Hunt v. State

863 So. 2d 990, 2004 Miss. App. LEXIS 13, 2004 WL 26776
CourtCourt of Appeals of Mississippi
DecidedJanuary 6, 2004
DocketNo. 2002-KA-01466-COA
StatusPublished
Cited by3 cases

This text of 863 So. 2d 990 (Hunt 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
Hunt v. State, 863 So. 2d 990, 2004 Miss. App. LEXIS 13, 2004 WL 26776 (Mich. Ct. App. 2004).

Opinion

McMILLIN, C.J.,

for the Court.

¶ 1. George Hunt was indicted and convicted on three counts of drug-related crimes. He has appealed the decision of the trial court to deny him a new trial. Hunt sought a new trial on the basis that the jury’s verdict was against the weight of the evidence. He further complains that he is being subjected to multiple punishments for the same conduct in violation of the protections against double jeopardy afforded him under applicable constitutional principles. We find no merit in Hunt’s challenge to the weight of the evidence. However, we conclude that at least a portion of Hunt’s contentions regarding double jeopardy are correct. We, therefore, affirm Hunt’s convictions as to the first and third counts of the indictment but reverse and render the conviction on the second count.

I.

Facts

¶ 2. Hunt and his wife were observed by store personnel in a Wal-Mart in Oktib-beha County to be gathering several purchases that included an unusually large number of packages of over-the-counter cold medication known to contain the chemical pseudoephedrine. Store personnel, aware that pseudoephedrine was a [992]*992precursor chemical used in the illegal manufacture of the controlled substance methamphetamine, alerted law enforcement authorities.

¶ 3. The authorities pulled over Hunt’s vehicle after he had left the store and discovered that his purchases included more than 250 dosage units of cold pills, a number of batteries containing the precursor substance, lithium, and other products containing chemicals useful in the manufacture of methamphetamine. Hunt gave a voluntary statement in which he acknowledged that he had been asked to purchase the cold tablets and the lithium batteries by an individual identified as Tommy Howell and that Hunt was aware that Howell had been involved in the manufacture of methamphetamine in the past. He stated that Howell had given him one hundred dollars to make these purchases with the understanding that any sums left over would be retained by Hunt as compensation for his effort. Hunt claimed in his statement that the remaining products were purchased by him individually for use in wood finishing activities.

¶ 4. As a result of facts gathered in the investigation, Hunt was indicted in a three-count indictment that, in summary, charged (a) a violation of the provision of the Mississippi Code that prohibits the simultaneous possession of two or more chemicals appearing on a list of identified precursor materials used in the manufacture of methamphetamine substances under circumstances demonstrating that the possessor knew (or reasonably should know) that the drugs would be used to illegally manufacture methamphetamine, (b) a violation of the provision of the Mississippi Code that prohibits the possession of 250 dosage units of pseudoephed-rine under circumstances where he knew or reasonably should have known the chemical was to be used in the illegal manufacture of methamphetamine, and (c) a conspiracy with Howell to possess these precursor chemicals.

II.

Multiple Punishments for the Same Conduct

A.

Multiplicity in the Indictment

¶ 5. Count One of the indictment, listing the precursor chemicals Hunt was alleged to possess simultaneously, named the following materials: pseudoephedrine, hexane, heptane, toluene, naptha, and lithium. Count Two alleged that he possessed “pseudoephedrine, in an amount in excess of Two Hundred Fifty (250) dosage units.” There is no dispute that the quantity of pseudoephedrine described in Count One is the same quantity of the drug that is identified in Count Two.

¶ 6. At the conclusion of the proof, Hunt contended that he was, in effect, being charged with two distinct crimes for the same underlying conduct. He argued that he was exposed to punishment for the act of possession of the pseudoephedrine yet, because possession of the same pseu-doephedrine was an essential element of Count Two, he was subject to a second punishment for the same conduct in violation of the double jeopardy protection afforded him in such circumstances. Blockburger v. U.S., 284 U.S. 299, 303-04, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969).

¶ 7. The trial court, expressing concern over that circumstance, attempted to resolve the problem by dropping the allegation concerning pseudoephedrine from the jury instruction defining the elements of Count One on the theory that, since the count recited more than the minimum of two precursors necessary to support that [993]*993charge, there were enough remaining forbidden substances listed to sustain a conviction on that count without consideration of the pseudoephedrine.

¶ 8. Section 41 — 29—313(l)(a)(ii) makes it illegal to

possess any two (2) or more of the listed precursor chemicals or drugs in any amount, knowing, or under circumstances where one reasonably should know, that the listed precursor chemical or drug will be used to unlawfully manufacture a controlled substance.

Miss.Code Ann. § 41-29-313(l)(a)(ii) (Supp.2003). Section 41-29-313(3) contains the referenced list which numbers twenty-three suspect materials. It is sufficient for our discussion to note that the list includes pseudoephedrine, heptane, toluene, and lithium, which were the chemicals shown by the State’s proof at trial to have been in Hunt’s possession.

¶ 9. This Court doubts the authority of the trial court to alter the nature of the charges in the manner that it did in this case. By omitting the charge of possession of pseudoephedrine from the instructions defining the elements of Count One under these circumstances, the court effectively amended the indictment to omit an allegation of possession of pseu-doephedrine from consideration in Count One, not on the basis of a failure of the proof, but because the State needed to “borrow” that factual allegation to sustain its contentions on another count in the indictment. It would appear that such a modification of an indictment was one of substance rather than form and, as such, could only be undertaken by action of the grand jury. Jones v. State, 279 So.2d 650, 651 (Miss.1973).

¶ 10. We, therefore, find it appropriate to consider Hunt’s claims of double jeopardy on the basis of the provisions of the indictment in its “unamended” form. Viewed in that light, we are satisfied that the State has, in fact, attempted to punish Hunt under two separate criminal statutes for what is but a single criminal act. Certainly, under the facts, the State had the option of charging Hunt either for the simultaneous possession of two or more precursor chemicals, one of which was pseudoephedrine, or for the possession of 250 dosage units of pseudoephedrine. However, once the State elected to indict him on Count One for possession of two or more precursor chemicals in any amount and the list of those chemicals included pseudoephedrine, then Hunt was properly charged and exposed to criminal punishment for his alleged possession of the pseudoephedrine.

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Related

McClellan v. State
34 So. 3d 548 (Mississippi Supreme Court, 2010)
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918 So. 2d 87 (Court of Appeals of Mississippi, 2006)
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Cite This Page — Counsel Stack

Bluebook (online)
863 So. 2d 990, 2004 Miss. App. LEXIS 13, 2004 WL 26776, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hunt-v-state-missctapp-2004.