IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-KA-01029-COA ROBERT ANDY PINTER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/06/2016 TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS COURT FROM W HICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER N. AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY T. GERBER NATURE OF THE CASE: CRIMINAL FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, POSSESSION OF AT LEAST ONE-TENTH BUT LESS THAN TW O GRAMS OF METHAMPHETAMINE, AND SENTENCED AS A HABITUAL OFFENDER TO THREE YEARS, W ITHOUT ELIGIBILITY FOR PAROLE OR REDUCTION OF SENTENCE, AND FINED $2,000; COUNT II, POSSESSION OF LESS THAN THIRTY GRAMS OF MARIJUANA, AND FINED $250; AND COUNT III, POSSESSION OF LESS THAN 100 DOSAGE UNITS OF ALPRAZOLAM, AND SENTENCED AS A HABITUAL OFFENDER TO ONE YEAR, W I THOUT ELIGIBILITY FOR PAROLE OR REDUCTION OF SENTENCE, W ITH THE SENTENCE FOR COUNT III TO RUN CONSECUTIVELY TO THE SENTENCE FOR COUNT I, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED IN PART, VACATED AND REMANDED IN PART - 06/06/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

WILSON, J., FOR THE COURT: ¶1. Robert Andy Pinter was convicted of possession of a t l e a st one-tenth of a gram but less t han two gram s of m etham phetam ine, possession of less than thirty gram s o f m arijuana, and p ossession of less than 1 00 dosage units of alprazolam (Xanax) a n d sentenced to serve

a total of f

our y ears i n the custody of the Mississippi Departm ent of Correct i o n s ( MDOC)

as a habitual of

f ender. O n a

ppeal, Pinter argues that ( 1) his wif e’s testim ony that he had been known to u se m arijuana and m etham phetam i ne r ises to t he level of plain error or inef f ective assistance of counsel; (2) the trial judge erred i n deny ing his m otion t o suppress evidence of the drugs at iss u e and his alleged statem e nt to p olice; (3) the evidence is insuf f icient to support the conviction o r , alternatively , the verdict was against the overwhelm ing w eight of the evidence; and (4) his sentence as a habitual of f ender is illegal and plain error. ¶2. W e f

ind no e rror in Pinter’s trial and theref ore af f irm his convictions. W e also h old that the trial court did not c om m it plain e rror by f inding that Pinter is a h a b i t u a l o f f e n d er. Theref ore, we also af

f irm Pinter’s sentence as a h abitual of f ender on Count I, possession of

me t h a m phetam ine. However, the State concedes error insof ar as t he trial court senten c e d Pinter as a habitual o f

f ender on C ount III, possession of alprazolam , a m isdem eanor of f ense tha t i s o u t s i d e the scope of the habitual of f e nder statute. Theref

ore, we rem and f

or resentencing on Count III only

. FACTS

2¶3. On June 15, 2015, at approxim ately 10:45 a.m . , Sebastopol C hief o f P olice Daniel

Ogletree was observing tr a f f ic on Highway 2 1 f

r om t he p arking lot of the Carquest across f rom the Pigg l y W iggly in Sebastopol. A Nissan Sentra passed by , and Chief Ogletree observed that its driver was no t w e a r ing a seatbelt, so he initiated a traf f ic stop. Chief Ogletree approached the vehicle, explained the r eason f or the s top, and asked the driver f or his license. The d

r iver, Pinter, said that the s eatbelt was b r o ken a nd that his license was suspended. Pinter gave C hief Ogletree his Mississippi Identif ication Card. Chief Ogletree called the Scott Coun t

y S h e rif f ’s Departm ent, conf

irm ed that Pinter’s license was suspended, and a lso learned t hat there was an ac t i v e w arrant f or Pinter’s a rrest. Chief Ogletree then placed Pinter in handcuf

f s and under arrest and m oved Pinter to t he b ackseat of his patrol car. ¶4. Chief Ogletree then conducted an inventory search of t h e S e ntra. In the trunk, he f ound two bags containing a c ry stal-like s ubstance that was lat e r determ i ned to be

m etham phetam ine, with a total com bined weight of about half a gram ; two bags containing

a green leaf

y substance, later determ i ned to be m arijuana, with a total com bined weight of approxim a t e l y twenty -two gram s; and a bag c ontaining twenty -f i ve pills, later determ ined

to be alprazolam (Xanax). The d rugs were on t op of a large, open tool bag. Chief Ogletree testif i ed that he returned to his patrol c ar and read Pinter his Miranda rights f rom a card that Chief Ogletree kept in his wallet. Chief Ogletree testif ied that Pinter l istened a n d then stated that he u nders t o o d h i s r i ghts. Pinter did not ask f or a lawy er or i nvoke his right t o rem ain silent. Chief Ogletree showed P inter the drugs and asked why he had them in the trunk of

3the car. According to Chief Ogletree, Pinter responded that “he liked the way that it m ade him f eel when he . . . used the drugs.” ¶5. Pinter was in d i c t e d f o r possession of at least one-tenth of a gram but less than two
gram s of m etham

phetam ine, p ossess i o n o f l ess than t hirty gram s of m arijuana, and possession of less than 100 dosage units of alprazolam

. H is case proceeded t o a j ury trial on June 6, 2016. Chief Ogletree and a f orensic scientist f

r om the Mississippi Crim e Laboratory testif i ed f o r the State. ¶6. Af ter the State r e sted, Pinter’s wif e, Hope Pinter, t estif

ied that she and Pinter lived in

a cam p er on a lot outside of Sebastopol. Hope’s m other and sister a n d th e i r f am ilies also lived on the lot in a separate cam per and trailer. A total o f nine adults l ived on the lot, and all had access to and drove the Sentra, which w a s registered to Hope’s m other. Hope testif i ed that her sister and her s ister’s boy f riend had u sed the car the night bef ore Pinter’s

arrest a nd had returned that m orning. On cross-exam ination, Hope acknowledged that Pinter worked in construction and o wned a large bag of t ools. W ithout objection, she also testif ied as f o llows: Q. Has y our husband been known to use weed -- m arijuana?
A. Uh-huh. Q. He does?
A. Uh-huh. Q. Xanax?

4A. No.

Q. Never seen him

use Xanax bef

ore?
A. No. Q. Never, not once?
A. No. Q. Metham

p hetam i ne?
A. Yes, sir. ¶7. Pinter t hen took the stand in his own def ense. Pinter testif

ied that h e did not see Chief Ogletree rem ove t he drugs f rom the Sentra, and h e denied t h a t t h e d r u g s belonged to him

. Pinter also denied that h e owned a tool bag. He testif ied t hat he only o wned a “ tool apron.” Pinter also denied that Chief Ogletree read him his Miranda rights or that he ever told Chief Ogletree that the drugs were his o r t h at they m ade him f eel good. Pinter testif

i ed that the
Sentra belonged to h is m other-in-law and that he only u sed it when he needed i t. H e testif ied

on direct exam ination t hat he had u s e d marijuana and m etham phetam ine. On crossexam ination, he also adm itted that he had used Xanax in the past. Pinter claim ed t hat he had “no knowledge” whatsoever as to who owned the drugs at issue in this case. ¶8. The jury f

ound Pinter guilty on all three counts. At Pinter’s sentencing h earing, the
State of f ered to introduce c e r t i f

ied copies of j udgm ents ref lecting seven prior f

elony convictions: t w o f

or gran d l a r ceny , three f or b urglary of a dwelling, and one each f or aggravated assault and escape f rom a jail. Pinter’s counsel specif ically stated that h e did not

5object to the adm ission of the docum ents, but the docum ents were never f orm ally adm itted into evidence. The c ourt then f ound that Pinter was a habitual o f f ender, see Miss. Code Ann. § 99-19-81 ( Rev. 2015), a nd sentenced him to serve a total of f our y e ars in M DOC custody , without eligibility f

or probation or parole. 1 Pinter subsequently f iled a m otion f

or a new trial, which was denied, and a notice of appeal.
ANALYSIS ¶9. As stated at the outset o f t his opinion, P inter raises f our issues on appeal. W e address these issues, three of

which include two sub-issues, below.
I. Pinter’s Prior Drug Use ¶10. Pinter f

i rst argues that t he a dm ission of his wif e’s testim ony that he had “been known

to use” m arijuana and m etham phetam ine ( see supra ¶ 6) constitutes p lain error or that his attorney ’s f

ailure to object to the se questions constitutes inef f ective assistance of counsel.
For the reasons t hat f

o llow, we conclude t hat the testim ony does not rise to the level of plain

error. W e decline to address any inef f ective assistance claim

without prejudice to Pinter’s right to raise the issue in a properly f iled m otion f

or post-conviction relief

. A. Plain Error

1 See Miss. C ode Ann. § 41-29-139(c)(1)(B ) ( S u p p . 2016) (providing that sim ple possession o f m o re than one-tenth gram s but less than two gram s of a S chedule I or II substance other t han m arijuana i s punishable by im prisonm ent f

or not m ore than three y ears); id. § 41-29-139(c)(2)(A) (providing that sim p le p o s s ession of less t han thirty gram s of m arijuana is a m isdem eanor p u nishable by a f ine of $100 to $250); id. § 41-29-139(c)(3)(A) (providing t hat sim

ple possession of less than 100 dosage units of a Schedule III, IV, or V substance is a m isdem eanor punishable by conf inem ent of

not m ore than one y ear). 6¶11. Pinter argues that evidence of his prior drug use was inadm issible under Mississippi

Rules of Evidence 404(b) a nd 403 and that the trial court com m i tted “plain error” b y f ailing

to sua sponte direct Pinter’s wif e not to answer questions on the subject. W e conclude that Pinter f ails to dem onstrate “plain error” f or m ultiple reasons. ¶12. First, “in order to determ ine if plain error has occurred, we must determine i f the trial

court has deviated from a legal rule , whether that e r r o r i s p lain, c lear, or obvious, and whether the error has prejudiced the outcom e of the t rial.” Green v. S tate , 183 So. 3d 28, 31 (¶6) (Miss. 2016) (em

phasis a dded; brackets and q u o t ation m a rks om itted). W e recently addressed a sim ilar claim o f “plain error” based on hears ay t estim ony a dm itted without a
contem poraneous objection. There, we stated: No “legal rule” requires a t rial judge to exclude hearsay in the absence of an objection. Trial j udges are not expected to strike or exclude hearsay s ua sponte. W hether t o object is a decision lef t to the discretion of counsel, w ho m ay have s t r a t e gic r easons f or not o bjecting.

. . . [ A] t rial judge [ is not required] to insert herself into the role of counsel and sua s ponte raise hearsay objections on the def

endant’s b e h a lf (or risk s u bsequent reversal based on “plain error”). Because n o “legal rule” requires t hat o f a trial j udge, the judge in this case com m itted no error—plain or otherwise—by not acting sua sponte to prevent or strike [ hearsay ] testim ony . Shaheed v. State , 205 So. 3d 1105, 1112 (¶21) (Miss. Ct. App. 2016). ¶13. The sam e reasoning a pplies to testim ony about P i n t e r ’ s prior drug use. Such testim o ny m ay be adm issible depending o n its p urpose, see M.R.E. 4 04(b)(2), and whether to object to it “is a decision lef t to the discretion of

[ trial] counsel, who m ay have strategic

reasons f or not objecting.” Shaheed , 205 So. 3d at 1 112 (¶21). As such, the trial judge in

7this c ase d id not d e v i a te f rom any “legal rule” by not inserting him self into the role of def ense c o u n s e l a n d striking or prohibiting t he t estim o ny sua sponte. No error, plain or otherwise, was com m itted. ¶14. Moreover, precisely because there was no o bjection, we cannot say whether Hope’s testim o ny m ight have been e l i c i t e d f or a perm i ssible purpose. Even if there had been a
contem poraneous o bject i o n, evidence of Pinter’s prior d rug use could have been adm itted f or a n y purpose other than proving his character i n order to s h ow t hat he acted in conf orm ity therewith. M

. R

. E

. 404(b). “W hen, as here, a d ef endant does n ot phy sically possess the illegal drugs, the State m

ust prove constructive possession of the drugs in order to prevail.” Glidden v. State , 74 So. 3d 342, 345 (¶12) ( M i s s . 2 0 1 1 )

. “To support a conviction f or possession of a controlled substance, there m u st b e s uf f icient f acts to warrant a f

i nding that the def endant was a ware of t he presence and character of the particular substance and was intentionally and consciously in possession o f it.” I d. (quoting M

cClellan v. State , 34 So. 3d 548, 553 (¶15) (Miss. 2010)) (em phasis added; quotation m arks and b rackets om itted). Thus, f or exam p l e , it is conceivable that e vidence of Pinter’s f am iliarity with the controlled

s u b s tances at issue would have been r elevant and adm issible t o s how his awareness of the character of t he c ontents of the bags, which were readily observable i n the trunk of the car. Theref ore, we also cannot say that it “is plain, clear, or obvious ” that the evidence would have been inadm issible, had t here been a proper objection. Green , 1 83 So. 3d at 31 (¶6) (brackets om itted). This also f orecloses any

claim of “plain error.” Id.

8¶15. Finally , when P inter took the stand, his own a t t o r n e y e l i c i t e d t

h e sam e testim ony

—that he had used m a rijuana and m etham phetam ine in t he past. “[ A] crim inal def endant who f

ails

to object to evidence introduced by the State m ay still have the issue reviewed on appeal f or plain error. However, a criminal defendant who affirmatively introduces evidence himself
may not then complain on appeal that he introduced that e vidence .” Pascagoula–Gautier Sch. D ist. v. Bd. of Supervisors o f Jackson Cty. , 2 1 2 S o . 3 d 7 42, 750 n.9 (Miss. 2016) (em phasis added; internal c itation om itted); s ee a lso Fleming v. State , 6 04 So. 2d 280, 289 (Miss. 1992) (“It i s axiom atic th a t a def endant cannot com

plain on appeal concerning evidence t hat he him s elf brought out at trial.”). As noted above, a def endant claim ing plain

error m ust also show t hat the alleged error “prejudiced the outcom e of the trial.” Green , 180 S o. 3d at 31 (¶6). Pinter cannot m ake the r equisite showing of prejudice because his o w n attorney separately

elicited the sam e testim ony . ¶16. For each o f the f

oregoing reasons, Hope’s testim ony about Pinter’s prior drug use was not “plain error.”

B. Ineffective Assistance ¶17. P i n t er also argues t hat his trial counsel provided inef f ective assistance by f

ailing t o object to the State’s questions about his prior drug u se and then e l iciting t he sam e testim ony f rom him

. To prevail on such a claim , a def e ndant m ust show not only t h a t c o unsel’s perf orm ance f

ell below the m inim

um constitutional s tandard of S trickland v
. W

ashington , 466 U.S. 668, 686-88 (1984), b ut a lso that c ounsel’s errors were p rejudicial, i.e., “so serious

9that they deprived t he def endant of a f

air trial, that being a trial with a reliable result.” Havard v. State , 928 So. 2 d 771, 781 (¶8) (Miss. 2006). “If either prong is not m et, the claim f ails.” Id. ¶18. Ordinarily , c lai ms o f i n e f f ective assistance should be raised in a m otion f or postconviction relief

, not on direct appeal. As this Court has sum m arized:
It is unusual f

or this Court to consider a claim of i nef f ectiv e assistance of counsel when the clai m i s m ade on direct appeal because there i s usually insuf f icient e vidence within the r ecord to e v aluate t he claim

. Bec a u s e an appe l l a t e c o urt is lim ited to the t rial record on d irect appeal, i ssues of inef f ective a s s i s t ance of counsel are m ore appropriate i n a m otion f or postconviction relief

. W e m ay address such claim s on d irect appeal only if the issues are based on f

acts f ully apparent f

rom the record. I f t he record is not suf f icient t o address the c laim s on direct appeal, the Court should dism i ss the claim s without prejudice, preserving the def endant’s r ight to raise the claim s later in a properly

f iled m otion f

or post-conviction relief

. Johnson v. State , 191 So. 3d 732, 735-36 (¶13) (Miss. Ct. App. 2015), cert. denied , 202 So. 3d 209 (Miss. 2016), cert. d e n i e d , 137 S. Ct. 670 (2017) (citations, quotation m arks, and alterations om itted). ¶19. Our Suprem e Court has stated that, “[ w]ith respect to the overall perf orm ance of the attorney , ‘counsel’s c hoice o f w h e t h er or not to f ile certain m otions, call w itnesses, ask certain questions, or m ake c ertain objections f a l l s within the am

bit of trial strategy ’ and

cannot give rise to a n inef f ective assistance of c o unsel claim .” Carr v. State , 873 So. 2d 991,
1003 (¶27) (Miss. 2004) (quoting Cole v. State , 666 So. 2d 767, 777 (Miss. 1995)). On the record bef

ore us, w e do n o t know whet h e r trial counsel had strategic reasons f or not objecting to the State’s questions to Hope or e liciting the sam e t est i mo n y f rom Pinter. As

1 0noted above, we also do not k now whether the State could have articulated a p roper purpose f or t he questions if an objection had been m ade. Under these circum stances, consistent with

o u r u sual practice, we d ecline to address Pinter’s inef f ective assistance claim on dir e c t appeal. Cf. W

ebb v. S tate , 113 So. 3d 592, 602 (¶41) (Miss. C t. A pp. 2012) ( d e c l i n ing to address a clai m of i nef

f e ctive assistance based on a f ailure to object t o hearsay testim ony because the reasons that counsel did not object wer e u n c l e a r f r om the record on direct appeal). W e do so without prejudice to Pinter’s right to raise the issue in a m otion f or postconviction relief

. 2
II. Motion to Suppress ¶20. Pinter next a rgues that the trial judge c om m itted reversible error by deny ing his

m otion to suppress his c onf ession t o Chief Ogletree and the d rugs f o und in t he Sentra. Pinter
argues that his conf

ession should have been excluded because t he State f ailed to prove that the conf ession was voluntary or obtained in c om pliance with Miranda v
. Arizona , 384 U.S.
4 3 6 ( 1 9 6 6 )

. He alleges that the warrantless search of the Sentra violated the Fourth
Am endm ent to the United States Constitution. W e address these issues in turn.

A. Miranda ¶21. “The voluntariness of a w a i v e r , o r of a c onf ession, is a f

actual inquiry that m

ust be determ ined by t he trial judge f rom the totality of the circum stances.” Houston v. State , 170 So. 3d 542, 545 (¶12) (Miss. Ct. App. 2014) (citing Gavin v. State , 4 73 So. 2d 952, 954

2 P in ter m ay n o t f

ile su ch a m o tio n in th e circu it c o u rt u n til h e f irst o b tain s p e rm issio n f ro m th e M ississip p i S u p rem e C o u rt. S e e M i ss. C o d e A n n . § 9 9 -3 9 -7 (R ev . 2 0 1 5 ). 1 1(Miss

. 1 9 8 5 )). “This Court will not reverse a trial court’s f inding t hat a conf

ession was voluntary and adm i ssible as long as the trial court applied t he correct principles of law, and the f inding is f actually supported by the evidence.” Id. ( citing Greenlee v. State , 725 So. 2d 816, 825 (¶21) ( M i s s . 1 9 9 8)). “Further, where there i s conf l icting evidence about a conf ession’s adm issibility , this Court ‘will n ot d isturb the trial court’s f indin g u n less it
appears clearly contrary to the overwhelm ing weight of the evidence.’” Id. (quoting W iley
v. State , 465 So. 2d 318, 320 (Miss. 1985)). ¶22. As noted a

bove, Chief

Ogletree testif

ied that he read Pinter his M iranda rights, and Pinter “stated t hat he did understand” those rights. Pinter denied that this occurred, but the trial jud g e obviously f

o und Chief Ogletree’s testim ony m ore credible, a nd Pinter does not challenge that credibility determ i nation in this appeal. Rather, Pinter argues that even if he “stated that he did understand” h i s r i g h t s, that d id not am ount to a valid waiver of those rights. ¶23. Pinter’s argum ent is without m erit. In Houston , supra , t h i s Court held that the def endant’s conf

e ssion was adm iss i b l e b e c a use he conf

essed af ter he was advised of his Miranda rights and stated “that he understood his rights,” even though h e then “ref used to sign [ a] Miranda waiver.” Houston , 170 So. 3d at 544, 546 (¶¶5, 13-14). Likewise in this

case, Chief Ogletree testif ied t hat Pinter v oluntarily conf e s sed a f ter being advised of his rights and indicating that he u nderstood those rights. P inter’s conf ession i s not inadm issible sim ply because h e d id not expressly state o rally or in wr i ting that he “waived” h is right to

1 2counsel or his right to rem ain silent. Odom v. State , 769 So. 2d 189, 196 (¶20) ( M i s s . C t

.

App. 2000) (“That Odom did not waive his rights in w riting i s of no consequence since the lack of a written waiver does not invalidate the w aiver.”). As the United States Supr e me Court has explained:
An express written or o ral statem ent of waiver of the r ight t o r em ain silent or of the right to counsel is usually strong p roof of the v alidity of that waiver, but is not inevitably

. . . necessary
. . . to establish waiver. The question is not one of f orm , b u t rather whether the def endant in f

ac t knowingly and voluntarily waived the rights del i n e a ted in the M iranda case. . . . [ M]ere silence is not enough. T hat doe s n o t m ean that the def endant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver , m ay never support a conclusion that a def endant has waived his rights. . . . [ I]n at least som e cases waiver can be clearly i nf erred f rom the actions a n d words of the person interrogated. North Carolina v. Butler , 441 U.S. 369, 373 (1979) (em phasis added). ¶24. Consistent with B utler and Houston , the t rial judge did not err in f inding t hat Pinter’s

c o nf e ssion was voluntary a nd adm issible. T he conf ession im m ediately f

o llowed Pin t e r ’ s
express statem ent that h e understood the Miranda rights that had just been read t o him

. This supports the conclusion that Pinter voluntarily waived his rights.
B. Fourth Am endm ent ¶25. Pinter next a rgues that the trial judge com m i tted reversible err o r by deny ing his

m otion to suppress the m etham p hetam ine, m a rijuana, a nd Xanax f ound in t h e trunk of the Sentra. The State responds that the search of the car was a valid “inventory search.” ¶26. “In reviewing the d e nial of a m otion to suppress, we m ust determ i ne whether the trial court’s f indings, considering the totality of the circum s tances, are supported b y substantial

1 3credible evidence.” Gore v. State , 37 So. 3d 1178, 1188 (¶25) ( Miss. 2010) (quoting Moore

v. S tate , 933 So. 2d 910, 914 (¶9) (Miss. 2006)). “W here supported by substantial credible evidence, this Court shall not distur b t hose f indings.” Moore , 9 33 So. 2 d at 914 (¶9). “Review of the re c o r d is n o t lim ited to evidence presented to the trial judge at the suppression hearing; this Court m ay look t o the entire r ecord t o determ i ne whether the trial judge’s f indings are supported by substantial evidence.” Galloway v. State , 122 So. 3d 614, 669 (¶181) (Miss. 2013). ¶27. “It is com m on practice f or the police to conduct an i nventory of the contents of vehicles they have t aken into their custody or are a bout to im

pound.” 3 W ay

ne R. LaFave, Search and S

eizure: A Treatise on the Fourth Amendment § 7.4(a) (5th ed. 2010). “Inventory searches have t wo purposes: to protect the vehicle and the p roperty in it, and to saf eguard the police or other of

f icers f rom claim s of lost p ossessions.” United States v
. Ducker , 491 F.2d 1190, 1192 (5th C ir. 1974) (quoted in LaFave, supra ); accord B lack v. State , 418 So. 2d 819,
821 (Miss. 1982). An inventory search m ay a lso serve to “protect[ ] the p olice f rom danger.”
Green v. S

tate , 183 So. 3 d 78, 8 2 (¶9) (Mis s . C t

. App. 2015), aff’d , 183 So. 3d 28 (Miss. 2016) (quoting United S

t ates v. Lage , 183 F .3d 374, 380 (5th Cir. 1999)). Such a search is reasonable and consistent with the Fourth Am endm ent when “it is clear that the procedure used is a valid inventory and is not m erely a pretext f or a s e arch, whether o r not there is som e suspicion that contraband o r other evidence m ay be f ound.” Ducker , 491 F.3d at1192. Our “Suprem e Court [ has] held that ‘it is perm issible f or of f icers to c onduct an inventory search

1 4of a vehicle when the circum stances require it to be im pounded.’” Logan v. State , 987 So. 2d 1 027, 1031 ( ¶14) (Miss. Ct. A pp. 2008) (quoting Black , 4 1 8 S o . 2d at 821) (brackets

om itted). Our Suprem e Court has also held that a valid inventory search m ay extend to the locked trunk of

a car. S ee Robinson v. State , 418 So. 2d 749, 755-56 (Miss. 1982). ¶28. This Court has also recognized that police m ay conduct an inventory search “ w h i l e the vehicle is s t ill on the highway awaiting towing” a n d that t he search “ does not of f end Fourth Am endm ent principles so long as [ it] is m ade p ursuant to standard police procedures and f or t he purpose of protecting the car and its contents.” O’Connell v. State , 933 So. 2d 306, 3 09 ( ¶10) ( Miss. Ct. App. 2005) ( q uoting United Stat e s v
. Como , 53 F.3d 87, 92 (5th Cir. 1995)) (quotation m arks om itted). “If there is no showing [ that the p olice acted in] bad f aith or f or the sole p urpose of i nvestigation, evidence discovered during an inventory search is adm i ssible.” Id. at (¶11) ( q u o t i n g U n ited States v. Gallo , 927 F .2d 815, 819 (5th Cir. 1991)). Moreover, “there is no requirem ent that t he prosecution subm it evidence o f written procedures f

or inventory searches; testim ony regarding reliance o n standardized procedures is suf f icient.” Id. at (¶12) (citing Como , 53 F.3d a t 92); see also Florida v. W ells , 495 U.S. 1, 4 (1990) (holding t hat “an i nventory search m ust not be a ruse f

o r a general rum m aging in order to discover incrim inating evidence” but m ay b e carried out b ased on an “established routine” of

the law enf

orcem ent agency ). ¶29. O n appeal, Pinter does not dispute that he was validly placed u nder arrest b a s e d o n the outst a nding warrant f o r his arrest. Nor d oes he dispute that t he circum stances of his

1 5arrest r equired that the car be towed, as there were no o t h e r a d ults in the car with Pinter. 3

Because the car w as about to be towed, it was not unreasonable a nd d id not violate the Fourth
Am endm ent f

or Chief Ogletree to search the vehicle t o d eterm ine whether i t c ontained any valuable contents that n eeded to be saf eguarded. Logan , 987 So. 2d at 1031 (¶14). Pinter’s only argum ent on appeal is that the inventory se a r c h w a s not “conducted pursuant to

s tandard, routine police procedures” and was a m ere “pretext concealing an invest i g a t o r y police m otive.” Mitchell v. State , 792 So. 2d 192, 206-07 (¶59) (Miss. 2001). ¶30. W e conclude that the trial judge’s f inding that t he search w a s a valid i nventory search

was supported by the e v i d e n c e . Chief Ogletree testif i ed that the search was an i nventory search and that its purpose w as to determ ine whether there was any thing “valuable inside the vehicle.” Chief Ogletree also t estif ied that it was his norm al practice to conduct an i nventory search w hen he m ade a n arrest in t h e c o urse of a traf f ic stop. As noted above, the State is

not required to introduce proof of w ritten p rocedures; testim ony r egarding standard practices is suf f icient. O’Connell , 933 So. 2d at 30 9 (¶12). Pinter argues that Chief Ogletree only testif i ed a s to his standard procedure and “did not testif y t h a t this was the Police Departm ent’s standardized procedure.” However, this argum e nt i gnores that Chief Ogletree

was the chief of police f

or the town of Sebastopol at the tim e of the arrest. There is nothing in the r ecord to suggest that the standard practice of the Sebastopol Chief of Police was not the standard practice of

the Sebastopol Police Departm ent.

3 O n l y P in ter’s n ep h ew , w h o w as ab o u t t en y ears o l d , w as w ith h im

. Chief O g letree called an o th er o f

f icer to co m e an d g et th e ch ild

. 1 6¶31. “ If there i s no showing [ that the p olice acted in] bad f aith o r f or the s ole purpose of investigation, e vidence discovered during a n inventory search is adm i ssible.” Id. at (¶11) (quoting Gallo , 927 F.2d at 819). There was no such showing in this case. “[ C]onsidering the totality of the circum stances,” we c onclude that the trial j udge’s f i ndings “are supported by substantial credible evidence.” Gore , 37 So. 3d at 1 188 (¶25) (quoting Moore , 933 So. 2d at 914 (¶9)).
III. Weight and Sufficiency of the Evidence ¶32. Pinter next argues t hat h e is entitled to a judgm ent of acquittal or, alternatively , a new
t r ial because the State p resented insuf f i cient evidence to sustain the c onviction o r , alternatively , the verdict is against the overwhelm i ng weight of the evidence. Specif ically , Pinter argues that there was insuf f icie n t evidence of “incrim i nating circum stances” to establish that he had c onstructive possession of the illegal drugs, especially since he was not the owner of the Nissan S entra. T he State responds that the evidence—including Pinter’s

own statem ent to Chief

Ogletree and Hope’s testim ony that he worked in construction and owned a tool bag—was m ore than suf f icient to uphold the verdict and conviction. 4 ¶33. The applicable standards of review a r e well s ettled. W hen the def endant challenges the suf f iciency of the evidence, “the relevant question i s whether, af ter viewing the evidence in t he light m ost f

avorable to the p rosecution, any rational trier of f act could have f

ound the

4 T h e S tate also arg u e s th at P i n ter w a i v e d h i s w eig h t-o f

- th e-ev id en ce arg u m en t b e c a u se h is n ew trial m o tio n w as u n tim e ly

. H o w ev er, th e S tate ack n o w led g es th at P in ter p reserv e d h is ch allen g e to th e su f f icien cy o f th e ev id en ce. We w ill co n sid er b o th o f th ese clo sely related issu es, n o tw ith stan d in g th e p o ssib le p ro ced u r al b ar to o n e. 1 7essential elem ents of the crim e bey ond a reasonable doubt.” Bush v. State , 895 So. 2d 836,

843 (¶16) (Miss. 2 005) (quoting J ackson v. Virginia , 4 43 U.S. 307, 315 (1979)). The issue

on appeal is not whether w e w ould have f ound Pinter guilty based on the e vidence presented

at trial; rather, h i s conviction m ust be a f f irm ed if t here was enough evidence f or “any rational trier of f act” to have rendered a guilty verdict. I d. “W hen reviewing a denial of a m otion f or

a new trial based on an o bjection to the weight of the e vidence, we will only disturb a verdict when it is so contrary t o the overwhelm ing weight o f the evidence that t o a l l ow it to stand

w o uld sanction an unconscionable injustice.” Id. at 844 (¶18). The evidence m ust b e “[ v]iewed in the light m ost f avorable to the v erdict,” and w e w i ll af f irm unless “[ t]he trial court . . . abuse[ d] its discretion in deny ing a new trial[ .]” Id. at (¶19). ¶34. Pinter argues t h a t t h e State was required t o p resent evidence of “incrim inating circum stances” other than m ere “phy sical proxim ity ” in order to convict him on a theory of “constructive possession” of the drugs a t issue. C urry v. S tate , 249 So. 2d 414, 416 (Miss. 1971). He then argues that his statem ent t o Chief Ogletr e e is not an “incrim inating circum stance,” r easoning t hat he only said that “he liked the way that [ the drugs] m ade h im f eel” and did not adm it to actual ownership or possession of the drugs. ¶35. W e disagree. Chief Ogletree testif ied that he asked Pinter o nly one question, which

was “why he [ (Pinter)] had

. . . m ultiple ty p es o f d r u g s t o g e t h er” (em phasis added). A rational trier of f

act certainly could have i n t e r p r e t ed Pinter’s response to the question a s a conf ession that the drugs belonged to him

. In addition, Chief Ogletree testif ied that the drugs

1 8were f

ound at the top of an open bag of tools in the t runk o f the car, and H ope testif ied that Pinter wo r k e d i n c onstruction and owned a l arge tool bag. Thus, the State presented

e v i d e n ce that a crim e was com m itted and that Pinter e f f ectively conf

e ssed to it. This i s suf f i cien t evidence to s ustain the verdict. See, e.g. , Cotton v. S tate , 6 75 So. 2d 308, 313 (Miss. 1996) ( explaining that a c onf ession corroborated by “independent proof ” of the “body

or substance of the crim e” is suf f icient to p rove guilt bey ond a reasonable doubt). For the

sam e reasons, the verdict was not against the overwhelm ing weight of the e v idence, and the trial judge did not s a n c t i o n a n injustice or a b use his discretion by deny ing P inter’s m otion f or a new trial.
IV. Sentence as a Habitual Offender A. Habitual Offender Status ¶36. Pinter n ext a rgues t hat the trial court erred b y s entencing h im as a habitual of f ender because the State f

ailed to introduce com

petent evidence t o p rove his h a b i t u a l of f ender

status. Specif

ically , Pinter argues th at although the t ranscript o f the sentencing hearing ref lects that the State of

f ered certif ied jud g m e n t s o f s e veral f

elony convictions and sentences, the docum ents w ere not f orm ally adm itted into evidence a n d t h e r e f ore cannot support his

sentence as a habitual of

f ender under section 99-19-81. A lthough P inter did no t r a ise this issue in t he trial court, he a rgues that the claim i s not procedurally barred because the trial

court com m itted “plain error” and im posed an illegal sentence. ¶37. Pinter relies prim arily o n Grayer v. State , 120 So. 3d 9 6 4 , 9 6 9 ( ¶¶16-19) (Miss.

1 92013). In Grayer , the Court held that “[ t]o sentence a def endant as a habitual of

f ender, all that is r equired is that the accused be properly i n d i c t e d a s [ a] habitual of f ender, that the prosecution prove t he prior of f enses by c om

petent evidence, and that the d ef e n dant be given

a reasonable opportunity to challenge t he prosecutor’s p roof .” Id. at (¶18) (quotation m arks and brackets om itted). At G ray e r’s sentencing hearing, “the State inf o rm e d t he c i rcuit court that it had certif

i ed copies of Gray er’s prior convictions and h ad provided c o pies to Gray er and his counsel,” but the State “f ailed to place the certif

ied copies into the record or to of f er
any evidence t o support Gray er’s h abitual-of f ender status, other than a r ecitation of his prior f elony c onvictions.” Id. at (¶19). T h e Suprem e Court held that “the State f ailed to prove Gray er’s prior convictions by c om petent evidence” a n d, theref ore, the circuit court

c o mmi t t e d “plain error” by sentencing G ray er as a habitual of f ender. Id. ; accord Hull v
. State , 174 So. 3d 887, 900-02 (¶¶41-48) (Miss. Ct. App. 2015). ¶38. However, in Carr v. State , 178 So. 3d 344 (Miss. Ct. App. 2014), aff’d , 178 So. 3d
320 (Miss. 2015), 5 this Court held that the trial judge did not com m it plain error by sentencing Carr as a h abit u a l o f f e n d e r b ecause “ t he State m oved f or . . . copies of [ Carr’s prior] convictions to b e adm i tted,” and “Carr did n ot object.” Carr , 178 So. 3 d at 348 (¶11). Although “the trial c ourt never f orm ally adm itted the convictions into the record,” t his Court held t hat C arr’s sentence as a h abitual of f ender did not r ise to t h e l e v e l of “plain error”

5 O n w ri t o f c ertio rari, th e S u p rem e C o u rt “lim it[ e d ] th e q u estio n o n rev iew to w h eth er [ its] d ecisio n i n [ G o w d y v. S ta te , 5 6 S o . 3 d 5 4 0 ( M iss. 2 0 1 0 )] a p p lies retro activ ely .” C a rr , 1 7 8 S o . 3 d at 3 2 1 (¶6 ) (citin g M .R .A .P . 1 7 (h )). 2 0because the error—th e f a i l u r e to f

orm ally adm it the docum ents into e vidence—did not

“ s e r i o u s l y af

f ect[ ] the f airness, integrity or public reputation o f judicial p roceedings.” Id. (quoting W

eems v. S tate , 63 So. 3d 579, 584 (¶32) (Miss. C t. A pp. 2010)). In so holding, we

em phasized that “ C a r r [ d i d ] n o t take issue with the adm issibility or validity of the convictions, only

that the proper procedure was not f ollowed.” Id. at 348-49 (¶12). ¶39. A t Pinter’s s e ntenci ng hearing, c ounsel f or the State f

i rst stated t hat he had in his possession and “would subm it f or t he Court’s consideration” “a certif ied, self -authenticating

c o p y of the judgm ent” o f conviction f or two f elonies (grand larceny and burglary o f a dwelling). Counsel r e c i t e d t he cause num bers, dates, and sentences a ssociated with those convictions. Pinter’s attorney conf irm ed to the court that he had a copy of the judgm ent and that he “accept[ ed] this a s a certif ied copy .” The S t a t e t h e n s t a t e d that it had and “would subm it” a “certif

ied . . . , self

-authenticating” copy of a judgm ent showing three additional f elony c o nvictions (aggravated assault, grand larceny , a n d escape f rom jail). Again, the State
p r o v i ded cause num

bers, dates, and sentences f or e a ch c o nviction. Def ense counsel conf irm ed that he had been provided and had reviewed copies of this judgm ent a s well. The
Court then asked, “So no objection to its adm ission? ” And def ense counsel conf

i rm ed: “No objection.” Finally , the State of f ered that it “would s u b mi t ” a “certif ied” and “self

authent i cating” copy o f a judgm ent showing two additional convictions f or residential burglaries. The State again recited cause num bers, dates, and sentences im posed. The trial judge t he n asked d e f

ense c ounsel, “No objection? ” And def ense counsel conf

irm ed, “No

2 1objection.” The court then sentenced Pinter as a habitual of f ender, again without objection by Pinter. ¶40. The State argues that on the specif ic f acts o f t his case, Grayer is distinguishable, Carr is controlling, and Pinter’s sentence is not plain error. W e agree. In Grayer , counsel f or the
State recited Gray er’s prior convictions and s tated that he had copies but “f a iled to place the certif i ed c opies into the record or to offer any evidence t o support Gray e r ’s habitual-of f ender
status.” Grayer , 120 So. 3d at 969 (¶19) (em phasis added); see also H

ull , 174 So. 3d at 901-
0 2 (¶47) (distinguishing Carr on the ground that “the State m ade n o . . . m otion” to ad mi t certif i ed copies of Hull’s convictions). In contrast, sim ilar to Carr , the transcript o f Pinter’s sentencin g h e a r i n g s hows that the State intended to of f e r as evidence certif

ied copies of judgm ents showing seven p rior f elony convictions. In addition, Pinter’s attorney s pecif ically

c o n f irm ed that h e h ad been provided with and had r eviewed the convictions and did not object to their admission

. As in Carr , the f act t hat the “the tr i a l c o u r t n ever f orm ally admi t t e d the c onvictions into the record” w as an oversight, Carr , 178 S o. 3d at 348 (¶11), but it w as not a “m anif

est m iscarriage of j ustice.” W alters v. S

tate , 2 06 So. 3d 524, 530 (¶16) (Miss. 2016) (holding that a court will reverse based on “plain error” only if the “error

. . . resulted in a m anif

e s t mi scarriage of justice”). Had Pinter raised this issue i n the trial court, the issue could have been addressed quickl y a nd easily , and Pinter would have no
argum ent on appeal. As in Carr , under t hese circum stances, we conclude that t he oversight and Pinter’s sentence as a habitual of f ender d o not “seriously af f e ct[ ] the f airness, integrity

2 2or public reputation of [ t he] judicial proceedings.” C arr , 178 So. 3d at 348 (¶11) (quoting
W eems , 63 So. 3d at 584 (¶13)).

B. Habitual Offender Sentence on Count III ¶41. As a f

inal alternative argum ent, Pinter contends that the trial court com m itted plain

error b y sentencing him as a habitual of f ender on C o u nt III, possession of alprazolam , because that of

f ense was only a m isdem eanor. See M iss. C ode Ann. § 41-29-139(c)(3)(A) (providing t hat sim

ple possession of less than 100 dosage units of a Schedule III, IV, or V controlled substance “is a m isdem eanor and publishable by [ conf inem ent o f

] not m ore than
one . . . y ear”). The habitual of f ender statute provides: Every p erson convicted in this state of a felony who shall have b een c onvicted twice previously of a n y f e lony or f

ederal crim e upon charges separately brought and arising out of separate incidents at dif f erent t im es a nd who shall have been sentenced to separate t e r ms o f o n e ( 1) y e ar or m ore in any state and/or f ede r a l p e n a l institution, whether in this state or e lsewhere, shall be sentenced to the m axim

um term of im prisonm e n t p rescribed f

or such felony , and such sentence shall not be reduced o r suspended nor shall s u ch person be eligible f or parole or probation. Miss. Code Ann. § 99-19-81 (em phasis added). ¶42. Based o n the plain language of the statute, the S tate concedes that the trial court erred by sentencing Pinter as a habitual of f ender on C o unt III, a m isdem e a nor of f e n se. W e accept the State’s conf

ession of e r r o r , vacate Pinter’s s entence o n C ount III only , and rem and f or the circuit court to sentence him on Count III as a non-habitual of f ender.
CONCLUSION ¶43. In s um m a ry , we hold that the adm ission of testim ony regarding Pinter’s prior drug use

2 3was n ot plain error, that the trial judge did not err by deny ing Pinter’s m otion to suppress the

drugs at issue or Pinter’s statem ent to Chief Ogletree, t hat there was suf f i cient evidence to support the conviction, that the j ury ’s verdict was not against t he weight o f the evidence, and that Pinter’s sentence as a habitual of f ender on C oun t I w a s n o t p lain error or a m anif est

m iscarriage of justice. Theref ore, we a f f irm Pinter’s c o nvictions and the sentences im posed

on C ount I and Count II. H owever, Pinter s h ould no t have been sentenced as a habitual

o f f e n d er on Count III, a m isdem eanor of f ense. Theref

ore, we vacate that s entence a n d

rem and f or resentencing on Count III only

. W e also decline to ad d r e ss Pinter’s claim of inef f ective assistance of c ounsel; we d o so without prejudice t o his r ight to raise s uch a claim in a properly

f iled m otion f

or post-conviction relief

. ¶44. THE JUDGMENT O F THE SCOTT C O U N T Y CIRCUIT COURT IS A F F I RMED IN PART A ND VACATED AND REMANDED IN P ART. T H E CONV I C TIONS OF COUNT I, POSSESSION OF AT LEAST ONE-TENTH BUT LESS THAN TWO GRAMS OF METHAMPHETAMINE, COUNT II, POSSESSION OF LESS THAN THIRT Y G R A M S OF MARIJUANA, AND COUNT III, POSSESSION OF LESS T HAN 100 DOSAGE U NITS O F A L P RAZ O LAM, ARE AFFIRMED, AND T HE SENTENCES FOR COUNTS I AND II OF THREE YEARS AS A HABITUAL O F F E N D ER IN THE CUSTODY OF THE MISSISSIPPI D E P A R T M E N T O F C O R R E C T I ONS, WITHOUT ELIGIBILITY F O R P A R O L E O R REDUCTION OF S ENTENCE, AND TO P A Y FINES OF $2,000 AND $250, A RE AFFIRMED. THE SENTENCE FOR COUNT III IS VACATED, AND THIS CASE IS REMANDED FOR R ESENTENCING ON COUNT I II O N L Y . ALL C OSTS OF THIS APPEAL ARE ASSESSED TO SCOTT COUNTY. LEE, C . J . , I R

V I N G A N D G R I F F I S , P . J J . , B A R N E S , I SHEE, CARLTON, FAIR, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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