Facts
Deputy Leonard Bentz of the Harrison County Sheriffs Department went to the W.A. Ladner Apartments in Gulfport and spoke with Natasha Porter in response to a domestic violence call. Porter said that she and her boyfriend, David Mitchell, had been involved in an altercation and that Mitchell was on the other side of the vehicle which was parked on the side of the house.
While Porter and Bentz were talking, Sergeant Mark Hoskins, who also responded to the call, arrived at Porter’s duplex. Hoskins testified that as he was pulling into the driveway of the duplex, he saw Mitchell duck down beside a parked car. While Hoskins distracted Mitchell, Bentz went around to the other side of the parked car and took Mitchell into custody for domestic violence.
Hoskins spotted a spare tire a short distance from where Mitchell was arrested, shined his flashlight in the direction of the tire and noticed something that was not a part of the tire. He lifted the tire and found a bag containing 7.1 grams of cocaine formed to resemble one-half of a homemade cookie. Mitchell, at the time of his arrest, had been in the process of changing his tires which had been cut by Porter.
Mitchell had two prior convictions in 1986: one for possession of a controlled substance with intent to distribute and one for sale of a controlled substance. Officer Ricardo Dedeaux’s testimony was that Mitchell admitted ownership of the cocaine shortly after Mitchell was taken in to custody.
Mitchell was convicted of possession of cocaine with intent to distribute and sentenced as a habitual offender to 30 years. Mitchell argued he was not in constructive possession and that the amount did not constitute intent to distribute. MCOA affirmed the constructive possession but agreed with Mitchell that the amount did not constitute intent to distribute and reversed.
Analysis
A. Constructive possession
MSC in Curry v. State, 249 So. 2d 414 (Miss. 1971), provided the following guidance on possession of contraband:
There must be sufficient facts to warrant a finding that defendant was aware of the presence and character of the particular substance and was intentionally and consciously in possession of it. It need not be actual physical possession. Constructive possession may be shown by establishing dominion or control. Proximity is usually an essential element, but by itself is not adequate in the absence of other incriminating circumstances. However, when contraband is found on premises which are not owned by a defendant, mere physical proximity to the contraband does not, in itself, show constructive possession.
The cocaine was found under the spare tire which Mitchell had taken out of the trunk of his car. As Hoskins drove into the driveway of Porter’s duplex, he saw someone duck behind a vehicle in the parking lot of the residence where Bentz was located. Hoskins immediately confronted this individual who turned out to be Mitchell.
At that time, Hoskins did not see any other people in the area. Hoskins testified that Mitchell was right beside the tire when he first saw Mitchell and that Mitchell had to walk around the tire to arrive at the location where he was taken into custody. He also testified that the spare tire was within a five foot radius or a little more of Mitchell.
In our case, we also had the testimony of Dedeaux that Mitchell admitted possession of the cocaine. Thus, constructive possession was not found based on proximity alone.
B. Intent to distribute
B1. Amount of rocks
The amount of cocaine found under the tire was 7.1 grams or .2485 percent of an ounce. Accepting Dedeaux’s testimony — that the State crime lab considers a rock to be one half of a gram — as true, Mitchell could have cut the half cocaine cookie into approximately 14 rocks.
The MSC has held in Bryant v State, 427 So. 2d 131 (Miss. 1983), that where the controlled substance is in an amount which a person could reasonably hold for personal use, other evidence must be adduced to support a conviction of possession with intent to distribute or sell. Slightly less than one fourth of an ounce of cocaine is consistent with personal use.
In Murray v. State, 642 So. 2d 921 (Miss. 1994), the MSC found that possession of 15 rocks of cocaine, along with $515 in small denominations, were not sufficient to support a conviction of possession with intent to deliver. In Smith v. State, 656 So. 2d 95 (Miss. 1995), MSC said that 16 pieces of cocaine were found insufficient to sustain a conviction of possession with intent to distribute.
Since the actual weight of the 15 pieces in Murray and the 16 pieces in Smith is not given, we are unable to compare the weight of the cocaine in those cases to the weight of the cocaine here. However, we see no reason to conclude that what the state crime lab considers to be a rock is different from what is actually sold as a rock on the streets.
B2. Priors
Mitchell argues that his two prior convictions occurring in 1986, almost ten years prior to the date of the commission of the crime here and more than eleven years prior to the trial, were inadmissible.
MSC said in Smith that evidence of prior sales is admissible to show or prove intent to distribute. What is not well settled or clear is whether there is a time limit with respect to how old the prior conviction may be. We are unwilling at this time to place a time limit on the age of the prior conviction evidence because in our opinion the admissibility of the prior conviction evidence is not outcome determinative in this case.
The question in this case then boils down to this: may a conviction for possession with intent to distribute stand where the only evidence supporting the conviction is (1) evidence of possession of an amount of contraband consistent with personal use and (2) evidence of prior sales of contraband? We are of the opinion that the Smith court unequivocally answers the question in the negative.
In Smith, police served an arrest warrant on Charles E. Smith as a result of a large-scale “round-up.” After his arrest, he was searched and found to be in possession of a vial containing 16 pieces of crack cocaine. In 1989, Smith had sold the officer cocaine on two occasions while the officer was working undercover. The Smith court reversed Smith’s conviction for possession with intent to distribute, finding that (a) Smith’s possession of cocaine was unremarkable in either quantity or circumstance, (b) the amount involved (16 pieces) was no more than could be expected for personal use, and (c) the prior-sales evidence was insufficient to sustain the conviction.
In this case, the amount of cocaine was unremarkable in quantity or circumstances. The amount here is also less, 14 pieces if cut into .5 gram twenties or pieces, while in Smith there were 16 pieces. In Smith, the prior sales were two years or less previous to the present possession, while here the prior sales convictions are nine years previous to the present possession and more than eleven years prior to the present trial.
We are compelled to conclude that the evidence offered here to prove intent to distribute is just as deficient as was the evidence in Smith. However, we do find the evidence sufficient to support a conviction for possession of cocaine. Consequently, we reverse and remand for re-sentencing on possession, as that charge is a lesser-included offense of the charge of possession with intent to distribute. Of course, Mitchell may still be sentenced as a habitual offender.