Allen v. State

111 So. 3d 679, 2013 WL 1297236, 2013 Miss. App. LEXIS 144
CourtCourt of Appeals of Mississippi
DecidedApril 2, 2013
DocketNo. 2012-KA-00391-COA
StatusPublished
Cited by3 cases

This text of 111 So. 3d 679 (Allen v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Allen v. State, 111 So. 3d 679, 2013 WL 1297236, 2013 Miss. App. LEXIS 144 (Mich. Ct. App. 2013).

Opinion

ROBERTS, J.,

for the Court:

¶ 1. A jury sitting before the Lincoln County Circuit Court found Christopher Allen guilty of conspiring to sell amphetamines to a confidential informant (Cl). Allen claims the circuit court erred when it denied his request for a circumstantial-evidence instruction. Additionally, Allen claims there was insufficient evidence to sustain his conspiracy conviction. Finally, Allen argues that his conspiracy conviction is contrary to the overwhelming weight of the evidence. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Allen’s conviction stems from his interaction with a CI1 who informed law-enforcement officers that he had previously bought Adderall, a prescription medication' that contains amphetamine, from Allen and Allen’s girlfriend, Julie Thornton. Deputy Keith Dickerson of the Lincoln County Sheriffs Department and Officer John Douglas of the Brookha-ven Police Department met the Cl at a [683]*683pre-buy location. The law-enforcement officers gave the Cl money to buy Adde-rall from Thornton and Allen. The law-enforcement officers also wired the Cl with audio and visual surveillance equipment.

¶ 3. The Cl called Thornton, and they arranged a place to meet. However, they did not specifically mention the purpose of their meeting during that initial phone call. Sometime later, Allen called the Cl. That phone call was not recorded. At trial, the Cl testified that he and Allen clarified the location where they planned to meet-which was on property that Allen’s family owned. Again, they did not specifically mention buying or selling Adderall, although the Cl had previously purchased Adderall from Allen, who had a prescription for Adderall.

¶ 4. When the Cl arrived at the prearranged meeting place, the Cl gave money to Thornton, and Thornton gave the Cl four Adderall pills. Allen was driving the vehicle in which he and Thornton had arrived. However, it was Thornton who actually conducted the exchange. Allen never got out of the vehicle, although he was sitting inside his vehicle, which was mere feet from the exchange between Thornton and the Cl.

¶ 5. The Cl returned to the officers. He gave Deputy Dickerson the Adderall pills. Those pills were later sent to the Mississippi Crime Laboratory, where forensic scientist Alison Conville confirmed that they were actually Adderall pills.

¶ 6. Thornton and Allen were each indicted on one count of the unlawful sale of amphetamine and one count of conspiracy to sell amphetamine. Thornton pled guilty to both charges. Allen opted for trial. At Allen’s trial, Deputy Dickerson testified that Allen had a prescription for Adderall. However, Deputy Dickerson admitted that he never heard Allen discuss transferring pills. Officer Douglas also testified that he never heard any mention of exchanging pills during the phone conversations between the Cl and Thornton or Allen. The Cl testified that he and Allen only discussed where to meet. According to the Cl, he and Allen never specifically mentioned that the Cl would be giving Allen money in exchange for Adderall pills. However, the prosecution introduced the audio and visual recordings that were captured on the equipment that was wired to the Cl. Thornton testified that she did not have a prescription for Adderall. Although Thornton testified that she had received Adderall pills from Allen in the past, she also testified that she could not remember where she got the Adderall pills that she sold to the Cl.

¶ 7. During the conference on jury instructions, Allen requested a circumstantial-evidence instruction. However, the circuit court denied Allen’s request. Ultimately, the jury found Allen not guilty of selling amphetamine. However, the jury found Allen guilty of conspiracy to sell amphetamine. The circuit court sentenced Allen to twelve years in the custody of the Mississippi Department of Corrections, with six years suspended and six years to serve, followed by five years of post-release supervision. Following his unsuccessful post-trial motions for a judgment notwithstanding the verdict (JNOV) or a new trial, Allen appeals. Allen claims the circuit court erred when it denied his request for a circumstantial-evidence instruction. He also claims that there was insufficient evidence to sustain his conspiracy conviction. Finally, Allen claims his conviction is contrary to the overwhelming weight of the evidence.

ANALYSIS

I. CIRCUMSTANTIAL-EVIDENCE INSTRUCTION

¶ 8. Allen claims the circuit court erred when it denied his request for a circum[684]*684stantial-evidence instruction. According to Allen, he was entitled to a circumstantial-evidence instruction because there was no direct evidence that he and Thornton entered into a conspiracy to sell the Adderall pills.

¶ 9. “Jury instructions generally are within the discretion of the trial court.” Maye v. State, 49 So.3d 1124, 1129 (¶ 7) (Miss.2010). The Mississippi Supreme Court has instructed:

In determining whether error lies in the [giving] or refusal of various instructions, the instructions actually given must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. There is no error if all instructions taken as a whole fairly, but not necessarily perfectly, announce the applicable rules of law.

Id. Additionally, “a defendant is entitled to have jury instructions given which present his theory of the case; however, this entitlement is limited in that the court may refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.” Id.

¶ 10. “Circumstantial evidence is evidence which, without going directly to prove the existence of a fact, gives rise to a logical inference that such [a] fact does exist.” McInnis v. State, 61 So.3d 872, 875 (¶ 11) (Miss.2011) (quotations omitted). “A circumstantial-evidence instruction provides that the State must prove the defendant guilty beyond a reasonable doubt and to the exclusion of all reasonable hypotheses consistent with innocence.” Id. at 875-76 (¶ 11). If any evidence qualifies as “direct” evidence, a circuit court may refuse a circumstantial-evidence instruction. Id. at 876 (¶ 13).

¶ 11. One example of direct evidence is a defendant’s confession or admission to a “significant element of the offense.” Id. (quotations omitted). Another example of direct evidence is “eyewitness testimony to the gravamen [2] of the offense charged.” Id. Video evidence may also qualify as direct evidence. Golden v. State, 860 So.2d 820, 823 (¶ 15) (Miss.Ct.App.2003).

¶ 12. For there to be a conspiracy, “there must be recognition on the part of the conspirators that they are entering into a common plan and knowingly intend to further its common purpose.” Franklin v. State, 676 So.2d 287, 288 (Miss.1996). “The conspiracy agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.” Id. “Furthermore, the existence of a conspiracy, and a defendant’s membership in it, may be proved entirely by circumstantial evidence.” Id. In this case, there is circumstantial evidence of Allen’s recognition of a common plan to sell Adderall pills to the Cl.

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Bluebook (online)
111 So. 3d 679, 2013 WL 1297236, 2013 Miss. App. LEXIS 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-state-missctapp-2013.