Rogers v. State, No. 2002-KA-01814-COA.

• Citation: 881 So.2d 936
• Decision Date: 07 September 2004
• Docket Number: No. 2002-KA-01814-COA.
• Parties: Mark Dane ROGERS, Appellant v. STATE of Mississippi, Appellee.
• Court: Court of Appeals of Mississippi

881 So.2d 936

Mark Dane ROGERS, Appellant
v.
STATE of Mississippi, Appellee

No. 2002-KA-01814-COA.

Court of Appeals of Mississippi.

September 7, 2004.

881 So.2d 937

Edmund J. Phillips, P. Shawn Harris, attorneys for appellant

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

EN BANC.

IRVING, J., for the Court.

¶ 1. A Scott County jury convicted Mark Dane Rogers of grand larceny. The trial judge sentenced him to five years in the custody of the Mississippi Department of Corrections. Rogers now appeals and asserts that the trial court erred in refusing to grant certain jury instructions, in failing to grant his motion for a directed verdict or new trial, and in failing to quash the indictment due to the State's failure to provide him a preliminary hearing.

¶ 2. We find no merit in these allegations of error; therefore, we affirm the judgment of the trial court.

FACTS

¶ 3. On August 10, 2001, Mark Rogers went to Fisherman's Corner convenience store and purchased a pack of cigarettes. Diane Jennings Palm, a cashier at the store, testified that she rang up the purchase, and as the cash register drawer opened, Rogers reached over the counter and into the drawer. Palm further testified that Rogers took money out of the register and left. Palm stated that she

881 So.2d 938

then called the police and notified the store's owner, who instructed her to continue to run the register. Palm further testified that no additional money was taken out of the register other than that which Rogers had taken

¶ 4. Dorothy Simpson, owner of Fisherman's Corner, testified that she arrived at the store after the robbery, that she counted the money in Palm's register and determined that it was short $280.74. On cross-examination, Simpson admitted that no one counted the register immediately after the theft, and that Palm continued to run the register for three additional hours before the money in the register was counted.

¶ 5. Rogers was arrested two days after the incident. Additional facts will be related during our discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

(1) Denial of Jury Instruction

¶ 6. Rogers argues that the trial court erred in refusing to grant a peremptory instruction and an instruction informing the jury that it cannot place any significance on the fact he chose not to testify. We discuss the denial of the peremptory instruction in our discussion of the sufficiency of the evidence issue. The refused instruction regarding the proper treatment by the jury of Rogers's failure to testify is as follows:

The court instructs the jury that the jury must not consider the fact that the Defendant did not testify in this case as evidence against him nor does this fact arouse even a suspicion that he is guilty, but the State must prove him guilty beyond every reasonable doubt; if the State has not done this, then the jury must find the Defendant "Not Guilty."

Rogers also contends that the Fifth Amendment to the U.S. Constitution requires a trial judge to instruct the jury, if requested by a criminal defendant, that the jury may not draw an adverse inference from a defendant's failure to testify.

¶ 7. The State maintains that, since the jury was given an instruction identical to the one which Rogers requested, no error occurred as a result of the court's refusal to grant the instruction requested by Rogers. In support of its argument, the State directs our attention to Watson v. State, 521 So.2d 1290 (Miss.1988).

¶ 8. In Watson, the defendant alleged error in the court's failure to grant an instruction similar to the one which was refused in this case. The Mississippi Supreme Court held that...