         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-KA-00480-COA

FREDRICO STONE                                                               APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE


DATE OF JUDGMENT:                           07/26/2013
TRIAL JUDGE:                                HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED:                  COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     AZKI SHAH
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: SCOTT STUART
DISTRICT ATTORNEY:                          BRENDA FAY MITCHELL
NATURE OF THE CASE:                         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                    CONVICTED OF POSSESSION OF
                                            COCAINE AND SENTENCED AS A
                                            HABITUAL OFFENDER TO SERVE
                                            SIXTEEN YEARS IN THE CUSTODY OF
                                            THE MISSISSIPPI DEPARTMENT OF
                                            CORRECTIONS WITHOUT ELIGIBILITY
                                            FOR PAROLE OR PROBATION AND TO
                                            PAY A $250,000 FINE
DISPOSITION:                                AFFIRMED: 10/06/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Fredrico Stone was convicted of possession of cocaine. Stone was sentenced as a

habitual offender to sixteen years in the custody of the Mississippi Department of Corrections

and ordered to pay a $250,000 fine. Stone filed posttrial motions, which the trial court

denied. Stone now argues that: (1) the trial court erred by selecting the alternate jurors; (2)
the trial court erred by refusing to give his circumstantial-evidence jury instruction; (3) the

verdict is against the overwhelming weight of the evidence; and (4) the trial court erred by

denying his motion for a directed verdict.

                                           FACTS

¶2.    On September 16, 2012, Officer Romeisha Moore observed a Saturn traveling at a

high rate of speed in Clarksdale, Mississippi. Officer Moore initiated a traffic stop and ran

the license-tag numbers. She determined that the license tag on the Saturn was actually

registered to a Nissan. The license tag was also expired. Stone, the driver of the Saturn,

admitted to Officer Moore that he was driving without a license. There were two other men

in the car with Stone – one man in the front passenger seat, and the other in the back seat.

¶3.    Officer Moore noted that Stone was having difficulty speaking.             She noticed

something plastic in his mouth. Officer Moore testified that she attempted to remove the

item from Stone’s mouth, but he resisted and the two “tussled.” Officer Moore stated Stone

turned away from her toward the passenger seat and, fearing for her safety, she then tasered

him. She handcuffed Stone and removed him from the car. While standing near the

passenger side of the car, Officer Moore stated, “I looked on the ground and saw some plastic

– some white substance in some plastic. . . . It was some white substance in small plastic

bags.” She testified that they were wet and looked like the items she attempted to retrieve

from Stone’s mouth. Officer Moore testified that a bigger clear bag was on the ground near

the small plastic bags. Officer Moore stated she placed the items in a paper bag and placed

the bag in an evidence locker at the police station. On cross-examination, Officer Moore



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testified that the item in Stone’s mouth was “something plastic, and it [sic] was a big ball

behind it.” She testified that there were approximately twenty small bags scattered

approximately six inches under the passenger side of the car.

¶4.    On redirect, Officer Moore read from the incident report1 she had completed after

arresting Stone, quoting: “There were about [twenty] small rock-size bags in a big plastic

bag, which was the big bag Mr. Stone had inside his mouth.”

¶5.    Officer Frederick Burton, also with the Clarksdale Police Department, responded to

the scene. Officer Burton saw the plastic bags on the ground near the car, describing them

as “small baglets [sic] of rock-like substance in clear[,] small plastic bags.”

¶6.    Approximately twenty-nine bags were recovered from the scene. The substance inside

the bags testified positive for cocaine.

                                       DISCUSSION

       I.     ALTERNATE JURORS

¶7.    In his first issue on appeal, Stone contends the trial court erred in its manner of

selecting the two alternate jurors. Stone argues that the trial court failed to follow Uniform

Rule of Circuit and County Court Practice 4.05 and Mississippi Code Annotated section 13-

5-67 (Rev. 2012), resulting in a violation of his constitutional rights. After the jurors were

qualified, fourteen jurors were selected to hear Stone’s case. Prior to the submission of the

case to the jury, the trial court selected two names out of a cup and designated those two

names as the alternate jurors. These two alternate jurors were then excused while the

       1
       This incident report was not introduced into evidence or marked for identification
purposes.

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remaining twelve jurors retired to deliberate.

¶8.      Stone failed to make a contemporaneous objection; thus, this issue is waived. Bunch

v. State, 123 So. 3d 484, 491 (¶16) (Miss. Ct. App. 2013). Regardless of the procedural bar,

we find no merit to this issue. This Court gives a “substantial degree of deference . . . to the

judiciary in determining its procedures for empaneling a jury, limited only by statutory

guidelines.” Moore v. State, 816 So. 2d 1022, 1026 (¶10) (Miss. Ct. App. 2002). Mississippi

Code Annotated section 13-5-87 (Rev. 2012) provides that “[a]ll the provisions of law in

relation to the listing, drawing, summoning[,] and impaneling juries are directory merely, and

a jury listed, drawn, summoned[,] or impaneled, though in an informal or irregular manner,

shall be deemed a legal jury after it shall have been impaneled and sworn . . . .” (Emphasis

added). According to the record, these alternate jurors were “drawn in the same manner,

[had] the same qualifications, [were] subject to the same examination and challenges for

cause, [took] the same oath[,] and [had] the same functions, powers, facilities[,] and

privileges as the regular jurors.” Miss. Code Ann. § 13-5-67.

         II.       JURY INSTRUCTION

¶9.      Stone next contends the trial court erred in denying his request for a circumstantial-

evidence jury instruction. A circumstantial-evidence instruction is not required unless the

State’s case is wholly circumstantial. Arguelles v. State, 867 So. 2d 1036, 1042 (¶22) (Miss.

Ct. App. 2003).         “The existence of any direct evidence eliminates the need for a

circumstantial[-]evidence instruction.” Sullivan v. State, 749 So. 2d 983, 992 (¶21) (Miss.

1999).         An example of direct evidence is “eyewitness testimony to the gravamen of the



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offense charged.” McInnis v. State, 61 So. 3d 872, 876 (¶13) (Miss. 2011). “The term

‘gravamen’ is defined as the ‘substantial point or essence of a claim, grievance, or

complaint.’” Id. (citation omitted). Here, Officer Moore’s testimony constituted direct

evidence such that a circumstantial-evidence instruction was properly refused. Officer

Moore testified that she saw something plastic in Stone’s mouth with a “a big ball behind it.”

After Stone refused to spit out the item in his mouth, he turned toward the occupant sitting

in the front passenger seat, and, Officer Moore, concerned about losing control of the

situation, subdued Stone using her taser. Officer Moore subsequently noticed several bags

on the ground by the passenger side of the car. She stated these small plastic bags contained

a white substance. The bags were wet and resembled the plastic item she attempted to

retrieve from Stone’s mouth. In her incident report, a portion of which was read in court,

Officer Moore stated: “There were about [twenty] small rock-size bags in a big plastic bag,

which was the big bag Mr. Stone had inside his mouth.” Officer Burton testified that he saw

these small bags on the ground by the passenger side of the car, stating they contained a

“rock-like substance.” The white substance in the bags tested positive for cocaine. This

issue is without merit.

       III.   WEIGHT OF THE EVIDENCE

¶10.   Stone argues the guilty verdict is against the overwhelming weight of the evidence.

“When reviewing a denial of a motion for a new trial based on an objection to the weight of

the evidence, we will only disturb a verdict when it is so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”



                                              5
Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005). We review the evidence in the light

most favorable to the verdict, and we will not overturn the verdict unless we find that the trial

court abused its discretion in denying the motion for a new trial. Woodard v. State, 765 So.

2d 573, 576 (¶16) (Miss. Ct. App. 2000) (citation omitted).

¶11.   There was evidence that Stone had a plastic bag in his mouth and refused to show

Officer Moore the bag. Officer Moore testified Stone turned away from her, toward the

passenger – indicating Stone passed the plastic bags to his passenger, who then threw them

out of the car. The plastic bags were found on the ground by the car and were wet. The

substance in the bag tested positive for cocaine. Evaluating the evidence in the light most

favorable to the verdict, we cannot find that allowing the guilty verdict to stand would

sanction an unconscionable injustice. This issue is without merit.

       IV.    MOTION FOR A DIRECTED VERDICT

¶12.   In his final issue on appeal, Stone contends the trial court erred in denying his motion

for a directed verdict. Directed verdicts challenge the sufficiency of the evidence. Jordan

v. State, 936 So. 2d 368, 373 (¶24) (Miss. Ct. App. 2005). In reviewing the sufficiency of

the evidence, “the critical inquiry is whether the evidence shows beyond a reasonable doubt

that [the] accused committed the act charged, and that he did so under such circumstances

that every element of the offense existed[.]” Bush, 895 So. 2d at 843 (¶16) (citation and

internal quotation marks omitted). If, viewing the evidence in the light most favorable to the

State, any rational trier of fact could have found, beyond a reasonable doubt, that the

essential elements of the crime existed, this Court will affirm the conviction.               Id.



                                               6
Furthermore, it is well-settled law that the jury determines the credibility of the witnesses and

resolves conflicts in the evidence. Davis v. State, 866 So. 2d 1107, 1112 (¶17) (Miss. Ct.

App. 2003). Stone’s argument is similar to that expressed in the previous issue. From the

evidence described in the previous issue, we find the evidence shows beyond a reasonable

doubt that Stone was in possession of cocaine. This issue is without merit.

¶13. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF COCAINE AND SENTENCE AS A HABITUAL
OFFENDER OF SIXTEEN YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION AND TO PAY A $250,000 FINE IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO THE APPELLANT.

    LEE, C.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR, JAMES AND
WILSON, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT.




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