                           IN THE SUPREME COURT OF MISSISSIPPI

                                       NO. 2004-KA-00964-SCT

ANTON FOSTER

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                                  04/15/2004
TRIAL JUDGE:                                       HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                         COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                            RICHARD B. LEWIS
ATTORNEY FOR APPELLEE:                             OFFICE OF THE ATTORNEY GENERAL BY:
                                                   DEIRDRE McCRORY
DISTRICT ATTORNEY:                                 LAWRENCE Y. MELLEN
NATURE OF THE CASE:                                CRIMINAL - FELONY
DISPOSITION:                                       AFFIRMED - 06/02/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




         BEFORE SMITH, C.J., EASLEY AND GRAVES, JJ.

         EASLEY, JUSTICE, FOR THE COURT:

¶1.      Anton Foster was convicted and sentenced in the Circuit Court of Coahoma County,

Mississippi, for Count I armed robbery and Count II attempted aggravated assault.      The trial

court denied Foster’s motion for judgment non obstante verdicto or alternatively for a new

trial.   On appeal, Foster contends the trial court erred in (1) denying his motion for directed

verdict and motion for judgment notwithstanding the verdict (J.N.O.V.), or alternatively,

motion for a new trial and (2) allowing a rebuttal witness to testify.

                                                  FACTS
¶2.      Percy Dukes testified that, on the night of May 15, 2003, he went to a friend’s home

in Friar’s Point to repay a personal loan of $10.      Dukes’s friend, “Little Woods,” was not at

home. Dukes encountered Foster who asked him for a ride “uptown.” Dukes gave Foster a

ride. Dukes went into Willie’s Food and Games, a local club, where he shot a couple of games

of pool. When Foster got out of the car, Dukes did not see where he went. As Dukes left the

club, he saw Foster outside. Dukes estimated that it was between 10:30 p.m. and 11:00 p.m.

Foster asked Dukes for another ride.

¶3.    Foster asked for a ride back to his mother’s house.          Dukes testified that he allowed

Foster to ride back with him since he was going back that direction to see if Woods was home.

Foster got out and left. Dukes went to Woods’s house. Dukes’s friend still had not made it

back home. As Dukes began to leave, he noticed that his tire had gone flat. Dukes turned

around in Woods’s yard and squatted down to change the flat tire.

¶4.    Foster called Dukes’s name from the road and waved a gun and paced up and down the

road. Foster asked Dukes if he had any money and told Dukes to empty his pockets. Dukes

pulled out his billfold and laid it on the hood of the car. Foster went through the billfold and

gave it back. He then searched through Dukes’s car.

¶5.    Foster told Dukes to leave his car and catch a ride with Reggie Robinson. Robinson had

pulled up behind Dukes’s car and allowed him to use his lug wrench. Robinson went back to

his truck. When Dukes said he was not going to leave his car, Foster told him that he was not

kidding and that he would break out all of the car’s windows.




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¶6.     When Foster bent down to pick up something, Dukes jumped inside his car and drove

off.   Foster began shooting at Dukes and the car. Dukes testified that Foster shot five or six

times at the car. Shots hit the car causing Dukes to be cut by broken glass.

¶7.     Dukes testified that he went to the home of his friend, Linda Chatman, and he called the

police. The police arrived and transported Dukes to the police station. Dukes’s wife came and

took him home. Dukes subsequently identified Foster as the assailant at an “in person” lineup

at the Coahoma County Sheriff’s Department.            At trial, Dukes also identified Foster for the

record as the man he had been referring to in his testimony that robbed him and shot at him.

¶8.     Robinson testified that he came upon Dukes beside the road.                 Dukes was alone.

Robinson left to go home and get a lug wrench.            When he returned, two men where there.

Robinson got out of his truck and offered to help. The men were exchanging words while he

operated the lug wrench. Robinson testified that he became concerned and told Dukes he could

have the wrench and headed back to his truck. Robinson saw someone pointing a gun. He

testified that he left and heard shots fired as he was leaving.        Robinson could not positively

state whether the other man was Foster or not.

¶9.     Joshua Brady testified that on May 15, 2003, he saw fire coming from a gun and saw

a car coming around the block. At trial, Brady recanted his statement given to the police. He

testified that he never told the police that he saw Foster with a gun. After further questioning,

Brady did admit that he told the police that he saw Foster with a gun. However, he testified that

he had lied. Brady who was age fifteen at the time of trial testified that he was told that he

would not have to go to training school if he named Foster. Brady testified that he was facing

a burglary charge. Brady testified that he went to training school anyway.


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¶10.   Roosevelt Pryor testified as Foster’s only alibi witness. He testified that on the evening

of May15, 2003, he was with Foster. According to Pryor, he and Foster along with two other

individuals were at Club Max in Clarksdale from 8:30 p.m. to 12:30 a.m. and did not return to

Frair’s Point until 12:45 a.m.   They never went inside the club. Pryor testified that he heard

Foster had turned himself in and was arrested.           He knew Foster was in jail.   On cross-

examination, Pryor admitted that he never contacted the authorities when Foster was arrested.

Pryor never came forward to inform the police that Foster could not have done the alleged

crimes as he was with him that evening.

¶11.     Foster testified that he sat outside Club Max with Pryor, Kavin Barnard and Steve

Magsby on May 15, 2003. According to Foster, they left the Max at “12-something.” Foster

testified that he went home and went nowhere else.

                                            DISCUSSION

       I.       Motion for J.N.O.V., or Alternatively, Motion for a New Trial

¶12.   Foster moved for a directed verdict at the close of the State’s case-in-chief.    The trial

court denied Foster’s motion.             Foster also made a post-trial motion for judgment

notwithstanding the verdict, or alternatively, motion for a new trial, and the trial court also

denied that motion.

¶13.   The standard of review for a denial of a directed verdict and a motion for a judgment

notwithstanding the verdict is the same. Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376

(Miss. 1997).    We employ de novo review of a trial court’s decision regarding a motion for

directed verdict. Fulton v. Robinson Indus., Inc., 664 So.2d 170, 172 (Miss. 1995). As such,




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we examine the evidence in the record in the same light as the trial court. Id. We consider the

record at the last time the trial court had the issue before it here, on the motion for J.N.O.V.

¶14.    Denials of peremptory instructions, motions for directed verdict and motions for

judgment notwithstanding the verdict each challenge the legal sufficiency of the evidence

presented at trial and each are reviewed under the same standard. Community Bank v. Courtney,

884 So. 2d 767, 772 (Miss. 2004). This Court has held that under its standard of review, denial

must be reviewed as follows:

        This Court will consider the evidence in the light most favorable to the appellee,
        giving that party the benefit of all favorable inference that may be reasonably
        drawn from the evidence. If the facts so considered points so overwhelmingly
        in favor of the appellant that reasonable men could not have arrived at a contrary
        verdict, we are required to reverse and render. On the other hand if there is
        substantial evidence in support of the verdict, that is, evidence of such quality and
        weight that reasonable and fair minded jurors in the exercise of impartial
        judgment might have reached different conclusions, affirmance is required.

Id.

¶15.    Foster argues that the trial court erred in denying of his motion for J.N.O.V., or in the

alternative, for a new trial since the verdict was against the overwhelming weight of the

evidence. This Court has made a distinction between the review of the denial of a motion for

J.N.O.V. based on the legal sufficiency of the evidence and review of a motion for new trial

based on the weight of the evidence.

        A.      Legal Sufficiency

¶16.    Foster was convicted of armed robbery (Count I) and aggravated assault (Count II). Miss.

Code Ann. § 97-3-79 defines robbery with use of a deadly weapon as:

        Every person who shall feloniously take or attempt to take from the person or
        from the presence the personal property of another and against his will by

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           violence to his person or by putting such person in fear of immediate injury to
           his person by the exhibition of a deadly weapon shall be guilty of robbery...

Miss. Code Ann. § 97-3-7(2) sets forth the elements of aggravated assault. The statute states,

in part:

           A person is guilty of aggravated assault if he (a) attempts to cause serious
           bodily injury to another, or causes such injury purposely, knowingly or
           recklessly under circumstances manifesting extreme indifference to the value
           of human life; or (b) attempts to cause or purposely or knowingly causes bodily
           injury to another with a deadly weapon or other means likely to produce death or
           serious bodily harm...

(emphasis added).

¶17.       On the issue of the legal sufficiency of the evidence, this Court held in Pinkney v. State,

538 So.2d 329, 353 (Miss. 1988), vacated on other grounds, 494 U.S. 1075, 110 S.Ct. 1800,

108 L.Ed.2d 931 (1990), that reversal can only occur when evidence of one or more of the

elements of the charged offense is such that “reasonable and fair minded jurors could only find

the accused not guilty.” (quoting Wetz v. State, 503 So.2d 803, 808 (Miss. 1987)). A motion

for J.N.O.V. challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774,

778 (Miss. 1993). “[T]his Court properly reviews the ruling on the last occasion the challenge

was made in the trial court.” Id. at 778. Here, this occurred when the trial court denied Foster’s

motion for J.N.O.V. See id.

¶18.       In the case sub judice, the State proved the elements of armed robbery and attempted

aggravated assault against Foster. In his testimony, Dukes identified Foster as the individual that

robbed him at gunpoint and fired at him shooting his car several times with him inside the car.

Dukes testified that he on two occasions that evening had given Foster a ride.        Dukes testified

that Foster ordered him at gunpoint to give him his billfold and searched through his car hunting

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anything of value. He ordered Dukes to leave his car. Dukes testified that he was scared for his

life. When Foster bent down, Dukes jumped into his car and drove away. Foster repeatedly shot

at him as he left. Dukes did not know Foster’s name, but he identified him from a lineup.

¶19.    Robinson’s testimony confirmed that Dukes had a flat tire, and there was an exchange

between Dukes and another individual. Robinson testified that he became scared and left. As

he left, he heard gunshots. The evidence demonstrates that the elements of armed robbery and

attempted aggravated assault were met in this case.

        B.       Weight of the Evidence

¶20.    A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749

So.2d 123, 127 (Miss. 1999).           A reversal is warranted only if the trial court abused its

discretion in denying a motion for new trial. Id.

¶21.    The Court weighs the evidence in the light that is most favorable to the jury verdict. Bush

v. State, 895 So. 2d 836, 844 (Miss. 2005). This Court has held that a new trial will not be

given unless the verdict is so contrary to the overwhelming weight of the evidence that an

unconscionable injustice would occur by allowing the verdict to stand. Groseclose v. State, 440

So.2d 297, 300 (Miss. 1983). However, if a jury verdict convicting a defendant is against the

overwhelming weight of the evidence, then the remedy is to grant a new trial. Collier v. State,

711 So.2d 458, 461 (Miss. 1998).

¶22.    In the case sub judice, the verdict is consistent with the weight of the evidence, and no

new trial is warranted. The jury heard the testimony from all the witnesses and heard Foster’s

alibi defense.    The victim clearly identified Foster and described what occurred. The jury

rejected the defense and found Foster guilty of armed robbery and attempted aggravated assault.

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¶23.    We find that this assignment of error without merit.

        II.     Rebuttal Witness

¶24.    The State informed the trial court that Officer Shirley Johnson would be called as a

witness in rebuttal.   Foster objected.    The trial court heard the objection outside the presence

of the jury. The defense based its objection on the fact that the jury was not voir dired as to

Officer Johnson.

¶25.    In McGaughy v. State, 742 So.2d 1091, 1094-95 (Miss. 1999), this Court stated:

        This Court has advocated a liberal application of the rebuttal evidence rule. See
        Powell v. State, 662 So.2d 1095, 1099 (Miss.1995) (citing Meeks v. State, 604
        So.2d 748, 755 (Miss.1992)). The time and manner of introducing evidence is
        committed to the sound discretion of the trial judge. Deas v. Andrews, 411
        So.2d 1286, 1291 (Miss.1982) (citing Winterton v. Illinois Cent. R.R.,73 Miss.
        831, 836, 20 So. 157, 158 (1896)). This Court will not reverse unless the
        exercise of discretion appears arbitrary, capricious or unjust. Id.

See Wash v. State, 880 So.2d 1054, 1056 (Miss. Ct. App. 2004).             In Wash, the Court of

Appeals recently addressed this issue citing McGaughy v. State, 742 So.2d at 1093. The Court

of Appeals held: “We consider whether the trial judge abused his discretion in allowing rebuttal

testimony. The decision to allow rebuttal evidence or testimony is at the sole discretion of the

trial judge.”

Wash, 880 So.2d at 1056. Therefore, on appeal, this Court reviews the trial court’s ruling only

for an abuse of discretion.

¶26.    The trial court inquired from the State whether it had anticipated calling Officer Johnson

as a witness.      The State informed the trial court that Officer Johnson was “absolutely” not

expected to testify.     The State responded that after speaking with Officer Johnson, it was

determined that her testimony would have been repetitious and only operate to delay the

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proceedings and overlap the other officers’ testimony.        However, the State did not anticipate

that two     witnesses would make accusations that Officer Johnson had made improper

inducements.     When the State questioned Officer Johnson on rebuttal, the questioning was

limited to only any deals that she allegedly made with Robinson and Brady.

¶27.     We find that the record does not reflect that the trial court abused its discretion.

Therefore, this assignment of error is without merit.

                                             CONCLUSION

¶28.     For the foregoing reasons, we affirm the judgment of the Coahoma County Circuit

Court.

¶29. COUNT I: CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIFTEEN
(15) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. COUNT II: CONVICTION OF
ATTEMPTED AGGRAVATED ASSAULT AND SENTENCE OF FIVE (5) YEARS, WITH
CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AFFIRMED. AFTER APPELLANT HAS SERVED TEN (10) YEARS
IN COUNT I AND FIVE (5) YEARS IN COUNT II, THE REMAINING FIVE (5) YEARS
IN COUNT I SHALL BE SUSPENDED. APPELLANT SHALL RECEIVE CREDIT FOR
ALL TIME PREVIOUSLY SERVED IN THIS CAUSE. THE SENTENCE IMPOSED IN
COUNT II SHALL RUN CONCURRENTLY TO THAT IMPOSED IN COUNT I AND
BOTH SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY
IMPOSED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES, DICKINSON
AND RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.




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