McClain v. State

Decision Date07 October 1993
Docket NumberNo. 91-KA-0186,91-KA-0186
Citation625 So.2d 774
PartiesLionel "Bo" McCLAIN v. STATE of Mississippi.
CourtMississippi Supreme Court

Dannye L. Hunter, Jackson, for appellant.

Michael C. Moore, Atty. Gen., Jackson, Ellen Y. Dale, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.

HAWKINS, Chief Justice, for the Court:

Lionel "Bo" McClain appeals his conviction in the Circuit Court of Scott County for the crime of receiving stolen property. He presents the following issues:

(1) Whether the evidence was insufficient as a matter of law to prove his guilty knowledge that the property he received was stolen;

(2) Whether the trial court committed reversible error in refusing to grant the following requested instructions:

(a) Circumstantial evidence Instruction D-9;

(b) Instruction D-6 that he was a competent witness in his own behalf;

(c) Instructions D-13 and D-14, which told the jury that if they found he obtained the property by burglary and larceny, they must return a verdict of "not guilty"; and

(3) Whether the verdict was contrary to the overwhelming weight of the evidence.

Finding no error, we affirm.


On Monday morning, December 2, 1990, employees of Morton, Mississippi, discovered the Mayor's office had been burglarized and a .38 caliber Smith & Wesson pistol removed from the premises. On the same day, Myra Phillips, manager of nearby Laird's Ready to Wear, discovered that Laird's had also been burglarized and a quantity of jewelry, including necklaces, removed. Forced entry was accomplished by the intruder on each occasion.

During the early part of Sunday night, December 1, 1990, Ethel Polk saw Lionel "Bo" McClain (McClain) near a pay telephone in the Morton commercial district. Ms. Polk was looking for her daughter. McClain offered his assistance, entered Ms. Polk's vehicle, and rode with her while she searched for her daughter. The parties travelled to the community of Hillsboro and failing to find the missing daughter, returned to Morton where Ms. Polk made a police report that her daughter was missing. The parties then travelled toward Pelahatchie with McClain driving the vehicle. Ms. Polk testified as follows:

Q Okay. During any of this time, what, if anything, did the Defendant pull out and show you in the car?

A Well, he showed me a gun in the car before we even left Morton, before we even got the gas, when he first got in the car with it.


A [I] asked him, I said, "What you doing with a gun this time of night anyway?" He said because he was out by hisself (sic) walking, and maybe he possibly had some enemies, somebody didn't like him. He had it for his own protection.

Q Did he say anything about where he had gotten it at that time?

A No, sir.


Q All right. Did you notice at any time whether or not a policeman fell in behind ya'll?

A Well, I had fell asleep, and he woke me up and told me that the police was behind us.


Q All right; and, what happened when he did that?

A He was trying to give me the gun for me to throw it out, and I told him I wasn't throwing it out.


Q When you refused to throw the gun out, what did the Defendant do then?

A He threw it out.


Q All right. Tell us what happened after that, after the gun was thrown out of the car.

A Okay. The police pulled on up behind us, and we both got out, and I started telling the policeman our purpose for being there and who we was looking for.

After visiting with the police officers, McClain and Polk obtained a work excuse for Ms. Polk from her employer, gas for the vehicle, and returned to the area where McClain had thrown the pistol from the automobile. Polk related that the following occurred:

A Yes, sir. After we got the gas, then we went on back over there, and the gun was laying at the back quarter of the car in the street, on the side of the street.


A He put the gun in the car. Then he started walking in front of the car.

Q Started walking in front of the car?

A Yes, sir.

Q All right. What happened next?

A Well, I was just sitting there looking at him, and he walked on up over to the driver's side up the street, and looking over in the bushes, and all of a sudden, he reached down and picked up, you know.

Q What did he pick up?

A A handful of jewelry.


Q All right. What did he say about this jewelry?

A I asked him, I said, "How did you do that? What did you do? Throw it behind you?" because at the time, I couldn't figure out whether he had snatched it off his neck, because I hadn't seen him with any.

Q What did he say he had done?

A He said he just threw it from behind him.

Q When did he say he had thrown it behind him?

A When the police had stopped us.

The jewelry and pistol were identified as articles taken in the two burglaries.

McClain left the pistol with Polk and gave her one of the necklaces. She stated:

A He was getting ready to get out, and he taken the jewelry out, and he laid it on the car seat, and he asked me if I wore jewelry, and I told him, "No, not really." He says, "Well, which one of these do you like?" I said, "The red one." He said, "Well, here, it's yours."

McClain testified that he found the pistol and jewelry in a bag by a Coke machine in the Morton commercial district on the night of December 1 after 6:00 or 7:00 p.m. His testimony is as follows:

Q [A]nd where were you the first time you saw them?

A The first time I saw it, I come out of the arcade of Lee Kelly and stepped across the street where the machines are at, and it was dark then, getting dark. That's where I spotted them at, right beside a Coke machine.


Q [H]ow did it come to your attention?

A I went over there to use the restroom, and as I looked down, there was a bag folded up pretty neat, and I was curious, and I kicked the bag. It was heavy. I picked it up. There was a gun and about five necklaces, and I kept them....

McClain admitted ditching the firearm in Pelahatchie when the police stopped him and Ms. Polk. The reason given by him for this action was:

A Well, at the time they had stopped me in Pelahatchie, I don't know the police, but he had pulled me over. I was driving, and by me knowing that I don't supposed to have a firearm on me, I got rid of it....

McClain denied that he threw the jewelry out of the car and later retrieved it. His testimony concerning the jewelry was:

Q Well, what about the jewelry then, Mr. McClain? Why did you have to throw it out?

A Why did I throw the jewelry down? I did not throw the jewelry down. Ethel Lee Polk said I did.

Q Okay. She also said you told her that you threw it down. Is she right about that?

A She lied about that.

McClain confirmed giving one necklace to Polk, one to his sister, and one to his aunt.

The cause was submitted to a jury. A verdict of guilty was returned. The trial court then conducted a hearing pursuant to Miss.Code Ann. Sec. 99-19-81 (Supp.1990) providing for enhanced punishment, and upon completion, sentenced McClain to serve a term of five (5) years in the Mississippi Department of Corrections as an habitual offender.



McClain requested a directed verdict at the close of the State's evidence and a peremptory instruction when trial evidence was concluded. His motion to set aside the verdict is essentially and therefore is treated as a motion for judgment notwithstanding the verdict (JNOV). The three challenges by McClain (motion for directed verdict, request for peremptory instruction, and motion for JNOV) challenge the legal sufficiency of the evidence. Since each requires consideration of the evidence before the court when made, this Court properly reviews the ruling on the last occasion the challenge was made in the trial court. This occurred when the Circuit Court overruled McClain's motion for JNOV. Wetz v. State, 503 So.2d 803, 807-08 (Miss.1987). In appeals from an overruled motion for JNOV the sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. Esparaza v. State, 595 So.2d 418, 426 (Miss.1992); Wetz at 808; Harveston v. State, 493 So.2d 365, 370 (Miss.1986); May v. State, 460 So.2d 778, 780-81 (Miss.1984); Callahan v. State, 419 So.2d 165, 174 (Miss.1982). The credible evidence consistent with McClain's guilt must be accepted as true. Spikes v. State, 302 So.2d 250, 251 (Miss.1974). The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Wetz at 808; Hammond v. State, 465 So.2d 1031, 1035 (Miss.1985); May at 781. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. Neal v. State, 451 So.2d 743, 758 (Miss.1984); Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980). We are authorized to 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 at 808; Harveston at 370; Fisher v. State, 481 So.2d 203, 212 (Miss.1985).

Miss.Code Ann. Sec. 97-17-69 (1972) states in pertinent part:

If a person ... receives in any manner ... personal property of any value, feloniously taken away from another, knowing the same to have been so taken, he shall be guilty of receiving stolen goods.

McClain maintains the evidence is insufficient as a matter of law to sustain proof of his knowledge that the pistol and jewelry were stolen. He relies on Whatley v. State, 490 So.2d 1220 (Miss.1986); Thompson v. State, 457 So.2d 953 (Miss.1984); Johnson v. State, 247 So.2d 697 (Miss.1971).

We remain mindful that in prosecutions for receiving stolen property, guilty knowledge is the gist of the offense and must be proved. Tubwell v. State, 580 So.2d 1264, 1266 (Miss.1991); Thompson at 954; Ellett v State, 364 So.2d 669, 670 (Miss.1978); Crowell v. State, 195 Miss. 427, 15 So.2d 508 (1943). This does not mean...

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