IN THE SUPREME COURT OF MISSISSIPPI
NO. 2020-KA-01366-SCT
DAMIAN LADELL BROWN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 12/04/2020 TRIAL JUDGE: HON. LISA P. DODSON TRIAL COURT ATTORNEYS: HERBERT H. KLEIN ANGELA BROUN BLACKWELL JOEL SMITH IAN LAWRENCE BAKER ROBERT CHARLES STEWART COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN E. BRIGGS GEORGE T. HOLMES ZAKIA BUTLER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/10/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE KITCHENS, P.J., COLEMAN AND GRIFFIS, JJ.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. A D’Iberville police officer arrested Damian Ladell Brown after spotting a firearm
during a traffic stop. Brown now appeals his resulting conviction for three counts of
possession of a controlled substance and one count of unlawful possession of a firearm by
a convicted felon. The trial court sentenced Brown to a total of twenty-four years to be served day for day without the benefit of early release or probation under Mississippi Code Section
99-19-81 (Rev. 2020), the habitual offender statute. Brown’s defense counsel filed a
motion for JNOV or, alternatively, a new trial. The court denied the motions, and Brown
appeals.
FACTS AND PROCEDURAL HISTORY
¶2. Officer Derek Romero of the D’Iberville Police Department was on duty during the
late night/early morning hours of December 30, 2018, when he noticed a car pass without
working tag lights. Romero turned on his patrol car lights and stopped the Toyota Camry.
When he got to the car, Romero noticed two passengers inside. The driver and owner of the
car, Martin Burkett, gave Romero his license. The passenger gave Romero a false name, but
he was later identified as Damian Brown. While Romero spoke to the men, he saw a firearm
on the passenger side floorboard of the car, behind Brown’s legs. He asked the men if there
were any weapons in the car, and they both answered that there were none. Romero then saw
Brown slide his foot backwards, sliding the gun underneath the passenger seat.
¶3. Romero radioed for additional units to be dispatched and walked around to the
passenger side of the car. He opened the door, asked Brown to step out of the car, and
informed the men that he saw a gun in the car. Brown stepped out of the car. When he did
so, Romero saw two bags containing a white powdery substance in the passenger seat.
Romero asked Brown where the gun was located, and Brown responded, “Right there.”
Before Romero had the opportunity to pat Brown down, Brown ran. Romero pursued Brown
and apprehended him.
2 ¶4. When the additional officers arrived back at the Toyota Camry, Burkett was still
sitting in the driver’s seat. One of the officers took a Glock 30 handgun from underneath the
passenger seat. He also removed two bags of white powdery substances, an aluminum foil
packet with two tablets, and a small bag containing nine multicolored tablets. The powdery
substance was 2.11 grams of cocaine, and the tablets in the aluminum foil and one other
partial tablet tested positive for oxycodone. The gun, cocaine, and tablets were all found on
the passenger side of the car.
¶5. Brown was later charged and convicted of three counts of possession of a controlled
substance and one count of felon in possession of a firearm.1
DISCUSSION
¶6. Brown argues that the trial court abused its discretion by failing to grant his proposed
jury instruction that contained a proper statement of the law and encompassed his theory of
defense. He further argues that the trial court erred by failing to grant his proposed jury
instruction that would have instructed the jury on how to view the circumstantial evidence
in his case.
¶7. “Whether to grant or deny proposed jury instructions is within the sole discretion of
the circuit court.” Victory v. State, 83 So. 3d 370, 373 (Miss. 2012) (citing Newell v. State,
49 So. 3d 66, 73 (Miss. 2010)). Thus, the grant or denial of jury instructions is reviewed for
an abuse of discretion. Id. “A defendant is entitled to have jury instructions given which
present his theory of the case; however, . . . the court may refuse an instruction which
1 In 2012, Brown was convicted of grand larceny and possession of a controlled substance.
3 incorrectly states the law, is covered fairly elsewhere in the instructions, or is without
foundation in the evidence.” Valentine v. State, 322 So. 3d 417, 423 (Miss. 2021) (internal
quotation marks omitted) (quoting Victory, 83 So. 3d at 373). “In determining whether error
lies in the granting or refusal of various instructions, the instructions actually given must be
read as a whole. . . . There is no error if all instructions taken as a whole fairly, but not
necessarily perfectly, announce the applicable rules of law.” Newell, 49 So. 3d at 73–74
(Miss. 2010) (quoting Rubenstein v. State, 941 So. 2d 735, 784–85 (Miss. 2006)).
I. Whether the trial court abused its discretion by failing to grant proposed jury instruction D-11.
¶8. Brown argues that his proposed jury instruction (D-11) should have been granted.
Brown’s proposed instruction stated, “[t]he Court instructs the jury that possession requires
actual or constructive control, not a mere passing control which occurs from a momentary
handling of contraband.” When reviewing the grant or denial of jury instructions for abuse
of discretion, no one instruction is to be singled out; the Court reviews them as a whole to
determine whether an error has occurred. Victory, 83 So. 3d at 373. The trial court may
refuse a jury instruction that is fairly covered elsewhere in the instructions or is a
misstatement of the law. Id.
¶9. The trial court granted a jury instruction proffered by the State containing the
following language:
The Court instructs the Jury that to constitute “Possession” as applied to this case, it is not necessary that the State prove actual physical possession; it is sufficient if the State establishes that the weapon and/or illegal narcotics involved were subject to the Defendant’s dominion and control, and that he
4 was aware or reasonably should have been aware, of its presence and character.
¶10. Curry v. State, 249 So. 2d 414 (Miss. 1971), first explained the law concerning the
concept of constructive possession. Constructive possession at its core requires that the
contraband be subject to the defendant’s dominion and control. Id. at 416. The Court in
Curry stated that
[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the [contraband] involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
Id.
¶11.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2020-KA-01366-SCT
DAMIAN LADELL BROWN
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 12/04/2020 TRIAL JUDGE: HON. LISA P. DODSON TRIAL COURT ATTORNEYS: HERBERT H. KLEIN ANGELA BROUN BLACKWELL JOEL SMITH IAN LAWRENCE BAKER ROBERT CHARLES STEWART COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: ERIN E. BRIGGS GEORGE T. HOLMES ZAKIA BUTLER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/10/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE KITCHENS, P.J., COLEMAN AND GRIFFIS, JJ.
COLEMAN, JUSTICE, FOR THE COURT:
¶1. A D’Iberville police officer arrested Damian Ladell Brown after spotting a firearm
during a traffic stop. Brown now appeals his resulting conviction for three counts of
possession of a controlled substance and one count of unlawful possession of a firearm by
a convicted felon. The trial court sentenced Brown to a total of twenty-four years to be served day for day without the benefit of early release or probation under Mississippi Code Section
99-19-81 (Rev. 2020), the habitual offender statute. Brown’s defense counsel filed a
motion for JNOV or, alternatively, a new trial. The court denied the motions, and Brown
appeals.
FACTS AND PROCEDURAL HISTORY
¶2. Officer Derek Romero of the D’Iberville Police Department was on duty during the
late night/early morning hours of December 30, 2018, when he noticed a car pass without
working tag lights. Romero turned on his patrol car lights and stopped the Toyota Camry.
When he got to the car, Romero noticed two passengers inside. The driver and owner of the
car, Martin Burkett, gave Romero his license. The passenger gave Romero a false name, but
he was later identified as Damian Brown. While Romero spoke to the men, he saw a firearm
on the passenger side floorboard of the car, behind Brown’s legs. He asked the men if there
were any weapons in the car, and they both answered that there were none. Romero then saw
Brown slide his foot backwards, sliding the gun underneath the passenger seat.
¶3. Romero radioed for additional units to be dispatched and walked around to the
passenger side of the car. He opened the door, asked Brown to step out of the car, and
informed the men that he saw a gun in the car. Brown stepped out of the car. When he did
so, Romero saw two bags containing a white powdery substance in the passenger seat.
Romero asked Brown where the gun was located, and Brown responded, “Right there.”
Before Romero had the opportunity to pat Brown down, Brown ran. Romero pursued Brown
and apprehended him.
2 ¶4. When the additional officers arrived back at the Toyota Camry, Burkett was still
sitting in the driver’s seat. One of the officers took a Glock 30 handgun from underneath the
passenger seat. He also removed two bags of white powdery substances, an aluminum foil
packet with two tablets, and a small bag containing nine multicolored tablets. The powdery
substance was 2.11 grams of cocaine, and the tablets in the aluminum foil and one other
partial tablet tested positive for oxycodone. The gun, cocaine, and tablets were all found on
the passenger side of the car.
¶5. Brown was later charged and convicted of three counts of possession of a controlled
substance and one count of felon in possession of a firearm.1
DISCUSSION
¶6. Brown argues that the trial court abused its discretion by failing to grant his proposed
jury instruction that contained a proper statement of the law and encompassed his theory of
defense. He further argues that the trial court erred by failing to grant his proposed jury
instruction that would have instructed the jury on how to view the circumstantial evidence
in his case.
¶7. “Whether to grant or deny proposed jury instructions is within the sole discretion of
the circuit court.” Victory v. State, 83 So. 3d 370, 373 (Miss. 2012) (citing Newell v. State,
49 So. 3d 66, 73 (Miss. 2010)). Thus, the grant or denial of jury instructions is reviewed for
an abuse of discretion. Id. “A defendant is entitled to have jury instructions given which
present his theory of the case; however, . . . the court may refuse an instruction which
1 In 2012, Brown was convicted of grand larceny and possession of a controlled substance.
3 incorrectly states the law, is covered fairly elsewhere in the instructions, or is without
foundation in the evidence.” Valentine v. State, 322 So. 3d 417, 423 (Miss. 2021) (internal
quotation marks omitted) (quoting Victory, 83 So. 3d at 373). “In determining whether error
lies in the granting or refusal of various instructions, the instructions actually given must be
read as a whole. . . . There is no error if all instructions taken as a whole fairly, but not
necessarily perfectly, announce the applicable rules of law.” Newell, 49 So. 3d at 73–74
(Miss. 2010) (quoting Rubenstein v. State, 941 So. 2d 735, 784–85 (Miss. 2006)).
I. Whether the trial court abused its discretion by failing to grant proposed jury instruction D-11.
¶8. Brown argues that his proposed jury instruction (D-11) should have been granted.
Brown’s proposed instruction stated, “[t]he Court instructs the jury that possession requires
actual or constructive control, not a mere passing control which occurs from a momentary
handling of contraband.” When reviewing the grant or denial of jury instructions for abuse
of discretion, no one instruction is to be singled out; the Court reviews them as a whole to
determine whether an error has occurred. Victory, 83 So. 3d at 373. The trial court may
refuse a jury instruction that is fairly covered elsewhere in the instructions or is a
misstatement of the law. Id.
¶9. The trial court granted a jury instruction proffered by the State containing the
following language:
The Court instructs the Jury that to constitute “Possession” as applied to this case, it is not necessary that the State prove actual physical possession; it is sufficient if the State establishes that the weapon and/or illegal narcotics involved were subject to the Defendant’s dominion and control, and that he
4 was aware or reasonably should have been aware, of its presence and character.
¶10. Curry v. State, 249 So. 2d 414 (Miss. 1971), first explained the law concerning the
concept of constructive possession. Constructive possession at its core requires that the
contraband be subject to the defendant’s dominion and control. Id. at 416. The Court in
Curry stated that
[T]here must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing that the [contraband] involved was subject to his dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances.
Id.
¶11. The controlled substances were found in Brown’s car seat, and the handgun was found
under his car seat. Brown argues that his proposed jury instruction was improperly denied
because it was an accurate statement of the law and encompassed his theory of defense in the
case. However, Brown’s testimony at trial was that he never touched the gun or drugs. The
trial court properly noted that if the jury were to accept either Brown’s testimony that he
never touched the contraband or the State’s theory that he was sitting on it or next to it the
whole time and knew it was there, there was no momentary handling of the contraband as
Brown’s proposed jury instruction required. The above-described facts distinguish Brown’s
case from the ones he cited at trial, which involved momentary handling of contraband. See
Berry v. State, 652 So. 2d 745, 751 (Miss. 1995); Lewis v. State, 17 So. 3d 618, 621 (Miss.
Ct. App. 2009).
5 ¶12. The State’s jury instruction, which was granted by the trial court before considering
and denying Brown’s proposed instruction, D-11, fairly covered the law and was a better and
more complete statement of the law.
II. Whether the trial court erred by failing to grant proposed jury instruction D-12, a circumstantial evidence jury instruction.
¶13. Before its decision in Nevels v. State, 325 So. 3d 627 (Miss. 2021), Mississippi
allowed a circumstantial evidence jury instruction when the prosecution could produce
neither eyewitnesses or a confession to the offense charged. Stringfellow v. State, 595 So.
2d 1320, 1322 (Miss. 1992), overruled by Nevels, 325 So. 3d 627. The Mississippi Supreme
Court joined a large majority of courts and overruled the cases that previously had entitled
defendants to a circumstantial evidence jury instruction. Nevels, 325 So. 3d at 634. Based
on the Court’s ruling in Nevels, Brown was not entitled to a circumstantial evidence jury
instruction.
CONCLUSION
¶14. We find that the jury instructions given fairly and accurately announced the law of the
case concerning constructive possession. The trial court did not abuse its discretion by
denying Brown’s proposed jury instruction D-11 as it had already been fairly covered
elsewhere in the instructions by the State’s jury instruction S-5, a more complete and accurate
statement of the law. Further, Brown was not entitled to a circumstantial evidence jury
instruction based on Nevels v. State. We affirm the judgment of the Harrison County Circuit
Court.
6 ¶15. AFFIRMED.
RANDOLPH, C.J., KITCHENS AND KING, P.JJ., MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.