Miller v. State, No. 2001-CT-01223-SCT.

• Decision Date: 17 June 2004
• Docket Number: No. 2001-CT-01223-SCT.
• Citation: 875 So.2d 194
• Parties: Donald Wade MILLER v. STATE of Mississippi.
• Court: Mississippi Supreme Court

875 So.2d 194

Donald Wade MILLER v. STATE of Mississippi.

No. 2001-CT-01223-SCT.

Supreme Court of Mississippi.

June 17, 2004.

James W. Amos, Hernando, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

ON WRIT OF CERTIORARI

CARLSON, Justice, for the Court.

¶ 1. Donald Wade Miller was accused of intentionally setting fire to his trailer and was convicted of arson in the DeSoto County Circuit Court. He was sentenced to a term of one year in the custody of the Mississippi Department of Corrections followed by ten years of supervised probation. Aggrieved by his conviction, Miller appealed. The Court of Appeals affirmed the conviction, but reversed and remanded for the limited purpose of correcting that portion of the sentence which requires post-release supervision for a period of excess of five years. Miller v. State, 856 So.2d 420, 425 (Miss.Ct.App.2003).¹

¶ 2. Miller's motion for rehearing was denied on June 10, 2003, and he timely filed the instant petition for certiorari on June 23, 2003. This Court granted certiorari by an order entered September 25, 2003. Miller v. State, 859 So.2d 392 (Miss. 2003). Finding no error in the conviction and sentence, we affirm in part, and reverse in part, the judgment of the Court of Appeals and reinstate and affirm in toto the judgment of the Circuit Court of DeSoto County.

FACTS

¶ 3. The following factual background was recited by the Court of Appeals:

At approximately 2:49 p.m. on February 29, 2000, the Love Volunteer Fire Department received a report of a fire at 3789 Jaybird Road, Hernando, Mississippi, the residence of Donald Wade Miller. Upon arrival, Sam Witt of the Hernando Fire Department observed smoke coming from the roof on the right front side of the trailer home.

DeSoto County Deputy Fire Marshall Mike Hancock was called to investigate the matter and arrived at approximately 4:00 p.m. with a canine trained to sign for accelerants or flammable liquids. Shortly thereafter, Miller returned home, and at the request of Officer Hancock consented to a search of the property. Officer Hancock allowed his trained canine to search the property for accelerants. The canine signaled the presence of an accelerant in the center of the couch. Photographs were entered into evidence of the couch and the canine's search.

At trial, Mike Lynchard, a custodian of records at BellSouth Telecommunications, testified that a two minute call from Miller's unlisted number at the trailer home was made at 2:38 p.m. on the day of the incident to a Memphis phone number. Lynchard stated that he did not know to whom the Memphis number was listed nor who made the call to that number.

John Anderson, an acquaintance of Miller, testified that when he drove by Miller's trailer, he "noticed smoke coming from the trailer." He slowed down and noticed fire "through the window of the trailer." Anderson stopped, called 911 to report the fire at approximately 2:49 p.m., and moved Miller's dog from the yard.

Geniene Bowdre, who lived across the street from Miller, testified that on the day of the incident, she saw a vehicle coming out of one of the driveways, either Miller's or the one next to him, but she was not sure. Then, she saw smoke coming from the trailer.

Sam Lauderdale, a State Farm Insurance agent, testified that Miller's mother is an employee of his and that he "got a telephone call that Donnie's home was on fire. And a few minutes later, he (Miller) pulled into the parking lot and came into the office or came up the office steps, and I walked out and said, `[w]e've gotten a call that your home is on fire.' And he turned around and left."

Bradley Schinker, the State's fire investigator expert, testified that when he came to the east side of the living room, he noticed that the couch was almost burned out in the center and that "the fire started in this area." Schinker also indicated that he found no faulty wiring after inspecting the trailer. He testified that smoking was ruled out and that he determined this was some type of intentional act.

Lee James, a claims representative for State Farm Insurance, testified that she interviewed Miller, who admitted that he was a smoker but denied being on his couch smoking the day of the fire.

At the conclusion of the State's case, Miller moved for a directed verdict claiming that the State had failed to prove beyond a reasonable doubt that he had committed arson. This motion was denied.

Miller testified that he did not intentionally start the fire. He stated that he might have accidentally started the fire, but did not state how it may have accidentally occurred.

Miller's sister, Darlene Ellis, testified that she owned the couch prior to giving it to her brother. She stated that her boys spilled gun cleaning solvent on the couch approximately three months prior to it being given to Miller.

Miller requested a peremptory instruction which was denied by the trial court. Miller was found guilty and sentenced to one year in the custody of the Mississippi Department of Corrections followed by ten years of post-release supervision for the purpose of insuring payment of restitution in the amount of $51,255.91 to State Farm.

Miller filed a motion for JNOV, or in the alternative, a motion for a new trial, which was denied.

Miller, 856 So.2d at 421-22.

¶ 4. On appeal, the Court of Appeals held that although the evidence presented in Miller's case was purely circumstantial, "the record contain[ed] substantial evidence from which the jury could conclude that Miller was guilty of arson." Id. at 425. Therefore, the Court of Appeals affirmed Miller's conviction. The Court of Appeals, however, reversed and remanded the sentence, finding that the trial court improperly exceeded the maximum years allowed by statute for supervised probation.

DISCUSSION

¶ 5. Miller asserts that the trial court erred in (1) failing to sustain his motions for directed verdict made both at the close of the State's case-in-chief and at the conclusion of the trial; (2) failing to give a peremptory instruction in his favor; and, (3) failing to find via post-trial motions that the verdict of the jury was contrary to the law and the weight of the evidence.

¶ 6. When considering claims of trial court error in the denial of a motion for a directed verdict or a denial of a peremptory instruction, our standard of review is the same. We must judge the sufficiency of the evidence by accepting as true all evidence, as well as all reasonable inferences which may drawn from the evidence, in the light most favorable to the State (the non-moving party), and in so doing, if there exists in the record evidence sufficient to support the jury's guilty verdict, we are constrained as a matter of well-established law to uphold the trial court's denial of a motion for directed verdict and/or peremptory instruction. Robert v. State, 821 So.2d 812, 817 (Miss.2002); Isaac v. State, 645 So.2d 903, 907 (Miss. 1994); Clemons v. State, 460 So.2d 835, 839 (Miss.1984).

¶ 7. In addressing Miller's challenge to the weight of the evidence, our standard of review is likewise clear.

Our scope of review is well established regarding challenges to the weight of the evidence issue. Procedurally, such challenges contend that defendant's motion for new trial should have been granted. Miss. Unif.Crim. R. of Cir. Ct. Prac. 5.16.² The decision to grant a new trial rests in the sound discretion of the trial court, and the motion should not be granted except to prevent "an unconscionable injustice." Wetz v. State, 503 So.2d 803, 812 (Miss.1987).

Jones v. State, 635 So.2d 884, 886 (Miss. 1994).

¶ 8. The Court of Appeals found the following evidence to be consistent with the guilty verdict of arson:

(1) Miller was the sole occupant of the trailer, (2) a telephone call was made from the trailer approximately ten minutes before the fire was reported, (3) Miller was the last person known to be at the trailer, (4) a car was seen leaving the vicinity of Miller's trailer shortly before the fire, (5) the fire was started deliberately, (6) Miller was at home between 2:38 p.m. and 2:40 p.m., (7) the fire was reported at approximately 2:49 p.m., and (8) a call was made from Miller's trailer at approximately 2:38 p.m.

Miller, 856 So.2d at 423. While the evidence of guilt in the case sub judice was no doubt purely circumstantial, this does not vitiate an otherwise lawful verdict. Walton v. State, 642 So.2d 930, 932 (Miss. 1994). There were conflicts in the evidence which unquestionably had to be resolved by the jury. Groseclose v. State, 440 So.2d 297, 301 (Miss.1983). Therefore, the Court of Appeals and the trial court were correct in determining that the verdict rendered by the jury was not contrary to law nor was it against the weight of the evidence.

¶ 9. Regarding the sentence imposed by the trial court, the Court of Appeals has mistakenly used the terms "supervised probation" and "post-release supervision" interchangeably. Note by way of example the following excerpts from the opinion of the Court of Appeals: "[Miller] was sentenced to a term of one year in the custody of the [MDOC] followed by supervised probation of ten years." 856 So.2d at 420 (emphasis added). "Miller was found guilty and sentenced to one year in the custody of the [MDOC] followed by ten years of post-release supervision ..." Id. at 422 (emphasis added). The Court of Appeals sua sponte determined that the trial judge had imposed an illegal sentence as evidenced by the following language:

However, this Court notes that in addition to serving one year in the custody of the Mississippi Department of Corrections, the trial court sentenced Miller to a term of ten years supervised probation. Pursuant to Miss.Code Ann. Section 47-7-37 (Rev.2000), a period of post-release supervision shall not exceed five years. Ellis v. State, 748 So.2d 130 (¶ 12) (Miss.1999).³ This Court therefore notes as plain error that portion

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