Charles Howery v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-KA-00285-COA
CHARLES HOWERY
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
01/19/2001
HON. JANNIE M. LEWIS
YAZOO COUNTY CIRCUIT COURT
BELINDA J. STEVENS
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
JAMES H. POWELL III
CRIMINAL - FELONY
FELONY SHOPLIFTING: 1 YEAR, MDOC
AFFIRMED - 02/26/2002
3/19/2002
BEFORE KING, P.J., THOMAS, AND MYERS, JJ.
THOMAS, J., FOR THE COURT:
¶1. On January 19, 2001, Charles Howery was convicted of felony shoplifting and sentenced to a term of
one year in the custody of the Mississippi Department of Corrections. Aggrieved, Howery asserts the
following issue:
THE VERDICT OF THE LOWER COURT WAS AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE.
Finding no error, we affirm.
FACTS
¶2. On May 9, 2000, Howery was arrested for shoplifting at Helton's Family Market in Yazoo City,
Mississippi. At trial, Clara Ann Ward, an employee at Helton's, testified that she saw Howery standing in
front of the meat counter, pick up some packaged steaks, walk back to the automotive section of the store
and put the steaks down in his pants. As Howery turned to walk to the front, Ward called the manager,
Billie Sue Purvis, who met Howery at the front check-out stand and asked him to lift his shirt. Howery
ignored Purvis' request and ran out the door.
¶3. Purvis testified that she confronted Howery at the front of the store and asked him if he had anything
concealed that he needed to purchase. Purvis said that she "could see the imprint" of something hidden in
Howery's clothing. Howery said that he did not have anything and went out the door "walking pretty fast."
Purvis then followed Howery outside and watched him walk past Rite Aid and behind another building.
After a few minutes, Howery reappeared in the front of the building and walked to the laundromat.
¶4. Officer Noble Brooks, Jr. testified that when he arrived at Helton's an employee of the store described
the suspect as "a fairly tall, black male, light-skinned in complexion." Another store employee identified the
suspect as "the brother of Charline Howery." Brooks found Howery inside of the laundromat. Brooks found
no meat on Howery at that time.
¶5. Officer Tommy Vaughan testified that he found two packages of ribeye steaks still in their containers
behind a Sally Beauty Supply Building. Vaughan testified that Purvis directed him in the area that Howery
fled from Helton's. Following these directions, Vaughan walked past the Rite Aid and behind the Sally
Beauty Supply Store. Vaughan found the missing ribeye steaks in the area behind these buildings. Vaughan
continued to explain that the meat was still cold and the Helton's label was still on the packages when he
found them.
¶6. Howery testified that he went to Helton's to buy a part for his car. He denied that he had been in the
meat section at all. He further testified that he went to the laundromat to use the restroom.
ANALYSIS
WAS THE VERDICT OF THE LOWER COURT AGAINST THE OVERWHELMING
WEIGHT OF THE EVIDENCE?
¶7. The decision to grant or deny a motion for new trial is discretionary with the trial court. McClain v.
State, 625 So. 2d 774, 781 (Miss. 1993). In order to preserve the issue for consideration on appeal, the
defendant must raise the issue that the verdict was against the overwhelming weight of the evidence as a
ground for his motion for new trial. Howard v. State, 507 So. 2d 58, 63 (Miss. 1987). In Ford v. State,
753 So. 2d 489, 490 (Miss. Ct. App. 1999), we held that:
[i]n 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.
(citing Danner v. State, 748 So. 2d 844, 846 (Miss. Ct. App. 1999)). See also Turner v. State, 726 So.
2d 117, 125 (Miss. 1998); Herring v. State, 691 So. 2d 948, 957 (Miss. 1997); Groseclose v. State,
440 So. 2d 297, 300 (Miss. 1983). "Any less stringent rule would denigrate the constitutional power and
responsibility of the jury in our criminal justice system." Hughes v. State, 724 So. 2d 893, 896 (Miss.
1998). " It has also been established that "the jury is the judge of the weight and credibility of testimony and
is free to accept or reject all or some of the testimony given by each witness." Meshell v. State, 506 So. 2d
989, 991 (Miss. 1987). See also Hilliard v. State, 749 So. 2d 1015, 1017 (Miss. 1999); Lewis v. State,
580 So. 2d 1279, 1288 (Miss. 1991);Gandy v. State, 373 So. 2d 1042, 1045 (Miss. 1979). The
"testimony of a single uncorroborated witness is sufficient to sustain a conviction . . . even though there may
be more than one person testifying to the contrary." Williams v. State, 512 So. 2d 666, 670 (Miss. 1987).
¶8. Further, Shields v. State, 702 So. 2d 380, 383 (Miss. 1997), established a checklist of common sense
circumstances to be considered in crimes involving theft and possession, which are:
9. The temporal proximity of the possession to the crime to be inferred;
10. The number or percentage of the fruits of the crime possessed;
11. The nature of the possession in terms of whether there is an attempt at concealment or any other
evidence of guilty knowledge;
12. Whether an explanation is given and whether that explanation is plausible or demonstrably false.
Id. With this in mind, we find the evidence in the case at hand supports the guilty verdict.
¶9. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION
OF FELONY SHOPLIFTING AND SENTENCE OF ONE YEAR IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. COSTS OF THIS
APPEAL ARE ASSESSED TO YAZOO COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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