Winfred Forkner v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-CT-00754-COA
WINFRED “WIMP” FORKNER
APPELLANT
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:
APPELLEE
2/28/2001
HON. LILLIE BLACKMON SANDERS
WILKINSON COUNTY CIRCUIT COURT
PAMELA A. FERRINGTON
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
RONNIE LEE HARPER
CRIMINAL - FELONY
BURGLARY OF A STOREHOUSE- SENTENCED
TO SERVE A TERM OF LIFE IMPRISONMENT
AS AN HABITUAL OFFENDER IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS.
AFFIRMED - 11/30/2004
BEFORE BRIDGES, P.J., MYERS AND BARNES, JJ.
MYERS, J., FOR THE COURT:
¶1.
On October 26, 2000, Winfred “Wimp” Forkner and April Harrison were indicted on two counts
of burglary of a storehouse, in violation of Mississippi Code Annotated § 97-17-33 (Rev. 2000). Forkner
was charged as a habitual offender, pursuant to Mississippi Code Annotated § 99-19-83 (Rev. 2000) and
was convicted on Count I of the indictment. Forkner was sentenced to life without parole and appeals his
conviction raising the following eight issues:
I. WHETHER THE INDICTMENT WAS DEFECTIVE.
II. WHETHER THE TRIAL COURT ERRED BY RECESSING OVER THE WEEKEND.
III. WHETHER APRIL HARRISON’S TESTIMONY WAS INSUFFICIENT TO SUPPORT
THE JURY’S VERDICT.
IV. WHETHER THE COURT ERRED IN GRANTING THE STATE’S INSTRUCTION S-7.
V. WHETHER THE PROSECUTOR’S REMARKS IN HIS OPENING STATEMENT WERE
IMPROPER.
VI. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION TO
AMEND THE INDICTMENT.
VII. WHETHER THE COURT ERRED IN DENYING APPELLANT’S MOTION FOR
DIRECTED VERDICT, A PEREMPTORY INSTRUCTION, OR A JUDGMENT
NOTWITHSTANDING THE VERDICT.
VIII. WHETHER THERE ARE CUMULATIVE ERRORS WHICH REQUIRE REVERSAL.
¶2.
For the reasons set forth below, we find no merit to any of these assignments of error and
affirm.
STATEMENT OF FACTS
¶3.
On October 26, 2000, Winfred “Wimp” Forkner and April Harrison were indicted on two counts
of burglary of a storehouse, in violation of Mississippi Code Annotated § 97-17-33. The indictment was
the result of a late night theft spree which occurred in late August or early September, 2000 in which
Forkner and Harrison traveled to hunting camps in the Wilkinson County area, stealing air conditioning units
from the camps and selling the stolen goods. The stolen air conditioning units belonged to the hunting
2
camps of Eric Trevillion, located on Bowling Green Road in Wilkinson County and Hobb’s Hunting Club,
also located on Bowling Green Road.
¶4.
At trial, Harrison testified that she accompanied Forkner to the first hunting camp on Bowling Green
Road where Forkner stopped the vehicle by the gate to the camp and loaded an air conditioner, which was
lying close to the gate at the entrance of the hunting camp, into the vehicle’s trunk. The pair then drove to
St. Francisville, Louisiana and sold the air conditioning unit for $85. Harrison and Forkner then returned
to Bowling Green Road and stole a second air conditioning unit. Harrison testified that Forkner used a
screwdriver to pry the air conditioning unit from the window in which it was mounted, placed the unit into
the trunk of the car, and drove to his niece’s house, located at Sugar Hill. His niece, Linda Davis, and her
husband purchased the air conditioning unit for $40. There was conflicting testimony as to whether Forkner
or a “Mr. Green” sold the air conditioner to Davis. The air conditioning unit Davis purchased was
subsequently recovered by the Wilkinson County Sheriff’s Department.
¶5.
On February 21, 2001, Forkner’s indictment was amended to charge Forkner as a habitual
offender pursuant to Mississippi Code Annotated § 99-19-83. The jury returned a verdict of guilty on
Count I in the indictment and could not return a verdict on Count II. On February 28, 2001, Forkner was
sentenced to life without parole in accordance with Mississippi Code Annotated § 99-19-83. On March
8, 2001, Forkner filed his motion for judgment notwithstanding the verdict, or in the alternative, motion for
a new trial. Forkner’s motion was denied in an order dated March 9, 2001. From this guilty verdict,
Forkner now appeals.
LEGAL ANALYSIS
I. WHETHER THE INDICTMENT WAS DEFECTIVE.
STANDARD OF REVIEW
3
¶6.
“Whether an indictment is fatally defective is ‘an issue of law and deserves a relatively broad
standard of review by this Court.’” Porter v. State, 749 So. 2d 250, 260 (¶34) (Miss. Ct. App. 1999)
(quoting Peterson v. State, 671 So. 2d 647, 652 (Miss. 1996)).
DISCUSSION
¶7.
Forkner’s first assignment of error is that the indictment under whichhe was charged was defective.
The indictment in pertinent part reads as follows:
THE GRAND JURORS of the State of Mississippi, taken from the body of the
good and lawful citizens of the said County, elected, empaneled on February 14, 2000,
sworn and charged as required by law to inquire in and for said County, in the name and
by the authority of the State of Mississippi, upon their oath, present that
WINFRED “WIMP” FOLKNER and APRIL HARRISON
late of the County aforesaid, in said County, during or about August of 2000, acting in
concert, each with the other, did willfully, unlawfully, feloniously, and burglariously break
and enter the following storehouses, being hunting camps, with the felonious intent of them,
Winfred “Wimp” Folkner and April Harrison, once therein to steal and carry away goods,
merchandise, and other valuable items, and did, in fact, take, steal, and carry away the
below described items found and kept in said storehouses:
Count 1:
from the camp of Eric Trevillion on the Bowling Green Road was taken
one window air-conditioning unit;
Count 2:
from the camp of the Hobb’s Hunting Club on the Bowling Green Road
was taken one window air-conditioning unit;
contrary to the form of the statute in such cases made and provided, against the peace and
dignity of the State of Mississippi.
Forkner argues that the indictment is fatally flawed for the misspelling of his last name, as well as the failure
to specify an exact date as to when the crimes charged took place.
¶8.
The Mississippi Supreme Court has addressed the requirements for a sufficient indictment. The
Court stated that:
4
[T]he accused is entitled to a plain statement of the charge against him. It is fundamental,
of course, that an indictment, to be effective as such, must set forth the constituent elements
of a criminal offense; if the facts alleged do not constitute such an offense within the terms
and meaning of the law or laws on which the accusation is based, or if the facts alleged
may all be true and yet constitute no offense, the indictment is insufficient
Love v. State, 211 Miss. 606, 52 So. 2d 470, 472 (1951).
¶9.
Forkner first argues that the indictment issued against him was defective, as the indictment
misspelled his last name as “Folkner” rather than “Forkner.” Though Forkner contends that the
misspelling prejudiced his defense, he does not explain how he was prejudiced.
¶10.
This issue is not properly before this Court, as there was no substantive error in the
indictment. Forkner did not object to the indictment at the trial level, thus waiving this issue for
appeal. “When ‘the formal defect is curable by amendment ... the failure to demur to the indictment
in accordance with our statute’ will waive the issue from consideration on appeal.” Gray v. State,
728 So. 2d 36, 70 (¶169) (Miss. 1998) (quoting Brandau v. State, 662 So. 2d 1051, 1055
(Miss. 1995)).
¶11.
Alternatively, as such a matter is correctable, it may not be deemed as substantive. The
Mississippi Supreme Court has held that a misspelled name in the indictment is a matter which may
be corrected by the trial court on motion by the prosecutor. Evans v. State, 499 So. 2d 781, 78485 (Miss. 1986). Therefore, we find Forkner’s argument to be without merit.
¶12.
Forkner’s second argument as to the insufficiency of the indictment is that the indictment
does not contain the date certain on which the burglary occurred. The Fifth Circuit Court of
Appeals has addressed this issue and held that "an allegation as to the time of the offense is not an
essential element of the offense charged in the indictment and, 'within reasonable limits, proof of
any date before the return of the indictment and within the statute of limitations is sufficient.' " U.S.
5
v. Cochran, 697 F. 2d 600, 604 (5th Cir. 1983). (citing Russell v. United States, 429 F. 2d 237,
238 (5th Cir. 1970)). The Mississippi Supreme Court also recognizes this as the proper legal
standard. Daniels v. State, 742 So. 2d 1140, 1143 (¶10) (Miss. 1999). Therefore, this issue is
without merit.
II. WHETHER THE TRIAL COURT ERRED BY RECESSING OVER THE WEEKEND.
STANDARD OF REVIEW
¶13.
“In our jurisprudence the trial court has broad discretion in the granting or refusing of a continuance
or delay. In such cases, this Court will not disturb the holding of the trial court unless we can say from the
facts shown in the trial that the trial court abused its discretion or that injustice has been done.” McClendon
v. State, 335 So. 2d 887, 888 (Miss. 1976) (citing Jackson v. State, 254 So. 2d 876 (Miss. 1971)).
DISCUSSION
¶14.
Forkner argues that his trial was prejudiced by the trial court’s decision to recess the proceedings
over the weekend. During the lunch break on the first day of trial, the State discovered that two of its key
witnesses had not been served the subpoenas which had been issued the day prior to trial. Originally, the
trial judge stated that she was inclined to proceed with trial and for the State to present those witnesses
which were present, with its case being subject to a directed verdict. It was noted by the State that the
witnesses which were not present were subpoenaed by both the State and the defense, the defense’s
subpoenas being issued on February 15th, the State’s subpoenas being issued on February 21st. Neither
set of subpoenas were served. The court then recanted and decided that testimony would need to be
presented that coming Monday, because any testimony presented prior to the weekend might have been
forgotten by the jurors. The trial court decided that the proper course of action was to present opening
6
statements after the lunch hour, then to recess trial until 9:00 a.m. the following Monday so that the State’s
case would be presented continuously, in an effort to reduce confusion to the jury.
¶15.
This Court reviews the decision of a trial judge to grant continuances or to recess the proceedings
under an abuse of discretion standard. McClendon, 335 So. 2d at 888. The reasons set forth by the trial
judge clearly state her reasoning in granting the recess. Denial of a continuance is not reversible unless
manifest injustice appears to have resulted from the denial. Hatcher v. Fleeman, 617 So. 2d 634, 639
(Miss. 1993). In accordance with the prior decisions of the Mississippi Supreme Court, there is no
indication that the trial judge abused his discretion, nor that manifest injustice has occurred. Morgan v.
State, 741 So. 2d 246, 255 (¶25) (Miss. 1999). Therefore, this issue is without merit.
III. WHETHER THE WITNESS, APRIL HARRISON’S, TESTIMONY WAS INSUFFICIENT TO
SUPPORT THE JURY’S VERDICT.
STANDARD OF REVIEW
¶16.
This Court accepts as true all evidence which supports the verdict and will reverse only when
convinced that the trial court has abused its discretion in failing to grant a new trial. Carney v. State, 821
So. 2d 853, 859 (¶29) (Miss. Ct. App. 2002) (citing Eakes v. State, 665 So. 2d 852, 872 (Miss. 1995)).
Therefore, it was within the purview of the jury to decide the weight and worth of the witness’s testimony.
Id.
DISCUSSION
¶17.
Forkner next argues that the testimony of the State’s witness, April Harrison, was improbable, self-
contradictory, and substantially impeached. In support of this contention, Forkner raises Harrison’s drug
use on the night the thefts took place, her sketchy memory as to the fine details of the night, and the fact
7
that the owner of the hunting camp, from which the second air conditioning unit was stolen, stated that he
had reported his camp as burglarized on June 16th, not during late August or early September.
¶18.
While Forkner is correct in stating that Harrison’s testimony was substantially impeached as to the
second count in the indictment, the issue is moot, as he was not convicted under the second count. The
jury was able to return a verdict only under Count I of the indictment, and in reviewing the testimony of
Harrison in support of Count I, this Court adheres to the following standard of review:
In reviewing a challenge to the sufficiency of the evidence, this Court is obligated to view
the evidence in the light most favorable to sustaining the conviction. We are authorized to
set aside a jury's verdict only if we are convinced that, as to one of the essential elements
of the crime, the State's proof was so deficient that a reasonable and fair-minded juror
could only find the defendant not guilty.
Byars v. State, 835 So. 2d 965, 970 (¶13) (Miss. Ct. App. 2003).
¶19.
In reviewing the record, Harrison’s testimony details the events of the night in question for her and
Forkner. Although some contradictions were present in Harrison’s testimony, it is not the role of this Court
to determine the credibility of the witness. The law is well settled that “[o]ur case law is axiomatic on the
proposition that the jury is arbiter of the credibility of testimony. ‘It is, of course, within the province of the
jury to determine the credibility of witnesses....’” Collier v. State, 711 So. 2d 458, 462 (¶18) (Miss.
1998) (quoting Pleasant v. State, 701 So. 2d 799, 802 (¶13) (Miss. 1997)). The jury assigns the weight
to be given the testimony of a witness, and the jury’s verdict is supported by Harrison’s testimony. We find
this issue to be without merit.
IV. WHETHER THE COURT ERRED IN GRANTING THE STATE’S INSTRUCTION S-7.
STANDARD OF REVIEW
¶20.
"Our standard of reviewing a judge's decision concerning jury instructions is as follows: In
determining whether error lies in the granting or refusal of various instructions, the instructions actually given
8
must be read as a whole.” Conners v. State, 822 So. 2d 290, 292 (¶5) (Miss. Ct. App. 2001). "When
so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error
will be found." Id.
DISCUSSION
¶21.
Forkner’s next assignment of error is that State’s instruction S-7 was improper. State’s instruction
S-7 reads as follows: “The Court instructs the jury that the possession of property recently stolen is a
circumstance which may be considered by the jury and from which, in the absence of a reasonable
explanation, the jury may infer guilt.” The record further indicates that upon determining which jury
instructions to allow, Forkner’s counsel raised no objection to instruction S-7. This Court has held
numerous times that a defendant is confined on appeal to the grounds of objection he raised at trial. “The
failure of an offended party to properly object to a jury instruction bars the issue on appeal.” Wells v.
State, 849 So. 2d 1231, 1237 (¶19) (Miss. 2003) (citing Jones v. State, 776 So. 2d 643, 653 (¶35)
(Miss. 2000)). As such, we find this issue is procedurally barred.
V. WHETHER THE PROSECUTOR’S REMARKS IN HIS OPENING STATEMENT WERE
IMPROPER.
STANDARD OF REVIEW
¶22.
“The standard of review that appellate courts must apply 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 (¶7) (Miss. 2000).
DISCUSSION
9
¶23.
Forkner next contends that the prosecutor’s remarks concerning a witness, Jason James, during
the State’s opening statement was improper. During the State’s opening statement, the prosecutor
explained to the jury what he expected and anticipated from James’s testimony. Specifically, he
anticipated James to testify that Forkner confessed to stealing the two air conditioning units. At the time
of the State’s opening statement, no objection was made to such remarks. Prior to the statement being
made, defense counsel knew of the State’s intention to call James and to what he would testify. Rather than
making a contemporaneous objection, defense counsel waited to object when James was called to testify.
¶24.
Later during the trial, when the State wished to call James to testify, Forkner’s counsel successfully
objected to James’s testimony. The trial judge at this point deemed that to allow James’s testimony would
place an undue burden on Forkner, as Forkner would be limited in his cross-examination of James.
¶25.
Rather than objecting during the opening statement when the prosecutor made reference to James
and what he anticipated his testimony to be, Forkner’s counsel objected when the State attempted to call
James to testify. On appeal, Forkner contends that by mentioning James during opening statements, the
prosecutor caused detriment to Forkner’s case.
¶26.
It is well settled that a contemporaneous objection is necessary to preserve the right to raise an
error on appeal. Pittman v. State, 297 So. 2d 888, 892 (Miss. 1974) (citing Myers v. State, 268 So.
2d 353 (Miss. 1972)). While the prosecutor’s statements were not beneficial to Forkner’s defense, this
issue was not properly preserved to be brought before this Court. To allow reversal for this assignment
of error, would allow defendants the tactical advantage of refraining from objecting during opening
statements, obtaining a favorable ruling on a piece of objectionable evidence or testimony, and then raising
the entire issue again on appeal as an assignment of error. As the trial judge did not have the opportunity
10
to correct any problem which may have been present, we will not review this issue on appeal. Patton v.
State, 742 So. 2d 150, 153 (¶9) (Miss. Ct. App. 1999). Therefore, this issue is procedurally barred.
VI. WHETHER THE TRIAL COURT ERRED IN GRANTING THE STATE’S MOTION TO
AMEND THE INDICTMENT.
STANDARD OF REVIEW
Amendments to an indictment may be made only if the amendment is immaterial to the
merits of the case and the defense will not be prejudiced by the amendment. Amendments
as to the substance of the charge must be made by a grand jury. “The test for whether an
amendment to the indictment will prejudice the defense is whether the defense as it
originally stood would be equally available after the amendment is made.”
Crawford v. State, 754 So. 2d 1211, 1219 (¶17) (Miss. 2000) (citing Eakes v. State, 665 So. 2d 852,
860 (Miss. 1995)).
DISCUSSION
¶27.
Forkner argues that the trial court erred by granting the State’s motion to amend the indictment on
the date of trial so that Forkner would be tried as a habitual offender, pursuant to Mississippi Code
Annotated § 99-19-83. In support of this contention, Forkner argues that the amended indictment violates
his Eighth Amendment right against cruel and unusual punishment.
Mississippi Code Annotated § 99-19-83 reads as follows:
Every person convicted in this state of a felony who shall have been convicted twice
previously of any felony or federal crime upon charges separately brought and arising out
of separate incidents at different times and who shall have been sentenced to and served
separate terms of one (1) year or more in any state and/or federal penal institution, whether
in this state or elsewhere, and where any one (1) of such felonies shall have been a crime
of violence shall be sentenced to life imprisonment, and such sentence shall not be reduced
or suspended nor shall such person be eligible for parole or probation.
¶28.
The Mississippi Supreme Court has previously held that it is permissible to amend the indictment
on the date of trial and to charge the defendant as a habitual criminal under Mississippi Code Annotated
11
§ 99-19-83, when defense counsel is aware of the State’s intentions and the defendant is fully aware of the
State’s intentions during plea negotiations. Ellis v. State, 469 So. 2d 1256 (Miss. 1956). A review of the
record indicates that the State has met these requirements as follows:
THE COURT: Good morning. This is state of Mississippi versus Winfred Forkner, Cause No. 00KR-044. Mr. Rosenblatt, you have a motion that has been filed to amend that was filed last week.
MR. ROSENBLATT: Yes, Your Honor. Well, I actually filed it yesterday, but I believe I gave
notice to the Court last week and to Mr. Sermos.
MR. SERMOS: Yes, Your Honor. That’s correct. He did.
MR. ROSENBLATT: Your Honor, it’s a motion to amend the indictment to allege that Mr.
Winfred Forkner is a habitual offender within the means of 99-19-83, and that statute provides that
if he serves at least one year on two different convictions, one of which is a crime of violence, then
he’s due to receive a sentence of life without parole upon conviction.
THE COURT: Do you have another copy of that because it’s not in this file?
MR. ROSENBLATT: Your Honor, I believe Rule 7.09 clearly allows for this sort of amendment
which goes towards enhanced sentencing.
THE COURT: The Court is going to grant the amendment. So Mr. Forkner, you’ll be tried as a
habitual offender for sentencing purposes, enhancement of the sentence.
MR. ROSENBLATT: Your Honor, for the record, we have offered to allow Mr. Forkner to plead
as a nonhabitual to the [b]urglary of a [s]torehouse charge as oppose[d] to a life habitual. My
understanding is he has declined to accept that offer. Burglary of a storehouse would carry the
maximum of seven years, and I believe he has been made aware of that by his attorney.
THE COURT: And what does his sentence carry?
MR. ROSENBLATT: As an habitual, it would be life without parole.
THE COURT: Okay. So Mr. Sermos, you have discussed that with Mr. Forkner?
MR. SERMOS: Yes, Your Honor. On two separate occasions.
THE COURT: Mr. Forkner, do you still desire to go to trial?
THE DEFENDANT: Oh, we are going to trial.
12
As the record demonstrates, Forkner was clearly aware of the State’s intention to amend the indictment
and the penalty which the amendment would carry.
¶29.
Further, Rule 7.09 of the Uniform Rules of Circuit and County Court directly addresses this issue.
Rule 7.09 reads as follows:
All indictments may be amended as to form but not as to the substance of the offense
charged. Indictments may also be amended to charge the defendant as an habitual
offender or to elevate the level of the offense where the offense is one which is
subject to enhanced punishment for subsequent offenses and the amendment is to
assert prior offenses justifying such enhancement (e.g. driving under the influence,
Miss. Code ann. § 63-11-30). Amendment shall be allowed only if the defendant is
afforded a fair opportunity to present a defense and is not unfairly surprised (emphasis
added).
As the amendment in no way prejudiced Forkner’s defense, we find this argument to be
without merit.
¶30.
Forkner’s second argument is that because of its prescribed sentence of life imprisonment without
parole, Mississippi Code Annotated § 99-19-83 is violative of his Eighth Amendment right. Forkner’s
contention has been addressed by the Fifth Circuit Court of Appeals in the case of McGruder v. Puckett,
954 F.2d 313 (5th Cir. 1992). In the McGruder opinion, the Fifth Circuit found that §99-19-83 does not
violate one’s Eighth Amendment rights. Further, the Mississippi Supreme Court acknowledges that the
length of sentences is properly controlled by the legislature. Davis v. State, 724 So. 2d 342, 344 (¶11)
(Miss. 1998). Therefore, this issue is without merit.
VII. WHETHER THE COURT ERRED IN DENYING APPELLANT’S MOTION FOR DIRECTED
VERDICT, A PEREMPTORY INSTRUCTION, OR A JUDGMENT NOTWITHSTANDING THE
VERDICT.
STANDARD OF REVIEW
[W]e must, with respect to each element of the offense, consider all of the evidence--not
just the evidence which supports the case for the prosecution--in the light most favorable
13
to the verdict. The credible evidence which is consistent with the guilt must be accepted
as true. The prosecution must be given the benefit of all favorable inferences that may
reasonably be drawn from the evidence. Matters regarding the weight and credibility to
be accorded the evidence are to be resolved by the jury. We 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.
Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987) (citations omitted).
DISCUSSION
¶31.
Forkner argues that the State did not prove beyond a reasonable doubt all of the elements of the
crime for which he was convicted. First, Forkner contends that the State did not prove beyond a
reasonable doubt that the camps were burglarized in August, 2000. Further, Forkner argues that the State
did not prove beyond a reasonable doubt that he was guilty of committing the break-ins.
¶32.
At trial, Trevillion, the owner of one camp which was burglarized, stated that the air conditioner
was discovered as missing in late summer or early fall of 2000. Again, Forkner argues that the State did
not pinpoint the exact date that the theft occurred. In his contention, Forkner relies on the date specified
in the indictment as the date which must be proved as when the burglary occurred. As previously discussed
in Forkner’s first assignment of error, this issue is without merit.
¶33.
Forkner next argues that the State did not prove beyond a reasonable doubt that he committed the
break-ins. At trial, Harrison testified that she witnessed Forkner pry the air conditioning unit out of the
window of the hunting camp which constitutes the second count of the indictment. The air conditioner
which was the subject of Count I of the indictment was the air conditioning unit Harrison testified she saw
Forkner pull over to the side of the road outside of Trevillion’s hunting camp, retrieve an air conditioner
from the ditch, and place the air conditioner into the trunk of the car. Through this testimony, an inference
was made by the jury that Forkner had previously removed the air conditioner and placed it by the road
14
for later retrieval. “It is within the discretion of the jury to accept or reject testimony by a witness, and the
jury ‘may give consideration to all inferences flowing from the testimony.’” Quarles v. State, 863 So. 2d
987, 988 (¶4) (Miss. Ct. App. 2004) (quoting Magnum v. State, 762 So. 2d 337 (¶12) (Miss. 2000)).
¶34.
Issues of credibility and the weight assigned to the testimony presented are determinations which
are made by the jury. Jackson v. Griffin, 390 So. 2d 287, 289 (Miss. 1980). As the jury’s verdict was
supported by the evidence, we will not disturb it on appeal. Therefore, we find this issue to be without
merit.
VIII. WHETHER THERE ARE CUMULATIVE ERRORS WHICH REQUIRE REVERSAL.
STANDARD OF REVIEW
¶35.
This Court may reverse a conviction and sentence based upon the cumulative effect of errors that
independently would not require reversal. Jenkins v. State, 607 So. 2d 1171, 1183-84 (Miss. 1992).
However, where there was no reversible error in any part, there is no reversible error as to the whole.
McFee v. State, 511 So. 2d 130, 136 (Miss. 1987).
DISCUSSION
¶36.
Forkner lastly contends that he was deprived of a fundamentally fair and impartial trial due to the
cumulative errors throughout the trial. As we have found no reversible error with any aspect of the trial,
reversal due to cumulative errors is not proper. Id. Therefore, this issue is without merit.
¶37. THE JUDGMENT OF THE CIRCUIT COURT OF WILKINSON COUNTY OF
CONVICTION OF BURGLARY OF A STOREHOUSE AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AS A HABITUAL OFFENDER, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO WILKINSON COUNTY.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
15
16
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.