BEFORE DAN LEE, P.J., PRATHER AND ROBERTSON, JJ.
PRATHER, JUSTICE, FOR THE COURT:
Considered in this appeal are questions relating to the propriety of a multiple count indictment and sufficiency of evidence of voice identification of the defendant. Charles E. Gray, Jr. was convicted in the Circuit Court of DeSoto County on eight counts of making a phone call with the intent to annoy, abuse, threaten or harass, pursuant to 97-29-45 (1) (c) Miss. Code Ann. (Supp. 1988). The trial court imposed eight (8) consecutive two-year sentences, but suspended seven (7) of them. The appellant now perfects his appeal to this Court, assigning as error the following:
(1) THE TRIAL COURT ERRED IN FAILING TO GRANT A DIRECTED VERDICT, PEREMPTORY INSTRUCTION, AND JUDGMENT NOTWITHSTANDING THE VERDICT AS TO COUNT ONE OF THE INDICTMENT.
(2) THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL DUE TO IMPROPER USE OF" OTHER CRIMES "EVIDENCE.
(3) THE TRIAL COURT ERRED IN FAILING TO GRANT A MISTRIAL DUE TO IMPROPER CLOSING ARGUMENTS BY THE PROSECUTOR.
(4) THE TRIAL COURT ERRED IN REFUSING INSTRUCTION D-3.
(5) THE TRIAL COURT ERRED IN GRANTING INSTRUCTION S-1, THEREBY TREATING WHAT SHOULD HAVE BEEN ONE CHARGE AS SEVERAL
CHARGES (COUNTS II-VIII).
On January 6, 1987, at 9 a.m., nineteen year old Melissa Charnes was awakened by the sound of a ringing telephone at her home in Southaven. An unidentified male voice told her to" hurry up and get a pen and a piece of paper to write down some stuff. "The man then informed her that he had kidnapped her father, who" was not in any sort of pain, "and who would be released unharmed if Charnes would" go to the bank and get money. "He threatened to" get rid of "Charnes' father if she refused to obey his requests. Finally, the man insisted that Charnes repeat some" very vulgar "words and instructed her to remove her clothing. The conversation lasted approximately fifteen minutes. Charnes hung up the phone, called her mother, called her father to verify his safety, and then reported the call to the sheriff's office.
Beginning at about 2 a.m. during the early morning hours of January 19, 1987, Juanita Hunt, one of the appellant's neighbors, received a series of seven phone calls. She testified at trial that she was familiar with the appellant's voice. The Hunts had an Irish Setter dog and the appellant owned a Pit Bull. Several prior conversations had transpired between Mrs. Hunt and the defendant relative to disputes over the dogs' activities. Having had these conversations previously, Mrs. Hunt stated unequivocally that she knew Gray's voice and it was Gray who had called her that morning and whose voice appeared on a tape recording she had made of the conversations. Two to three weeks later, she allowed Melissa Charnes to listen to the tape. Charnes recognized the voice as that of the man who had telephoned her on January 6. At trial, she testified positively that the voice on the tape was" the same without a shadow of a doubt. "The tape recording was also introduced into evidence at trial.
The appellant was indicted under 97-29-45 (1) (c) of Miss. Code Ann. (Supp. 1988), which states:
97-29-45. Profane and indecent language over telephone; jurisdiction.
(1) It shall be unlawful for any person or persons: . . .
(c) To make a telephone call, whether or not conversation ensues, without disclosing his identity and with intent to annoy, abuse, threaten or harass any person at the called number;
He was charged under Count One with the phone call to Melissa
Charnes and the remaining seven counts concerned the series of phone calls he made to Juanita Hunt. The jury found Gray guilty on all counts and he was sentenced to two year prison terms on each of the eight counts, to run consecutively. However, the trial court suspended the sentence for counts two through eight of the indictment provided that Gray comply with certain probationary terms. Gray then perfected his appeal to this Court.
DID THE TRIAL COURT ERR IN FAILING TO GRANT A DIRECTED VERDICT, PEREMPTORY INSTRUCTION, AND JUDGMENT NOTWITHSTANDING THE VERDICT AS TO COUNT ONE OF THE INDICTMENT?
Under this first assignment of error, the appellant challenges the sufficiency of the evidence used to convict him under Count One of the indictment.
The standard of review used by this Court for assessing peremptory instructions and directed verdicts is the same:
In passing upon a motion for a directed verdict, all evidence introduced by the state is accepted as true, together with any reasonable inferences that may be drawn from that evidence, and, if there is sufficient evidence to support a verdict of guilty, the motion for directed verdict must be overruled.
The standard of review used for judgment not withstanding the verdict is closely related to that used for peremptory instructions and directed verdicts:
The motion for judgment of acquittal notwithstanding the verdict tests the legal sufficiency of the evidence supporting the verdict of guilty. It is in effect a renewal of the defendant's request for a peremptory instruction made at the close of all the evidence. It asks the court to hold, as a matter of law, that the verdict may not stand and that the defendant must be finally discharged.
Where a defendant has moved for jnov, the trial must consider all of the evidence which supports the state's case - in a light most favorable to the state. The state must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Glass v. State, 278 So. 2d 384, 386 (Miss. 1973). If the facts and inferences `so considered'
point in favor of the defendant with sufficient force that reasonable men could not have found `beyond a reasonable doubt' that the defendant was guilty, granting the motion is required. On the other hand, if there is substantial evidence opposed to the motion that is, evidence of such quality and weight that having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions - the motion should be denied.
Keeping these various standards of review in mind, a closer examination of the testimony is in order. The appellant challenges certain alleged defects in the proof, which this Court will now examine. First, the fact that Melissa Charnes was unacquainted with the appellant is inconsequential. The language of the statute does not require that the person who receives the phone call have actual personal knowledge of who made the call. Juanita Hunt did know the defendant and was familiar with his voice. She was certain the voice on the tape belonged to him, and Charnes was equally certain that the voice belonged to the person who phoned her on January 6th. It is also most critical to note that the conversation between Melissa Charnes and the appellant lasted for fifteen minutes, more than enough time to become acquainted with the sound of someone's voice.
" It has been the rule from early times that testimony of identification of a person by having heard his voice has been regarded as having been legitimate and is competent to establish the identity in both criminal and civil cases. "Hurst v. State, 240 So. 2d 273, 276 (Miss. 1970). Furthermore, the validity of such identification testimony" is for the jury to determine. "Estes v. State, 533 So. 2d 437, 439 (Miss. 1988); Warren v. State, 456 So. 2d 735, 738 (Miss. 1984) (citing Sparks v. State, 412 So. 2d 754 [Miss. 1982] and Pickett v. State, 164 Miss. 42, 144 So. 552 ). In the case at bar, the jury apparently believed that the voice on the tape was that of the appellant and that Charnes' identification of that voice was reliable; there is no basis to disturb this finding. Secondly, Gray contends that the alibi testimony by his parents is fatal to the state's case. This argument misses the mark. An alibi defense simply raises an issue of fact to be resolved by the jurors, who are under no obligation to accept the defense. Lee v. State, 457 So. 2d 920, 924 (Miss. 1984) (citing Tubbs v. State, 402 So. 2d 830, 834-835 [Miss. 1981]).
Assuming for the moment that the jury was obligated to believe the testimony of the appellant's parents, reasonable and
fair-minded jurors could still have found Gray guilty. As the court noted in denying the request for a peremptory instruction:
Likewise, as far as the alibi testimony put on by the defendant . . . I am satisfied that it is a jury issue. Regarding the alibi, basically what the defendant's father and mother could say was that he went hunting on that particular day and he came home with deer but, they both, quite candidly, stated that they could not state under oath where this defendant was about 9:00 o'clock on January 6, 1987. They couldn't identify his location and where he was, what he was doing. All that they could say was that he evidently did go deer hunting on that particular day because he came home sometime later in the day with two deer.
It is the opinion of this Court that there was sufficient evidence presented to justify overruling the appellant's various motions for a peremptory instruction, directed verdicts, and judgment notwithstanding the verdict. Therefore, this Court is of ...