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Evans v. State12/18/2001
DATE OF TRIAL COURT JUDGMENT: 06/15/2000
TRIAL JUDGE: HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED: SCOTT COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: COUNT I, II, III & V-SENTENCED TO SERVE LIFE IMPRISONMENT. SENTENCES ARE TO RUN CONCURRENTLY.
DISPOSITION: AFFIRMED - 12/18/2001
. Jerry Lewis Evans was tried and convicted of four counts of possession of a firearm by a prior convicted felon in the Circuit Court of Scott County, Honorable Marcus D. Gordon presiding. Evans was adjudicated a habitual offender and sentenced to four concurrent life sentences in the custody of the Mississippi Department of Corrections without the possibility of parole. A motion for a judgment notwithstanding the verdict (JNOV) and new trial was filed by Evans and summarily denied. From the denial of that motion, Evans appeals raising the following issues:
1. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL;
2. WHETHER THE TRIAL COURT ERRED IN ADMITTING DEFENDANT'S PRIOR CONVICTIONS;
3. WHETHER THE TRIAL COURT ERRED IN ALLOWING THE STATE TO AMEND THE INDICTMENT; AND
4. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR DIRECTED VERDICT AND INSTRUCTION D-4.
STATEMENT OF THE FACTS
. On July 15, 1999, a search warrant was issued to the Scott County Sheriff's Office enabling them to search a mobile home in the Kalem Trailer Park in Kalem, Mississippi for guns allegedly possessed by Jerry Lewis Evans, a prior convicted felon. The officers searched the mobile home and recovered five guns. The mobile home was titled to Martha Ann Ingram. Evans was Ingram's boyfriend, and according to controverted testimony, lived with Ingram in the mobile home.
. Before the trial commenced, the indictment charging Evans with five counts of possession of a weapon by a prior convicted felon was amended by a motion of the prosecution. Each count of the indictment was altered so that the indictment correctly stated that Evans was convicted of attempted rape in Newton County instead of Scott County and that he was sentenced to ten years in prison as opposed to life. At trial the prosecution offered proof that Evans kept clothes in the closet where the guns were found, that he often fired the guns, and that he stayed at the mobile home over- night on numerous occasions. Evans submitted witnesses, including Ingram, who stated that he did not live with Ingram at the mobile home. Ingram did admit on cross-examination that Evans lived with her and that he had equal access to and dominion over the guns stored in the closet.
. During the course of the trial, the fourth count against Evans was dismissed as the prosecution was unable to produce one of the firearms seized in the search of the mobile home. Based on this evidence, Evans was found guilty on the four remaining counts of possession of firearms by a prior convicted felon submitted to the jury and was sentenced as a habitual felon to serve four life sentences to run concurrently in the custody of the Mississippi Department of Corrections.
STANDARD OF REVIEW AND LEGAL ANALYSIS
1. WHETHER THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL.
. Evans first contends that the trial court erred in denying his motion for a mistrial. Evans' attorney, while cross-examining a prosecution witness, asked whether the witness was present at the mobile home when the police searched the trailer. The witness responded that he was not there and was allowed to explain that he was not present bec
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