The Mississippi Court of Appeals has uphold the felony drug conviction of a Brookhaven man.

Larry Phillips Levi Jr. was found guilty in May 2023 of possession of more than 2 but less than 10 grams of methamphetamine with intent to distribute (Count I), and possession of more than 1/10 but less than 2 grams of cocaine with intent to distribute (Count II). He was sentenced to serve eight years in the custody of the Mississippi Department of Corrections for Count I, and a consecutive term of three years with two suspended, one year to serve, and two years of post-release supervision for County II.

Levi filed a motion for judgment notwithstanding the verdict — where the judge overrules the jury’s verdict and enters a different judgment — or a new trial. The motion was denied.

Levi then appealed, arguing the trial court erred in admitting evidence of prior convictions — for possession of cocaine with intent to distribute, simple possession of cocaine, and felony fleeing — and the specifics of his prior sentences.

The Court of Appeals found that the trial court had erred by admitting evidence of Levi’s prior conviction for simple possession, but “the error was harmless.”

“Otherwise, we find no error and therefore affirm,” the higher court’s opinion reads.

In July 2021, Levi had been arrested after Brookhaven Police responded to a report of assault at Brookwood Apartments. After securing Levi, the officer was given permission to search the residence and found a plastic container holding methamphetamine, cocaine, and digital scales, along with a piece of paper and a clear plastic bag that each contained a small amount of meth.

Levi was indicted in October 2022, and prior to his May 2023 trial, filed a motion in limine — “at the start” — to exclude any evidence that he had been convicted of: possession of cocaine with intent to distribute in 2015; sale of cocaine in 2013; sale of cocaine and transfer of marijuana in 2002; and simple possession of cocaine in 1997.

The trial court denied the motion, finding the convictions were admissible to show intent to distribute, and that the defendant had “knowledge of what cocaine is.” In his appeal, Levi expressly acknowledged that his prior convictions for possession with intent were admissible to show intent in the new case. He then argued contradictorily that the conviction should not have been admitted because the amount of cocaine in that offense could have been consistent with “personal use.” The issue was waived on appeal because Levi did not make the argument in the trial court. “Moreover,” the Court of Appeals ruled, “Levi’s argument is essentially a collateral attack on his own prior guilty plea and conviction.” In addition, he had already pleaded guilty to possession of the cocaine with intent to distribute, and not for mere personal use.

Levi also argued that his prior conviction for felony fleeing should not have been considered in a trial on intent to distribute drugs. However, the felony fleeing conviction was not mentioned by Levi in trail court, and Levi raised no objections to the specifics of his other prior sentences. Because he did not object in the trail court, Levi is procedurally barred from raising these issues on appeal.

The Court of Appeals agree with Levi, however, on one issue — that the trial court erred in admitting his 1997 conviction of simple possession of cocaine. A simple possession conviction cannot be used to prove intent to distribute, the Court ruled. Justice Carlton disagreed with this conclusion, and stated such in a separate written opinion.

“Nonetheless, we conclude that the error was harmless in the context of all the evidence properly admitted at trial,” the Appeals Court ruled. “We do not agree with the State that the evidence of Levi’s guilt was necessarily ‘overwhelming.’ … Given that all those [other] convictions were admitted for proper purposes …, it is inconceivable that Levi suffered any marginal undue prejudice because the jury heard that he had also been convicted of simple possession of cocaine in 1997. For this reason, we conclude that the admission of Levi’s conviction for simple possession was harmless.”

Justices Barnes, Lawrence, McCarty and Weddle concurred. Justice Emfinger concurred in part and in the result, without separate written opinion. Carlton concurred in part and in the result with a separate written opinion, joined by Smith and Emfinger. Justices Westbrooks and Simth concurred in result only without separate written opinion. Justice McDonald concurred in part and dissents in part, but without separate written opinion.

Levi, now 48, is serving his sentences of 9 years in MDOC custody at South Mississippi Correctional Institution in Leakesville.