jury indicted Murshid just over one year later on July 28, 2016. Thus, the

record clearly refutes Murshid’s argument that the State failed to commence his prosecution

within the time period provided by section 99-1-5.

¶29. We further find no merit to Murshid’s claim that his 2019 reindictment was untimely

and therefore invalid. The May 29, 2019 indictment contained charges almost identical to

2 Murshid raises no challenge to the validity of the search warrant executed on the Meridian Tobacco store, and as previously discussed, we find no merit to his assertions regarding the invalidity of the search warrant executed on the Grey Cloud store.

13 those set forth in the 2016 indictment. The one exception involved Count II, which the State

amended to reflect the specific amount of spice seized from Murshid’s Meridian Tobacco

store. Despite the passage of over three years since Murshid’s arrest, the record clearly

reflects that the prosecution of the indicted charges commenced during the applicable

limitations period. See Eason v. King, No. 2:09cv116-KS-MTP, 2010 WL 3122789, at *4

(S.D. Miss. Mar. 25, 2010) (holding that under Mississippi caselaw, the prosecution for

Count IV of the defendant’s superseding indictment was timely commenced, even though the

superseding indictment was issued over two years after the arrest warrant and the original

indictment); see also Stevens, 294 So. 3d at 703 (¶¶6-8) (recognizing that the case against the

defendant had remained stagnant for three years after the issuance of an arrest warrant but

still finding no merit to the defendant’s claim that section 99-1-5’s two-year limitations

period had expired). Thus, based on the record and applicable caselaw, we find this issue

lacks merit.

III. Motion for a Mistrial

¶30. During a pretrial hearing, Murshid moved to exclude testimony about (1) the 2013

dismissed charge for possession of synthetic cannabinoids and (2) a video that purportedly

showed he was present while another person sold contraband. Following a hearing, the

circuit court excluded some of the State’s proffered evidence. In response to the State’s

request for clarification, the circuit court explained that its ruling did not exclude all

testimony about Murshid’s interview statements to law-enforcement officers but only the

14 evidence related to “the interrogation by the law[-]enforcement officers in which they . . .

stated that they saw a videotape in which he [(Murshid)] was . . . present when there was an

illegal sale.”

¶31. At trial, the State asked Agent Creel what Murshid had told him during their

interview. Agent Creel stated Murshid had informed him that Susan began operating the

Meridian Tobacco store after the DEA arrested Murshid in 2013. Murshid’s attorney

immediately objected to Agent Creel’s statement about the 2013 arrest. Although the circuit

court sustained the defense’s objection, it denied Murshid’s motion for a mistrial. On appeal,

Murshid contends that the circuit court erred by denying his mistrial motion after Agent

Creel’s reference to his 2013 arrest for an undisclosed charge.

¶32. We review the circuit court’s denial of Murshid’s mistrial motion for abuse of

discretion. Young v. State, 281 So. 3d 179, 186 (¶29) (Miss. Ct. App. 2019). “A trial judge

need declare a mistrial only when there is an error in the proceedings resulting in substantial

and irreparable prejudice to the defendant’s case.” Id. (quoting Hutto v. State, 227 So. 3d

963, 984 (¶66) (Miss. 2017)). In discussing when to grant a mistrial, Mississippi Rule of

Criminal Procedure 23.5 states the following:

Upon motion of any party, the court may declare a mistrial if there occurs during the trial, either inside or outside the courtroom, misconduct by a party, a party’s attorney(s), or someone acting at the behest of a party or a party’s attorney(s), resulting in substantial and irreparable prejudice to the movant’s case.

Upon motion of a party or its own motion, the court may declare a mistrial if:

15 (a) The trial cannot proceed in conformity with the law; or

(b) It appears there is no reasonable probability of the jury’s agreement upon a verdict.

¶33. After our review, we find no abuse of discretion in the circuit court’s denial of

Murshid’s motion for a mistrial. “[A] trial judge is best suited to determine the prejudicial

effect of an objectionable remark and is given considerable discretion in deciding whether

the remark is so prejudicial as to merit a mistrial.” Young v. State, 264 So. 3d 797, 805 (¶19)

(Miss. Ct. App. 2018) (quoting Ford v. State, 206 So. 3d 486, 491 (¶14) (Miss. 2016)). Our

review of the record reflects no evidence that Agent Creel’s single reference to Murshid’s

2013 arrest substantially or irreparably prejudiced Murshid’s case. The State never sought

to elicit improper testimony from Agent Creel, and Murshid’s attorney objected to the remark

before Agent Creel revealed the nature of the prior charge. In addition, at the conclusion of

Murshid’s trial, the circuit court properly instructed the jurors that they should disregard any

statements that were inadmissible and lacked a basis in the evidence. In relevant part, the

circuit court instructed the jury as follows:

The evidence which you are to consider consists of the testimony and statements of the witnesses and the exhibits offered and received.

....

If any argument, statement or remark has no basis in the evidence, then you should disregard that argument, statement[,] or remark.

You are to disregard all evidence which was excluded by the court from

16 consideration during the course of the trial.

Thus, the record reflects that the circuit court properly instructed the jury to only consider

admissible testimony with a basis in the evidence. Moreover, we presume that the jury

follows the court’s given instructions. Williams v. State, 288 So. 3d 412, 415 (¶12) (Miss.

Ct. App. 2020). We therefore find that this issue lacks merit.

IV. Motion for a Directed Verdict

¶34. In his final assignment of error, Murshid challenges the circuit court’s denial of his

motion for a directed verdict on Counts I-V of his indictment.

¶35. “Motions for a directed verdict . . . challenge the sufficiency of evidence presented

at trial . . . .” McNeer v. State, 307 So. 3d 508, 517 (¶26) (Miss. Ct. App. 2020). We review

questions regarding the sufficiency of the evidence de novo. Id. “This Court will reverse the

denial of a directed verdict only where reasonable and fair-minded jurors could only find for

the moving party.” Id. (quoting Sanford v. State, 247 So. 3d 1242, 1244 (¶10) (Miss. 2018)).

In assessing the sufficiency of the evidence, “[t]he reviewing court ‘must accept as true all

credible evidence consistent with guilt’ and give the State ‘the benefit of all favorable

inferences that may reasonably be drawn from the evidence.’” Guss v. State, 296 So. 3d 734,

737 (¶10) (Miss. Ct. App. 2020) (quoting Cowart v. State, 178 So. 3d 651, 666 (¶41) (Miss.

2015)).

¶36. Because none of the seized contraband was found in Murshid’s actual possession, the

State had to prove that he constructively possessed the spice and counterfeit goods at issue.

17 “Constructive possession allows the prosecution to establish possession of contraband when

evidence of actual possession is absent.” Roney v. State, 294 So. 3d 1268, 1272 (¶14) (Miss.

Ct. App. 2020) (quoting Williams v. State, 971 So. 2d 581, 587 (¶16) (Miss. 2007)). “There

must be sufficient facts to warrant a finding that the defendant was aware of the presence and

character of the particular contraband and was intentionally and consciously in possession

of it.” Adams v. State, 228 So. 3d 832, 835 (¶8) (Miss. Ct. App. 2017) (quoting Glidden v.

State, 74 So. 3d 342, 345-46 (¶12) (Miss. 2011)).

¶37. The State can establish constructive possession “by showing that the contraband was

under the dominion and control of the defendant.” Roney, 294 So. 3d at 1272 (¶14) (quoting

Williams, 971 So. 2d at 587 (¶16)). A presumption of constructive possession exists “[w]hen

the defendant owns or controls the premises where the contraband is found . . . .” Jordan v.

State, 158 So. 3d 348, 351 (¶8) (Miss. Ct. App. 2014) (emphasis omitted). “[I]f the

defendant’s possession of the premises is not exclusive, [however,] there must be additional

incriminating circumstances tying him to the [contraband].” Id.

¶38. No dispute exists that Murshid owned and operated the Grey Cloud store. In his

appellate brief, Murshid states that he possessed sole ownership of the Grey Cloud store and

that the store was incorporated under his name. As for the Meridian Tobacco store, Susan

admitted that although she operated the store, Murshid actually owned the store and

essentially controlled the “purse strings.” Susan testified that Murshid stopped by the

Meridian Tobacco store about twice a week to check in and that he paid the store’s taxes,

18 bills, and rent. Susan further testified that she gave the proceeds from the Meridian Tobacco

store to Murshid and that he gave her money from the sales at his other stores so she could

buy merchandise for the Meridian Tobacco store.

¶39. The jury also heard Agent Creel’s testimony about his interview with Murshid. Agent

Creel testified Murshid acknowledged that he knew Susan purchased incense to sell at the

Meridian Tobacco store. Murshid even stated that he obtained some of the incense from

Susan to then sell at the Grey Cloud store. In addition, Murshid told Agent Creel that he had

the Florida seller of the incense test the product to ensure the Murshids could legally sell it

in Mississippi. As for the counterfeit goods seized from both store locations, Investigator

McDivitt testified that he observed counterfeit wallets and purses displayed in plain sight by

the cash register and in the aisles at the Meridian Tobacco store. He further testified that he

observed three counterfeit CDs and/or DVDs for sale in plain sight at the Grey Cloud store.

When Investigator McDivitt questioned Murshid about the counterfeit purses and wallets,

Murshid responded that he purchased the items from a business in Jackson.

¶40. Upon review, we find the State presented evidence to show not only that Murshid

exercised dominion and control over both the Meridian Tobacco and Grey Cloud stores but

also that he possessed knowledge of the presence and character of the contraband sold at both

locations. We therefore conclude the State provided ample evidence from which the jury

could find that Murshid constructively possessed the contraband seized at both store

locations.

19 a. Count I

¶41. To prove Count I of Murshid’s indictment, the State had to establish that (1) Murshid

knowingly possessed counterfeit goods at the Meridian Tobacco store, (2) he intended to sell

the counterfeit goods, and (3) if neither forged nor counterfeited, the goods had an aggregate

retail value of $1,000 or more. Miss. Code Ann. § 97-21-57(1)(a) (Rev. 2020).

¶42. As discussed, we find the State presented sufficient evidence from which a reasonable

jury could find that Murshid constructively possessed the counterfeit purses and wallets

seized from the Meridian Tobacco store. As for the remaining two elements, Investigator

McDivitt testified that several of the counterfeit items were clearly displayed for sale in the

store and that one item was even located in a clear case next to the cash register. In addition,

Investigator McDivitt testified that the aggregate retail value of the purses and wallets, if not

forged or counterfeited, amounted to about $5,426. Viewing the evidence in the light most

favorable to the State, we conclude the State presented enough evidence from which rational

and fair-minded jurors could have found beyond a reasonable doubt that Murshid was guilty

of possession of counterfeit goods with the intent to sell. We therefore find no error in the

circuit court’s denial of Murshid’s directed verdict motion as to Count I.

b. Count II

¶43. After being amended to conform with the proof presented at trial, Count II of

Murshid’s indictment charged that he possessed with the intent to sell more than thirty grams

but less than one kilogram of spice. Miss. Code Ann. § 41-29-139 (Supp. 2015). To prove

20 Count II, the State was required to demonstrate that (1) Murshid knowingly possessed spice,

(2) the weight of the spice amounted to more than thirty grams but less than one kilogram,

and (3) Murshid intended to sell the spice. Id.

¶44. The record reflects the State presented evidence from which a reasonable juror could

find that Murshid constructively possessed the drug-related contraband seized at both the

Meridian Tobacco and the Grey Cloud stores. The State also proved that the seized

contraband contained spice, a controlled substance, and that the total net weight of the spice

amounted to 650.08 grams—536.08 grams from the Meridian Tobacco store and 114 grams

from the Grey Cloud store. The jury also heard ample testimony that both the Meridian

Tobacco store and the Grey Cloud store sold spice under the label of incense. From the trial

evidence presented, reasonable jurors could have concluded that Murshid was guilty of

possessing more than thirty grams but less than one kilogram of spice with the intent to sell.

We therefore find no error in the circuit court’s denial of Murshid’s directed verdict motion

as to Count II.

c. Counts III-V

¶45. Counts III, IV, and V of Murshid’s indictment charged him with possession with

intent to sell recordings that lacked the display of required information. Miss. Code Ann. 97-

23-89(2)(c) (Rev. 2020). Investigator McDivitt testified that when he entered the Grey Cloud

store, he observed in plain sight several CDs and/or DVDs for sale. In addition to noticeable

issues associated with the recordings’ packaging and artwork, Investigator McDivitt

21 explained that he identified the recordings as counterfeit because they failed to display the

manufacturer’s actual name and street address as required by section 97-23-89(2)(c). Based

on Investigator McDivitt’s testimony, reasonable jurors could have found Murshid guilty of

possessing with the intent to sell recordings that lacked the display of required information.

We therefore find no error in the circuit court’s denial of Murshid’s directed verdict motion

with regard to each of the three charges contained in Counts III, IV, and V of his indictment.

CONCLUSION

¶46. Because we find no error, we affirm Murshid’s convictions and sentences.

¶47. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ., CONCUR.