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Neal v. State

April 07, 1998

NEAL
v.
STATE



Before McMILLIN, P.j., Diaz, King, And Payne, JJ.

The opinion of the court was delivered by: Payne, J

DONALD NEAL A/K/A "TWIN", 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: 06/26/96

TRIAL JUDGE: HON. JANNIE M. LEWIS

COURT FROM WHICH APPEALED: HUMPHREYS COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: CT I ARMED ROBBERY: CT II AGGRAVATED ASSAULT: CT I SENTENCED TO SERVE 20 YRS IN THE MDOC; CT II SENTENCED TO SERVE A TERM OF 20 YRS IN THE MDOC; CT I CONCURRENT TO CT II

DISPOSITION AFFIRMED - 4/7/98

Donald Neal was convicted in count I of armed robbery and in count II of aggravated assault against the person of Phyllis Vining. Neal was sentenced in each count to serve a term of twenty years in the custody of the Mississippi Department of Corrections with the sentence in count II to run concurrently to the sentence in count I. Neal's motion for JNOV or, in the alternative, a new trial was denied. Finding no error, we affirm.

FACTS

On November 12, 1995, Phyllis Vining opened the Shellgo, a convenience store, in Belzoni, Mississippi at 7:00 A.M. Vining testified that she went about her normal tasks as she had done for eleven years, and that at shortly before 8:00 A.M., a man wearing a torn stocking mask over his face entered the store, walked behind the counter, pulled a plastic bag from his coat and motioned for Vining to put the money in the bag. Vining indicated that she refused to give him the money and a struggle ensued. Vining testified that the man pulled out a knife, cut her throat and then stabbed her a total of twenty-six times. According to Vining, as she lay on the floor following the stabbing, she looked up and saw the man holding some of the money in his hand. Vining indicated that she then turned her head away for fear that the man was going to hit her and that when she looked up again, the man was gone. An inventory following the robbery indicated that $753 was missing from the store.

Vining later spoke with Officer Rosetta Williams and informed Williams that Vining's attacker was one of the Neal twins. Thereafter, Officer Williams presented Vining with a photographic lineup and Vining picked out the photo of Donald Neal. Vining testified that she knew her attacker to be one of the Neal twins and that she was able to later determine which one by the scar near his eye which she could see through the tear in the stocking mask. At trial, Vining identified Donald Neal as her attacker.

The State also presented the testimony of Rodney Holmes who indicated that he was outside the Shellgo on the morning in question and that he saw Donald Neal dressed in a heavy coat and pulling a stocking mask over his face. Holmes indicated that Neal entered the store and that a few minutes later Neal left the store running, and Vining appeared in the ...


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