Riley v. State

126 So. 3d 1007, 2013 WL 6233888, 2013 Miss. App. LEXIS 832
CourtCourt of Appeals of Mississippi
DecidedDecember 3, 2013
DocketNo. 2012-KA-01145-COA
StatusPublished
Cited by5 cases

This text of 126 So. 3d 1007 (Riley 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
Riley v. State, 126 So. 3d 1007, 2013 WL 6233888, 2013 Miss. App. LEXIS 832 (Mich. Ct. App. 2013).

Opinion

BARNES, J.,

for the Court:

¶ 1. A Walthall County Circuit Court jury convicted Alvin Renon Riley of the sale of less than one hundred dosage units of hydrocodone. He was sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with six years to serve and the remaining nine years to be suspended for post-release supervision. The trial court denied Riley’s post-trial motion for a judgment notwithstanding the verdict (JNOV), or in the alternative, a new trial. Finding no error, we affirm the circuit court’s judgment on appeal.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. On March 23, 2010, a confidential informant, Michelle Brown, made an undercover purchase of narcotics from Riley. The Southwest Narcotics Enforcement Unit of Walthall County had given Brown $60 to make the controlled buy, and followed her to Riley’s house. Agent Dan Hawn activated the electronic recording device worn by Brown and monitored the situation. Agent Hawn heard the transaction take place and heard Riley say, “$60, that would be 12 pills[,] ... five, six.... ” He also heard the sound of pills rattling in a bottle. Law enforcement met Brown at a pre-arranged location and took custody of the drugs — twelve dosage units of hy-drocodone — for analysis.

¶ 3. Riley was indicted on July 19, 2010, for “willfully, unlawfully, feloniously and knowingly sell[ing] less than one hundred [1009]*1009(100) dosage units of hydrocodone, a controlled substance, to one confidential informant, for money ... in violation of [Mississippi Code Annotated sjection 41-29-139[.]” After a two-day jury trial, Riley was convicted, sentenced to fifteen years in the custody of the MDOC; and ordered to serve the first six years with the remaining nine years suspended for post-release supervision. He was also ordered to pay a $5,000 fíne and court costs, and to undergo drug treatment. Riley filed a motion for a JNOV or, in the alternative, a new trial. The trial court denied the motion, and Riley now appeals.

¶4. Finding no error, we affirm the judgment.

ANALYSIS

I. Whether the trial court erred by admitting a video and audio recording into evidence.

¶ 5. During Agent Hawn’s testimony, the State introduced the audio and video recording of the controlled drug buy. Defense counsel objected to the evidence of the recording, claiming that it was hearsay on the part of Agent Hawn, and that there was not a proper predicate laid for admission of the evidence. The State argued:

There is proper predicate in that Agent Hawn is the one who began and ended the surveillance video. He’s also testified that there’s no way that it can be altered or modified during the course of time — based upon the equipment, it cannot be altered or modified while it’s outside of his control.

The trial court agreed, noting that Agent Hawn “testified that he issued it, activated it, and received it,” and overruled the defense’s objection to the admission of the evidence. On appeal, Riley contends that the trial court erred by admitting the recording into evidence, since Agent Hawn was not a party to the transaction and, thus, could not properly authenticate the recording. He argues that Brown was the only witness who was a party to the transaction and could authenticate the recording, but the State failed to have her do so.

¶ 6. A trial court’s admission or exclusion of evidence is reviewed for abuse of discretion. Young v. State, 106 So.3d 811, 815 (¶ 5) (Miss.Ct.App.2011) (citing Catchings v. State, 39 So.3d 943, 950 (¶ 29) (Miss.Ct.App.2009)). Its “decision to admit or exclude evidence will only be reversed if it ‘results in prejudice and harm or adversely affects a substantial right of a party.’ ” Id. (citing Catchings, 39 So.3d at 951 (¶ 34)).

¶ 7. “Authentication of evidence requires the offering party to lay a proper foundation.” Wilson v. State, 775 So.2d 735, 740 (¶ 11) (Miss.Ct.App.2000). Mississippi Rule of Evidence 901(a) provides: “The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” One means to authenticate evidence is through the testimony of a witness with knowledge “that a matter is what it is claimed to be.” M.R.E. 901(b)(1).

¶ 8. In Ragin v. State, 724 So.2d 901, 903 (¶ 6) (Miss.1998), the Mississippi Supreme Court found that testimony by a surveillance agent to a drug transaction, where the agent had operated the equipment and had kept the tapes in his custody, was sufficient to authenticate the recording. In the present case, Agent Hawn had exclusive control of the electronic recording at all times during the transaction. Brown was not instructed how to use the equipment; Agent Hawn turned it on prior to the transaction. He then turned it off after the transaction had concluded and [1010]*1010Brown had delivered the drugs to law enforcement. At trial, Agent Hawn testified that the recording represented what he overheard as he was conducting surveillance of the drug transaction and that the recording had not been altered or modified in any way. Therefore, we find that Agent Hawn’s testimony was sufficient to lay a proper foundation that the subject matter (the recording of the drug transaction) was what the State purported it to be.

¶ 9. We also find that the recording was properly authenticated through Agent Hawn’s testimony that he was able to identify Riley’s voice. Agent Hawn testified that he had known Riley for over twenty years; they had gone to school together. Under Rule 901, voice identification may be used to authenticate or identify evidence, “whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.” M.R.E. 901(b)(5).

¶ 10. Consequently, we find that the trial court did not abuse its discretion by admitting the recording into evidence.

II. Whether the evidence was insufficient to prove that Riley sold a Schedule II substance under Mississippi Code Annotated section 41-29-115 (Rev.2009) and whether his conviction was against the overwhelming weight of the evidence.

¶ 11. The indictment charged Riley with the sale of “less than one hundred (100) dosage units of hydrocodone, a controlled substance,” for which he was convicted. The indictment did not specify whether the drug was a Schedule II or Schedule III substance. Hydrocodone is a Schedule II controlled substance. See Miss.Code Ann. § 41-29-115(A)(a)(l)(vi) (Rev.2009). Riley asserts that the State “wholly failed to prove that Riley sold less than one hundred dosage units of pure hydrocodone, which is specifically listed as a Schedule II controlled substance!.]” (Emphasis added). He avers, instead, that the evidence merely proved that the substance was 500 mg of acetaminophen and only 10 mg of hydrocodone, which is a Schedule III substance under Mississippi Code Annotated section 41-29-117(A)(e)(4) (Rev.2009).

¶ 12. A motion for a JNOV challenges the sufficiency of the evidence. Jenkins v. State, 101 So.3d 161, 165 (¶ 12) (Miss.Ct.App.2012) (citing McBride v. State, 61 So.3d 174, 183 (¶ 29) (Miss.Ct.App.2010)).

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Bluebook (online)
126 So. 3d 1007, 2013 WL 6233888, 2013 Miss. App. LEXIS 832, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riley-v-state-missctapp-2013.