                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2017-KA-00178-SCT

EDDRICK WILLIS CYRUS a/k/a EDDRICK CYRUS
a/k/a EDDRICK W. CYRUS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                          01/12/2017
TRIAL JUDGE:                               HON. JON MARK WEATHERS
TRIAL COURT ATTORNEYS:                     TIMOTHY KEVIN BYRNE
                                           STEVEN ALFRED KOHNKE
                                           JACK LUCIAN DENTON
                                           DECARLO CHAS HOOD
COURT FROM WHICH APPEALED:                 FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF THE STATE PUBLIC
                                           DEFENDER
                                           BY: BENJAMIN ALLEN SUBER
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ALICIA MARIE AINSWORTH
DISTRICT ATTORNEY:                         PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 02/08/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:



       BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ.

       KING, JUSTICE, FOR THE COURT:

¶1.    On December 13, 2016, a jury convicted Eddrick Cyrus of sale of less than two grams

of a controlled substance. Cyrus appeals his conviction, arguing that the verdict was against

the overwhelming weight of the evidence and that he is consequently entitled to a new trial.
Because the verdict is not against the overwhelming weight of the evidence, this Court

affirms his conviction.

                          FACTS AND PROCEDURAL HISTORY

¶2.    On July 30, 2014, Cyrus sold heroin to Joshua Kizziah, a confidential informant

making a controlled buy arranged by Agent Benji Hensarling. The buy was captured on a

very clear video that depicted Cyrus giving Kizziah two bags in exchange for money. The

video had a time stamp on it of “2001/02/14.” Agent Hensarling testified that no one ever

sets the clock on the video equipment. Kizziah gave the two bags to Agent Hensarling.

Agent Hensarling testified that he placed the alleged heroin in a bag, heat sealed the bag, and

placed it in the locked Metro Evidence locker. Sergeant Joe Kennedy testified that he

observed Commander Adams retrieve the bag from the evidence locker. He testified that he

then transported the bag to the Mississippi Forensics Laboratory. A drug analyst from the

Forensics Lab testified regarding the Forensics Lab’s chain of custody procedures. She

determined that the bag contained heroin and the non-controlled substance diphenhydramine.

Agent Hensarling testified that he retrieved the bag from the Forensics Lab after testing was

completed and transported it back to the police station. The chain of custody form on the bag

itself depicts only that Agent Hensarling placed the bag into the Metro Evidence locker on

July 30, 2014. Sergeant Kennedy testified that the police often noted the chain of custody

in a log book, rather than on the evidence itself, although that log book was never placed into

evidence.




                                              2
¶3.    The State tried Cyrus in December 2016, and the jury found him guilty of the sale of

less than two grams of a controlled substance. The court sentenced Cyrus to serve fourteen

years without the possibility of parole, as a habitual and second and subsequent offender.

Cyrus appeals his conviction, arguing that the trial court erred by denying his motion for a

new trial because the verdict was against the overwhelming weight of the evidence for two

reasons. He argues that the evidence does not support that the incident occurred on July 30,

2014. He also argues that the State failed to prove the chain of custody of the evidence.

                                         ANALYSIS

¶4.    In considering whether a verdict is contrary to the overwhelming weight of the

evidence, this Court reviews the evidence in the light most favorable to the verdict to

determine whether the verdict is so contrary to the overwhelming weight of the evidence that

allowing it to stand would amount to an unconscionable injustice. Little v. State, – So. 3d

–, 2017 WL 4546740 (Miss. Oct. 12, 2017). In reviewing the evidence in the light most

favorable to the verdict, the Court must accept the evidence supporting the verdict as true.

Gillett v. State, 56 So. 3d 469, 504 (Miss. 2010). This Court will reverse a trial court’s denial

of a motion for new trial only when the trial court abused its discretion. Id.

¶5.    Cyrus claims that since the date on the video indicates the year 2001, the State failed

to prove that the transaction occurred on July 30, 2014. Both Agent Hensarling and Kizziah

testified that the buy occurred on July 30, 2014. Agent Hensarling testified that no one ever

set the time on the video equipment. Weighing witness testimony and determining credibility

is the province of the jury. Osborne v. State, 54 So. 3d 841, 846 (Miss. 2011). The jury



                                               3
clearly believed their testimony regarding the discrepancy.1 Additionally, the evidence bag

indicated that Agent Hensarling placed it into the evidence locker on July 30, 2014. Viewing

this evidence in the light most favorable to the verdict, it cannot be said that the verdict is so

contrary to the overwhelming weight of the evidence that it amounts to an unconscionable

injustice.

¶6.    The test regarding the chain of custody is whether an indication or reasonable

inference exists “of probable tampering with the evidence or substitution of the evidence.”

Tubbs v. State, 185 So. 3d 363, 369 (Miss. 2016) (internal quotations omitted). A

presumption of regularity applies to the actions of the public officers, and the defendant bears

the burden of producing evidence that the chain of custody has been broken. Id. A mere

suggestion of substitution does not meet this burden. Id. Moreover, it is unnecessary that

every handler of the evidence testify. Id.

¶7.    Kizziah testified that he gave to Agent Hensarling the bags he received from Cyrus.

Agent Hensarling testified that he placed the bags in an evidence bag, heat sealed it, and

placed it in the evidence locker. The evidence bag itself also reflects this. Sergeant Kennedy

testified that he observed his commander remove the evidence, and that he transported it to

the Forensics Lab. The Forensics Lab employee testified as to the Forensics Lab’s chain of

custody procedures and testified regarding handling the bags herself. Agent Hensarling

testified that he retrieved the evidence from the Forensics Lab and returned it to the police

station. Cyrus does not even appear to make a mere suggestion of impropriety in the chain

       1
       The jury also viewed the very clear video and could have ascertained if the parties
involved appeared fifteen years younger than they appeared in the courtroom.

                                                4
of custody. Rather, he argues that the State failed to prove the chain of custody because no

physical evidence of the chain of custody was produced, given that the evidence bag’s chain

of custody form was left mostly blank and that the log book was not entered into evidence.

Cyrus does not point to any cases from this Court that hold that the chain of custody must be

proven with physical evidence. It is clear that testimony by the evidence handlers may prove

the chain of custody. See Tubbs, 185 So. 3d at 369. Viewing the chain of custody testimony

in the light most favorable to the verdict, it cannot be said that the verdict is so contrary to

the overwhelming weight of the evidence that it amounts to an unconscionable injustice.

                                      CONCLUSION

¶8.    Cyrus’s arguments are without merit. Cyrus’s conviction was not against the

overwhelming weight of the evidence, and this Court affirms his conviction.

¶9.    AFFIRMED.

   WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN,
MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.




                                               5
