McCoy v. State, No. 2003-KA-00404-COA.

• Decision Date: 24 August 2004
• Docket Number: No. 2003-KA-00404-COA.
• Citation: 881 So.2d 312
• Parties: James Earl McCOY, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

881 So.2d 312

James Earl McCOY, Appellant v.STATE of Mississippi, Appellee.

No. 2003-KA-00404-COA.

Court of Appeals of Mississippi.

August 24, 2004.

Gary Goodwin, Columbus, attorney for appellant.

Office of the Attorney General by Scott Stuart, attorney for appellee.

EN BANC.

MYERS, J., for the Court.

¶ 1.James Earl McCoy was found guilty of armed robbery in the Circuit Court of Lowndes County, Mississippi.McCoy was sentenced to serve a term of thirty-five years in the custody of the Mississippi Department of Corrections.McCoy's motion for JNOV or, in the alternative, a new trial was denied by the circuit court.McCoy appeals to this Court and raises the following issue: was the jury verdict against the overwhelming weight of the evidence?

STATEMENT OF FACTS

¶ 2.On December 29, 1999, at approximately 11:26 p.m., three men entered the Jr. Food Mart in Columbus, Mississippi.Brandi Dennison was working the 11 p.m. to 7 a.m. shift as cashier.Dennison was alone in the store and talking to her husband on a cordless phone when the men approached her at the check-out counter and demanded money.Dennison testified that one man held a gun to her head while another man went to the store's unlocked safe to get the money.A third man stood at the end of the counter pointing a gun at her.The man at the safe took a Trustmark bank bag which contained $173.The man holding the gun to Dennison's head threw her on the floor and the three men left the store in what Dennison described as a dark-colored older model Oldsmobile or Chevrolet Caprice.Dennison stated that the robbery lasted less than five minutes.

¶ 3.After crawling into the store's office and watching the men leave on the security cameras, Dennison dialed 911 and police responded within five minutes.Upon the police arriving at the Jr. Food Mart, Dennison gave a description of the men and the getaway car.The police showed Dennison a photo album hoping that she could identify the men.Dennison did not make a positive identification at that time.Shortly thereafter, deputy sheriffs pulled behind a dark blue vehicle at an Exxon station in Columbus.Three men exited the car and went inside the Exxon store to purchase cigars.When the deputies approached the car, a man was sitting on the back seat.Deputy Eddie Coleman saw a silver colored gun on the front seat.The man in the back seat had a black semi-automatic handgun hidden behind him.

¶ 4.The four men were apprehended and handcuffed at the Exxon station.Dennison was taken to the Exxon by police and immediately identified McCoy as the man who held the gun to her head during the robbery.Dennison also identified one of the men, Anthony Durrah, as the man who got the money out of the safe.Dennison was unsure about the third man standing by the counter, John Bonner.

¶ 5.McCoy was indicted on February 9, 2000, for armed robbery in violation of Mississippi Code Annotated Section 97-3-79(Rev.2000).McCoy's trial occurred on December 3, 2001.On the day of his trial, McCoy appeared with counsel ready for trial.After the jury voir dire, the jury was selected and impaneled.McCoy failed to appear in court after a noon recess when opening statements were scheduled to begin.Upon motion by the State, a bench warrant was issued for McCoy's immediate arrest.The trial proceeded in McCoy's absence and the jury found McCoy guilty of armed robbery.McCoy's sentencing was postponed until his whereabouts were determined and he was in custody of the MDOC.McCoy was sentenced to serve thirty-five years in the custody of the MDOC.McCoy filed a post-trial motion for JNOV or, in the alternative, a new trial which was denied by the circuit court.It is from this denial that McCoy now appeals to this Court.

LEGAL ANALYSIS

I.WAS THE JURY VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶ 6.McCoy argues that the jury verdict was against the overwhelming weight of the evidence.He contends that the State failed to prove beyond a reasonable doubt an element of his crime, identity, because Brandi Dennison did not personally identify him in court as one of the men who participated in the armed robbery.McCoy did not return to his trial after the jury was selected.He argues that because he was not present during the trial and Dennison was not asked to identify him in court, his conviction and sentence cannot stand.The State argues that based on the evidence the jury heard, specifically the testimony of Dennison and Sergeant Larry Swearingen, there was sufficient evidence to support the verdict.

¶ 7.The standard of review for determining whether a jury verdict is against the overwhelming weight of the evidence is well settled.The appellate court must accept as true all evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial.Swann v. State,806 So.2d 1111, 1117 (¶ 25)(Miss.2002).On review, the State is given "the benefit of all favorable inferences that may reasonably be drawn from the evidence."Griffin v. State,607 So.2d 1197, 1201(Miss.1992).The appellate court should not reverse a guilty verdict unless failure to do so would sanction an unconscionable injustice.Hilliard v. State,749 So.2d 1015, 1016-17 (¶ 10)(Miss.1999)."This Court does not have the task of re-weighing the facts in each case to, in effect, go behind the jury to detect whether the testimony and evidence they chose to believe was or was not the most credible."Langston v. State,791 So.2d 273, 280 (¶ 14)(Miss.Ct.App.2001).

¶ 8.A review of the record indicates that Dennison testified that on December 29, 1999, shortly after her 11 p.m. shift began, three men entered the Jr. Food Mart and demanded money.According to Dennison, one man stayed at the end of the check-out counter, one man went to the store's safe which was unlocked per company policy to get the money and the other man grabbed her arm and held a gun to her head.Dennison stated that the light in the store was very bright.Dennison described the men as being black males.All three men were carrying guns.The man holding the gun to her head was carrying a silver medium-sized automatic handgun, which Dennison described as not being a revolver.Dennison described that man as a black male, approximately six feet tall, medium frame, wearing dark blue baggy pants and a jacket.The man was wearing pantyhose over his face, but Dennison testified that she could see right through to the man's face.

¶ 9.Dennison described the man at the safe as having a darker complexion, heavy set, shorter than the other two men and having thick hair.That man was carrying a black automatic handgun somewhat larger than the silver gun.Dennison described the man at the end of the counter as having a lighter complexion, 5'6' to 5'7' tall and skinny.She stated that he looked very young and nervous and she did not recall what he was wearing.Dennison remembered that this man also had a gun which he was pointing at her but she could not give a description of the gun.

¶ 10.Dennison testified that the man at the safe took a Trustmark bank bag which contained $173.The man holding a gun to Dennison's head threw her on the floor and the men left in a dark-colored older model Oldsmobile or Chevrolet Caprice.After the men left, Dennison called 911 and the police arrived at the store about five minutes later.Dennison gave descriptions of the three men and the car to police.The police showed Dennison a photo album but she did...