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IN THE COURT OF APPEALS 04/08/97 OF THE STATE OF MISSISSIPPI
NO. 95-KA-00512 COA

CLARENCE O. BOURNE A/K/A CLARENCE ORLANDO BOURNE APPELLANT v. STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. R. I. PRICHARD III COURT FROM WHICH APPEALED: CIRCUIT COURT OF JEFFERSON DAVIS COUNTY ATTORNEY FOR APPELLANT: TOMIE T. GREEN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT F. LEARY DISTRICT ATTORNEY: MANYA CREEL NATURE OF THE CASE: CRIMINAL: FELONY TRIAL COURT DISPOSITION: CONVICTED FOR SALE OF COCAINE; SENTENCED TO SERVE A TERM OF 25 YRS IN MDOC MANDATE ISSUED: 6/24/97

BEFORE BRIDGES, C.J., HERRING, AND PAYNE, JJ. PAYNE, J., FOR THE COURT: Clarence O. Bourne was convicted for one count of sale of cocaine in violation of Mississippi Code Section 41-29-139(a). Bourne was sentenced to serve a term of twenty-five (25) years in the custody of the Mississippi Department of Corrections. The trial court denied Bourne's motion for JNOV or, in the alternative, a new trial. We find that none of Bourne's issues on appeal has merit and therefore affirm. FACTS On June 9, 1994, Darrel Hilliard, chief deputy of the Copiah County Sheriff's Office, was operating in an undercover capacity for the State in a narcotics investigation in Jefferson Davis County, Mississippi. Hilliard testified that the investigation was targeting a specific area on highway 84 in Jefferson Davis County and that his instructions were to attempt to purchase narcotics in this area. Hilliard, driving an undercover vehicle equipped with a video camera, stated that he went to the targeted area and purchased cocaine from an individual named "Bearcat." Hilliard testified that immediately following the "Bearcat" transaction a vehicle in which the Appellant, Bourne, was riding drove up to his vehicle and that Bourne initiated a conversation with Hilliard. Hilliard testified that Bourne asked him what he needed and then got out of the vehicle and approached Hilliard's vehicle. Hilliard stated that Bourne again asked what he needed and that Hilliard responded with the inquiry, "What can you do for a hundred?" Hilliard testified that Bourne responded that he did not have it but that his boys at the Jeffersonian Hotel had it. Hilliard then testified that he transported Bourne to the hotel and that Bourne directed Hilliard to park in front of room 111. Hilliard stated that Bourne asked how he wanted it, "in rocks or in a slab?" Hilliard stated that Bourne then went into the hotel room but came back without the cocaine and indicated that the guy inside did not want to sell. Hilliard testified that he told Bourne that he would go elsewhere if he could not get the cocaine and that Bourne stated that he would try again. Hilliard indicated that Bourne went back into the hotel room and returned with the cocaine. Hilliard testified that Bourne then handed him the cocaine and that he (Hilliard) gave Bourne one hundred dollars. The transaction was captured on video which was shown to the jury. Bourne testified in his own behalf and alleged that he had been entrapped. Bourne testified that when he saw Hilliard on June 9, 1994, he was looking for a ride to Prentiss, Mississippi. Bourne indicated that he was merely a go-between in the transaction and that he was involved only because he was doing Hilliard a favor in exchange for the ride. Bourne testified that he would not have been involved with the drug buy if Hilliard had not initiated the events which took place. At trial, Bourne requested and was granted an entrapment instruction. Nevertheless, the jury returned a verdict of guilty of sale of cocaine. Feeling aggrieved, Bourne appeals. ANALYSIS I. WHETHER BOURNE IS ENTITLED TO A NEW TRIAL BASED ON A MATERIAL VARIANCE BETWEEN THE INDICTMENT, THE PROOF AT TRIAL,

AND THE ORDER OF CONVICTION. Bourne appeals his conviction on the ground that he was convicted of the possession of cocaine which carries a maximum three (3) year penalty, as opposed to the transfer of cocaine as charged in his indictment. Bourne bases his argument on the fact that his indictment charged him under Mississippi Code Section 49-29-139(a)(1), the sale statute, and that his order of conviction indicates that he was convicted under Mississippi Code Section 49-29-139(c)(1) which is the possession statute. Bourne, in his brief, cites law which states that the trial court cannot modify an indictment so as to change the charge made in the indictment to another crime, except by the action of the grand jury who returned the indictment. Bourne, however, makes no argument as to how this law applies to his case. The State contends that Bourne is procedurally barred from asserting this assignment of error because he failed to declare any meaningful argument on appeal. The State, without waiving this defense, also argues that Bourne's assignment of error is nothing more than an obvious scrivener's error in the order of conviction in that (c) was mistakenly used in the place of (a) in the citation to the pertinent code section. The State points out that the trial court, pursuant to a motion by the State to remand the matter to the trial court for correction, entered a nunc pro tunc order to amend the order of conviction which stated: The order of conviction correctly stated that Clarence Bourne was indicted for sale of a scheduled II controlled substance, but erroneously stated that sale of a controlled substance was a violation of Miss. Code Ann.

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