Spann v. State
| Docket Number: | 2006-KA-01117-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 12-06-2007 Opinion Author: Diaz, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Sale of controlled substance - Amendment of indictment - Sufficiency of evidence - Admissibility of testimony - M.R.E. 608(b) - M.R.E. 616 - Lesser-included offense instruction Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Carlson, Graves, Dickinson, Randolph and Lamar, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 06-29-2006 Appealed from: Rankin County Circuit Court Judge: Samac Richardson Disposition: Conviction of sale of cocaine, a Schedule II Controlled Substance, and sentence of thirty (30) years in the custody of the Mississippi Department of Corrections, with fifteen (15) years to serve and five (5) years on post-release supervision, with conditions. District Attorney: David Byrd Clark Case Number: 16345 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Stella Spann |
Wesly T. Evans |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: STEPHANIE BRELAND WOOD | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Sale of controlled substance - Amendment of indictment - Sufficiency of evidence - Admissibility of testimony - M.R.E. 608(b) - M.R.E. 616 - Lesser-included offense instruction |
| Summary of the Facts: | Stella Spann was convicted of selling a controlled substance and sentenced to thirty years, with fifteen years to serve and five years supervised probation. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Amendment of indictment Spann argues that the court erred in allowing the State to amend the indictment to charge her as a habitual offender. Since Spann was not sentenced as a habitual offender, this issue is moot. Issue 2: Sufficiency of evidence Spann argues that, at most, the evidence could only support a conviction for possession. Any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an aider and abettor and is equally guilty with the principal offender. It is uncontradicted that Spann had possession of the crack cocaine, that she handed the drugs to another person, who then gave them to the informant, and that she asked the informant if she could have a “drop” for “going through all that trouble.” Because she substantially and knowingly participated in the sale, it does not matter that she did not personally hand the drugs to the informant or receive any compensation. Issue 3: Admissibility of testimony Spann argues that the court committed reversible error by refusing to allow testimony from a defense witness that she had previously consumed drugs with the informant and the defendant. She argues that the evidence was admissible under M.R.E. 608(b) and 616. Rule 608(b) clearly states that specific instances of conduct “may not be proved by extrinsic evidence.” The witness’s testimony was extrinsic evidence of prior conduct, which is prohibited under this rule. Defense counsel cross-examined the informant about his prior drug use with the defendant, and the informant denied the prior conduct. Spann’s argument regarding Rule 616 was not raised at trial. Issue 4: Lesser-included offense instruction Spann argues that she was entitled to a jury instruction setting forth the lesser-included offense of possession. To be entitled to a lesser-included offense instruction, Spann must point to evidence from which a jury could reasonably find her not guilty of selling a controlled substance and at the same time find her guilty of possession. Spann argues that the jury could have found her guilty of possession because she momentarily possessed the drugs. However, the mere fact that one must possess a controlled substance before they can sell it is not enough to require a lesser included offense instruction. Moreover, the evidence can warrant only a conviction for aiding and abetting the sale of a controlled substance. The evidence shows that Spann substantially and knowingly participated in the sale, and no reasonable juror could have found that Spann merely possessed the crack cocaine. |
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