                      IN THE SUPREME COURT OF MISSISSIPPI
                                         NO. 1998-KA-01588-SCT
RODERIC LEON THEODORE
v.
STATE OF MISSISSIPPI

DATE OF JUDGMENT:                                   08/12/1998
TRIAL JUDGE:                                        HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED:                          HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                             DONALD A. SMITH
ATTORNEYS FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL
                                                    BY: W. GLENN WATTS
DISTRICT ATTORNEY:                                  CONO A. CARANNA, II
NATURE OF THE CASE:                                 CRIMINAL - FELONY
DISPOSITION:                                        AFFIRMED - 05/10/2001
MOTION FOR REHEARING FILED:
MANDATE ISSUED:                                     5/31/2001

      BEFORE BANKS, P.J., SMITH AND MILLS, JJ.

      SMITH, JUSTICE, FOR THE COURT:

¶1. Roderic Leon Theodore was tried before a Harrison County Circuit Court jury for the murder of
Rodney Crenshaw. Theodore was found guilty of murder and was given a life sentence in the custody of the
Mississippi Department of Corrections. Aggrieved by that judgment, Theodore appeals to this Court.

                                FACTS AND PROCEEDINGS BELOW

¶2. In the early morning hours of July 11, 1997, Gulfport Police Officer Robert Curry, was called to the
scene of a motor vehicle accident. When Officer Curry arrived, he found a wrecked Geo Tracker flipped
on its driver's side. A black male was lying in the vehicle across the door frame. Officer Curry testified that
another officer checked the man for a pulse. The man did not have one. Officer Curry also observed what
appeared to be a bullet hole in the man's left arm around the elbow area.

¶3. Kevin Howard, a paramedic for American Medical Response, arrived at the scene. He also noticed a
Jeep that was flipped on the driver's side with a partially ejected man. The man was identified as Rodney
Crenshaw. Howard testified that the man was "pulseless, anaptic, and was not breathing." Crenshaw was
lying in a pool of blood and was pronounced dead at the scene.

¶4. Keith Johnson, a forensic crime scene analyst for the Gulfport Police Department, was also called to the
scene. He testified that he photographed the scene with a 35mm camera. One of Johnson's fellow officers
completed a rough sketch diagram which gave the measurements and actual locations of items that were
identified at the scene. Officer Johnson also testified that he made a videotape of the scene for the purpose
of providing a three-dimensional view of the crime scene. The defense objected to the video footage that
showed the body of the deceased in a gruesome position. The defense argued that this portion of the tape
was also cumulative because still pictures of the same scene were already admitted into evidence. To this
objection, the State argued that the scene was only a few seconds in length and that it was not particularly
gruesome. It argued that the purpose of the video was to orientate the jury as to the scene of the crime. The
court held that the video tape was admissible because it was the best way to depict the scene of the crime.
During the testimony of Officer Johnson, the videotape was played for the jury.

¶5. Officer Johnson also examined the vehicle and identified some of the damage as bullet holes. Also, a
projectile was found underneath the carpeting of the vehicle on the driver's side.

¶6. Erica Brock testified that she had been a passenger in the vehicle with Crenshaw. She testified that
another woman, Renee Williams, snatched some CDs from Crenshaw and ran up the stairs of the
apartment. This is when the dispute over these CDs began.

¶7. Joyce Bell, a resident in an apartment over Martin's Lounge, testified that someone known as "Baby
Boy" was sitting outside on the balcony. Bell then identified Roderic Theodore in the courtroom as the man
she referred to as "Baby Boy." She testified that Renee Williams, another young man, whom she could not
identify, and Dave the butcher were arguing over CDs on the balcony outside her apartment door. She did
testify that the young man, whom she could not identify, was not Theodore, but someone else.(1) She
testified that this dispute continued downstairs and that Theodore was not a part of this argument. Theodore
remained on the balcony. She then testified that Crenshaw walked around the side of the building and then
pulled his jeep to the front of the building. There were still words being exchanged between Renee, Dave,
and Crenshaw.

¶8. At this point, Crenshaw, who was in his jeep, stated "I want my disks back. Y'all are going to give me
my disks. You can bet this everything and you can bet it on the six. Y'all going to give me my disks." After
the young man stated this, Theodore pulled out a gun and started shooting from the balcony into the top of
the jeep. Bell testified that Crenshaw was not talking to Theodore nor was he looking in the direction of
Theodore. She also testified that she never saw Crenshaw with a weapon.

¶9. Dr. Paul McGarry, a forensic pathologist, performed an autopsy on Rodney Crenshaw's body on July
13, 1997. He testified that Crenshaw's death was caused by a gunshot wound that went in his back,
through his left lung, through his heart, made large holes in the heart and in the blood vessels of the lungs.
This caused a massive internal hemorrhage.

¶10. A stipulation was entered into the record. That stipulation was that the casings and projectiles were
examined by forensic scientist John Franovich. The casings and the projectiles were fired from the gun that
was found in the place where Theodore was staying.

¶11. Theodore testified on his own behalf. He stated that he obtained the gun on the day of the accident
from a white male. He testified that he heard a lot of arguing going on and then saw a Geo Tracker
approach. Theodore stated that he asked Crenshaw, who was driving the Tracker, to leave from in front of
the building. Theodore testified that Crenshaw accused him of having his CDs and making threats about
them. According to Theodore, Crenshaw told him that he was going to "straighten him." In this area,
Theodore stated that means he was going to kill him. Next, Crenshaw told Theodore that he would put that
"on the six." According to Theodore, that means that Crenshaw made the threat "on this oath." In other
words, after he said this, he would have to kill Theodore. At this point, Theodore testified that Crenshaw
reached under his hat. According to Theodore's testimony, he thought Crenshaw had a gun. Theodore
watched Dave back up which made him very afraid and added to his suspicion that Crenshaw had a gun.

¶12. At this point, Theodore pulled a gun from his pants and begin shooting in the direction of Crenshaw.
He testified that he never intended to kill him, he was only trying to scare him. After Theodore shot at
Crenshaw, Crenshaw attempted to drive away but wrecked. Theodore ran down the stairs, got into his
father's car, and drove away. The gun was found behind a water heater in a storage room in the home of
Theodore's father. Theodore testified that he was staying with his father at this time. The gun had been
wrapped in a plastic baggy.

¶13. When Theodore was first questioned by the police, he denied knowing anything and told them that he
was not involved. He later changed his story and told the police that it was all a big accident.

¶14. A jury found Roderic Theodore guilty of the murder of Rodney Crenshaw. He was given a life
sentence in the custody of the Mississippi Department of Corrections.

¶15. Theodore raises the following issues on appeal:

      I. WHETHER THE LOWER COURT ERRED IN GRANTING AN INSTRUCTION ON
      DELIBERATE DESIGN?

      II. WHETHER THE LOWER COURT ERRED IN ALLOWING THE INTRODUCTION
      OF THE ACCIDENT SCENE VIDEOTAPE IN ITS ENTIRETY?

      III. WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO FIND THE
      DEFENDANT GUILTY OF MURDER?

      IV. WHETHER THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S
      DIRECTED VERDICT, OR IN THE ALTERNATIVE, HIS MOTION FOR A NEW
      TRIAL?

      V. WHETHER THESE ERRORS REQUIRE REVERSAL?

                                                 DISCUSSION

¶16. This Court's standard of review in reviewing jury instructions is as follows: In determining whether
reversible error lies in the granting or refusal of various instructions, the instructions actually given must be
read as a whole. When so read, if the instructions fairly announce the law of the case and create no
injustice, no reversible error will be found. Fielder v. Magnolia Beverage Co., 757 So.2d 925, 929
(Miss.1999).

¶17. Next, this Court's standard of review in regards to a directed verdict is the same as a judgment
notwithstanding of the verdict. Sullivan v. State, 749 So.2d 983, 993 (Miss. 1999) (citing Gleeton v.
State, 716 So.2d 1083, 1087 (Miss. 1998)). The standard for a directed verdict is as follows:

      Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the
      defendant be discharged short of a conclusion on our part that given the evidence, taken in the light
      most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt
      that the defendant was guilty.
Ashford v. State, 583 So.2d 1279, 1281 (Miss. 1991).

¶18. A motion for a new trial carries a different standard of review. A motion for a new trial asks that the
jury's guilty verdict be vacated on grounds related to the weight, not sufficiency, of the evidence. May v.
State, 460 So.2d 778, 781 (Miss. 1984). This Court will not order a new trial unless convinced that the
verdict is so overwhelmingly against the

weight of the evidence that unconscionable injustice exists. Groseclose v. State, 440 So.2d 297, 300
(Miss. 1983). Lastly, "the Supreme Court will reverse the lower court's denial of a motion for new trial only
if, by denying, the court abused its discretion." Gleeton, 716 So.2d at 1088.

      I. WHETHER THE LOWER COURT ERRED IN GRANTING AN INSTRUCTION ON
      DELIBERATE DESIGN?

¶19. Theodore argues that the court granted both a deliberate design instruction (S-2) and a manslaughter
instruction (D-11) and this constituted an incompatibility between the two. Theodore cites to Windham v.
State, 520 So.2d 123 (Miss. 1987) where this Court held that the deliberate design instruction was
erroneous. In that case, the State was granted an instruction that stated deliberate design could be formed
"at the very moment" of the fatal beating. Id. at 125. This Court held that instruction conflicted with the
manslaughter instruction which defined manslaughter as the willful, felonious killing of a human being, without
malice in the heat of passion, by the use of a dangerous weapon, without authority of law and not in
necessary self-defense. Id. at 125. The controversial language in the deliberate design instruction in that
case was "at the very moment."

¶20. The Court held that the words "deliberate" and "design" have general and accepted meanings. Id. at
126. As defined in dictionaries, "deliberate" indicates full awareness of what one is doing and generally
implies careful and unhurried consideration of the consequences. Id. At the same time, "design" means to
calculate, plan, and contemplate. Id. For these reasons, this Court held that while deliberate design can be
formed very quickly, and perhaps moments before, it is a contradiction in terms to say that deliberate design
can be formed "at the very moment" of the fatal act. Id. The Court stated that the language in the instruction
"at the very moment" improperly ruled out any possibility of manslaughter. Therefore, this Court reversed
on that error.

¶21. The case sub judice is distinguishable from Windham. Here, Jury Instruction S-2 provided:

      The Court instructs the Jury that deliberate design as used elsewhere in these instructions, means intent
      to kill, without authority of law and not being legally justifiable or legally excusable.

      A deliberate design cannot be formed at the very moment of the fatal act, however, the deliberate
      design need not exist in the mind of the Defendant for any definite time, not for hours, days, or even
      minutes, but if there is deliberate design, and it exists in the mind of the Defendant but for an instant
      before the fatal act, this is sufficient deliberate design to constitute the offense of Murder.

(emphasis added).

¶22. The jury instruction here specifically stated that deliberate design cannot be formed at the very moment
of the fatal act. For this reason, the problem that existed in Windham does not exist here. These cases are
distinguishable; and therefore, Windham does not apply to the facts of this case.

¶23. In Carr v. State, 655 So.2d 824, 847 (Miss. 1995), this Court held that a similar jury instruction on
deliberate design did not involve the "at the very moment of the fatal act" problem. This Court held that
there was no flaw in the instruction given on deliberate design as it specifically stated that deliberate design
could not be formed at the very moment of the fatal act. Id. at 847. For this reason, this Court held that the
pitfall of Windham was therefore avoided. Id.

¶24. This Court concludes that the facts of this case are more closely related to the Carr decision. Jury
instruction S-2 did not contain the "at the very moment" language. To the contrary, the instruction
specifically noted that deliberate design cannot be formed at the very moment of the fatal act. For this
reason, this instruction did not preclude the possibility of manslaughter as in Windham. Accordingly, this
issue is without merit.

      II. WHETHER THE LOWER COURT ERRED IN ALLOWING THE INTRODUCTION
      OF THE ACCIDENT SCENE VIDEOTAPE IN ITS ENTIRETY?

¶25. Theodore next asserts that the trial court erred by allowing the introduction of the accident scene
videotape in its entirety. Specifically, Theodore alleges that the videotape of the crime scene did not add
anything to the "story." Theodore also alleges that the video did not help in corroborating the testimony of
any witnesses. For instance, Theodore asserts that the intention of the State was to "arouse the passion and
prejudice of the jury." At trial, Theodore objected to the body of Rodney Crenshaw being shown on the
videotape.

¶26. The State submits that the introduction of the videotape was not in error. The State argues that the
scene of the flipped tracker and the victim were more probative than prejudicial. The video provided a
three dimensional view of the scene as originally viewed by the investigating officers and was therefore a
valid aid for the jury. The State points out that the videotape helped corroborate the testimony of several
witnesses. The State also pointed out at trial that the portion of the tape which showed Crenshaw was
approximately 3 seconds in length. It argues this to support the proposition that there was no prejudice to
Theodore and, if so, the probative value outweighed any such effect.

¶27. This Court has held that the same standards used in determining the admissibility of photographs are
applicable to the admission of videotapes. Walters v. State, 720 So.2d 856, 861 (Miss. 1998) (citing
Underwood v. State, 708 So.2d 18, 33 (Miss. 1998)). Applying that standard, the admissibility of
photographs is within the sound discretion of the trial judge. This discretion will be upheld absent abuse of
discretion. McFee v. State, 511 So.2d 130, 134 (Miss. 1987) (citing Watson v. State, 483 So.2d 1326,
1328 (Miss. 1986)). This Court has also held that "[t]he discretion of the trial judge runs toward almost
unlimited admissibility regardless of the gruesomeness, repetitiveness, and the extenuation of probative
value." Hart v. State, 637 So.2d 1329, 1335 (Miss. 1994). "A photograph, even if gruesome, grisly,
unpleasant, or even inflammatory, may still be admissible if it has probative value and its introduction into
evidence serves a meaningful evidentiary purpose." Lanier v. State, 533 So.2d 473, 484 (Miss. 1988).

¶28. Here, the videotape was introduced during the testimony of Officer Keith Johnson, a forensic scientist
employed by the Gulfport Police Department. Outside the presence of the jury, the judge heard both
parties' arguments regarding the admissibility of the videotape. A monitor was brought into the court room,
and the videotape was played for the judge and the parties. The jury was still excused at this point. The
defense counsel objected to the portion of the videotape that showed Crenshaw lying in the door of the
overturned jeep. Defense counsel argued that this was cumulative and prejudicial. The State argued that the
total tape was only 3 minutes long and that Crenshaw's body was only shown for a few seconds of that
time. The State also argued that its purpose was to orientate the jury to the scene of the accident and the
shooting, and it corroborated the testimony of several witnesses. After weighing the probative value against
the prejudicial effect of the tape, the court held that the videotape would be admissible due to its depiction
of exactly what the Officer saw upon arrival to the scene of the crime. The jury then reentered the
courtroom.

¶29. As earlier mentioned, "[a] photograph, even if gruesome, grisly, unpleasant, or even inflammatory, may
still be admissible if it has probative value and its introduction into evidence serves a meaningful evidentiary
purpose." Lanier v. State, 533 So.2d at 484. Again, the trial judge has sound discretion in the admissibility
of photographs absent the abuse of discretion. Watson v. State, 483 So.2d at 1328. The trial judge was
careful in his determination of the admissibility of the videotape. For example, the judge conducted a
hearing, outside of the presence of the jury, and weighed the probative value against the prejudicial effect.
For this reason, this conduct does not rise to the level of abuse of discretion; therefore, the decision was
within the judge's sound discretion and will not be overturned on appeal.

      III. WHETHER THERE WAS SUFFICIENT EVIDENCE FOR THE JURY TO FIND THE
      DEFENDANT GUILTY OF MURDER?

¶30. Theodore argues that due to the gang language used by Crenshaw, he was fearful for his life.
Theodore also alleges that the testimony of the State's witnesses was such that no reasonable juror could
have found him guilty. The State disputes Theodore's allegations citing numerous places in the record where
witnesses provided sufficient evidence through their testimony.

¶31. Conflict in the evidence is for the jury's resolution. Hyde v. State, 413 So.2d 1042, 1044 (Miss.
1982). Theodore testified that he was fearful for his life because Crenshaw threatened him by using gang
language. After this threat, Theodore pulled out a gun and began shooting at Crenshaw. The State rebutted
Theodore's testimony with the testimony of Joyce Bell. Joyce Bell was a resident in the apartment complex
where the incident took place. She was on the balcony beside Theodore when he began shooting at
Crenshaw. She testified that Theodore had been sitting down during the altercation between the other men.
He was not involved in the dispute. She testified that Crenshaw was not talking to Theodore when
Theodore pulled a gun from his pants and began firing.

¶32. The sufficiency of the evidence was viewed and tested in the light most favorable to the State.
McClain v. State, 625 So.2d 774, 778 (Miss. 1993). This Court is required to reverse only where, "with
respect to one or more of the elements of the offense charged, the evidence considered is such that
reasonable and fair-minded jurors could only find the accused not guilty. Id. (citing Wetz v. State 503
So.2d 803, 807 (Miss. 1987)).

¶33. Additional evidence in the record proves sufficient to uphold the verdict of guilty. Erica Brock had
been a passenger in the jeep with Crenshaw before the incident took place. She testified that Crenshaw did
not have a weapon nor did he make any threats during the altercation. Brock also testified that Crenshaw
remained in his jeep the entire time.

¶34. As earlier mentioned, Joyce Bell testified that Theodore was not a part of this altercation. She also
stated that Crenshaw was not speaking to Theodore nor was he even looking in the direction of Theodore
at the time of the shooting.

¶35. Roderic Theodore testified that he purchased the gun earlier that afternoon from an unidentified white
male. Theodore admitted to pulling the gun from his pants and firing shots at the deceased Crenshaw. He
testified that Crenshaw was speaking gang language, and he was fearful for his life.

¶36. From a thorough review of the record, this Court finds that there was sufficient evidence in the record
to convict Theodore of murder. As earlier stated, the sufficiency of the evidence is viewed and tested in the
light most favorable to the State. McLain v. State, 625 So.2d at 778. This Court is required to reverse
only where, "with respect to one or more of the elements of the offense charged, the evidence considered is
such that reasonable and fair-minded jurors could only find the accused not guilty. Id. (citing Wetz v. State
503 So.2d at 807). If the jury accepted the above testimony as true, there was sufficient evidence in the
record to convict Theodore of murder.

      IV. WHETHER THE LOWER COURT ERRED IN NOT GRANTING DEFENDANT'S
      DIRECTED VERDICT, OR IN THE ALTERNATIVE, HIS MOTION FOR A NEW
      TRIAL?

¶37. The fourth issue raised by Theodore is whether the trial court erred in denying his motion for a directed
verdict or, in the alternative, his motion for a new trial. In McClain v. State, 625 So.2d at 778, McClain
made three challenges. The challenges alleged were motion for a directed verdict, request for peremptory
instruction, and a motion for JNOV. This Court held that all of these challenges question the legal
sufficiency of the evidence. The Court held that "[t]he credible evidence consistent with McClain's guilt must
be accepted as true." Id. (citing Spikes v. State, 302 So.2d 250, 251 (Miss. 1974)). Again, the Court
reiterated that we will only reverse if reasonable jurors could only find the accused not guilty. Id. Again,
conflicts in evidence are for the jury's determination. Hyde, 413 So.2d at 1044.

¶38. The sufficiency of the evidence issue as discussed in Issue III is clearly without merit. The evidence in
the record is sufficient to return a guilty verdict for murder.

      V. WHETHER ERRORS REQUIRE REVERSAL?

¶39. Theodore argues that errors at trial, although not individually, cumulatively require reversal. First, the
jury instruction on deliberate design did not include the "at the very moment" language that has been held as
troublesome with a manslaughter instruction. In fact, the instruction specifically stated that deliberate design
could not be formed at the very moment of the fatal act. Next, this Court has held that the same standard
that applies to the admission of photographs applies to the admission of videotapes. The admissibility is
within the sound discretion of the trial judge unless it can be determined that he abused his discretion. Lastly,
Theodore raises sufficiency of the evidence claims. The testimony of witnesses in the record is sufficient to
uphold the murder conviction.

                                               CONCLUSION

¶40. For the foregoing reasons, the conviction of murder and the life sentence of Roderic Theodore is
affirmed.

¶41. CONVICTION OF MURDER AND SENTENCE OF LIFE IMPRISONMENT IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AFFIRMED.

      PITTMAN, C.J., MILLS, WALLER, COBB, DIAZ AND EASLEY, JJ., CONCUR.
      BANKS, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McRAE,
      P.J. AND WALLER, J., EASLEY, J., JOINS IN PART.

      BANKS, PRESIDING JUSTICE, CONCURRING:

¶42. I reluctantly concur in the Court's affirmance of this judgment. I adhere to the view expressed by the
dissent in Fears v State, No. 97-CT-00558-SCT, 2000 WL 863177, at *5-*7 (Miss. 2000) (Waller, J.,
dissenting), with regard to the deliberate design instruction. In my view, the instruction in this case is slightly,
but not sufficiently, better. I, nevertheless, agree to affirm recognizing that the Court has spoken on the
matter in Fears.

      McRAE, P.J., AND WALLER, J., JOIN THIS OPINION. EASLEY, J., JOINS IN PART.

1. The evidence later identified this unidentified man as Rodney Crenshaw.
