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Sellers v. State4/11/2000
DATE OF JUDGMENT: 11/04/1997
TRIAL JUDGE: HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED:JACKSON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT 11/04/1997: FELONY SHOPLIFTING THIRD OFFENSE DISPOSITION: AS A HABITUAL OFFENDER SENTENCED TO SERVE A SENTENCE OF 4 YEARS IN CUSTODY OF THE MDOC AS A HABITUAL OFFENDER WITHOUT BENEFIT OF PAROLE OR EARLY RELEASE PURSUANT TO MISS. CODE ANN 99-19-81 (1972). COSTS OF COURT ARE TAXED AGAINST THE DEFENDANT AND THE DEFENDANT IS HEREBY REMANDED TO THE CUSTODY OF THE MDOC.
DISPOSITION: AFFIRMED - 4/11/2000
. Walter Ray Sellers was convicted of the felony of shoplifting, third offense, in the Circuit Court of Jackson County. He has appealed that conviction to this Court and presents two issues upon which he seeks to have that conviction reversed. The issues raised are (a) that the prosecution failed as a matter of law to prove that the items Sellers was accused of taking belonged to the business named in the indictment, and (b) that one of the instructions requested by the prosecution and given by the trial court impermissibly shifted the burden of proof to the defendant to prove his lack of criminal intent. As a third issue on appeal, Sellers argues that he could only be punished for first offense shoplifting because the jury was not permitted to decide the issue of his prior shoplifting convictions. For reasons that follow, we find these issues to be without merit and affirm the conviction and the resulting judgment of sentence.
I.
Facts
. Sellers was observed by a private security guard to be acting suspiciously while walking the aisles of a business in Pascagoula known as Jerry Lee's Grocery. The guard, concerned about Sellers's behavior, began to monitor him on the store's closed circuit television security system and observed Sellers remove an item from a shelf and place it in his pocket. At that point, the guard left the observation room and approached Sellers in the store. Sellers inquired of the guard as to the availability of some product with which the guard was unfamiliar. When the guard asked about the item placed in his pocket, Sellers claimed that he had put it back on the shelf. The guard, in an attempt to verify that fact, asked to frisk Sellers, whereupon Sellers pushed past the guard and attempted to run from the store.
. With the help of another store employee , the guard restrained Sellers and retrieved a baby's pacifier, still bearing a price tag and enclosed in protective plastic coating, from his pocket. The police were summoned and an officer, while frisking Sellers for possible concealed weapons, discovered unusual lumps in his clothing around the waistband of his trousers. He investigated further and discovered a number of other apparently new baby products concealed inside Seller's shirt.
II.
The First Issue: Ownership of the Goods
. Sellers claims that the State's proof that the goods discovered on the person of the defendant were, in fact, the property of Jerry Lee's Grocery was insufficient as a matter of law. He cites a case dealing with the crime of larceny for the proposition that property alleged to have been stolen must be identified beyond a reasonable doubt by the most direct and positive evidence available. Griffin v. State, 279 So. 2d 609, 611 (Miss. 1973).
. The only evidence regarding the identification of the goods allegedly stolen from Jerry Lee's Grocery was that offered by the security guard. The guard was not an employee of the business, but was an employee of a private security firm that provided security servic
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