author: COBB, Presiding Justice,

text:
    Anderson CURRY a/k/a Anderson Curry, II v. STATE of Mississippi.
    No. 2004-KA-01868-SCT.
    Supreme Court of Mississippi.
    Aug. 17, 2006.
    Rehearing Denied Oct. 26, 2006.

      Johnnie E. Walls, Jr., Greenville, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
    Before COBB, P.J., EASLEY and DICKINSON, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. Anderson Curry was indicted by a Bolivar County grand jury for burglary of a dwelling, kidnaping, and aggravated assault. A total of four jury trials were conducted because the jury was unable to come to a unanimous verdict in the first three. At the fourth trial, Curry was acquitted on the burglary and kidnaping counts, but found guilty on the charge of aggravated assault. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections.

FACTS

¶ 2. Around 11:30 p.m. on a rainy December evening in 2001, Stephanie Cum-mins returned to her home after visiting with her fiancé at his residence. As she entered her apartment, a man grabbed her from behind and placed a knife to her neck, using a towel to keep her from screaming, and duct tape in an effort to restrain her. The assailant, later identified as Anderson Curry, stabbed her an estimated 30 times in the back and flank area of her body. Cummins was severely injured from this attack, and there were blood stains on the couch, table, floors, and walls.

¶ 3. After the attack, Cummins told Curry she was thirsty and Curry took a bottled fruit drink and poured some of it into her mouth. When he left the room, she managed to get up and run ¿>ut of the apartment to a friend’s home. She was then transported to the hospital in very serious condition.

¶ 4. A few days after the attack, while she was still medicated, Cummins talked with Investigator Charles Bingham and gave a vague description of the assailant as between five-ten and six feet tall and slim. At trial, Cummins testified that she believed the attacker was a tall black male who wore some kind of military camouflage jacket with a hood, wore dark baggy pants with shiny tennis shoes, and had two diamond stud earrings pinned on his white ribbed t-shirt near his belly button. She further testified that she had never seen Curry before.

¶ 5. When presented with a voice tape, Cummins was able to pick out Curry based on his voice. She also pointed to Curry’s image in a photo lineup, but was less than certain as to whether he was her assailant. Subsequently a warrant was issued to search Curry’s house, where the police found clothing, a knife, shoes and other things that the perpetrator had allegedly worn or used during the attack on Cum-mins. Subsequent to the search, Curry was arrested.

¶ 6. At trial six witnesses testified in support of Curry’s alibi. Ade Barfield testified that on the day of the attack, around 10:30 p.m. or 11:00 p.m., she and Curry went to the residence of Ketrick and Keir Haywood, where they stayed until 3:00 a.m. Barfield further testified that Curry was there the whole time. Keir Haywood, Devonna Hutton, Tervarius Montgomery, Ketrick Haywood, and Anwar Fletcher also testified they were present at the Haywood’s residence and confirmed Curry’s story that he was there around the same time Cummins was attacked.

¶ 7. After three jury trials that each resulted in a hung jury, a fourth jury convicted Curry for aggravated assault, but not for burglary of a dwelling or kid-naping. The trial court denied Curry’s motion for a judgment notwithstanding the verdict and/or a new trial. On appeal, Curry raises three issues: denial of his motions related to the DNA report; prosecu-torial misconduct during closing argument; and denial of J.N.O.V. Finding no reversible error, we affirm.

ANALYSIS

I. MOTIONS REGARDING DNA REPORT

¶ 8. The standard of review for a trial court’s ruling on a discovery violation is abuse of discretion. Montgomery v. State, 891 So.2d 179, 182 (Miss.2004). Further, this Court has stated not all failures to disclose exculpatory evidence constitute reversible error. Carr v. State, 873 So.2d 991, 999-1000 (Miss.2004). The question to be asked regarding a discovery violation is whether there is a reasonable probability that the verdict would have been different but for the governmental evidentiary suppression which undermines confidence in the outcome of the trial. Stephens v. State, 911 So.2d 424, 440 (Miss.2005) (quoting Kyles v. Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

¶ 9. Curry argues the State’s failure to disclose the September 18, 2003, DNA report until the first day of the fourth trial on June 7, 2004, was prejudicial. He asserts that the trial judge’s denial of his motions for a continuance and/or a mistrial, was an abuse of discretion. Specifically, Curry contends the State violated Rule 9.04 of the Uniform Circuit and County Court Rules, and this violation deprived him of a valuable defense. The rule states in relevant part:

A .... the prosecution must disclose to each defendant or to defendant’s attorney ... the following [evidence] which is in possession, custody, or control of the State ... the existence of which is known or by exercise of due diligence may become known to the prosecution:
4. Any reports, statements, or opinions of experts, written, recorded or otherwise preserved, made in connection with the particular case.
6. Any exculpatory material concerning the defendant.
E. Both the state and the defendant have a duty to timely supplement discovery. If, subsequent to compliance with these rules or orders pursuant thereto, a party discovers additional material or information which is subject to disclosure, that party shall promptly notify the other party or the other party’s attorney of the existence of such additional material, and if the additional material or information is discovered during trial, the court shall also be notified.
I. If at anytime prior to trial it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such a party to permit the discovery of material and information not previously disclosed, grant a continuance, or enter suah order as it deems just under the circumstances.

U.C.C.C.R. 9.04. Curry argues the DNA report was exculpatory because it indicated the blood found on the knife recovered from Curry’s residence was his, not Cum-mins’s.

¶ 10. The trial judge, in accordance with the discretion granted him in U.C.C.C.R. 9.04, denied Curry’s motions because the Reliagene report contained no new information, because Curry already possessed the exact same information from the Mississippi Crime Lab. The evidence was reanalyzed by Reliagene because the prosecution hoped for a more detailed analysis. However, that did not happen. According to Curry, had he possessed the Reliagene report he would have called the Reliagene analyst to the stand. He was not interested in calling the Mississippi Crime Lab analyst, preferring to call Re-liagene because it is an private entity, separate from the State of Mississippi. Since the information in the report was duplicative, we decline to find reversible error on this issue. We do, however, caution prosecutors that when they choose not to disclose such evidence, they do so at their own peril. The final determination as to what constitutes exculpatory evidence is made by the court, not the prosecutor. In a situation such as this, there is no good reason why the new report was not given to the defendant, pursuant to Rule 9.04 E.

¶ 11. Curry’s attorney questioned Officer Bingham about the Mississippi Crime Lab and Reliagene test results, and the jury heard Bingham say the tests revealed that the knife found at Curry’s residence did not have Cummins blood on it. Even though the Reliagene report itself was not admitted into evidence, the substance of its conclusion was before the jury. Curry failed to show he was prejudiced by not possessing the Reliagene report until the first day of the fourth trial, and the trial judge did not abuse his discretion by denying Curry’s motion for a new trial and motion for a continuance.

¶ 12. In Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), the United States Supreme Court said “[w]e now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution”. Id. at 87, 83 S.Ct. 1194 (emphasis added). Curry did make a discovery request to the State for all reports, but the Reliagene evidence was immaterial because Curry already possessed precisely the same information. Therefore, the Brady rule has not been violated in this case. We find Curry’s first assignment of error without merit.

II. ALLEGED PROSECUTORIAL MISCONDUCT

¶ 13. The standard of review that applies to lawyer misconduct during opening statements or closing arguments is whether the natural and probable effect of the improper argument is to create unjust prejudice against the accused so as to result in a decision influenced by the prejudice so created. Sheppard v. State, 777 So.2d 659, 661 (Miss.2000). When making this determination, the statement should be viewed in context, taking into consideration the circumstances of the case. Hag-gerty v. Foster, 838 So.2d 948, 962 (Miss.2002). This Court must also be mindful of the fact that the trial court is in the best position to determine whether irreparable harm resulted from the allegedly improper statement. Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 727 (Miss.2001).

¶ 14. Curry finds error in the following statement made by the prosecutor in closing:

And Mr. Walls said to you that Ms. Cummins’s identification, that doesn’t have to be a possibility but it has to be beyond a reasonable doubt. And I submit to you, ladies and gentlemen, that that’s not so. We have to prove to you—
BY MR. WALLS: Your Honor, I object.
BY MS. MITCHELL: — The entire case beyond a reasonable doubt.
BY THE COURT: Overruled
BY MR. WALLS: Your honor, I want to be heard. I mean—
BY THE COURT: Stop the time.
BY MR. WALLS: You gave the jury an instruction that says that identification has to be beyond a reasonable doubt. And she’s telling the jury^-
BY THE COURT: You’ve made— you’ve noted for the record, Mr. Walls.
BY MR. WALLS: I move for a mistrial.
BY THE COURT: Overruled.

Curry says this statement was in clear contradiction of jury instruction D-7, which states:

As' with each element of the crimes charged, the State has the burden of proving identity beyond a reasonable doubt, and before you may convict Anderson Curry you must be satisfied beyond a reasonable doubt of the accuracy of, the identification of Anderson Curry. If, after considering all the evidence concerning the crimes charged and the identification of Anderson Curry by Stephanie Cummins as the person who committed the crimes charged, you are not convinced beyond a reasonable doubt that he is the person who committed the crimes charged, then you must find him not guilty of the crimes charged.

Curry points out that the prosecution was present through the instruction conference and therefore should have known that the statement made in closing was legally incorrect. Further, he argues that his case was prejudiced by this comment because it caused the jury to be confused, leading to an illogical verdict. Curry also says the prejudice to his case was compounded by the fact that identification is a pivotal issue in this case, especially considering there were three hung juries before this one.

¶ 15. The State counters by arguing that the statement in closing was a correct statement of law; specifically, that the State had to prove all the elements of the crime beyond a reasonable doubt, as shown by the prosecutor’s very next sentence, to which Curry objected. In addition, the State points out that the jury had written and oral instructions from the court explaining that counsel’s argument in closing should not be weighed as evidence. The State argues that the judge’s conclusion that the statement was not error, and this Court should affirm.

¶ 16. Although the prosecutor’s statement was inartfully worded, it was not reversible error. It appears that either he simply mis-spoke, or that he meant to say Cummins’s identification of Curry did not have to be separately proven, beyond a reasonable doubt. The D-7 instruction is broader because it instructs the jury that “[i]f, after examining all of the testimony and the evidence, you have a reasonable doubt that Anderson Curry was the person who committed the crimes charged, then you must find Anderson Curry not guilty of the crimes charged.” This includes, but is not limited to, Cummins’s testimony. Hence, the prosecutor’s argument was not error, especially considering the wide latitude given to attorneys in their closing arguments. Netherland v. State, 909 So.2d 716, 718 (Miss.2005). We note that Curry’s attorney clearly addressed this issue in his closing statement, saying “... [Cummins] never said, ‘That is the man.’ She said, ‘That could be a possibility.’ Possibility doesn’t mean beyond a reasonable doubt, ladies and gentlemen.” Therefore, even if the prosecutor’s statement was incorrect, the jury was fully informed of the requirement regarding identification.

¶ 17. Curry’s argument that the prosecutor’s statement confused the jury is without also merit because jury instruction D-7 clearly laid out the burden of proof for identification in this case, and the law presumes the jury is competent and follows the instructions they are given. Shoemaker v. State, 502 So.2d 1193, 1195 (Miss.1987). Therefore, this issue is without merit.

III. DENIAL OF JUDGMENT NOTWITHSTANDING THE VERDICT

¶ 18. The standard of review for the trial court’s denial of a motion for judgment notwithstanding the verdict is sufficiency of the evidence. Bush v. State, 895 So.2d 836, 842-45 (Miss.2005). With regard to the sufficiency of the evidence, this Court must ask whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. The proper remedy for a verdict based on insufficient evidence is for this Court to reverse and render. Id.

¶ 19. Curry claims that because the crimes of burglary, kidnaping, and aggravated assault in this case are so intricately intertwined with the identity of the same perpetrator, the jury’s finding that Curry was not guilty of burglary and kidnaping, while finding him guilty of aggravated assault, is illogical and inconsistent. Thus, Curry argues, the trial court erred by denying his motion for J.N.O.Y. Citing Holloman v. State, 656 So.2d 1134 (Miss.1995), and United States v. Powell, 469 U.S. 57, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984), Curry suggests this Court can reverse and render if the verdicts are illogical and contradictory, without regard to additional evidence. The State argues that the jury verdict should be affirmed because there is sufficient evidence in the record to support it. We agree with the State.

¶20. The illogical and inconsistent argument is largely resolved by Powell, 469 U.S. 57, 105 S.Ct. 471, in which the United States Supreme Court said:

inconsistent verdicts ... should not necessarily be interpreted as a windfall to the Government at the defendant’s expense. It is equally possible that the jury, convinced of guilt, properly reached its conclusion on the compound offense, and then through mistake, compromise, or lenity, arrived at an inconsistent conclusion on the lesser offense. But in such situations the Government has no recourse if it wishes to correct the jury’s error; the Government is precluded from appealing or otherwise upsetting such an acquittal by the Constitution’s Double Jeopardy Clause.
Inconsistent verdicts therefore present a situation where “error,” in the sense that the jury has not followed the court’s instructions, most certainly has occurred, but it is unclear whose ox has been gored. Given this uncertainty, and the fact that the Government is precluded from challenging the acquittal, it is hardly satisfactory to allow the defendant to receive a new trial on the conviction as a matter of course.
... there is no reason to vacate respondent’s conviction merely because the verdicts cannot rationally be reconciled. Respondent is given the benefit of her acquittal on the counts on which she was acquitted, and it is neither irrational nor illogical to require her to accept the burden of conviction on the counts on which the jury convicted.

469 U.S. at 65, 69, 105 S.Ct. 471 (citations omitted). See also Wooten v. State, 513 So.2d 1251 (Miss.1987). This Court has adopted the rule that review of the sufficiency of the evidence is adequate protection from jury error or irrationality. Holloman v. State, 656 So.2d 1134, 1141 (Miss.1995). Because reviewing the sufficiency of the evidence provides enough protection against an arbitrary verdict, we need not address specific legal issues pertaining to the interplay of burglary, kidnaping, and aggravated assault in this case. Suffice it to say that certain elements necessary to prove the crime of burglary, or the crime of kidnaping, are clearly different than those necessary to prove the crime of aggravated assault.

¶21. The most probative evidence of Curry’s guilt was the testimony that Curry’s fingerprints were found on the juice bottle at the scene of the crime. This Court has said “[w]hile fingerprint evidence alone ... will not suffice to support a conviction, fingerprint evidence, coupled with evidence of other circumstances tending to reasonably exclude the hypothesis that the print was impressed at a time other than that of the crime, will.” Wooten v. State, 513 So.2d 1251, 1252 (Miss.1987). Clearly there are circumstances in this case that logically exclude the hypothesis that the print was impressed at another time. First, Cummins testified that she asked Curry for a drink of juice she had just purchased from the store and he poured it into her mouth. Curry’s fingerprint was the only discernable print found on that juice bottle. Second, Cummins said she had not seen Curry before. Therefore, if Curry did not in fact commit the crime it is hard to imagine a likely scenario that would explain why his prints would be the only discernable prints on the juice bottle in Cummins’s apartment. When looking at these circumstances together, the evidence is sufficient to sustain the verdict under the Wooten standard.

¶ 22. The record contains the following additional evidence probative of Curry’s guilt: (1) after conducting a search of Curry’s residence, the police found clothes, a knife, shoes and other things that the perpetrator had allegedly worn or used during the attack; (2) when presented with a voice tape, Cummins was able to identify Curry; and (3) when presented with a photo lineup, albeit without certainty, Cummins pointed only to Curry’s picture.

¶ 23. Based on the fingerprint evidence, and the additional evidence, we hold that a rational juror could have found Curry guilty of aggravated assault beyond a reasonable doubt. Curry did provide testimony of an alibi, but the jury must have found it unpersuasive. Determining the credibility of witness testimony is squarely within the province of the fact-finder. Groseclose v. State, 440 So.2d 297, 300-01 (Miss.1983). Therefore, Curry’s final assignment of error is without merit.

CONCLUSION

¶ 24. We conclude that Curry’s arguments are without merit, and we affirm the judgment and sentence of the Bolivar County Circuit Court.

¶ 25. CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVE TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., NOT PARTICIPATING.

      . After the second trial, the State sent the knife and camouflage jacket found in Curry’s home to be retested for DNA by Reliagene Technologies. The third trial occurred before the results were complete.

      . The law pertaining to discovery violations espoused in Box v. State, 437 So.2d 19, 23-26 (Miss.1983), is now reflected in U.C.C.C.R. 9.04. See Kolberg v. State, 829 So.2d 29, 53 (Miss.2002).

      . We are mindful that the prosecutor actually said the State had "to prove to you the entire case beyond a reasonable doubt” but we see this as a distinction without a difference, in the context it was used.


source: Caselaw Access Project

license: Public Domain

text:
    Ricky PALMER v. STATE of Mississippi.
    No. 2005-KA-00497-SCT.
    Supreme Court of Mississippi.
    Oct. 12, 2006.

      William P. Knight, Jr., attorney for appellant.
    Office of the Attorney General, by Jose Benjamin Simo John R. Young, attorney for appellee.
    Before COBB, P.J., CARLSON and GRAVES, JJ.
   COBB, Presiding Justice,

for the Court.

¶ 1. Ricky Palmer appeals from his convictions in the Pontotoc County Circuit Court on two counts of sale of methadone and one count of sale of morphine, both schedule II controlled substances. On appeal Palmer argues that the trial court erred by allowing testimony regarding previous narcotics dealings and by not giving a limiting instruction to the jury, sua sponte, as to the use of such testimony. As neither of these arguments are persuasive, we affirm Palmer’s convictions and sentences.

FACTS

¶ 2. In June 2003 Palmer on two occasions sold schedule II narcotics to Teresa Abbott who was acting as a confidential informant for the Pontotoc County Sheriffs Department. Palmer was arrested in November 2003 during a large scale drug bust of individuals under investigation by the sheriffs department. He was indicted in November 2003 and later tried and convicted on all three counts. For these crimes Palmer was ordered to serve three consecutive sentences, each sentence was 30 years with 20 years suspended.

¶ 3. Prior to trial Palmer filed a motion in limine to exclude testimony that he had previously engaged in transactions involving schedule II narcotics. The trial court held a hearing on the motion and denied it, stating:

It is I believe relevant in the State’s case demonstrating that he had such items in his possession and coupled with other evidence which the State presumably will present demonstrates that he not only had them but the evidence is, what I think it might be, it would demonstrate that he did in fact do that. So it’s all part of one transaction or the res gestae.
As to any consideration of prejudicial versus probative value, I consider it to be probative to the extent that any supposed prejudice is outweighed by the probative value of this evidence....

¶ 4. At trial the State called Regina Monts, who at the time was serving an eight-year sentence after pleading guilty to possession of methadone and hydrocodone, and she identified Palmer as a man she knew because of previous “business dealings” between the two. Monts testified that during the summer of 2003 Palmer on at least four occasions purchased, for resale, quantities of methadone and morphine from her. She testified that while Palmer was not her only customer that he was a regular customer.

¶ 5. Palmer did not deny that he purchased and used drugs. His defense was that Abbott, the confidential informant, who was paid “real good money” by law enforcement to buy drugs, actually tricked the narcotics officers into thinking that she was buying drugs from him and others, when actually she did not. Thus, Palmer contends that he was not guilty of selling drugs.

¶ 6. The State presented its case through the testimony of Kevin Rodgers, a criminal investigator for the North Mississippi Narcotics Unit, Monts and Abbott, and Mike Doss, the narcotics investigator for the Pontotoc Police Department. It closed with showing the video of the buy from Palmer. The defense rested without calling any witnesses.

ANALYSIS

¶ 7. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Jones v. State, 904 So.2d 149, 152 (Miss.2005). The admissibility of evidence rests within the discretion of the trial court, and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs. Clemons v. State, 732 So.2d 883, 887 (Miss.1999).

¶ 8. Palmer first asserts that the trial court abused its discretion in denying his motion in limine and allowing Monts to testify regarding previous narcotics sales between them. The general rule is that evidence of a crime, other than the one for which the accused is being tried, is not admissible. Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995) (citing Duplantis v. State, 644 So.2d 1235, 1246 (Miss.1994)). However, there are exceptions to this general rule as provided by Miss. R. Evid. 404(b):

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to shpw that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

This Court has consistently held the admission of evidence of unrelated crimes for the purpose of showing the accused acted in conformity therewith is reversible error, but admission for the above reasons is permissible. Ballenger, 667 So.2d at 1256.

¶ 9. Evidence of other crimes or bad acts is also admissible in order to tell the complete story so as not to confuse the jury. In Brown v. State, 483 So.2d 328, 330 (Miss.1986), this Court said the State has a “legitimate interest in telling a rational and coherent story of what happened.” Where substantially necessary to present to the jury “the complete story of the crime”, evidence or testimony may be given even though it may reveal or suggest other crimes. Simmons v. State, 813 So.2d 710, 716 (Miss.2002); Ballenger, 667 So.2d at 1257. In the case of drug sales, this Court has specifically affirmed the admission of evidence of prior involvement in the drug trade to prove intent to distribute. Swington v. State, 742 So.2d 1106, 1111 (Miss.1999); Holland v. State, 656 So.2d 1192, 1195 (Miss.1995).

¶ 10. In the present ease it is clear that the trial court admitted the testimony for the purposes of proving intent, motive and in completing the story of the charged crime. See Simmons, 813 So.2d at 716. Therefore, it cannot be said that the trial court abused its discretion in admitting the evidence. Even though the testimony passed muster under Miss. R. Evid. 404(b) it still must be admissible under the ultimate filter of Miss. R. Evid. 403, meaning that the risk of undue prejudice cannot substantially outweigh the probative value. Ballenger, 667 So.2d at 1257.

¶ 11. This Court has held that whenever Miss. R. Evid. 404(b) evidence is offered and there is an objection which is overruled, the objection shall be deemed an invocation of the right to a Miss. R. Evid. 403 balancing analysis. Brown v. State, 890 So.2d 901, 912 (Miss.2004). Rule 403 provides for the exclusion of evidence, even if relevant, where the risk of undue prejudice outweighs its probative value. Simmons, 813 So.2d at 716. Palmer asserts that the trial court’s balancing was “incomprehensible at best.” However, after reviewing the record it is clear that the trial court weighed the evidences’ probative value against the potential for undue prejudice. Therefore, we find Palmer’s first issue is without merit.

¶ 12. Palmer next asserts that the trial court erred in failing to sua sponte give a limiting instruction to the jury regarding the value of Monts’s testimony. In support Palmer cites Smith v. State, 656 So.2d 95, 100 (Miss.1995), in which this Court first announced the requirement that a limiting instruction must be given to the jury when Miss. R. Evid. 404(b) evidence is given. Smith, 656 So.2d at 97. However, this Court revisited the Smith decision and overruled it prior to Palmer’s trial. Brown, 890 So.2d at 913. Palmer’s case was tried on December 2-3, 2004, after Brown was handed down on September 2, 2004, the motion for rehearing denied November 4, 2004 and the mandate issued November 12, 2004. Therefore, at Palmer’s trial Brown was clearly controlling.

¶ 13. In Brown this Court stated:

The burden should properly be upon the trial counsel to request a limiting instruction. This was our rule before Smith, in accord with Rule 105 of the Mississippi Rules of Evidence. The rule provides in pertinent part that “[w]hen evidence which is admissible ... for one purpose but not admissible ... for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly”

Id. (emphasis in original). Therefore, the burden now rests on trial counsel, not the trial court, to request a limiting instruction for Miss. R. Evid. 404(b) evidence. In the present case trial counsel did not affirmatively present a jury instruction regarding Monts’s testimony to the trial court. Therefore, the trial judge cannot be found in error for not giving this instruction.

CONCLUSION

¶ 14. The trial court did not err in denying Palmer’s motion in limine or in failing to give a limiting jury instruction not presented to it. As a result, Palmer’s appeal is without merit, and we affirm his convictions and sentences.

¶ 15. COUNT I: CONVICTION OF SALE OF METHADONE AND SENTENCE OF THIRTY (30) YEARS, WITH TWENTY (20) YEARS OF SAID SENTENCE BEING SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT I SHALL RUN CONSECUTIVELY WITH THE SENTENCES IN COUNTS II AND III. COUNT II: CONVICTION OF SALE OF MORPHINE AND SENTENCE OF THIRTY (30) YEARS, WITH TWENTY (20) YEARS OF SAID SENTENCE BEING SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH THE SENTENCES IN COUNTS I AND III. COUNT III: CONVICTION OF SALE OF METHADONE AND SENTENCE OF THIRTY (30) YEARS, WITH TWENTY (20) YEARS OF SAID SENTENCE BEING SUSPENDED, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT III SHALL RUN CONSECUTIVELY WITH THE SENTENCES IN COUNTS I AND II.

SMITH, C.J., WALLER, P.J., DIAZ, EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.


author: EASLEY, Justice,

text:
    Michael TOWNSEND v. STATE of Mississippi.
    No. 2005-KA-01854-SCT.
    Supreme Court of Mississippi.
    Oct. 12, 2006.

      Pamela A. Ferrington, Natchez, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before WALLER, P.J., EASLEY and CARLSON, JJ.
   EASLEY, Justice,

for the Court.

PROCEDURAL HISTORY

¶ 1. Michael Townsend was indicted by a grand jury in Claiborne County, Mississippi, on Count I aggravated assault of Antonio Hill, Count II aggravated assault of Shirley Darden, and Count III possession of a firearm by a convicted felon. Townsend waived his arraignment and entered a plea of not guilty. Townsend was tried before a jury in Claiborne County, Mississippi. The jury convicted Townsend on Count I of the indictment, aggravated assault of Hill, and Count III of the indictment, possession of a firearm by a convicted felon. Townsend was found not guilty on Count II of the indictment, aggravated assault of Darden. Sammie Good, Claiborne County Circuit Clerk, testified that Townsend had a prior conviction for sexual battery in May 9, 1996. Good identified a copy of Townsend’s sentencing order which provided that Townsend pled guilty to sexual battery and was sentenced to serve five years in the custody of the Mississippi Department of Corrections.

¶ 2. The trial court sentenced Townsend to serve a term of sixteen years in the custody of the Mississippi Department of Corrections on the aggravated assault count and a term of three years on the possession of a firearm by a convicted felon count with the sentences to run concurrently.

¶ 3. Townsend filed a motion for J.N.O.V., or alternatively, a new trial which was denied by the trial court. Townsend’s trial counsel filed a notice of appeal and the necessary documents to perfect the appeal. Subsequently, Townsend filed a motion to proceed in forma pauperis and proceed pro se on appeal. Townsend filed a separate notice of appeal, designation of record, and affidavit of indi-gency. Townsend’s trial counsel was allowed by the trial court to withdraw from Townsend’s representation on appeal. The trial court then appointed Townsend new counsel to represent Townsend on the appeal. Townsend now appeals his conviction and sentence to this Court.

FACTS

¶ 4. On August 9, 2004, Officer Rachel Martin, dispatcher for the Claiborne County Sheriffs Department, received a 911 call around 10:44 p.m. The 911 call originated from 1003 Johnson Lane in Port Gibson, Mississippi. No one spoke to Officer Martin during the 911 call, but she heard voices in the background. Officer Martin sent officers to respond to the 911 call. The 911 call was played for the jury.

¶ 5. As Officer Martin testified, the tape of the 911 call reveals that no one spoke to Officer Martin during the 911 call. However, an argument can be heard on the tape. Due to the poor sound quality on the recording, only fragments of an argument in the background can be heard. The following can be heard on the tape: (1) “I’m tired of this,” (2) “Tell him you don’t love him,” (3) “Who called,” and (4) “Put the gun down.”

¶ 6. Antonio Hill and Shirley Darden lived together at 1003 Johnson Lane. Hill and Darden had a ten-year-old-boy together that also lived at that address, as well as, a five-year-old girl that Darden had from another relationship. Hill testified that he originally thought the girl was also his child, but he later discovered that the girl was not his daughter. Hill testified that he continued to raise the girl as his own daughter.

¶ 7. According to Hill’s testimony, on August 9, 2004, Townsend came to the trailer where Darden and Hill lived together. Darden had just arrived home and was taking a bath when Townsend arrived. Hill and the two children were also at home. Townsend entered the bathroom where Darden was bathing. The two then argued, and Townsend was demanding some answers. Hill requested Townsend leave the bathroom, but Townsend refused. Townsend wanted Darden to tell Hill that she did not love him and that she was going to be with Townsend.

¶ 8. Hill testified that he dialed 911 to get Townsend out of the house when he refused to leave the bathroom. Hill testified that he did not speak to anyone on the telephone because Townsend pointed a revolver at him. Townsend pulled the trigger, but the gun misfired. Hill testified that he retrieved his gun from the top of his closet. Townsend left the bedroom and went into the living room. Hill exited the bedroom. Townsend and Hill then exchanged gun fire inside the trailer.

¶ 9. In her statement given at the hospital to the investigators, Darden stated that Townsend had come into the bathroom where she was bathing. Hill was present, and Townsend refused to leave. She stated that Townsend started the gun fire, and she was shot during the gun fire exchange between Townsend and Hill. However at trial, Darden changed her account of the events. At trial, Darden testified that she and Townsend were “friends,” but she did not want Hill to know that they were “friends friends.” She testified that when she arrived home that night Townsend was waiting for her. Townsend then came inside. Darden testified that she was sitting on the bed when Townsend and Hill came into the room. Darden testified that she started laughing when Hill asked what was going on. She testified that she did not want to discuss her friendship with Townsend in front of Hill.

1Í10. Deputy Sheriff Erika Nash, along with two other deputies, responded to the 911 disturbance call. When Deputy Nash" arrived at the address, she heard gunshots. Deputy Nash observed Darden run out of the trailer. Darden told Deputy Nash that she had been shot. Then, Deputy Nash observed Hill come out of the trailer. Hill was holding a .380 automatic pistol. He placed the gun on the ground. Finally, Townsend also came out of the trailer. Townsend had been shot and was bleeding. Townsend did not exit the trailer with a gun, but a .38 Smith and Wesson pistol was recovered just inside the trailer door. Deputy Nash did not know who owned the .38 Smith and Wesson pistol or who placed it in the doorway. Deputy Nash testified that she did not realize that Hill had also been shot until he was placed in the patrol car.

¶ 11. Sheila McAlpin, Darden’s sister, gave a statement to the officers that Townsend had been to her house that night looking for Darden. Townsend was angry and had a pistol in his front left pocket of his pants. According to McAlpin, Townsend asked her, “had I seen my bitch ass sister, which he was referring to Shirley Darden.” In her statement, McAlpin told the investigators that Townsend told her that he “was going to set [sic] out in town and wait on Shirley Darden and follow her home.” He then said, “he was tired of people cheating on him, and one of these bitches is going to die tonight.” Townsend told McAlpin that he meant either Hill or Darden was going to die.

¶ 12. At trial, McAlpin recanted her statement and testified that she did not see Townsend that day. McAlpin testified that she made up the story because she was afraid of Hill. However, she testified that she never reported any alleged threats by Hill to law enforcement.

¶ 13. Connie Scott, McAlpin’s next door neighbor, testified that on August 9, 2004, he saw Townsend at McAlpin’s trailer. Scott identified Townsend for the record as the person he saw that night. Scott testified that he saw Townsend and McAl-pin talking. Scott testified that he remembered the day he saw Townsend talking to McAlpin because it was the same day as the shooting. Scott stated that it was the same night that he went to the trailer to watch the children when Darden was carried to the hospital.

¶ 14. In her statement given to the investigators, Darden stated that Townsend fired a handgun first. After Townsend fired his gun in the trailer, Hill retrieved his gun to defend himself. At trial, Darden recanted her statement claiming that she was afraid of Hill when she made the statement. Darden’s testimony at trial contradicted her prior statement to the investigators. She testified that Hill shot Townsend. Despite the fact that Hill was also shot, Darden testified at trial that Townsend did not shoot Hill.

¶ 15. Townsend testified that on the night of the shooting it was Hill that wanted the three of them, Townsend, Darden, and Hill, to sit down and discuss Darden’s relationship with Townsend. Townsend testified that the three of them sat in the living room to talk. Townsend testified that Hill left the room and then came back into the room and began shooting. Townsend testified that he neither shot nor fired any weapon at Hill, and he never had a gun that night.

¶ 16. Hill testified that he was no longer involved in a relationship with Darden. Hill testified at trial that to his knowledge, Darden was still involved in a relationship with Townsend, and Darden currently lived with Townsend. Townsend testified that Darden never moved in with him. Townsend testified that he and Darden are friends and talk on the telephone. Townsend testified that he knew Darden approximately six months to a year before he ever met Hill. Townsend testified that at the time he and Darden became friends and started calling each other, he was married.

DISCUSSION

I. Motion to Dismiss the Indictment

¶ 17. Both Hill and Townsend were arrested and charged with aggravated assault. On appeal, Townsend alleges that Hill was no-billed by the grand jury. Townsend further alleges on appeal that Hill’s brother-in-law, Larry Clark, was a member of the grand jury panel.

¶ 18. There is no document in the record that shows that Hill was ever no-billed by the grand jury. Likewise, when questioned on cross-examination by the defense, Hill was not asked if the grand jury issued a no-bill as to him. Further, the record does not contain a list of the grand jury members that indicted Townsend. The record only contains Townsend’s indictment, “A True Bill.” Townsend’s indictment is signed by the foreperson of the grand jury and the assistant district attorney. While the foreperson’s name is not legible, the signature is clearly not Larry Clark.

¶ 19. That being said, Townsend’s assignment of error on appeal is flawed since Townsend’s trial counsel did not have the trial court hear the motion to dismiss the indictment. Townsend failed to present this issue to the trial court. The record does not contain a ruling from the trial court on the motion to dismiss the indictment.

¶20. On appeal, Townsend states that this issue was never heard by the trial court in order for the trial court to inquire into the matter and determine whether Hill’s brother-in-law exercised any actual influence over the grand jury. Townsend properly cites to this Court’s holding in Culp v. State, 933 So.2d 264 (Miss.2005), regarding the standard of review when the grand jury’s indictment is challenged on appeal. In Culp, this Court held:

Once a grand jury has been sworn and empaneled, no objection can be raised except as to fraud, according to Miss. Code Ann. [§ ] 13-5-43. n 10 [.] See Polk v. State, 288 So.2d 452 (Miss.1974). In a more recent case, this Court held that grand jury proceedings are sacred, and courts cannot go behind an indictment and inquire into evidence considered by a grand jury. Hood v. State, 523 So.2d 302, 306 (Miss.1988) (citing State v. Matthews, 218 So.2d 743 (Miss.1969); Case v. State, 220 So.2d 289 (1969)). The sole inquiry for an appellate court is whether the grand jury was subjected to improper influences. Id. at 307. Absent evidence that a member of the grand jury acted with malice, hatred, or ill will, or fraud, or otherwise violated the oath taken by grand jurors, it is presumed that the grand jurors did not improperly or illegally act in returning the indictment against the accused. Southward v. State, 293 So.2d 343, 344 (Miss.1974). The circuit court’s factual determinations related to this issue are reviewed by this Court only for clear error. Morris v. State, 777 So.2d 16, 24 (Miss.2000). However, the trial court’s conclusions of law are reviewed de novo. Palm v. State, 748 So.2d 135 (Miss.1999); Entergy Miss., Inc. v. Burdette Gin Co., 726 So.2d 1202, 1204 (Miss.1998).

933 So.2d at 281 (emphasis added). However, Townsend failed to present this issue to the trial court. As such, there was never any inquiry into whether any of the grand jurors were submitted to any improper influence.

¶ 21. Not only does the record reveal that Townsend never presented the motion to dismiss the indictment to the trial court, Townsend further failed to raise the issue of the grand jury’s indictment in his motion for J.N.O.V., or alternatively, a new trial. Therefore, Townsend has waived this issue our for appellate review. See Shavers v. State, 455 So.2d 1299, 1302 (Miss.1984) (“We will not put the trial court in error on an issue not placed before it and we must deem this ground to have been waived.”) (citing Ponder v. State, 335 So.2d 885 (Miss.1976)). The assignment of error is without merit.

II. J.N.O.V. and Weight of the Evidence

¶22. Townsend made a post-trial motion for J.N.O.V, or alternatively, a new trial. The trial court subsequently entered its order overruling Townsend’s motion for J.N.O.V., or alternatively, a new trial.

A. J.N.O.V.

¶ 23. A motion for J.N.O.V. challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). “[T]his Court properly reviews the ruling on the last occasion the challenge was made in the trial court.” Id. at 778. Here, this occurred when the trial court denied Townsend’s motion for J.N.O.V.

¶ 24. In Bush v. State, 895 So.2d 836, 843 (Miss.2005) this Court set out the standard of review for legal sufficiency as follows:

In Carr v. State, 208 So.2d 886, 889 (Miss.1968), we stated that in considering whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, the critical inquiry is whether the evidence shows “beyond a reasonable doubt that accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.”

Bush, 895 So.2d at 843. The Court stated:

Should the facts and inferences considered in a challenge to the sufficiency of the evidence “point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty,” the proper remedy is for the appellate court to reverse and render. Edwards v. State, 469 So.2d 68, 70 (Miss.1985) (citing May v. State, 460 So.2d 778, 781 (Miss.1984)); see also Dycus v. State, 875 So.2d 140, 164 (Miss.2004). However, if a review of the evi-denee reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient. Edwards, 469 So.2d at 70....

895 So.2d at 843.

¶25. Considering the evidence in the light most favorable to the State, there was sufficient evidence to support Townsend’s conviction for the aggravated assault of Hill, pursuant to Miss.Code Ann. § 97-3-7(2), and the possession of a firearm by a convicted felon, pursuant to Miss. Code Ann. § 97-37-5(1). Miss.Code Ann. § 97-3-7(2) defines aggravated assault as follows:

A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life; or (b) attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon or other means likely to produce death or serious bodily harm;

Miss.Code Ann. § 97-37-5(1) states what constitutes possession of a firearm by a convicted felon as follows:

It shall be unlawful for any person who has been convicted of a felony under the laws of this state, any other state, or of the United States to possess any firearm or any bowie knife, dirk knife, butcher knife, switchblade knife, metallic knuckles, blackjack, or any muffler or silencer for any firearm unless such person has received a pardon for such felony, has received a relief from disability pursuant to Section 925(c) of Title 18 of the U.S.Code, or has received a certificate of rehabilitation pursuant to subsection (3) of this section.

¶ 26. Townsend argues that the facts of the case did not support his conviction. Townsend claims that the elements of the crimes were not proven. However, a review of the record disputes Townsend’s assertion and demonstrates that the elements of the crimes of aggravated assault as defined in Miss Code Ann. § 97-3-7(2) and § 97-37-5(1) were met. Townsend argues on appeal that J.N.O.V. was appropriate because Darden and McAlpin recanted their earlier statements at trial.

¶27. However, the jury was left the responsibility to weigh the credibility of these witnesses’ testimony at trial. As this Court has repeatedly held, the jury is the final arbiter of a witness’s credibility. Spicer v. State, 921 So.2d 292, 312 (Miss.2006); Morgan v. State, 681 So.2d 82, 93 (Miss.1996). In Spicer, 921 So.2d at 311 (quoting Franklin v. State, 676 So.2d 287, 288 (Miss.1996)), this Court stated:

Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. [This Court] may reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

¶ 28. Here, the jury heard Dar-den’s and McAlpin’s testimony at trial and the questioning regarding their prior statements made to investigators. Furthermore, the jury heard testimony from Scott that contradicted McAlpin’s testimony at trial that she had not seen Townsend on August 9, 2004. McAlpin had given a statement to the investigators that Townsend had been to her house that night looking for her sister, Darden, and Townsend was angry and had a pistol in his front left pocket of his pants.

¶ 29. At trial, she claimed that she had not seen Townsend. Scott contradicted McAlpin’s version of events at trial. Scott identified Townsend as the person he saw that night talking to McAlpin. Scott testified that he remembered that it was the same day as the shooting when she saw McAlpin talking to Townsend because he went to the trailer to watch the children when Darden was carried to the hospital for the gun shot wounds.

¶ 30. Darden also testified contrary to her statement to investigators. In her statement, Darden stated that Townsend fired a handgun first. After Townsend fired his gun in the trailer, Hill then retrieved a gun to defend himself from Townsend. At trial, Darden testified that not only did Hill fire first, but Townsend never had a gun and never shot at Hill. However, the record reflects that Hill was shot in the altercation.

¶ 31. Hill testified that he was the one that dialed 911 trying to get Townsend out of the trailer when he refused to leave. Hill testified that he did not speak to anyone during the 911 call because Townsend pointed a revolver at him. According to Hill, Townsend pulled the trigger, but the gun misfired. Hill testified that he then retrieved his gun from the top of his closet. Townsend and Hill then exchanged gun fire inside the trailer.

¶32. Officer Martin testified that no one spoke to her during the 911 call. However, she “could hear voices, people speaking.” Officer Martin testified that the nature of the 911 call was a disturbance call, and her testimony provided the telephone number and address where the disturbance call originated. Based on the 911 call, officers were dispatched to the address where Hill and Darden lived together. The 911 call that was played to the jury demonstrated that a disturbance was in process. When the officers arrived, Hill, Darden, -and Townsend had been shot.

¶ 33. Hill testified that at the time of trial he was no longer in a relationship with Darden. To his knowledge, Darden and Townsend were still involved in a relationship together. Hill further testified that Darden and Townsend lived together. However, Townsend testified that Darden never moved in with him and that he and Darden are just friends who talk on the telephone.

¶ 34. The record reflects that there was legally sufficient evidence to convict Townsend of the aggravated assault of Hill and possession of a firearm by a convicted felon under Mississippi law. Accordingly, we find that the trial court did not err in overruling Townsend’s motion for J.N.O.V.

B. New Trial

¶ 35. A motion for new trial challenges, the weight of the evidence. Sheffield v. State, 749 So.2d 123, 127 (Miss.1999). A reversal is warranted only if the trial court abused its discretion in denying a motion for new trial. Id. In Bush, 895 So.2d at 844, this Court set out the standard of review for weight of the evidence as follows:

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. Herring v. State, 691 So.2d 948, 957 (Miss.1997). We have stated that on a motion for new trial, the court sits as a thirteenth juror. The motion, however, is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000). However, the evidence should be weighed in the light most favorable to the verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict was against the overwhelming weight of the evidence, “unlike a reversal based on insufficient evidence, does not mean that acquittal was the only proper verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, as the “thirteenth juror,” the court simply disagrees with the jury’s resolution of the conflicting testimony. Id. This difference of opinion does not signify acquittal any more than a disagreement among the jurors themselves. Id. Instead, the proper remedy is to grant a new trial.

¶ 36. Here, no new trial is warranted as the jury’s verdict is consistent with the weight of the evidence. Sitting as the “thirteenth juror,” we find that the evidence, weighed in the light most favorable to the verdict, supports the jury’s resolution of the conflicting testimony. Without re-discussing the facts already stated within this opinion, the jury heard the testimony from all the witnesses called by the State, including Hill and Darden, as well as, Scott’s testimony on rebuttal. The jury also heard the defense’s witness, Townsend, testify. The jury heard all the testimony and determined that based on the evidence presented Townsend was guilty of Count I of the indictment, aggravated assault of Hill, and Count III of the indictment, possession of a firearm by a convicted felon, but not guilty as to Count II of the indictment, aggravated assault of Darden.

¶ 37. On the record, the weight of the evidence presented by the State supported the jury’s verdict. Accordingly, we find that the trial court did not err in overruling Townsend’s motion for a new trial.

CONCLUSION

¶ 38. For the foregoing reasons, we affirm the judgment of the Circuit Court of Claiborne County, Mississippi.

¶ 39. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF SIXTEEN (16) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT III: CONVICTION OF POSSESSION OF A WEAPON BY A CONVICTED FELON AND SENTENCE OF THREE (3) YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT I SHALL RUN CONCURRENTLY WITH THE SENTENCE IN COUNT III.

SMITH, C.J., WALLER AND COBB, P.JJ., DIAZ, CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES, J., CONCURS IN RESULT ONLY.


author: MYERS, P.J.,

text:
    Katrina WATSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2004-KA-01745-COA.
    Court of Appeals of Mississippi.
    Feb. 21, 2006.
    Rehearing Denied July 25, 2006.

      Stephen Nick, Greenville, attorney for appellant.
    Office of the Attorney General by W. Glenn Watts, attorney for appellee.
    Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Katrina Watson was convicted in the Circuit Court of Washington County of felony shoplifting by a jury verdict and sentenced to a term of five years in the custody of the Mississippi Department of Corrections. From that conviction she appeals raising the following issues:

I.THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO AMEND THE INDICTMENT.
II. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO FELONY SHOPLIFTING DUE TO THE ERRORS IN THE INDICTMENT.
III. THE TRIAL COURT ERRED BY REFUSING TO GIVE DEFENDANT’S JURY INSTRUCTION NO. 3.
IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE A JUDGMENT NOTWITHSTANDING THE VERDICT.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Katrina Watson and Kiywonneya Taylor entered the McRae’s department store in Greenville on November 30, 2002. The two were observed by the store employees in the loss prevention department, Craig Brown and Errol Celestine, using the concealed cameras inside the store. Watson and Taylor were seen selecting clothes in the dress department. They then split up and came back together with the selected items in the changing area of the store. Taylor then went into one of the changing rooms, with the clothing, while Watson waited outside.

¶4. Upon exiting the changing room, Taylor was carrying a large McRae’s shopping bag, but no clothing. Taylor proceeded to depart the store without paying for any of the merchandise. Taylor was detained and questioned by Celestine. Watson was found elsewhere in the store and was detained by Brown. When the McRae’s bag was emptied, eleven articles of clothing were found. None of these items had been purchased and had a total value of $487.

¶ 5. Taylor pled guilty. A trial was held in the Washington County Circuit Court on July 23 and 24, 2004, where Watson was found guilty of felony shoplifting and sentenced to serve five years in the custody of the Mississippi Department of Corrections. From this conviction she appeals.

DISCUSSION

I. THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTION TO AMEND THE INDICTMENT.

¶ 6. Following selection of the jury the prosecution moved to amend the indictment as to form and not substance. The indictment was titled “Felony Shoplifting 97-23-93 (1 & 5) (over $250).” The amendment offered by the prosecution was to change section 5, which relates to merchandise less than or equal to $250, to section 7 dealing with merchandise over $250. The motion was granted and Watson was convicted of felony shoplifting. Watson argues that the indictment was by statute misdemeanor shoplifting and her offer to plead guilty to that charge should have been accepted. We do not agree.

¶ 7. The record reflects that the indictment provided Watson with notice that she had been charged with felony shoplifting. For an indictment to place a defendant on notice of the charges against her the indictment must meet the requirements of URCCC 7.06. This section states in part

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them.

URCCC 7.06 (emphasis added).

¶ 8. Watson’s indictment clearly states that she is charged with felony shoplifting of items that have a value over $250 both in the title and in the body. The indictment states:

That KIYWONNEYA TAYLOR, and KATRINA WATSON, while acting together on the 30th day of November, 2002, in Washington County, did unlawfully, willfully and feloniously take possession of merchandise described as various items having a total and aggregate value of more than two hundred fifty dollars and owned or held by and offered or displayed for sale by McRae’s, a merchant, store or mercantile establishment, and they, the said KIYWONNEYA TAYLOR, and KATRINA WATSON, having taken possession of said merchandise with the intention of converting said merchandise to their own use without paying the merchant’s stated price .... (emphasis added).

This places Watson on notice that she has been indicted with taking items over $250 in value and that this is a felony. The amendment offered by the prosecution did not change the substance of the indictment only the form. This issue is without merit.

II. THE TRIAL COURT ERRED IN SENTENCING THE DEFENDANT TO FELONY SHOPLIFTING DUE TO THE ERRORS IN THE INDICTMENT.

¶ 9. Watson next argues that due to the errors in her indictment her sentence was improper. Finding no error in the indictment and that the sentence is within the statute, we do not agree.

¶ 10. At trial, Watson was convicted of felony shoplifting and sentenced to five years in the custody of the Mississippi Department of Correction under Mississippi Code Annotated § 97-23-93(7). If convicted under this statute, a defendant is to be punished as provided by Mississippi Code Annotated § 97-17-41. A person convicted of felony shoplifting items with a value of $250 or more can be sentenced to a term in prison not to exceed five years. Miss.Code Ann. § 97-17-41(1)(a) (Rev.2000).

¶ 11. Watson was convicted of shoplifting $487 worth of items and sentenced to a term of five years. The sentence of five years in prison imposed on Watson does not exceed the maximum allowed by statute; therefore, it is not error. This issue is without merit.

III. THE TRIAL COURT ERRED BY REFUSING TO GIVE DEFENDANT’S JURY INSTRUCTION NO. 3.

¶ 12. As her third point of error, Watson argues that her No. 3 jury instruction should have been given to the jury. This instruction was an exact rendition of Mississippi Code Annotated § 97-23-93(2). This denial by the trial court was given due to the elements of shoplifting having been previously given in the prosecutions jury instruction No. 1.

¶ 13. A defendant is entitled to have an instruction on his theory of the case. Young v. State, 451 So.2d 208, 210 (Miss.1984); see also U.S. v. Conroy, 589 F.2d 1258, 1273 (5th Cir.1979), cert. denied, 444 U.S. 831, 100 S.Ct. 60, 62 L.Ed.2d 40 (1979). There is a limitation, however, because a trial judge may refuse an instruction which incorrectly states the law, is without foundation in the evidence, or is stated elsewhere in the instructions. U.S. v. Robinson, 700 F.2d 205, 211 (5th Cir.1983), appeal after remand, 713 F.2d 110, reh. den., 719 F.2d 404.

¶ 14. The prosecution’s jury instruction properly stated the law in the case at bar. Watson’s proposed instruction- did not raise any different theory of the case or other point of law not contained in the prosecution’s instruction. Additionally, the prosecution’s instruction is given in narrative format that can be more easily understood by the jury, as opposed to the exact quoting of the statute. This issue is without merit.

IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT’S MOTION FOR A NEW TRIAL OR IN THE ALTERNATIVE A JUDGMENT NOTWITHSTANDING THE VERDICT.

¶ 15. As her fourth and final issue, Watson argues that her motion for a new trial or, in the alternative, a judgment notwithstanding the verdict should have been granted. She contends that the evidence against her consisted primarily of the videotape from the surveillance camera. We do not agree.

¶ 16. This Court reviews the denial of a motion for judgment notwithstanding the verdict and the denial of a motion for a new trial in the following manner:

This Court will consider the evidence in the light most favorable to the appellee, giving that party the benefit of all favorable inference that may be reasonably drawn from the evidence. If the facts so considered point so overwhelmingly in favor of the appellant that reasonable men could not have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there is substantial evidence in support of the verdict, that is, evidence of such quality and weight that reasonable and fair minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standard of review, however, is predicated on the fact that the trial judge applied the correct law.

Jackson v. State, 815 So.2d 1196(¶ 14) (Miss.2002). The motion for a new trial addresses the weight of the evidence. Conners v. State, 822 So.2d 290(¶ 6) (Miss.Ct.App.2001). The challenge to the weight of the evidence via motion for a new trial implicates the trial court’s sound discretion and the motion should not be granted except to prevent an unconscionable injustice. Id.

¶ 17. The evidence presented at trial included the videotape from the surveillance camera and the testimony of Brown and Celestine. The two witnesses testified that Watson was one of the two people seen on the video taking clothes into the changing rooms of the store. They testified to observing the actions of Watson and Taylor in the store and finding the items taken into the dressing room in the McRae’s bag. Watson did not present any evidence or testimony and did not take the stand. This evidence was sufficient to support the decision of the jury and we will not over turn its decision.

¶ 18. Finding no merit to this issue, we affirm.

¶ 19. THE JUDGMENT OF THE WASHINGTON COUNTY CIRCUIT COURT OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.

KING, C.J., LEE, P.J., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, AND ROBERTS, JJ., CONCUR.


author: GRIFFIS, J.,

text:
    Parco ROLAND a/k/a Antonio Parco Roland a/k/a Tony A. Roland a/k/a “Parco-Poco” a/k/a Antonio Roland a/k/a Parco Antonio Roland a/k/a Parko Roland, Appellant, v. STATE of Mississippi, Appellee.
    No. 2005-CP-01150-COA.
    Court of Appeals of Mississippi.
    Sept. 19, 2006.

      Parko Roland, appellant, pro se.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before KING, C.J., GRIFFIS and BARNES, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Parko Roland was indicted on April 23, 1992, on two counts of armed robbery. The indictment also alleged that Roland was a habitual offender and subject to Mississippi Code Annotated Section 99-19-81 (Rev.2000). Roland agreed to plead guilty to both counts of armed robbery, under an agreement that dropped the habitual offender portion of the indictment and four other pending indictments for grand larceny. On August 10, 1992, Roland’s guilty plea was accepted by the court. He was sentenced to serve fifteen years for count I and thirty years for count II, with the sentences to run consecutively, in the custody of the Mississippi Department of Corrections.

¶ 2. On September 27, 1993, Roland filed a petition for post-conviction collateral relief alleging that his guilty plea was involuntary and that he was provided ineffective assistance of counsel. The Circuit Court of Lauderdale County denied the petition on January 21, 1994, and Roland filed a notice of appeal on February 3, 1994. The supreme court affirmed the denial of Roland’s petition for post-conviction relief. Roland v. State, 666 So.2d 747 (Miss.1995).

¶ 3. Roland filed a subsequent petition for post-conviction collateral relief on February 28, 2005. In this petition, Roland alleged that the sentence imposed was excessive and that he was improperly informed as to the sentence which could be imposed.

¶ 4. The petition was dismissed as a successive writ and time-barred. Roland appeals and raises four issues: (1) the sentence imposed was an excessive sentence which exceeded the life expectancy of the defendant and was beyond the judges authority to impose, (2) the trial court erred in advising Appellant that the court could impose a life sentence in the event Appellant was found guilty, (3) the trial court erred in applying the three-year statute of limitations as a procedural bar, where the petition asserted an intervening decision and fundamental constitutional claim, and (4) the trial court erred in dismissing the post-conviction motion as frivolous and imposing sanctions under section 47-5-138 of the Mississippi Code Annotated (Rev.2004). We find no error and affirm.

STANDARD OF REVIEW

¶ 5. In reviewing a trial court’s decision to deny a motion for post-conviction relief, the standard of review is clear. The trial court’s denial will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct.App.2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

¶ 6. Roland’s petition is dearly a successive writ and is time-barred. Mississippi Code Annotated Section 99-39-27(9) (Rev.2000) provides that “[t]he dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article.” Roland’s current motion for post-conviction relief is barred from review as a second or successive application. Id. Furthermore, Roland’s petition is time-barred under Mississippi Code Annotated Section 99-39-5(2)(Rev.2000).

¶ 7. In Roland’s first petition for post-conviction relief, he argued that his counsel was ineffective because he incorrectly advised him of the potential sentence that could be imposed. The supreme court addressed Roland’s sentence, in response to the ineffective assistance of counsel claim. At the time of Roland’s guilty plea there were four other indictments pending against him, each charging Roland as a habitual offender. If he had been convicted on all indictments then pending, Roland would have been subject to mandatory sentences of two life sentences, the possibility of the sentences running consecutively and that all sentences would be without the eligibility of parole or early release. Roland, 666 So.2d at 749-50. A sentence is not an illegal life sentence if it is reasonably calculated to be less than life. Davis v. State, 477 So.2d 223, 224 (Miss.1985); Harper v. State, 463 So.2d 1036, 1038 (Miss.1985); Wilson v. State, 390 So.2d 575, 580 (Miss.1980). In addition, the supreme court found that Roland’s plea was voluntarily and intelligently made. Roland, 666 So.2d at 750. Therefore, we find issues one, two and three to be without merit.

¶ 8. As we have found, Roland’s sentence was not illegal. The supreme court affirmed the trial court’s denial of Roland’s first petition for post-conviction relief, and specifically found that Roland’s claims “are patently and plainly without any merit and ... frivolous.” Id. at 751. The supreme court specifically cautioned “Roland and other litigants that this Court will not hesitate to impose sanctions where the claim is clearly frivolous.” Id. “Although we do not impose sanctions in this case, we do issue a caution to Roland and others that in the future such sanctions will be imposed or that cost will be imposed at the time of filing.” Id. at 752. In blatant disregard of this warning, Roland filed a subsequent petition for post-conviction relief. We cannot find that the trial court abused its discretion in imposing a sanction that the supreme court warned of. We find no error and affirm.

¶ 9. Likewise, we find that Roland’s appeal to this Court is frivolous. Thus, based on the supreme court’s previous stern admonition to Roland and pursuant to Mississippi Code Annotated Section 47-5-138(3)(a)(Rev.2004), we conclude that this Court’s mandate is a “final order” that “dismisses a lawsuit brought by an inmate while the inmate was in the custody of the Department of Corrections as frivolous, malicious or for failure to state a claim upon which relief could be granted.” We direct the Clerk to provide a copy of this opinion to the Mississippi Department of Corrections with the instruction that the Mississippi Department of Corrections is directed and ordered that an additional sixty (60), for a total of one hundred twenty (120) days of accrued earned time shall be forfeited by Roland. Miss.Code Ann. § 47 — 5—138(3)(b)(ii) (Rev.2004).

¶10. THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. THE CLERK SHALL PROVIDE A COPY OF THIS OPINION TO THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THE INSTRUCTION THAT THE DEPARTMENT IS DIRECTED AND ORDERED THAT AN ADDITIONAL SIXTY (60) DAYS OF ACCRUED EARNED TIME SHALL BE FORFEITED BY ROLAND WITHIN THE PARAMETERS OF SECTION 47-5-138 OF THE MISSISSIPPI CODE ANNOTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, BARNES AND ISHEE, JJ., CONCUR. KING, C.J., CONCURS IN RESULT ONLY. ROBERTS, J., NOT PARTICIPATING.