Sammy Berry v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1998-KA-01297-COA
SAMMY BERRY A/K/A SAMMY LEE BERRY
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
08/31/1998
TRIAL JUDGE:
HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
DAN W. DUGGAN, JR.
ATTORNEYS FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS, JR.
DISTRICT ATTORNEY:
EDWARD J. PETERS
NATURE OF THE CASE:
CRIMINAL - FELONY
TRIAL COURT DISPOSITION:
08/31/1998: GRAND LARCENY: SENTENCED TO SERVE
A TERM OF (5) YEARS IN THE CUSTODY OF THE
MDOC.
DISPOSITION:
AFFIRMED - 11/30/1999
MOTION FOR REHEARING FILED: 12/13/99; denied 2/22/2000
CERTIORARI FILED:
2/22/2000; denied 4/13/2000
MANDATE ISSUED:
5/4/2000
BEFORE SOUTHWICK, P.J., LEE, AND PAYNE, JJ.
PAYNE, J., FOR THE COURT:
PROCEDURAL HISTORY
¶1. In September 1997, appellant Sammy Berry was convicted in the Circuit Court of the First Judicial
District of Hinds County of the crime of grand larceny. He was thereafter sentenced as an habitual offender
and ordered to serve a term of five years in the custody of the Mississippi Department of Corrections.
Feeling aggrieved of his conviction, Berry filed this appeal.
FACTS
¶2. On May 13, 1997, Berry and an accomplice stole a tiller worth more than two-hundred fifty dollars
from the Economy Hardware Store in Clinton, Mississippi. An eyewitness to the theft reported Berry and
his cohort to the police, and both were apprehended shortly thereafter.
ARGUMENT AND DISCUSSION OF THE LAW
STANDARD OF REVIEW
¶3. Berry raises one issue in this appeal: whether Berry was incorrectly denied a directed verdict, judgment
notwithstanding the verdict or a new trial. In support of this issue, Berry argues the weight and sufficiency of
the evidence did not support the verdict.
¶4. We distinguished weight and sufficiency of the evidence in Danner v. State and reinforced our standard
of review for each of these questions:
A motion for a new trial will be granted when the weight of the evidence is so overwhelming that an
unconscionable injustice would result if a new trial is not granted. It is well established that matters
regarding the weight of evidence are to be resolved by the jury. As such, our scope of review is
limited in considering challenges to the weight of the evidence. In determining whether a jury verdict is
against the overwhelming weight of the evidence, this Court must accept as true the evidence
presented as supportive of the verdict, and we will disturb a jury verdict only when convinced that the
circuit court has abused its discretion in failing to grant a new trial or if the final result will result in an
unconscionable injustice . . . . A directed verdict and judgment notwithstanding the verdict both attack
the sufficiency of evidence. Our standard of review with regard to motions challenging the sufficiency
of the evidence is well established. When reviewing the quantum of the evidence presented at trial on
this matter, the question is whether reasonable and fair-minded jurors could have only found the
defendant not guilty of the charges, where in the present case the jury found him guilty.
Danner v. State, 1998-KA-01158-COA (¶7-8) (Miss. Ct. App. Aug. 17, 1999) (citations omitted).
¶5. In the present case, the evidence was not such that allowing a conviction to stand on this evidence
would result in an unconscionable injustice. Thus, we find no error and uphold the trial court's decision.
ANALYSIS OF THE ISSUE PRESENTED
I. THE TRIAL COURT ERRED BY FAILING TO GRANT DEFENDANT'S MOTION FOR A
DIRECTED VERDICT, JNOV AND MOTION FOR A NEW TRIAL AS THE EVIDENCE
WAS LEGALLY INSUFFICIENT AND THE VERDICT WAS AGAINST THE WEIGHT OF
THE EVIDENCE.
¶6. Berry contends the evidence against him was such that a guilty verdict was not warranted. Reviewing
the evidence in support of the verdict, however, we find substantial evidence did exist in support of Berry's
guilt.
¶7. Of major import to the jury's finding and to our conclusion on appeal is the eyewitness account of the
theft. At the time of the theft, the eyewitness was at a gas station across the street from the hardware store.
She saw Berry and his accomplice, with both of whom she was acquainted, actually place the tiller in back
of the truck they were in and drive off.
¶8. Further in support of Berry's guilt is testimony of police. When the police arrived at Berry's home, they
questioned Berry's father and found the stolen tiller in a storage building on his property. In his testimony,
Berry's father admitted his son brought the tiller to him, and the father stated he was suspicious of his son's
acquiring the brand new tiller.
¶9. Berry contends the State failed to prove Berry intended to permanently deprive the owner of his
property, as is required by statute. Miss. Code Ann. § 97-17-41(1)(a) (Supp. 1999) states:
Every person who shall be convicted of taking and carrying away, feloniously, the personal property
of another, of the value of Two Hundred Fifty Dollars ($250.00) or more, shall be guilty of grand
larceny, and shall be imprisoned in the Penitentiary for a term not exceeding five (5) years; or shall be
fined not more than One Thousand Dollars ($1,000.00), or both.
Although the statute does not specifically state such, Berry argues that the offense of grand larceny requires
intent be proven, pursuant to case law rules. In fact, case law does state intent need be proven: "A critical
part of the code definition of grand larceny is the specific intent to steal. 'Grand larceny requires evidence of
specific intent to deprive the owner of his property wholly and permanently.'" State v. Smith, 652 So. 2d
1126, 1127 (Miss. 1995) (citations omitted).
¶10. Though testimony was not presented showing Berry verbally stated his intent to wholly and
permanently deprive the rightful owner of the tiller, such express declaration is not necessary to meet the
specific intent element of grand larceny.
Intent to do an act or commit a crime is also a question of fact to be gleaned by the jury from the facts
shown in each case. The intent to commit a crime or to do an act by a free agent can be determined
only by the act itself, surrounding circumstances, and expressions made by the actor with reference to
his intent. Too, criminal intent may be proved by circumstantial evidence. Intent may be determined
from the acts of the accused and his conduct and inferences of guilt may be fairly deducible from all
the circumstances.
Shive v. State, 507 So. 2d 898, 900 (Miss. 1987) (citing Newburn v. State, 205 So. 2d 260 (Miss.
1967)) (other citations omitted).
¶11. We conclude Berry's taking of the tiller from the hardware store without paying for it and his delivering
the tiller to his father for one-hundred dollars proves Berry had the intent to permanently deprive the owner
of the property. Berry cites a few immaterial factual discrepancies he sees as warranting reversal of his
conviction; however, even if these allegations were true, the volume of evidence incriminating Berry is so
overwhelming, these discrepancies are of no matter.
¶12. The facts in this case are so overwhelming that a fair-minded juror could have reached the same
conclusion. Pursuant to the aforementioned standard of review, we find the verdict was not decided in error
as to sanction an unconscionable injustice were it not reversed.
CONCLUSION
¶13. The law does not support Berry's contentions that he was entitled to a directed verdict, JNOV or a
new trial. Therefore, the finding of the lower court on this issue is affirmed.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY OF CONVICTION
OF GRAND LARCENY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, LEE,
MOORE, AND THOMAS, JJ., CONCUR.
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