Wolverton v. State


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Docket Number: 2002-KA-01279-COA

Court of Appeals: Opinion Link
Opinion Date: 11-18-2003
Opinion Author: Myers, J.
Holding: Affirmed

Additional Case Information: Topic: Sale of controlled substance - Weight of evidence - Jury instruction - Ineffective assistance of counsel
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving, Chandler and Griffis, JJ.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 08-05-2002
Appealed from: Jones County Circuit Court
Judge: Billy Joe Landrum
Disposition: GUILTY OF SALE OF A CONTROLLED SUBSTANCE. SENTENCED TO TWENTY-FIVE YEARS
District Attorney: C. Grant Hedgepeth
Case Number: 2001-366-KR2

  Party Name: Attorney Name:  
Appellant: James Troy Wolverton




DEBORAH J. GAMBRELL



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE MCCRORY  

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Topic: Sale of controlled substance - Weight of evidence - Jury instruction - Ineffective assistance of counsel

Summary of the Facts: Troy Wolverton was convicted of the sale of a controlled substance. He was sentenced to twenty-five years with ten years suspended. He appeals.

Summary of Opinion Analysis: Issue 1: Weight of evidence Wolverton argues that the verdict was against the overwhelming weight of evidence, because the State did not prove that he sold the cocaine to the confidential informant. An officer testified as to the scenario and the use of the confidential informant. He testified as to the procedures followed, establishing location and the chain of custody of the cocaine purchased on the day in question. The confidential informant identified Wolverton in the courtroom and gave a detailed narrative of the transaction. A scientist from the crime lab testified that the substance presented for testing was, in fact, cocaine. This was legally sufficient evidence to support each and every element of the crime for which Wolverton was charged. Issue 2: Jury instruction Wolverton argues that the court erred in allowing the State’s submission of a jury instruction, which was a request for the jury to consider finding Wolverton guilty of the sale of a controlled substance as opposed to the charge of sale of a controlled substance within 1500 feet of a ball field, which was the charge on which he was indicted. Not only did Wolverton’s attorney fail to object to the instruction, but the language “within 1500 feet of a ballpark” is not a substantive element to this offense. Issue 3: Ineffective assistance of counsel Wolverton argues that he was denied effective assistance because an agreed order substituting counsel was entered only five days before trial and because his attorney failed to object to the State’s jury instruction. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Wolverton produced no evidence of why his attorney’s representation was deficient or why the substitution of counsel prejudiced him. With regard to the instruction, if Wolverton’s attorney objected to the entry of the instruction, he would have been placing Wolverton in jeopardy of receiving an enhanced sentence which could have resulted in the doubling of the original sentence.


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