                  IN THE COURT OF APPEALS 06/04/96
                                 OF THE
                         STATE OF MISSISSIPPI
                            NO. 93-KA-00997 COA



SANDRA WALKER

APPELLANT

v.

STATE OF MISSISSIPPI

APPELLEE



PER CURIAM AFFIRMANCE MEMORANDUM OPINION



THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND

MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B



TRIAL JUDGE: HON. MARCUS D. GORDON

COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT:

DANNY CLEARMAN

ATTORNEY FOR APPELLEE:

OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY

DISTRICT ATTORNEY: KEN TURNER

NATURE OF THE CASE: CRIMINAL-SALE OF COCAINE

TRIAL COURT DISPOSITION: CONVICTED OF THE SALE OF COCAINE AND
SENTENCED TO SERVE A TERM OF 25 YEARS IN THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND ORDERED TO PAY A FINE OF 10,000.
BEFORE BRIDGES, P.J., DIAZ, AND SOUTHWICK, JJ.

PER CURIAM:

The Defendant, Sandra Walker, was tried and convicted of the crime of selling cocaine and sentenced
to serve a term of twenty-five (25) years in the Mississippi Department of Corrections. Walker
appeals to this Court claiming that the lower court’s verdict was against the weight and sufficiency of
the evidence. Specifically, Walker contends that she met the burden of proving an entrapment
defense.

The supreme court has ruled that the defendant must show a prima facie case of entrapment before
the State has the burden of showing a predisposition for committing the crime. Bush v. State, 585 So.
2d 1262, 1264 (Miss. 1991). In Pulliam v. State, the Mississippi Supreme Court set out the standard
to be applied when the issue of entrapment is presented on appeal. The court stated:

           Here, of course, we speak in the setting of familiar rules regarding our scope of review,
           that on appeal, we must view the evidence in the light most consistent with the verdict,
           giving the prosecution the benefit of all reasonable favorable inferences consistent with the
           verdict. When we say that a defendant has been entrapped as a matter of law, what we
           mean is that the evidence, so viewed, is so clear that no fair-minded juror could consistent
           with his oath, reject the entrapment defense.



Pulliam v. State, 592 So. 2d 24, 26 (Miss. 1991).

Here, the defense presented a prima facie case for entrapment. The prosecution rebutted the defense
with evidence of Walker’s prior drug activity and knowledge of the drug culture. Viewing the
evidence in the light most favorable to the verdict, we believe that the jury had sufficient evidence to
find that Walker was not entrapped. Furthermore, a defendant is generally left to no avail on appeal
where a jury is instructed on entrapment, and it resolves the issue against the defendant. Bush, 585
So. 2d at 1264.

In addition, Walker argues that the jury verdict was against the overwhelming weight of the evidence,
and is therefore entitled to a new trial. The Mississippi Supreme Court has held that "[t]he jury is
charged with the responsibility of weighing and considering the conflicting evidence and credibility of
the witnesses and determining whose testimony should be believed." McClain v. State, 625 So. 2d
774, 781 (Miss. 1993) (citations omitted); see also Burrell v. State, 613 So. 2d 1186, 1192 (Miss.
1993) (witness credibility and weight of conflicting testimony are left to the jury); Kelly v. State, 553
So. 2d 517, 522 (Miss. 1989) (witness credibility issues are to be left solely to the province of the
jury). Furthermore, "the challenge to the weight of the evidence via motion for a new trial implicates
the trial court’s sound discretion." McClain, 625 So. 2d at 781 (citing Wetz v. State, 503 So. 2d 803,
807-08 (Miss. 1987)). The decision to grant a new trial "rest[s] in the sound discretion of the trial
court, and the motion [for a new trial based on the weight of the evidence] should not be granted
except to prevent an unconscionable injustice." Id. This Court will reverse only for abuse of
discretion, and on review will accept as true all evidence favorable to the State. Id.

Here, the jury heard the witnesses and the evidence presented by both the State and the defense. The
jury was within its power to weigh the evidence and the credibility of the witnesses’ testimony and to
convict Walker. The trial court did not abuse its discretion by refusing to grant Walker a new trial
based on the weight of the evidence. The jury verdict was not so contrary to the overwhelming
weight of the evidence that, to allow it to stand, would have been to promote an unconscionable
injustice.

THE JUDGMENT OF THE NEWTON COUNTY CIRCUIT COURT OF CONVICTION OF
THE SALE OF COCAINE AND SENTENCE OF TWENTY-FIVE (25) YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AND FINE OF
TEN THOUSAND DOLLARS ($10,000.00) IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE TAXED TO NEWTON COUNTY.



FRAISER, C.J., BRIDGES AND THOMAS, P.JJ., BARBER, COLEMAN, DIAZ, KING,
McMILLIN, PAYNE, AND SOUTHWICK, JJ., CONCUR.
