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IN THE COURT OF APPEALS 11/12/96 OF THE STATE OF MISSISSIPPI

NO. 94-KA-00061 COA

CLINTON BURTON, JR. 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. GEORGE C. CARLSON JR. COURT FROM WHICH APPEALED: PANOLA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DAVID CLAY VANDERBURG ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEWITT T. ALLRED III DISTRICT ATTORNEY: ROBERT L. WILLIAMS

NATURE OF THE CASE: CRIMINAL: MANSLAUGHTER TRIAL COURT DISPOSITION: MANSLAUGHTER: SENTENCED TO 20 YRS IN THE MDOC WITH LAST 5 YRS SUSPENDED; PLACED UPON SUPERVISED PROBATION FOR 5 YRS; DEFENDANT SHALL PAY AND ALL COSTS OF COURT

BEFORE BRIDGES, P.J., COLEMAN, DIAZ, AND PAYNE, JJ. PAYNE, J., FOR THE COURT:

Clinton Burton, Jr. was indicted for murder and convicted of manslaughter. The court sentenced Burton to serve twenty (20) years in the custody of the Mississippi Department of Corrections with the last five (5) years suspended plus five (5) years of supervised probation. The trial court denied Burton's motion for JNOV, or in the alternative, a new trial. We find that Burton's issues on appeal have no merit and therefore affirm.

FACTS On the night of January 6, 1992, Angela Fonville was shot and killed in the living room of her house trailer by her former boyfriend, Clinton Burton, Jr., who was "playing" with a pistol. Persons present in the house trailer at the time of the shooting included Angela's fourteen-year-old daughter, Marshanda; and Angela's four-year-old son, Melvin; Angela's brother, Timothy; his girlfriend Rosemary Milam, and her four-year-old son, Kevin; and Burton's friends, Maurice McKinney and Ricky Wright. Marshanda, Timothy, and Rosemary testified that Burton was playing with the gun when it fired striking Angela Fonville in the shoulder and neck. Timothy and Rosemary each testified that they had told Burton to put the gun away before someone got hurt. Ricky and Maurice testified for the defense that Burton was handling the gun at the time it fired. Both Ricky and Maurice claimed that the shooting was an accident although they testified that the gun would not fire without being cocked. Timothy and Rosemary testified that the shooting "could have been" an accident. Burton based his entire defense on the fact that the shooting was an accident. The jury was instructed on the elements of murder, manslaughter, and excusable homicide and returned a verdict of guilty of manslaughter. Burton's motions for directed verdict, mistrial, JNOV, and new trial were all denied by the trial court. The Court sentenced Burton to serve twenty (20) years in the custody of the Mississippi Department of Corrections with the last five (5) years suspended and five (5) years of supervised probation. Burton argues on appeal that the jury could not have found him guilty of anything other than excusable homicide and requests that the verdict be reversed and remanded or reversed and rendered.

ANALYSIS I. DID THE TRIAL COURT ERR IN DENYING BURTON'S MOTIONS FOR DIRECTED VERDICT AND JNOV/NEW TRIAL?

Burton argues that the trial court erred in failing to grant his motions for a directed verdict and JNOV/new trial. Burton contends that the evidence justified a finding of accidental homicide and did not justify a conviction for manslaughter. Burton based his argument on the fact that all three defense witnesses testified that the shooting was an accident, and the State's witnesses testified that the shooting "could have been" an accident. Burton argues that he is entitled to a new trial or reversal on the grounds that no reasonable juror could have found him guilty of manslaughter. The State argues that it is uncontroverted that Burton shot and killed Angela Fonville with a pistol. The State contends that the evidence was sufficient to support a finding of either murder or manslaughter, and the jury was properly instructed on these crimes. The State indicates that the trial judge was also of the opinion that the jury could have found the killing to be accidental and instructed the jury accordingly. The State argues further that the instruction based on the theory of accident could have been refused without error, and, in fact, Burton was given an accident instruction cast in terms unnecessarily favorable to his position. The State contends that Burton should count himself fortunate that the jury convicted him only of manslaughter and not murder. In the present case, Burton was indicted for murder under section 97-3-19(1)(b) of the Mississippi Code. The trial judge, after hearing the evidence, was of the opinion that jury issues had been made as to whether the killing was murder, manslaughter, or excusable accident, and the trial judge instructed the jury as to each of these alternatives. Burton challenges the legal sufficiency of the evidence against him contending that the shooting was clearly accidental, and that the trial court should have granted his motion for directed verdict or JNOV. A challenge to the sufficiency of the evidence requires consideration of the evidence before the court when made, so that this Court must review the ruling on the last occasion the challenge was made at the trial level. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). This occurred when the trial court overruled Burton's motion for JNOV. The Mississippi Supreme Court has stated, in reviewing an overruled motion for JNOV, that the standard of review shall be: [T]he sufficiency of the evidence as a matter of law is viewed and tested in a light most favorable to the State. The credible evidence consistent with [Burton's] guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence. Matters regarding the weight and credibility of the evidence are to be resolved by the jury. We are authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty.

Id. (citations omitted). We find that the evidence was legally sufficient to warrant jury consideration of murder, manslaughter, and excusable homicide. In the present case, the evidence indicated that Burton was aware that the gun was a dangerous weapon, and that it was loaded. Timothy Fonville and Rosemary Milam each testified that Burton was playing with the gun by pointing it toward the wall between the living room and the bedroom and at other people, and that he had been told more than once to put the gun away before someone got hurt. Ms. Milam and defense witnesses, Ricky Wright and Maurice McKinney, testified that they saw a bullet fall out of the gun's clip, saw Burton retrieve the bullet from under the couch, place the bullet into the gun clip, and insert the clip back into the gun. Marshanda Fonville testified that Burton told her and the younger children, moments prior to the shooting, to get out of the bedroom so that they would not get hit when he shot the pistol. The evidence consistent with the guilty verdict must be accepted as true. Id. Considering the elements of the crime along with all the evidence in the light most favorable to the verdict, the evidence is not such that reasonable jurors could only find Burton not guilty of manslaughter or murder on the grounds that the shooting was an excusable homicide. Here the evidence was legally sufficient to support the conclusion, both directly and by inference, that Burton knew the gun was loaded and knew he should not be playing with it. Evidence showed that Burton was holding the gun when it fired, struck, and killed Angela Fonville. Mississippi law clearly provides that a homicide shall be excusable "when committed by accident and misfortune in doing any lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent." Miss. Code Ann.

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