Kendrick Jeroum Body v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-KA-00812-COA
KENDRICK JEROUM BODY A/K/A KENDRICK APPELLANT
JEROUME BODY
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/11/2013
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: EDMUND J. PHILLIPS JR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MELANIE THOMAS
DISTRICT ATTORNEY: MARK SHELDON DUNCAN
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A
FIREARM BY A CONVICTED FELON AND
SENTENCED TO EIGHT YEARS IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
DISPOSITION: AFFIRMED - 09/23/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ISHEE AND JAMES, JJ.
JAMES, J., FOR THE COURT:
¶1. Kendrick Body was convicted of possession of a firearm by a convicted felon and was
sentenced to eight years in the custody of the Mississippi Department of Corrections. During
trial, Body made an ore tenus motion for a directed verdict, which the trial court denied.
Body also filed a post-trial motion for a new trial, which the trial court denied. Body raises
the following issues: whether the trial court erred in denying his motion for a directed verdict
and his motion for a new trial and whether the trial court erred in denying his request for a
peremptory instruction.
FACTS
¶2. On April 22, 2010, Newton Police Chief Harvey Curry and Investigator Michael
Williams responded to a disturbance call on Oak Street in Newton, Mississippi. At trial,
Williams testified that he was informed that Body was involved in the original disturbance.
He further testified that once he arrived on the scene, he heard a gunshot from the woods.
However, Investigator Williams’s view was obstructed, and he was unable to see who fired
the shot. Investigator Williams saw an unidentified black male wearing a white t-shirt and
a backpack, running. Investigator Williams and other officers immediately started a search
of the wooded area across from Railroad Street, behind Pine Street and Ruffin Drive.
¶3. When Investigator Williams encountered Body, he was wearing a white t-shirt, sitting
on the ground behind shrubbery. Investigator Williams then pulled out his taser and
instructed Body to come out of the shrubbery. Investigator Williams then handcuffed him
and noticed an object left behind where Body was found, and instructed another officer to
retrieve it. The item discovered was a backpack that contained a Manurhin handgun.
Investigator Williams testified that he identified Body as the shooter because of his white t-
shirt; he could not identify the man facially.
¶4. At trial, Investigator Williams was the State’s only witness. Body’s only witness was
his friend, Justin Evans. Evans testified that Body did not arrive until after the original
disturbance, but before the gunshot occurred. After Evans and Body heard the gunshot, they
started running. Evans also testified that when he was with Body, he did not see Body with
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a gun. Evans admitted that he was not with Body the entire time; at some point while they
were running, they split. He was not with Body when the police found him.
¶5. Evidence of Body’s prior conviction of burglary in 2006 was admitted into evidence
at trial. Body made an ore tenus motion for a directed verdict at the close of the State’s
evidence, which the trial court denied. After trial, Body filed a motion for a new trial, which
was also denied by the trial court. Body appeals.
DISCUSSION
I. Whether the trial judge erred in denying Body’s motion for a
directed verdict and his motion for a new trial.
¶6. The court “reviews a trial judge’s grant or denial of a motion for [a] directed verdict
de novo.” McGee v. River Region Med. Ctr., 59 So. 3d 575, 578 (¶8) (Miss. 2011). “A
motion for a directed verdict considers the sufficiency of the evidence presented in the
opponent’s case[-]in[-]chief, and asks if the non-moving party carried the burden of going
forward; if it has not, the motion should be granted.” Wal-Mart Stores Inc. v. Littleton, 822
So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2002).
¶7. The Mississippi Supreme Court has stated: “[T]his Court considers ‘whether the
evidence, as applied to the elements of a party’s case, is either so indisputable, or so
deficient, that the necessity of a trier of fact has been obviated.’” Spotlite Skating Rink Inc.
v. Barnes ex rel. Barnes, 988 So. 2d 367, 368 (¶10) (Miss. 2008).
¶8. When reviewing a motion for a new trial, the evidence must be viewed in the light
most favorable to the verdict. Gill v. State, 126 So. 3d 128, 133 (¶13) (Miss. Ct. App. 2013).
“A motion for a new trial is a challenge to the weight of the evidence. A reversal is
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warranted only if the trial court abused its discretion in denying [the] motion[.]” Campbell
v. State, 125 So. 3d 46, 54-55 (¶23) (Miss. 2013).
¶9. Body argues that the firearm was not in his actual, physical possession at the time of
his arrest. Body also asserts that although proximity is essential to establishing constructive
possession, it is not enough to prove that the gun was within his dominion and control.
¶10. Mississippi Code Annotated section 97-37-5 (Supp. 2013) provides:
It shall be unlawful for any person who has been convicted of a felony under
the laws of this state, any other state, or of the United States to possess any
firearm or any bowie knife, dirk knife, butcher knife, switchblade knife,
metallic knuckles, blackjack, or any muffler or silencer for any firearm unless
such person has received a pardon for such felony, has received a relief from
disability pursuant to Section 925(c) of Title 18 of the United States Code, or
has received a certificate of rehabilitation pursuant to subsection (3) of this
section.”
¶11. The State has the burden to prove that the defendant was a convicted felon and
willfully possessed a firearm. See Edwards v. State, 966 So. 2d 837, 839 (¶8) (Miss. Ct. App.
2007).
¶12. Possession can be actual or constructive. Evans v. State, 802 So. 2d 137, 141 (¶12)
(Miss. Ct. App. 2000). “Constructive possession allows the prosecution to establish
possession of contraband when the evidence of actual possession is absent. Constructive
possession is established by evidence showing that the contraband was under the dominion
and control of the defendant.” Johnson v. State, 42 So. 3d 53, 56 (¶11) (Miss. Ct. App. 2010).
At trial, it was established that Body had constructive possession of the gun found in the
backpack. Investigator Williams testified that he saw the backpack in close proximity to
Body, or within arm’s length. Investigator Williams also testified that he found a gun inside
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the backpack found near Body.
¶13. Body did not testify in his defense. Evans testified that he was with Body, and they
were chased by the police. While running, at some point Evans and Body separated. Evans
admitted to not being with Body when he was arrested. Evans also stated that he did not see
Body with a gun during the time he was with Body.
¶14. It is a widely accepted concept that “it is the role of the jury to evaluate the veracity
of the witnesses.” Campbell, 125 So. 3d at 55 (¶24). A jury has discretion to find a witness’s
testimony credible. Evans, 802 So. 2d at 142 (¶13). Here, the jury found Investigator
Williams to be the more credible witness and returned a verdict of guilty. Accordingly, the
trial court did not abuse its discretion when it denied the motion for a new trial. Accordingly,
this issue is without merit.
II. Whether the trial court erred in denying the request for a
peremptory instruction.
¶15. In his second assignment of error, Body claims that the court erred in denying a request
for a peremptory instruction. However, other than the assignment of error, the issue was not
discussed, nor has any authority been cited supporting Body’s supposition. Mississippi Rule
of Appellate Procedure 28(a)(6) requires that the argument contain “the contentions of the
appellant with respect to the issues presented, and the reasons for those contentions, with
citations to the authorities, statutes, and parts of the record relied on.”
¶16. We have previously stated that “failure to cite any authority is a procedural bar, and
a reviewing court is under no obligation to consider the assignment.” Norwood v. Miss. Dep’t
of Emp’t Sec., 105 So. 3d 408, 410 (¶5) (Miss. Ct. App. 2012). Further, the appellant must
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support an assignment of error with legal authority. Turner v. State, 962 So. 2d 691, 697
(¶27) (Miss. Ct. App. 2007). Therefore, this issue is procedurally barred.
CONCLUSION
¶17. Body had constructive possession of the gun because of its close proximity to him in
the backpack. The gun was under Body’s dominion and control; thus there was sufficient
evidence to support the jury’s verdict. The second issue raised is procedurally barred;
therefore, we affirm the judgment of the trial court.
¶18. THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF A FIREARM BY A CONVICTED FELON AND
SENTENCE OF EIGHT YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO NEWTON COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND FAIR, JJ., CONCUR.
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