Wolverton v. State

859 So. 2d 1073, 2003 Miss. App. LEXIS 1073, 2003 WL 22706958
CourtCourt of Appeals of Mississippi
DecidedNovember 18, 2003
DocketNo. 2002-KA-01279-COA
StatusPublished
Cited by2 cases

This text of 859 So. 2d 1073 (Wolverton 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
Wolverton v. State, 859 So. 2d 1073, 2003 Miss. App. LEXIS 1073, 2003 WL 22706958 (Mich. Ct. App. 2003).

Opinion

MYERS, J.,

for the Court.

¶ 1. On July 12, 2002, a trial was held in the Circuit Court of Jones County. The jury found Troy Wolverton guilty of the sale of a controlled substance. He was sentenced to a term of twenty-five years in the custody of the Mississippi Department of Corrections pursuant to Section 41-29-39(b)(1) of the Mississippi Code Annotated with ten years suspended. On August 2, 2002, Wolverton filed this appeal raising the following issues:

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF EVIDENCE?
II. DID THE TRIAL COURT COMMIT REVERSIBLE ERROR IN ALLOWING THE SUBMISSION OF THE STATE’S JURY INSTRUCTION?
III. DID THE APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?

STATEMENT OF FACTS

¶ 2. On March 6, 2001, Bounds, an officer with the Laurel Police Department, met with Williams, a confidential informant working with the police department, for the purpose of making a “controlled buy” from Wolverton. Williams contacted Wol-verton and the two men arranged to meet at a gas station.

¶ 3. Before this took place, Williams met with Bounds and other officers. Williams and his automobile were thoroughly searched for money and contraband. He was provided a coat by the police that was fitted with a video camera disguised as a button. Williams was also fitted with an audio device disguised as a beeper. Officer Bounds gave Williams money to purchase the drugs from Wolverton. Then, Bounds, along with other officers from the Laurel Police Department, followed Williams to the designated site.

¶ 4. Williams met Wolverton at the gas station and gave him money. No drugs were transferred at this time. However, Wolverton asked Williams to meet him later at Legion Field, a municipal ballpark located in Laurel. At this second meeting, Wolverton allegedly gave Williams a bag containing a small amount of crack cocaine. Upon receiving the cocaine, Williams drove directly to the location where he had met Bounds and the other officers beforehand. Williams gave Bounds the bag he received from Wolver-ton. Williams and his automobile were again searched thoroughly for money and contraband. He returned the equipment to Officer Bounds and was paid for his services.

¶ 5. On September 13, 2001, Wolverton was indicted for the sale of a controlled substance within 1500 feet of a ball park in violation of Sections 41-29-139(a)(l) and [1076]*107641-29-142(1) of the Mississippi Code Annotated. On December 21, 2001, Wolver-ton was arraigned and a trial was held on June 12 of the following year. The State called Bounds and Williams to testify. It also called Downey, a forensic scientist with the Mississippi Crime Lab, who testified that the substance was crack cocaine. The trial court denied Wolverton’s motion for a directed verdict. Wolverton did not testify on his own behalf or offer any witnesses. The trial court also denied Wolverton’s requests for a mistrial and the jury returned a verdict of guilty. Feeling aggrieved by this result, Wolverton filed a notice of appeal and a motion for an appeal bond. On August 5, 2002, the trial court issued an order granting Wolverton’s motion and he was released on bond pending this appeal. Finding no error, we affirm.

LEGAL ANALYSIS

I. WAS THE VERDICT AGAINST THE OVERWHELMING WEIGHT OF EVIDENCE?

¶ 6. Wolverton contends that the verdict was against the overwhelming weight of evidence. He also claims that the evidence presented was insufficient to allow a guilty verdict. Wolverton maintains that' the trial court should have granted his motion for a directed verdict.

¶ 7. The standard of review concerning the sufficiency of evidence is quite limited. Brown v. State, 796 So.2d 223, 225(¶ 6) (Miss.2001) (citing Clayton v. State, 652 So.2d 720, 724 (Miss.1995)). All of the evidence must be considered in the light most consistent with the verdict. Id. In addition, the prosecution is given the benefit of “all favorable inferences that may reasonably be drawn from the evidence.” Clayton, 652 So.2d at 724. This Court “will not reverse unless the evidence with respect to one or more of the elements of the offense charged is such that reasonable and fairminded jurors could only find the accused not guilty.” Brown, 796 So.2d at 225(¶ 6) (citing McClain v. State, 625 So.2d 774, 778 (Miss.1993)).

¶ 8. Wolverton argues the State did not prove that he sold the cocaine to Williams, the confidential informant. Specifically, Wolverton contends the State failed to prove that Wolverton had knowledge of the transaction and that Wolverton had actual or constructive possession of the cocaine. Wolverton emphasizes the fact that the audiotape never mentions the word “drugs” and the videotape does not show the cocaine ever exchanging hands. In other words, Wolverton argues that it is essentially Williams’s word against his own.

¶ 9. The State argues that it did, in fact, meet the necessary burden of proof. In support of this, the State contends that it presented the unequivocal testimony of Williams which was corroborated by Officer Bounds. The State further argues that Wolverton presented no evidence to the contrary.

¶ 10. It is the duty of the jury to listen to all of the testimony and determine who is a credible witness and whether the evidence supports the crime charged. Bridges v. State, 716 So.2d 614, 617 (¶ 15) (Miss.1998). In addition, it appears from the record that the State presented each element of the crime.

¶ 11. Officer Bounds testified as to the scenario and the use of the confidential informant. He testified as to the procedures followed, establishing location and the chain of custody of the cocaine purchased on the day in question. Williams identified Wolverton in the courtroom and gave a detailed narrative of the transaction. The State also called a scientist from the crime lab who was qualified as an expert in his field. He testified that the [1077]*1077substance presented for testing was, in fact, cocaine.

¶ 12. Accordingly, there was legally sufficient evidence to support each and every element of the crime for which Wolverton was charged. As a result, the trial court was correct in denying Wolverton’s motion for a directed verdict. Furthermore, when viewing all evidence in the light consistent with the verdict and giving the State all favorable inferences which may be drawn from the evidence, this Court holds that the verdict was not against the overwhelming weight of evidence.

II. DID THE COURT COMMIT REVERSIBLE ERROR IN ALLOWING THE SUBMISSION OF THE STATE’S JURY INSTRUCTION?

¶ 13. Wolverton argues that the trial court committed reversible error in allowing the State’s submission of jury instruction “S-l,” which was a request for the jury to consider finding Wolverton guilty of the sale of a controlled substance as opposed to the charge of “sale of a controlled substance within 1500 feet of a ball field,” which was the charge on which he was indicted. Wolverton claims that the trial court acted improperly in allowing the return of a guilty verdict for a charge other than that of the indictment.

¶ 14. In determining whether error lies in the granting or refusal of a particular jury instruction, “the instructions given must be read as a whole.” Fultz v. State, 822 So.2d 994 (¶ 11) (Miss.Ct.App.2002).

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859 So. 2d 1073, 2003 Miss. App. LEXIS 1073, 2003 WL 22706958, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wolverton-v-state-missctapp-2003.