 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
[T] Kraft v. State5/12/1998
able double that Kraft was guilty.
When the legal sufficiency of the evidence is challenged we will not retry the facts but must take the view of the evidence most favorable to the State and must assume that the fact-finder believed the State's witnesses and disbelieved any contradictory evidence. McClain , 625 So. 2d at 778; Griffin v. State , 607 So. 2d 1197, 1201 (Miss. 1992). On review, we accept as true all evidence favorable to the State, and the State is given "the benefit of all favorable inferences that may reasonably be drawn from the evidence." Griffin , 607 So. 2d at 1201 (citations omitted). We will reverse such a ruling only where "reasonable and fairminded jurors could only find the accused not guilty." McClain , 625 So. 2d at 778 (citing Wetz , 503 So. 2d 803, 808 (Miss. 1987); Harveston v. State , 493 So. 2d 365, 370 (Miss. 1986); Fisher v. State , 481 So. 2d 203, 212 (Miss. 1985)).
There was more than sufficient evidence to find Kraft guilty beyond a reasonable doubt. At trial Kemp positively and unequivocally identified Kraft as the person who sold him crack cocaine. At the time of the buy Kemp described the seller as 5'11", about 190 pounds, brown skin, with a moustache, wearing a white tee shirt and grey pants, and anywhere from thirty-five to forty years of age. At trial Kraft described himself as 6'0", between 190 and 198 pounds, dark skin, with a moustache, and thirty-nine years old. Based on the description given by Kemp, Sellers was able to go to Cola Street and positively identify Kraft. When Sellers identified Kraft, he was still on Cola Street where the purchase of the crack cocaine took place. There was ample and sufficient evidence to support a guilty verdict.
The trial court also denied Kraft's motion for a new trial. A motion for a new trial tests the weight of the evidence rather than its sufficiency. Butler v. State , 544 So. 2d 816, 819 (Miss. 1989). The Mississippi Supreme Court has stated:
As to a motion for a new trial, the trial Judge should set aside the jury's verdict only when, in the exercise of his sound discretion, he is convinced that the verdict is contrary to the substantial weight of the evidence; this Court will not reverse unless convinced the verdict is against the substantial weight of the evidence.
Id. (quoting Russell v. State , 506 So. 2d 974, 977 (Miss. 1987)).
The lower court has the discretionary authority to set aside the jury's verdict and order a new trial only where the court is "convinced that the verdict is so contrary to the weight of the evidence that to allow it to stand would be to sanction an unconscionable inJustice." Roberts v. State , 582 So. 2d 423, 424 (Miss. 1991) (citations omitted). Based on the record before us, suffice it to say that the evidence was sufficient to allow the case to go to the jury, and the jury's verdict was not against the overwhelming weight of the evidence. These assignments of error are without merit.
V.
IT WAS ERROR FOR THE COURT TO GRANT ITS ORDER AMENDING THE INDICTMENT IN THIS CASE TO CHARGE KRAFT AS A SUBSEQUENT OFFENDER.
§ Kraft was initially indicted only as a habitual offender under Miss. Code Ann. 99-19-81 (Rev. 1994). The trial court allowed the indictment to be amended to included that fact that Kraft had also previously been convicted of a drug charge thereby exposing him to double the penalty as § allowed under Miss. Code Ann. 41-29-147 (Rev. 1993). Kraft now charges the trial court was without authority to do this since the amendment in effect changed the substance of the indictment as opposed to the form.
Uniform Circuit and County Court Rule No. 7.09 reads as follows:<
Page 1 2 3 4 5 Mississippi DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|