IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-KA-01363-COA LONNIE LEE McDANIEL A/K/A LONNIE McDANIEL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/22/2018 TRIAL JUDGE: HON. JON MARK W EATHERS COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/25/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., WESTBROOKS, LAWRENCE AND McCARTY, JJ. LAWRENCE, J., FOR THE COURT: ¶1. On April 16, 2017, Lonnie Lee McDaniel f led f rom Petal Police Departm ent of f icers while driving a white vehicle. During the chase, Sergeant Gary B ounds observed McDaniel throw what “looked like a clear plastic bottle” f rom t h e white vehicle. W hile a bottle was

never recovered, of

f icers did f

ind a plastic bag i n the general location S ergeant Bounds described the plastic object landing. The bag contained m etham phetam i ne. McDaniel was indicted by a Forrest County grand jury f o r f elony f leeing, sim

ple assault o f a police of

f icer,and possession of a controlled substance. 1 Af t er a jury trial, he was f

ound guilty

of f elony
f leeing a nd possession o f a controlled substance. He was sentenced to serve a f ive-y ear term f or f leeing and three y ears f

or possession of a controlled substance. McDaniel’s sentences

were set to run consecutively

. In this direct appeal, McDaniel claim s that the evidence against him at t rial was insuf f icient to convict him o f f

elony possession of m etham phetam ine under two gram s and that his conviction was contrary to the o verwhelm ing weight of the evidence. W e af

f irm McDaniel’s conviction and sentence.

FACTS ¶2. Lonnie Lee McDaniel was indicted a s a habitual o f f ender on N ovem

ber 14, 2017, f

or f elony f leeing of a law enf

orcem ent of

f icer, sim ple assault of a police of

f icer, a nd p ossession of a co n t r o l l e d s ubstance. McDaniel had been previously convicted o n two separate occasions in Forrest County , Mississippi, f o r f elony possession of

a controlled substance. ¶3. A t t h e t r i al o n August 16, 2018, Gary Bounds, a p atrol sergeant with Petal Polic e Departm en t ( “PPD”), testif ied that he was on duty on April 16, 2017, near W a lm art on Evely n G andy Parkway in Petal, Mississippi. At 11:18 a.m ., Sergeant B ounds observed a white vehicle m aking a lef t-hand turn onto By

rd Park Boulevard. T he driver o f the vehicle
f ailed to use a turn signal. S ergeant Bounds proceeded to run the license plate num ber on the vehicle. The search revealed that the vehicle was registered t o a f e m ale and that it had not

1 O n A u g u st 1 5 , 2 0 1 8 , p rio r to trial, C o u n t II o f th e in d ictm en t, sim p le assau lt o f a p o lice o f f icer, w as d i sm i ssed af

ter an o re ten u s m o t io n m ad e b y th e S tate. 2been reported as stolen.

¶4. Sergeant Bounds f ollowed the vehicle into W a lm art’s parking lot. He n oticed that the driver was a m ale, who was later identif ied as M cDaniel

. 2 S e r g eant Bounds turned on his blue lights and attem

pted a traf

f ic stop when McDaniel f

led the parking lot toward Of f icer Joey S cott, who had arrived t o provide backup. A f ter nearly hitting Of

f icer Scott, McDaniel began to drive westbound on Evely n Gandy P arkway toward Old Richton Road. W hen he reached the intersection of Evely n Gandy Parkway and Old Richton Road, McDaniel sped through a red light. ¶5. Sergeant Bounds continued to f ollow M cDaniel until McDaniel turned onto L y nn Ray Road. Sergeant Bounds testif ied that he saw the f

ollowing events while chasing McDaniel down Ly nn Ray Road: Q. Okay . And what happened when y o u were on Ly nn Ray ?
A. W e were still t raveling at a real high rate of speed and s tray ed into the oncom ing lane m ore than -- m ore than he did in our l ane -- the -- i n his lane he was supposed to be in. And we got t o the c h urch on L y nn Ray Road -- or j ust past the church on L y nn Ray Road, and I observed him throw som e thing out the driver’s side window.

2 O f f icer Jo ey S co tt id en tif

ied M cD an iel af

ter M cD an iel a t tem

p ted to h it h is p atro l v eh icle h ead -o n in th e W alm art p ark in g lo t. O f f icer S co tt co m m

u n icated th at id e n tif

icatio n to S e rg ean t B o u n d s. F ro m th at m o m en t o n , S erg e an t B o u n d s b elie v e d t h e d r i v er to b e M cD an iel f

ro m S co tt’s id en tif

icatio n . D u r in g h is d irect ex am in atio n , S erg ean t B o u n d s testif i ed th at h e id en tif

ied M cD a n iel h im self w h en M cD a n i el j u m p ed f ro m th e m o v i n g v eh icle an d lo o k ed at h i m b ef o re f leein g . S erg ean t B o u n d s testif ied th a t h e h a d k n o w n M cD an iel f

o r f o u r o r f iv e y ears. B o th O f

f i cer S co tt an d S erg ean t B o u n d s to ld th e j u ry th ey w e re “o n e h u n d red p ercen t p o sitiv e” th at th e d riv er o f th e w h ite v eh icle w as M cD an iel. 3Q. W hat did y ou observe at the tim e of him throwing som ething out -- out of the window?
A. I observed like a clear plastic bottle. Sergeant Bounds then radioed the dispatcher to docum ent where t he object was thrown f rom the window since Sergeant Bounds was still in pur s uit of the vehicle. S ergeant Bounds testif i ed that McDaniel threw the object out of the driver’s side window near the L y nn Ray Baptist Church. ¶6. Af ter running num erous vehicles of f the road during the h igh-speed chase, McDaniel drove t he vehicle down a logging road, opened the driver’s side d oor while the vehicle was still m oving, jum

ped o ut of the m oving v ehicle, and f led the scene. S ergeant Bounds’s dispatch record, which was entered into e vidence at trial, indicated t hat McDaniel abandoned the vehicle at 11:35 a.m . S ergeant Bounds proceeded to chase McDaniel on f oot but was unsuccessf

ul. He then radioed t he K-9 unit to h e l p l o c a t e McDaniel. They were also unsuccessf

ul. Af t erward, Sergeant Bounds re t u r n e d t o the abandoned white vehicle to search it. During his search h e f ound a black c ell phone that he secured i n his patrol vehicle and logged into evidence. ¶7. Of f icer Scott conf

irm ed Sergeant Bounds’s testim ony a bout the attem

pted traf f ic stop in the W alm art p arking lot. He testif ied that h e observed Sergeant Bounds pursue McDaniel in his patrol vehicle. Of

f icer Scott attem

pted to pursue McDaniel as well but could not keep
up. Af t er McDaniel eluded arrest, Sergeant Bounds ordered Of f icer Scott to return to where McDaniel had thrown the item f r om the vehicle. Of

f i cer Scott’s t estim ony a

bout w hat he did
4next is better described below:

Q. W hat did y ou do?
A. I [ went] b ack to t he location that [ Sergeant B ounds saw] Mr. McDaniel [ throw] som ething out of

the window. Q. All right. Once y ou got there, what did y ou do?
A. Once I got to that location? Q. Yes, sir.
A. My self and a deputy walked up the road, one on each side of the r oad, try ing to, y ou know, locate where t he item c[ a]m e out at and not

- - I’d say back towards Petal on L eeville R oad -- Ly nn Ray Road, 40 or 50 y ards, f ound a b ag - - a clear bag with a cry stal-like substance in it believe to be m etham

phetam ine. Of f icer Scott, a long with Forrest County Sher i f f ’ s Departm ent Deputy Joshua Dobbs, collected the bag, p laced it in a PPD e vidence bag, and t ook the evidence to t h e police departm ent. ¶8. Casey W alley , a n investigator with the PPD, told t h e j u ry about the t wo pieces of phy sical evidence he took into custody

. First, he exam ined the black phone taken f rom the white vehicle. Af

t er obtaining a search warrant to o pen the phone and determ ine ownership, Investigator W alley f

ound t hat the phone was logged into McDaniel’s Facebook, Gm ail, and Google accounts. Investigator W alley testif ied that the def

endant’s nam e, Lonnie McDaniel,

was associated with all three accounts. Upon f urther investiga t i o n , Investigator W alley determ ined that t he owner o f the phone was la b e l e d i n t he c ontacts section as “LL McDaniel.” This indicated t o Investigator W a l ley that L onnie Lee McDaniel w as the owner
5of

the phone that was f

ound in the abandoned vehicle. ¶9. The second piece of phy s ical evidence was the clear bag collected by Of f icer Scott. Investigator W a l l e y testif i ed that he sent the bag to the M ississippi Crim e L a boratory f

or indepen d e nt t esting. Keith McMahan was tendered by the c ourt as an expert in f orensic analy sis. His testing i ndicated that the clear b ag collected by O f f icer Scott contained 1.785
gram s of m etham phetam ine, a Schedule II controlled substance. ¶10. To rebut the State’s evidence, the def ense argued that McDaniel had an alibi f or the tim e of the car chase. The def ense claim ed that McDaniel was at his aunt’s hom e in Moselle, Mississippi, f

rom between 1 1:30 a.m . and 12:0 0 p.m . until around 4:00 p.m . o n April 16,
2017. As noted in Sergeant Bounds’s d i s p a t c h r e c ord and in his t estim o ny , McDaniel abandoned the vehicle at approxim ately 11:35 a.m

. ¶11. Af ter hearing all of t he evidence, t he jury returned a v e r d i c t o f g u i l ty f or f elony
f leeing or eluding of law enf orcem ent and p ossession of a controlled substance. The circuit

cou r t s e n t enced McDaniel a s a habitual of f ender to serve f

i ve y ears in the custody of the Mississippi Departm ent of C orrections (“MD O C ” ) without eligibility f or parole f

or his conviction of f

elony f leeing a nd to serve three y ears i n MDOC’s custody without eligibility
f or parole f

or possession of a c ontrolled su b stance. These sentences were set to run consecutively

. M cDaniel f iled a m otion f

or judgm ent notwithstanding t he v erdict ( “JNOV”) or, in the alternative, a new trial, which was denied. He now appeals and argues that there

was insuf f icient evidence f

or the jury to convict him and that the jury ’s decision w as against

6the overwhelm ing weight of the evidence.

ANALYSIS ¶12. At the onset, we note that McDaniel is procedurally barred f rom any claim that his conviction of f

elony f leeing w as in error because he f ailed to raise the issue o f t hat conviction

on appeal. McDaniel only addresses h is conviction f or possession of a controlled substance.
As a result, this Court will only consider M cDaniel’s argum en t o n t h e c o nviction and sentence f

or possession of a controlled substance.
I. Whether or not t h e re w as sufficient evidence to support McDaniel’s conviction for possession of a controlled substance. ¶13. McDaniel claim s that the c ourt e rred in d eny ing his m otion f o r a J NOV. “A m otion
f or [ a] JNOV challenges the suf f iciency of the e vidence presented to the jury .” S a c u s v. State , 956 So. 2d 329, 3 34 (¶12) (Miss. Ct. App. 2 007). This Court rev i e w s c h a l lenges to the suf f i ciency o f the e vidence de novo. Sanford v. State , 247 So. 3d 1242, 1244 (¶10) (Miss. 2018). “ W hen this Court reviews the suf f i ciency of evi d e n c e supporting a guilty verdict, we view the e vidence in t he light m ost f avorable to the State and decide if rational jurors could have f

ound the S tate p roved each elem ent of the crim e.” Craig v. State , 282 So. 3d 467, 470 (¶12) (Miss. Ct. App. 2019) (quoting Lenoir v. State , 222 So. 3d 273, 279 (¶25) (Miss. 2017)). “[ I ]f any reasonable trier of f act could have f

ound t he essential elem ents of the crim e bey ond a reasonable doubt, we will uphold the verdict.” Harris v. S tate , 977 So. 2d 1248, 1 250 (¶6) (Miss. Ct. App. 2008) (citing B ush v. State , 895 So. 2 d 8 3 6 , 844 (¶16) (Miss. 2005), overruled on other grounds by Little v. State , 233 So. 3d 288, 292 (¶¶19-20)
7(Miss. 2 017)). It is not thi s Court’s job to d ecide “whether w e think the State proved the

elem ents. Rather, w e m

u st de c i d e w h e t h e r a reasonable juror c ould rationally say that the State did.” Poole v. State , 46 So. 3d 290, 293-94 (¶20) (Miss. 2010). ¶14. It is well-settled law that “[ t ] o s u p p o r t a c o n v iction f or possession of a controlled substance, ‘there m

ust be suf f icient f acts to warrant a f

inding that the def

endant was aware of the pre s e n c e and character of the p articular substance and was intentionally and consciously in pos s e s s i o n of it.’” Glidden v. State , 7 4 S o. 3d 342, 345 (¶12) (Miss. 2011) (quoting W

a ll v. State , 7 18 So. 2d 1107, 1111 (¶7) (Miss. 1998)). Mississippi Code Annotated section 41-29-139(c) (Supp. 2016) specif ically p rovides that “[ i]t is unlawf ul f or

a n y person knowingly or intentionally to possess any controlled substance unles s t h e substance was obtained directly f rom , or pursuant t o, a v alid prescription or o r d e r of a practitioner

. . . . ” That possession can either be “ a ctual or constructive.” Johnson v. State , 81 So. 3d 1020, 1023 (¶7) (Miss. 2011). ¶15. “To establish constructive possession, the drug s i mp l y h a s t o b e f ound near the def endant ‘in a place over which the def e ndant exercises dom inion or control.’” Fontenot

v. State , 1 1 0 So. 3d 800, 804 (¶9) (Miss. Ct. App. 2012) (quoting Glidden , 74 S o. 3d at 348 (¶20)). The def

endant’s location in connection with the drugs “is not a determ inative f actor in e stablishing constructive p o ssession.” I d

. (citing Knight v. State , 7 2 S o. 3d 1056, 1063 (¶26) (Miss. 2011)). Notably , “[ t]he elem e nts of c onstructive possession m ay be proven by circum stantial evidence.” Bates v
. State , 952 So. 2d 320, 325 (¶21) (Miss. Ct. App. 2007)

8(citing Martin v. State , 413 So. 2d 730, 732 (Miss. 1982)).

¶16. During the trial, the State presented the jury with am ple evidence t o c onsider whether

or not McDaniel h a d a ctual or constructive possession o f t h e drugs f ound: ( a) ey ewitness testim o ny f

rom Of f icer Scott and Sergeant Bounds that the driver of the white vehicle was McDaniel; (b) ey ewitness testim o ny f rom Sergeant Bounds that McDaniel t hrew a plastic object f r om the vehicle during t he chase; (c) testim o ny f rom Sergeant Bounds as to the proxim ate location of the thrown plastic object; ( d ) t estim ony f rom Of f icer Scott that the
p l astic bag was f

ound shortly af

ter the chase ended in t he p roxim ate location Sergean t Bounds described; (e) t estim ony f rom Investigator W alley

that the cell phone f

ound inside the white vehicle was logged in t o McDaniel’s social m edia and e m ail accounts; an d (f ) expert testim ony that t he c ontents of the plastic bag were m etham phetam ine. In addition, the circuit court properly instructed the jury on what constructive posse s s i o n of a controlled substance entailed. The def ense did not object to the State’s instruction. ¶17. Under our long-established sy stem o f crim inal justice, the jury is the f i n d e r o f f a c t

. Brown v
. State , 764 S o. 2d 463, 467 (¶9) (Miss. Ct. App. 2000). The jury is “charged to listen t o the evidence, observe the dem eanor of t h e w i t n e s s e s, and decide this issue of the credibility of the witnesses and w hat weight t o give to any particular p iece of evidence.” Id

. “The jury is the sole judge of the credibility of witnesses, and the jury ’s decision based on conf licting evidence will n ot be set aside where there is substantial and believable evidence supporting the verdict.” Cantrell v
. State , 224 S o. 3d 1278, 1281 (¶15) (Miss. Ct. App. 2017)

9(quoting W

hitlock v. State , 47 So. 3d 668, 675 (¶21) (Miss. 2010)). Reviewing t he evidence in the light m ost f

avorable to the State, rational jurors could have f ound t hat the State proved each elem ent needed to convict M c D a n i el. Accordingly , the e v idence was suf f icient to support McDaniel’s conviction, and the circuit court di d n o t c o m m it e rror by deny ing McDaniel’s m otion f

or a JNOV.
II. Whether the verdict w as against the overw he l m i n g w eight of t he evidence. ¶18. McDaniel also asserts that the c ircuit court e rred in deny ing his m otion f or a new trial.
W h ile McDaniel m ade his m otion f or a JNOV at the sam e t im e as h is m otion f or a new trial, the two have separate standards of review. A m o tion f o r a new trial challenges the weight of the evidence. Daniels v. S tate , 107 So. 3d 9 61, 963 (¶12) (Miss. 2013). This Court will only reverse the denial of a m otion f or a new trial if the trial court abused i ts discretion. Id

. This Court m

u st “view the evidence in the light m ost f avorable t o the verdict a n d disturb the verdict only when it is s o contrary to the overwhelm i ng weight o f the evidence that to allow it to s tand would sanction an unconscionable injustice.” Little , 233 So. 3d at 289 (¶1). “W e do not reweigh evidence. W e d o not assess the witnesses’ credibility

. And we d o not resolve conf licts between evidence. Those decisions belong solely to the jury

. ” Id

. ¶19. As described above, the j ury was presented with m ore t h a n e n o u g h e v i d e n c e to consider whether or not McDani e l c o mmi tted the crim es h e w as indicted f o r. Af ter considering the witnesses’ credibility and t heir testim ony , the jury determ ined that McDaniel

was guilty of f

elony f l eeing a nd was in possession of a controlled substance. In viewing the

1 0evidence in the light m ost f avorable to the verdict, we do not f i nd that the jury ’s verdict was contrary to the overwhelm ing weight of the e vidence, a nd the c ircuit court d id not abuse its discretion in deny ing McDaniel’s m otion f or a JNOV or a new trial. ¶20. AFFIRMED. BARNES, C.J., CARLTON, P.J., GREENLE E , WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ., CONCUR. J. WIL S O N , P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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