        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-KA-00222-COA

JARVIS BROWN                                                               APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         10/27/2016
TRIAL JUDGE:                              HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED:                COAHOMA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   AZKI SHAH
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:                        BRENDA FAY MITCHELL
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 09/04/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       BARNES, J., FOR THE COURT:

¶1.    Jarvis Brown was convicted of attempted aggravated assault with a firearm and

sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC),

with five years suspended, and five years of post-release supervision. He was also sentenced

to an additional five years for using a firearm in the commission of the crime, to be served

consecutively to the sentence for the assault offense. See Miss. Code Ann. § 97-37-37 (Rev.

2014). After the Coahoma County Circuit Court denied his posttrial motion, he appealed,

arguing that the sufficiency and weight of the evidence do not support the verdict. Finding

no error, we affirm.
                       FACTS AND PROCEDURAL HISTORY

¶2.    At approximately 8:00 p.m. on October 11, 2013, Daniell Hampton left his local

barber shop in Clarksdale, Mississippi headed for home. He observed a dark-colored

Chevrolet Tahoe tailing his car and recognized Brown as the driver. Hampton heard

gunshots and noticed his back window was shattered; so he drove to his mother’s home

nearby and notified the Clarksdale Police Department of the shooting. He then took his

vehicle to the police station for processing. A few hours later, Brown was taken into custody

in connection with the shooting. Hampton later identified Brown from a photo lineup.

¶3.    Brown was indicted for attempted aggravated assault in violation of Mississippi Code

Annotated section 97-3-7(2)(a) (Rev. 2006).      A jury trial was held in Coahoma County

Circuit Court on July 13, 2016. Officer Jamie Stribling testified that the police department

had received a “shots fired” call at 8:08 p.m. from an unnamed source before Hampton

contacted them and were already in route to the area. Two 9-millimeter shell casings were

recovered near where Hampton said the shooting occurred; however, no gun was ever found.

Officer Stribling conducted a gunshot residue (GSR) test on Brown within a few hours of the

shooting and sent the samples to the Mississippi Crime Lab. Chad Suggs, a forensic

scientist, testified the GSR analysis showed that particles indicative of GSR were found on

Brown’s hands. Hampton testified that he had known Brown for “[o]ver twelve years,” and

identified him as the driver of the vehicle from which the shots were fired. Hampton also

said that when his back windshield shattered, he looked into his rearview mirror and saw


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“flames coming from the driver’s side by the mirror.”

¶4.    After the State rested, defense counsel moved for a directed verdict, which the circuit

court denied. Brown’s girlfriend, Aldemetrise Thomas, testified for the defense. She

claimed Brown had gone with her to Tupelo on the day of the shooting and that they did not

return to Clarksdale until right before 10:00 p.m., thereby providing Brown with an alibi.

However, on cross-examination, Thomas admitted she never told police officers that she was

with Brown that evening; she said she only told Brown’s attorney.

¶5.    Brown was found guilty and sentenced to ten years in the custody of the MDOC, with

five years suspended, and five years of post-release supervision. He was also sentenced to

five years in MDOC custody for using a firearm in the commission of his crime. Brown filed

a motion for judgment of acquittal, or in the alternative, for a new trial, which the circuit

court denied. On appeal, Brown contends that the sufficiency and weight of the evidence do

not support the verdict; therefore, the circuit court erred in denying his motion.

                                       DISCUSSION

¶6.    “When reviewing the sufficiency of the evidence, ‘the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any rational trier

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

Topps v. State, 227 So. 3d 1177, 1180 (¶5) (Miss. Ct. App. 2017) (quoting Bush v. State, 895

So. 2d 836, 843 (¶16) (Miss. 2005) (overruled on other grounds by Little v. State, 233 So. 3d

288, 292 (¶20) (Miss. 2017))).


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¶7.    Brown was charged with attempted aggravated assault under section 97-3-7(2)(a),

which provided in part: “A person is guilty of aggravated assault if he . . . 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[.]” Brown specifically contends that

the “identity of the perpetrator is an essential element of attempted aggravated assault, and

the State failed to prove that he was the driver of the automobile in question on October 11.”

He notes that no gun was recovered; nor did the police ever locate the vehicle identified by

Hampton. Brown also argues that Hampton did not initially identify Brown as the shooter

when he called police and that Hampton kept changing his testimony at trial regarding the

identification of Brown, specifically as to the time he saw him. On direct examination,

Hampton testified that he did not realize Brown was the driver of the Tahoe until he got “past

the bus station.” Brown asserts:

       [A]ccording to Hampton (the victim), he had traveled pas[t] the bus station
       before he was able to ascertain the identity of the driver of the SUV as
       [Brown], and this was accomplished through the glare of the SUV
       headlights—which is an impossibility. And after being confronted with said
       impossibility, Hampton changed his testimony.

On cross-examination, Hampton stated that he saw Brown stopped at an intersection right

after Hampton had left the barber shop. When confronted with the inconsistency in his

testimony, Hampton explained that although he had seen Brown at the light, he did not

realize Brown was the driver of the vehicle tailing him until after the shots were fired:

       A.     I tried to identify the driver . . . . I knew who the driver was because
              we actually both met at the Ranchero intersection. Well, I made it there

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              first. As I was pulling off, he pulled up. And, of course, you look both
              ways before you leave an intersection at a stop sign. And when I
              looked to my right, I saw him, but, like, I never knew that he was fixing
              to get behind me. But he did.

       ....

       Q.     Which one is the truth, Mr. Hampton? Or neither one is the truth?

       A.     Both. I mean, I met [Brown] at the intersection, and I saw him and I
              knew the vehicle that he was in. Once I passed, I didn’t know that that
              was him in that vehicle behind me, trailing like that, until he got close
              on my bumper. And once he got close on my bumper . . . and I looked
              in my rear-view mirror, I noticed him. . . . I mean, I would not “not”
              notice someone that I’ve been knowing for over twelve or thirteen
              years.

¶8.    Regardless of any inconsistencies as to when Hampton identified Brown as the

shooter, Hampton testified that he had known Brown for several years, and he was “a

hundred percent positive it was [Brown]” who was driving the car. Hampton also said that

he gave a statement to police later that evening and identified Brown as the person who shot

at him. Police interviewed Brown, and a GSR test was conducted of Brown’s hands.

Particles indicative of GSR were found on Brown’s hands. Shell casings and photos of

Hampton’s vehicle were admitted into evidence, showing glass from the back windshield all

over the back seat of the car and a hole in his front windshield. Therefore, we find the

evidence was sufficient to support the verdict.

¶9.    “A challenge to the weight of the evidence is separate and distinct from a challenge

to the legal sufficiency of the evidence,” in that it seeks a new trial. Bradford v. State, 102

So. 3d 312, 316 (¶16) (Miss. Ct. App. 2012) (quoting Thomas v. State, 48 So. 3d 460, 469

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(¶20) (Miss. 2010)). A verdict will not be disturbed on appeal “unless the verdict is so

contrary to the overwhelming weight of the evidence that to allow it to stand would sanction

an unconscionable injustice.” Id. Evidence is viewed “in the light most favorable to the

verdict.” Id.

¶10.   As already discussed, Hampton unequivocally identified Brown as the driver of the

vehicle that was following him and from which the shots originated. Suggs, the forensic

scientist, testified that he found particles indicative of GSR on the samples taken from

Brown’s hands. Admittedly, Brown’s alibi witness, Thomas, testified that Brown was not

in Clarksdale at the time of the shooting but was driving back from Tupelo with her. It is the

jury’s responsibility, however, to weigh and consider conflicting evidence, evaluate the

witnesses’ credibility, and determine whose testimony should be believed. Conner v. State,

45 So. 3d 300, 304 (¶16) (Miss. Ct. App. 2010) (citing Ford v. State, 737 So. 2d 424, 425

(¶8) (Miss. Ct. App. 1999)). The jury evidently did not find Thomas’s testimony credible.

Viewing the evidence in the light most favorable to the verdict, we find the weight of the

evidence supported the jury’s finding that Brown was guilty of attempted aggravated assault.

¶11.   Accordingly, the circuit court’s denial of Brown’s posttrial motion was not in error,

and we affirm the judgment.

¶12.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.



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