Chisolm v. State

856 So. 2d 681, 2003 Miss. App. LEXIS 868, 2003 WL 22176784
CourtCourt of Appeals of Mississippi
DecidedSeptember 23, 2003
DocketNo. 2002-KA-00226-COA
StatusPublished

This text of 856 So. 2d 681 (Chisolm v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chisolm v. State, 856 So. 2d 681, 2003 Miss. App. LEXIS 868, 2003 WL 22176784 (Mich. Ct. App. 2003).

Opinion

SOUTHWICK, P.J.,

for the Court.

¶ 1. David Chisolm was convicted after a jury trial of timber theft. On appeal, he alleges error by the lower court in admitting certain evidence, in allowing impeachment of a prosecution witness, and in failing to grant a circumstantial evidence jury [683]*683instruction. Chisolm further challenges the weight and sufficiency of the evidence. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. Evidence in the record supports the following account of events. In April 2000, David Chisolm and his nephew approached landowner Jimmy Zeigler seeking a right-of-way to cut timber on a parcel owned by someone else but surrounded by Zeigler property. Chisolm then offered to cut Zeigler’s scrub trees in the pasture adjacent to the other individual’s land. Zeigler stated that the only timber that he owned that was worth cutting was north of Toshiba Creek, and that he did not wish those trees cut. Chisolm’s knowledge and ignoring of that geographical restriction are the factual issues raised in this appeal.

¶3. Zeigler and his brother eventually agreed to allow Chisolm to cut the scrub timber in the pasture, with the prospect of an additional 75 acres of timber to be cut if Chisolm did a good job. The Zeiglers denied ever giving Chisolm permission to cut the acreage north of Toshiba Creek. Chisolm then employed two loggers, Mike Holmes and Mike Campbell, to cut the Zeiglers’ timber.

¶4. Campbell was assigned to cut the forbidden acreage north of the creek. Chisolm himself contacted an adjoining landowner to secure Campbell’s access. Campbell spent three days clearing the land, and then was prepared to move on to the Zeiglers’ 75 acre tract that could be cut if the Zeiglers were satisfied with the initial work.

¶ 5. Timber-cutter Holmes had been instructed to cut the pasture scrub. Zeigler visited the pasture as Holmes’ crew was working and discovered the work did not meet his expectations as large stumps were being left. Zeigler confronted Chi-solm about the quality of the work and discovered that the Toshiba Creek timber had been cut. Faced with the reality that the trees were down, Zeigler and his brother demanded payment for the Toshiba Creek timber, at the same rate agreed to for the pasture cutting. Despite Chi-solm’s assurances, the brothers never received payment beyond approximately $4,100, the value of the pasture scrub cut by Holmes. The Zeiglers then contacted the Mississippi Agricultural Theft Bureau. The resulting investigation led to Chi-solm’s indictment for timber theft.

DISCUSSION

¶ 6. Chisolm states nineteen issues in his brief. We find that his claims can be collapsed into five discrete arguments. We address each in turn.

1. Admissibility of evidence

¶ 7. Chisolm first attacks the lower court’s admission of several pieces of evidence. To a large extent, the admissibility of evidence lies within a trial court’s discretion. Weaver v. State, 713 So.2d 860, 865 (Miss.1997). This Court will employ a broader standard of review, however, if a legal standard has not been properly applied. Peterson v. State, 671 So.2d 647, 655-56 (Miss.1996). Still, we will not reverse unless the improper admission or exclusion of evidence adversely affected a substantial right of the accused. Id. at 656.

¶ 8. Chisolm contends that the court erred in admitting Exhibits S-2, S-2A, and S-2B, which were various settlement sheets that demonstrated the value of the timber that was cut. The settlement sheets were admitted through the testimony of Investigator John Stewart. The investigator was not a proper sponsor of these documents which had been prepared by others. The documents were not certi[684]*684fied and were not self-authenticating. See M.R.E. 803(6) & 902(11).

¶ 9. Despite being allowed in through the wrong witness, the information in the documents duplicated witness testimony regarding the same facts. Mike Campbell testified about the sawmills and purchasers to which he had delivered his cuttings, and stated their value. Mike Holmes similarly explained where the timber he cut went. Tommy Reid, a timber dealer who coordinated purchasers for Chisolm, further testified to values he paid to the loggers. These facts were all established through independent witness testimony before each analyzed the appropriate evidentiary document. Competent testimony on the subject of alleged hearsay renders the error harmless. Kolberg v. State, 829 So.2d 29, 64 (Miss.2002).

¶ 10. Chisolm further claims that check stubs introduced as Exhibit S-2G did not represent the best evidence of checks written from a purchaser to Chi-solm; they also were not introduced through a witness who could authenticate them. He contends that the original cheeks, or proper duplicates, were required to be introduced. What has been called the “best evidence” rule is now reduced to a requirement that the original or a satisfactory duplicate of a writing is required when it is necessary to “prove the content of a writing_” M.R.E. 1002 & 1003. The issue to which the checks related was the amount of payment that was made for the improperly cut timber. The State needed to prove that the timber was worth more than $250. Facts may be proven through a variety of relevant evidence. Regardless of the hearsay issue regarding the cheek stubs, the value of the timber was proven through testimony to be substantially more than $250.

2. Elements of the indictment

¶ 11. Chisolm next contends that the prosecution failed to establish a prima fa-cie case to support the conviction. The elements as set out in the indictment were three-fold. The State was required to prove Chisolm’s intent, the act of removal, and the value of the merchantable timber. Miss.Code Ann. § 97-17-59(2) (Rev.2000). Chisolm does not deny that Mike Campbell, at Chisolm’s direction, cut and removed the Toshiba Creek timber. He challenges only the proof of intent and of value.

¶ 12. Chisolm’s primary argument regarding value appears to be that the victim, Jimmy Zeigler, could not quantify how much Chisolm owed him for the cut timber. What Chisolm’s argument does not account for, however, is other proof of the timber’s value offered to the jury. Mike Campbell, Chisolm’s logger who cut Toshiba Creek, testified that he carried logs cut from the tract to at least five named mills. He testified that he was paid through Tommy Reid and that the timber sold for approximately $21,000. Reid himself testified to the $21,000 figure for timber harvested by Campbell. Zeig-ler’s failure to assign value to the timber removed is therefore irrelevant. The jury had both testimony and documentary evidence of timber value in excess of $250.

¶ 13. As to intent, the record contains conflicting evidence. The issue was whether Chisolm, knowing that he did not have authority to do so, intentionally committed the acts. Chisolm testified that Phillip Zeigler told him that if there were logs north of the creek, that he should cut them. However, Phillip Zeigler denied giving permission to anybody to cut timber north of Toshiba Creek. Jimmy Zeigler testified that after he told Chisolm “that we didn’t want to sell the timber back there [north of the creek], he kind of asked [685]

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Bluebook (online)
856 So. 2d 681, 2003 Miss. App. LEXIS 868, 2003 WL 22176784, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chisolm-v-state-missctapp-2003.