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IN THE COURT OF APPEALS 04/23/96 OF THE STATE OF MISSISSIPPI
NO. 95-KA-00153 COA HENRY DAVIS A/K/A HENRY LEE DAVIS APPELLANT v. STATE OF MISSISSIPPI APPELLEE

PER CURIAM AFFIRMANCE MEMORANDUM OPINION

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. ROBERT W. BAILEY COURT FROM WHICH APPEALED: CIRCUIT COURT OF LAUDERDALE COUNTY ATTORNEY FOR APPELLANT: ROGERS J. DRUHET, III ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS DISTRICT ATTORNEYS: DAN ANGERO AND DAVE HARBOUR NATURE OF THE CASE: CRIMINAL: POSSESSION OF MORE THAN ONE OUNCE OF MARIJUANA TRIAL COURT DISPOSITION: CONVICTED BY JURY AND SENTENCED TO SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN

HABITUAL OFFENDER

BEFORE THOMAS, P.J., KING, AND PAYNE, JJ. PER CURIAM: Henry Davis was convicted in the Circuit Court of Lauderdale County for the crime of possession of more than one ounce of marijuana and sentenced to six years in the custody of the Mississippi Department of Corrections as an habitual offender. Feeling aggrieved, counsel for Davis appeals raising no issues, but requesting that this Court "review the transcription in order to determine whether the verdict is consisted [sic] with the evidence, and also sua sponte determine whether a clear reversible error occurred." Finding no error, we affirm. STATEMENT OF THE FACTS While executing a search warrant for Davis' home seeking a firearm in the warrant, the police discovered more than an ounce of marijuana in a bedroom closet in Davis' home. Davis, who had been arrested, was not present during the search. The two police officers who participated in the search testified at trial regarding the discovery of nineteen plastic baggies of marijuana in a shoe box top which was at eye level on a shelf in Davis' bedroom closet. The parties stipulated that the 163.2 grams of marijuana were found prior to the discovery of a weapon as a result of a valid search warrant of Davis' home. Counsel for Davis certifies that pursuant to Killingsworth v. State, 490 So. 2d 849 (Miss. 1986), he has provided Davis with a copy of his brief and advised Davis of his right to raise additional issues on appeal. Nothing in the record before this Court indicates that Davis has provided any issues on appeal. DISCUSSION This was a circumstantial evidence case. The jury was required to determine whether Davis had constructive possession of the marijuana found in the closet of his home. The stipulations of the parties along with the testimony of the police officers clearly established ample evidence upon which the jury could find Davis guilty. Killingsworth v. State requires that in order to protect the full rights of the accused, where counsel regards the appeal without merit, "he may with honor state such to the Court" and present the accused "a copy of the representation counsel has made to the Court and be furnished a reasonable opportunity to file his [the accused's] own comments and raise any additional points that [the accused] chooses." Killingsworth v. State, 490 So. 2d 849, 851 (Miss. 1986). Counsel for Davis has complied with Killingsworth while protecting the rights of Davis. After a careful review of the record, we find no reversible error and accordingly, we affirm. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY OF CONVICTION OF POSSESSION OF MORE THAN ONE OUNCE OF MARIJUANA AND

SENTENCE OF SIX YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO LAUDERDALE COUNTY.

FRAISER, C.J., BRIDGES AND THOMAS, P.JJ., BARBER, COLEMAN, DIAZ, KING, McMILLIN, PAYNE, AND SOUTHWICK, JJ., CONCUR.

The two police officers who participated in the search testified at trial. Detective Kirk Merchant of the Meridian Police Department testified that the home searched was that of Henry Lee Davis. Detective Merchant testified that he first discovered the marijuana as he opened the closet door in the bedroom of Davis' home. Detective Merchant testified that the nineteen separate plastic baggies of marijuana were found in a shoe box top at eye level where "You couldn't have missed it." Officer Joseph Boswell testified that the shelf of the closet was "just above eye level" and that he observed a shoe box lid with plastic baggies.



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