Foster v. State

• Decision Date: 26 March 2013
• Docket Number: No. 2011–KA–01796–COA.,2011–KA–01796–COA.
• Citation: 148 So.3d 1045
• Parties: Eric James FOSTER a/k/a Eric Foster a/k/a Eric J. Foster, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

148 So.3d 1045

Eric James FOSTER a/k/a Eric Foster a/k/a Eric J. Foster, Appellant

v.STATE of Mississippi, Appellee.

No. 2011–KA–01796–COA.

Court of Appeals of Mississippi.

March 26, 2013.

Rehearing Denied July 16, 2013.

George T. Holmes, Jackson, Walter Fred Beesley, attorneys for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

EN BANC.

Opinion

ROBERTS, J., for the Court:

¶ 1. After a jury trial in the Franklin County Circuit Court, Eric James Foster was convicted of one count of armed robbery, and he was sentenced to serve forty years in the custody of the Mississippi Department of Corrections (MDOC). As a result of his conviction and sentence, Foster now appeals arguing that the verdict is not supported by the weight of the evidence and that his sentence is illegal. Finding no error, we affirm Foster's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of December 2, 2009, Bank of Franklin tellers Debbie Smallwood and Pat Langston were at their desks when two masked men dressed in camouflage burst through the door. The men jumped over the counter, knocking Langston out of her chair and to the floor, and they were yelling to give them the money. Smallwood testified that one of the men was carrying a large knife. Smallwood and Langston both testified that they feared serious injury or death during the robbery. After taking money from the vault as well as from both the tellers' desks, the two men left the bank with approximately $92,000.

¶ 3. Police ultimately arrested Donald James Wilson, Tyrone Butler, and Foster as the men responsible for committing the crimes. Foster was indicted for armed robbery, and his trial began on October 18, 2011.¹ At trial, Smallwood and Langston testified in great detail about the armed robbery. Butler also testified for the State. He testified that he had spent the morning drinking and smoking with Wilson and Foster when they decided to go to the gas station to get something. Wilson indicated that he needed to stop by the Bank of Franklin to cash a check and then told Butler that he had “a plan to do something wrong.” Butler admitted to being the getaway-car driver and to picking them up after the robbery occurred. He testified that Foster and Wilson were wearing camouflage and carrying a blue bag and a white bag filled with money. Foster and Wilson gave Butler over $6,000 of the stolen money. Additionally, the State presented the testimony of the bank's president and Officer David Blackwell.

¶ 4. The defense called Jewel Farmer and Carlotta Gray. Farmer testified that the day of the robbery she saw two men running away from the bank wearing camouflage. They got in a white truck. She described their heights and builds, but could not identify either of the men. Gray testified that she was personal friends with Foster and that he would come eat lunch with her every day, including the day of the armed robbery. She admitted that she had never informed the police that Foster had eaten lunch with her until Foster's attorney asked her later. Foster then took the stand in his own defense, and it was his primary contention that he had not left his house the day of the armed robbery and that Gray had brought him lunch that day. He further testified that he had never even met Wilson. Foster was also questioned about his purchase of a new car shortly after the robbery occurred. This purchase resulted in a conviction of receiving stolen property. He claimed that he had earned the money from working on cars and “hustling.” However, Foster also testified that he had not been working on cars much around that time due to the weather conditions.

¶ 5. After hearing the testimony and evidence presented, the jury deliberated and returned a verdict finding Foster guilty of armed robbery. The circuit judge sentenced Foster to serve forty years in the custody of the MDOC. Foster filed a motion for a judgment notwithstanding the verdict and a motion for a new trial, and the circuit court denied both motions. Foster appeals and raises the following two issues:

I. Whether the verdict is supported by the weight of [the] evidence?

II. [Whether] Foster's sentence [is] illegal?

STANDARD OF REVIEW

¶ 6. A motion for a new trial is a challenge to the weight of the evidence, and “we will 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) (citation omitted). The evidence must be viewed in the light most favorable to the verdict. Id.

¶ 7. As for Foster's claim that his sentence is illegal, “[o]ur standard of review for a trial court's imposition of a sentence is abuse of discretion. ‘Sentencing is within the complete discretion of the trial court and [is] not subject to appellate review if [the sentence imposed] is within the limits prescribed by statute.’ ” Williams v. State, 5 So.3d 496, 505 ( ¶ 26) (Miss.Ct.App.2008) (quoting Nichols v. State, 826 So.2d 1288, 1290 ( ¶ 10) (Miss.2002)).

ANALYSIS

I. WEIGHT OF THE EVIDENCE

¶ 8. Foster's primary argument on this issue is that his conviction rests solely on the testimony of Butler, a co-conspirator and habitual offender. According to Foster, Butler's testimony implicating Foster was “unreasonable, contradictory[,] and impeached on several fronts.” Citing Flanagan v. State, 605 So.2d 753, 758 (Miss.1992), Foster submits that when the only evidence presented is the testimony of alleged co-conspirators, and this testimony is found to be conflicting, self-serving, and unworthy of belief, it is “inadequate as the sole evidence upon which to sustain a conviction.”

¶ 9. Foster was charged with violating Mississippi Code Annotated section 97–3–79 (Rev.2006), which states: “Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery....” The Mississippi Supreme Court consistently has held that “[t]he uncorroborated testimony of an accomplice may be sufficient to sustain a guilty verdict.” Catchings v. State, 394 So.2d 869, 870 (Miss.1981) (citations omitted). As Foster points out in his brief, accomplice testimony should be viewed with caution and “must be reasonable, not improbable, self-contradictory[,] or substantially impeached.” Id.

¶ 10. The record is clear to us that Butler's testimony was corroborated in part by Smallwood, Langston, and Farmer. All three witnesses described the camouflage clothing the men were wearing during and after the robbery; Butler also testified that when he picked Foster and Wilson up after the robbery, they were wearing camouflage. Butler's testimony regarding the color of the getaway truck was again corroborated by Farmer. Additionally, Butler testified that Foster and Wilson were carrying a blue bag and white bag when they got back into the truck. This fact was corroborated by the bank's surveillance video and the testimony of Smallwood and Langston. There is no doubt that Butler's testimony attempted to minimize his culpability; however, his testimony was not unreasonable, improbable, self-contradictory, or substantially impeached. He admitted he received and spent approximately $6,000 from the proceeds of the armed robbery, possibly as payment for being the getaway driver. A large part of Butler's testimony was corroborated by other evidence or testimony; therefore, we cannot find that his testimony was inherently unreliable or substantially impeached.

¶ 11. Further, it is well-settled law that the jury determines the credibility of the witnesses and resolves conflicts in the evidence. Davis v. State, 866 So.2d 1107, 1112 ( ¶ 17) (Miss.Ct.App.2003). In the present case, the jury heard the testimony of Butler, Smallwood, Langston, and Farmer and weighed this testimony against the testimony of Foster and Gray. Based upon its return of a guilty verdict, the jury resolved any conflicts in favor of the State. We cannot find that the jury's verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice.

¶ 12. This issue is without merit.

II. ILLEGAL SENTENCE

¶ 13. Foster next claims that his sentence is illegal because it exceeds his life expectancy. However, the claim that Foster's forty-year sentence is illegal was never presented to the circuit court for consideration. The record demonstrates that Foster's attorney did not object to Foster's sentence before, during, or after sentencing. Additionally, his attorney filed two post-trial motions raising a variety of issues, none of which included the legality of the sentence. “Under Mississippi law, if an appellant raises for review an issue not raised in the pleadings, transcript, or rulings, the appellant must have preserved the issue by raising it in a motion for [a] new trial.” Ross v. State, 603 So.2d 857, 861 (Miss.1992) (citations omitted). Because Foster did not preserve the issue at trial or in his post-trial motions, the only available avenue for review would be under the plain-error doctrine. A plain-error analysis “includes a determination of whether there is an error that is some deviation from a legal rule; whether the error is plain, clear[,] or obvious[;] and whether the error is prejudicial in its effect upon the outcome of the trial court proceedings.” Fleming v. State, 790 So.2d 888, 892 ( ¶ 8) (Miss.Ct.App.2001) (citing Porter v. State, 749 So.2d 250, 260–61 ( ¶ 36) (Miss.Ct.App.1999)).

¶ 14. Prior to commencement of trial, the State announced that it would not be submitting the question of a life sentence to the jury. Foster was sentenced on October 17, 2011. During sentencing, the circuit court stated that Foster could be sentenced to “any sentence less...