Bettie Michelle Ginn v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2002-KA-01478-SCT

BETTIE MICHELLE GINN

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 08/23/2002
TRIAL JUDGE: HON. GEORGE B. READY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: DAVID L. WALKER
TOMMY WAYNE DEFER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DISTRICT ATTORNEY: JOHN W. CHAMPION
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 10/09/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE SMITH, P.J., WALLER AND CARLSON, JJ.

CARLSON, JUSTICE, FOR THE COURT:

¶1. Bettie Michelle Ginn appeals her conviction under a two-count indictment: possession of two or

more precursor chemicals and possession of methamphetamine. For the Count I conviction, Ginn was

sentenced serve a fifteen years in the custody of the Mississippi Department of Corrections, with ten years

suspended and five years to serve, and for the Count II conviction, eight years in the custody of the

Mississippi Department of Corrections, with three years suspended and five years to serve concurrently

with the sentence imposed in Count I.
¶2. Ginn raises six issues on appeal: whether the trial court erred in (1) denying her circumstantial

evidence jury instruction; (2) overruling her objection to evidence of other crimes; (3) denying her motion

in limine to suppress the search of the vehicle; (4) denying her motion to dismiss the indictment; (5) denying

her motion to dismiss indictment for failure to provide Ginn with a federal and state constitutional speedy

trial; and, (6) denying her motion for a new trial or, in the alternative, for judgment notwithstanding the

verdict. Finding no reversible error, we affirm.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶3. The facts are undisputed. On April 14, 2001, Horn Lake Police Officer Harold William Bayles

noticed a female passenger inside a SUV in the parking lot of Target and Kroger removing her shirt. Officer

Bayles began to approach the vehicle. The driver of the SUV noticed the officer approaching and began

to drive away. Officer Bayles initiated an investigatory stop. The driver, Dennis Hill, got out of the vehicle

and acted very nervous. Hill produced two altered driver’s licenses before the female passenger produced

Hill’s valid license from inside the vehicle. Officer Bayles noticed needle marks on Hill’s arms and two

orange syringe caps on the dashboard. Hill denied being an insulin user and told Officer Bayles he had a

syringe loaded with methamphetamine on the driver’s seat. During a weapons pat-down, a knife was found

concealed in Hill’s pocket.

¶4. After detaining Hill, Officer Bayles went back to the SUV to perform a weapons search of the

passenger, Bettie Michelle Ginn, who produced from her pocket a packet containing a white powdery

substance which Officer Bayles immediately believed, and was later confirmed by scientific testing, to be

methamphetamine. An inventory of the vehicle revealed six cans of Starter Fluid, eleven containers of

Liquid Heat, 3,312 tablets of Sudafed, one syringe containing a liquid, and a spoon with brown residue.

Starter Fluid, Liquid Heat, and Sudafed are precursor chemicals or drugs used in the unlawful manufacture

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of methamphetamine, a controlled substance. A records check of the vehicle revealed that the SUV

belonged to Ginn’s grandfather.

¶5. Ginn was arrested and taken to the police station, where she executed a “Statement of Rights”form.

Thereafter, Ginn handwrote a statement which says, in pertinent part, “I know that Kris Ray cooks meth

and believe has for 3 to 4 years. I also believe that on other occurrances [sic] pills that we purchased were

for Kris Ray.” Ginn was tried before a jury on August 21, 2002, and was convicted on both counts of the

indictment. Post-trial motions were filed on August 22, 2002. On August 23, 2002, the trial court denied

Ginn’s post-trial motions, and Ginn, through counsel, filed a notice of appeal the same day.

DISCUSSION

I. WHETHER THE TRIAL COURT ERRED IN DENYING GINN’S
CIRCUMSTANTIAL EVIDENCE JURY INSTRUCTION.

¶6. Ginn’s first assignment of error is whether the trial court should have given a jury instruction

concerning circumstantial evidence as to Count I (possession of two or more precursor chemicals). This

Court has held that “[a] circumstantial evidence instruction must be given unless there is some type of direct

evidence such as eyewitness testimony, dying declaration, or confession or admission of the accused.”

Deal v. State, 589 So.2d 1257, 1260 (Miss. 1991) (citing Mack v. State, 481 So.2d 793, 795 (Miss.

1985)). This Court has also stated:

[C]ircumstantial evidence instructions are required where the only evidence of the crime
is circumstantial. In other words, "when the prosecution is without a confession and without
eyewitnesses to the gravamen of the offense charged." Woodward v. State, 533 So.2d
at 431. We have held failures to grant such an instruction where one is required to be
reversible error. Simpson v. State, 553 So.2d 37, 39 (Miss. 1989).

Swinney v. State, 829 So.2d 1225, 1236 (¶ 52) (Miss. 2002).

¶7. Ginn alleges that there was no direct evidence linking her to possession of the precursor chemicals

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and that the State’s case was based upon circumstantial evidence. There was no evidence such as

fingerprints, sales receipts, or a co-defendant’s confession connecting her to the precursor chemicals.

Conversely, the State contends that the case against Ginn was not circumstantial. The State relied on direct

evidence, specifically the materials constituting the precursor chemicals were located in the vehicle where

Ginn was a passenger and the written statement made by Ginn. The trial court admitted Ginn’s post-

Miranda warning statement: “I know that Kris Ray cooks meth and believe has for 3 to 4 years. I also

believe that on other occurrances [sic] pills that we purchased were for Kris Ray.” This statement was

admitted for the purpose of showing knowledge, intent, or plan under Miss. R. Evid. 404(b). Ginn also

testified at trial that she was aware the chemicals in the vehicle were used in the manufacture of

methamphetamine. The post-Miranda warning out-of-court statement also placed her in possession of

the chemicals.

¶8. Additionally, the trial court granted Jury Instruction Number 11(S-3), which informed the jury:

In order to find the Defendant guilty of Possession of Pseudoephedrine/ Ephedrine,
Methanol and Ether, being two (2) or more precursor chemicals or drugs, there must be
sufficient facts to warrant a finding by the jury that the Defendant was aware of the
presence and character of the substance and was intentionally and consciously in
possession the [sic] substance. It need not be actual physical possession. Constructive
possession may be shown by establishing that the substance was subject to the
Defendant’s dominion or control.

¶9. Because (1) the precursor chemicals were found in the vehicle in which Ginn was a passenger; (2)

there were two orange syringe caps in plain view on the dashboard; (3) there was a syringe loaded with

methamphetamine in plain view on the driver’s seat near Ginn; (4) Ginn had a packet of methamphetamine

on her person; and, (5) the statement Ginn gave to police indicated that she was aware that the materials

were used for the manufacture of methamphetamine, the quality and character of the evidence was such

that it was beyond the realm of being circumstantial as it related to the charge of possession of two or more

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precursor chemicals in Count I of the indictment. The jury was thus properly instructed on constructive

possession, and the jury was likewise justified in its verdict based on the evidence presented. Jones v.

State, 693 So.2d 375, 376-77 (Miss. 1997). Based on the totality of the evidence presented at trial, the

evidence was not purely circumstantial, and the trial court thus properly refused Ginn’s tendered

circumstantial evidence instruction. Therefore, this issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN OVERRULING
GINN’S OBJECTION TO EVIDENCE OF OTHER CRIMES.

¶10. Ginn assigns as the second error that the trial court erred in admitting her statement, which

contained an admission of a previous crime(s). The statement made was: “I also believe that on other

occurrances [sic] pills that we [Ginn and Hill] purchased were for Kris Ray.” Again, Ginn was charged with

two counts: possession of precursors with intent to manufacture and possession of methamphetamine. This

Court reviews the admission of evidence under an abuse of discretion standard. Farris v. State, 764

So.2d 411, 428 (Miss. 2000). This Court has held:

A case may be reversed based on the admission of evidence if the admission results "in
prejudice and harm" or adversely affects a substantial right of a party. Farris, 764 So.2d
at 428; Hansen v. State, 592 So.2d 114, 132 (Miss. 1991).

Smith v. State, 839 So.2d 489, 494-95 (¶ 8) (Miss. 2003). Ginn also argues that the statement was not

admissible under Miss. R. Evid. 401, 402, 403, and 404(b).

¶11. However, as discussed above, this statement was admitted to show that Ginn knew that these items

were used in the manufacture of methamphetamine under Miss. R. Evid. 404(b). The trial court correctly

held that the probative value of this evidence was not substantially outweighed by the danger of unfair

prejudice. Miss. R. Evid. 403. The statement was also relevant in that it placed Ginn herself in possession

of the precursor materials. Miss. R. Evid. 401 & 402.

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¶12. In Crosswhite v. State, 732 So.2d 856, 863 (Miss. 1998), this Court held that the trial court

properly admitted an envelope with words significant to manufacture of methamphetamine as evidence of

knowledge. In De La Beckwith v. State, 707 So.2d 547, 579-80 (Miss. 1997), we upheld the

admission of letters and statements the defendant made to others in the past and held that they were

relevant for showing motive and intent. We further held that any issue about remoteness in time went to

relevancy, which was a matter for the jury to determine.

¶13. Here, Ginn knew that the chemicals found in the vehicle in which she was a passenger

(pseudoephedrine, liquid Heet, and Prestone starter fluid) were used in the manufacture of

methamphetamine. The statement went directly to her knowledge in that she and Hill had previously

purchased the pseudoephedrine pills for the “cook.” The evidence was relevant, and the probative value

substantially outweighed any prejudicial effect. The statement was admissible for purposes of showing

knowledge or intent. Ginn also had the opportunity to soften the blow of this evidence if she were

concerned about its adverse impact upon the jury. Ginn had pre-filed Jury Instruction Number D-3, a

cautionary instruction, which, if tendered to the trial court for consideration and given to the jury, would

have informed the jury of the limited evidentiary value of this statement, such as going to proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. However,

at the jury instruction conference, defense counsel chose to withdraw this instruction. See White v. State,

722 So.2d 1242, 1247-48 (Miss. 1998); Carr v. State, 655 So.2d 824, 837 (Miss. 1995); Ford v.

State, 555 So.2d 691, 695-96 (Miss. 1989).

¶14. Therefore, this issue is without merit.

III. WHETHER THE TRIAL COURT ERRED IN DENYING GINN’S
MOTION IN LIMINE TO SUPPRESS THE SEARCH OF THE

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 VEHICLE AND CONTINUING OBJECTIONS RELATED
THERETO AT THE TRIAL.

¶15. In sum, Ginn’s third assigned error is that the police officer lacked probable cause or reasonable

suspicion to approach the vehicle in the public parking lot when she was changing her shirt. Ginn further

reasons that since there was no probable cause or reasonable suspicion, she was subjected to an illegal

stop, search, and seizure. On this basis, Ginn contends that the fruits of the stop are inadmissible. The

standard of review for admission of evidence in a criminal case is abuse of discretion. Harris v. State,

731 So.2d 1125, 1130 (¶ 29) (Miss. 1999); Peterson v. State, 671 So.2d 647, 655-56 (Miss. 1996).

¶16. We agree with the trial court’s assessment that the main consideration is the original stop. Ginn

argues that although she was changing her shirt, her breasts were not exposed and, thus, she was not

violating Mississippi’s indecent exposure law. Miss. Code Ann. § 97-29-31 (Rev. 2000) states: “A person

who wilfully and lewdly exposes his person, or private parts thereof, in any public place, or in any place

where others are present, or procures another to so expose himself, is guilty of a misdemeanor ....”

Because her breasts were not bare, Ginn reasons that the officer had no reason to stop or even approach

the vehicle.

¶17. In analyzing this type of situation, this Court has looked to whether an officer acts reasonably. We

have held:

The question is not whether a driver is suspected of a felony or misdemeanor, but whether
a law enforcement officer acts reasonably in stopping a vehicle to investigate a complaint
short of arrest. This Court stated in Singletary [v. State, 318 So.2d 873, 876 (Miss.
1975)]:

Police activity in preventing crime, detecting violations, making
identifications, and in apprehending criminals may be divided into three
types of action: ... (2) Investigative stop and temporary detention: To stop
and temporarily detain is not an arrest, and the cases hold that given
reasonable circumstances an officer may stop and detain a person to

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 resolve an ambiguous situation without having sufficient knowledge to
justify an arrest....

Floyd v. City of Crystal Springs, 749 So.2d 110, 117-18 (¶ 28) (Miss. 1999). In support of her

contention, Ginn relies on Boyd v. State, 758 So.2d 1032 (Miss. Ct. App. 2000), and McDuff v. State,

763 So.2d 850 (Miss. 2000). Unfortunately for Ginn, neither of these cases supports her position. In

Boyd, the defendant was stopped based upon the officer’s knowledge that the defendant’s driver’s license

had been suspended eight years earlier. McDuff involved the involuntary and unknowingly drawing of

blood for testing after a fatal motor vehicle accident.

¶18. In the case sub judice, the officer personally observed an ambiguous situation – a woman removing

her shirt within a vehicle in a public parking lot. It was reasonable for the officer to investigate to see what

was actually occurring. Officer Bayles testified that as he approached the vehicle the male driver began

to drive away. This action served to further raise suspicion, which lead to the investigatory stop. Things

escalated from there; that is, Officer Bayles observed two syringe caps on the vehicle’s dashboard in plain

view and Hill, acting very nervous, produced altered driver’s licenses and told the officer about the needle

loaded with methamphetamine. A safety pat-down revealed that Hill had a concealed knife. At this point,

the officer had more than probable cause to apprehend Hill and to further investigate the vehicle, its

contents, and its passenger.

¶19. Based upon the foregoing, the trial court did not abuse its discretion in denying Ginn’s motion in

limine. This issue is without merit.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING GINN’S
MOTION TO DISMISS THE INDICTMENT DUE TO OFFICER
HAROLD WILLIAM BAYLES’S LACK OF PROBABLE CAUSE
TO ARREST GINN FOR THE CHARGES ALLEGED IN THE
INDICTMENT.

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¶20. Ginn argues that the indictment was improper because the officer lacked probable cause to arrest

her. As shown above, there was sufficient evidence to show that the officer encountered an ambiguous

situation which gave him reasonable grounds to investigate the vehicle located in a public parking lot. After

the officer made an investigatory stop of the vehicle, the driver, acting very nervously and displaying needle

marks on his arms, admitted there was a syringe loaded with methamphetamine between the seat where

he and Ginn were sitting. A weapons pat-down of the driver revealed a concealed knife. Once the

investigative stop was made, the officer may no doubt rely upon items in plain view to provide probable

cause for an arrest. Here, this included the syringe cap, the needle marks, and the altered driver’s licenses.

When Hill was patted down for the officer’s safety, a concealed knife was located. Ginn was the only

passenger in the vehicle. When Ginn was patted down for the officer’s safety, she pulled out of her pocket

a packet containing a white powdery substance which Officer Bayles believed to be methamphetamine.

¶21. Based upon the foregoing, there was sufficient evidence which clearly revealed that Officer Bayles

acted reasonably when he initiated an investigatory stop. Furthermore, Officer Bayles’s subsequent

actions, including the inventory of the contents of the vehicle, were also reasonable under the facts and

circumstances presented. Therefore, Ginn’s fourth assignment of error is without merit.

V. WHETHER THE TRIAL COURT ERRED IN DENYING GINN’S
MOTION TO DISMISS INDICTMENT FOR FAILURE TO
PROVIDE GINN WITH A FEDERAL AND STATE
CONSTITUTIONAL SPEEDY TRIAL.

¶22. Ginn next argues that a delay of sixteen months from the date of her arrest to the date of her trial

was a violation of her federal and state right to speedy trial. Ginn was arrested on April 14, 2001. The

two-count indictment was filed and recorded on January 24, 2002. Ginn waived arraignment and entered

a plea of not guilty on February 20, 2002. The trial took place on August 21, 2002.

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 (A) Federal Speedy Trial.

¶23. In looking at a person’s federal rights to a speedy trial, this Court has adopted the four-part test

set forth in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See Brengettcy

v. State, 794 So.2d 987, 992 (Miss. 2001).

The four factors of the test include: (1) the length of the delay; (2) the reason for the delay;
(3) the defendant's assertion of his right; and (4) the prejudice to the defendant. Barker,
407 U.S. at 530, 92 S.Ct. at 2182; Brengettcy, 794 So.2d at 992. No one factor is
dispositive, and the balancing test is not restricted to the Barker factors, so other factors
may be considered.

Poole v. State, 826 So.2d 1222, 1228-29 (¶ 18) (Miss. 2002). The first factor is the length of delay

from the time of arrest. Simmons v. State, 678 So.2d 683, 686 (Miss. 1996); Smith v. State, 550

So.2d 406, 408 (Miss. 1989). Ginn was arrested on April 14, 2001, and by the time she was tried on

August 21, 2002, a total of more than sixteen months had passed. We have previously recognized that a

delay of eight months or more is presumptively prejudicial. Id. at 408. Therefore, we must look to the

other factors.

¶24. The second factor is the reason for the delay. Six months of the inaction was due to the processing

of the evidence by the Mississippi Crime Lab. Because the policy of funding is determined by the

Mississippi Legislature, the trial judge correctly determined that “the reason for the delay is not to be held

against [the State] in a strong fashion.”

¶25. The third factor to be considered is the defendant’s assertion of the right. Ginn did not file a written

request for a speedy trial until April 8, 2002, almost twelve months after her arrest, roughly two and one-

half months after the indictment was filed, and roughly one and one-half months after entry of her not guilty

plea. Nine days later, Ginn filed a Motion to Dismiss For Failure to Provide the Defendant With a Federal

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and State Constitutional Speedy Trial. The motion was denied on May 29, 2002. The trial judge correctly

assessed this factor against Ginn.

¶26. The final factor is prejudice against the defendant. We have held:

[W]hen the length of delay is presumptively prejudicial, the burden of persuasion is on the
state to show that the delay did not prejudice the defendant. State v. Ferguson, 576
So.2d 1252, 1254 (Miss. 1991). Nevertheless, if the defendant fails to show actual
prejudice to his defense, this prong of the Barker balancing test cannot weigh heavily in
his favor. Polk v. State, 612 So.2d 381, 387 (Miss. 1992).

De La Beckwith v. State, 707 So.2d at 567 (¶ 65) (finding twenty-six year delay between second

mistrial and return of second indictment was not a violation of defendant’s rights). “[P]rejudice to the

defendant may manifest itself in two ways. First, the defendant may suffer because of the restraints to his

liberty, whether it be the loss of his physical freedom, loss of a job, loss of friends or family, damage to his

reputation, or anxiety. Second, the delay may actually impair the accused's ability to defend himself.”

Stevens v. State, 808 So.2d 908, 917 (¶ 24) (Miss. 2002) (citing Duplantis v. State, 708 So.2d

1327, 1336 (Miss. 1998)).

¶27. Although Ginn testified that she experienced worry and anxiety in anticipation of the trial, the record

cites no pretrial incarceration or statement of prejudice. The trial court noted that anxiety is experienced

by every defendant in a criminal case and that Ginn did not experience any extraordinary anxiety. Ginn next

asserts that she was prejudiced in that the co-defendant, Hill, was not served with the indictment and did

not testify at the trial. However, if Ginn felt that Hill’s presence was necessary to her defense, she could

have secured his presence at trial by way of a subpoena. This factor weighed against Ginn.

¶28. Based upon the analysis of the four factors under Barker, there was no violation of Ginn’s federal

right to a speedy trial.

(B) Statutory Speedy Trial.

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¶29. Ginn’s statutory right to a speedy trial was not violated. Our speedy trial statute, Miss. Code Ann.

§ 99-17-1 (Rev. 2000), provides:

Unless good cause be shown, and a continuance duly granted by the
court, all offenses for which indictments are presented to the court shall be
tried no later than two hundred seventy (270) days after the accused has
been arraigned.

Cf. Smith v. State, 550 So.2d 406, 407-08 (Miss. 1989). Ginn was arraigned on February 20, 2002,

and put to trial 182 days later on August 21, 2002; therefore, there was no violation of the 270-day rule.

Lightsey v. State, 493 So.2d 375, 378 (Miss. 1986).

¶30. This issue is without merit.

VI. WHETHER THE TRIAL COURT ERRED IN DENYING GINN’S
MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE FOR
JUDGMENT NOTWITHSTANDING THE VERDICT.

¶31. In her final assignment of error, Ginn contends that she should have been granted a new trial or,

alternatively, judgment notwithstanding the verdict. The standards of review both are soundly embedded

in our case-law:

A motion for judgment notwithstanding the verdict implicates the sufficiency of the
evidence. Sheffield v. State, 749 So.2d 123, 125 (Miss. 1999). The standard of review
for the legal sufficiency of the evidence is well-settled:

[W]e must, with respect to each element of the offense, consider all of the
evidence--not just the evidence which supports the case for the
prosecution--in the light most favorable to the verdict. The credible
evidence which is consistent with the guilt must be accepted as true. The
prosecution must be given the benefit of all favorable inferences that may
reasonably be drawn from the evidence. Matters regarding the weight and
credibility to be accorded the evidence are to be resolved by the jury. 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 Gleeton v. State, 716 So.2d 1083, 1087 (Miss. 1998)).

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 A motion for a new trial, however, falls within a lower standard of review than does that
for a judgment notwithstanding the verdict. Id. at 127. A motion for a new trial simply
challenges the weight of the evidence. Id. This Court has explained that it will reverse the
trial court's denial of a motion for a new trial only if, by doing so, the court abused its
discretion. Id. (quoting Gleeton v. State, 716 So.2d at 1088). "We will not order a new
trial unless convinced that the verdict is so contrary to the overwhelming weight of the
evidence that, to allow it to stand, would be to sanction an unconscionable injustice." Id.
(quoting Groseclose v. State, 440 So.2d 297, 300 (Miss. 1983)). This Court has also
explained that factual disputes are properly resolved by a jury and do not mandate a new
trial. McNeal v. State, 617 So.2d 999, 1009 (Miss. 1993).

Holloway v. State, 809 So.2d 598, 605-06 (¶¶ 21-22) (Miss. 2000).

¶32. In support of this argument, Ginn relies on Pate v. State, 557 So.2d 1183, 1187 (Miss. 1990),

and Powell v. State, 355 So.2d 1378 (Miss. 1978). In Pate, we reversed a conviction of possession

of marijuana where the defendant had checked out of the hotel room the day before the marijuana was

found. In Powell, we affirmed a conviction where the controlled substance was found in the closet of the

bedroom in the house on which the defendant paid the rent. In so doing, we stated:

The correct rule in this jurisdiction is that one in possession of premises upon which
contraband is found is presumed to be in constructive possession of the articles, but the
presumption is rebuttable. We have held that where 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. Where the premises upon which
contraband is found is not in the exclusive possession of the accused, the accused is
entitled to acquittal, absent some competent evidence connecting him with the contraband.
Sisk v. State, 290 So.2d 608 (Miss. 1974).

Powell v. State, 355 So.2d at 1379. In the case sub judice, there were additional incriminating facts that

connected Ginn to both the precursor chemicals and the methamphetamine.

¶33. As to Count II (possession of methamphetamine), Ginn herself pulled out the packet containing

white powdery substance from her pocket. That substance later tested positive as methamphetamine. As

to Count I (possession of precursors), the items were located in the vehicle in which the only persons inside

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were Ginn and Hill. Ginn implicated herself by the written post-Miranda warning statement that “I also

believe that on other occurrences pills that we (Ginn and Hill) purchased were for Kris Ray.” This

statement defeats Ginn's efforts to rebut the presumption that she had constructive possession of the

precursors and drugs. The evidence presented at trial is not such that reasonable and fair-minded jurors

could only find Ginn not guilty. Nor was the verdict contrary to the overwhelming weight of the evidence.

Any factual disputes were properly put before the jury. Therefore, this issue is without merit.

CONCLUSION

¶34. After a thorough review of the record before us and consideration of the applicable law, we find

no reversible error, and therefore we affirm the judgment of conviction and imposition of sentence on this

two-count indictment in the Circuit Court of DeSoto County.

¶35. COUNT I: POSSESSION OF TWO OR MORE PRECURSOR CHEMICALS AND
SENTENCE OF FIFTEEN (15) YEARS, WITH TEN (10)YEARS SUSPENDED AND FIVE
(5) YEARS TO SERVE, IN CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. COUNT II: POSSESSION OF METHAMPHETAMINE
AND SENTENCE OF EIGHT (8) YEARS, WITH THREE (3) YEARS SUSPENDED AND
FIVE (5) YEARS TO SERVE, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN
CONCURRENTLY WITH THE SENTENCE IMPOSED IN COUNT I. APPELLANT
SHALL PAY A FIVE-HUNDRED DOLLAR ($500.00) FINE, SIXTY-TWO DOLLARS
AND FIFTY CENTS ($62.50) TO THE HORN LAKE, MISSISSIPPI POLICE
DEPARTMENT AND COURT COSTS AT A RATE OF ONE-HUNDRED DOLLARS
($100.00) PER MONTH BEGINNING NINETY (90) DAYS AFTER RELEASE AND
OTHER CONDITIONS. APPELLANT IS GIVEN CREDIT FOR THREE (3) DAYS
SERVED.

PITTMAN, C.J, SMITH, P.J., WALLER, COBB AND EASLEY, JJ., CONCUR.
GRAVES, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE,
P.J. DIAZ, J., NOT PARTICIPATING.

GRAVES, JUSTICE, DISSENTING:

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¶36. The majority holds that the trial court did not err in denying Ginn’s motion in limine to suppress the

evidence obtained in the search of the vehicle and in overruling her continuing objections related thereto

at the trial. Hence, it denied Ginn her constitutional protections from unreasonable searches and seizures.

Because I disagree, I respectfully dissent.

¶37. This Court has stated that the constitutional protections against unreasonable searches and seizures

should be liberally construed in favor of citizens and strictly construed against the State. Graves v. State,

708 So.2d 858, 861 (Miss. 1997). Moreover, this Court has held that the Mississippi Constitution of

1890, Article 3, Section 23, provides greater protections from unreasonable searches and seizures than

those protections afforded in the United States Constitution. Id.

¶38. The record indicates that Officer Bayles’s reason for stopping the vehicle occupied by Ginn was

that Ginn had wilfully and lewdly exposed herself. Miss. Code Ann. § 97-29-31 (Rev. 2000) defines

indecent exposure as when a person “wilfully and lewdly exposes his person, or private parts thereof, in

any public place, or in any place where others are present . . . .” The facts clearly indicate that Ginn did not

expose herself to anyone. Ginn’s alleged actions in changing her shirt were not directed at anyone. She

did not remove her clothing in a public parking lot in the presence of the public. The arresting officer did

not see Ginn naked. Neither did the officer stop the vehicle occupied by Ginn for a traffic violation.

¶39. In sum, the officer lacked probable cause or reasonable suspicion to believe criminal activity was

transpiring. The stop and subsequent warrantless arrest of Ginn were without probable cause as required

by the Fourth and Fourteenth Amendments to the United States Constitution and Article 3, Section 23 of

the Mississippi Constitution of 1890. The fruits of the stop are therefore inadmissible. McDuff v. State,

763 So.2d 850, 854 (Miss. 2000). Thus, I would reverse and render Ginn’s convictions based on the

illegal stop, search, and seizure.

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¶40. For these reasons, I respectfully dissent.

McRAE, P.J., JOINS THIS OPINION.

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