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DONNIE RAY JENKINS v. STATE OF MISSISSIPPI

FEBRUARY 12, 1986

DONNIE RAY JENKINS
v.
STATE OF MISSISSIPPI



BEFORE PATTERSON, SULLIVAN AND ANDERSON

SULLIVAN, JUSTICE, FOR THE COURT:

Donnie Ray Jenkins was convicted of arson and, as he was subject to the provisions of Mississippi Code Annotated 99-19-81 (Supp. 1985), he was sentenced to twenty (20) years in the custody of the Department of Corrections without reduction, revocation or parole.

On June 1, 1982, Evelyn Dixon Smith and her sister, Jackie Dixon, went to a nightclub in North Gulfport. Evelyn had known Jenkins and Debra Moore all of her life, and she saw them that evening under less than congenial

 circumstances. After exchanging unpleasantries, Debra and Evelyn had a fight. When the fight was over, Evelyn and her sister went home. Evelyn and her child and Jackie and her two children all lived with Annie Dixon, mother of Evelyn and Jackie, in Mrs. Dixon's house. In the wee hours of the morning, Evelyn heard a bottle break and got up. She found the house aflame at both front and back doors, but managed to get everyone out to safety. The house itself was totally destroyed.

 Michael Handy, a five-o'clock-jogger, was jogging down a path near the rear of Annie Dixon's yard when he heard voices and car doors slamming. It was a little before 5:00 A.M. Handy knew Jenkins and Moore, and he recognized their voices. He saw Jenkins go to the back door of the Dixon house and pour something from a can. Jenkins went around the house on the right side from the back door.

 Handy concluded his run and went to work. When he got off work, he told Annie Dixon what he had seen. He then told the police and the fire marshal, Rodney Necaise.

 Necaise found that two separate fires had been started, one at the back door and one at the front door. He also discovered that petroleum based by-products were present at the site.

 At the conclusion of the state's case, Jenkins moved for a directed verdict, and called Debra Moore to the stand when that motion was overruled. Moore, who had pled guilty to the arson at a separate trial, then proceeded to exonerate Jenkins. According to Moore, Jenkins was not present when Moore burned the house down. Moore admitted denying any knowledge of the fire when first questioned by the police.

 Jenkins took the stand next and denied any involvement in the arson.

 The jury elected to accept the version offered by the state witnesses and reject the version offered by Moore and Jenkins. The guilty verdict followed.

 Jenkins suggests three meritless assignments of error.

 I.

 WAS THE VERDICT CONTRARY TO THE OVERWHELMING WEIGHT OF THE EVIDENCE?

 Jenkins contends that it was error to refuse to sustain his motion for a directed verdict and also error not to grant him a new trial. He is wrong.

 When a defendant requests a peremptory instruction in a criminal case or, after conviction, moves for a judgment notwithstanding the verdict, the trial judge must consider all of the evidence in the light most favorable to the state. Harper v. State, ___ So.2d ___, No. 55, 672, decided October 16, 1985, not yet reported.

 When the motion is for a new trial, that issue is addressed to the sound discretion of the trial court. Burge v. State, 472 So.2d 392, 396 (Miss. 1985). In a criminal trial, this motion invokes Rule 5.16 of the Uniform Criminal Rules of Circuit Court Practice. Under Rule 5.16 the motion will be granted only if required in the interest of justice or if the verdict is contrary to law or the weight of ...


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