Bailey v. State


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Docket Number: 2001-KA-01483-COA

Court of Appeals: Opinion Link
Opinion Date: 02-04-2003
Opinion Author: Thomas, J.
Holding: Affirmed

Additional Case Information: Topic: Possession of marijuana - Expert opinion testimony - Lesser included offense instruction - Section 41-29-139(c)(2)(A) - Weight of evidence
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Lee, Myers and Chandler, JJ.
Non Participating Judge(s): Griffis, J.
Concurs in Result Only: Irving, J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 08-23-2001
Appealed from: Coahoma County Circuit Court
Judge: Kenneth L. Thomas
Disposition: POSSESSION OF A CONTROLLED SUBSTANCE (MARIJUANA) - SENTENCED TO SERVE A TERM OF THREE YEARS. THE SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.
Case Number: 2001-0047

  Party Name: Attorney Name:  
Appellant: Thomas Bailey a/k/a Thomas L. Bailey a/k/a Fly




DARNELL FELTON



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE  

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Topic: Possession of marijuana - Expert opinion testimony - Lesser included offense instruction - Section 41-29-139(c)(2)(A) - Weight of evidence

Summary of the Facts: Thomas Bailey was convicted of possession of marijuana and was sentenced to three years. He appeals.

Summary of Opinion Analysis: Issue 1: Expert testimony Bailey argues that the court erred by permitting a police officer to testify that the odor he smelled upon entering the hotel room seemed to be marijuana, because the officer’s ability to identify the odor of the smoke in the room was based upon his experience and training as a police officer which made him an expert in the identification of the odors of burning matter. The test to determine whether the opinion of a witness constitutes expert opinion testimony rather than lay opinion testimony is whether the witness possesses some experience or expertise beyond that of the average, randomly selected adult. Although the officer had the opportunity to smell burning marijuana previously during his police career, this did not make him an expert on burning plant matter. In addition, the testimony was harmless because the substance found in the room proved to be marijuana. Issue 2: Lesser included offense instruction Bailey argues that the court erred in modifying the tendered lesser-included offense instruction which served to constructively amend the indictment. A jury instruction must be supported by the evidence and be a correct statement of the law. Pursuant to section 41-29-139(c)(2)(A), thirty grams or less is defined as simple possession under the statute. Bailey’s instruction allowing a conviction of misdemeanor possession of marijuana if any amount less than 31.6 grams was proven to have been in his possession would not be a correct statement of law, because it would allow the jury to find misdemeanor possession if Bailey was found to be in possession of more than 30 grams but less than 31.6 grams. Issue 3: Weight of evidence Bailey argues that the court erred because the overwhelming weight of the evidence only proved a misdemeanor possession of marijuana since the State's drug identification expert testified that none of the tests she performed on the substance found in Bailey's room would, on their own, conclusively identify the substance as marijuana. However, the expert did testify that all three tests that she performed are a standard methodology used to test marijuana and although each test individually did not give a definitive conclusion, positive results in all three examinations did give conclusive evidence that the substance was marijuana.


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