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IN THE COURT OF APPEALS 12/17/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-00891 COA

ELTON HAROLD HALE 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. ANDREW CLEVELAND BAKER COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MATTHEW M. MOORE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS DISTRICT ATTORNEY: ROBERT L. WILLIAMS NATURE OF THE CASE: EMBEZZLEMENT TRIAL COURT DISPOSITION: CONVICTED OF EMBEZZLEMENT, SENTENCED TO 5 YEARS IN THE MDOC WITH THE LAST 4 YEARS SUSPENDED PENDING DEFENDANT'S FUTURE GOOD BEHAVIOR, AND REQUIRED TO PAY RESTITUTION IN THE AMOUNT OF $4,000.00 AND ALL COURT COSTS

BEFORE FRAISER, C.J., BARBER, AND SOUTHWICK, JJ. FRAISER, C.J., FOR THE COURT:

Elton Harold Hale appeals from a jury verdict of guilty of embezzlement. On appeal, Hale asserts that he could not be found guilty of embezzlement because he was not entrusted with the $6,900.00, but paid for services under a contract. We agree and reverse and render.

FACTS Hale was a self-employed carpenter in DeSoto County, Mississippi for approximately twenty (20) years. In December 1991, Hale entered into a contract with Horace Dunn to construct a driveway and 24' by 24' garage in Southaven, Mississippi. The contract between Dunn and Hale was reduced to writing and called for a total payment of $8,000.00 for the project. In furtherance of the contract, Dunn paid $4,000.00 in advance, with the balance of the contract to be due upon completion. After the slab was poured, Dunn paid Hale an additional $2,900.00 for the concrete foundation. A dispute arose between Dunn and Hale regarding the work expected of Hale under the contract. Dunn demanded that Hale perform additional work beyond that contracted for, but refused to pay Hale any additional compensation. Hale refused to do the work, and Dunn demanded Hale return the funds he had been paid. Hale refused to return the money. Dunn and Hale never resolved their differences. Dunn eventually filed a civil lawsuit against Hale. Two days later, Dunn filed a complaint with the Southaven Police Department which eventually led to the arrest of Hale for false pretenses and ultimately resulted in his conviction for embezzlement under section 97-23-19 of the Mississippi Code. Hale appeals to this Court contending that there was insufficient evidence to sustain a conviction for embezzlement. DISCUSSION Hale preserved his challenge to the sufficiency of the evidence by moving for a directed verdict and J.N.O.V. Regarding the legal sufficiency of the evidence, the standard of review is as follows: [W]e must, with respect to each element of the offense, consider all of the evidence -- not just the evidence which supports the case for the prosecution -- in the light most favorable to the verdict. The credible evidence which is consistent with guilt must be accepted as true. The prosecution must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Matters regarding the weight and credibility to be accorded the evidence are to be resolved by the jury. We may 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.

Wetz v. State, 503 So. 2d 803, 808 (Miss. 1987) (citations omitted).

Section 97-23-19 provides as follows:

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