      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2013-KA-01747-COA

SHERIDAN TORRANCE DAVIS A/K/A                        APPELLANT
SHERIDAN DAVIS

v.

STATE OF MISSISSIPPI                                  APPELLEE


DATE OF JUDGMENT:              09/27/2013
TRIAL JUDGE:                   HON. LISA P. DODSON
COURT FROM WHICH APPEALED:     HARRISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:       OFFICE OF STATE PUBLIC DEFENDER
                               BY: GEORGE T. HOLMES
                                   BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY:             JOEL SMITH
NATURE OF THE CASE:            CRIMINAL - FELONY
TRIAL COURT DISPOSITION:       CONVICTED OF COUNT I, MURDER, AND
                               SENTENCED TO LIFE; COUNT II,
                               POSSESSION OF A CONTROLLED
                               SUBSTANCE, AND SENTENCED TO
                               SIXTEEN YEARS; AND COUNT III,
                               POSSESSION OF A FIREARM BY A
                               CONVICTED FELON, AND SENTENCED
                               TO TEN YEARS, ALL AS A HABITUAL
                               OFFENDER, WITH THE SENTENCES TO
                               RUN CONCURRENTLY IN THE CUSTODY
                               OF THE MISSISSIPPI DEPARTMENT OF
                               CORRECTIONS WITHOUT ELIGIBILITY
                               FOR PAROLE
DISPOSITION:                   AFFIRMED: 02/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

     GRIFFIS, P.J., FOR THE COURT:
¶1.    Sheridan Torrance Davis was convicted of murder, possession of a controlled

substance, and possession of a firearm by a convicted felon under Mississippi Code

Annotated sections 97-3-19(1)(a), 49-29-139(c)(1), and 97-37-5, respectively. In this appeal,

Davis argues that: (1) the evidence was insufficient to support a guilty verdict, as the State

failed to meet its burden in proving Davis did not act in self-defense; (2) the verdicts on

counts I and III are against the overwhelming weight of the evidence; and (3) the trial court

inappropriately admitted hearsay testimony from the victim as dying declarations or excited

utterances under Mississippi Rules of Evidence 804(b)(2) or 803(2), respectively. We find

no error and affirm.

                        FACTS AND PROCEDURAL HISTORY

¶2.    On the night of November 2, 2011, Davis encountered his acquaintance, Marcaris

Lowe, at the Island View Casino in Gulfport. Lowe asked Davis for drugs, and Davis

complied. After the drug deal, the two men returned to gambling for an unknown period of

time. Davis stated he lost approximately $700 or $800, after which he decided to leave the

casino and go to a friend’s apartment to sleep. Lowe accompanied Davis to the apartment,

where an incident occurred during which Lowe sustained four gunshot wounds.

¶3.    According to Davis’s version of events, Davis testified he slept on the couch until he

felt Lowe feeling around in his pockets in a search for drugs. Davis and Lowe engaged in

a fight when Lowe allegedly pulled out a gun. Davis testified he successfully took the gun

from Lowe and claimed he shot Lowe in self-defense.

¶4.    The State offered a different story and put on evidence to suggest Davis deliberately



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shot Lowe. Further, the State contended Davis could not have acted in self-defense in light

of the evidence, especially considering the fact that Lowe sustained four gunshot wounds in

the back, and the crime scene contained no signs of a struggle.

¶5.    Though the parties disagree about what led to the shooting, the events after the fact

were not disputed. Davis fled the apartment after shooting Lowe, taking the gun with him.

Davis called his friend, Clifton King, to pick him up a few blocks away. Shortly after King

arrived, the police stopped the vehicle, and Davis fled on foot. Several officers and K-9 units

then tracked Davis for several minutes.

¶6.    During the pursuit, officers found two brown shoes, later identified as Davis’s, and

a firearm near the home where officers eventually apprehended Davis. When officers

conducted a search incident to the arrest, they found a small bag of a white substance, later

identified as cocaine, in his pocket. The police officers took Davis into custody.

¶7.    After Davis fled the scene, Lowe managed to crawl to the front balcony of the

apartment and yell for help. A neighbor called the police and attempted to help Lowe.

During both the 911 call and after officers arrived, Lowe named Davis as his shooter.

Paramedics then transported Lowe to the hospital where he underwent emergency surgery

and remained in the ICU for several days. On November 27, 2011, approximately twenty-

five days after the shooting, Lowe suffered a pulmonary embolism, and died as a result. The

State subsequently charged Davis with murder, in addition to the possession charges.

¶8.    Prior to trial, Davis filed a motion in limine that sought to exclude the statements

made by Lowe naming Davis as the shooter. After a hearing on the motion, the trial court

denied the motion, and determined the statements were admissible as exceptions to the


                                              3
hearsay rule, as either dying declarations under Rule 804(b)(2) or excited utterances under

Rule 803(2).

¶9.    During the trial, the State put on evidence that Davis committed deliberate-design

murder by intentionally shooting Lowe in the back, which led to the pulmonary embolism

that ultimately killed Lowe. The State also submitted that Davis possessed cocaine and the

firearm used to shoot Lowe. Davis countered the State’s evidence by arguing that he shot

Lowe in self-defense, and possessed the gun out of the necessity of his act of self-defense.

Davis, however, admitted his possession of cocaine.

¶10.   The jury found Davis guilty on all three counts. The trial court then sentenced Davis

to life imprisonment without the possibility of parole on the murder charge, sixteen years on

the possession-of-a-controlled-substance charge, and ten years on the possession-of-a-

firearm-by-a-felon charge. Davis filed a motion for a new trial or, in the alternative, a

judgment notwithstanding the verdict. The motion was denied. It is from this judgment that

Davis now appeals.

                                         ANALYSIS

       I.      Whether the evidence is sufficient to support the jury verdict in light of
               Davis’s claim of self-defense.

¶11.   Davis argues that there was insufficient evidence to sustain the jury’s verdict of guilty.

Specifically, Davis contends the State failed to prove that Davis did not act in self-defense,

and the jury could not have found Davis committed every element of deliberate-design

murder required for conviction.

¶12.   To determine the sufficiency of the evidence, the central issue is “whether the



                                               4
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; and

where the evidence fails to meet this test it is insufficient to support a conviction.’” Conner

v. State, 138 So. 3d 158, 162 (¶8) (Miss. Ct. App. 2013) (quoting Bush v. State, 895 So. 2d

836, 843 (¶16) (Miss. 2005)). “When reviewing the sufficiency of the evidence, this Court

must ask 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.” Miles v. State, 956 So. 2d 349, 350 (¶6) (Miss. Ct. App. 2007) (citation

omitted).

¶13.   The jury convicted Davis of committing deliberate-design murder under Mississippi

Code Annotated section 97-3-19(1)(a) (Rev. 2014), which states in relevant part: “(1) The

killing of a human being without the authority of law by any means or in any manner shall

be murder in the following cases: (a) When done with deliberate design to effect the death

of the person killed, or of any human being[.]”

¶14.   Davis argued at trial, and on appeal, that he acted in self-defense, and that the

insufficient evidence could not show he committed deliberate-design murder. The law did

not require Davis “to prove he acted in self-defense, and, if a reasonable doubt of his guilt

arises from the evidence, he must be acquitted.” Ambrose v. State, 133 So. 3d 786, 791 (¶17)

(Miss. 2013) (quoting Heidel v. State, 587 So. 2d 835, 843 (Miss. 1991)). Therefore, the

State bore the burden in showing Davis committed the crime and acted in a manner

inconsistent with self-defense.

¶15.   This Court has held:


                                              5
       [T]he killing of a human being is justifiable “when committed in the lawful
       defense of one's own person or any other human being, where there shall be
       reasonable ground to apprehend a design to commit a felony or to do some
       great personal injury, and there shall be imminent danger of such design being
       accomplished.”

Copple v State, 117 So. 3d 651, 655 (¶8) (Miss. Ct. App. 2013) (quoting Miss. Code Ann.

§ 97-3-15(1)(f) (Rev. 2014)). “A successful self-defense argument requires that the jury

believe that it was objectively reasonable for the defendant to believe he was in danger of

imminent death or serious bodily harm.” Wilder v. State, 118 So. 3d 628, 631 (¶9) (Miss. Ct.

App. 2012) (quoting Livingston v. State, 943 So. 2d 66, 71 (¶13) (Miss. Ct. App. 2006)).

“The question of whether the defendant acted in self-defense is a question for the jury to

resolve.” Id. (citing Dubose v. State, 919 So. 2d 5, 7 (¶11) (Miss. 2005)).

¶16.   After viewing the evidence in a light most favorable to the State, sufficient evidence

exists to uphold Davis’s conviction. Davis admitted to shooting Lowe, but argued he did so

in self-defense during the course of a physical altercation. Though Lowe possessed the

physical upperhand over Davis, the State put on evidence that placed reasonable doubt

regarding the self-defense claim. The apartment where Davis shot Lowe showed no signs

of a struggle or any type of altercation other than the shooting. Davis and Lowe had no

injuries indicating a physical struggle. Notably, Davis shot Lowe four times, all of which

entered through Lowe’s back.

¶17.   The jury determined Davis committed each element of the crime of deliberate-design

murder beyond a reasonable doubt, and implicitly discredited Davis’s argument of self-

defense. Because the State met its burden of disproving self-defense, and the jury could have

reasonably concluded Davis committed every element of deliberate-design murder, this Court


                                             6
finds the evidence sufficient to support Davis’s guilty verdict. Thus, this issue has no merit.

       II.    Whether the jury verdicts on counts I and III are against the
              overwhelming weight of the evidence.

¶18.   Davis argues the overwhelming weight of the evidence should overcome the guilty

verdicts on counts I and III. Davis maintains the evidence demonstrated he acted in self-

defense and out of necessity, which points in favor of his acquittal. Therefore, according to

Davis, upholding his conviction would contradict the weight of the evidence.

¶19.   “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.” Bush, 895 So. 2d at 844 (¶18). This Court should grant a new

trial “only in exceptional cases in which the evidence preponderates heavily against the

verdict.” Id. In considering the case, “the evidence should be weighed in the light most

favorable to the verdict.” Id.

              A.     The Verdict in Count I

¶20.   Once again, the State bore the burden in showing Davis did not act with necessary

self-defense on count I. Heidel, 587 So. 2d at 843. Davis reiterates that the State failed to

disprove his self-defense claim. However, as previously discussed, the State met its burden,

and disputed any evidence Davis acted in self-defense. The jury agreed with the State when

it issued a guilty verdict. The question of a self-defense claim falls under the purview of the

jury as fact-finders. Jones v. State, 39 So. 3d 860, 865 (¶28) (Miss. 2010) (citation omitted).

Thus, a jury’s decision regarding the weight of the evidence will stand unless allowing the



                                              7
jury’s finding “ to stand would sanction an unconscionable injustice.” Long v. State, 52 So.

3d 1188, 1192 (¶11) (Miss. 2011).

¶21.   The evidence against Davis included his admission to shooting Lowe, the gunshots

striking Lowe from behind, the evidence conveying a scene without a struggle, and the

statements from Lowe naming Davis as the shooter, which all weighed against Davis. Thus,

looking at the evidence in a light most favorable to the verdict, this Court finds the guilty

verdict does not contradict the weight of the evidence.

              B.     The Verdict in Count III

¶22.   Additionally, Davis argues the defense of necessity on the possession-of-a-firearm

charge weighed against his conviction on count III. Davis asserts that he only possessed the

firearm he used to shoot Lowe out of necessity. To show necessity, “a defendant must prove

three essential elements: (1) the act charged was done to prevent a significant evil; (2) there

[. . .] was no adequate alternative; and (3) the harm caused was not disproportionate to the

harm avoided.” Stodghill v. State, 892 So. 2d 236, 238 (¶8) (Miss. 2005). However, unlike

the burden of self-defense, the burden of proving the affirmative defense of necessity falls

on the defendant. Id. at 239 (¶9) (citation omitted).

¶23.   Davis contends his actions of self-defense led to the necessary possession of the

firearm when he struggled with Lowe, disarmed him, and then shot him in order to protect

himself. To successfully prove the defense of necessity, Davis must have shown his actions

comported with the requirements of necessity. Though Davis alleges he shot Lowe in order

to stop Lowe from shooting him, Davis did not meet the required elements of necessity

regarding the shooting, and failed to explain why he kept the firearm when he fled the scene.


                                              8
Like the self-defense claim, the question of whether actions were out of necessity remains

a question for the jury to resolve. The jury found Davis’s actions did not constitute necessity,

and found Davis guilty. Because the jury found Davis acted without necessity, and the

verdict does not sanction an unconscionable injustice, the verdict on count III stands.

¶24.    When we consider the evidence presented in the light most favorable to the verdict,

we cannot conclude that the verdict is contrary to the overwhelming weight of the evidence.

Accordingly, we find no merit to this issue.

       III.   Whether the trial court erred in admitting the victim’s statements as
              either dying declarations under Rule 804(b)(2) or excited utterances
              under Rule 803(2).

¶25.   Davis contends the trial court erred when it admitted Lowe’s statements naming Davis

as the shooter into evidence. While Lowe’s statements constituted hearsay, the trial court

determined the statements met the hearsay exception of a dying declaration or, in the

alternative, an excited utterance. Davis disputes this admission, arguing that Lowe neither

believed his death was imminent for a dying declaration nor were his responses spontaneous

for an excited utterance.

¶26.   “This Court’s standard of review regarding the admissibility of testimonial evidence

is [. . .] abuse of discretion.” Trotter v. State, 9 So. 3d 402, 407 (¶9) (Miss. Ct. App. 2008)

(citing Harris v. State, 861 So. 2d 1003, 1018 (¶41) (Miss. 2003)). “We leave such

admissions to the sound discretion of the trial judge, and any error warrants reversal only

when the abuse of discretion prejudices the accused.” Id.

¶27.   Ordinarily, hearsay testimony is not admissible. M.R.E. 802. However, a trial court

may admit a hearsay statement if those statements meet the hearsay exceptions promulgated


                                               9
by law. Id. Dying declarations and excited utterances both allow for the admittance of

hearsay evidence as exceptions to the general bar on hearsay evidence. M.R.E. 804(b)(2)

(dying declarations); M.R.E. 803(2) (excited utterance).

¶28.   In order for a statement to qualify as a dying declaration, the Mississippi Supreme

Court has held the following criteria must be met: “(1) [t]he wounded person is in extremis

and dies after making the statement; (2) [t]he person realizes that he is mortally wounded,

and (3) [h]e has no hope of recovery.” Watts v. State, 492 So. 2d 1281, 1287 (Miss. 1986)

(citations omitted). “The test for admission under Rule 804(b)(2) is a determination of

whether the decedent declarant believed that death was imminent.” Berry v. State, 611 So.

2d 924, 926-27 (Miss. 1992) (citing Ellis v. State, 558 So. 2d 826, 829-30 (Miss. 1990)).

Thus, Lowe must have made the statements under a belief of his impending death.

¶29.   Lowe made two separate statements that the trial court admitted into evidence. First,

during a 911 call to report the shooting, Lowe told the 911 operator that a man named

“Shelly,” later identified as Davis, shot him. Second, when police arrived on scene,

Detective Samuel Jewel1 asked Lowe questions regarding the incident. Detective Jewel

asked Officer Walter Brightman, another first responder, if he could record the conversation

on his portable recording device, which transmitted audio from a microphone on Officer

Brightman to a recording device in his patrol car. During this conversation with Detective

Jewel, Lowe named Davis as his shooter.

¶30.   The trial court found these statements fell under the dying-declaration exception to



       1
        The record contains various spellings of Detective Jewel’s name. However, we
follow the spelling from the trial transcript.

                                            10
the prohibition against hearsay. Lowe asked for medical attention, clearly related he could

not feel his legs, had labored breathing, and lost a large quantity of blood. Under these

circumstances, the trial court found Lowe suffered in extremis, realized the severity of the

wounds, and had no hope of recovery. Additionally, Lowe died, rendering him unavailable

to testify. All of this evidence supported the conclusion that the statements were dying

declarations.

¶31.   Furthermore, the trial court analogized this case to the case of Trotter. In Trotter, the

victim told the responding police officer he needed help and felt cold. Trotter, 9 So. 3d at

407 (¶11). The victim also told the officer who shot him, but died thirteen days later. Id.

The officer then testified at trial regarding the statement naming Trotter as the shooter. Id.

Trotter argued the victim lacked the requisite belief of impending death to allow for a hearsay

objection. Id. The trial court admitted the statement, and determined the circumstances

surrounding the victim’s statement indicated he could have realized his impending death.

Id. Thus, the trial court found the statement constituted a dying declaration, a decision this

Court upheld. Id.

¶32.   Based on the circumstances surrounding Lowe’s statements and the Trotter case, we

find the trial court did not err in admitting the statements as dying declarations. Because we

find the statements were properly admitted under the exception to the hearsay rule in Rule

804(b)(2), we decline to address whether the statements fell under the excited-utterance

exception as well.

¶33.   For the foregoing reasons, we find the trial court did not abuse its discretion in finding

sufficient evidence to support Davis’s conviction, and in admitting Lowe’s statements into


                                              11
evidence. Additionally, we find the weight of the evidence did not contradict the guilty

verdicts. Therefore, we affirm Davis’s conviction.

¶34. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY OF
CONVICTION OF COUNT I, MURDER, AND SENTENCE OF LIFE; COUNT II,
POSSESSION OF A CONTROLLED SUBSTANCE, AND SENTENCE OF SIXTEEN
YEARS; AND COUNT III, POSSESSION OF A FIREARM BY A CONVICTED
FELON, AND SENTENCE OF TEN YEARS, ALL AS A HABITUAL OFFENDER,
WITH THE SENTENCES TO RUN CONCURRENTLY IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR
PAROLE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
HARRISON COUNTY.

   LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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