Facts
In 2019, Agent Clay McCombs of the Mississippi Bureau of Narcotics assisted the Carthage Police Department in an investigation. Christopher Jones was a person of interest in the investigation, and McCombs had known Jones for many years. McCombs learned that there was an active warrant for Jones’s arrest, and he saw Jones and two other males in the parking lot of the Sonic Drive-In on Highway 35 in Carthage.
McCombs turned on his blue lights, parked at the Sonic, and exited his vehicle. He then called to Jones, “Chris, come here. Let me talk to you.” Jones was only a short distance from McCombs at the time. When he saw McCombs, Jones turned toward one of his companions, later identified as Sammy Ford, “and they put their chests together.” McCombs thought he saw Jones hand Ford something but McCombs couldn’t tell exactly what it was because Ford was wearing a big jacket.
McCombs then said again, “Come here, Chris.” At that point, Jones mumbled something to Ford and then handed a yellow can to Ford. McCombs then told Ford to hand over the yellow can, and Ford complied. The can appeared to be an unopened twelve-ounce can of Squirt soda, but McCombs could tell that there was no liquid in it. McCombs had previously encountered fake drink cans, and he knew that he could open the can by twisting the top.
Inside the can, McCombs found plastic baggies containing cocaine and methamphetamine. McCombs then arrested Jones. When he patted down Jones, McCombs found a set of scales in a pocket of Jones’s jacket. McCombs also arrested Ford. When he patted down Ford, McCombs found a pistol in the sleeve of Ford’s jacket.
At trial, Ford testified that Jones handed him the gun and the Squirt can after McCombs called to Jones. Ford stated that the gun and the Squirt can both belonged to Jones. Ford testified that no one had made any promises to him in relation to his testimony against Jones.
Jones testified and denied that either the gun or the drugs belonged to him. Jones testified that McCombs approached him in the Sonic parking lot and asked him to go to the Carthage Police Department for questioning. According to Jones, he agreed to go with McCombs, but Ford started cutting up and hollering at McCombs. Jones claimed that McCombs then searched Ford and found the Squirt can in Ford’s pocket. Jones claimed that Ford then blurted out, “This (the can) ain’t mine. This is his. He (Jones) just gave this to me.”
Jones testified that McCombs then placed Ford under arrest, at which point Ford stated that he had a gun in his jacket. Jones admitted that the Squirt can belonged to him. However, he testified that he had given the can to Ford sometime before they encountered McCombs. Jones also testified that the drugs inside the can were not his and that he had no idea how the drugs ended up inside his can.
At trial, Jones moved to suppress the can and the pistol, arguing that they were the product of an illegal stop and search. However, the trial court ruled that if a stop had occurred, it was lawful based on the active warrant for Jones’s arrest.* (In U.S. Supreme Court case Strieff, they held that the attenuation doctrine applies when an officer makes an unconstitutional investigatory stop; learns during that stop that the suspect is subject to a valid arrest warrant; and proceeds to arrest the suspect and seize incriminating evidence during a search incident to that arrest). In addition, the trial court ruled that Jones lacked standing to object to any search of Ford. He did not appeal these issues.
Jones was convicted of transferring cocaine and transferring methamphetamine and sentenced to eight years. On appeal, he argued that the State failed to prove that he was aware of the contents of the can or that he transferred the can. MCOA affirmed.
Analysis
Citing Berry v. State, 652 So. 2d 745 (Miss. 1995), Jones argues that the State failed to prove that he transferred the Squirt can or any drugs to Ford. Specifically, Jones argues that if he did pass a can to Ford, he did not intend to transfer any possessory interest in the can.
In Berry, a law enforcement officer approached a car parked on the side of the road. Anderson was in the driver’s seat, Berry was in the front passenger’s seat, and Sharkey was in the backseat. The officer saw white stuff that seemed to be crack cocaine on the car’s floorboard, and he arrested all three of the car’s occupants. The officer then searched the glove compartment and found a rock of crack cocaine wrapped inside a napkin.
At trial, Sharkey testified that Anderson had passed Berry the napkin and asked Berry to put it in the glove compartment and that Berry complied. The MSC held that Berry’s momentary handling of the napkin was insufficient to support an inference of dominion and control of the cocaine wrapped inside the napkin.
In contrast to Berry, the issue in this case is not whether there was sufficient evidence that Jones ever possessed the cocaine and methamphetamine hidden in the Squirt can. The conflicting testimonies of Ford and Jones clearly created a jury question on that issue. Rather, Jones’s argument on appeal is that Ford’s momentary handling of the Squirt can was insufficient to show that Ford possessed the drugs—and, hence, insufficient to show that Jones ever transferred the drugs to Ford. However, we agree with the State that the issue in Berry is materially distinguishable from the issue in this case and that there was sufficient evidence that Jones transferred the drugs.
It is a crime for any person knowingly or intentionally to sell, barter, transfer, manufacture, distribute, or dispense a controlled substance. Miss. Code Ann. § 41-29- 139(a)(1) (Rev. 2018) (emphasis added). Under this statute, a transfer does not require proof that money or any other consideration was exchanged. A transfer is simply a change of possession from one person to another.
In Meek, the MSC rejected a similar challenge to the sufficiency of the evidence of a transfer. In that case, Meek was in a serious car wreck and was unable to get out of his car. A good Samaritan (Hemby) arrived and offered help. Meek handed Hemby a shaving kit and asked him to get rid of this.
Hemby could smell marijuana and was suspicious of the contents of the shaving kit, so he immediately handed the kit back to Meek and went to help the driver of the other vehicle. Hemby later saw the same shaving kit lying on the ground twelve to fifteen feet away from Meek’s car. Hemby kicked the kit to a roadside ditch to preserve as evidence for law enforcement officers, who later determined that the kit did contain marijuana.
MSC held that it was clear that Meek transferred the kit to Hemby, even though Hemby immediately returned it to Meek. The shaving kit clearly passed from Meek’s hands to another’s, while Meek had the requisite intent to get this item out of his possession. There is no logical conclusion other than that Meek knew what was in the shaving kit, and he intended to conceal it by getting it out of his hands into the hands of another.
The intent of the recipient is immaterial. All that is required is that Meek, the transferor, have knowledge of the character and presence of the controlled substance and that he intentionally transfer it to another with the intent to part with possession and control. That is exactly what occurred here. Thus, the fact that Hemby only handled the kit momentarily before handing it back to Meek was not even a factor in determining whether there was a transfer in fact.
Likewise in this case, there was sufficient evidence that Jones intended to get the Squirt can and the drugs out of his possession and into Ford’s hands. It was not necessary for the State to prove that Ford planned on keeping the drugs for any particular length of time. The State only needed to show that Jones intended to conceal the Squirt can by getting it out of his hands into the hands of another. Accordingly, as in Meek, there was sufficient evidence for the jury to find that Jones transferred the drugs.
Jones also asserts that there’s no evidence that he was aware of the contents of the can. Jones does not elaborate on this argument. However, as in Meek, the jury could logically infer that Jones was aware of the contents of the Squirt can from the fact that he tried to conceal it by handing it off to Ford. Therefore, this argument is also without merit, and there was sufficient evidence for a rational juror to find Jones guilty of transferring cocaine and methamphetamine.
* The court wasn’t saying it was a bad stop. They were only saying that even if it was a bad stop, it would not matter under Strieff. Strieff applies so long as the officer is acting in good faith.