Thomas v. State

178 So. 3d 771, 2012 WL 4497345, 2012 Miss. App. LEXIS 605
Court of Appeals of Mississippi·Decided October 2, 2012·No. No. 2011-KA-00840-COA·Published·Cited by 1 cases

Opinion

FAIR, J.,

for the Court:

¶ 1. Anthony Thomas appeals from -his convictions in the Hinds County Circuit Court of aggravated assault and felon.in possession of a weapon. He primarily challenges the sufficiency of the evidence to support his felon-in-possession conviction, but he also raises several other issues, including an alleged discovery violation and the trial judge’s evidentiary determination concerning a witness’s availability. Because Dr. Christine Toevs testified to the nature of the victim’s wounds, the. knife handle was admitted into evidence, and Thomas stipulated to his status as a prior convicted felon, we find sufficient evidence to sustain. the felon-in-possession conviction. Further, we find the trial judge followed appropriate remedial procedures to cure the discovery violation, and that he did not abuse his discretion in denying a mistrial or determining the witness’s unavailability. We affirm.

FACTS

¶ 2. Karen Burkes and Anthony Thomas were living together when Burkes was stabbed and left bleeding in their home. She managed to get next door where Laketa Evans contacted emergency services. Burkes told Evans that Thomas had stabbed-her. Burkes was rushed to the hospital where she remained for weeks recovering from the attack.

¶ 3. That night, law enforcement discovered a knife handle on the floor of Burkes’s apartment. The blade' was missing. Thomas did not return to the apartment that evening.. Two weeks after her injury, Burkes identified Thomas from a photo lineup as her attacker..

¶4. Dr.-. Toevs, a critical-care - surgeon, cared for Burkes while she was recovering in the intensive-care unit. She testified that Burkes had suffered two stab wounds to the chest injuring her left lung and her internal mammary artery and causing substantial bleeding.

¶ 5. Burkes testified that she and Thomas “had words” that night before he [774]*774grabbed her from behind and stabbed'her. Though she did not see the knife during the attack, she recognized the handle as part of a set of knives she kept- in the kitchen.

¶6. Thomas testified that Burkes had attacked him with the knife; and he was trying to subdue her when she accidentally stabbed herself. He then pulled the blade out of her chest, snapped the handle off so she would not be able to úse the weapon again, and threw the blade' into their outdoor garbage. Thomas left for a friend’s house down the street, so he could call for help. He did not return to the house because he was afraid Burkes’s son would think he was responsible for her injury.

PROCEDURAL HISTORY

¶ 7. In 2009, this Court reversed Thomas’s conviction and remanded this case for a new trial because inadmissible evidence of prior convictions was admitted denying him a fundamentally fair trial.1

■ ¶ 8. Thomas now appeals his conviction for aggravated assault and felon in possession asserting that the trial court erred because: (1) the evidence presented was insufficient to convict him of being a felon in possession of a butcher knife; (2) he was .prejudiced by a discovery .violation, and the improper admission of character evidence and hearsay; (3) the circuit court improperly admitted the prior testimony, of Dr. Toevs; and-(4) the circuit court improperly limited his right to cross-examination. Thomas urges this Court to -apply the, doctrine of retroactive misjoinder and grant him a new trial,

DISCUSSION "

1. Sufficiency of the Evidence

¶ 9. Thomas argues that the circuit court erred in denying his motions for a directed verdict and ⅞ JNOV because- the State presented, insufficient evidence to prove the knife in question was a .prohibited butcher knife. .

¶ 10, We review a challenge'to the sufficiency of the evidence in the light most favorable to the State. Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005). We have stated:

Upon reviewing a denial of the motion for judgment notwithstanding the verdict, this Court will consider the evidence in the light most favorable to the 'appellee (the [Sjtate), giving that party the benefit of all favorable inference that may be reasonably1 drawn from the evidence. If the facts so considered' point so overwhelmingly in favor of the appellant (the defendant) that reasonable men could not 'have arrived at a contrary verdict, we are required to reverse and render. On the other hand if there, is substantial evidence in support of the verdict, that is, evidence of such quality and weight that, reasonable and fair-minded jurors in the exercise of impartial judgment might have reached different conclusions, affirmance is required. The above standard of review however, is predicated on the fact that the trial judge applied the correct law.

Woods v. State, 19 So.3d 817, 819 (¶6) .(Miss.Ct.App.2009) (quoting Moore v. State, 873 So.2d 129, 132 (¶ 13) (Miss.Ct.App.2004)).

¶ 11. Thomas was charged with violating section 97-37-5 of the Mississippi Code Annotated (Supp.2011), which prohibits a convicted felon from possessing “any firearm or any bowie knife, dirk knife, butcher knife, [or] switchblade knife....” At trial, the parties stipulated [775]*775to Thomas’s status as a convicted felon and his possession of the knife was not contested. The issue on appeal is whether Thomas possessed a “butcher knife.”

¶ 12. .Thomas argues that a steak knife is not prohibited by the statute and asserts that .the knife in question was just that» an average steak knife. At trial, Officer Jer-rick. Taylor stated that he found the knife handle on the floor near the bedroom. The handle was admitted, into evidence, but the blade was never recovered. Witnesses referred to the knife as a steak knife or kitchen knife, and the victim stated that it was part of a set of knives she kept in the kitchen. Dr. Toevs testified that the blade would have to be several inches long to injure the internal mammary artery because it lies beneath the sternum. In dosings the-prosecution argued that a steak knife is used to cut meat just like a butcher knife. No direct evidence was presented regarding the length of the blade or its shape.

¶ 18. Thomas urges this Court to define the term butcher knife as. we recently defined the term dirk knife, in Summerall v. State, 41 So.3d 729, 733-37 (¶¶ 15-82) (Miss.Ct.App.2010). In Summerall, this Court was able to see the blade and compare it with other dirk knives because the knife was admitted into evidence. Here, no such opportunity exists. Without a knife blade to examine, this Court cannot determine, as a matter of law, whether the knife in question is a butcher knife.

¶ 14. What type- of knife Thomas used in his attack was a question of fact for the jury to determine. Direct evidence was admitted in- the form of eyewitness testimony. The handle of the knife was placed in evidence. Circumstantial evidence was presented as to the length of the blade and its strength. Circumstantial evidence is evidence that, “without going directly to prove the existence of a fact, gives rise to-a logical inference that such [a] fact does exist.” McInnis v. State, 61 So.3d 872, 876 (¶ 11) (Miss.2011) (citation omitted). It is entitled to the same weight and effect as direct evidence. Sherrell v. State, 622 So.2d 1233, 1238 (Miss.1993).

¶ 16. Thomas stipulated that he was a prior-convicted felon. ' The knife handle was five inches long and an inch wide. Dr.

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Thomas v. State, 178 So. 3d 771, 2012 WL 4497345, 2012 Miss. App. LEXIS 605 (Mich. Ct. App. 2012).

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