IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-01268-COA CHRISTOPHER TOLIVER A/K/A DONTE HALL A/K/A DANTE HALL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/03/2017 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM W HICH APPEALED: COPIAH COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN A. SUBER GEORGE T. HOLMES MOLLIE M. MCMILLAN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE DISTRICT ATTORNEY: ALEXANDER C. MARTIN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION AFFIRMED - 10/30/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND FAIR, JJ. CARLTON, J., FOR THE COURT: ¶1. Christopher Toliver was convicted in Copiah County Circuit Court of possession of
weapons by a c onvicted f elon. He was sentence d t o serve eight y e ars i n t he c ustody of the Mississippi Departm ent of Corrections (MDOC). Toliver’s post-trial m otions were denied. Toliver appealed, asserting that t he trial court erred in deny ing h is post-trial m otions because the evidence presented at trial was insuf f icient to support the jury ’s g uilty verdict. Finding no error, we af

f irm

.STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. O n J u n e 5 , 2 017, Toliver was indicted under Mississippi Code A nnotated sect i o n 97-37-5 (Rev. 2014) f

or poss ession of weapons by a convicted f elon. The circum stances surrounding t h is charge arose w hen several me mbers of the Copiah C ounty Sherif f ’s Departm ent went to 4056 Tany ard Road in Cry stal Springs o n October 21, 2 016. Two of the of f icers present on that day , Of f icer W illiam L a rry Lee and Of f icer Percy Calhoun, testif ied

at T oliver’s August 3, 2 017 trial. Both of f icers testif

ied that Toliver open e d t h e d o o r and allowed the of

f icers to search the hom e. Of f icer Lee testif

ied that Toliver owned t he hom e. No contradictory evidence as to this f act was presented a t t r i a l

. T h e o f f icers also testif

ied that three other adults were in the house when the m em bers of the sherif

f ’s dep a rtm ent arrived. The of

f icers discovered f

ive guns—three b ehind a m irror, o ne on a night stand by the bed, and one b etween two m attresses. Both of f i cers t estif

ied t h a t T o l i ver adm itted to them that the guns were his. 1 ¶3. Of f icer Lee testif

ied t hat Toliver was a convic t e d f e l o n . H e t e s t i f

i e d t h a t he ascertained t his i nf

orm ation “ by what [ Toliver] said that d ay [ when the guns were discovered

at the Tany ard Road r esidence].” Af ter Of f icers Lee and Calhoun testif ied, the State’s next witness was Edna Stevens, t he Circuit Clerk o f Copi a h C o u n ty since 1984. She was questioned a

bout the State’s exhibit S-6, a certif ied copy of a sentencing order showing that in 1 998 T oliver pleaded guilty to a possession-of -stolen-property charge a n d was sentenced

to serve a one-y ear s uspended s e ntence in the custody of MDOC. The sentencing order also

1 T o av o id rep etitio n , w e d iscu ss th e d etails o f T o liv er’s a d m issio n s reg ard in g th e f irearm s w h en w e ad d ress T o liv er’s su f f icien c y -o f

-th e-ev id en ce ch allen g e later. 2shows that T oliver w as ordered to pay attorney ’ s f ees of $1,000, court costs of $240, a f ine of $ 500, and restitution of $150 to Markeith Lof ton a nd $150 to Greg S anders. M s. Stevens testif i ed that she i s charged w ith recording such orders. On cross-exam ination, she acknowledged t hat Toliver’s 1998 sentencing order did not specif i cally c o n t a i n the term “f elony .” On re-direct exam inat i on, however, Ms. Stevens testif ied that the crim e of possession of

stolen property

is recorded as a f

elony

. ¶4. The State’s next witness was Greg F arrell, a l ong-tim e MDOC probation of f icer. The record r ef l ects that Of

f i cer Farrell m et with Toliver a f ter his sentencing on the possession-of

stolen-property conviction to explain the paperwork Toliver m ust com p lete, to answer any
q u e s t i o ns Toliver m ay have, and to obtain Toliver’s signature on t he d ocum ents. Of f i ce r Farrell testif

ied that he only supervises f e l ony cases, a n d t hat a person c harg e d w i t h a

m isdem eanor would n o t see him

. W hen a person receives a suspended sentence, a s in Toliver’s case, Of

f icer Farrell testif

ied that t he paperwork includes ( 1) a f orm entitled “Notice of How Firearm s and V oting Laws Af f ect You” t hat addresses certain laws that will

a f f e ct the probationer; and (2) the probation order t hat, a m ong other item s, cont a i n s t h e conditions of

probation. ¶5. The N otic e of How Firearm s and Voting Laws A f f ect You f orm , signed by

Toliver and w itnessed by Of

f icer Farrell, was a dm itted into evidence a s the S tate’s exhibit S-7. This f orm clearly provides that Toliver was not allowed t o have f irearm s in his possession “on or af ter t he date of [ his] conviction,” including “purchasing any weapon f rom licensed f

irearm s dealers, who are prohibited by law f r om selling f

irearm s t o convicted f

elons.” Continuing,

3the f

orm specif ies that “[ t]o tell them

y o u are not a convicted f elon is also a crim e.” ¶6. T o l i v e r ’ s 1998 probation order relating t o t h e p o s s e s s i o n - o f

- s t o l e n - p r o p e r t y conviction was adm itted into evidence as the State’s ex h i b it S -8. It was also signed by Toliver and witnessed b y O f f i c e r Farrell. The probation order provides t hat because “the def endant has not been heretof ore convicted of a f

e lony ,” the court would suspend Toliver’s

sentence and place him on p roba t i o n . O n e of the listed conditions of probation was that Toliver was prohibited f

rom possessing f

irearm s . ¶7. T h e j u

r y r e n d e r ed a unanim ous verdict f inding Toliver guilty of possession of f irearm s by a convicted f

elon, i n violation of section 97-37-5. H e was sentenced to serve eight y ears in MDOC. Af

ter the trial court denied his post-trial m oti o n s , T o l iver appealed. He raises

one assignm ent o f error: The evidence was insuf f icient to support a conviction o f p ossession of weapons by

a convicted f

elon. STANDARD OF REVIEW ¶8. T h e standard of review on a suf f iciency -of

-the-evidence challenge i s a s f o l l o w s : “W hen reviewing the suf

f iciency of the evidence, this Court m ust a s k whether, af

ter viewing the evidence in the light mo s t f a v o r a b le to t he prosecution, any r ational trier of f act could have f ound the essential elem ents of the c r im e bey ond a reasonabl e d o u b t.” Edwards v. State , 167 So. 3d 1 286, 1288 (¶9) (Miss. Ct. App. 2014) ( internal quotation m a rks om itted). Further, “if keeping in m ind t h e b e y o n d a reasonable d oubt burden of proof standard, reasonable f

air-m inded j u r o r s i n the exercise of im partial j udgm ent m ight reach dif f erent conclusions on every elem ent o f the of f ense, t h e evidence will be deem ed to h ave been

4suf

f i cient.” Id. ( ¶10) (internal quotation m arks om itted). DISCUSSION I. Applicable Law ¶9. Section 97-37-5(1) provides that “ [ i]t shall be unlawf ul f or any person who has been convicted of a f

elony under the laws of this state, any other state, or of the United States to
possess any f

irearm

. . . . ” “To prove possession of a f irearm by a convicted f

elon, the State

m ust prove two things: (1) the person w as in possession of a f irearm , and (2) the person had been convicted of a f

e lony crim e.” Henderson v. State , 117 So. 3 d 636, 638 (¶7) (Miss. Ct. App. 2013) (quoting Y

oung v. State , 95 So. 3d 6 85, 688 (¶10) (Miss. C t. A p p . 2011)). Toliver asserts that t he State f ailed to prove b oth elem ents o f t his crim e . Af ter reviewing all of the evidence in the light m ost f avorable to the prosecution, we agree with the trial court that the State satisf

i ed its burden of proof f

o r both elem ents of Toliver’s f elon-in-possession conviction and t hat t he guilty v erdict is suf f iciently supported by t he evidence. See Edwards v. State , 966 So. 2d 837, 839 (¶¶9-12) (Miss. Ct. App. 2007).
II. Possession of Firearm s ¶10. Regarding the State’s proof that Toliver possessed the f i rearm s, Toliver argues that the State did not present any e vidence to “verif y ” th a t h e owned the hom e searched by the

m em bers of the Copiah County Sherif f ’s Departm ent or that Toliver adm itted that the guns were his. 2 W e f

i nd that this argum ent is without m erit f or the reasons discussed below.

2 “T h e o w n e r o f th e p rem ises w h ere th e co n trab an d i s f o u n d is reb u ttab ly p resu m ed to b e in p o ssessio n o f th e c o n trab an d .” G a v i n v. S ta te , 7 8 5 S o . 2 d 1 0 8 8 , 1 0 9 3 (¶1 7 ) (M iss. C t

. A p p . 2 0 0 1 ). If t h e d ef en d an t, h o w ev er, “is n o t th e o w n er o f t h e p rem i ses o r in e x clu siv e p o ssessio n , th en th e S t ate m u st p ro v e so m e ‘ co m

p e ten t ev id e n ce co n n ectin g h i m w ith th e 5¶11. Both Of f i c er L ee and Of

f icer Calhoun testif

ied that when they went to the Tany ard Road address, Toliver opened the door and allowed the of f icers to s earch his hom e. Of f icer
Lee testif

i e d that Toliver owned the hom e, and no evidence was i ntroduced at trial contradicting this statem e nt. Indeed, the statem ent of f acts section of Toliver’s Appellant’s Brief provides that “Toliver was the owner of the house.” ¶12. Further, t here is am ple evidence that T ol i v e r a dm itted t hat he owned the f ive guns f ound at the hom e. Both of f icers testif

ied at trial t hat Toliver adm itted to them that the guns

were his. Of

f i cer Lee testif

ied that when he was rem oving the g uns f rom t he hom e, Toliver said, “ W here are y ou going with m y guns? ” O f

f i c e r C alhoun corroborated this statem ent. Both of f icers also t estif

ied that whe n T o l i ver was l ater interviewed at the sherif f ’s departm ent, he again adm itted that the guns w ere h is. One of the f irearm s recovered was a .380-caliber pistol. Of

f icer Lee testif

ied that Toliver told him h is g irlf riend had bought that pistol f or him at a gun s how, and Of f icer C alhoun testif

ied that Toliver t old him it was “his little pocket rocket that he carried all the tim e.” ¶13. In Edwards , we held that witness testim ony “is m ore than suf f icient evidence

. . . to convict a def

endant of possession of a w eapon by a f elon.” 966 So. 2d at 839 ( ¶10) (citing Hope v. State , 840 So. 2d 7 47, 750 (¶11) (Miss. Ct. App. 2003)). See also Bradley v. State , 9 3 4 So. 2d 1018, 1027 (¶33) ( Miss. Ct. App. 2005) (Evidence t hat def endant was arrested with a gun hidden in his suitcase and that def e n dant adm itted that h e possessed the gun was f ound to be s uf

f icient e v i d ence m eeting “possession” elem ent of f elon-in-possession

co n trab an d .’” Id

. (q u o t in g P o w ell v. S ta te , 3 5 5 S o . 2 d 1 3 7 8 , 1 3 7 9 (M iss. 1 9 7 8 )). 6conviction.).

¶14. W e f

ind that the testim o nies of Of f i cer Lee and O f

f icer Calhoun likewise constitute suf f i cient evid e n c e meeting the “possession” e l em ent in t his case. It i s t he r ole—and the responsibility

—of the jury to “weigh witness testim ony and determ ine i t s credibility

. . . . [ W ]here the evidence j ustif ies a verdict, it m

ust be accepted a s having been f ound worthy of belief .” Osborne v. State , 54 So. 3d 841, 846 (¶21) (Miss. 2011); s ee Edwards v. State , 797 So. 2d 1049, 1058 (Miss. Ct. App. 2001) (“It is t he jury ’s role to weigh the credibility of the evidence and de c i d e which f acts are accepted or rejected.”). “Juries are chosen f or the
purpose of resolving questions of f act, and this Court ‘ will not substitute our f a c tual f indings f or that o f the jury in a contest o f c r e d i b i l i t y . ’ ” Roberson v. State , 19 So. 3d 95, 105 (¶25) (Miss. Ct. App. 2009) (quoting Russell v. State , 834 So. 2d 714, 718 (¶18) (Miss. Ct. App. 2002)). The jury r e viewed the evidence presented a t t rial in its ent i r e t y , a n d determ ined which f a c t s w e r e t o be a ccepted or rejected. Viewing the evidence i n the light m ost f avorable to the prosecution, reasonable jurors could have f ound bey ond a reasonable doubt that Toliver possessed the f irearm s. Edwards , 167 So. 3d at 1288 (¶9).
III. Convicted Felon ¶15. Regarding the second elem ent of Toliver’s f elon-in- p o s s ession conviction, Toliver
argues that the State d id n o t prove bey ond a reasonable doubt that h e was actually a convicted f

elon because none of the f orm s or orders adm itted i n t o e vidence stated that Toliver was a f

elon. W e f

ind t hat t his argum ent is also wi t h o u t me rit f or the reasons addressed below.

7¶16. The record shows that there was suf f i cient evidence f

or the jury t o f

ind that Toliver

was a convic t e d f

elon, including (1) t he State’s exhibit S -6, Toliver’s 1998 possession-of

stolen-property sentencing order; (2) the State’s exhibit S -7, the Notice o f How F irearm s and Voting Laws Af

f ect Y ou f orm , signed by

Toliver and witnessed by Of f icer Farrell; (3) the State’s exhibit S-8, Toliver’s 1 998 probation order, also signed by Toliver and witnessed by Of f icer Farrell; and (4) the witnesses’ testim ony a bout t hese exhibits. W e now review this evidence in detail. ¶17. Toliver’s 1998 sentencing order shows that T oliver pleaded g uilty to a possession-of

stolen-property charge and was sentenced to serve a one-y ear suspended sentence in the custody of MDOC. The applicable statute in ef f ect in 1998, when Toliver pleaded guilty and was sentenced to a one-y ear s uspended s entence, was M ississippi Code Annotated section 97-17-70 (1972). In relevant part, this statute provided: § 97-17-70. Receiving stolen property

. (1) A person com m its the crim e of receiving stolen p roperty if he intentionally possesses, receives, retains or disposes of stolen property k nowing that it h as been stolen or having r e asonable grounds to b elieve it has been stolen, u nless the property i s p o ssessed, received, r etained or disposed of with i n t e n t to restore it to the owner. (2) The f act that the person w ho stole the p roperty has not been c onvicted , apprehended or identif

ied is not a def

ense to a charge o f receiving stolen property

. (3) Any p e r s on who shall be convicted of receiving s tolen property which exceeds Two H undred Fif ty Dollars ($250.00) in value s hall be com m itted to the custody o f t h e S t a t e Departm ent of Corrections f or a term not exceeding f ive (5) y ears o r by a f

ine of not m ore than One Thousand Dollars ($1,000.00), or both.

8Miss. Code Ann. § 97-17-70 (1972). Toliver was s entenced u n d er section 97-17-70(3)

setting f orth the punishm ent f

or f e lony -level receipt of stolen property

. ¶18. Toliver’s one-y ear suspended sent e n ce in t he custody of MDOC was authorized under section 9 7-17-70(3) a nd shows that the possession-of -stolen-property c h arge to which he pleaded guilty was a f

elony

. In A nthony v. S

tate , 349 So. 2d 1066 (Miss. 1977), f or exam ple, the Mississippi Suprem e Court exp l ained that it was not necessary f or the def

endant’s indictm ent to contain the word “f elony ” where the a ggravated assault statute under which he

was charged provided f

or punishm ent ranging f

rom not m ore than one y ear in the county jail,

nor m ore than twenty y e ars in the penitentiary

. Id. at 1067. The suprem e court held: “[ T]his Court has adopted the rule that when the court o r t he jury is given the d iscretion to f ix punishm ent f

or a n of f ense by im

p risonm ent in the p enitentiary or b y f ine o r conf

inem ent in the county jail, such of

f e nse i s h e l d to be a f

elony regardless of the penalty actually im p osed.” Id. ; see S

tate v
. Sansome , 133 M iss. 428, 439, 9 7 So. 753, 7 54 (1923) (“In testing

an of f ense as to whether it is a f elony o r misdem eanor, the power given to im prison in the penitentiary determ ines it t o be a f elony .”); see also Miss. Code Ann. § 1-3-11 (Rev. 2014) (def ining “f elony ” as “ any violation of law p unished with death or conf inem ent in the penitentiary ”). A dditionally , the j ury heard the testim ony of Edna S tevens, the Circuit Clerk of Copiah County , who was questioned about the 1998 sentencing o rd e r o n T o l i ver’s possession-of

-stolen-property guilty plea. Ms. Stevens testi f i e d that she is c harged with recording such orders and that the crim e of pos s e s s ion of stolen property is recorded as a f elony

.

9¶19. Toliver’s 1998 sentencing order and Ms. S tevens’s testim ony was suf f icient evidence

to m eet t he “ convicted f

e lon” elem ent of his f

elon-in-possession conviction. See Carter v. State , 941 So. 2d 846, 853-54 ( ¶¶30-34) (Miss. Ct. App. 2006) (holding that t h e State’s introduction into evidence o f an order accepting def e ndant’s guilty pl e a t o a c harge of robbery and sentencing him to serve seven y ears in the custody o f MDOC f or that c rim e was suf f i cient evidence to prove t he “convicted f elon” elem ent o f a f

elon-in-possession charge); Grant v. State , 762 So. 2d 800, 804 (¶¶6, 9) (Miss. C t. App. 2000) (holding that testim ony f rom the circuit clerk that def endant was a convicted f

e lon was suf

f icient e vidence to prove the “convicted f

elon” elem ent of

the f elon-in-possession charge). ¶20. I n t h i s c a s e , the j ury also saw and heard testim o ny about Toliver’s 1998 probatio n order a nd the Notice o f How Firearm s and Voting Laws Af f e ct You f orm . G reg Farrell, the MDOC probation of

f icer, testif

i ed that he reviewed this paperwork with T o l i v e r a f ter his sentencing o n the possession-of -stolen-property guilty plea. Of f i cer Farrell f

urther testif

ied that he only

supervises f

elonies; a person charged with a m isdem e a nor would not see him

. ¶21. The Notice of How Firearm s and Voting Laws Af f ect You f orm that Of

f icer Farrell reviewed w ith Toliver p rovides that f ederal law prohibits Toliver f rom having f

irearm s in his possession “on or af

ter the date of [ his] conviction.” The f orm f urther p rovides that “[ t]his includes purchasing a ny weapon f rom l icensed f

irearm s dealers, w h o a re prohibited by law f rom selling f

irearm s to c onvicted f

elons. To tell them you a re not a convicted f elon is also

a crime .” Em

phasis added. T his language inf o rm s T oliver that h e i s a c o n victed f elon. Toliver signed this f

orm , a cknowledging he u nderstood and accepted i ts contents. He

1 0e f

f e c t ively adm itted to his status as a convicted f elon, providing f

urther proof of h i s “convicted f

elon” status. See W

illiams v
. S tate , No. 2016-KA-01485-COA, 2018 W L 618733, a t * 2 ( ¶ 9) (Miss. Ct. A pp. J an. 30, 2 018) (Def endant’s adm ission that he was a convicted f

elon was s uf

f icient to prove the “convicted f e l o n ” elem ent of a f

elon-inpossession charge.); see also Patterson v. State , 127 Miss. 256, 260-61, 90 So. 2, 3 (1921) (Def endant’s own adm ission m ay b e consider e d in determ ining whether c rim e was

com m itted.). ¶22. Toliver’s 1998 probation order that Of f icer Farrell r eviewed w i t h T oliver was also signed and acknowledged b y Toliver a nd witnessed by Of f icer Farrell. This order provides that because “the def

endant has not been heretofore c o nvicted of a f elony ” (em

p hasis added), the court would suspend Toliver’s sentence and place him on probation. A jury could inf er that the use of the term “ h e retof ore,” which m eans “bef

ore now,” indicates that Toliver’s possession-of

- s t o len-property c onviction was a f elony

. See Anderson v. State , 874 So. 2d 100 0 , 1006 (¶22) (Miss. Ct. A pp. 2004) (observing that “a jury is allowed t o consider all logical inf

erences f lowing f rom the evidence” a nd determ ining that t he jurors could inf er that “F3” on the def

e ndant’s conviction report m eant “ f e lony ” in determ ining whether the State had m et its burden in proving the “convicted f elon” elem ent o f a f

elon-in-possession charge). ¶23. The jury in this c ase was instructed on the two elem ents of f elon-in-possession, and was f urther instructed as f

ollows:
It is y our duty to determ ine the f acts and to determ i ne t hem f rom the evidence produced in open court

. . . . The evidence which y ou are to consider consists of the t e s t i mo n y and statem ents of t he witnesses and exhibits o f f ered and received. You are also p e rm itted to d raw such reasonable inf

erences f rom the

1 1evidence as seem justif ied in the light of

y our experience. “The jury is presum e d to f ollow the instructions given by the trial court.” Evans v. State , 226 S o. 3 d 1, 32 (¶83) (Miss. 2017). In this case, the jury heard witness test i mo n y o n t h e convicted-f

elon issue, saw the exhibits relating to this elem ent, and was allowed t o take the exhibits back with t hem t o the jury room f or review. B a sed upon the evidence bef ore it, and all reasonable and logical inf e renc e s f r o m that evidence, the jury reasonably b elieved that Toliver was a convicted f

e lon bey ond a reasonable doubt. W e f ind no basis f

or reversing this determ ination. See Patt e r s on , 90 So. at 3 ; Carter , 941 So. 2d a t 853-54 (¶¶30-34); Anderson , 874 So. 2d at 1006 (¶22); Grant , 7 62 S o. 2d at 8 04 ( ¶¶6, 9); W illiams , 2018 W L 618733, at *2 (¶9). ¶24. In conclusion, w e f ind that there was suf

f icient evidence f

rom which the jury

could f ind that both elem ents of the f elon-in-possession crim e existed bey ond a r easonable doubt.
W e theref ore af f irm Toliver’s conviction and sentence entered by the trial court. ¶25. AFFIRMED. LEE, C.J., I RVING AND GRIFFIS, P.JJ., BARNES, F AIR, W I LSON, G REENLEE AND WESTBROOKS, JJ., C ONCUR. TINDELL, J., CONCURS I N RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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