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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 96-KA-00513 COA CLARENCE GOLDMAN A/K/A CLARENCE HEWLETT GOLDMAN v. STATE OF MISSISSIPPI APPELLANT

APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: DISTRICT ATTORNEY: NATURE OF THE CASE: TRIAL COURT DISPOSITION: 04/19/96 HON. CLARENCE E. MORGAN III MONTGOMERY COUNTY CIRCUIT COURT H. LEE BAILEY, JR. OFFICE OF THE ATTORNEY GENERAL BY: DEWITT T. ALLRED III DOUG EVANS CRIMINAL - FELONY CT I FELONY CRIME OF DESTRUCTION OF CHURCH PROPERTY: CT II FELONY CRIME OF ARSON, FIRST DEGREE: CT I 10 YRS WITH 4 YRS SUSPENDED FOR 5 YRS WITH 6 YRS TO SERVE; CT II 5 YRS TO RUN CONCURRENT WITH CT I AFFIRMED - 12/2/97 12/9/97 2/2/98 4/8/98

DISPOSITION: MOTION FOR REHEARING FILED: CERTIORARI FILED: MANDATE ISSUED:

BEFORE McMILLIN, P.J., KING, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: Clarence Goldman was convicted of count I of destruction of church property and count II of firstdegree arson of a dwelling house. The trial court sentenced Goldman in count I to serve a term of ten years with four years suspended for five years and six years to serve and payment of one-half of all

costs related to this charge and payment of restitution in the amount $1,422.82. As to count II, the trial court sentenced Goldman to serve a term of five years and to pay one-half of all costs related to this charge and to pay restitution in the amount of $2,500. The sentence in count II is to run concurrently to the sentence in count I. If Goldman has paid all restitution owed by him prior to his release from the Mississippi Department of Corrections, he shall be placed on probation for three years. If Goldman has not paid all restitution owed by him prior to his release from the Mississippi Department of Corrections, he shall be placed on probation for five years. All restitution is to be paid in full within three years of Goldman's release from prison. Goldman's motion for JNOV or, in the alternative, a new trial was denied. Finding no error on the part of the trial court, we affirm on all issues. FACTS In the early morning hours of August 1, 1995, Clarence Goldman, Billy Daughtry, and James Busby, after an evening of drinking, decided to go riding in Daughtry's truck. James Busby testified that they were just driving around drinking and "itching to get into something." Busby testified that Billy Daughtry (Busby's uncle) wanted to go to the vacant house owned by Cecil Taylor and get something out of it. Apparently, several months before, Busby's grandparents had been living in the house but left suddenly leaving some things in the house. Busby stated that before going to the house they stopped at St. John's Church and Busby siphoned some gasoline from the truck into a jug. Shortly thereafter, Busby, Daughtry, and Goldman went to the vacant house. Busby indicated that he waited in the truck while Goldman and Daughtry went up to the house. Busby stated that he could not see what was happening at the house. Busby testified that Goldman and Daughtry returned to the truck a few minutes later, and they drove to the church where they broke out some windows, tore up the church sign, and Busby indicated that Daughtry backed the truck into the front column of the church. Goldman testified in his own behalf and did not deny that he had caused the damage for which he was charged. Goldman testified that he was drunk and could not remember some of the things that happened that night. Goldman testified that he could remember Busby siphoning the gas out of the truck, he could remember going to the house where he got out and relieved himself at the side of the house, and Goldman stated that he remembered Daughtry backing the truck in to the front column of the church. Goldman, however, could not remember what, if any, part he played in the burning of the house or the vandalization of the church. After hearing all of the evidence, the jury returned a verdict of guilty on both charges. We note that James Busby pled guilty prior to Goldman's trial, and Billy Daughtry had not been located at the time of Goldman's trial. Feeling aggrieved, Goldman filed this appeal asserting three issues. ANALYSIS

I. WHETHER THE TRIAL COURT ERRED IN DENYING THE DEMURRER FILED BY GOLDMAN.

Goldman takes issue with the fact that he was tried for two distinct crimes in the same trial. Goldman contends that the crimes of first degree arson and destruction of church property are separate crimes which require different types of proof. Goldman also points to the fact that the structures involved were owned by two different people. Goldman contends that while the acts occurred on the same night, there was no common scheme, transaction, or plan involved with the burning of the dwelling house and the vandalization of the church. Goldman cites to Corley v. State, 584 So. 2d 769, 772 (Miss. 1991), for the proposition that before a defendant is tried for two separate crimes in the same proceeding, "the trial court should pay particular attention to whether the time period between the occurrences is insignificant, whether the evidence proving each count would be admissible to prove each of the other counts, and whether the crimes are interwoven." The State argues that Section 99-7-2(1)(b) of the Mississippi Code (Rev. 1994) authorizes multicount indictments. The pertinent code section provides as follows: (1) Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan. Miss. Code Ann.

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