Wooten v. State

752 So. 2d 1105, 1999 WL 1034838
CourtCourt of Appeals of Mississippi
DecidedNovember 16, 1999
Docket98-KA-00448-COA
StatusPublished
Cited by2 cases

This text of 752 So. 2d 1105 (Wooten 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
Wooten v. State, 752 So. 2d 1105, 1999 WL 1034838 (Mich. Ct. App. 1999).

Opinion

752 So.2d 1105 (1999)

Cleotha WOOTEN, Appellant,
v.
STATE of Mississippi, Appellee.

No. 98-KA-00448-COA.

Court of Appeals of Mississippi.

November 16, 1999.

*1106 George T. Kelly, Greenville, Attorney for Appellant.

Office of the Attorney General by John R. Henry, Jr., Attorney for Appellee.

BEFORE SOUTHWICK, P.J., LEE, AND PAYNE, JJ.

LEE, J., for the Court:

¶ 1. This appeal arises from a criminal conviction in the Circuit Court of Washington County for aggravated assault and possession of a firearm by Cleotha Wooten, a convicted felon, in violation of Miss. Code Ann. § § 97-3-7 and 97-37-5, respectively. In addition to the two crimes for which the appellant was convicted, the indictment also charged him with discharging a firearm into an occupied dwelling. That count was dismissed at trial on motion by the State. Wooten was sentenced to ten years imprisonment for aggravated assault and to two years for possession of *1107 a firearm, to run concurrently. The appellant asserts as the basis of this appeal the sufficiency of the State's evidence such that his motion JNOV should have been granted or, in the alternative, that the verdict was against the overwhelming weight of the evidence and a new trial should have been granted. Finding no error, this court affirms.

FACTS

¶ 2. On the afternoon of July 19, 1996, twenty-four-year-old Kydim Winston was in his front yard in Greenville, Mississippi visiting with relatives. Winston lived with his mother and grandmother. On that afternoon a number of children and other people were in the front yards of Winston and his neighbor and several of the children were playing with water balloons. One of Winston's neighbors was Ethel Mae McTiller, who at the time had been living in the house next door to Winston with her boyfriend, Cleotha Wooten. During that time Wooten was seen leaving the McTiller residence with his belongings as though he were moving out of the house. McTiller testified that she and Wooten were in the midst of an argument at the time, and a neighbor testified that Wooten was mad at McTiller.

¶ 3. Winston's car was parked between his house and the McTiller house in such a way that it appeared to block Wooten's car. According to Winston's corroborated testimony, Winston asked Wooten if he wanted him to move his car. Winston stated that Wooten, in response, cussed at him and told him that he did not need to move his car. Wooten then got into his car and drove away. When Wooten returned Winston heard him say "something about don't be messing with his old lady or something." Winston, however, was not certain to whom Wooten was speaking because there were so many people in the yard. Wooten then left a second time. When he returned he picked up Ethel Mae McTiller and left a third time. McTiller testified that she had a drinking problem and that Wooten dropped her off at the store to get something to drink. Winston said that Wooten again pulled up in his car speeding, threw the door open and said something. Winston asked a friend next to him to whom Wooten was speaking. Wooten then responded to Winston, "Mother f____, I'm talking to you." Winston had been either sitting or leaning on his car and reached in to lower the volume on his radio. Winston testified that Wooten then said to him, "You must have a gun." Winston then looked down and saw the shadow of a gun on the street, and Wooten was halfway out of the car. Winston started to run, but by then Wooten had shot him in the stomach. Winston made it into his house and asked his mother to call an ambulance.

¶ 4. At the scene of the shooting, police discovered bullet holes in the victim's car and in a nearby mailbox. Officers found Wooten shortly after the shooting at his mother's house about one block away from the scene of the shooting. Wooten was outside when the officers approached the house and his car was backed up in the yard so that the front windshield was facing the street. He told the officers that someone had shot into his car. Wooten's mother told the officers that Wooten had brought a rifle into the house. Upon inquiry, he admitted to the officer that he had put the rifle in the attic of the house and the .22 rifle was retrieved at that time. Crime scene investigators from the Greenville Police Department found .22 shell casings inside Wooten's car to the right of the driver's seat and on the floorboard, and nine bullet holes in the windshield of the car. The investigators testified that all of the shots into the windshield came from inside the car. They found no evidence to indicate that shots were fired into the car. Also, while the officers were in the house they spotted a pair of discarded pants lying in plain view which fit the description of those reportedly worn by Wooten at the time of the shooting. Once the evidence was gathered, the officers transported *1108 Wooten to the police station. Charges were not brought against Winston, as there was no evidence to indicate that he was anything more than a victim.

ISSUE

DID THE CIRCUIT COURT ABUSE ITS DISCRETION IN FINDING THE EVIDENCE INSUFFICIENT TO SUSTAIN THE APPELLANT'S MOTION FOR JNOV OR IN THE ALTERNATIVE FOR FAILING TO GRANT A NEW TRIAL ON A CLAIM THAT THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

Standard of Review

¶ 5. In this appeal, Wooten seeks relief in the form of a reversal and discharge or, in the alternative, remand to the trial court for a new trial. The former is a consequence of legal insufficiency of the evidence while the latter is the product of an examination of evidentiary weight. May v. State, 460 So.2d 778, 781 (Miss. 1984).

¶ 6. In assessing the legal sufficiency of the evidence for a motion for JNOV, the trial judge is required to accept as true all of the evidence that is favorable to the State, including all reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant. Yates v. State, 685 So.2d 715, 718 (Miss.1996); Ellis v. State, 667 So.2d 599, 612 (Miss.1995); Clemons v. State, 460 So.2d 835, 839 (Miss.1984); Noe v. State, 616 So.2d 298, 302 (Miss.1993). If under this standard, sufficient evidence to support the jury's verdict of guilty exists, the motion should be overruled. Brown v. State, 556 So.2d 338, 340 (Miss.1990); Butler v. State, 544 So.2d 816, 819 (Miss.1989). A finding that the evidence is insufficient results in a discharge of the defendant. May v. State, 460 So.2d 778, 781 (Miss. 1984).

¶ 7. Where the weight of the evidence, as opposed to the sufficiency, is challenged, the jury's verdict is vacated on grounds relative to the weight of the evidence so that a new trial is granted as opposed to final discharge. Id. In determining whether a jury verdict is against the overwhelming weight of the evidence, the court must accept as true the evidence which supports the verdict and will reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. Herring v. State, 691 So.2d 948, 957 (Miss.1997) (citing Thornhill v. State, 561 So.2d 1025, 1030 (Miss.1989)). Only when the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice will it be disturbed on appeal. Benson v. State, 551 So.2d 188, 193 (Miss.1989) (citing McFee v. State, 511 So.2d 130, 133-34 (Miss.1987)). It has been said that on a motion for new trial the court sits as a thirteenth juror.

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Related

Roberson v. State
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Cite This Page — Counsel Stack

Bluebook (online)
752 So. 2d 1105, 1999 WL 1034838, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wooten-v-state-missctapp-1999.