Conners v. State, 2000-KA-00553-COA.

• Decision Date: 27 February 2001
• Docket Number: No. 2000-KA-00553-COA.,2000-KA-00553-COA.
• Citation: 822 So.2d 290
• Parties: Clifton CONNERS, Jr., Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

822 So.2d 290

Clifton CONNERS, Jr., Appellant, v. STATE of Mississippi, Appellee.

No. 2000-KA-00553-COA.

Court of Appeals of Mississippi.

February 27, 2001.

David Clay Vanderburg, Attorney for Appellant.

Office of the Attorney General by John R. Henry, Jr., Attorney for Appellee.

Before McMILLIN, C.J., PAYNE, and LEE, JJ.

PAYNE, J., for the Court:

PROCEDURAL HISTORY

¶ 1. Clifton Conners, Jr., was charged in the DeSoto County Circuit Court with two criminal counts: Count I for burglary of a dwelling; Count II for robbery. Conners was tried before a jury and was found guilty on both counts. He received twenty-five years on Count I and ten years on Count II, said sentences to run consecutively.

¶ 2. Conners subsequently moved for a directed verdict at the end of the State's case and filed a motion for new trial and motion for judgment notwithstanding the verdict at the end of the trial, all motions being denied. Feeling aggrieved by these denials and by the circuit court's denying one of his requested jury instructions, Conners has appealed to this Court.

FACTS

¶ 3. On or about April 25, 1999, eighty-one year old Florence Davis arrived at her home near Lewisburg, Mississippi. She got out of her car, walked up to her front porch and proceeded to enter her home when she was grabbed from behind. Conners, her assailant, put his hands over Davis's mouth and threatened to kill her. Upon entering the house, Conners forced Davis into a bedroom where he again assaulted her. Later, Conners took $24.50 from Davis's purse. Throughout this encounter, Conners told Davis he was going to kill her. In the end, upon Davis's promise not to call the police, Conners left. Davis then drove to a relative's house, reported what had happened, and the police responded. Conners was apprehended the following day.

ANALYSIS OF THE ISSUES PRESENTED

STANDARD OF REVIEW

¶ 4. With this appeal, appellant Clifton Conners, Jr. argues that the court erred in overruling the following: his motion for directed verdict of acquittal at the close of the State's case-in-chief, his requested Jury Instruction D-1, his motion for new trial, and his motion for judgment notwithstanding the verdict.

¶ 5. 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 must be read as a whole. When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found." Coleman v. State, 697 So.2d 777, 782 (Miss. 1997). Additionally, the jury instruction at issue is an peremptory instruction.

The standard of review for peremptory instructions and directed verdicts are the same. "In passing upon a request for a peremptory instruction, all evidence introduced by the State is to be accepted as true, together with any reasonable inferences that can be drawn from that evidence, and if sufficient evidence to support a verdict of guilty exists, the motion for a directed verdict is to be overruled."

Wall v. State, 718 So.2d 1107 (¶ 15) (Miss. 1998) (citations omitted).

¶ 6. With this appeal, Conners also challenges the trial court's rulings on his motions for directed verdict, motion for new trial, and motion for judgment notwithstanding the verdict. We first look to our standard of reviewing Conners's motion for directed verdict and his motion for judgment notwithstanding the verdict:

The standard of review is the same for both directed verdicts and judgments notwithstanding the verdict. This Court has set forth the standard as follows: Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that given the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty.

Sullivan v. State, 749 So.2d 983 (¶ 24) (Miss.1999) (citations omitted). A motion for new trial concerns the weight of the evidence.

Matters regarding the weight and credibility of the evidence are to be resolved by the jury....

Moreover, the challenge to the weight of the evidence via motion for a new trial implicates the trial court's sound discretion. Procedurally such challenge necessarily invokes [Uniform Circuit and County Court Rule 10.05]. New trial decisions rest in the sound discretion of the trial court, and the motion should not be granted except to prevent an unconscionable injustice. We reverse only for abuse of discretion....

McClain v. State, 625 So.2d 774, 778-81 (Miss.1993) (citations omitted).

DISCUSSION OF THE ISSUES

¶ 7. Conner's brief does not develop any arguments concerning the denial of his requested jury instruction or motions. He only cites Uniform Rule of Circuit and County Court Practice 10.05 and the McClain case which distinguishes between the weight of the evidence and sufficiency of the evidence. See McClain v. State, 625 So.2d 774 (Miss.1993)

. Nonetheless, we briefly address these issues and still find that affirmance is required.

¶ 8. First, we address Conner's proposed jury instruction which he claims was improperly denied. The questionable instruction read, "The Court instructs the jury to find the Defendant not guilty." Mississippi law is clear on the subject of peremptory instructions in criminal cases: "Peremptory instructions should be refused if there is enough evidence to support a verdict." Warn v. State, 349 So.2d 1055, 1055 (Miss.1977). See also Hicks v. State, 580 So.2d 1302, 1304 (Miss.1991)

; Benson v. State, 551 So.2d 188, 193 (Miss. 1989). Reviewing the evidence in this...