Before McMILLIN, P.j., Herring, And Hinkebein, JJ.
The opinion of the court was delivered by: Herring, J
GERALD HUTSON, 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
DATE OF JUDGMENT: 06/14/96
TRIAL JUDGE: HON. R. I. PRICHARD III
COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: POSSESSION OF A FIREARM BY A CONVICTED FELON, HABITUAL OFFENDER: SENTENCED TO 3 YRS; SENTENCE TO RUN CONSECUTIVELY TO ANY PREVIOUSLY IMPOSED OR PAROLED UNDER; NOT ELIGIBLE FOR PAROLE, PROBATION, REDUCTION, SUSPENSION OR EARLY WORK RELEASE
DISPOSITION AFFIRMED - 3/24/98
On June 14, 1996, a jury in Marion County, Mississippi, convicted Gerald Hutson of possession of a firearm by a convicted felon and sentenced him to serve three years in the custody of the Mississippi Department of Corrections. Hutson now appeals that conviction and sentence, arguing that his indictment was defective, and that the evidence presented against him was insufficient to support the conviction. We do not agree with Hutson, and we affirm his conviction.
This case revolves around an altercation that occurred on January 4, 1996, involving Hutson, his former wife Rebecca Hutson, and her friend Michael Whitehead. In September, 1995, Gerald Hutson and Rebecca Hutson obtained a divorce, but the parties reconciled, although they never remarried. The Appellant moved back into the house trailer in which his wife lived at sometime during late October, 1995. The couple lived together without incident until December 26, 1995, when Gerald Hutson allegedly attacked Rebecca Hutson. After the attack, she left the trailer and stayed with a friend. However, Mrs. Hutson returned to the trailer on January 2, 1996, when Gerald Hutson left to live with his father. At this point, the course of events is subject to dispute. Gerald Hutson claims that he was never asked to leave the trailer. Mrs. Hutson insists that he knew that he was not welcome there. In any event, the Appellant went to the trailer during the evening of January 3-4, 1996, and a fight erupted between Gerald Hutson and Michael Whitehead. During this altercation, the Appellant had possession of a high powered rifle, which led to the criminal conviction from which he now appeals. Two versions of how the gun came into Hutson's possession were presented into evidence, one by Gerald Hutson, and a second version as told by Rebecca Hutson and Whitehead.
Gerald Hutson testified that he arrived at the trailer at approximately 9:45 P.M. on the evening of January 3, 1996, totally unarmed. He testified that the rifle in question was presented to him as a gift on the previous Christmas Eve day by Rebecca Hutson. However, he told her to return the weapon because as a convicted felon, he could not have possession of the gun. Hutson testified that he did not see the rifle again until the night of January 3, 1996, when he became involved in the altercation with Whitehead. Hutson stated that on the evening of January 3, he used his key to unlock the rear door of the trailer. Upon entering, he saw Rebecca Hutson and Whitehead having sexual intercourse on a couch in full view of Hutson's three-year-old daughter. Gerald Hutson testified that Rebecca Hutson jumped up when she saw her former husband, grabbed the child, and ran out of the trailer. Simultaneously, Whitehead obtained possession of the rifle, which had been standing in a corner of the trailer, and attacked Hutson. According to Hutson, the two men struggled. Eventually, he was able to temporarily incapacitate Whitehead and gain possession of the rifle by kicking him in his "privates." According to Gerald Hutson, he then removed the cartridges from rifle and threw the rifle and cartridges down the hall. Finally, he stated that he then threw Whitehead from the trailer and left the scene.
Rebecca Hutson and Whitehead testified to a substantially different version of the events that occurred on the evening in question. According to them, Whitehead was staying with Mrs. Hutson on that evening because she feared her former husband. They both testified that at the time Gerald Hutson entered the house, Mrs. Hutson was sitting on a couch attempting to get her three-year-old daughter to fall asleep, while Whitehead was in the back bedroom sleeping. Mrs. Hutson testified that her former husband arrived at 2:00 A.M., approximately four hours after Whitehead went to sleep. She stated that Hutson came through the back door armed with the rifle and asked, "Where's Coot?," referring to Whitehead. She then tried to grab the rifle because it was pointed at her daughter. Hutson grabbed Rebecca by the neck, and she screamed for Whitehead, who came running out of the bedroom to join the affray. Mrs. Hutson then broke free of her former husband's grasp and took the child next door to call the police. After she left, the two men fought for some time, each trying to take possession of the gun. This struggle took place inside of the trailer and outside in the front yard, where Whitehead was eventually able to take control of the situation. He took the rifle back into the trailer when Hutson left the premises.
The sheriff's deputy arrived some time after 2:00 A.M. and took statements from Rebecca Hutson and Whitehead. Thereafter, Gerald Hutson was placed under arrest. He was subsequently charged and convicted of the possession of a firearm by a convicted felon in violation of section 97-37-5 of the Mississippi Code of 1972, as amended. He now appeals from his conviction to this Court. At trial, a neighbor testified in rebuttal that Rebecca Hutson came to her house at approximately 2:00 A.M. on the morning of January 4 in a hysterical condition and dressed in a nightgown. According to the neighbor, Mrs. Hutson told her that Gerald Hutson was after her with a gun and then called the sheriff's department. The neighbor also testified that she saw Gerald Hutson leave the premises. It is noteworthy that the sheriff's deputy that was called ...