Kimberly Ann Whitehead v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-KA-00697-COA

KIMBERLY ANN WHITEHEAD A/K/A APPELLANT
KIMBERLEY ANN WHITEHEAD A/K/A
KIMBERLY WHITEHEAD

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/17/2014
TRIAL JUDGE: HON. M. JAMES CHANEY JR.
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: KEVIN DALE CAMP
JARED KEITH TOMLINSON
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
DISTRICT ATTORNEY: RICHARD EARL SMITH JR.
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, POSSESSION
OF PRECURSORS WITH THE INTENT TO
MANUFACTURE A CONTROLLED
SUBSTANCE, AND SENTENCED TO
TWENTY YEARS WITH TEN YEARS
SUSPENDED AND TEN YEARS TO SERVE,
FOLLOWED BY FIVE YEARS OF
POSTRELEASE SUPERVISION; AND
COUNT II, POSSESSION OF BETWEEN .1
GRAM AND TWO GRAMS OF
METHAMPHETAMINE, AND SENTENCED
TO EIGHT YEARS, WITH THREE YEARS
SUSPENDED AND FIVE YEARS TO
SERVE, FOLLOWED BY THREE YEARS
OF POSTRELEASE SUPERVISION, WITH
THE SENTENCE IN COUNT II TO RUN
CONSECUTIVELY TO THE SENTENCE IN
COUNT I, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
DISPOSITION: AFFIRMED - 04/05/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ.

ISHEE, J., FOR THE COURT:

¶1. A jury sitting before the Warren County Circuit Court found Kimberly Ann Whitehead

guilty of possession of pseudoephedrine and ammonium nitrate with the intent to

manufacture a controlled substance, and possession of .1 gram or more, but less than two

grams, of methamphetamine. Whitehead appeals and raises four issues: (1) there was

insufficient evidence to find her guilty of either charge; (2) the jury’s verdicts were contrary

to the overwhelming weight of the evidence; (3) the evidence that led to her convictions was

seized without a valid consent to search; and (4) two of the jury instructions were inadequate

because they failed to list the precursors that she was charged with possessing. Finding no

error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. At approximately 8:30 p.m. on October 4, 2012, Investigators Mike Traxler and

Stacey Rollison of the Warren County Sheriff’s Department responded to a tip that

Whitehead was manufacturing methamphetamine at the address where she lived with her

eighty-year-old grandmother, Ruby Mills. Investigator Traxler knocked on the front door

while Investigator Rollison watched the back of the mobile home. Investigator Rollison also

watched a shed that was between fifteen and thirty feet from the back door of the mobile

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home.

¶3. After Investigator Traxler knocked on the front door, Investigator Rollison heard

movement inside the mobile home. According to Investigator Rollison, Whitehead then

“opened the back door, and she loudly whispered” something inaudible. Less than a minute

later, Whitehead “exited the back door[, and she was] carrying a black, square box in her

hands.” Whitehead opened the door to the shed and gave the black box to her boyfriend,

Shane Hulett. Hulett took the black box into the shed, and Whitehead went back inside the

mobile home.

¶4. Meanwhile, Mills had answered the front door. According to Investigator Traxler,

there was a strong odor of ammonia emanating from the mobile home. Investigator Traxler

asked to speak to Whitehead, who appeared at the front door a short time later. Whitehead

denied that anyone was manufacturing drugs at the house. She later led Investigator Traxler

to her and Hulett’s bedroom, where Investigator Traxler found “a coffee filter in a box by a

nightstand”1 and a glass pipe.

¶5. When Investigator Traxler came out of the back door with Whitehead and Mills,

Investigator Rollison told him that Hulett was in the shed. Whitehead said she did not own

the shed. Hulett also denied that he owned the shed, and he said that he had “just stopped

by.” However, Mills signed a consent form and gave the investigators permission to search

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Investigator Traxler later testified that coffee filters are used during the process of
manufacturing methamphetamine.

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the shed.

¶6. The black box that Investigator Rollison saw Whitehead carrying was hidden behind

a section of pegboard mounted inside the shed. Among other things such as spoons, a clear

plastic bag, a string level, and a bottle wrapped with electrical tape, the black box contained

scales disguised as a cell phone, “a coffee filter containing a white powder[y] substance,” and

a “small, white package” of a substance Investigator Traxler believed to be

methamphetamine. Another plastic bag containing a white powdered substance was on a

table in the shed. The shed also contained lithium batteries and a bucket of opened blister

packs of pseudoephedrine tablets. Hidden behind a part of a wall, Investigator Traxler found

a can of Drano and two cans of Coleman fuel. Next to the shed, the investigators found a

blue pitcher under a paddle boat. Inside the pitcher, there was a glass jar containing a

substance that was later identified as “a mixture of methamphetamine, ephedrine or

pseudoephedrine, ammonium sulfate, and . . . urea.”

¶7. Whitehead and Hulett were arrested and subsequently charged with possession of

pseudoephedrine and ammonium nitrate with the intent to manufacture a controlled substance

in violation of Mississippi Code Annotated section 41-29-313(1)(a)(ii) (Rev. 2013). They

were also charged with possession of .1 gram or more but less than two grams of

methamphetamine in violation of Mississippi Code Annotated section 41-29-139

(c)(1)(b)(Rev. 2013). On August 27, 2013, Hulett pled guilty to both charges.2

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Consistent with the prosecution’s recommendation, the circuit court sentenced
Hulett to four years in the custody of Mississippi Department of Corrections for the first
charge, with all four years suspended. For possession of methamphetamine, the circuit court

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¶8. On March 28, 2014, Whitehead filed a motion to suppress the evidence seized from

the shed. She claimed that “the items seized were pursuant to an illegal search and seizure

and should therefore be excluded at trial.” Whitehead further argued that “the two written

consents to search were not valid.” On March 31, 2014, the circuit court conducted a hearing

on Whitehead’s motion. Mills testified that she did not tell Investigator Traxler that she

owned the shed, and she thought that she was only consenting to a search of the mobile

home. She also stated that Hulett owned the shed behind her home. However, the circuit

court ultimately denied Whitehead’s request to suppress the evidence seized from the shed.

¶9. Whitehead’s trial began after the suppression hearing. The prosecution called

Investigator Rollison and Investigator Traxler, who testified regarding their involvement.

Archie Nichols, a forensic scientist employed by the Mississippi Crime Laboratory, testified

that the white powder found on a table inside the shed was ammonium nitrate. Nichols also

testified that the white package and coffee filter inside the black box contained 1.1 grams and

less than .1 of a gram of methamphetamine, respectively. Finally, Nichols testified that the

glass jar inside the blue pitcher contained methamphetamine, pseudoephedrine, and

ammonium sulfate. The prosecution’s final witness was Jeff Nester, who testified as an

expert witness in latent fingerprint examination. Nester, an employee of the Mississippi

Crime Laboratory, testified that one of Whitehead’s fingerprints was recovered from a can

of Coleman fuel.

sentenced Hulett to eight years, with three years suspended and five to serve, followed by
five years of postrelease supervision.

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¶10. After the prosecution rested its case-in-chief, Whitehead called Hulett as a witness.

According to Hulett, Mills and Whitehead were sick on the day that he had cooked the

methamphetamine, and they had been asleep for most of the day. He said Mills and

Whitehead had not known that he and Whitehead’s cousin cooked the methamphetamine in

the shed. Hulett testified that he owned all of the methamphetamine, paraphernalia, and

precursors that were discovered in the mobile home and the shed. He went on to say that he

accidentally left the coffee filter in the bedroom that he shared with Whitehead, and the glass

pipe on the bed belonged to him. Hulett claimed that Investigator Rollison had merely seen

Whitehead go outside to tell him that she had put dinner in the oven, and she later brought

him a wooden box that contained drill bits and items that he needed to fix a telescope. He

said that Whitehead had not brought him the black box that was discovered behind the

pegboard in the shed. Whitehead also chose to testify. She corroborated Hulett’s claim that

she knew nothing about the methamphetamine or precursors that the investigators found.

¶11. The prosecution finally rested without calling any rebuttal witnesses. Notwithstanding

Hulett’s and Whitehead’s testimonies, the jury found Whitehead guilty of both charges.

Following her unsuccessful posttrial motion for a judgment notwithstanding the verdict or

a new trial, Whitehead appeals.

DISCUSSION

I. Sufficiency of the Evidence

¶12. Whitehead claims there was insufficient evidence to find her guilty of either charge.

In reviewing the sufficiency of the evidence, “the relevant question is whether, after viewing

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the evidence in the light most favorable to the prosecution, any rational trier of fact could

have found [that the accused committed] the essential elements of the crime beyond a

reasonable doubt.” Nolan v. State, 61 So. 3d 887, 893 (¶24) (Miss. 2011) (quoting Bush v.

State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)). All credible evidence consistent with the

defendant’s guilt will be accepted as true, together with all favorable inferences that may be

reasonably drawn from the evidence. Robinson v. State, 940 So. 2d 235, 240 (¶13) (Miss.

2006) (citing McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)).

¶13. The indictment specifically charged Whitehead with possession of pseudoephedrine

and ammonium nitrate with the intent to manufacture a controlled substance, and possession

of .1 gram or more, but less than two grams, of methamphetamine. Pseudoephedrine was

recovered from a glass jar under a paddle boat next to the shed. Ammonium nitrate was

found on a table in the shed. Slightly more than 1.1 grams of methamphetamine was

discovered in the black box in the shed. Investigator Rollison testified that she saw

Whitehead give the black box to Hulett. However, there was no direct evidence that

Whitehead possessed pseudoephedrine or ammonium nitrate. Thus, the prosecution’s case

regarding the precursors relied on constructive possession.

¶14. For a conviction of possession of a controlled substance to stand, “there must be

sufficient facts to warrant a finding that the defendant was aware of the presence and

character of the particular substance and was intentionally and consciously in possession of

it.” Glidden v. State, 74 So. 3d 342, 345 (¶12) (Miss. 2011) (citations omitted).

“Constructive possession may be shown by establishing that the drug involved was subject

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to his dominion or control. Proximity is usually an essential element, but by itself it is not

adequate in the absence of other incriminating circumstances.” Floyd v. State, 155 So. 3d

883, 889 (¶15) (Miss. Ct. App. 2014).

¶15. “[W]here contraband is found upon premises not in the exclusive control and

possession of the accused, additional incriminating facts must connect the accused with the

contraband.” Mosley v. State, 89 So. 3d 41, 49 (¶27) (Miss. Ct. App. 2011) (quoting Powell

v. State, 355 So. 2d 1378, 1379 (Miss. 1978)). “[A]bsent some competent evidence

connecting [the accused to] the contraband,” he or she “is entitled to acquittal.” Id. “Mere

association with the person who physically possessed the controlled substance is

insufficient.” Dixon v. State, 953 So. 2d 1108, 1112 (¶9) (Miss. 2007) (citing Vickery v.

State, 535 So. 2d 1371, 1379 (Miss. 1988)). Additionally, while the presence of

“paraphernalia might be probative as circumstantial evidence of intent to distribute, . . . [the

supreme court has found that it is not] probative as to the issue of constructive possession.”

Martin v. State, 804 So. 2d 967, 970 (¶12) (Miss. 2001).

¶16. In Kerns v. State, 923 So. 2d 196, 201 (¶16) (Miss. 2005), the supreme court reversed

this Court’s judgment reversing convictions for possessing precursors with the intent to

manufacture a controlled substance and possession of methamphetamine. The supreme court

upheld the convictions based on constructive possession under the following circumstances:

Not only was [the accused] present at an operating methamphetamine
laboratory which smelled strongly of ether; he was within two feet of
methamphetamine oil, surrounded by the necessary precursor chemicals for
both creating methamphetamine oil and converting it into crystal
methamphetamine, . . . and in close proximity to tin foil and coffee filters

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 which tested positive for methamphetamine. Furthermore, . . . [the accused]
was continually at the premises which housed the methamphetamine
laboratory, had purchased anhydrous ammonia as late as two days before his
arrest, and was involved in the manufacture of crystal methamphetamine. This
evidence soars above and beyond mere presence, and conclusively establishes
constructive possession.

Id. at (¶15).

¶17. Here, the undisputed evidence was that Whitehead and Hulett lived in Mills’s mobile

home. Both investigators testified that there was a strong chemical odor coming from the

area. The pseudoephedrine was discovered outside the shed and the ammonium nitrate was

inside the shed located immediately behind the mobile home. The shed also contained a

number of other precursor chemicals. Immediately after Investigator Traxler knocked on the

door, Whitehead was seen handing a black box to Hulett, who was inside the shed. The

black box contained slightly more than 1.1 gram of methamphetamine. Although Hulett took

sole responsibility for all of the methamphetamine, precursors, and paraphernalia that was

discovered, the jury chose not to believe him. “The jury is charged with the responsibility

of weighing and considering conflicting evidence, evaluating the credibility of witnesses, and

determining whose testimony should be believed.” Craig v. State, 777 So. 2d 677, 680 (¶11)

(Miss. Ct. App. 2000). Viewing the evidence in the light most favorable to the State, we find

that there was sufficient evidence to support both of Whitehead’s convictions. Accordingly,

we find no merit to this issue.

II. Weight of the Evidence

¶18. Next, Whitehead claims that both of the jury’s verdicts were contrary to the

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overwhelming weight of the evidence. An appellate court will only disturb a verdict based

on the weight of the evidence “when [the verdict] is so contrary to the overwhelming weight

of the evidence that to allow it to stand would sanction an unconscionable injustice.” Bush,

895 So. 2d at 844 (¶18). As we review this issue, we weigh the evidence in the light most

favorable to the verdict. Id.

¶19. For the reasons expressed in the previous issue, we find that the verdicts are not so

contrary to the overwhelming weight of the evidence that it would sanction an

unconscionable injustice to allow them to stand. Viewing the evidence in the light most

favorable to the verdict, there was direct evidence that Whitehead actually possessed the

methamphetamine in the black box. There was also evidence that Whitehead constructively

possessed the pseudoephedrine outside the shed, and the ammonium nitrate inside the shed.

The jury simply did not believe Hulett’s testimony that he was solely responsible for the

crimes. “Factual disputes are properly resolved by a jury and do not mandate a new trial.”

Ealey v. State, 158 So. 3d 283, 293 (¶31) (Miss. 2015). Accordingly, this issue is without

merit.

III. Motion to Suppress

¶20. The circuit court denied Whitehead’s motion to suppress the evidence recovered from

the shed based on the conclusion that she lacked standing to object. Whitehead claims the

circuit court erred. According to Whitehead, Mills lacked authority to consent to a search

of the shed because Mills testified that she did not own it. Whitehead also notes Mills’s

testimony that she thought she was only consenting to a search of the home. We are mindful

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that “[i]n reviewing the denial of a motion to suppress, [an appellate court] must determine

whether the trial court’s findings, considering the totality of the circumstances, are supported

by substantial credible evidence.” Moore v. State, 933 So. 2d 910, 914 (¶9) (Miss. 2006).

If they are, we “shall not disturb those findings.” Id. “The standard of review in Mississippi

for questions of law is de novo.” Farris v. State, 764 So. 2d 411, 428 (¶57) (Miss. 2000).

¶21. The Fourth Amendment to the United States Constitution and Article 3, Section 23

of the Mississippi Constitution provide that an individual has the right to be free from

unreasonable searches and seizures. Dies v. State, 926 So. 2d 910, 917-18 (¶21) (Miss.

2006). However, “Fourth Amendment rights are personal rights and may not be asserted

vicariously.” Waldrop v. State, 544 So. 2d 834, 837 (Miss. 1989). “[I]f a person denies

ownership or possession of property, he later has no standing to complain that the search of

it was unlawful.” Id.

¶22. Mills and Investigator Traxler testified during the suppression hearing. Mills

consistently referred to the mobile home as “[her] trailer.” On cross-examination, she

testified that she had been renting the mobile home for approximately ten years, and the shed

had been behind it for “[a]bout four months.” Mills also testified that she had gone out to

the shed at times. Although she had seen Whitehead go out to the shed, she clarified that she

had not seen her in the shed on the day the investigators were there. She also said that the

shed belonged to Hulett, and she thought she was only consenting to a search of the home.

However, the consent form that she signed clearly states that she was consenting to a search

of the shed. Mills claimed that she did not read the consent form because she was not

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wearing her glasses.

¶23. Investigator Traxler testified that when he asked for consent to search the shed,

Whitehead and Hulett both said the shed did not belong to them. However, Mills said that

the house and property belonged to her. Investigator Traxler testified that he specifically

asked Mills if the shed belonged to her, and he read the consent form to her before she signed

it. He also told Mills that she had the right to refuse to consent, but she said, “I’m not

refusing. You can go look.” Investigator Traxler added that they “were sitting on the back

steps of the trailer outside the manufactured home, looking at the shed,” when Mills signed

the consent form, and Mills understood the difference between the shed and the mobile

home.

¶24. There was substantial evidence that Whitehead denied having any rights to the shed.

Having done so, she had no standing to complain that the search of the shed was unlawful

based on her claim that Mills lacked authority to consent to the search. See Waldrop, 544 So.

2d at 837. Furthermore, because of Mills’s interest in the home, she also had the right to

consent to a search of the curtilage surrounding it. See Arnett v. State, 532 So. 2d 1003, 1008

(Miss. 1988). “The curtilage of a dwelling is a space necessary and convenient, habitually

used for family purposes and for the carrying on of domestic employment; it is the yard,

garden or field which is near to and used in connection with the dwelling.” Jordan v. State,

728 So. 2d 1088, 1095-96 (¶33) (Miss. 1998). The undisputed testimony was that the door

to the shed faced the back door of the home, and the shed was approximately fifteen to thirty

feet from the home. It would be reasonable to consider the shed as part of the curtilage of

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the home, and it follows that Mills had the authority to consent to a search of the shed.

Because the circuit court’s decision was supported by substantial evidence, we find that this

issue lacks merit.

IV. Jury Instructions

¶25. Finally, Whitehead claims the circuit court erred when it gave two of the prosecution’s

jury instructions. Whitehead notes that she was specifically charged with possession of

pseudoephedrine and ammonium nitrate with the intent to manufacture a controlled

substance. According to Whitehead, because jury instructions S-4 and S-5 improperly

referred to “two or more” precursors without specifically listing the precursors that she

allegedly possessed, the circuit court failed to properly instruct the jury.

¶26. To determine whether the circuit court erred in giving the instructions at issue, we

read all of the instructions as a whole. Reid v. State, 910 So. 2d 615, 623 (¶23) (Miss. Ct.

App. 2005). “When so read, if the instructions fairly announce the law of the case and create

no injustice, no reversible error will be found.” Id. Additionally, “the prosecution is held

strictly to prove the allegations of the indictment and may not vary from the proof of those

allegations . . . .” Id. at (¶25).

¶27. Whitehead is correct that instructions S-4 and S-5 did not specifically state that the

jury must find that she possessed pseudoephedrine and ammonium nitrate with the intent to

manufacture a controlled substance. Instruction S-4 stated:

The [c]ourt instructs the [j]ury that in determining the issue of whether . . .
Whitehead[] possessed two or more precursors with the intent to unlawfully
manufacture methamphetamine, the jury may consider, along with all of the

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 other evidence, any direct evidence of possession of methamphetamine, as well
as any other evidence, if any, of said precursors with intent to manufacture
methamphetamine by the defendant, including the conduct of the defendant at
the time of the incident together with all of the other matters, facts and
circumstances surrounding the incident, giving to all of such evidence the
weight, worth and credibility that you, as a jury, feel it deserves, applying to
all of the evidence your common sense and sound, honest judgment.

And the pertinent part of instruction S-5 informed the jury of the form of its verdict based

on whether it had found Whitehead “guilty of [p]ossession of [p]recursor [s]ubstances with

[i]ntent to [m]anufacture [m]ethamphetamine . . . .”

¶28. However, instruction S-1A stated:

The [c]ourt instructs the [j]ury that if you believe from the evidence in this
case, beyond a reasonable doubt, that . . . Whitehead, on or about October 4,
2012, in Warren County, Mississippi, did:

1. willfully, unlawfully, knowingly, and feloniously;

2. possess two or more precursor chemicals, to wit; pseudoephedrine and
ammonium nitrate[;]

3. with intent to manufacture a controlled substance, methamphetamine[;]

then and in that event, the defendant, Kimberly Whitehead, is guilty of
possession of precursor substances and it is your sworn duty to so find.

The [c]ourt further instructs the [j]ury that if the State fails to prove any of the
above elements, beyond a reasonable doubt, then in that event you must find
the defendant, Kimberly Whitehead, not guilty.

(Emphasis added). And instruction S-3A stated:

Pseudoephedrine and [a]mmonium [n]itrate are precursor chemicals. The
possession of precursor chemicals with intent to manufacture
methamphetamine is against the law. If you should find from the evidence,
beyond a reasonable doubt[,] that [Whitehead] possessed the above precursor
chemicals with intent to manufacture methamphetamine[,] you should find

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 [Whitehead] guilty as charged.

¶29. To summarize, instructions S-1A and S-3A both specifically stated that to convict

Whitehead, the jury was required to find beyond a reasonable doubt that she possessed

pseudoephedrine and ammonium nitrate with the intent to manufacture methamphetamine.

Therefore, when read together as a whole, the jury instructions were adequate regarding the

elements of the offense charged in the indictment, and Whitehead suffered no prejudice

because instructions S-4 and S-5 omitted the precursors specified in the indictment.

Consequently, this issue is meritless.

¶30. THE JUDGMENT OF THE WARREN COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, POSSESSION OF PRECURSORS WITH THE
INTENT TO MANUFACTURE A CONTROLLED SUBSTANCE, AND SENTENCE
OF TWENTY YEARS, WITH TEN YEARS SUSPENDED AND TEN YEARS TO
SERVE, FOLLOWED BY FIVE YEARS OF POSTRELEASE SUPERVISION; AND
COUNT II, POSSESSION OF BETWEEN .1 GRAM AND TWO GRAMS OF
METHAMPHETAMINE AND SENTENCE OF EIGHT YEARS, WITH THREE
YEARS SUSPENDED AND FIVE YEARS TO SERVE, FOLLOWED BY THREE
YEARS OF POSTRELEASE SUPERVISION, WITH THE SENTENCE IN COUNT
II TO RUN CONSECUTIVELY TO THE SENTENCE IN COUNT I, ALL IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR AND
WILSON, JJ., CONCUR. JAMES AND GREENLEE, JJ., NOT PARTICIPATING.

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