Johnson v. State

997 So. 2d 256, 2008 WL 5220674
Court of Appeals of Mississippi·Decided December 16, 2008·No. 2007-KA-01687-COA·Published·Cited by 9 cases

Opinion

997 So.2d 256 (2008)

Keith JOHNSON, Appellant
v.
STATE of Mississippi, Appellee.

No. 2007-KA-01687-COA.

Court of Appeals of Mississippi.

December 16, 2008.

*257 Sidney F. Beck, Jr., Olive Branch, attorney for appellant.

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

Before LEE, P.J., CHANDLER and ISHEE, JJ.

CHANDLER, J., for the Court.

¶ 1. Keith Johnson was convicted of culpable-negligence manslaughter for the shooting death of Shane Johnston (Shane) *258 and sentenced by the Monroe County Circuit Court to fifteen years in the custody of the Mississippi Department of Corrections with eight years suspended, seven years to serve, and five years of post-release supervision. He appeals this conviction alleging the following errors: (1) the circuit court erred in failing to sustain the motions for a directed verdict at the close of the State's case-in-chief and at the conclusion of trial; (2) the circuit court erred in overruling the motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a motion for a new trial; and (3) the verdict of the jury was against the overwhelming weight of the evidence. Finding that none of these issues have merit, we affirm Johnson's conviction and sentence.

FACTS

¶ 2. On or about June 15, 2005, Johnson moved in with his cousin, Jerry Forrester in Amory, Mississippi. Also living at the Forrester residence were Jerry's two children, Patrick and Nicky. Patrick, age sixteen, had previously been living with his girlfriend, Tavia Wade (Tavia), age twenty-four, for over a year while Shane, Tavia's fiancé, was incarcerated. When Shane was released from prison, Tavia ended her relationship with Patrick and resumed her relationship with her fiancé. Late on the evening of June 24, 2005, Patrick began calling Tavia's home. Tavia's brother, Lance Schrock (Lance), and Patrick yelled at each other over the phone, and then, Shane and Patrick began yelling and cursing at each other over the phone.

¶ 3. There was conflicting testimony as to whether or not Patrick challenged Shane and Lance to come to the Forrester residence, about a quarter of a mile down the road, and fight. Either way, during the early morning hours of June 25, 2005, Lance, Shane, and Lance's friend, Alex Parker (Alex), all drove the distance to the Forrester home to confront Patrick. Before leaving, Shane told Tavia that he was going to speak with Patrick and Jerry about Patrick's incessant calling and insulting Tavia. Tavia attempted to change the mens' minds about going to the Forrester residence as they had "no trespassing" signs posted and a locked gate.

¶ 4. When Shane, Alex, and Lance arrived at the Forrester residence, Patrick and Johnson met them in the front yard. Shane came toward Patrick, but Johnson stepped between them and attempted to stop the fight. His attempt was unsuccessful, though, and Johnson and Shane began to fight. Shane hit Johnson in the mouth, which knocked his tooth loose. Johnson fled into the Forresters' bathroom to take care of his tooth. Meanwhile outside, the fight escalated.[1] Johnson heard the commotion. He grabbed a .22 caliber single-action revolver, loaded it, and came outside. He fired one shot into the air. Johnson told Shane, Lance, and Alex to leave. Alex and Lance left, but Shane refused. Johnson pointed the gun at Shane's head and again told him to leave. Johnson testified that when he raised the gun up again, it fired — even though his finger was barely on the trigger. He said that Shane was acting so crazy that he thought Shane would harm him or his family. He admitted that holding a cocked revolver to someone's head was an inherently dangerous act.

*259 ¶ 5. The jury was instructed on culpable-negligence manslaughter along with Johnson's defenses of self-defense and accident. The jury found him guilty, and he was sentenced to fifteen years, with eight years suspended, and seven years to serve in the custody of the Mississippi Department of Corrections, and five years of post-release supervision.

ANALYSIS

¶ 6. In order to establish that Johnson committed culpable-negligence manslaughter, the State had to prove beyond a reasonable doubt that his actions constituted "negligence of a degree so gross as to be tantamount to a wanton disregard of, or utter indifference to, the safety of human life, and this shall be so clearly evidenced as to place it beyond every reasonable doubt." Jones v. State, 678 So.2d 707, 710-11 (Miss.1996) (quoting Smith v. State, 197 Miss. 802, 818, 20 So.2d 701, 706 (1945)). "[C]ulpable negligence ... may be defined as the conscious and wanton or reckless disregard of the probabilities of fatal consequences to others as the result of the willful creation of an unreasonable risk." Id. (quoting Campbell v. State, 285 So.2d 891, 893 (Miss.1973)).

¶ 7. Johnson appeals his conviction for culpable-negligence manslaughter arguing that the circuit court erred in denying his motion for directed verdict and his motion for a JNOV, and that the verdict was against the overwhelming weight of the evidence. These three individual assignments of error are essentially challenges to the weight and sufficiency of the evidence. His challenges to the denial of his motions for directed verdict and his motion for a JNOV are both contentions that there was insufficient evidence. See Bush v. State, 895 So.2d 836, 843(¶ 16) (Miss. 2005) (citing Carr v. State, 208 So.2d 886, 889 (Miss.1968)). "We consider the record at the last time the trial court had the issue before it here, on the motion for J.N.O.V." Foster v. State, 919 So.2d 12, 15(¶ 13) (Miss.2005). His third issue is challenging the weight of the evidence. We will, therefore, address the sufficiency of the evidence and, then, the weight of the evidence.

I. SUFFICIENCY OF THE EVIDENCE

¶ 8. A circuit court judge's decision to deny a defendant's motion for a directed verdict or for a JNOV will not be disturbed by this Court unless the facts and inferences "point in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty." Hughes v. State, 983 So.2d 270, 275-76(¶ 10) (Miss. 2008) (quoting Brown v. State, 965 So.2d 1023, 1030(¶ 25) (Miss.2007)). When reviewing

whether the evidence is sufficient to sustain a conviction in the face of a motion for directed verdict or for judgment notwithstanding the verdict, 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; and where the evidence fails to meet this test it is insufficient to support a conviction.'

Bush, 895 So.2d at 843(¶ 16) (citing Carr, 208 So.2d at 889).

¶ 9. A review of the sufficiency of the evidence does not require this Court to "ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt. Instead, 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 *260 the crime beyond a reasonable doubt." Jackson v.

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