Vardaman v. State

966 So. 2d 885, 2007 WL 2994000
CourtCourt of Appeals of Mississippi
DecidedOctober 16, 2007
Docket2006-KA-00734-COA
StatusPublished
Cited by7 cases

This text of 966 So. 2d 885 (Vardaman 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
Vardaman v. State, 966 So. 2d 885, 2007 WL 2994000 (Mich. Ct. App. 2007).

Opinion

966 So.2d 885 (2007)

James VARDAMAN, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-KA-00734-COA.

Court of Appeals of Mississippi.

October 16, 2007.

*888 Donna Sue Smith, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

Before LEE, P.J., GRIFFIS and ISHEE, JJ.

GRIFFIS, J., for the Court.

¶ 1. James Vardaman was convicted for possession of 250 dosage units of pseudoephedrine, in violation of Mississippi Code Annotated Section 41-29-313(2)(c) (Rev.2005), and conspiracy to manufacture methamphetamine, in violation of Mississippi Code Annotated Section 41-29-139 (Rev.2005). He was sentenced as an habitual offender to two consecutive terms of life imprisonment without the possibility of parole. Vardaman now appeals and argues that: (1) there was insufficient evidence to support the jury verdict, (2) the trial court erred in its instruction to the jury on note taking, (3) it was error to sentence him as an habitual offender, and (4) he was denied effective assistance of counsel. We find no error and affirm.

FACTS

¶ 2. On July 6, 2004, James Vardaman, Jerry Mullins and Julie Mason traveled to Brandon to renew Vardaman's vehicle tag. They then drove across the street to a Shell station. Vardaman walked from the Shell station to Dollar General where he purchased pseudoephedrine pills that contain a key ingredient necessary to manufacture methamphetamine. The store manager of the Dollar General became suspicious because Vardaman was buying more than two boxes of pseudoephedrine and called 911 to report the purchase.

¶ 3. Mullins and Mason drove over from the Shell station to pick up Vardaman at the Dollar General. Vardaman got back into the car with the pills he bought concealed in his pants. Vardaman then asked Mullins to go into the Dollar General and get "some." Vardaman did not specifically say pseudoephedrine pills but Mullins knew what he was referring to because, one week prior to this incident, Mullins had shown Vardaman how to "cook" crystal methamphetamine. Mullins went inside and purchased two boxes of pseudoephedrine pills. The three defendants drove over to Family Dollar where Vardaman bought more pills.

¶ 4. After returning to the car, Vardaman noticed an unmarked car used by the police. Upon seeing the police, they decided to pull over at a BP station to get rid of the pills. Vardaman began popping the pills out of the blister packs. He got out of the car and threw all of the empty pill boxes and blister packs into a garbage can at the BP.

¶ 5. Pursuant to the 911 call from the Dollar General manager, narcotics agent Martin Mann and his partner, Matt Thornton, had been following Vardaman, Mullins and Mason since they left Family Dollar. Upon seeing Vardaman put a yellow bag into the BP garbage can, Mann called for a backup unit to make a traffic stop and Vardaman, Mullins and Mason were taken into custody.

*889 ¶ 6. Mason, who had been driving, gave Mann permission to search the vehicle. He found a yellow plastic bag inside the dash that contained numerous pseudoephedrine pills. He also recovered seven empty pseudoephedrine pill boxes and seven empty blister packs from the yellow bag in the BP garbage can.

¶ 7. Back at the police station, Mann counted the pills found in the dash of the car and determined that there were a total of 288 pills. Mann told his partner the total number of pills but never wrote the number down in a report.

¶ 8. While Mann and Thornton were conducting another interview, Vardaman somehow accessed the bag of pills and concealed them in his pants. Vardaman then repeatedly asked to use the bathroom. Another officer escorted him to the bathroom and left the door open in accordance with police policy. The officer saw Vardaman take a yellow bag out of his pants and began to dump several white pills into the toilet. A struggle ensued to keep Vardaman from flushing the toilet. A second officer also observed the white pills falling into the toilet and saw that the toilet was full of a pile of pills. Only one intact pill was recovered.

¶ 9. Vardaman was later interviewed by Officers Mann and Thornton. In a written statement, Vardaman admitted purchasing two boxes of pills at Dollar General and two boxes at Family Dollar. He also admitted that he did throw away the empty packs at the BP station.

¶ 10. In addition to his written statement, Vardaman told the officers that he and the other defendants planned to "make a cook" that night or the next day; in other words, they planned to extract the ephedrine from the pills in order to manufacture crystal methamphetamine. This statement was never recorded because the police officers erroneously believed the interview was being videotaped.

¶ 11. Both Mullins and Mason were convicted on charges related to the arrest. At trial, Mullins testified that he had "cooked meth" with Vardaman before and both Mullins and Mason said that they had used methamphetamine with Vardaman.

ANALYSIS

I. Was the evidence offered at trial sufficient to support the jury's verdict?

¶ 12. Vardaman argues that the trial court erred when it denied his motion for a directed verdict because the evidence at trial was insufficient to uphold his convictions for possession of 250 dosage units of pseudoephedrine and conspiracy to manufacture methamphetamine. Specifically, he contends that there is no proof that he possessed 250 pseudoephedrine pills and no proof that he and either of the defendants conspired to manufacture methamphetamine.

¶ 13. When reviewing a motion for directed verdict, the Court looks to the sufficiency of the evidence. Gleeton v. State, 716 So.2d 1083, 1087(¶ 14) (Miss. 1998). All of the evidence must be construed in a light most favorable to the verdict. Id. "We may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty." Id. (quoting Wetz v. State, 503 So.2d 803, 808 (Miss.1987)).

a. Possession of 250 dosage units of pseudoephedrine

¶ 14. Vardaman argues that the State did not show that he possessed the requisite 250 pills because only seven boxes and their respective blister packs were recovered from the garbage can at the BP *890 station. Each box contained 24 pills; therefore, the seven boxes accounted for 168 pills. However, Sergeant Mann testified that he had no doubt that he counted 288 pills in the bag recovered from Vardaman's vehicle. Detective Thornton also testified that the total number of pills was above 250. Furthermore, Mullins testified that he was placed in the same jail cell as Vardaman after the arrest. Vardaman told Mullins that his wife had picked up his car and found more pills that the police did not recover indicating that Vardaman was in possession of more pills than just those he had bought that day.

¶ 15. We find that there was sufficient testimonial evidence for the jury to conclude that Vardaman was in possession of 250 dosage units of pseudoephedrine. This issue has no merit.

b. Conspiracy to manufacture methamphetamine

¶ 16. Vardaman further argues that there was insufficient evidence of a conspiracy between himself and Mullins or Mason. He bases this argument primarily on the fact that he did not specifically tell Mullins to purchase pseudoephedrine pills but instead asked Mullins to go into the Dollar General and get "some."

¶ 17.

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Bluebook (online)
966 So. 2d 885, 2007 WL 2994000, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vardaman-v-state-missctapp-2007.