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IN THE COURT OF APPEALS 10/1/96 OF THE STATE OF MISSISSIPPI
NO. 93-KA-00195 COA

RICKY ALFORD 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. BILL JONES COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GEORGE S. SHADDOCK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN DISTRICT ATTORNEY: DALE HARKEY NATURE OF THE CASE: NARCOTICS: DISTRIBUTION OF A SCHEDULED II CONTROLLED SUBSTANCE TRIAL COURT DISPOSITION: CONVICTED AND SENTENCED TO SERVE 10 YEARS IN THE CUSTODY OF THE MDOC

BEFORE BRIDGES, P.J., KING, AND McMILLIN, JJ. KING, J., FOR THE COURT: A jury convicted Alford of distributing cocaine, and the Circuit Court of Jackson County sentenced him to serve ten years in the custody of the Mississippi Department of Corrections. Aggrieved, Alford appeals and argues for the reversal of the conviction and sentence. Because his appeal lacks merit, we affirm the conviction and sentence. FACTS

In April 1991, agents of the Mississippi Bureau of Narcotics were investigating the distribution of controlled substances in the city of Moss Point. The agents suspected that cocaine was being distributed in the vicinity of the Busy Bee Cafe; therefore, the agents employed a confidential informant (CI) and arranged an undercover buy. On April 3, 1993, the CI and Agent Frazial Williams went to the Busy Bee Cafe. The CI encountered Alford in the parking lot of the cafe and directed him to William's vehicle. When Alford asked Williams what he desired to purchase, Williams told Alford that he desired to purchase "two bills" of cocaine, and Alford obtained a large rock from a plastic bag and handed it to Williams. In exchange for the rock, Williams gave Alford two hundred dollars in State funds. After the transaction, Williams met with Sergeant Shepard and Agent Jackson at a pre-arranged location and tendered the rock which he had purchased. Two days later, the rock was transported to the State Crime Lab for analysis. The crime lab report indicated that the rock contained cocaine. At trial, Williams positively identified Alford as the individual who sold him the rock. ANALYSIS OF THE ISSUES AND DISCUSSION OF LAW

I. DID THE TRIAL COURT ERR IN GRANTING THE PROSECUTION'S MOTION TO AMEND THE INDICTMENT?

The indictment originally alleged that the transaction between Agent Williams and Alford occurred on April 3, 1992. On the morning of the trial, the State moved for leave to amend the indictment to reflect that the transaction occurred on April 3, 1991, and the court granted the motion. Alford contends that he was prejudiced by the court's action because he had predicated his defense on establishing his whereabouts on April 3, 1992, not April 3, 1991. On July 16, 1992, defense counsel received discovery from the State, which indicated that the offense occurred on April 3, 1991. The Defendant was apprised of the date of the alleged offense seven

months in advance of trial. Therefore, we find that the Defendant was neither surprised nor prejudiced by the amendment. This assignment of error lacks merit. II. DID THE TRIAL COURT ERR IN DENYING DEFENDANT'S MOTION FOR A CONTINUANCE?

After the court had granted the State's motion to amend the indictment to correct the date of the offense, defense counsel moved for a continuance. Defense counsel argued that the continuance was necessary so that he could discover witnesses with knowledge of Alford's whereabouts on the date alleged by the amended indictment. The court refused to grant the continuance. Not surprisingly, Alford claims that the court denied him the opportunity to adequately prepare his alibi defense. The decision to grant or deny a continuance is left to the sound discretion of the court. Lambert v. State, 654 So. 2d 17, 21 (Miss. 1995). The denial of a continuance is not grounds for reversal unless we are satisfied that an injustice has resulted. Miss. Code Ann.

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