IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 95-KA-00162 COA

THOMAS WAYNE HAMM AND TERRI WRIGHT

HAMM

APPELLANTS

v.

STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 02/10/95

TRIAL JUDGE: HON. JAMES W. BACKSTROM

COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: DAVID M. ISHEE FOR THOMAS WAYNE

HAMM

MICHAEL L. FONDREN FOR TERRI

WRIGHT HAMM

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: PAT FLYNN

DISTRICT ATTORNEY: DALE HARKEY

NATURE OF THE CASE: CRIMINAL -- POSSESSION OF MORE

THAN ONE KILOGRAM OF MARIJUANA

WITH INTENT TO DISTRIBUTE AND

POSSESSION OF METHAMPHETAMINE

TRIAL COURT DISPOSITION: BOTH APPELLANTS ADJUDGED GUILTY

ON BOTH COUNTS. THOMAS WAYNE

HAMM WAS SENTENCED TO PAY A FINE

OF $100,000, TO PAY A LAB FEE OF $125,

AND TO SERVE TWENTY YEARS IN THE

CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS FOR

POSSESSION OF MORE THAN ONE

KILOGRAM OF MARIJUANA WITH

INTENT TO DISTRIBUTE AND TO PAY A

FINE OF $10,000, TO PAY A LAB FEE OF

$125, AND TO SERVE THREE YEARS FOR

POSSESSION OF METHAMPHETAMINE

WITH BOTH SENTENCES TO RUN

CONCURRENTLY.

APPELLANT TERRI WRIGHT HAMM WAS
SENTENCED TO PAY A FINE OF $10,000,

TO PAY A LAB FEE OF $125 AND TO

SERVE FIVE YEARS FOR POSSESSION OF

MORE THAN ONE KILOGRAM OF

MARIJUANA WITH INTENT TO

DISTRIBUTE AND TO PAY A FINE OF $1,

000, TO PAY A LAB FEE OF $125, AND TO

SERVE THREE YEARS FOR POSSESSION

OF METHAMPHETAMINE WITH BOTH

SENTENCES TO RUN CONCURRENTLY.

DISPOSITION: AFFIRMED-2/10/98

MOTION FOR REHEARING FILED: 8/4/98

CERTIORARI FILED: 11/9/98

MANDATE ISSUED: 4/15/99

BEFORE BRIDGES, C.J., COLEMAN, AND SOUTHWICK, JJ.

COLEMAN, J., FOR THE COURT:

The grand jury of Jackson County returned a two-count indictment against the appellants, Thomas

Wayne Hamm and Terri Wright Hamm, husband and wife. Count I of the indictment charged the

Hamms with possession of more than one kilogram of marijuana, a controlled substance, with intent

to distribute, and Count II of the indictment charged them with possession of methamphetamine, a

controlled substance. The Hamms were tried together, and the jury found them guilty of both counts

of the indictment. The trial judge sentenced Thomas Hamm to serve twenty years in the custody of

the Mississippi Department of Corrections and to pay a fine of $100,000 on Count I and to serve

three years in the custody of the Mississippi Department of Corrections and to pay a fine of $10,000

on Count II. Hamm's three year sentence for Count II was to run concurrently with the twenty-year

sentence for Count I. Terri Hamm was sentenced to serve five years in the custody of the Mississippi

Department of Corrections and to pay a fine of $10,000 on Count I and to serve three years in the

custody of the Mississippi Department of Corrections and to pay a fine of $1,000 on Count II. Her

sentence to serve three years on Count II was to run concurrently with her sentence to serve five

years on Count I. Terri Hamm has filed her separate appeal in which she has presented to this Court

for its review and resolution eight issues. In his appeal, Thomas Hamm has presented seven issues for

our review and resolution and has joined in all issues which his wife has presented to this Court in her

appeal pursuant to Rule 28(i) of the Mississippi Rules of Appellate Procedure.(1) However, we

resolve all of their issues against the Hamms and affirm the trial court's judgments of their convictions

and their sentences.

II. ISSUES

We quote the Hamms's issues verbatim from their briefs:

A. Thomas Wayne Hamm's Issues
I. THE JURY'S VERDICT WAS IN ERROR DUE TO THE FACT THAT NO

CREDIBLE EVIDENCE WAS PRESENTED PROVING BEYOND A REASONABLE

DOUBT THAT THE APPELLANT HAD DOMINION AND CONTROL OVER THE

CONTRABAND IN QUESTION.

II. THE TRIAL COURT ERRED IN DENYING THE APPELLANT'S MOTION TO

SUPPRESS EVIDENCE DUE TO THE FACT THAT THE APPELLANT'S ALLEGED

CONSENT WAS NOT FREELY, KNOWINGLY AND VOLUNTARILY GIVEN.

III. THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION TO

SUPPRESS EVIDENCE OBTAINED DURING THE SEARCH CONDUCTED

PURSUANT TO THE AUTHORITY GIVEN TO THE MISSISSIPPI PUBLIC

SERVICE COMMISSION BY STATUTE WHICH VIOLATES THE APPELLANT'S

CONSTITUTIONAL RIGHTS.

IV. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR TO

INTRODUCE VARIOUS ITEMS ALLEGED TO BE INVOLVED IN DRUG

ACTIVITY WITHOUT SUBSTANTIATION OF THIS FACT.

V. THE TRIAL COURT ERRED IN ALLOWING APPELLANT'S MOTION FOR

MISTRIAL WHEN THE PROSECUTOR IMPLIED DURING CLOSING

ARGUMENTS THAT DEFENSE COUNSEL HAD ATTEMPTED TO HIDE

EVIDENCE FROM THE JURY.

VI. THE TRIAL COURT ERRED IN ALLOWING A NOTE ALLEGEDLY FOUND

ON THE APPELLANT INTO EVIDENCE WHILE THE AUTHOR OF THE NOTE

WAS UNKNOWN AND AN ILLEGIBLE AND UNSUBSTANTIATED COPY WAS

ADMITTED INTO EVIDENCE.

VII. THE APPELLANT'S SENTENCE WAS DISPROPORTIONATE TO THAT OF

HIS CO-DEFENDANT AND THIS MATTER SHOULD BE REMANDED FOR

RESENTENCING.

VIII. THE APPELLANT HEREBY JOINS IN ON ALL ISSUES RAISED BY THE CODEFENDANT, TERRI WRIGHT HAMM, AND INCORPORATES ALL PLEADINGS

CONTAINED IN THAT APPEAL BY REFERENCE HERETO UNDER MISSISSIPPI

SUPREME COURT RULE 28(i).

B. Terri Wright Hamm's Issues

I. WHETHER THE JURY'S VERDICT WAS IN ERROR SINCE THERE WAS NO

CREDIBLE EVIDENCE OF MRS. HAMM'S ACTUAL POSSESSION AND

CONTROL OF THE CONTRABAND.
II. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S MOTION

TO SUPPRESS EVIDENCE WITHOUT MRS. HAMM'S HAVING THE ABILITY TO

CONSENT TO THE SEARCH OR CONTROL OF THE CONTRABAND.

III. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S

MOTION TO SUPPRESS EVIDENCE BECAUSE MR. HAMM'S ALLEGED

CONSENT WAS NOT FREELY AND KNOWINGLY MADE.

IV. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S

MOTION TO SUPPRESS EVIDENCE BECAUSE THE SEARCH CONDUCTED WAS

MADE WITHOUT PROPER CONSENT AND PROBABLE CAUSE.

V. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S MOTION

TO SUPPRESS EVIDENCE BECAUSE THE SEARCH CONDUCTED PURSUANT TO

THE AUTHORITY GIVEN TO THE MISSISSIPPI PUBLIC SERVICE COMMISSION

BY STATUTE VIOLATES MRS. HAMM'S CONSTITUTIONAL RIGHTS.

VI. WHETHER THE TRIAL COURT ERRED IN DENYING MRS. HAMM'S

MOTION FOR A MISTRIAL WHEN THE PROSECUTOR DURING HIS CLOSING

ARGUMENT IMPLIED THAT DEFENSE COUNSEL WAS ATTEMPTING TO HIDE

THE TRUTH FROM THE JURY BY MAKING AN OBJECTION.

VII. WHETHER THE TRIAL COURT ERRED IN NOT GRANTING MRS. HAMM'S

JURY INSTRUCTIONS NUMBERS D2-13, D2-14, AND THE LAST PARAGRAPH OF

D2-12.

VIII. WHETHER THE TRIAL COURT ERRED IN ALLOWING A NOTE

ALLEGEDLY FOUND ON MR. HAMM FROM BEING ADMITTED INTO

EVIDENCE WHEN THE AUTHOR OF THE NOTE WAS UNKNOWN AND A COPY

WAS PRESENTED, AND NOT THE ORIGINAL.

I. FACTS

On the evening of August 26, 1993, Sergeant Howard E. Potts and Captain Randy Sibley, both of

Troop K of the Mississippi Highway Patrol (MHP), were working on a radar detail in conjunction

with Inspector Robert Bruce Ford, Jr., and Inspector Wayne Dupont with the Mississippi Public

Service Commission (MPSC) on Interstate 10 in Jackson County, Mississippi. The MPSC and MHP's

joint activity was a federally-funded operation in which MHP officers would stop a speeding

eighteen-wheel tractor-trailer truck as a precursor to MPSC inspectors' inspection of the stopped

eighteen-wheeler and its cargo to insure that the truck was operating lawfully.

At approximately 10:30 p.m. that night, Sergeant Potts and Captain Sibley, who waited in Sergeant

Potts's patrol car beside Interstate 10 in Jackson County, used a radar device to measure the speed of

an eighteen-wheel tractor-trailer truck, which was traveling east on Interstate 10, at 71 miles per

hour. The speed limit was 65 miles per hour. Thomas Hamm was driving, and his wife, Terri Hamm,
was riding in the right seat of the speeding truck. Rather than stop the truck, the state troopers

waited until Hamm drove it into the Orange Grove weighing station off the south side of the

Interstate, where MPSC Inspectors Ford and Dupont were waiting.

As Hamm drove his rig onto the scales, Sergeant Potts pulled his patrol car beside Hamm's truck and

signaled the scales' operator to turn on a certain light which directed Hamm to drive his rig around to

the rear of the scales building so that Inspectors Ford and Dupont might inspect the truck to

determine if Hamm was lawfully operating it. At first Sergeant Potts saw only the driver in the

Peterbilt truck, but after the truck pulled around the scales building and stopped over a pit, which

could be used by the inspectors to inspect its bottom, Potts saw that Terry Hamm was riding in the

passenger's seat of the truck. Captain Sibley issued a warning citation for speeding to Thomas Hamm,

who owned both the Peterbilt and the trailer which it was pulling. After Sibley issued the warning

citation to Hamm, Inspector Ford began his inspection of Hamm's rig.

Ford obtained from Thomas Hamm the paperwork which Ford knew that state and federal law

required Hamm to have. Included in this paperwork were five bills of lading for Hamm's load of limes

and mangoes, which were bound for destinations in Jacksonville and Tampa, Florida. In keeping with

his usual custom, Ford asked Hamm if he had a weapon on the truck. Hamm replied, "Well, I have a

shotgun," and he produced a sawed-off shotgun for Ford's inspection. After Ford had taken Hamm's

"paperwork" to his MPSC car to begin his inspection of it, he recalled that Sergeant Vernon A.

Gazzo was working Interstate 10 that night. Ford radioed Gazzo, who was near the Alabama state

line, to request his help in establishing whether Thomas Hamm's sawed-off shotgun was of legal

length. Gazzo arrived quickly at the weighing station, measured and inspected the shotgun, and

determined that it was of legal length.

Because Gazzo noticed that Hamm was nervous and sweating and "missed gaps in what he was

telling [him]," he asked Hamm for permission to search his Peterbilt. Hamm gave his permission for

Gazzo to search his truck, but advised Gazzo that his wife was in the truck with him. Gazzo then

asked Terri Hamm if she would step down from the truck, and both Thomas Hamm and Gazzo then

walked to the passenger's side of the truck. When Terri Hamm stepped down from the truck, Gazzo

saw in plain view, between the seats, what he recognized to be a one-foot square cutting board,

about one inch thick, with a single-blade razor blade and a gray tube lying "right there with it." Once

inside the truck, Gazzo searched the closet in the sleeper behind the truck seats, where he found a red

tin can. When Gazzo removed the top from the tin, he found an amount of marijuana, which he

estimated to weigh "under an ounce" inside the tin.

Inspector Ford, who had been in his MPSC car while he completed his inspection of Hamm's

paperwork, heard Gazzo say that there was a cutting board lying on the floor of the truck and that he

had found two cigarette butts, which he believed were marijuana, in the ashtray inside the truck. Ford

and Inspector Dupont walked from their car to Thomas Hamm and asked Hamm to open the trailer,

the doors of which were locked with a padlock. The trailer was a "reefer," or a refrigerated trailer.

Hamm unlocked the padlock with his key. Inspector Ford asked Inspector Dupont to enter the trailer

to inspect the load for blocking and bracing and to determine if Hamm's load matched Hamm's bills of

lading. Another purpose of Dupont's inspection was to insure that the trailer contained no hazardous

material.
In the very front of the trailer and in front of a load of limes, which two of the officers were to testify

were spoiled, rotten, and molded, Dupont discovered four U-Haul pasteboard boxes, one of which

was partially opened but all of which were damp with condensation which had occurred inside the

reefer. Inside the four boxes were several packages of marijuana, each of which had been wrapped in

heat-shrunk, transparent wrap. When Dupont discovered what was later determined to be 196

pounds of marijuana, he yelled to Inspector Ford, "Put Mr. Hamm under arrest. There is what

appears to be marijuana in the front of this truck in U-Haul boxes."

Ford handcuffed Hamm, and Sergeant Potts advised Hamm of his right not to incriminate himself.

The officers found a note which contained various dollar figures, numbers, and the terms "lbs.", "1-

key", and "71 grams crank". Where the note was found is disputed by Thomas Hamm. After the

officers had arrested both Thomas and Terri Hamm, Sergeant Potts drove Hamm's rig to John Fayard

Fast Freight, a truck-freight yard in Gulfport, where he left it for the night. The next morning,

Sergeant Potts returned to complete the search of the trailer. After the last of the produce was

removed from the trailer's far end, Potts discovered a small brown box wrapped in gray duct tape.

Potts opened it and found two powdery substances inside, one of which was methamphetamine

according to an analysis which Timothy P. Gross, an employee of the State Crime Laboratory,

conducted. Potts also found in the trailer a bundle which contained approximately $6,000 worth of

currency.

From the foregoing events came the Hamms' joint indictment, trial, conviction, and respective

sentences as we related them. We later review those portions of the trial which we find relevant to

each of the issues which the Hamms have presented in their separate appeals for our review, analysis,

and resolution.

III. REVIEW, ANALYSIS, AND RESOLUTION OF THE ISSUES

A. Preliminary matters

This Court elects to review the Hamms's issues in the approximate order in which they would have

arisen during the course of their trial. Their issues concern: (1) the search of Thomas Hamm's

Peterbilt truck and trailer, (2) the admissibility of certain items into evidence, (3) jury instructions

which Terri Hamm requested but the trial judge refused, (4) prosecutorial misconduct during closing

argument, (5) the sufficiency of the evidence to support the jury's verdicts of the Hamms' guilt, and

(6) the disproportionality of the Hamms's sentences.

B. The search of the truck's cab and the trailer

1. Thomas Hamm's consent to search his truck

We first address Thomas Hamm's second issue and Terri Hamm's third and fourth issues. Thomas

Hamm argues that "at the time of this alleged consent, [a]ppellant had not been informed of his

constitutional rights and was surrounded by five or more armed and uniformed police officers at the

scene." Thus, he concludes that there "is clear and convincing evidence that if in fact any consent was

elicited from [Hamm], it was coerced through duress." He cites but two cases to support his position

on this issue, and they are Schneckloth v. Bustamonte, 412 U.S. 218 (1973) and Jones v. State, 607

So 2d. 23 (Miss. 1991). Terri Hamm elaborates somewhat on this argument by adding that her
husband's consent was coerced because "Mr. Hamm did not know that he could have refused the

search." Mrs. Hamm cites the same two cases in her brief that her husband cites and no others.

In Schneckloth the United States Supreme Court upheld a consent to search an automobile during a

street encounter in which no Fourth Amendment warnings were given. The Supreme Court

explained:

[I]t would be thoroughly impractical to impose on the normal consent search the detailed

requirements of an effective warning. Consent searches are part of the standard investigatory

techniques of law enforcement agencies. They normally occur on the highway, or in a person's

home or office, and under informal and unstructured conditions. The circumstances that prompt

the initial request to search may develop quickly or be a logical extension of investigative police

questioning. The police may seek to investigate further suspicious circumstances or to follow

up leads developed in questioning persons at the scene of a crime.

Schneckloth, 412 U.S. at 231-32. In Jones, the Mississippi Supreme Court quoted the foregoing

portion of the Schneckloth opinion and then explained:

Consideration must be given to whether the circumstances were coercive, which necessitates

attention to whether the person was confronted with many officers or a display of weapons,

whether he was in custody and, if so, whether the circumstances of the custody were coercive,

and whether the alleged consent was obtained in the course of stationhouse interrogation.

Jones, 607 So. 2d at 27.

During the prosecutor's direct examination of Inspector Wayne Dupont, the State moved to admit

into evidence the 196 pounds of marijuana, shrink-wrappings taken from the packages of marijuana,

the methamphetamine which were found in the trailer, and the cutting board, razor blade, tube, and

tin can and contents which MHP Sergeant Gazzo discovered in the cab of Thomas Hamm's Peterbilt.

Counsel for both Thomas and Terri Hamm objected to the introduction of the items, and the trial

judge conducted what was in effect a suppression hearing on whether they were admissible. The

Hamms's counsel argued that these items were the fruit of an illegal search and seizure of Thomas

Hamm's truck because Thomas Hamm's consent to Sergeant Gazzo's search had not been given freely

and voluntarily. Counsel argued that Thomas Hamm's consent could not be free and voluntary

because Sergeant Gazzo requested Hamm's consent in the presence of four or five armed law

enforcement officers. They further argued that Hamm did not know that when Sergeant Gazzo asked

for his consent to search, Hamm could refuse to give Gazzo his permission.

Neither Thomas nor Terri Hamm testified during their counsel's arguments in support of their motion

to suppress the introduction of these items into evidence. Thus, the record contains no evidence that

Thomas Hamm felt coerced or intimidated by the presence of the armed MHP and MPSC officers

and inspectors. Neither does the record contain Hamm's testimony that he would not have permitted

Sergeant Gazzo to search the cab of his truck if he had understood that Gazzo could not search it

without his permission. During the State's earlier direct examination, Ford testified without objection:

"Officer Gazzo asked Mr. Hamm, 'Do you care, do you mind if I look inside your truck?' [Hamm]

said, 'No, not at all. Go ahead.'" Gazzo also testified that Hamm consented to Gazzo's search of the

cab of his truck.
It is true that in Pennick v. State, 440 So. 2d 547, 551 (Miss. 1983), the Mississippi Supreme Court

held that in order for a consent to be voluntary, the defendant must be advised of his right not to

consent. The supreme court rested its decision, in part, on its interpretation and application of

Section 23 of the Mississippi Constitution. However, in Jones v. State, 607 So. 2d 23, 28

(Miss. 1991), one of the two cases which the Hamms cite in their respective briefs, the Mississippi

Supreme Court -- without specifically overruling Pennick -- seemingly returned to the "federal"

standard when it opined:

This Court would hold that consent is not valid where the consenter is impaired or has a

diminished capacity; otherwise we apply the same test for valid consent as the federal standard

and place the burden on the defendant to show impaired consent or some diminished capacity.

Consent must be voluntary and absent diminished capacity in order to be valid.

The State is not required to demonstrate knowledge. Schneckloth, 412 U.S. at 249.

Jones, 607 So. 2d at 28. Two of the State's witnesses, Sergeant Gazzo and Investigator Ford,

testified that Thomas Hamm gave permission to Sergeant Gazzo to search the cab of his truck, and

the record contains no testimony by either of the Hamms that Thomas Hamm permitted Sergeant

Gazzo to search the cab's interior only because he was coerced or threatened by any of the officers

who were present. Instead, the Hamms ask this Court to infer coercion of Hamm only from the

presence of five armed law-enforcement officers. We decline to accept their request.

Gazzo's failure specifically to advise Hamm that he did not have to allow Gazzo to search the cab of

his truck does not render Hamm's consent involuntary pursuant to this Court's interpretation of the

quotation from Jones. Thus, we hold that Hamm's consent for Sergeant Gazzo to search the cab of

his truck rendered the search lawful so that the fruits of that search were properly admissible against

the Hamms.

Terri Hamm argues that regardless of the consent issue, Sergeant Gazzo had no probable cause to

search the cab, yet she cites no authority to support her position on this issue. For this reason alone,

we need not review her third issue. See Ellis v. Ellis, 651 So. 2d 1068, 1073 (Miss. 1995) (holding

that an unsupported assignment of error will not be considered). The State countered with its

argument that Sergeant Gazzo obtained probable cause to search the cab when he saw "in plain view"

the cutting board, tube, and razor blade lying on the floor between the seats in the cab because from

his experience in law enforcement, Gazzo recognized these objects as being paraphernalia used for

the ingestion of cocaine or methamphetamine. Our determination that Hamm's consent to the search

of the cab of his truck was freely given renders our resolution of this issue unnecessary.

2. Terri Hamm's lack of consent to search her husband's truck

The record supports Terri Hamm's argument that she never consented for Sergeant Gazzo to search

her husband's truck. However, she offered no evidence of any interest whatsoever in either the

Peterbilt truck or the refrigerated trailer which it pulled. The record is clear that Thomas Hamm

owned both the truck and the trailer. In Turner v. State, 573 So. 2d 657, 664 (Miss. 1990), the

defendant was temporarily visiting Mississippi from Chicago and was staying in his cousin's trailer

home. After the defendant became a suspect in the case, his cousin gave the police permission to

search the trailer and its premises. Id. Based on incriminating evidence which the police discovered in
the course of their search, they later arrested Turner. Id. The supreme court affirmed the lower court

which had found:

[Cousin] freely gave permission for the officers to search the trailer; that there was no

reasonable expectation of privacy in that appellant did not have exclusive possession or control

of the premises; that appellant was a guest in [Cousin's] house and not a tenant; and that

appellant paid no rent and there was no agreement that he worked for [Cousin] in exchange for

rent. [Cousin] verbally gave consent for the search of the trailer. . . .

Id. In support of their affirming the trial court's decision to admit the evidence in the absence of

Turner's lack of consent to search his cousin's trailer, the Mississippi Supreme Court cited the United

States Supreme Court case of Rakas v. Illinois, 439 U.S. 128, 134 (1978), in which that court held:

"A person who is aggrieved by an illegal search and seizure only through the introduction of

damaging evidence secured by a search of a third person's premises or property has not had any of his

Fourth Amendment rights infringed." Thus, this Court concludes that Terri Hamm's consent for

Sergeant Gazzo to search the cab of her husband's truck was required by neither the Fourth

Amendment to the United States Constitution nor Section 23 of the Mississippi Constitution, and it

accordingly resolves her third issue against her.

3. Whether the statue which authorized MPSC inspectors to search Thomas Hamm's truck is

constitutional

Section 77-7-16 of the Mississippi Code of 1972(2) grants the Mississippi Public Service the authority

to inspect eighteen-wheel tractor-trailers like the one Mr. Hamm was driving on the night of August

26, 1993. This Court understands the Hamms' arguments to constitute an assault on the

constitutionality of this section, but other than Thomas Hamm's reference to United States v. Darby,

312 U.S. 100 (1941), in which even Hamm accedes that "the United States Supreme Court granted

the United States Congress plenary power to set terms for interstate transportation, so long as

Congress did not violate a specific check on this power such as a provision of the Bill of Rights,"

neither appellant cites authority to support its argument on this issue. Again, we cite Ellis as our

authority for our not having to review this issue. See Ellis, 651 So. 2d at 1073. Moreover, a statute

is presumed to be constitutional. See State v. Watkins, 676 So. 2d 247, 249 (Miss. 1996) (holding

that because "[t]he rule we follow is that a statute is presumed to be constitutional," the party who

challenges the constitutionality of a statute must prove his case beyond all reasonable doubt). In New

York v. Burger, 482 U.S. 691 (1987) the United States Supreme Court held that the New York

statute which authorized warrantless inspections of vehicle dismantling businesses came within the

exception to warrant requirement for administrative inspections in closely regulated businesses. See

also Penn. Com. v. Petroll, 696 A.2d 817, 827 (Pa. 1997) (holding that commercial trucking

industry was "closely regulated industry" for purposes of determining whether warrantless search was

permissible). In the absence of the Hamms' citation of authority to support their assault on the

constitutionality of Section 77-7-16, and because we must presume that this section is constitutional,

we decline their invitation to declare that Section 77-7-16 is unconstitutional because it violates the

Fourth Amendment to the United States Constitution.

C. Errors in the admission of evidence

1. Thomas Hamm's Issue IV.
a. Items to which he objects

Thomas Hamm complains that the trial judge erred when he granted the State's motion to introduce

into evidence "a sawed off shotgun, a 'cookie tin' alleged to have contained a misdemeanor amount of

marijuana as well as cigarette rolling papers . . . ." He further argues that the trial judge erred by

allowing the State to "continue to elicit testimony about an alleged 'butt' of a marijuana cigarette."

Hamm charges that this "was done strictly to inflame the jury and was in direct violation of the

Mississippi Rules of Evidence."

b. Standard of review for evidentiary errors

Rule 103 of the Mississippi Rules of Evidence provides, "Error may not be predicated upon a ruling

which admits or excludes evidence unless a substantial right of the party is affected . . . ." The

relevancy and admissibility of evidence are largely within the discretion of the trial court and reversal

may be had only where that discretion has been abused." Davis v. State, 684 So. 2d 643, 661 (Miss.

1996). "The discretion of the trial judge must be exercised within the boundaries of the Mississippi

Rules of Evidence." Id. Rule 401 of the Mississippi Rules of Evidence defines "relevant evidence" as

"evidence having any tendency to make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it would be without the evidence."

M.R.E. 401. Evidence Rule 402 makes it clear that "[e]vidence which is not relevant is not

admissible." M.R.E. 402.

c. Sawed-off shotgun

Thomas Hamm maintains that even though Sergeant Gazzo inspected the shotgun and determined

that its length was legal, the trial court erred when it sustained the State's motion to introduce it into

evidence because its legality rendered the shotgun irrelevant and, thus, inadmissible pursuant to Rule

402 of the Mississippi Rules of Evidence. First, we note that nowhere does the record contain any

suggestion of argument by the State during the Hamms' trial that the shotgun was anything but legal.

In Martin v. State, 413 So. 2d 730, 733 (Miss. 1982), the prosecution introduced testimony

describing two weapons found in the motel room of a defendant charged with narcotics trafficking.

The defendant objected to the introduction of such testimony, but the trial court admitted the

testimony following a hearing on the matter. On appeal, the defendant argued the testimony was

irrelevant and highly prejudicial and constituted reversible error. In affirming the conviction, the

Mississippi Supreme Court adopted a ruling from the Federal Court which held:

In any event, we believe that where a defendant is charged with narcotics conspiracy, evidence

that weapons were found in his possession may be relevant and admissible. It often happens that

illegal enterprises, such as narcotic conspiracies, are ongoing ventures, requiring the use of guns

for protection of the contraband and in such a case, a weapon may be as much a tool of the

crime as the van used to transport the narcotics. It lay within the sound discretion of the district

judge to admit evidence concerning possession or use of weapons, and, on the facts of this case,

there was no abuse of discretion in the admission of such evidence.

Id. at 733-34 (citations omitted). Based on the foregoing quotation, we hold that the trial judge did

not err when he sustained the State's motion to introduce the shotgun into evidence. The State's
production of the shotgun, which Inspector Ford testified Thomas Hamm produced upon his request

and which motivated Sergeant Gazzo to request permission of Hamm to search the cab of his truck,

corroborated their testimony on that point. The introduction of the shotgun into evidence violated no

substantial right of the appellant, and we hold that the trial court did not err in admitting the shotgun

into evidence.

d. Tin can containing small quantity of marijuana found by Sergeant Gazzo in the closet of the

truck's sleeper

About the introduction of this evidence, Thomas Hamm argues that there was no evidence that he

knew that this tin can containing a small amount of marijuana was in the closet of the sleeper of his

truck or that he had exercised any dominion or control over the can. He further argues that because

the possession of the amount of marijuana in the can constituted only a misdemeanor offense, his

indictment for the felony of possession of more than a kilogram of marijuana with the intent to

distribute it made the introduction of the contents of the tin can evidence of other crimes and,

therefore, a violation of Rule 404(b) of the Mississippi Rules of Evidence.(3) The State counters his

argument by arguing that because Thomas Hamm denied knowing that the 196 pounds of marijuana

had been placed in the trailer of his rig because someone else had placed it there while he slept in his

sleeper waiting for the produce to be loaded, the tin can and other paraphernalia was admissible to

show Thomas Hamm's intent and knowledge that the marijuana was in the trailer.

Perhaps one reason for the State's introducing these items into evidence was to corroborate Sergeant

Gazzo's testimony that he found them in the closet of the sleeper. It will be seen that Thomas Hamm

complains about Gazzo's testimony about the marijuana butts which he testified he saw in the opened

ashtray when he entered the cab because the State never produced them for the jury's inspection. The

trial judge did not abuse his discretion in admitting the tin can and its contents of marijuana into

evidence, and their admission did not violate a substantial right of Thomas Hamm. Thus, we affirm

the trial judge's admitting these items into evidence.

e. Two marijuana cigarette butts found by Sergeant Gazzo in the ashtray

Hamm repeats his argument on these items that he made about the inadmissibility of the tin can and

the marijuana which it contained. In addition, he alleges that the State failed to produce these butts

during discovery for his inspection and testing, which would have violated Rule 4.06 of the Uniform

Criminal Rules of Circuit Court Practice. Sergeant Gazzo testified that once inside the cab of Hamm's

Peterbilt, he saw what he thought were two marijuana cigarette butts in the opened ashtray. Gazzo's

testimony about these two marijuana butts was offered to establish probable cause for his continuing

to search the cab's interior, not as evidence to convict Hamm of the possession of more than one

kilogram of marijuana with the intent to distribute. As with Thomas Hamm's objections about the

other items, we resolve this issue against him because we find that the trial judge did not abuse his

discretion in allowing Sergeant Gazzo to testify about his finding them. That testimony violated no

fundamental right of Gazzo's as Rule 103(b). This was not error.

2. Thomas Hamm's Issue VI. and Terri Hamm's Issue VIII.

a. Evidentiary background of issue
The subject of this issue is the note which Sergeant Potts testified that he found in Thomas Hamm's

wallet while he searched Hamm after he had arrested him. Written in the note was the multiplication

of "65 lbs. x 1100," the result of which was $71,500.00 The note also contained a reference to "1-

key" and "71 grams crank". Also written on it were the words, "$5,000.00 from before." When

Thomas Hamm testified, he denied that Potts found it in his wallet, but instead testified during the

State's cross-examination that the officers found the note in his fuel permit book which he kept on the

side of the door of his cab. Hamm denied knowing anything about the note.

The State called Sam Owens, an agent with the Mississippi Bureau of Narcotics for seventeen years.

The trial court accepted the State's tender of Owens as an expert in "drug criminal investigation"

without objection from counsel for either of the Hamms. Based on his knowledge of what the Bureau

of Narcotics had paid for marijuana in its undercover operations, Owens opined that the commercial

value of a pound of marijuana varied between $1,100 and $1,500. Hence the result of 65 pounds

multiplied by 1100, or $71,500, represented the "going rate" for marijuana on August 23, 1993.

Owens further explained that the word "crank" referred to methamphetamine and that the term "one

key" referred to one kilogram, or 2.2 pounds.

b. Violation of Rule 901 of the Mississippi Rules of Evidence

The Hamms collectively assert three grounds to support their position that the trial court erred when

it admitted this note into evidence over their objection. First, Thomas Hamm objects that the State

could not establish who had written the note and that the State could not establish beyond a

reasonable doubt that the contents of the note "pertained to a controlled substance or to some other

type of transaction." Therefore, the introduction of the note violated Mississippi Rule of Evidence

901.(4) The State counters this argument by emphasizing that it made no claim that Thomas Hamm

or, for that matter, any other person wrote the note. Instead, the State asserts that it introduced the

note to show that Thomas Hamm had it in his possession and that "it contained terms common to the

drug trade." This was established by the testimony of Mississippi Bureau of Narcotics Agent Sam

Owen. Thus, Sam Owen's testimony and Sergeant Potts's testimony that the note was found in

Hamm's wallet, which Thomas Hamm denied, was sufficient to satisfy the requirement of Rule 901

that the State demonstrate that the note was what the State claimed. Thomas Hamm cites only Rule

901, but no cases, to support his argument. Thus, we agree with the State that it adduced sufficient

evidence to satisfy Rule 901's requirement for authentication sufficient to permit the note to be

introduced into evidence, and we reject Thomas Hamm's argument on this aspect of this issue.

c. The note was hearsay and thus inadmissible

Thomas Hamm's second reason for objecting to the introduction of this note is that it was hearsay

and therefore inadmissible pursuant to Rule 802 of the Mississippi Rules of Evidence, which tersely

provides, "Hearsay is not admissible except as provided by law." M.R.E. 802. He points out that he

was unable to cross-examine the author of the note to ascertain what the author intended the terms

and figures to mean. The State counters with the argument that the note was not hearsay because it

was not trying to prove the truth of anything that was written in the note; instead, its purpose for

introducing the note was to offer the jury evidence from which they might well conclude that Thomas

Hamm was familiar with the jargon of the illicit trade in marijuana and methamphetamine. The State

quotes the comment to Rule 801(c), which reads, "If the significance of a statement is simply that it
was made and there is no issue about the truth of the matter asserted, then, the statement is not

hearsay." M.R.E. 801(c) cmt. Again, Thomas Hamm has cited no authority, other than the rule itself,

to support his stand on this issue. We agree with the State that the note was not hearsay; therefore,

Rule 802 did not prohibit the trial judge from admitting it into evidence.

d. Only the original copy of the note ought to have been introduced into evidence

A photocopy -- not the original copy -- of this note was introduced into evidence because the State

admitted that the original copy had been lost. Terri Hamm asserts that the copy of the note should

not have been allowed because admitting the photocopy of the note violated Rule 1002 of the

Mississippi Rule of Evidence.(5) Thomas Hamm claims that without the original document the jury

was unable to inspect the instrument "for additional writing on the back or to examine the quality of

the ink and the handwriting." Agent Owens testified that the photocopy he was shown accurately and

correctly reflected the original as he saw it on the night of August 26, 1993. Rule 1004 states that

"[t]he original is not required, and other evidence of a writing . . . is admissible if all originals are lost

or have been destroyed, unless the proponent lost or destroyed them in bad faith." M.R.E. 1004. In

Mitchell v. State, 609 So. 2d 416, 421 (Miss. 1992), the Mississippi Supreme Court held that"[a]

lthough the original consent forms could not be located for introduction at trial, Rule 1004(1) of the

Mississippi Rules of Evidence provides that the original is not required and other evidence of the

contents of a writing is admissible, if the original is lost or destroyed." The Hamms do not argue that

the State disposed of the original copy of the note in bad faith, and our review of the record contains

no evidence of such bad faith on the State's part. This Court holds that the trial judge properly

admitted a photocopy of the note.

D. Terri Hamm's seventh issue that the trial court erred in not granting jury instructions

In her seventh issue, Terri Hamm argues that the trial court erred by failing to grant two instructions

which she requested and by deleting the last paragraph of another instruction which the trial judge

granted at her request. The three instructions on which she seeks to predicate the trial judge's error

read as follows:

INSTRUCTION D2-13

The Court instructs the jury that even if you should find that the husband, Thomas Wayne

Hamm, had knowledge of the drugs['] presence in the truck in this case, that fact alone is not

sufficient to infer any knowledge or guilt upon his wife, Terri Wright Hamm.

INSTRUCTION D2-14

The Court instructs the jury that even if you find the husband, Thomas Wayne Hamm, guilty,

that finding alone is no reason to infer that his wife, Terri Wright Hamm, should also be found

guilty.

INSTRUCTION D2-12

"POSSESSION" requires that there must be a finding beyond a reasonable doubt that the

Defendants:
1. Were aware of the presence and character of the particular substance, and

2. that the Defendants were intentionally and consciously in possession of it.

Furthermore, "close proximity" to the substance is not by itself adequate to prove

"POSSESSION". In addition to "close proximity" there must be a finding beyond a reasonable

doubt of other incriminating circumstances shoeing that the Defendant had "POSSESSION" of

the substance.

Finally, where the premises upon which the substance is found is not in the exclusive control

of the accused, the accused is entitled to a not guilty verdict, absent some competent evidence

connecting the accused with the contraband.

The trial judge granted INSTRUCTION D2-12, but he deleted the last paragraph, which we have

italicized, by inking through it. Terri Hamm asserts that the trial judge erred when he deleted this

paragraph over her strenuous objection.

Terri Hamm argues that "[INSTRUCTIONS D2-13 and D2-14] are clearly accurate, and should have

been given to the jury." She also argues that "[t]he jury should have been instructed that their duty

was to vote not guilty as to Mrs. Hamm if they did not find some type of competent evidence

connecting the accused to the contraband to support her stand that the trial judge erred by granting

INSTRUCTION D2-12 after he had deleted its final paragraph." However, other than a general

reference to Cunningham v. State, 583 So. 2d 960, 962-63 (Miss. 1991), she cites no authority to

support her simple assertion that the trial court erred in denying the two instructions and granting a

third instruction after it had deleted its final paragraph. The State notes this omission of authority and

argument and suggests that this Court need not consider the issue. See Ellis, 651 So. 2d at 1073.

Nevertheless, this Court will resolve this issue. "In determining whether error lies in the granting or

refusal of various instructions, the instructions actually given must be read as a whole. When so read,

if the instructions fairly announce the law of the case and create no injustice, no reversible error will

be found." Collins v. State, 691 So. 2d 918, 922 (Miss. 1997). "A jury instruction may be improper

if it incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the

instructions." Williams v. State, 667 So. 2d 15, 24 (Miss. 1996). "An instruction which instructs the

jury on the law, according to the facts, is sufficient and a duplicate instruction in different words,

requested by the defendant, is not required." Clemons v. State, 535 So. 2d 1354, 1360 (Miss. 1988).

Terri Hamm requested and the trial judge granted INSTRUCTION D2-15, which read:

The Court instructs the jury that the mere presence of the wife, Terri Wright Hamm, with her

husband, Thomas Wayne Hamm, as a passenger in the truck on the occasion in question is not

itself any proof of her guilt in this case.

The trial judge granted the State's requested INSTRUCTION S-6, which read:

The Court instructs the jury that the concept of "possession" is a question which is not

susceptible of a specific rule. However, there must be sufficient facts to warrant a finding that

the Defendants were aware of the presence of the marijuana and methamphetamine, and were

intentionally and consciously in possession of it. It need not be actual physical possession.
Constructive possession may be shown by establishing that the drug involved was subject to

one's dominion or control. Proximity is usually an essential element, but proximity by itself is

not adequate in the absence of other incriminating circumstances.

Terri Hamm concluded her argument on her seventh issue with the assertion that "[t]he jury should

have been instructed that their duty was to vote not guilty as to Mrs. Hamm if they did not find some

type of competent evidence connecting [her] to the contraband." From our reading of the instructions

actually given as a whole, we hold that they fairly announced the law of the case and created no

injustice for Terri Hamm. See Collins, 691 So. 2d at 922. Without citation of specific authority to

support her contention that the trial judge erred in instructing the jury, this Court concludes that the

granting of INSTRUCTION D2-15 and INSTRUCTION S-6 effectively instructed the jury that

"their duty was to vote not guilty as to Mrs. Hamm if they did not find some type of competent

evidence connecting [her] to the contraband." Thus, we resolve this issue adversely to Terri Hamm

and affirm the trial judge's refusal to grant INSTRUCTIONS D2-13 and D2-14 and his granting

INSTRUCTION D2-12 after he had amended it by deleting its last paragraph.

E. Prosecutorial misconduct during closing argument

1. Background

The Hamms's five-year-old daughter, Vera Lee Hamm, was killed in a motor vehicle accident on July

27, 1993, one month before August 23 when they were arrested in Jackson County. Thomas Hamm

testified that after his daughter's death, he hired one Randy Donaldson to drive his truck while his

wife and he attempted to become reconciled to the tragic loss of their daughter. Hamm explained that

although Donaldson and he were not close friends, he had known Donaldson for about fifteen years.

Hamm testified that Donaldson was in south Texas when Hamm and his wife decided to go back

onto the road just before August 26, 1993. Hamm and his wife left their home in McMinnville,

Tennessee, and drove a second eighteen-wheeler, which he also owned, with a load to Houston,

Texas.

After the Hamms unloaded in Houston, they then drove their empty rig to Pharr, Texas, where they

anticipated getting another load of produce bound for Florida through the broker for which Hamm

hauled. Thomas Hamm explained that because they could not locate Donaldson, they left their second

rig at the broker's and took the rig which Donaldson had left at the same broker's, and proceeded to

load it with the loads of limes and mangoes which his broker had provided for him. Thomas Hamm

testified under the State's cross-examination that he knew where Randy Donaldson lived, although

the record does not contain Donaldson's address. The point of Thomas Hamm's testimony was that

he did not know that the marijuana, methamphetamine, and $6,000 in cash were in the trailer of his

rig that Donaldson had left in south Texas. Therefore, he could account for those items of contraband

and the cash being in the trailer of his rig only because Randy Donaldson had left them in there from

his last trip before Hamm and his wife re-acquired its use in Pharr, Texas. However, the record

contains no documentary evidence that the Hamms attempted to subpoena Donaldson as their

witness, and Donaldson did not testify during the trial.

2. Specific prosecutorial misconduct
Hardly had the prosecutor begun the final summation for the State, when he told the jury:

The reason is, is the phantom, Randy Donaldson. I don't think he exists. But even if he does,

you see, if you were in fact loading out of warehouses -- which the defense would have you

believe that that's where the marijuana came from, out of Valverde, out of Del Monte or one of

the other warehouses -- there is no way in the world that anybody is going to allow you to load

a U-Haul box on their shipment. And they wouldn't even try it. What they would do is they

would use a Valverde crate, they'd use a Del Monte crate, they'd use something that came out

of that warehouse to hide the marijuana. Now --

The record reflects that the following colloquy occurred among the prosecutor, Thomas Hamm's

defense counsel, and the trial judge:

By counsel for Thomas Hamm: Objection, Your Honor. It's speculation.

By the Court: Overruled.

By the Prosecutor: He does object, because he doesn't want you to hear this. But anybodyBy counsel for Thomas Hamm: I'm going to object to that, Your Honor.

By counsel for Terri Hamm: I'll object to that, Your Honor.

By counsel for Thomas Hamm: It's highly improper and it's highly prejudicial.

By the Court: Sustained. Don't comment on the reason for objections.

After the jury had retired to deliberate its verdict, counsel for both Hamms moved for a mistrial

because of the foregoing argument in which the prosecutor indulged, and the trial judge opined that

he did not think the prosecutor's comments were "serious enough to warrant a mistrial." He denied

the Hamms' motion for mistrial.

3. Resolution of the issue

As with some of the earlier issues which the Hamms presented for our review and resolution, they

have cited no authority to support their argument on this issue. While we therefore need not consider

it, we nonetheless resolve it. The State argues that the trial court sustained the Hamms' counsels'

objections to the prosecutor's comment, "[H]e doesn't want you to hear this," and it then cites Perry

v. State, 637 So.2d 871, 874 (Miss. 1994), in which the Mississippi Supreme Court explained: "It is

the rule in this State that where an objection is sustained, and no request is made that the jury be told

to disregard the objectionable matter, there is no error." (citations omitted). The record in the case

sub judice reflects that counsel for the Hamms did not ask the trial judge to instruct the jury to

disregard the prosecutor's comment that "he doesn't want you to hear this." Thus, there can be no

error. It must follow that neither did the trial judge err when he denied the Hamms' motion for a

mistrial which they made after the jury had retired to deliberate their verdict. Pursuant to Perry, we

resolve this issue against the Hamms.

F. Sufficiency of the evidence
1. Standard of Review

In McClain v. State, 625 So. 2d 774, 778 (Miss. 1993), the Mississippi Supreme Court summarized

its standard of review for the issue of whether the State's evidence was sufficient to a jury's verdict of

guilty as follows:

[The appellant] requested a directed verdict at the close of the State's evidence and a

peremptory instruction when trial evidence was concluded. His motion to set aside the verdict is

essentially and therefore is treated as a motion for judgment notwithstanding the verdict

(JNOV). The three challenges by [the appellant] (motion for directed verdict, request for

peremptory instruction, and motion for JNOV) challenge the legal sufficiency of the evidence.

Since each requires consideration of the evidence before the court when made, this Court

properly reviews the ruling on the last occasion the challenge was made in the trial court. This

occurred when the Circuit Court overruled [the appellant's] motion for JNOV. In appeals from

an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and

tested in a light most favorable to the State. The credible evidence consistent with [the

appellant's] guilt must be accepted as true. The prosecution must be given the benefit of all

favorable inferences that may be reasonably drawn from the evidence. Matters regarding the

weight and credibility of the evidence are to be resolved by the jury. We are authorized to

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. (citations omitted).

Aware of the foregoing standard of review, we review separately the arguments of Thomas and Terri

Hamm on the issue of whether the evidence was sufficient to support the jury's verdicts of their guilt

of the crimes of which they had been indicted.

2. Thomas Hamm

The first issue which Hamm addresses in his brief that "[t]he jury's verdict was in error due to the fact

that no credible evidence was presented proving beyond a reasonable doubt that [he] ha[d] dominion

and control over the alleged contraband." Hamm argues that mere proximity is not sufficient to

warrant conviction for constructive possession of a controlled substance and that the State must offer

evidence that the accused was aware of the presence and character of the particular substance and

was intentionally and consciously in possession of it. He then cites and analyzes a string of decisions

by the Mississippi Supreme Court beginning with Curry v. State, 249 So. 2d 414 (Miss. 1971) and

concluding with Cunningham v. State, 583 So. 2d 960 (Miss. 1990) which support his stance on

this issue. Indeed, the Mississippi Supreme Court reversed Cunningham's conviction of the

possession of cocaine because "[w]e cannot presume that, merely because a passenger is in proximity

to contraband, the passenger possesses the contraband." Cunningham, 583 So. 2d at 963.

The State counters Hamm's argument with its assertion that his possession was not constructive, but

was actual possession because he owned both the truck and the trailer in which the marijuana and the

methamphetamine were found. In Cunningham, the supreme court noted that "[a] presumption of

constructive possession arises against the owner of premises upon which the contraband is found."

Id. at 962 (citations omitted). See also Hamburg v. State, 248 So. 2d 430, 432 (Miss. 1971)

(holding that "one who is the owner in possession of the premises . . .is presumed to be in
constructive possession of the articles found in or on the property possessed").

On direct examination, Thomas Hamm admitted that he owned the Peterbilt truck and the trailer that

it pulled on the night of August 26, 1993. On cross-examination by the State, Hamm testified that the

trailer was completely empty when he opened its doors and backed it into the loading dock at the

Valverde Produce Company in McAllen, Texas. Inspector Ford testified that the trailer was locked

with a padlock when he inspected it at the weighing station and that Thomas Hamm unlocked the

padlock with a key which Hamm produced from his person. Both the marijuana and the

methamphetamine were found in front of Hamm's first load which was placed in his trailer at

Valverde. The MHP officers and MPSC inspectors who unloaded the bales of marijuana from the

trailer at the Orange Grove scales on Interstate 10 testified that the U-Haul cardboard boxes which

contained the marijuana were too tall to be carried over the top of the load and beneath the ceiling of

the refrigerated trailer. Instead, Inspector Dupont testified that he removed the bails of marijuana

from the U-Haul boxes and then passed them to Sergeant Potts on the other side of the front load.

On direct examination Hamm stated that because the first load was not immediately ready for loading

when he arrived at the Valverde Produce Company, he climbed into the sleeper of his truck and went

to sleep while he waited for his trailer to be loaded. Therefore, any employee of Valverde or any

other person had the opportunity to place the four U-Haul boxes of marijuana and the box of

methamphetamine in the trailer unbeknownst to him. Hamm also testified that he had never noticed

the cutting board, tube, and razor on the truck's floorboard between the seats of his Peterbilt because

Donaldson had left the cab's interior littered with tools, maps, and other detritus of driving.

There remains the note which Sergeant Potts testified he found in Hamm's wallet when he searched

Hamm pursuant to his arrest but which Thomas Hamm testified had been placed in his fuel book kept

in the truck's door. We have previously described the contents of this notes in detail. Agent Sam

Owens opined about the significance of the figures and terms contained in the note, which testimony

we also earlier reviewed.

With the previous recitation of the testimony and evidence in mind, we resort to our previously

quoted standard of review to resolve this issue. This Court must accept as true the credible evidence

consistent with Thomas Hamm's guilt, and it must give the State "the benefit of all favorable

inferences that may reasonably be drawn from the evidence." This Court may reverse only if it can

conclude that "reasonable and fair-minded jurors could only find the accused not guilty." See

McClain, 625 So. 2d at 778.

The presumption of Thomas Hamm's constructive possession of the contraband which his ownership

of the truck and trailer created, the note, and the location of the contraband in his trailer were a

sufficient basis on which the jury might rest its verdicts of Thomas Hamm's guilt of possession of

more than a kilogram of marijuana with intent to deliver and possession of methamphetamine. We

affirm the trial judge's denial of Thomas Hamm's motion for judgment notwithstanding the verdict

which Hamm presented after the jury had returned its verdicts against him.

3. Terri Hamm

Terri Hamm attacks the sufficiency of the evidence to support the jury's verdicts of her guilt by

asking "[w]hether the jury's verdict was in error since there was no credible evidence of [her] actual
possession and control of the contraband?" Of course, we review her attack on the sufficiency of the

evidence with the same standard of review as we previously employed. There are obvious factual

differences between Terri and Thomas Hamm's positions on their respective issues. Unlike her

husband, Terri Hamm did not own the truck, and she did not have a commercial driver's license.

Neither did the State demonstrate that she had a key which would unlock the padlock on the doors of

the refrigerated trailer.

In her argument on this issue, Terri Hamm stresses that her counsel asked MHP Sergeant Potts,

MPSC Inspector Ford, MHP Sergeant Gazzo, MPSC Inspector Dupont, and Agent Sam Owens with

the Mississippi Bureau of Narcotics if any of them had any evidence to connect her with the

contraband other then her proximity to it and that all six of them could supply no other evidence.

We have already recited that Terri Hamm traveled with her husband in his Peterbilt truck and trailer

from their home in Tennessee to Houston and on to South Texas where they were loaded with limes

and mangoes for transportation to Jacksonville and Tampa, Florida. Sam Owens testified that Miami

was recognized as a destination for controlled substances shipped into the United States from other

countries and as a point from which these controlled substances were distributed throughout the

United States. The State introduced into evidence a photocopy of a hotel bill from Budget Inn in

Richmond, Texas, for the night of August 23, 1993, in the name of Terri Hamm. The Hamms

testified that Terri Hamm alone spent the night in Budget Inn while her husband unloaded the freight

in his trailer in Houston, Texas.

The hotel bill included the charge for two long-distance telephone calls which were placed from the

telephone in the room, the first of which was made to (813) 639-9870 at 10:08 p.m., and the second

of which was made to (813) 639-9933 at 11:15 p.m. Sam Owens testified that both of these

telephone numbers were pay telephones located in Miami, Florida. During the direct-examination of

Terri Hamm, she testified that she did not remember making any telephone calls from her room in the

Budget Inn the night of August 23. Terri Hamm's memory did not improve under the State's crossexamination about these telephone calls.

In Martin v. State, 413 So. 2d 730, 732 (Miss. 1982), the Mississippi Supreme Court opined that the

elements of constructive possession may be proved by circumstantial evidence. Terri Hamm testified

in her own behalf, but from her inability to remember having made two telephone calls to pay phones

in Miami, the jury may well have been warranted in infer that the calls related to the delivery of the

contraband which Terri Hamm knew her husband was going to pick up in South Texas and deliver

after he arrived in Florida. "If it be sufficient to support an inference of guilt and the defendant fails to

offer a reasonable explanation consistent with innocence, such failure may be considered by the trier

of fact." Ohio v. Clay, 280 N.E.2d 385, 388 (Ohio Ct. App. 1972).

Our standard of review reminds us that we must review the sufficiency of the evidence "on the last

occasion the challenge was made" and that "[t]he prosecution must be given the benefit of all

favorable inferences that may be reasonably drawn from the evidence." See McClain, 625 So. 2d at

778. We are therefore allowed to consider the state of the evidence after Terri Hamm had testified.

From all the evidence which the State adduced in the trial sub judice, we permit the jury to infer from

the telephone calls made to two pay-phones in Miami by Terri Hamm, the presence of the

paraphernalia and small quantity of marijuana in a tin can in the closet of the sleeper of her husband's
truck, and her accompaniment of her husband from Tennessee to South Texas to Florida that Terri

Hamm knew that her husband's trailer was carrying more than limes and mangoes. We hold that "a

reasonable and fair-minded [jury] could . . . find [Terri Hamm] guilty," and we affirm the trial court's

denial of her motion for JNOV.

G. Disproportionality of Thomas Hamm's sentence

For his seventh issue, Thomas Hamm argues that because his sentences were disproportionate to

those of his wife, this Court should remand his convictions to the trial court for resentencing. We

previously recited the respective sentences which the trial judge imposed on both Thomas and Terri

Hamm.

The Mississippi Supreme Court has written, "It is well settled that the imposition of a sentence is

within the discretion of the trial court and this Court will not review the sentence, if it is within the

limits prescribed by statute." Reed v. State, 536 So. 2d 1336, 1339 (Miss. 1988). Section 41-29-139

of the Mississippi Code sets out the maximum penalties for violating the law regarding controlled

substances. The Hamms were found guilty of possession of more than one kilogram of marijuana

with intent to distribute. Section 41-29-139(b)(1) sets the maximum penalty for the conviction of this

offense at imprisonment in the Mississippi Department of Corrections for not more than thirty years

or the imposition of a fine not less than $1000 nor more than $1,000,000, or both. Miss. Code Ann. §

41-29-139(b)(1) (Rev. 1993). The maximum penalty for possession of methamphetamine is

imprisonment for not more than three years or a fine of not less than $1000 nor more than $30,000,

or both. Miss. Code Ann. § 41-29-139(c)(1) (Rev. 1993).

The sentence that the trial judge imposed upon Thomas Hamm following his conviction fell within

the maximum penalties which Section 41-29-139(b)(1) prescribed. The mere fact that the trial judge

did not impose the same punishment upon Terri Hamm that it did upon Thomas Hamm is no per se

indication of the disproportionality of Thomas Hamm's sentence. The United States Court of Appeals

for the Fifth Circuit has established that a defendant cannot allege a charge of disproportionate

sentencing based solely on the fact that a co-defendant received a lesser sentence from the trial court,

if that sentence falls within the guidelines set by statute. United States v. Pierce, 893 F.2d 669, 678

(5th Cir. 1990).

At the sentencing hearing following the Hamm's conviction, the trial judge explained his reason for

giving Mrs. Hamm a lesser sentence:

I feel like that, as far as culpability, I would agree with really all parties here to the extent that

Mrs. Hamm probably had less culpability or less involvement, probably, than her husband did. I

would, I would just make that observation. And I do think that the sentence of Mrs. Hamm

should be less than that of her husband. I'm cognizant of the fact that she's just had a baby and

it's regrettable that, that a child comes into the world and his, his parents are faced with this,

you know. I mean that's really a regrettable situation, but it's something over which the Court

doesn't have any control, except to say that it's regrettable. I mean, I don't see how you could

say it any other way other than that it's just a sad situation that a baby is going to be reared in

this situation with this. [I]t's the duty of the Court to impose what it considers to be an

appropriate sentence in these cases.
The trial judge explained on the record his reasons for levying a lesser punishment on Terri Hamm,

and it was within his discretion to do so. Therefore, we affirm the trial court's sentences which it

imposed on Thomas Hamm.

IV. SUMMARY

We resolved the Hamms's issues in this order: (1) the search of Thomas Hamm's truck and trailer, (2)

the admissibility of certain items into evidence, (3) jury instructions which Terri Hamm requested but

the trial judge refused, (4) prosecutorial misconduct during closing conduct, (5) the sufficiency of the

evidence to support the jury's verdicts of the Hamms' guilt, and (6) the disproportionality of the

Hamms' sentences. Our summary of the issues follows the same order.

Thomas Hamm did not dispute Sergeant Gazzo's and Inspector Ford's testimony that he consented to

Sergeant Gazzo's search of Hamm's truck-cab's interior; neither did Thomas Hamm testify in support

of his motion to suppress the fruit of Sergeant Gazzo's search. We decline to infer from the evidence

in the record, as Hamm suggests we should, that his consent to search was anything but voluntary.

Terri Hamm neither owned the truck and trailer nor attempted to establish that, as the truck's

passenger, she claimed any sort of privacy interest in the interiors of either the truck's cab or the

trailer. Therefore, we have found that her consent to Sergeant Gazzo's search was unnecessary. In

the face of the presumption that Section 77-7-16 of the Mississippi Code is constitutional, in the

absence of the Hamms' citation of authority that this section is unconstitutional, and pursuant to the

authorities with which we are familiar, we decline to adjudicate that this section is unconstitutional.

Therefore, Section 77-7-16 authorized MPSC Investigators Ford and Dupont to enter Thomas

Hamm's trailer for the purposes that they testified they entered it. No poisoned tree takes root in this

case; the fruit of the MPSC inspectors' search was admissible.

Rule 103(a) of the Mississippi Rules of Evidence provides that "[e]rror may not be predicated upon a

ruling which admits or excludes evidence unless a substantial right of the party is affected . . . ." The

trial judge did not abuse his discretion in admitting the sawed-off shotgun which Thomas Hamm

produced. The paraphernalia and the small amount of marijuana found in the cab's interior, like the

note which Sergeant Potts testified he found in Thomas Hamm's wallet, were relevant to the issues of

whether Thomas Hamm knew that he was transporting marijuana and methamphetamine in the trailer

of his rig.

The trial judge did not err when he denied Terri Hamm's request that he grant Instructions D2-13 and

D2-14; neither did he err when he amended Instruction D2-12 by deleting its last paragraph. We will

not allow the Hamms to prevail in their argument that because the prosecutor stated, "[H]e doesn't

want you to hear this," they are entitled to a new trial based on prosecutorial misconduct. The trial

court sustained the Hamms' counsels' objections to that comment, but neither counsel requested the

trial judge to instruct the jury to disregard the comment. See Perry v. State, 637 So. 2d at 874.

Our review and analysis of the evidence, which the State adduced to support its prosecution of the

Hamms, and the inferences which a reasonable jury might draw from that evidence, were sufficient to

support the jury's verdicts of Thomas and Terri Hamm's guilt. Finally, Thomas Hamm's sentences

were within the limits set by the statutes for the violations of those statutes of which the jury found

him guilty. Thomas Hamm's sentences were not disproportionate to the sentences to the sentences

which the trial judge imposed on his wife, Terri Hamm. Therefore, we affirm the trial court's
judgments of the Thomas and Terri Hamm's convictions and the sentences which the trial court

imposed upon them both pursuant to those convictions.

THE JACKSON COUNTY CIRCUIT COURT'S JUDGMENT OF THE GUILT OF

THOMAS WAYNE HAMM'S POSSESSION OF MORE THAN ONE KILOGRAM OF

MARIJUANA, A CONTROLLED SUBSTANCE, WITH INTENT TO DISTRIBUTE AND

ITS SENTENCE OF THOMAS WAYNE HAMM TO PAY A FINE OF $100,000, TO PAY A

LAB FEE OF $125, AND TO SERVE A PERIOD OF TWENTY YEARS IN THE CUSTODY

OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS ARE AFFIRMED.

THE JACKSON COUNTY CIRCUIT COURT'S JUDGMENT OF THE GUILT OF

THOMAS WAYNE HAMM'S POSSESSION OF METHAMPHETAMINE, A

CONTROLLED SUBSTANCE, AND ITS SENTENCE OF THOMAS WAYNE HAMM TO

PAY A FINE OF $10,000, TO PAY A LAB FEE OF $125, AND TO SERVE A PERIOD OF

THREE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF

CORRECTIONS, WHICH IS TO RUN CONCURRENTLY WITH THE SENTENCE OF

TWENTY YEARS FOR HIS CONVICTION OF POSSESSION OF MORE THAN ONE

KILOGRAM OF MARIJUANA, A CONTROLLED SUBSTANCE, WITH INTENT TO

DISTRIBUTE ARE AFFIRMED.

THE JACKSON COUNTY CIRCUIT COURT'S JUDGMENT OF THE GUILT OF TERRI

WRIGHT HAMM'S POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA,

A CONTROLLED SUBSTANCE, WITH INTENT TO DISTRIBUTE AND ITS SENTENCE

OF TERRI WRIGHT HAMM TO PAY A FINE OF $10,000, TO PAY A LAB FEE OF $125,

AND TO SERVE A PERIOD OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI

DEPARTMENT OF CORRECTIONS ARE AFFIRMED.

THE JACKSON COUNTY CIRCUIT COURT'S JUDGMENT OF THE GUILT OF TERRI

WRIGHT HAMM'S POSSESSION OF METHAMPHETAMINE, A CONTROLLED

SUBSTANCE, AND ITS SENTENCE OF TERRI WRIGHT HAMM TO PAY A FINE OF $1,

000, TO PAY A LAB FEE OF $125, AND TO SERVE A PERIOD OF THREE YEARS IN

THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WHICH IS

TO RUN CONCURRENTLY WITH THE SENTENCE OF FIVE YEARS FOR HER

CONVICTION OF POSSESSION OF MORE THAN ONE KILOGRAM OF MARIJUANA,

A CONTROLLED SUBSTANCE, WITH INTENT TO DISTRIBUTE ARE AFFIRMED.

COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANTS.

BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., DIAZ, HERRING, HINKEBEIN, KING,

PAYNE, AND SOUTHWICK, JJ., CONCUR.

1. Rule 28(i) provides:

In cases involving more than one appellant or appellee, including cases consolidated for

purposes of the appeal, any number of either may join in a single brief, and any appellant or

appellee may adopt by reference any part of the brief of another. Parties may similarly join in
reply briefs.

M.R.A.P. 28(1).

2. Section 77-7-16, titled, "Supervision and inspection of safe operation and use of certain

motor vehicles" reads, in part:

(1) Supervision and inspection of the safe operation and the safe use of equipment of motor

vehicles operating in the state shall be a specified duty of the commission. In accordance

therewith, the commission shall promulgate as its own and enforce the rules, regulations,

requirements and classifications of the United States Department of Transportation or any

successor federal agency thereof charged with the regulation of motor vehicle safety. The

commission shall establish a system of reciprocity with other states to facilitate the inspection of

motor vehicles provided for in this subsection.

(2) The commission shall have the authority to inspect for safe operation and

safe use of equipment the following motor vehicles:

(a) Each holder of a certificate of convenience and necessity, a permit to operate as a contract

carrier or interstate permit;

(b) Any individual, corporation or partnership engaged in a commercial enterprise operating a

single motor vehicle or those in combination with a manufacturer's gross vehicle rating of more

than ten thousand (10,000) pounds; and

(c) Any individual, corporation or partnership operating a motor vehicle of any gross weight

transporting hazardous material that requires placarding under the Federal Hazardous Material

Regulations.

Miss. Code. Ann § 77-7-16 (Rev. 1991).

3. Rule 404(b) provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in

order to show that he acted in conformity therewith. It may, however, be admissible for other

purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.

M.R.E. 404(b).

4. Evidence Rule 901(a) reads:

(a) 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.
M.R.E. 901.

5. Rule 1002 states:

To prove the content of a writing, recording, or photograph, the original writing, recording, or

photograph is required, except as otherwise provided by law.

M.R.E. 1002.