Evans v. State
| Docket Number: | 2005-KA-01802-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 05-29-2007 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Armed robbery - Amendment of indictment - Accomplice cautionary instruction - Sufficiency of evidence Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Non Participating Judge(s): ROBERTS, J. Concurs in Result Only: IRVING, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 08-22-2005 Appealed from: Lauderdale County Circuit Court Judge: Larry Eugene Roberts Disposition: CONVICTED OF ARMED ROBBERY AND SENTENCED TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS A HABITUAL OFFENDER District Attorney: Bilbo Mitchell Case Number: 749-04 |
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| Party Name: | Attorney Name: | |||
| Appellant: | WILBUR LEE EVANS A/K/A WILBUR WILLIE LEE EVANS A/K/A WILBUR JONES A/K/A WILBERT JONES, JR. A/K/A GRACE |
CRAIG ANDREW CONWAY |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Armed robbery - Amendment of indictment - Accomplice cautionary instruction - Sufficiency of evidence |
| Summary of the Facts: | Wilbur Evans was convicted of armed robbery and sentenced as a habitual offender to life. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Amendment of indictment Evans argues that the court erred by amending the indictment to charge him as a habitual offender, because no motion hearing was held and he lacked notice during plea negotiations of the State's intent to seek amendment. The record shows that well before Evans' trial he was served with notice of the State's motion to amend the indictment to charge him as a habitual offender. And, contrary to Evans' assertion, the record shows a hearing date was set. Issue 2: Accomplice cautionary instruction Evans argues that the court erred in denying his proffered jury instruction cautioning the jury about accomplice testimony. In determining whether the court abused its discretion in denying the instruction, the court considers whether the witness was, in fact, an accomplice and if the witness testimony was without corroboration. Because the testimony of the accomplices was not without corroboration, the court did not abuse its discretion in denying the accomplice cautionary instruction. Issue 3: Sufficiency of evidence Evans argues that there was insufficient evidence that Evans placed the victim in fear of immediate injury to his person. The fear element does not require the victim to be frightened or terrified, but is fulfilled if the victim expects or anticipates that personal injury may result if he does not follow the assailant's instructions made while threatening the use of a deadly weapon. While the victim never testified that he was afraid or "in fear," there was sufficient evidence to enable a rational jury to find beyond a reasonable doubt that he anticipated that personal injury would result if he did not follow Evans' instructions. From this evidence, the jury reasonably could infer that the victim anticipated being injured and was acting under duress. |
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