                      IN THE SUPREME COURT OF MISSISSIPPI

                                  NO. 2005-KA-00610-SCT

CHARLES MOORE, JR.

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                            02/11/2005
TRIAL JUDGE:                                 HON. THOMAS J. GARDNER, III
COURT FROM WHICH APPEALED:                   LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      LORI NAIL BASHAM
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: JOHN R. HENRY
DISTRICT ATTORNEY:                           JOHN R. YOUNG
NATURE OF THE CASE:                          CRIMINAL - FELONY
DISPOSITION:                                 AFFIRMED - 04/27/2006
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE SMITH, C.J., CARLSON AND DICKINSON, JJ.

       DICKINSON, JUSTICE, FOR THE COURT:

¶1.    Following his conviction of Aggravated Assault, Burglary of a Dwelling, and Rape,

Appellant presents three suggestions of error for our careful review. The first is whether he

knowingly and voluntarily waived his Miranda 1 rights and his right to refuse a search of his

home. The second is whether evidence collected from his home after he was arrested

(allegedly without a warrant) on an unrelated charge should be excluded as “fruit of the




       1
           Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
poisonous tree.”    The final issue raised is whether the convictions were against the

overwhelming weight of the evidence.

                   BACKGROUND FACTS AND PROCEEDINGS

¶2.    Sometime around 4:30 p.m. on June 21, 2003, Charles Moore, Jr., (“Moore”)

unsuccessfully attempted to call the home of his friend Chris Parker (“Parker”). At 5:00

p.m., Moore reached Parker on his cell phone. Parker informed Moore that he was in Atlanta

and would be staying overnight. That evening at 10:30 p.m., Moore, Shane McCowin

(“McCowin”) and Andy Vail (“Vail”) arrived at a club in Tupelo and started drinking

heavily. After the club closed at 2:00 a.m., the three men and two women from the club went

to Vail’s trailer where they drank for approximately two hours. Moore left at 4:30 a.m. and

claims he drove to his home in Fulton, Mississippi, sat in his car for half an hour drinking

whiskey and smoking cigarettes, and then went to bed.

¶3.    On that same evening, L.D.T. (“the victim” or “L.D.T.”), spent the night at Parker’s

house where two of her friends, Jennifer Bass (“Bass”) and Janie Goff (“Goff”) were

babysitting Parker’s children. At approximately 2:30 a.m., L.D.T. went to bed on the living

room couch.    Some time around daylight, she was awakened by someone who was

suffocating her. Her attacker was saying, “Die, bitch, die.” When L.D.T. clawed her

attacker’s neck, the man stabbed her with an unidentified tool on both sides of her neck. The

attacker told her he would kill her and the children in the house if she continued resisting.

The man then vaginally and anally raped L.D.T., often talking to her during the attack.



                                             2
¶4.    When the attacker grabbed L.D.T.’s throat from behind to facilitate penetrating her

orally, his hand slipped on the blood. He slammed L.D.T. onto the couch, re-covered her

with the comforter, and told her that if she peeked out from beneath the covers, he would kill

everyone in the house. The attacker then left.

¶5.    Bass and Goff drove L.D.T. to the hospital where the medical staff treated her stab

wounds and prepared a rape kit. The Mississippi Crime Laboratory later tested the seminal

fluids found on vaginal swabs from L.D.T., but the findings were inconclusive as to whether

Moore was the source. L.D.T. was discharged from the hospital that evening.

¶6.    When law enforcement officers found a phone number on Parker’s caller ID which

indicated a June 21, 2003 call from Moore’s phone, they questioned Moore on the evening

of June 22, 2003. Eight days later, Officer Scotty Reedy (“Officer Reedy”) and Officer

Truman Carter (“Officer Carter”) arrested Moore at his workplace on a misdemeanor warrant

for a bad check written in 1996. The officers drove Moore to his house, had Moore sign a

consent to search form, and retrieved a set of clothes and a belt from Moore’s bedroom. The

Mississippi Crime Lab later conducted DNA testing on blood found on this belt and

determined the stains were uniquely consistent with L.D.T.’s blood.

¶7.    Upon completion of the search, the officers transported Moore to the Lee County

Sheriff’s Department and booked him on the bad check charge. In the initial interview with

the officers at the station, Moore signed a paper waiving his Miranda rights, but he made no

confession. Although Moore provided a statement during a second interview in which he



                                              3
admitted raping L.D.T., he now argues he was simply repeating information about the rape

told to him by his friends McCowin and Vail. Moore claims he confessed only because

Officer Terry Jones (“Officer Jones”) threatened him after he gave the first statement.

¶8.    On February 4, 2005, a Lee County jury found Moore guilty of Aggravated Assault,

Burglary of a Dwelling, and Rape. He was sentenced to serve twenty years on the aggravated

assault conviction, ten years on the burglary of a dwelling conviction, and forty years on the

rape conviction, with the three sentences to run consecutively. Following denial of his

Motion for Judgement of Acquittal JNOV or in the Alternative for a New Trial, Moore

timely filed this appeal.

                                       DISCUSSION

       I.     Whether the trial court improperly denied Moore’s motion to
              suppress evidence.

¶9.    In reviewing the denial of a motion to suppress, we must determine whether the trial

court’s findings, considering the totality of the circumstances, are supported by substantial

credible evidence. Price v. State, 752 So.2d 1070 (¶ 9) (Miss. Ct. App. 1999) (citing Magee

v. State, 542 So.2d 228, 231 (Miss. 1989); Nicholson v. State, 523 So.2d 68, 71 (Miss.

1988); Ray v. State, 503 So.2d 222, 224 (Miss. 1986)). Where supported by substantial

credible evidence, this Court shall not disturb those findings. Ray, 503 So.2d at 223-24.




                                              4
       1.     Legality of the Misdemeanor Arrest

¶10.   Moore argues that, at the time of the search, he was in custody following an illegal

arrest. As such, he argues, any evidence collected during that search was “fruit of the

poisonous tree” and should have been suppressed.

¶11.   Officers Reedy and Carter, who claim they had a warrant, arrested Moore on a

misdemeanor charge of writing a $4.19 bad check to Wal-Mart in 1996. The officers

discovered the outstanding warrant by running Moore’s name through the Justice Court

database. The officers went to Moore’s place of employment and informed him that he was

being arrested on a warrant for a bad check. After arresting Moore, the officers transported

him to his apartment where the search took place.

¶12.   On January 10, 2005, Moore filed a Motion to Compel Discovery in which he

requested a copy of the misdemeanor warrant. At a January 28, 2005, pre-trial hearing,

Moore again requested that the State produce the original misdemeanor arrest warrant. The

Justice Court file included an Affidavit, a copy of the $4.19 check to Wal-Mart, a

computerized arrest form, and a disposition sheet – but no warrant. Because the State could

not produce a copy of the misdemeanor warrant upon request, Moore claims that under

Mississippi Code Annotated Section 99-3-7(1) and (2) (1972), his arrest was illegal. Section

99-3-7 provides:

       (1) An officer or private person may arrest any person without a warrant, for
       an indictable offense committed, or a breach of the peace threatened or
       attempted in his presence; or when a person has committed a felony, though
       not in his presence; or when a felony has been committed, and he has

                                             5
         reasonable grounds to suspect and believe the person proposed to be arrested
         to have committed it; or on a charge, made upon reasonable cause, of the
         commission of a felony by the party proposed to be arrested. And in all cases
         of arrest without warrant, the person making such arrest must inform the
         accused of the object and cause of the arrest, except when he is in the actual
         commission of the offense, or is arrested on pursuit.

         (2) Any law enforcement officer may arrest any person on a misdemeanor
         charge without having a warrant in his possession when a warrant is in fact
         outstanding for that person’s arrest. In all such cases, the officer making the
         arrest must inform such person at the time of the arrest the object and cause
         therefor. If the person arrested so requests, the warrant shall be shown to him
         as soon as practicable.

Miss. Code Ann. § 99-3-7(1) and (2) (1972) (emphasis added).

¶13.     The statute clearly requires a warrant for the misdemeanor arrest. Thus, the Circuit

Court was presented with a question of fact, that is, whether the officers had a warrant when

they arrested Moore. The fact that the warrant could not later be produced is not conclusive

proof that no warrant existed, nor does it necessarily mean the officers were not in possession

of the warrant when they arrested Moore. See Torrence v. State, 283 So.2d 595, 597 (Miss.

1973).

¶14.     The Circuit Court was required to weigh the evidence that no warrant existed against

other evidence that it did. Moore claims he never saw a warrant, and, when requested in

discovery, no warrant could be produced. On the other hand, the officers testified they had

an arrest warrant in their possession at the time of the arrest. According to Officer Reedy,

after running a routine check of the Justice Court database, he located the physical

misdemeanor warrant for Moore in the police department’s file at the jail. Officers Reedy



                                               6
and Carter claim that, with warrant in hand, they went to Moore’s workplace, informed him

he was being arrested because of the bad check, and showed him the actual warrant.

¶15.     Additionally, the Justice Court file included a Justice Affidavit concerning the bad

check charge, a copy of the $4.19 check signed by Moore and issued to Wal-Mart, and a

computerized arrest form. The arrest form indicated in two places that a warrant had been

issued for Moore’s arrest on the bad check charge. This evidence, along with the testimony

of Officers Reedy and Carter, constitutes substantial credible evidence which supports the

Circuit Court’s findings.

¶16.     Poor record keeping does not erase the existence of the warrant. The trial court’s

denial of Moore’s motion to exclude the items seized from his home was supported by

substantial credible evidence, and we will not disturb those findings. As such, Moore’s arrest

was not illegal, and the items seized from his house after his arrest cannot be excluded as

“fruit of the poisonous tree.” This portion of Moore’s first assignment of error is without

merit.

         2.     Voluntariness of the Consent

¶17.     Moore says he did not voluntarily consent to the search of his home. Thus, he argues,

the evidence collected pursuant to this non-consensual search – specifically the blood-stained

belt – should have been suppressed by the trial court.

¶18.     The United States Constitution and the Mississippi State Constitution guarantee

citizens the right to be secure in their persons, houses, and possessions against unreasonable



                                               7
and warrantless searches and seizures. U.S. C ONST. A MEND IV; M ISS. C ONST. A RT. 3, § 23.

While the warrant clauses of these provisions express the general rule that law enforcement

must procure a warrant based on probable cause before engaging in a search, the rule has

several exceptions. The pertinent one to this discussion is the consent exception. Voluntary

consent eliminates the warrant requirement. Morris v. State, 777 So.2d 16, 26 (Miss. 2000).

¶19.   With respect to the consent exception to the warrant requirement, this Court has

established the following rule: “[i]n order for there to be a valid consent to a search not

otherwise authorized by law, . . . the person searched [must] be aware he has the legal right

to refuse.” Pennick v. State, 440 So.2d 547, 550 (Miss. 1983) (citing Smith v. State, 98 So.

344, 345 (Miss. 1923)).2 Consent is valid only where a person knowingly and voluntarily

waives the right not to be searched. Pennick, 440 So.2d at 551. Knowledgeable consent is

consent where the defendant, being cognizant of his rights in the property, knows of his right

to refuse. Id. at 549-50.

¶20.   In Jones v. State, 607 So.2d 23, 29 (Miss. 1991), this Court clarified its rule in

Pennick and held that, where consent is given, the State is not required to demonstrate

knowledge; rather, “the burden [is] on the defendant to show impaired consent or some




       2
        This rule is stricter than its federal counterpart established by the United States Supreme
Court in Schneckloth v. Bustamonte, 412 U.S. 218, 234, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973).
The U.S. Supreme Court held that the determination of whether a person validly consented to an
otherwise illegal search rests on whether consent was voluntary, not on whether the party knew or
was informed of a constitutional right which he then intentionally relinquished. Id. at 226-27.

                                                8
diminished capacity.” Id. Whether a person voluntarily consents to a search “is a question

of fact to be determined by the total circumstances.” Id. at 27. Those considerations include:

       whether the circumstances were coercive, occurred while in the custody of law
       enforcement or occurred in the course of a station house investigation. The
       court must also look to the individual’s maturity, impressionability, experience
       and education. Further, the court should consider whether the person was
       excited, under the influence of drugs or alcohol, or mentally incompetent. If
       the consent occurred while the defendant was being generally cooperative, the
       consent is more likely to be voluntary; however, if the defendant agreed and
       then changed his mind, the consent should be suspect.

Graves v. State, 708 So.2d 858, 863 (Miss. 1997) (citing Jones, 607 So.2d at 27). Finally,

in Graves, this Court interpreted Jones as limiting Pennick’s knowledgeable waiver

requirement to cases where the defendant specifically claims he did not have knowledge of

the right to refuse. Graves, 708 So.2d at 864.

¶21.   Moore argues that his consent to the search of his apartment was not knowledgeable

and thus cannot be considered a valid waiver of his right against an unreasonable search and

seizure. Under this Court’s jurisprudence, Moore has the burden of proving that some

impairment or diminished capacity prevented him from knowingly giving his consent.

Moore testified he was unaware that the officers could not search his home without a warrant

absent a signed consent form. He stated that he thought the officers would “go in and get the

clothes anyway.” According to Moore, he did not know he had a right to refuse to sign the

consent form when he signed it. Moore claims that Officer Reedy did not read the consent

form to him, and he did not read it for himself. As such, Moore claims he did not know, and

no one informed him, that he had a right to refuse to sign the consent form. Moore also

                                              9
points out that he only completed an eighth grade education, and he even failed the eighth

grade the first time through.

¶22.   Moore’s testimony starkly contrasts the testimony of Officers Reedy and Carter.

Officer Carter testified that after arresting Moore on the misdemeanor warrant, the officers

took Moore to his house. No threats or coercive action occurred during the drive over.

According to Officer Reedy, he read the consent form to Moore. The consent form stated:

              I, [Charles Moore] having been informed of my constitutional
              right not to have a search made of the premises hereinafter
              mentioned without a search warrant and of my right to refuse to
              consent to such a search, hereby authorize [Sgt. Scotty Reedy,
              Truman Carter] to conduct a complete search of my premises
              located at [507 S. Cumming St. Fulton, MS].

              These officers or agents are authorized by me to take from my
              premises any letters, papers, materials or other property which
              they may desire.

              This written permission is being given by me to the above
              named persons voluntarily and without threats or promises of
              any kind.

Moore signed the form after Officer Reedy read it to him. Officer Carter testified he heard

Officer Reedy read the form to Moore, and he witnessed Moore signing the document. In

addition, Mike Emmons, the owner or co-resident of Moore’s house, signed the consent form

at approximately the same time as Moore. According to Officer Reedy, Moore was

cooperative and even went with the officers to his bedroom where they retrieved his clothes.

¶23.   Looking at the totality of the circumstances, Moore has failed to prove that his consent

was not voluntary or knowledgeable. Moore alleges that because he was in police custody

                                              10
at the time of the search and has only an eighth grade education, he could not have knowingly

consented to the search. However, Moore cites no authority which establishes these factors

as indicative of lack of knowledge. Moore was not excited, under the influence of drugs or

alcohol, mentally incompetent, or especially impressionable. The circumstances of his

consent were not coercive.     Moore willingly cooperated with the officers, indicating

voluntary consent.

¶24.   A significant factor in this particular case is the conflicting testimony of Moore and

the officers as to whether the consent form was read to Moore. As it was in Jones, the only

evidence Moore provides “to support his contention [that his consent was not knowledgeable

and voluntary] is his own testimony . . . . The trial judge has sole authority in determining

witness credibility. Such a determination should not be overturned without a substantial

showing that the trial judge was manifestly wrong.” Jones, 607 So.2d at 28 (citing Mullins

v. Ratcliff, 515 So.2d 1183, 1189 (Miss. 1987)).

¶25.   The trial court’s denial of Moore’s motion to suppress the clothes taken during the

search was not an abuse of discretion. Moore’s only proof that he did not knowingly waive

his right to refuse the search was his own testimony, which the trial court was free to give

less weight than the officers’ testimony. The trial court’s findings were certainly supported

by substantial credible evidence. Therefore, the trial court’s decision will not be disturbed,

and Moore’s first assignment of error on appeal is without merit.

       II.    Whether the trial court improperly denied Moore’s motion to
              suppress his confession.

                                             11
¶26.   In reviewing the trial court’s denial of a defendant’s motion to suppress a confession,

this Court applies “the familiar general rule that since the trial court sits as the fact-finder

when determining the issue of whether the accused’s confession has been intelligently,

knowingly and voluntarily given, we will only reverse the trial court’s determination of this

issue when such determination is manifestly wrong.” Glasper v. State, 914 So.2d 708, 716

(Miss. 2005). The determination of “whether a confession is admissible is a finding of fact

which is not disturbed unless the trial judge applied an incorrect legal standard, committed

manifest error, or the decision was contrary to the overwhelming weight of the evidence.”

Thorson v. State, 895 So.2d 85, 115 (Miss. 2004) (quoting Lee v. State, 631 So.2d 824, 826

(Miss. 1994)).

       1.      Confession After Arrest

¶27.   Moore says his statement given while in custody following an illegal arrest must be

suppressed as “fruit of the poisonous tree.” Moore acknowledges, however, that a confession

given in such a situation is not per se inadmissible. Coleman v. State, 592 So.2d 517, 521

(Miss. 1991). Thus, Moore contends that this Court must assess the statement’s ultimate

admissibility by examining the five factors3 established by the United States Supreme Court

in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), and adopted by

this Court in Hall v. State, 427 So.2d 957, 959-60 (Miss. 1983).


       3
        The five factors are: (1) the giving of the Miranda warnings and the circumstances; (2) the
temporal proximity of the arrest and confession; (3) the presence of intervening circumstances; (4)
the purpose and flagrancy of the official misconduct; and (5) any other relevant circumstances.
Brown, 422 U.S. at 603-04.

                                                12
¶28.   We need not engage in the requested Brown analysis because, as discussed supra,

Moore’s arrest was not illegal. Moore gave a statement while he was in custody pursuant to

a lawful arrest. As such, Brown and Hall are inapposite, and Moore’s argument that the

statement was “fruit of the poisonous tree” consequently fails. See Glasper v. State, 914

So.2d 708, 722 (Miss. 2005); Jones, 841 So.2d at 127. This portion of Moore’s second

assignment of error is meritless.

       2.     Freely and Voluntarily Given Waiver of Miranda Rights

¶29.   Moore argues that his confession should be suppressed because it was not freely and

voluntarily given. First, Moore states he did not understand what he was doing when he

signed the Miranda waiver. Second, Moore claims he was threatened with bodily injury by

a police officer if he did not confess to the crimes.

¶30.   “Absent a knowing and intelligent waiver of rights, statements made by a suspect

while under ‘custodial interrogation’ are inadmissible at trial where prior to making the

statements, the suspect was not Miranda warned.” Tolbert v. State, 511 So.2d 1368, 1374

(Miss. 1987) (citing Miranda, 384 U.S. at 444-45, 478-79). “The general rule is that for a

confession to be admissible it must have been given voluntarily and not given because of

promises, threats or inducements.” Dancer v. State, 721 So.2d 583, 587 (Miss. 1998).

“[T]he prosecution shoulders the burden of proving beyond a reasonable doubt that the

confession was voluntary.” Morgan v. State, 681 So.2d 82, 86 (Miss. 1996). “The ‘burden

is met and prima facie case made out by testimony of an officer, or other persons having



                                              13
knowledge of the facts, that the confession was voluntarily made without threats, coercion,

or offer of reward.’” Chase v. State, 645 So.2d 829, 838 (Miss. 1994) (quoting Cox v. State,

586 So.2d 761, 763 (Miss. 1991)). “The circuit court sits as fact finder when determining

voluntariness of a confession, and its determination will not be reversed unless manifestly

wrong.” Manix v. State, 895 So.2d 167, 180 (Miss. 2005).

¶31.   According to Moore, when Officer Reedy asked him to talk about what happened on

the night of June 21, 2003, Moore responded, “[w]ell what about an attorney?” Officer

Reedy then stated, “I’ve got to read you your rights first.” The officer pulled out a piece of

paper and read the rights on the first half of the sheet,4 asked Moore if he understood those

rights, and had Moore sign the bottom of the page. After signing, Moore again asked about

an attorney, and Officer Reedy said, “[w]ell you just signed away your rights to an attorney.”

According to Moore, Officer Reedy did not read to him the second half of the paper titled

“Waiver of Rights.” 5 Moore did not read the waiver for himself but relied on Officer Reedy


       4
          The first half of the waiver was titled “You Have The Following Rights” and stated:
Before We Ask You Any Questions, You Must Understand Your Rights:
(1) You have the right to remain silent.
(2) Anything you say can and will be used against you in court.
(3) You have the right to talk to a lawyer for advice before we ask you any questions and to have
them present with you during questioning.
(4) If you cannot afford a lawyer, one will be appointed for you before questioning, if you wish.
(5) If you decide to answer questions now without a lawyer present, you still have the right to stop
answering at any time.
(6) You also have the right to stop answering at any time until you talk to a lawyer.
       5
           The “Waiver of Rights” section stated: “This is a statement of my rights and I understand
what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer
at this time. I understand and know what I am doing. No promises or threats have been made to me
and no pressure or coercion of any kind has been used against me.”

                                                14
to accurately read it to him in its entirety. During his first statement, Moore said that to the

best of his knowledge, he did not rape anyone the night of the crime.

¶32.   Sometime while waiting in the interrogation room with Officer Jones after giving his

initial statement, Moore asked to use the restroom. Moore claims that Officer Jones said,

“[i]f you’re not going to cooperate with us, then I’m not going to do anything to help you out.

You can sit there and use the bathroom in your pants for all I care.” After Officer Jones

finally let Moore use the restroom, Moore says the officer grabbed his shoulder and said,

“[y]ou’re going to confess to this. You’re going to cooperate with us. You’re going to do

what we tell you to do, because if you don’t I can make sure that you get a bond set so high

that you can’t get out, and plus I can also make your stay here very unpleasant.” When

Moore said he could only tell them what he had been told by his friends, Officer Jones

allegedly said, “[w]ell that’s fine. Just we’ll go over it real quick and then we’ll go back to

the interview room and then you can tell Scotty Reedy what you just told me.” Moore says

he went over his story, and Officer Jones said, “[t]hat’s fine. Just word it like you were the

one that did it.” Moore says he then gave a second statement to the police in which he

confessed to the rape, but several times during the interview when the question referred to

something about which his friends had not told him, he said “I don’t know” or “I don’t

remember.”

¶33.   Again, Moore’s testimony differs significantly from that of the officers and documents

involved. According to the officers, Moore never asked for an attorney. Moore voluntarily



                                              15
waived his Miranda rights after Officer Reedy read the entire waiver to him. Moore marked

the box “I have had read to me” and signed the waiver. He acted as though he understood

what he was doing. According to the officers, Moore was neither threatened nor promised

anything in return for his confession. Before Moore gave his second statement, Officer

Reedy again brought Moore’s attention to the waiver, saying, “Charles, you remember when

we talked earlier that this little piece of paper I read your rights to you. Remember signing

this?” to which Moore responded, “Yeah.”

¶34.   While the State bears the burden of proving beyond a reasonable doubt that Moore’s

confession was voluntary, Morgan, 681 So.2d at 86, the burden is met when there is

testimony from officers that the confession was made without threats, coercion, or offers of

reward. Chase, 645 So.2d at 838. The State offered evidence from three officers and

provided a signed waiver as proof that Moore voluntarily confessed. The trial court had

sufficient evidence before it to conclude that the State met its burden of proof. In his Order

overruling Moore’s motion to suppress the confession, the trial judge stated, “said statement

by the defendant was made by him at a time when he had been fully advised of his

Constitutional Rights, and that his statement was not the result of coercion, promises or

threats and was fully and voluntarily made after having been advised of his Miranda rights

including his right to an attorney.”

¶35.   As the fact finder when determining whether a confession was voluntary, the circuit

court’s determination “will not be reversed unless manifestly wrong.” Manix, 895 So.2d at



                                             16
180-81 (testimony by officer that defendant voluntarily confessed was enough to affirm trial

court’s overruling of defendant’s motion to suppress the confession). The record reveals no

basis to conclude the trial court’s decision was manifestly wrong. Therefore, Moore’s second

assignment of error is without merit.

       III.   Whether the trial court improperly denied Moore’s motion for
              judgment notwithstanding the verdict or, in the alternative, for a
              new trial.

¶36.   In determining whether a jury verdict is against the overwhelming weight of the

evidence, the reviewing 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.” Walker v. State, 881 So.2d 820, 831 (Miss. 2004) (citing Hubbard v.

State, 819 So.2d 1192, 1196 (Miss. 2001)). A new trial should only be awarded if “the

verdict is so contrary to the overwhelming weight of the evidence that, to allow it to stand,

would be to sanction unconscionable injustice.” Esparaza v. State, 595 So.2d 418, 426

(Miss. 1992). Bearing in mind this Court’s standard of review, we will examine each of

Moore’s convictions as well as Moore’s arguments supporting reversal.

       1.     Aggravated Assault Conviction

¶37.   Moore contends the State failed to meet its burden of proof beyond a reasonable doubt

as to the aggravated assault charge. Moore points out that the State never offered into

evidence a knife or other deadly weapon to prove that Moore caused bodily injury to L.D.T.

with a deadly weapon. Thus, Moore says, without production of a deadly weapon, the jury’s



                                              17
verdict on the aggravated assault charge was against the overwhelming weight of the

evidence.

¶38.   Moore’s argument is without merit.          The State’s indictment of Moore on the

aggravated assault charge alleged that Moore “did wilfully, unlawfully and feloniously

commit an aggravated assault upon [L.D.T.] by attempting to cause, or purposely or

knowingly by causing, bodily injury to [L.D.T.], a human being, with a deadly weapon or

other means likely to produce death or serious bodily harm, by stabbing [L.D.T.] in the neck

. . . .” Consistent with the requirements of Mississippi Code Annotated Section 97-3-7(2)(b),

the State was not required to show that L.D.T.’s attacker used a knife or other particular

weapon commonly thought of as “deadly.” The State properly sought to show that Moore

harmed L.D.T. with some “other means” - in this case a “Leatherman” type of tool - likely

to produce seriously bodily harm. The State was not required to produce the actual tool, and

the jury was free to consider its absence when weighing the evidence and making its

determination. See Davis v. State, 909 So.2d 749, 752 (Miss. Ct. App. 2005) (sufficient

evidence of aggravated assault even though no razor, thought to be the weapon used in the

assault, was offered into evidence); Smith v. State, 818 So.2d 383, 386 (Miss. Ct. App. 2002)

(sufficient evidence of aggravated assault even though no stick, thought to be the weapon

used in the assault, was offered into evidence).

¶39.   Given the victim’s testimony about the stabbing, as well as photographs of the

victim’s neck wounds, and accepting as true this evidence which supports the verdict, we



                                             18
hold the verdict was not against the overwhelming weight of the evidence. The trial court

did not abuse its discretion by failing to grant Moore’s motion for judgment notwithstanding

the verdict or, in the alternative, for a new trial.

       2.      Burglary Conviction

¶40.   Moore also says that the State failed to meet its burden of proof beyond a reasonable

doubt as to the burglary charge. According to Moore, the State failed to introduce any

physical evidence that Moore broke into Chris Parker’s home or was ever even in the house.

The investigation did not turn up Moore’s fingerprints or footprints in the home, and the

State did not prove forced entry into the house. Therefore, without this evidence, Moore

claims the jury’s verdict on the burglary charge was against the overwhelming weight of the

evidence.

¶41.   Again, Moore’s argument is without merit. His confession and the presence of the

victim’s blood on his belt, coupled with L.D.T.’s testimony, demonstrate that he was in

Parker’s residence when the crimes occurred. In his confession, Moore stated that the door

to the house was unlocked and that he entered. Notably, the act of opening a closed,

unlocked door sufficiently establishes the “breaking” element necessary for a burglary

conviction. Smith v. State, 499 So.2d 750, 752-53 (Miss. 1986). Accepting as true this

evidence which supports the verdict, we hold the verdict was not against the overwhelming

weight of the evidence.      The trial court did not abuse its discretion by failing to grant




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Moore’s motion for judgment notwithstanding the verdict or, in the alternative, for a new

trial.

         3.    Rape Conviction

¶42.     Finally, Moore contends that the State failed to meet its burden of proof beyond a

reasonable doubt as to the rape charge.        He argues that he fully accounted for his

whereabouts when the crime occurred, and he was not at Parker’s residence. Additionally,

he asserts the victim could not positively identify her attacker because the room was dark and

she was covered by a blanket. Additionally, Moore points out that the seminal fluid collected

from the victim’s rape kit could not be matched to Moore. Based on the lack of evidence,

Moore states that the jury’s verdict on the rape charge was against the overwhelming weight

of the evidence.

¶43.     Moore’s argument is without merit. The jury was not bound to believe Moore’s alibi

testimony. The jury determines the weight and credibility to give witness testimony and

other evidence. Johnson v. State, 904 So.2d 162, 167 (Miss. 2005). We may not “pass upon

the credibility of witnesses and, where the evidence justifies a verdict, it must be accepted

as having been found worthy of belief.” Davis v. State, 568 So.2d 778, 781 (Miss. 1990).

¶44.     The victim identified Moore at trial by his voice. Her blood was found on his belt,

and he confessed to raping L.D.T. Accepting as true this evidence supporting the verdict,

we hold the verdict was not against the overwhelming weight of the evidence. The trial




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court did not abuse its discretion by failing to grant Moore’s motion for judgment

notwithstanding the verdict or, in the alternative, for a new trial.

                                      CONCLUSION

¶45.   Substantial credible evidence exists to support the trial court’s overruling of Moore’s

motions to suppress the clothes retrieved from his home and his confession to the police. As

such, this Court will not disturb the trial court’s findings. Accepting as true the evidence

supporting the jury’s verdict on all three charges, we hold the trial court did not abuse its

discretion in denying Moore’s motion for judgment notwithstanding the verdict or, in the

alternative, for a new trial.

¶46. COUNT I: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE
OF TWENTY (20) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF
BURGLARY OF A DWELLING AND SENTENCE OF TEN (10) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
AFFIRMED. COUNT III: CONVICTION OF RAPE AND SENTENCE OF FORTY
(40) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN COUNT I
SHALL RUN CONSECUTIVELY WITH SENTENCES IMPOSED IN COUNTS II
AND III. SENTENCE IN COUNT II SHALL RUN CONSECUTIVELY WITH
SENTENCES IMPOSED IN COUNTS I AND III. SENTENCE IN COUNT III
SHALL RUN CONSECUTIVELY WITH SENTENCES IMPOSED IN COUNTS I
AND II. APPELLANT SHALL NOT BE ELIGIBLE FOR PAROLE AND
APPELLANT SHALL PAY COURT COSTS IN THE AMOUNT OF $1,183.00.
APPELLANT SHALL NOT BE ELIGIBLE FOR EARNED TIME ALLOWANCE.

    SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY AND CARLSON, JJ.,
CONCUR. GRAVES, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.




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