         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2014-KA-01321-COA

KENNETH R. GOLDSMITH A/K/A KENNETH                                            APPELLANT
GOLDSMITH A/K/A KENNETH RAY
GOLDSMITH

v.

STATE OF MISSISSIPPI                                                            APPELLEE


DATE OF JUDGMENT:                           02/26/2014
TRIAL JUDGE:                                HON. SAMAC S. RICHARDSON
COURT FROM WHICH APPEALED:                  RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                            BY: BENJAMIN ALLEN SUBER
                                                GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: LISA L. BLOUNT
DISTRICT ATTORNEY:                          MICHAEL GUEST
NATURE OF THE CASE:                         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                    CONVICTED OF GRAND LARCENY, AND
                                            SENTENCED AS A HABITUAL OFFENDER
                                            TO LIFE WITHOUT ELIGIBILITY FOR
                                            PAROLE
DISPOSITION:                                AFFIRMED - 01/05/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    Kenneth R. Goldsmith was convicted of grand larceny in Rankin County Circuit

Court. He was sentenced as a habitual offender to serve life without parole. Goldsmith

raises the following issues on appeal: (1) the evidence was insufficient to support the verdict,

and (2) his sentence as a habitual offender of life without parole is disproportionate to the
crime and constitutes cruel and unusual punishment. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On October 15, 2012, David Purvis, vice president of safety at Ergon Trucking in

Flowood, Mississippi, noticed suspicious activity in the Ergon parking lot involving a man

in a Chevrolet Trailblazer.1 Purvis reported the suspicious activity and the Trailblazer’s

license-plate number to the Flowood Police Department.

¶3.    On October 19, 2012, at 8:15 a.m., Barton Lampton parked his truck in the parking

lot at Ergon, where he worked. Lampton’s Giant TCR Advanced SL1 bicycle was in the

back of the truck. According to Lampton, the bicycle retailed for $6,000 to $6,500. But

because Lampton was friends with the owner of a bicycle shop, he was able to purchase a

demo for $3,200.

¶4.    Time-stamped photographs taken from the surveillance camera at Ergon show that at

8:37 a.m., the same Trailblazer from October 19 drove through Ergon’s smaller parking lot.

At 8:40 a.m., the Trailblazer drove into Ergon’s larger parking lot where Lampton’s truck

was parked. The network administrator at Ergon was unable to zoom in to the photographs

to see who was in the vehicle.

¶5.    Ian Gallman, an employee at USA Pawn and Jewelry on Woodrow Wilson Avenue

in Jackson, Mississippi, identified the pawn receipt where Goldsmith pawned Lampton’s




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        The Trailblazer belonged to Goldsmith’s fiancée, Lillian Harvey. The following
people had access to the Trailblazer: Harvey; her son, Christopher; her cousin, Smootie; and
Goldsmith.

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bicycle.2 Gallman estimated Goldsmith would have arrived at the pawn shop between 9:00

a.m. and 9:10 a.m. The transaction was complete at 9:20 a.m. According to Gallman, the

retail value of the bicycle is $7,000. However, Gallman paid Goldsmith $100 because that

is the amount Goldsmith requested. Gallman later listed the bicycle on Craigslist for $4,000.

¶6.     At trial, Goldsmith denied stealing the bicycle and denied having been in the Ergon

parking lot on October 15 or 19. Goldsmith testified he was driving the Trailblazer on the

morning of October 19 when his stepson, Christopher, and his stepson’s friend asked him to

pick them up at the Citgo gas station on Lakeland Drive. Goldsmith could not recall the

friend’s name.

¶7.     On direct examination, Goldsmith testified that he paid the friend $45 for the bicycle.

The friend then told Goldsmith to wait fifteen to twenty minutes. If he did not bring

Goldsmith his money back, the friend stated Goldsmith could sell the bicycle. Goldsmith

then drove from the Citgo to the pawn shop and pawned the bicycle for $100 to pay an

electrical bill.

¶8.     On cross-examination, Goldsmith’s testimony initially conformed to his testimony on

direct. But later on cross-examination, Goldsmith testified that after picking up his stepson

and his stepson’s friend from the Citgo, he drove the Trailblazer from the Citgo to the

Parkside Inn on Interstate 55 North in Jackson, where Goldsmith took fifteen to twenty

minutes to service an air conditioner. Goldsmith then drove the Trailblazer from the Parkside

Inn to the pawn shop.



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            During the transaction, Goldsmith was required to show photo identification.

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¶9.    During a hearing on Goldsmith’s prior convictions, it was established that he had a

total of at least eleven prior felony convictions: five uttering forgery; three theft by

receiving; two commercial burglary; and one possession of a firearm by an incarcerated

person. Goldsmith also had a total of at least two prior convictions that qualify as crimes

of violence: one robbery conviction and one aggravated-assault conviction.

¶10.   At the conclusion of the State’s case, Goldsmith moved for a directed verdict, which

was denied. Goldsmith did not renew his motion at the close of all evidence. On December

13, 2014, Goldsmith was convicted of grand larceny, and on February 26, 2014, he was

sentenced as a violent habitual offender to life in prison. On June 30, 2014, Goldsmith filed

a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new

trial. The trial court denied the motion, and Goldsmith now appeals.

                                      DISCUSSION

       I.     Insufficient Evidence

¶11.   In his first issue, Goldsmith claims the evidence was insufficient to support his

conviction for grand larceny. Specifically, Goldsmith claims the trial court erred in denying

his motions for a directed verdict and JNOV or, in the alternative, a new trial.

              A.     Procedural Bar—Directed Verdict

¶12.   “To preserve the issue of denial of a directed verdict, the defense must move for [a]

directed verdict at the close of the State’s [case].” Page v. State, 990 So. 2d 760, 761 (¶9)

(Miss. 2008) (citing Wright v. State, 540 So. 2d 1, 3 (Miss. 1989)). “If a motion for a

directed verdict is denied and the defendant introduces evidence on his own behalf, the



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defendant must renew his motion for [a] directed verdict at the close of all evidence.” Id.

¶13.   Goldsmith moved for a directed verdict at the close of the State’s case-in-chief. This

motion was denied. Goldsmith then presented evidence on his own behalf. At the

conclusion of all evidence, Goldsmith did not renew his motion for a directed verdict.

Therefore, Goldsmith is barred from raising the issue on appeal.

              B.     Procedural Bar Notwithstanding

¶14.   Procedural bar notwithstanding, we find that the trial court did not err in denying

Goldsmith’s motion for a directed verdict or his motion for a JNOV or new trial.

¶15.   “A directed verdict and a motion for JNOV both challenge the sufficiency of the

evidence presented to the jury.” Jones v. State, 991 So. 2d 629, 634 (¶11) (Miss. Ct. App.

2008) (citing McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)). “Therefore, our standard

of review is the same for both.” Id. “This Court will consider the evidence in the light most

favorable to the State, giving the State ‘the benefit of all favorable inferences that may

reasonably be drawn from the evidence.’” Id. (quoting Collier v. State, 711 So. 2d 458, 461

(¶11) (Miss. 1998)). “The relevant question then becomes whether ‘any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt.’” Id.

(quoting Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005)).

¶16.   “Unlike a motion for a directed verdict or JNOV, a motion for a new trial challenges

the weight of the evidence.” Id. at (¶12) (citing Sheffield v. State, 749 So. 2d 123, 127 (¶16)

(Miss. 1999)). “This Court’s standard of review of a trial court’s denial of a motion for a

new trial is abuse of discretion.” Id. (citing Johnson v. State, 904 So. 2d 162, 167 (¶11)



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(Miss. 2005)). “A new trial will not be awarded unless ‘the verdict is so contrary to the

overwhelming weight of the evidence that, to allow it to stand, would be to sanction an

unconscionable injustice.’” Id.

¶17.   In his motion for a JNOV or new trial, Goldsmith challenged the sufficiency of the

evidence, among other things. In his motion for a directed verdict, Goldsmith claimed there

was insufficient evidence to establish the value of the bicycle met the monetary requirement

for grand larceny. In his appeal, Goldsmith claims there was insufficient evidence to

establish he committed the crime.3 We will address each argument in turn.

                     1.     Value of the Bicycle

¶18.   Goldsmith claims there was insufficient evidence to establish the value of the bicycle

met the monetary requirement for grand larceny.

¶19.   Grand larceny is defined as “taking and carrying away, feloniously, the personal

property of another, of the value of Five Hundred Dollars ($500.00) or more . . . .” Miss.

Code Ann. § 97-17-41(1) (Rev. 2006).

¶20.   “In Smith v. State, 881 So. 2d 908 (Miss. Ct. App. 2004), [the] defendant was

convicted after the victim’s father testified that he paid between $3,000 and $4,000 for truck

rims that were later stolen.” Williams v. State, 994 So. 2d 821, 826 (¶14) (Miss. Ct. App.



       3
         “Motions for a directed verdict must be specific and not general in nature.”
Sheffield, 749 So. 2d at 126 (¶10) (quoting Banks v. State, 394 So. 2d 875, 877 (Miss.
1981)). Goldsmith did not specifically challenge the sufficiency of the evidence with respect
to whether he committed the crime in his motion for a directed verdict. Nor did Goldsmith
specifically challenge the sufficiency of the evidence with respect to whether he committed
the crime in his motion for a JNOV or new trial. However, we will continue to address the
issue.

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2008). The defendant appealed and claimed his conviction should be reversed based on

insufficient proof of the value of the rims. Id. This Court stated:

       [T]he victim’s father testified that he paid between [$3,000 and $4,000] for the
       rims. Although this was not direct testimony of the value of the rims, we find
       that it circumstantially provided a basis from which the jury could infer that
       the rims were worth at least $250 because of the amount of the purchase price.
       While this is not the strongest evidence that could have . . . and should have
       been presented, we cannot say that no fair-minded juror could find [the
       defendant] guilty on this evidence or that allowing the verdict to stand will
       amount to an unconscionable injustice.

Id. (citing Smith, 881 So. 2d at 910-11 (¶11)).

¶21.   Lampton testified that the bicycle retails for $6,000 to $6,500. He also testified that

he paid $3,200 for the bicycle. Furthermore, Gallman testified that the bicycle retails for

$7,000. Gallman also testified that he listed the bicycle on Craigslist for $4,000. Therefore,

this issue is without merit.

                      2.       Sufficiency of the Evidence

¶22.   Goldsmith claims there was insufficient evidence to establish he committed the crime.

Specifically, Goldsmith claims the State failed to establish he was the person driving the

Trailblazer, or that the person driving the Trailblazer was the person who stole the bicycle.

¶23.   “That the only evidence supporting [the] conviction is circumstantial does not mean

the evidence is insufficient.” Walton v. State, 642 So. 2d 930, 932 (Miss. 1994). “[The

Mississippi Supreme Court has] consistently held that the State may prove a crime solely by

circumstantial evidence.” Id. “[T]he test to be applied is whether ‘a rational fact[-]finder

might reasonably conclude that the evidence excludes every reasonable hypothesis

inconsistent with guilt of the crime charged.’” Presley v. State, 994 So. 2d 191, 194 (¶10)


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(Miss. 2008) (quoting Shields v. State, 702 So. 2d 380, 382 (Miss. 1997)). “However, we

must view the evidence in a light most favorable to the verdict.” Id. (citing Jones v. State,

819 So. 2d 558, 561 (¶11) (Miss Ct. App. 2002)).

¶24.   “Under Mississippi law, possession of recently stolen property is a circumstance

which may be considered by the jury and from which, in the absence of a reasonable

explanation, the jury may infer guilt.” Seales v. State, 90 So. 3d 37, 42 (¶25) (Miss. 2012)

(quoting Rushing v. State, 461 So. 2d 710, 712 (Miss. 1984)). “[T]he explanation, however,

must both be reasonable and credible.” Presley, 994 So. 2d at 195 (¶20) (quoting Pearson

v. State, 248 Miss. 235, 158 So. 2d 710, 714 (1963)). “If the explanation is not reasonable

and credible, the evidence is sufficient for larceny.” Id. (citing Wilson v. State, 237 Miss.

294, 301, 114 So. 2d 677, 680 (1959)).

¶25.   The evidence showed that Goldsmith was in possession of the bicycle the same

morning it was stolen. However, Goldsmith’s explanation as to how he gained possession

is demonstrably false.

¶26.   Between 8:40 a.m. and (at the latest) 9:10 a.m., Goldsmith claims he drove the

Trailblazer to the Citgo on Lakeland Drive, where he paid $45 for the bicycle; may or may

not have waited fifteen to twenty minutes; drove the Trailblazer to the Parkside Inn on

Interstate 55 North; serviced an air conditioner for fifteen to twenty minutes; and then drove

the Trailblazer to the pawn shop on Woodrow Wilson.

¶27.   Lampton parked his truck, with the bicycle in the back, at Ergon at 8:15 a.m. Time-

stamped photographs place the Trailblazer in the parking lot at Ergon at 8:40 a.m. It was



                                              8
estimated that Goldsmith arrived in the Trailblazer at the pawn shop between 9:00 a.m. and

9:10 a.m. According to the pawn receipt, the transaction was completed at 9:20 a.m.

¶28.   From these facts, there was sufficient evidence for the jury to find Goldsmith guilty

of grand larceny.

       II.    Disproportionate Sentence

¶29.   In his second issue, Goldsmith claims his sentence of life without parole as a habitual

offender is disproportionate to the crime and constitutes cruel and unusual punishment.

¶30.   “[T]he general rule in this state is that a sentence cannot be disturbed on appeal so

long as it does not exceed the maximum term allowed by statute.” Wall v. State, 718 So. 2d

1107, 1114 (¶29) (Miss. 1998) (quoting Hoops v. State, 681 So. 2d 521, 538 (Miss. 1996)).

¶31.   “[T]his Court will [conduct a] three-pronged [disproportionality] analysis as set forth

by the United States Supreme Court in Solem v. Helm, [463 U.S. 277 (1983),] but only when

a threshold comparison of the crime committed to the sentence imposed leads to an inference

of ‘gross disproportionality.’” Id. (citing Hoops, 681 So. 2d at 538). “The appellate courts

will not apply the three-prong disproportionality test when there is a lack of this initial

showing.” Nichols v. State, 826 So. 2d 1288, 1290 (¶12) (Miss. 2002).

¶32.   The Mississippi Supreme Court’s application of Rummel v. Estelle, 445 U.S. 263

(1980), in Wall serves as a guide in the determination of the threshold comparison. The

defendant in Wall was convicted of possession of a controlled substance. Wall, 718 So. 2d

at 1109 (¶2). Wall was previously convicted of robbery and armed robbery. Id. at (¶1).

Because armed robbery is a crime of violence per se, Wall was classified as a habitual



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offender according to Mississippi Code Annotated section 99-19-83 (Rev. 2015) and was

sentenced to life imprisonment without parole. Id. at 1114 (¶30). The Mississippi Supreme

Court found “as long as the sentence is within the limits of the statute, the imposition of such

sentence is within the sound discretion of the trial court and [the appellate] court will not

reverse it.” Id. Ultimately, the Mississippi Supreme Court held, in light of Rummel, that

Wall’s sentence was not grossly disproportionate to his crimes and a proportionality review

under Solem was not warranted. Id.

¶33.   In its sentencing order, the trial court found that Goldsmith was convicted of forgery

in 2010; aggravated assault in 1997; and most recently, grand larceny on December 13, 2014.

Aggravated assault is a crime of violence within the meaning of the habitual-offender statute.

Davis v. State, 680 So. 2d 848, 851 (Miss. 1996). Goldsmith’s sentence conforms to the

requirements of the habitual-offender statute; therefore, this issue is without merit.

                                       CONCLUSION

¶34.   The trial court did not err in denying Goldsmith’s motion for a directed verdict, as his

motion was procedurally barred. Procedural bar notwithstanding, we find Goldsmith’s claim

that the trial court erred in denying his motions for a directed verdict and a JNOV or new trial

because the evidence was insufficient to support his conviction for grand larceny to be

without merit. We also find Goldsmith’s claim that his sentence is disproportionate to the

crime and constitutes cruel and unusual punishment to be without merit. For these reasons,

we affirm.

¶35. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY OF
CONVICTION OF GRAND LARCENY AND SENTENCE AS A HABITUAL

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OFFENDER OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES
AND WILSON, JJ., CONCUR.




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