IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2019-KA-01849-COA
JIMMY CARPENTER A/K/A JIMMY DEAN APPELLANT CARPENTER
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/22/2019 TRIAL JUDGE: HON. KELLY LEE MIMS COURT FROM WHICH APPEALED: ITAWAMBA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: META S. COPELAND DISTRICT ATTORNEY JOHN DAVID WEDDLE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/22/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE WILSON, P.J., GREENLEE AND McDONALD, JJ.
McDONALD, J., FOR THE COURT:
¶1. On November 22, 2019, an Itawamba County Circuit Court jury found Jimmy Dean
Carpenter guilty of the first-degree murder of Sharon Johnson, an elderly woman who
employed Carpenter as her caretaker. The circuit court sentenced Carpenter as a habitual
offender to life imprisonment without eligibility for parole in the custody of the Mississippi
Department of Corrections (MDOC). Carpenter moved for a directed verdict at the close of
the State’s case-in-chief, which the court denied. He did not renew the motion, nor did he
file any post-trial motions regarding a challenge to the sufficiency of the evidence, which is Carpenter’s sole issue on appeal. Therefore, Carpenter waived the sufficiency-of-the-
evidence issue for appellate review. Notwithstanding the waiver, we find that there was
sufficient evidence presented to support the guilty verdict and affirm his conviction and
sentence.
Statement of the Facts and Procedural History
¶2. Sharon Johnson was a sixty-six-year-old disabled woman who often needed assistance
from her friends for day-to-day tasks.1 Daniel Reich, a friend of Sharon’s, checked on her
weekly and took her to doctor appointments. After Sharon had abdominal surgery, she
required even more help. Daniel suggested that Sharon hire a caretaker and introduced her
to Jimmy Dean Carpenter. Sharon hired Carpenter as her live-in caretaker in June 2015.
Carpenter’s job included changing Sharon’s bandages and helping with the upkeep of her
house. Instead of paying Carpenter, Sharon gave him room and board because he had
nowhere else to live.
¶3. According to Daniel, the arrangement was going well until Carpenter would not allow
him to talk to Sharon when Daniel called to check on her. Then, Sharon updated her will to
leave her house, land, and furniture to Carpenter if he would take care of her until her death.
¶4. On the morning of August 27, 2015, Elizabeth Taylor, another friend, arrived at
Sharon’s house to take Sharon to the doctor because neither Sharon nor Carpenter owned a
vehicle. Upon her arrival, Elizabeth heard yelling from inside Sharon’s house. Elizabeth
1 Sharon had one son and one daughter. Sharon’s daughter passed away seven years prior to Sharon’s murder. At the time of Sharon’s death, she had an estranged relationship with her son, whom she had not seen or communicated with in the two years prior to her death.
2 continuously knocked on Sharon’s door until Sharon opened the door. Sharon told Elizabeth
that Carpenter had had a “bad night.” When Sharon let Elizabeth into the house, Elizabeth
heard Carpenter say from the back of the house, “Don’t touch me. Leave me alone. I don’t
want you around me.”2 Elizabeth took Sharon to the doctor, and both women returned to
Sharon’s house around 1:30 p.m. After Elizabeth packed Sharon’s bandages, she left
Sharon’s house at 4:30 p.m. When Elizabeth left, Sharon was on her recliner, and Carpenter
was in the kitchen making a cup of tea.
¶5. Later that evening, after receiving an alert from Sharon’s Safe Home Security alarm
system, the security company called 911. Shortly thereafter, officers from the Itawamba
County Sheriff’s Department arrived at Sharon’s home. When the officers entered through
the unlocked front door, they found Sharon stabbed to death in her recliner in the living
room.3
¶6. More sheriff’s department officers arrived at the scene of the crime, including Officer
Tyler Gordon and Officer Larry Johnson. The officers began searching Sharon’s house and
the area around the house. When Officer Gordon inspected the storage shed behind the
house, he heard a male voice coming from the woods, yelling, “Lord, forgive me,” and
repeatedly asking, “Why?” Officer Johnson also heard the voice saying, “God, forgive me
2 Elizabeth had seen Carpenter act in a similar manner once before. During a card game between Sharon, Carpenter, and herself, Carpenter began shouting, “Don’t touch me.” 3 Dr. Mark LeVaughn, chief medical examiner for the State of Mississippi, found that Sharon suffered stab and slash wounds to her neck, chest, and shoulder, including defensive wounds to her hands. Sharon’s death resulted from multiple sharp-force injuries from a single-edge blade. The manner of death was ruled a homicide.
3 for what I did.” Both officers followed the voice into the woods but were unable to find
anyone. Officer Gordon then retrieved his K9 dog that located Carpenter in the woods about
twenty to thirty feet from Sharon’s house.
¶7. When the officers tried to arrest Carpenter, he kicked and hit the officers, did not lie
on the ground when instructed, and refused to be handcuffed. After the officers gave
Carpenter verbal warnings, they used the K9 dog and tasers to subdue him. When Carpenter
was yelling during his arrest, the officers believed that it was the same voice that they had
previously heard in the woods.
¶8. Carpenter was arrested and transported to the Itawamba County jail. The police
interviewed Carpenter on August 30, 2015, three days after the murder. During the
interview, he denied knowing Sharon. Additionally, Carpenter claimed that he did not know
where he lived or worked.
¶9. The officers recovered several items from the scene that they sent to the Mississippi
Forensics Laboratory. A knife that was recovered from the kitchen tested positive for
Sharon’s DNA, and Carpenter’s right palm print was found on the knife’s handle.
Carpenter’s DNA was found on a bloody ice cream package lid and on a spoon in the kitchen
sink. Significantly, blood found on Carpenter’s blue jeans and boots at the time of his arrest
tested positive for Sharon’s DNA. The officers also recovered Sharon’s personal security
device that hung around her neck so she could activate it in an emergency. The personal
device triggered Sharon’s Safe Home Security system and captured an audio recording of the
4 events.4 Despite the static in the background, Carpenter’s voice was on the recording,
repeatedly stating that “everything is okay.”
¶10. On February 12, 2016, an Itawamba County grand jury indicted Carpenter for one
count of first-degree murder pursuant to Mississippi Code Annotated section 97-3-19(l)(a)
(Rev. 2014).5 The indictment included an enhanced penalty pursuant to Mississippi Code
Annotated sections 99-19-351 through 99-19-357,6 which provide for an enhancement if the
victim is sixty-five years of age or older or disabled. Sharon was both sixty-six and disabled
at the time of her death. During arraignment, on February 25, 2016, Carpenter pled not guilty
to the first-degree murder charge and was held in jail on a $1,000,000 bond.
¶11. The circuit court granted Carpenter’s motion for a psychiatric examination7 on
October 24, 2016, to determine (1) whether he was unable to comprehend the nature of the
charges against him and rationally aid in his defense; (2) whether at the time of the
4 During a pre-trial motions hearing, the State’s counsel, Raymond O’Neal III, described the procedure. The Safe Home Security button was pressed during the crime. The company then takes recordings of the calls and uses them to call 911. 5 Mississippi Code Annotated section 97-3-19(1)(a) defines first-degree murder as the following: “The killing of a human being without the authority of law by any means or in any manner . . . [w]hen done with deliberate design to effect the death of the person killed, or of any human being . . . .” 6 Mississippi Code Annotated section 99-19-355 (Rev. 2015) provides that “[i]n order to impose an enhanced penalty under the provisions of Sections 99-19-351 through 99-19-357, the jury must find beyond a reasonable doubt: (a) [t]hat the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated; and [t]hat the defendant maliciously and with specific intent committed the offense to any victim who is sixty-five (65) years of age or older or who is disabled as described in 42 USCS 12102.” 7 The motion is not in the record.
5 commission of the crime charged he was of such mental capacity to distinguish between right
and wrong; and (3) whether at the time statements or confessions were made to law
enforcement officers he was competent to understand his rights.8
¶12. On January 18, 2018, the State moved to amend Carpenter’s indictment to add an
habitual offender charge pursuant to Mississippi Code Annotated section 99-19-83 (Rev.
2015)9 based on the following two crimes: (1) on May 14, 2002, Carpenter was convicted in
the Tippah County Circuit Court on a charge of burglary of a dwelling and was sentenced to
serve a term of twenty years in the MDOC’s custody with seven of those years suspended;
and (2) on July 7, 2006, Carpenter was convicted in the Montgomery County Circuit Court
in Tennessee on charges of aggravated kidnapping and robbery and was sentenced to serve
a term of ten years in the custody of the Tennessee Department of Corrections. The court
granted the State’s motion the same day.
¶13. On January 18, 2018, Carpenter moved for leave to hire a forensic media expert for
8 Due to administrative errors, the court amended the order on May 22, 2017, to properly name Carpenter as the defendant, to change the location of Carpenter’s evaluation from the Mississippi State Hospital to the offices of Dr. Criss Lott, and to have the report sent to Carpenter’s counsel. 9 “Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by Section 97-3-2, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation or any other form of early release from actual physical custody within the Department of Corrections.” Miss. Code Ann. § 99-19-83 (Rev. 2015).
6 the purpose of enhancing and/or filtering the Safe Home Security’s audio recording. The
court granted Carpenter’s motion on May 23, 2018.
¶14. Carpenter filed several letters in the circuit court, starting on July 18, 2018, stating that
he refused legal representation because the public defender was a liar, called him the wrong
names, and discussed his case with other people. Carpenter also believed that his counsel
was conspiring with authorities in jail to frame him and that authorities were coercing
inmates to provide false testimony against him. During a pre-trial hearing, Carpenter asked
the court to remove his attorney from his case, which the court denied. The court found that
it was critical to Carpenter’s trial that he had someone who could explain the court’s rulings
and give him ideas.
¶15. The circuit court held Carpenter’s competency hearing on April 17, 2019. Carpenter
stipulated to Dr. Lott’s report dated August 23, 2017, so Dr. Lott was not called to testify in
the hearing. According to Dr. Lott’s report, Carpenter, to a reasonable degree of
psychological certainty, had sufficient present ability to confer with his attorney with a
reasonable degree of rational understanding. Carpenter also had a factual and rational
understanding of the nature and object of the legal proceedings against him. Additionally,
Dr. Lott’s report stated that Carpenter was not suffering from a severe mental illness at the
time of the offense and that he would have had the ability to know the nature and quality of
his actions and the ability to know the difference between right and wrong in relation to his
actions at the time. The court found that Carpenter was competent to assist his attorney and
stand trial.
7 ¶16. Carpenter filed a motion to prevent the State from eliciting testimony of his character,
past felony convictions, crimes, wrongs, or other acts pursuant to Mississippi Rule of
Evidence 404(b) on June 26, 2019. The court granted Carpenter’s motion that no prior
criminal history would be allowed at trial unless for impeachment purposes.
¶17. The court held a pre-trial hearing on other motions on August 6, 2019. The court
allowed Carpenter to proceed pro se, but the defense counsel assisted him when necessary.
Although the motion is not in the record, the court denied Carpenter’s motion to change
venue, finding that he had not met his burden of showing that the venue had been
compromised. Carpenter also made a second request to remove his attorney from his case,
which the court denied.
¶18. The trial took place on November 18, 2019, through November 22, 2019.10 The State
presented several witnesses, including Elizabeth Taylor, Investigator Tyler Gordon,
Investigator Larry Johnson, and Dr. Mark LeVaughn. After the State rested, Carpenter
moved for a directed verdict on the ground that the State failed to make a prima facie case
against him. The court denied Carpenter’s motion.
¶19. The defense called several witnesses. Craig Rogers, Sharon’s friend, testified that
Sharon complained about people stealing from her. Additionally, Craig stated that Sharon
wanted Carpenter at her house for protection and that he (Craig) never had the impression
that Carpenter was violent toward Sharon. Daniel Reich testified that Sharon complained
about people stealing and breaking into her house. Investigator Jimmy Sartin testified that
10 Carpenter served as co-counsel at trial, assisting his defense counsel in the matter.
8 Sharon had called him to her house and stated that she had a fear that people would break
into her house.
¶20. Carpenter’s sister, Rena Hayes, testified that on January 22, 2016, she visited
Carpenter in the Itawamba County jail. After she spoke to Carpenter for about ten minutes,
she spoke to Investigator Mike Newlin from the Itawamba County Sheriff’s Department. He
asked Rena to listen to the Safe Home Security’s audio recording. She identified that it was
Carpenter’s voice on the tape. The State then played the audio recording for the jury, and
Rena once again verified that it was Carpenter’s voice on the recording.
¶21. Carpenter attempted to show that law enforcement was conspiring against him and
coercing inmates to provide false testimony against him. Carpenter’s counsel called six
current and former inmates, but all denied that law enforcement had threatened or coerced
them into making a false statement against Carpenter.
¶22. Carpenter then took the stand. Carpenter testified that he and Sharon were friends.
Further, Carpenter testified that although he was in the house on the day that Sharon was
murdered, he was not in the house at the time the murder occurred. Carpenter claimed that
he heard a “bump” near the back of the house. He then claimed that there were two men in
Sharon’s yard. He chased one of the men into the woods behind Sharon’s home. Carpenter
testified that he remained in the woods until the police arrived. He also stated that the voice
that the police heard before getting the K9 dog was from the man who he chased into the
woods. Carpenter admitted that he never told police about the two men who he claimed to
have seen that night. He testified that he did not see the men in the woods. Carpenter also
9 admitted that he had no proof to support the claim that the two men had murdered Sharon.
In fact, on cross-examination, the State asked Carpenter who he thought murdered Sharon,
and he responded that he did not know.11
¶23. Additionally, although Carpenter testified that he and Sharon were friends, he claimed
that Sharon was a pill dealer who lived in a dangerous and crime-filled community.
Carpenter told the jury that Sharon had been selling her prescription pain medicine and kept
thousands of dollars hidden in her home. Both the defense and the State rested.
¶24. The jury found Carpenter guilty of first-degree murder on November 22, 2019. The
circuit court sentenced Carpenter as a habitual offender to life imprisonment without
eligibility for parole in the custody of the MDOC.12 Carpenter did not renew his motion for
a directed verdict, nor did he make any post-trial motions challenging the sufficiency of the
evidence.
¶25. On December 18, 2019, Carpenter appealed, raising the sole issue of whether the State
presented sufficient evidence to support his conviction.
Standard of Review
¶26. The standard of review for a trial court’s ruling on the legal sufficiency of the
11 Carpenter believed that one of the men was John Buckley but admitted at trial that he had no proof to support this assumption. During discovery, Matthew Gasaway was believed to be the man who ran into the woods. Initially, Carpenter was going to present witnesses to testify that Matthew confessed to Sharon’s death. But no witnesses testified to this claim. Further, when asked about Matthew at trial, Investigator Mike Newlin testified that Matthew was in jail when 911 received the alert from Sharon’s alarm company. 12 During Carpenter’s sentencing, the State dropped its request for an age-enhanced penalty.
10 evidence is de novo. Reindollar v. State, 296 So. 3d 739, 742 (¶11) (Miss. Ct. App. 2020).
“In considering whether the evidence is legally sufficient to sustain a conviction, ‘the critical
inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed
the act charged, and that he did so under such circumstances that every element of the offense
existed.’” Thompson v. State, 269 So. 3d 301, 308 (¶17) (Miss. Ct. App. 2018) (quoting
Russell v. State, 924 So. 2d 604, 608 (¶8) (Miss. Ct. App. 2006)). “When we address a
challenge to the sufficiency of the evidence, all credible evidence of guilt must be taken as
true, and the State is entitled to all reasonable inferences that may be drawn therefrom.”
Allen v. State, 299 So. 3d 917, 925 (¶25) (Miss. Ct. App. 2020) (quoting Haynes v. State, 250
So. 3d 1241, 1244 (¶6) (Miss. 2018)). “Circumstantial evidence is ‘evidence which, without
going directly to prove the existence of a fact, gives rise to a logical inference that such fact
does exist.’” Shelton v. State, 214 So. 3d 250, 258 (¶40) (Miss. 2017) (quoting McInnis v.
State, 61 So. 3d 872, 875 (¶11) (Miss. 2011)).
Discussion
¶27. Carpenter argues that the State failed to present sufficient evidence to support his
murder conviction because there was no direct evidence, and the State had to prove his guilt
to the exclusion of every reasonable hypothesis consistent with his innocence. We agree with
this legal principle but find the evidence the State presented was sufficient to meet its burden.
¶28. “The sufficiency of the evidence is challenged with a motion for a directed verdict,
a request for a peremptory instruction, or a motion for judgment notwithstanding the verdict
(JNOV).” Pace v. State, 242 So. 3d 107, 117 (¶24) (Miss. 2018) (citing McClain v. State,
11 625 So. 2d 774, 778 (Miss. 1993)). “When the defendant proceeds with his case after the
State rests and the court overrules the defendant’s motion for a directed verdict, the
defendant has waived the appeal of that directed verdict.” Id. at (¶25) (quoting Holland v.
State, 656 So. 2d 1192, 1197 (Miss. 1995)). To preserve an issue for appeal if the defense
presents witnesses or other evidence, the defendant must renew his motion for a directed
verdict when he rests. Goldsmith v. State, 195 So. 3d 207, 212 (¶13) (Miss. Ct. App. 2016)
(citing Page v. State, 990 So. 2d 760, 761 (¶9) (Miss. 2008)). “Stated another way, if a
defendant put on evidence in his own defense after the denial of his motion for directed
verdict, he waives his challenge to the sufficiency of the State’s evidence up to that point.”
Washington v. State, 298 So. 3d 430, 439 (¶29) (Miss. Ct. App. 2020) (quoting Woods v.
State, 242 So. 3d 47, 54 (¶24) (Miss. 2018)). “In the absence of a renewal of the directed
verdict, a request for a peremptory instruction, or a motion for a judgment notwithstanding
the verdict, the defendant has waived the sufficiency error on appeal.” Pace, 242 So. 3d at
117 (¶24).
¶29. Like the defendant in Pace, Carpenter failed to renew his motion for a directed
verdict, request a peremptory instruction, or move for judgment notwithstanding the verdict.
Therefore, Carpenter waived his sufficiency-of-the-evidence issue on appeal.
¶30. Notwithstanding the waiver, we find that the State presented sufficient evidence to
support Carpenter’s conviction. “When reviewing the sufficiency of the evidence, ‘the
relevant question is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
12 beyond a reasonable doubt.” Jones v. State, 257 So. 3d 285, 290 (¶13) (Miss. Ct. App.
2020), cert. denied, 256 So. 3d 595 (Miss. 2018) (quoting Magee v. State, 231 So. 3d 243,
249 (¶14) (Miss. Ct. App. 2017)). “Where the facts and inferences ‘point in favor of the
defendant on any element of the offense with sufficient force that reasonable jurors could not
have found beyond a reasonable doubt that the defendant was guilty, the proper remedy is
. . . to reverse and render.’” Dean v. State, 295 So. 3d 575, 578 (¶8) (Miss. Ct. App. 2020)
(quoting Williams v. State, 35 So. 3d 480, 485 (¶16) (Miss. 2010)).
¶31. “Circumstantial evidence is defined as ‘evidence which, without going directly to
prove the existence of a fact, gives rise to a logical inference that such fact does exist.’”
Turner v. State, 291 So. 3d 376, 381 (¶13) (Miss. Ct. App. 2020) (quoting Shelton, 214 So.
3d at 258 (¶40)).
¶32. Mississippi Code Annotated section 97-3-19(1)(a) defines first-degree murder as the
following: “The killing of a human being without the authority of law by any means or in any
manner . . . [w]hen done with deliberate design to effect the death of the person killed, or of
any human being . . . .” In order to prove Carpenter committed murder, the evidence must
show that Carpenter: (1) killed Sharon (2) without authority of law but with (3) the deliberate
design to effect her death.
¶33. In this case at bar, the court properly instructed the jury on the elements of first-degree
murder:
Jury Instruction S-2
The Defendant, Jimmy Dean Carpenter, has been charged by Indictment with the crime of murder of Sharon Rose Johnson. If you find from the evidence
13 in this case beyond a reasonable doubt that: 1. On or about the 27th day of August, 2015 in Itawamba County, Mississippi; 2. Sharon Rose Johnson was a human being; and 3. That Jimmy Dean Carpenter without authority of law did willfully and with malice aforethought kill Sharon Rose Johnson by slashing, cutting, and/or stabbing her with a knife with deliberate design to effect the death of Sharon Rose Johnson; Then you shall find the Defendant, Jimmy Dean Carpenter, guilty of the murder of Sharon Rose Johnson. If the prosecution has failed to prove any one or more of the above listed elements beyond a reasonable doubt, then you shall find the Defendant, Jimmy Dean Carpenter, not guilty of the murder of Sharon Rose Johnson.
The court also instructed the jury on the meaning of “deliberate design:”
Jury Instruction S-3
Deliberate design means intent to kill, without authority of law and not being legally justifiable, legally excusable or under circumstances that would reduce the act to a lesser crime. “Deliberate” always indicates full awareness of what one is doing, and generally implies careful and unhurried consideration of the consequences. “Design” means to calculate, plan, or contemplate. “Deliberate design” to kill a person may be formed very quickly, and perhaps only moments before the act of consummating the intent. “Deliberate design” and “malice aforethought” have the same meaning.
Additionally, the court properly instructed the jury on circumstantial evidence:
Jury Instruction No. 3:
If the State has used circumstantial evidence to prove its case against the defendant, then the evidence must be so strong as to convince you that the defendant is guilty beyond a reasonable doubt and to the exclusion of any reasonable explanation of the defendant’s innocence.
¶34. Here, accepting all the evidence in the light most favorable to the State, we find that
the evidence was sufficient for the jury to find that Carpenter killed Sharon with deliberate
design and without authority of law. Shortly after the officers arrived at the scene of the
crime, Carpenter was found hidden in the woods behind Sharon’s house. While Carpenter
testified that he chased a man into the woods that night, no one but Carpenter was found in
14 the woods. Carpenter’s DNA was found on a bloody ice cream package lid and on a spoon
in the kitchen sink. Most significantly, although Carpenter testified that he was not in
Sharon’s house when she was murdered, Sharon’s blood was found on Carpenter’s pants and
boots. Additionally, both Officer Gordon and Officer Johnson testified at trial that when they
were inspecting the area behind Sharon’s house, they heard a voice in the woods asking God
for forgiveness. Both officers opined that it was Carpenter’s voice that they heard.
¶35. Furthermore, Carpenter contradicted himself concerning even knowing Sharon.
During his interview with the police following his arrest, he denied even knowing Sharon,
let alone working as her caretaker. But at trial, he described Sharon as his friend who was
selling prescription drugs out of her house, which made her a target for robberies.
Investigator Sartin testified that there was no evidence that anyone had broken into Sharon’s
house. Elizabeth testified that Sharon’s neighbors used drugs, but no one had ever broken
into Sharon’s house.
¶36. Moreover, after twice listening to the Safe Home Security’s audio recording that
recorded the sounds of Sharon’s murder, Carpenter’s sister Rena verified both times that it
was Carpenter’s voice on the recording.
¶37. Notwithstanding the waiver of the issue, after reviewing the evidence in the “light
most favorable to the prosecution,” we find that a rational trier of fact in this case could have
found the essential elements of the crime beyond a reasonable doubt and that Carpenter was
guilty of first-degree murder. Accordingly, Carpenter’s claim that the evidence was
insufficient is without merit.
15 Conclusion
¶38. Because Carpenter did not properly preserve his sufficiency of the evidence challenge
on appeal, the issue is waived. Notwithstanding the waiver, we find that the State presented
sufficient evidence at trial, and we affirm his conviction and sentence.
¶39. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE, McCARTY AND SMITH, JJ., CONCUR.