Moore v. State

631 So. 2d 805 (1994)

David MOORE, Alias Mo Dog v. STATE of Mississippi.

No. 91-KA-0602.

Supreme Court of Mississippi.

February 10, 1994.

Mose Lee Sudduth, Jr., Columbus, for appellant.

David Moore, pro se.

Michael C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and SULLIVAN and JAMES L. ROBERTS, Jr., JJ.

HAWKINS, Chief Justice, for the Court:

On May 23, 1991, Moore was convicted in the Lowndes County Circuit Court for the sale of cocaine in violation of Miss. Code Ann. § 41-29-139 (Supp. 1993). He was sentenced as a habitual offender to serve thirty (30) years in the custody of the Mississippi Department of Corrections. On appeal, he does not challenge the sufficiency of the evidence to convict on the sale of cocaine.

Moore does complain of the refusal of the court to give the following jury instruction:

INSTRUCTION D-3

Court instructs the Jury that in order to find Defendant guilty the State must prove beyond a reasonable doubt that David Moore did sell cocaine to Willie "T-Boy" Hall, on August 21, 1990; you may strongly believe he did, but if the state has failed to prove to you beyond a reasonable doubt that he did sell cocaine then on your oath you must find him not guilty.

There was no error on the part of the trial court in refusing this instruction. Barnes v. State, 532 So. 2d 1231 (Miss. 1988); Foster v. State, 508 So. 2d 1111 (Miss. 1987).

Moore also challenges the sufficiency of the evidence to prove that he was a habitual offender under Miss. Code Ann. § 99-19-81 (Supp. 1993). On October 24, 1987, Moore pled guilty to the sale of less than one ounce *806 of marihuana for which he received a three year suspended sentence. On May 16, 1988, he pled guilty to the sale of less than one ounce of marihuana and received a one year sentence. Certified copies of the indictments and sentencing orders in these prior convictions were introduced into evidence at the sentencing hearing. Moore does not dispute their accuracy. Under the facts of this case, these records constitute sufficient evidence that he was a habitual offender within this statute.

CONVICTION OF SALE OF COCAINE AND SENTENCE OF THIRTY (30) YEARS AS A HABITUAL OFFENDER AFFIRMED.

DAN M. LEE and PRATHER, P.JJ., and SULLIVAN, PITTMAN, BANKS, McRAE, JAMES L. ROBERTS, Jr. and SMITH, JJ., concur.