Robert Andy Pinter v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 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 WHICH 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
TWO GRAMS OF METHAMPHETAMINE,
AND SENTENCED AS A HABITUAL
OFFENDER TO THREE YEARS, WITHOUT
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, WITHOUT ELIGIBILITY
FOR PAROLE OR REDUCTION OF
SENTENCE, WITH 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 at least one-tenth of a gram but

less than two grams of methamphetamine, possession of less than thirty grams of marijuana,

and possession of less than 100 dosage units of alprazolam (Xanax) and sentenced to serve

a total of four years in the custody of the Mississippi Department of Corrections (MDOC)

as a habitual offender. On appeal, Pinter argues that (1) his wife’s testimony that he had been

known to use marijuana and methamphetamine rises to the level of plain error or ineffective

assistance of counsel; (2) the trial judge erred in denying his motion to suppress evidence of

the drugs at issue and his alleged statement to police; (3) the evidence is insufficient to

support the conviction or, alternatively, the verdict was against the overwhelming weight of

the evidence; and (4) his sentence as a habitual offender is illegal and plain error.

¶2. We find no error in Pinter’s trial and therefore affirm his convictions. We also hold

that the trial court did not commit plain error by finding that Pinter is a habitual offender.

Therefore, we also affirm Pinter’s sentence as a habitual offender on Count I, possession of

methamphetamine. However, the State concedes error insofar as the trial court sentenced

Pinter as a habitual offender on Count III, possession of alprazolam, a misdemeanor offense

that is outside the scope of the habitual offender statute. Therefore, we remand for

resentencing on Count III only.

FACTS

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¶3. On June 15, 2015, at approximately 10:45 a.m., Sebastopol Chief of Police Daniel

Ogletree was observing traffic on Highway 21 from the parking lot of the Carquest across

from the Piggly Wiggly in Sebastopol. A Nissan Sentra passed by, and Chief Ogletree

observed that its driver was not wearing a seatbelt, so he initiated a traffic stop. Chief

Ogletree approached the vehicle, explained the reason for the stop, and asked the driver for

his license. The driver, Pinter, said that the seatbelt was broken and that his license was

suspended. Pinter gave Chief Ogletree his Mississippi Identification Card. Chief Ogletree

called the Scott County Sheriff’s Department, confirmed that Pinter’s license was suspended,

and also learned that there was an active warrant for Pinter’s arrest. Chief Ogletree then

placed Pinter in handcuffs and under arrest and moved Pinter to the backseat of his patrol car.

¶4. Chief Ogletree then conducted an inventory search of the Sentra. In the trunk, he

found two bags containing a crystal-like substance that was later determined to be

methamphetamine, with a total combined weight of about half a gram; two bags containing

a green leafy substance, later determined to be marijuana, with a total combined weight of

approximately twenty-two grams; and a bag containing twenty-five pills, later determined

to be alprazolam (Xanax). The drugs were on top of a large, open tool bag. Chief Ogletree

testified that he returned to his patrol car and read Pinter his Miranda rights from a card that

Chief Ogletree kept in his wallet. Chief Ogletree testified that Pinter listened and then stated

that he understood his rights. Pinter did not ask for a lawyer or invoke his right to remain

silent. Chief Ogletree showed Pinter the drugs and asked why he had them in the trunk of

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the car. According to Chief Ogletree, Pinter responded that “he liked the way that it made

him feel when he . . . used the drugs.”

¶5. Pinter was indicted for possession of at least one-tenth of a gram but less than two

grams of methamphetamine, possession of less than thirty grams of marijuana, and

possession of less than 100 dosage units of alprazolam. His case proceeded to a jury trial on

June 6, 2016. Chief Ogletree and a forensic scientist from the Mississippi Crime Laboratory

testified for the State.

¶6. After the State rested, Pinter’s wife, Hope Pinter, testified that she and Pinter lived in

a camper on a lot outside of Sebastopol. Hope’s mother and sister and their families also

lived on the lot in a separate camper and trailer. A total of nine adults lived on the lot, and

all had access to and drove the Sentra, which was registered to Hope’s mother. Hope

testified that her sister and her sister’s boyfriend had used the car the night before Pinter’s

arrest and had returned that morning. On cross-examination, Hope acknowledged that Pinter

worked in construction and owned a large bag of tools. Without objection, she also testified

as follows:

Q. Has your husband been known to use weed -- marijuana?

A. Uh-huh.

Q. He does?

A. Uh-huh.

Q. Xanax?

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A. No.

Q. Never seen him use Xanax before?

A. No.

Q. Never, not once?

A. No.

Q. Methamphetamine?

A. Yes, sir.

¶7. Pinter then took the stand in his own defense. Pinter testified that he did not see Chief

Ogletree remove the drugs from the Sentra, and he denied that the drugs belonged to him.

Pinter also denied that he owned a tool bag. He testified that he only owned 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 or that they made him feel good. Pinter testified that the

Sentra belonged to his mother-in-law and that he only used it when he needed it. He testified

on direct examination that he had used marijuana and methamphetamine. On cross-

examination, he also admitted that he had used Xanax in the past. Pinter claimed that he had

“no knowledge” whatsoever as to who owned the drugs at issue in this case.

¶8. The jury found Pinter guilty on all three counts. At Pinter’s sentencing hearing, the

State offered to introduce certified copies of judgments reflecting seven prior felony

convictions: two for grand larceny, three for burglary of a dwelling, and one each for

aggravated assault and escape from a jail. Pinter’s counsel specifically stated that he did not

5
object to the admission of the documents, but the documents were never formally admitted

into evidence. The court then found that Pinter was a habitual offender, see Miss. Code Ann.

§ 99-19-81 (Rev. 2015), and sentenced him to serve a total of four years in MDOC custody,

without eligibility for probation or parole.1 Pinter subsequently filed a motion for a new trial,

which was denied, and a notice of appeal.

ANALYSIS

¶9. As stated at the outset of this opinion, Pinter raises four issues on appeal. We address

these issues, three of which include two sub-issues, below.

I. Pinter’s Prior Drug Use

¶10. Pinter first argues that the admission of his wife’s testimony that he had “been known

to use” marijuana and methamphetamine (see supra ¶6) constitutes plain error or that his

attorney’s failure to object to these questions constitutes ineffective assistance of counsel.

For the reasons that follow, we conclude that the testimony does not rise to the level of plain

error. We decline to address any ineffective assistance claim without prejudice to Pinter’s

right to raise the issue in a properly filed motion for post-conviction relief.

A. Plain Error

1
See Miss. Code Ann. § 41-29-139(c)(1)(B) (Supp. 2016) (providing that simple
possession of more than one-tenth grams but less than two grams of a Schedule I or II
substance other than marijuana is punishable by imprisonment for not more than three years);
id. § 41-29-139(c)(2)(A) (providing that simple possession of less than thirty grams of
marijuana is a misdemeanor punishable by a fine of $100 to $250); id. § 41-29-139(c)(3)(A)
(providing that simple possession of less than 100 dosage units of a Schedule III, IV, or V
substance is a misdemeanor punishable by confinement of not more than one year).

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¶11. Pinter argues that evidence of his prior drug use was inadmissible under Mississippi

Rules of Evidence 404(b) and 403 and that the trial court committed “plain error” by failing

to sua sponte direct Pinter’s wife not to answer questions on the subject. We conclude that

Pinter fails to demonstrate “plain error” for multiple reasons.

¶12. First, “in order to determine if plain error has occurred, we must determine if the trial

court has deviated from a legal rule, whether that error is plain, clear, or obvious, and

whether the error has prejudiced the outcome of the trial.” Green v. State, 183 So. 3d 28, 31

(¶6) (Miss. 2016) (emphasis added; brackets and quotation marks omitted). We recently

addressed a similar claim of “plain error” based on hearsay testimony admitted without a

contemporaneous objection. There, we stated:

No “legal rule” requires a trial judge to exclude hearsay in the absence of an
objection. Trial judges are not expected to strike or exclude hearsay sua
sponte. Whether to object is a decision left to the discretion of counsel, who
may have strategic reasons for not objecting. . . . [A] trial judge [is not
required] to insert herself into the role of counsel and sua sponte raise hearsay
objections on the defendant’s behalf (or risk subsequent reversal based on
“plain error”). Because no “legal rule” requires that of a trial judge, the judge
in this case committed no error—plain or otherwise—by not acting sua sponte
to prevent or strike [hearsay] testimony.

Shaheed v. State, 205 So. 3d 1105, 1112 (¶21) (Miss. Ct. App. 2016).

¶13. The same reasoning applies to testimony about Pinter’s prior drug use. Such

testimony may be admissible depending on its purpose, see M.R.E. 404(b)(2), and whether

to object to it “is a decision left to the discretion of [trial] counsel, who may have strategic

reasons for not objecting.” Shaheed, 205 So. 3d at 1112 (¶21). As such, the trial judge in

7
this case did not deviate from any “legal rule” by not inserting himself into the role of

defense counsel and striking or prohibiting the testimony sua sponte. No error, plain or

otherwise, was committed.

¶14. Moreover, precisely because there was no objection, we cannot say whether Hope’s

testimony might have been elicited for a permissible purpose. Even if there had been a

contemporaneous objection, evidence of Pinter’s prior drug use could have been admitted

for any purpose other than proving his character in order to show that he acted in conformity

therewith. M.R.E. 404(b). “When, as here, a defendant does not physically possess the

illegal drugs, the State must prove constructive possession of the drugs in order to prevail.”

Glidden v. State, 74 So. 3d 342, 345 (¶12) (Miss. 2011). “To support a conviction for

possession of a controlled substance, there must be sufficient facts to warrant a finding that

the defendant was aware of the presence and character of the particular substance and was

intentionally and consciously in possession of it.” Id. (quoting McClellan v. State, 34 So. 3d

548, 553 (¶15) (Miss. 2010)) (emphasis added; quotation marks and brackets omitted). Thus,

for example, it is conceivable that evidence of Pinter’s familiarity with the controlled

substances at issue would have been relevant and admissible to show his awareness of the

character of the contents of the bags, which were readily observable in the trunk of the car.

Therefore, we also cannot say that it “is plain, clear, or obvious” that the evidence would

have been inadmissible, had there been a proper objection. Green, 183 So. 3d at 31 (¶6)

(brackets omitted). This also forecloses any claim of “plain error.” Id.

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¶15. Finally, when Pinter took the stand, his own attorney elicited the same testimony—that

he had used marijuana and methamphetamine in the past. “[A] criminal defendant who fails

to object to evidence introduced by the State may still have the issue reviewed on appeal for

plain error. However, a criminal defendant who affirmatively introduces evidence himself

may not then complain on appeal that he introduced that evidence.” Pascagoula–Gautier

Sch. Dist. v. Bd. of Supervisors of Jackson Cty., 212 So. 3d 742, 750 n.9 (Miss. 2016)

(emphasis added; internal citation omitted); see also Fleming v. State, 604 So. 2d 280, 289

(Miss. 1992) (“It is axiomatic that a defendant cannot complain on appeal concerning

evidence that he himself brought out at trial.”). As noted above, a defendant claiming plain

error must also show that the alleged error “prejudiced the outcome of the trial.” Green, 180

So. 3d at 31 (¶6). Pinter cannot make the requisite showing of prejudice because his own

attorney separately elicited the same testimony.

¶16. For each of the foregoing reasons, Hope’s testimony about Pinter’s prior drug use was

not “plain error.”

B. Ineffective Assistance

¶17. Pinter also argues that his trial counsel provided ineffective assistance by failing to

object to the State’s questions about his prior drug use and then eliciting the same testimony

from him. To prevail on such a claim, a defendant must show not only that counsel’s

performance fell below the minimum constitutional standard of Strickland v. Washington,

466 U.S. 668, 686-88 (1984), but also that counsel’s errors were prejudicial, i.e., “so serious

9
that they deprived the defendant of a fair trial, that being a trial with a reliable result.”

Havard v. State, 928 So. 2d 771, 781 (¶8) (Miss. 2006). “If either prong is not met, the claim

fails.” Id.

¶18. Ordinarily, claims of ineffective assistance should be raised in a motion for post-

conviction relief, not on direct appeal. As this Court has summarized:

It is unusual for this Court to consider a claim of ineffective assistance of
counsel when the claim is made on direct appeal because there is usually
insufficient evidence within the record to evaluate the claim. Because an
appellate court is limited to the trial record on direct appeal, issues of
ineffective assistance of counsel are more appropriate in a motion for post-
conviction relief. We may address such claims on direct appeal only if the
issues are based on facts fully apparent from the record. If the record is not
sufficient to address the claims on direct appeal, the Court should dismiss the
claims without prejudice, preserving the defendant’s right to raise the claims
later in a properly filed motion for 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. denied, 137 S. Ct. 670 (2017) (citations, quotation marks, and

alterations omitted).

¶19. Our Supreme Court has stated that, “[w]ith respect to the overall performance of the

attorney, ‘counsel’s choice of whether or not to file certain motions, call witnesses, ask

certain questions, or make certain objections falls within the ambit of trial strategy’ and

cannot give rise to an ineffective assistance of counsel 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 before us, we do not know whether trial counsel had strategic reasons for not

objecting to the State’s questions to Hope or eliciting the same testimony from Pinter. As

10
noted above, we also do not know whether the State could have articulated a proper purpose

for the questions if an objection had been made. Under these circumstances, consistent with

our usual practice, we decline to address Pinter’s ineffective assistance claim on direct

appeal. Cf. Webb v. State, 113 So. 3d 592, 602 (¶41) (Miss. Ct. App. 2012) (declining to

address a claim of ineffective assistance based on a failure to object to hearsay testimony

because the reasons that counsel did not object were unclear from the record on direct

appeal). We do so without prejudice to Pinter’s right to raise the issue in a motion for post-

conviction relief.2

II. Motion to Suppress

¶20. Pinter next argues that the trial judge committed reversible error by denying his

motion to suppress his confession to Chief Ogletree and the drugs found in the Sentra. Pinter

argues that his confession should have been excluded because the State failed to prove that

the confession was voluntary or obtained in compliance with Miranda v. Arizona, 384 U.S.

436 (1966). He alleges that the warrantless search of the Sentra violated the Fourth

Amendment to the United States Constitution. We address these issues in turn.

A. Miranda

¶21. “The voluntariness of a waiver, or of a confession, is a factual inquiry that must be

determined by the trial judge from the totality of the circumstances.” Houston v. State, 170

So. 3d 542, 545 (¶12) (Miss. Ct. App. 2014) (citing Gavin v. State, 473 So. 2d 952, 954

2
Pinter may not file such a motion in the circuit court until he first obtains permission
from the Mississippi Supreme Court. See Miss. Code Ann. § 99-39-7 (Rev. 2015).

11
(Miss. 1985)). “This Court will not reverse a trial court’s finding that a confession was

voluntary and admissible as long as the trial court applied the correct principles of law, and

the finding is factually supported by the evidence.” Id. (citing Greenlee v. State, 725 So. 2d

816, 825 (¶21) (Miss. 1998)). “Further, where there is conflicting evidence about a

confession’s admissibility, this Court ‘will not disturb the trial court’s finding unless it

appears clearly contrary to the overwhelming weight of the evidence.’” Id. (quoting Wiley

v. State, 465 So. 2d 318, 320 (Miss. 1985)).

¶22. As noted above, Chief Ogletree testified that he read Pinter his Miranda rights, and

Pinter “stated that he did understand” those rights. Pinter denied that this occurred, but the

trial judge obviously found Chief Ogletree’s testimony more credible, and Pinter does not

challenge that credibility determination in this appeal. Rather, Pinter argues that even if he

“stated that he did understand” his rights, that did not amount to a valid waiver of those

rights.

¶23. Pinter’s argument is without merit. In Houston, supra, this Court held that the

defendant’s confession was admissible because he confessed after he was advised of his

Miranda rights and stated “that he understood his rights,” even though he then “refused to

sign [a] Miranda waiver.” Houston, 170 So. 3d at 544, 546 (¶¶5, 13-14). Likewise in this

case, Chief Ogletree testified that Pinter voluntarily confessed after being advised of his

rights and indicating that he understood those rights. Pinter’s confession is not inadmissible

simply because he did not expressly state orally or in writing that he “waived” his right to

12
counsel or his right to remain silent. Odom v. State, 769 So. 2d 189, 196 (¶20) (Miss. Ct.

App. 2000) (“That Odom did not waive his rights in writing is of no consequence since the

lack of a written waiver does not invalidate the waiver.”). As the United States Supreme

Court has explained:

An express written or oral statement of waiver of the right to remain silent or
of the right to counsel is usually strong proof of the validity of that waiver, but
is not inevitably . . . necessary . . . to establish waiver. The question is not one
of form, but rather whether the defendant in fact knowingly and voluntarily
waived the rights delineated in the Miranda case. . . . [M]ere silence is not
enough. That does not mean that the defendant’s silence, coupled with an
understanding of his rights and a course of conduct indicating waiver, may
never support a conclusion that a defendant has waived his rights. . . . [I]n at
least some cases waiver can be clearly inferred from the actions and words of
the person interrogated.

North Carolina v. Butler, 441 U.S. 369, 373 (1979) (emphasis added).

¶24. Consistent with Butler and Houston, the trial judge did not err in finding that Pinter’s

confession was voluntary and admissible. The confession immediately followed Pinter’s

express statement that he understood the Miranda rights that had just been read to him. This

supports the conclusion that Pinter voluntarily waived his rights.

B. Fourth Amendment

¶25. Pinter next argues that the trial judge committed reversible error by denying his

motion to suppress the methamphetamine, marijuana, and Xanax found in the trunk of the

Sentra. The State responds that the search of the car was a valid “inventory search.”

¶26. “In reviewing the denial of a motion to suppress, we must determine whether the trial

court’s findings, considering the totality of the circumstances, are supported by substantial

13
credible evidence.” Gore v. State, 37 So. 3d 1178, 1188 (¶25) (Miss. 2010) (quoting Moore

v. State, 933 So. 2d 910, 914 (¶9) (Miss. 2006)). “Where supported by substantial credible

evidence, this Court shall not disturb those findings.” Moore, 933 So. 2d at 914 (¶9).

“Review of the record is not limited to evidence presented to the trial judge at the

suppression hearing; this Court may look to the entire record to determine whether the trial

judge’s findings are supported by substantial evidence.” Galloway v. State, 122 So. 3d 614,

669 (¶181) (Miss. 2013).

¶27. “It is common practice for the police to conduct an inventory of the contents of

vehicles they have taken into their custody or are about to impound.” 3 Wayne R. LaFave,

Search and Seizure: A Treatise on the Fourth Amendment § 7.4(a) (5th ed. 2010). “Inventory

searches have two purposes: to protect the vehicle and the property in it, and to safeguard the

police or other officers from claims of lost possessions.” United States v. Ducker, 491 F.2d

1190, 1192 (5th Cir. 1974) (quoted in LaFave, supra); accord Black v. State, 418 So. 2d 819,

821 (Miss. 1982). An inventory search may also serve to “protect[] the police from danger.”

Green v. State, 183 So. 3d 78, 82 (¶9) (Miss. Ct. App. 2015), aff’d, 183 So. 3d 28 (Miss.

2016) (quoting United States v. Lage, 183 F.3d 374, 380 (5th Cir. 1999)). Such a search is

reasonable and consistent with the Fourth Amendment when “it is clear that the procedure

used is a valid inventory and is not merely a pretext for a search, whether or not there is some

suspicion that contraband or other evidence may be found.” Ducker, 491 F.3d at1192. Our

“Supreme Court [has] held that ‘it is permissible for officers to conduct an inventory search

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of a vehicle when the circumstances require it to be impounded.’” Logan v. State, 987 So.

2d 1027, 1031 (¶14) (Miss. Ct. App. 2008) (quoting Black, 418 So. 2d at 821) (brackets

omitted). Our Supreme Court has also held that a valid inventory search may extend to the

locked trunk of a car. See Robinson v. State, 418 So. 2d 749, 755-56 (Miss. 1982).

¶28. This Court has also recognized that police may conduct an inventory search “while

the vehicle is still on the highway awaiting towing” and that the search “does not offend

Fourth Amendment principles so long as [it] is made pursuant to standard police procedures

and for the purpose of protecting the car and its contents.” O’Connell v. State, 933 So. 2d

306, 309 (¶10) (Miss. Ct. App. 2005) (quoting United States v. Como, 53 F.3d 87, 92 (5th

Cir. 1995)) (quotation marks omitted). “If there is no showing [that the police acted in] bad

faith or for the sole purpose of investigation, evidence discovered during an inventory search

is admissible.” Id. at (¶11) (quoting United States v. Gallo, 927 F.2d 815, 819 (5th Cir.

1991)). Moreover, “there is no requirement that the prosecution submit evidence of written

procedures for inventory searches; testimony regarding reliance on standardized procedures

is sufficient.” Id. at (¶12) (citing Como, 53 F.3d at 92); see also Florida v. Wells, 495 U.S.

1, 4 (1990) (holding that “an inventory search must not be a ruse for a general rummaging

in order to discover incriminating evidence” but may be carried out based on an “established

routine” of the law enforcement agency).

¶29. On appeal, Pinter does not dispute that he was validly placed under arrest based on

the outstanding warrant for his arrest. Nor does he dispute that the circumstances of his

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arrest required that the car be towed, as there were no other adults in the car with Pinter.3

Because the car was about to be towed, it was not unreasonable and did not violate the Fourth

Amendment for Chief Ogletree to search the vehicle to determine whether it contained any

valuable contents that needed to be safeguarded. Logan, 987 So. 2d at 1031 (¶14). Pinter’s

only argument on appeal is that the inventory search was not “conducted pursuant to

standard, routine police procedures” and was a mere “pretext concealing an investigatory

police motive.” Mitchell v. State, 792 So. 2d 192, 206-07 (¶59) (Miss. 2001).

¶30. We conclude that the trial judge’s finding that the search was a valid inventory search

was supported by the evidence. Chief Ogletree testified that the search was an inventory

search and that its purpose was to determine whether there was anything “valuable inside the

vehicle.” Chief Ogletree also testified that it was his normal practice to conduct an inventory

search when he made an arrest in the course of a traffic stop. As noted above, the State is

not required to introduce proof of written procedures; testimony regarding standard practices

is sufficient. O’Connell, 933 So. 2d at 309 (¶12). Pinter argues that Chief Ogletree only

testified as to his standard procedure and “did not testify that this was the Police

Department’s standardized procedure.” However, this argument ignores that Chief Ogletree

was the chief of police for the town of Sebastopol at the time of the arrest. There is nothing

in the record to suggest that the standard practice of the Sebastopol Chief of Police was not

the standard practice of the Sebastopol Police Department.

3
Only Pinter’s nephew, who was about ten years old, was with him. Chief Ogletree
called another officer to come and get the child.

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¶31. “If there is no showing [that the police acted in] bad faith or for the sole purpose of

investigation, evidence discovered during an inventory search is admissible.” Id. at (¶11)

(quoting Gallo, 927 F.2d at 819). There was no such showing in this case. “[C]onsidering

the totality of the circumstances,” we conclude that the trial judge’s findings “are supported

by substantial credible evidence.” Gore, 37 So. 3d at 1188 (¶25) (quoting Moore, 933 So.

2d at 914 (¶9)).

III. Weight and Sufficiency of the Evidence

¶32. Pinter next argues that he is entitled to a judgment of acquittal or, alternatively, a new

trial because the State presented insufficient evidence to sustain the conviction or,

alternatively, the verdict is against the overwhelming weight of the evidence. Specifically,

Pinter argues that there was insufficient evidence of “incriminating circumstances” to

establish that he had constructive possession of the illegal drugs, especially since he was not

the owner of the Nissan Sentra. The State responds that the evidence—including Pinter’s

own statement to Chief Ogletree and Hope’s testimony that he worked in construction and

owned a tool bag—was more than sufficient to uphold the verdict and conviction.4

¶33. The applicable standards of review are well settled. When the defendant challenges

the sufficiency of the evidence, “the relevant question is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found the

4
The State also argues that Pinter waived his weight-of-the-evidence argument
because his new trial motion was untimely. However, the State acknowledges that Pinter
preserved his challenge to the sufficiency of the evidence. We will consider both of these
closely related issues, notwithstanding the possible procedural bar to one.

17
essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836,

843 (¶16) (Miss. 2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)). The issue

on appeal is not whether we would have found Pinter guilty based on the evidence presented

at trial; rather, his conviction must be affirmed if there was enough evidence for “any rational

trier of fact” to have rendered a guilty verdict. Id. “When reviewing a denial of a motion for

a new trial based on an objection to the weight of the evidence, we will only disturb a verdict

when it is so contrary to the overwhelming weight of the evidence that to allow it to stand

would sanction an unconscionable injustice.” Id. at 844 (¶18). The evidence must be

“[v]iewed in the light most favorable to the verdict,” and we will affirm unless “[t]he trial

court . . . abuse[d] its discretion in denying a new trial[.]” Id. at (¶19).

¶34. Pinter argues that the State was required to present evidence of “incriminating

circumstances” other than mere “physical proximity” in order to convict him on a theory of

“constructive possession” of the drugs at issue. Curry v. State, 249 So. 2d 414, 416 (Miss.

1971). He then argues that his statement to Chief Ogletree is not an “incriminating

circumstance,” reasoning that he only said that “he liked the way that [the drugs] made him

feel” and did not admit to actual ownership or possession of the drugs.

¶35. We disagree. Chief Ogletree testified that he asked Pinter only one question, which

was “why he [(Pinter)] had . . . multiple types of drugs together” (emphasis added). A

rational trier of fact certainly could have interpreted Pinter’s response to the question as a

confession that the drugs belonged to him. In addition, Chief Ogletree testified that the drugs

18
were found at the top of an open bag of tools in the trunk of the car, and Hope testified that

Pinter worked in construction and owned a large tool bag. Thus, the State presented

evidence that a crime was committed and that Pinter effectively confessed to it. This is

sufficient evidence to sustain the verdict. See, e.g., Cotton v. State, 675 So. 2d 308, 313

(Miss. 1996) (explaining that a confession corroborated by “independent proof” of the “body

or substance of the crime” is sufficient to prove guilt beyond a reasonable doubt). For the

same reasons, the verdict was not against the overwhelming weight of the evidence, and the

trial judge did not sanction an injustice or abuse his discretion by denying Pinter’s motion

for a new trial.

IV. Sentence as a Habitual Offender

A. Habitual Offender Status

¶36. Pinter next argues that the trial court erred by sentencing him as a habitual offender

because the State failed to introduce competent evidence to prove his habitual offender

status. Specifically, Pinter argues that although the transcript of the sentencing hearing

reflects that the State offered certified judgments of several felony convictions and sentences,

the documents were not formally admitted into evidence and therefore cannot support his

sentence as a habitual offender under section 99-19-81. Although Pinter did not raise this

issue in the trial court, he argues that the claim is not procedurally barred because the trial

court committed “plain error” and imposed an illegal sentence.

¶37. Pinter relies primarily on Grayer v. State, 120 So. 3d 964, 969 (¶¶16-19) (Miss.

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2013). In Grayer, the Court held that “[t]o sentence a defendant as a habitual offender, all

that is required is that the accused be properly indicted as [a] habitual offender, that the

prosecution prove the prior offenses by competent evidence, and that the defendant be given

a reasonable opportunity to challenge the prosecutor’s proof.” Id. at (¶18) (quotation marks

and brackets omitted). At Grayer’s sentencing hearing, “the State informed the circuit court

that it had certified copies of Grayer’s prior convictions and had provided copies to Grayer

and his counsel,” but the State “failed to place the certified copies into the record or to offer

any evidence to support Grayer’s habitual-offender status, other than a recitation of his prior

felony convictions.” Id. at (¶19). The Supreme Court held that “the State failed to prove

Grayer’s prior convictions by competent evidence” and, therefore, the circuit court

committed “plain error” by sentencing Grayer as a habitual offender. 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 commit plain error by

sentencing Carr as a habitual offender because “the State moved for . . . copies of [Carr’s

prior] convictions to be admitted,” and “Carr did not object.” Carr, 178 So. 3d at 348 (¶11).

Although “the trial court never formally admitted the convictions into the record,” this Court

held that Carr’s sentence as a habitual offender did not rise to the level of “plain error”

5
On writ of certiorari, the Supreme Court “limit[ed] the question on review to
whether [its] decision in [Gowdy v. State, 56 So. 3d 540 (Miss. 2010)] applies retroactively.”
Carr, 178 So. 3d at 321 (¶6) (citing M.R.A.P. 17(h)).

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because the error—the failure to formally admit the documents into evidence—did not

“seriously affect[] the fairness, integrity or public reputation of judicial proceedings.” Id.

(quoting Weems v. State, 63 So. 3d 579, 584 (¶32) (Miss. Ct. App. 2010)). In so holding, we

emphasized that “Carr [did] not take issue with the admissibility or validity of the

convictions, only that the proper procedure was not followed.” Id. at 348-49 (¶12).

¶39. At Pinter’s sentencing hearing, counsel for the State first stated that he had in his

possession and “would submit for the Court’s consideration” “a certified, self-authenticating

copy of the judgment” of conviction for two felonies (grand larceny and burglary of a

dwelling). Counsel recited the cause numbers, dates, and sentences associated with those

convictions. Pinter’s attorney confirmed to the court that he had a copy of the judgment and

that he “accept[ed] this as a certified copy.” The State then stated that it had and “would

submit” a “certified . . . , self-authenticating” copy of a judgment showing three additional

felony convictions (aggravated assault, grand larceny, and escape from jail). Again, the State

provided cause numbers, dates, and sentences for each conviction. Defense counsel

confirmed that he had been provided and had reviewed copies of this judgment as well. The

Court then asked, “So no objection to its admission?” And defense counsel confirmed: “No

objection.” Finally, the State offered that it “would submit” a “certified” and “self-

authenticating” copy of a judgment showing two additional convictions for residential

burglaries. The State again recited cause numbers, dates, and sentences imposed. The trial

judge then asked defense counsel, “No objection?” And defense counsel confirmed, “No

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objection.” The court then sentenced Pinter as a habitual offender, again without objection

by Pinter.

¶40. The State argues that on the specific facts of this case, Grayer is distinguishable, Carr

is controlling, and Pinter’s sentence is not plain error. We agree. In Grayer, counsel for the

State recited Grayer’s prior convictions and stated that he had copies but “failed to place the

certified copies into the record or to offer any evidence to support Grayer’s habitual-offender

status.” Grayer, 120 So. 3d at 969 (¶19) (emphasis added); see also Hull, 174 So. 3d at 901-

02 (¶47) (distinguishing Carr on the ground that “the State made no . . . motion” to admit

certified copies of Hull’s convictions). In contrast, similar to Carr, the transcript of Pinter’s

sentencing hearing shows that the State intended to offer as evidence certified copies of

judgments showing seven prior felony convictions. In addition, Pinter’s attorney specifically

confirmed that he had been provided with and had reviewed the convictions and did not

object to their admission. As in Carr, the fact that the “the trial court never formally

admitted the convictions into the record” was an oversight, Carr, 178 So. 3d at 348 (¶11),

but it was not a “manifest miscarriage of justice.” Walters v. State, 206 So. 3d 524, 530

(¶16) (Miss. 2016) (holding that a court will reverse based on “plain error” only if the “error

. . . resulted in a manifest miscarriage of justice”). Had Pinter raised this issue in the trial

court, the issue could have been addressed quickly and easily, and Pinter would have no

argument on appeal. As in Carr, under these circumstances, we conclude that the oversight

and Pinter’s sentence as a habitual offender do not “seriously affect[] the fairness, integrity

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or public reputation of [the] judicial proceedings.” Carr, 178 So. 3d at 348 (¶11) (quoting

Weems, 63 So. 3d at 584 (¶13)).

B. Habitual Offender Sentence on Count III

¶41. As a final alternative argument, Pinter contends that the trial court committed plain

error by sentencing him as a habitual offender on Count III, possession of alprazolam,

because that offense was only a misdemeanor. See Miss. Code Ann. § 41-29-139(c)(3)(A)

(providing that simple possession of less than 100 dosage units of a Schedule III, IV, or V

controlled substance “is a misdemeanor and publishable by [confinement of] not more than

one . . . year”). The habitual offender statute provides:

Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to separate terms of one (1) year or more in any state
and/or federal penal institution, whether in this state or elsewhere, shall be
sentenced to the maximum term of imprisonment prescribed for such felony,
and such sentence shall not be reduced or suspended nor shall such person be
eligible for parole or probation.

Miss. Code Ann. § 99-19-81 (emphasis added).

¶42. Based on the plain language of the statute, the State concedes that the trial court erred

by sentencing Pinter as a habitual offender on Count III, a misdemeanor offense. We accept

the State’s confession of error, vacate Pinter’s sentence on Count III only, and remand for

the circuit court to sentence him on Count III as a non-habitual offender.

CONCLUSION

¶43. In summary, we hold that the admission of testimony regarding Pinter’s prior drug use

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was not plain error, that the trial judge did not err by denying Pinter’s motion to suppress the

drugs at issue or Pinter’s statement to Chief Ogletree, that there was sufficient evidence to

support the conviction, that the jury’s verdict was not against the weight of the evidence, and

that Pinter’s sentence as a habitual offender on Count I was not plain error or a manifest

miscarriage of justice. Therefore, we affirm Pinter’s convictions and the sentences imposed

on Count I and Count II. However, Pinter should not have been sentenced as a habitual

offender on Count III, a misdemeanor offense. Therefore, we vacate that sentence and

remand for resentencing on Count III only. We also decline to address Pinter’s claim of

ineffective assistance of counsel; we do so without prejudice to his right to raise such a claim

in a properly filed motion for post-conviction relief.

¶44. THE JUDGMENT OF THE SCOTT COUNTY CIRCUIT COURT IS
AFFIRMED IN PART AND VACATED AND REMANDED IN PART. THE
CONVICTIONS OF COUNT I, POSSESSION OF AT LEAST ONE-TENTH BUT
LESS THAN TWO GRAMS OF METHAMPHETAMINE, COUNT II, POSSESSION
OF LESS THAN THIRTY GRAMS OF MARIJUANA, AND COUNT III,
POSSESSION OF LESS THAN 100 DOSAGE UNITS OF ALPRAZOLAM, ARE
AFFIRMED, AND THE SENTENCES FOR COUNTS I AND II OF THREE YEARS
AS A HABITUAL OFFENDER IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITHOUT ELIGIBILITY FOR PAROLE OR
REDUCTION OF SENTENCE, AND TO PAY FINES OF $2,000 AND $250, ARE
AFFIRMED. THE SENTENCE FOR COUNT III IS VACATED, AND THIS CASE
IS REMANDED FOR RESENTENCING ON COUNT III ONLY. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO SCOTT COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.

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