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Evans v. State6/21/2005
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: REVERSED AND RENDERED CONVICTION AND SENTENCE FOR FELONY SHOPLIFTING; AFFIRMED LESSER-INCLUDED OFFENSE OF SECOND OFFENSE SHOPLIFTING, AND REMANDED FOR RESENTENCING FOR SECOND OFFENSE SHOPLIFTING: 06/21/2005
EN BANC
. A Newton County jury found Yolanda Denise Evans guilty of felony shoplifting. For this crime Evans was sentenced to a term of four and one-half years in the custody of the Mississippi Department of Corrections. Aggrieved, Evans appeals and asserts that the trial court erred in overruling her objection to the admissibility of her prior convictions and that the indictment was defective because it failed to charge her with concealing merchandise.
. We find no merit in either of the issues presented. However, we notice as plain error the State's failure to present sufficient evidence to the jury to support Evans's conviction for felony shoplifting. Therefore, we reverse and render Evans's conviction and sentence for felony shoplifting but find that the evidence was sufficient to convict her of second offense shoplifting. As a result, we remand for sentencing for second offense shoplifting.
FACTS
. William Howell, chief of police for Union, Mississippi, testified that on February 25, 2003, while shopping in the Sunflower Grocery Store in Union, he witnessed Evans pick up several packages of rib eye steaks. Howell testified that Evans then put the meat down on the potato chip rack. Evans then went to another aisle but later came back and picked up the meat from the potato chip rack and went back down the same aisle. Howell followed Evans and witnessed her lift up the back of her jacket and put the packages of rib eye steaks down the back of her pants.
. Howell followed Evans to the front of the store, walked up behind her, and asked her what she was doing. Howell testified that Evans told him that she was buying some snuff and that she showed him a handful of change. At that point, Howell told Evans that he saw her put the meat in her pants and that she was under arrest. He then removed the meat from the back of Evans's pants and handed it to a store employee .
ANALYSIS AND DISCUSSION OF THE ISSUES
(1) Admissibility of Prior Convictions
. The admissibility of evidence rests within the discretion of the trial court, and reversal will be appropriate only when an abuse of discretion resulting in prejudice to the accused occurs. Clemons v. State, 732 So. 2d 883, 887 ( ) (Miss. 1999).
. Evans first argues that the court erred in overruling her objection to the admissibility of her prior convictions. During the cross-examination of Evans, the State asked her if she had been previously convicted of a felony crime. She answered, "yes" and the defense objected. Counsel and the court then retired to chambers for consultations where the following colloquy occurred:
BY THE COURT: Mr. Harris, you object. I will hear from you.
BY MR. HARRIS: Your Honor, we would object to the introduction of evidence by the state regarding prior previous convictions, as the crime for which she was convicted is felony shoplifting, which is completely unrelated circumstances from this crime which she is convicted of. The crime of shoplifting is not a crime of deceit, such as forgery or the other crimes. The rule is such that the State may be able to impeach her credibility as a witness, but rather it is going to - the effect of it, if introduced, is to show conformity with prior bad acts. Because of that, we would ask that the evidence should not be admitted. We would state, further, the Defendant has alre
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