Commodore v. State

• Decision Date: 28 October 2008
• Docket Number: No. 2007-KA-01268-COA.,2007-KA-01268-COA.
• Citation: Commodore v. State, 994 So.2d 864 (Miss. App. 2008)
• Parties: Edgar Lee COMMODORE, Jr., Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

994 So.2d 864

Edgar Lee COMMODORE, Jr., Appellant, v. STATE of Mississippi, Appellee.

No. 2007-KA-01268-COA.

Court of Appeals of Mississippi.

October 28, 2008.

Tony L. Axam, attorney for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before KING, C.J., IRVING and CHANDLER, JJ.

CHANDLER, J., for the Court.

¶ 1. Edgar Lee Commodore, Jr., was tried for and convicted of the crimes of Count I, conspiracy; Count II, burglary of a building other than a dwelling; Count III, attempted grand larceny; and Count V, attempted aggravated assault.¹ For the crime of conspiracy, the Circuit Court of DeSoto County sentenced Commodore to serve five years. For the crime of burglary of a building other than a dwelling, the trial court sentenced Commodore to serve seven years. For the crime of attempted grand larceny, the trial court sentenced Commodore to serve ten years. For the crime of attempted aggravated assault, the trial court imposed a sentence of twenty years. All sentences were to be served in the custody of the Mississippi Department of Corrections and to run concurrently to one another. Commodore was sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007). The trial court also ordered Commodore to pay restitution in the amount of $100 to the Crime Victims' Compensation Fund and to pay all court costs.

¶ 2. Commodore appeals, arguing that: (1) the trial court erred in denying his motion for a new trial; (2) a rational trier of fact could not have found his guilty of attempted aggravated assault beyond a reasonable doubt; (3) his Sixth Amendment rights were violated when he received ineffective assistance of counsel; (4) the trial court erred when it allowed the State to amend the indictment to include habitual-offender language; (5) the trial court erred in allowing the amended indictment to stand for sentencing when the State failed to timely file the amended indictment; (6) the trial court erred in allowing testimony as to his intent.

¶ 3. We find that Commodore's issues are without merit. Therefore, we affirm his convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶ 4. Commodore was convicted of conspiracy, burglary, attempted grand larceny, and attempted aggravated assault. On October 19, 2004, Deborah Hill (Deborah) alerted her husband, Brian Hill (Brian), to suspicious activity occurring at a neighboring house that was under construction at the time. Brian testified that he observed two vehicles backed into the driveway around 11:00 p.m. that evening, but he did not see any people. He instructed his wife to call the police, retrieved his personal gun, and drove his vehicle around to the neighboring house. He then parked his vehicle across the end of the neighboring driveway so as to prevent the other vehicles from exiting. Brian also testified that he pulled his gun on a man later identified as Commodore when Commodore got into the white Yukon and drove directly toward Brian. Brian stated at trial that he "had to push [him]self off of the vehicle to prevent [him]self from being hit and run over."

¶ 5. Roosevelt Hill (Roosevelt) testified at trial that Commodore said he knew how to make some money, and Roosevelt was supposed to act as a lookout while Commodore stole the dishwasher. When Brian arrived on the scene, Roosevelt quickly got into in his gray van and drove away. Roosevelt also stated that when he looked in his rearview mirror he saw Brian trying to dodge Commodore's Yukon.

¶ 6. Brian then got into his vehicle and followed Commodore until he was successfully stopped by Officer Danielle Beith. Beith testified at trial that after placing Commodore in the back of her patrol car, he stated that he had been acting as the lookout for another male, later determined to be Roosevelt. Commodore told Officer Todd Pierce that he and Roosevelt had been planning on stealing a dishwasher from the unoccupied house at which Brian found them. Pierce went to the unoccupied house later than night with Steve Cannon, the owner of the burglarized home. Cannon confirmed that the appliances had been installed in the house, and some were now missing. The dishwasher had been pulled out from the wall and damaged, but it had not been taken from the house.

¶ 7. Commodore maintained at trial that he had been contacted by Roosevelt to visit a house that his aunt was about to buy. Commodore also testified that he had not been acting as a lookout. Instead, he had only just arrived and was walking toward the house when Brian pulled a gun on him. He stated that he was not trying to run Brian over with his vehicle, but only trying to get away quickly because he did not want to be shot. Both Roosevelt and Commodore were arrested and taken into custody.

¶ 8. Commodore was indicted on March 22, 2005, and tried on November 25, 2005. On the morning of trial, the State made a motion to amend the indictment to include habitual-offender language. The trial judge allowed the amendment and entered an order amending the indictment. The jury found Commodore guilty on all counts. On February 21, 2006, Commodore filed a motion for leave to file an out-of-time appeal and an extension to file an appeal. New defense counsel was retained, and a motion for a new trial was filed. The trial court granted Commodore's motion for an out-of-time appeal, denied the motion for a new trial, and reopened the period for appeal. Commodore timely filed his notice of appeal.

LAW AND ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING COMMODORE'S MOTION FOR A NEW TRIAL.

¶ 9. A trial court's denial of a motion for a new trial should only be reversed when the reviewing court finds that there was an abuse of discretion. Sheffield v. State, 749 So.2d 123, 127(¶ 16) (Miss.1999). A motion for a new trial challenges the weight of the evidence, and the appellate court should 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." Bush v. State, 895 So.2d 836, 844(¶ 18) (Miss.2005). The evidence should be viewed in the light most favorable to the prosecution, and the court must ask whether any rational trier of fact could have found the essential elements of the charged crimes beyond a reasonable doubt. Id. at 843(¶ 16).

¶ 10. Commodore contends that the weight of the evidence did not support the jury's finding of guilt in the alleged charges. The State presented evidence from both eyewitnesses and police officers detailing the incidents leading up to Commodore's arrest. Brian, Deborah, and Roosevelt all testified that they observed Commodore leaving the house that night and attempting to run over Brian with a vehicle. Roosevelt testified that he and Commodore discussed ways to get additional money, and Commodore suggested they steal something out of a house to sell. Roosevelt then detailed essentially the same scenario that had been testified to earlier by Brian. Officer Beith and Officer Pierce testified that Commodore admitted to his involvement in the scheme when he was stopped and questioned.

¶ 11. The weight of the evidence presented at trial, when viewed in the light most favorable to the prosecution, could have led a reasonable trier of fact to find Commodore guilty of conspiracy, burglary, attempted grand larceny, and attempted aggravated assault. Therefore, we find that the verdict was not so contrary to the overwhelming weight of the evidence so as to cause an unconscionable injustice. This issue is without merit.

II. WHETHER THE TRIAL COURT ERRED IN FINDING THAT A RATIONAL TRIER OF FACT COULD HAVE FOUND COMMODORE GUILTY OF ATTEMPTED AGGRAVATED ASSAULT BEYOND A REASONABLE DOUBT.

¶ 12. The standard of review for overturning the "denial of a motion for judgment notwithstanding the verdict (JNOV) is de novo as to the law applied by the trial court judge as well as the evidence presented during trial." Johnson v. St. Dominics-Jackson Mem'l Hosp., 967 So.2d 20, 22(¶ 3) (Miss.2007). A motion for JNOV challenges the sufficiency of the evidence as opposed to a motion for a new trial which challenges the weight of the evidence. Bush, 895 So.2d at 843-44 (¶¶ 16, 18). The supreme court has stated:

in considering whether the evidence is sufficient to sustain a conviction in the face of a motion 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."

Id. at 843(¶ 16) (quoting Carr v. State, 208 So.2d 886, 889 (Miss.1968)). Each element must be tested for legal sufficiency to ensure that the State has proven it beyond a reasonable doubt. Edwards v. State, 469 So.2d 68, 70 (Miss.1985). The evidence must be taken in the light most favorable to the State. Id. at 70. If the evidence is of such a nature that "reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions," the motion for JNOV should be denied. Id.

¶ 13. According to Mississippi Code Annotated section 97-3-7(2) (Supp.2007):

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[.]

The State presented evidence relevant to each of these elements through the testimony of various eyewitnesses that Commodore drove straight toward Brian, despite there being nothing to obstruct Commodore's view. The State also elicited testimony about the...