Before Thomas, P.j., Hinkebein, King, And Southwick, JJ.
The opinion of the court was delivered by: Per Curiam:
McCloud v. State, 97-KA-00400-COA
PER CURIAM AFFIRMANCE MEMORANDUM OPINION THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: 03/21/97
TRIAL JUDGE: HON. JOHN M. MONTGOMERY
COURT FROM WHICH APPEALED: NOXUBEE COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: AGGRAVATED ASSAULT: SENTENCED TO SERVE A TERM OF (6) YEARS IN THE MDOC; DEFENDANT IS TO PAY RESTITUTION OF $8,344.10 & A FINE OF $1,000.
Greer McCloud (McCloud) was convicted by a jury in the Circuit Court of Noxubee County on March 21, 1997, on a single count of aggravated assault. He was sentenced to six years in the custody of the Mississippi Department of Corrections and ordered to pay restitution of $8,344.10 and a fine of $1000. He appeals his conviction, contending it was against the overwhelming weight of the evidence, and that the trial Judge abused his discretion by denying McCloud's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial.
On June 27, 1996, McCloud approached Delois Cotton (Cotton) as she sat outside drinking beer with family and friends in Macon, Mississippi. While the two were no longer in a relationship, McCloud was the father of Cotton's infant son. Also present was Julius Edwards (Edwards), who was currently living with Cotton, a fact that appears to be the source of animosity between the two men. McCloud and Cotton began arguing over who was going to take the child home. Edwards testified that a few minutes later, while he was getting in Cotton's car, McCloud slammed the door shut on Edwards's legs. McCloud disputes this and claims what actually happened was that Edwards intentionally hit him with the car door. A fight ensued, during which Edwards struck McCloud in the head with a liquor bottle and McCloud pistol-whipped Edwards with a twenty-five caliber automatic pistol. After some of the people at the scene broke up the fight, the men went their separate ways in order to tend to their bleeding head wounds.
McCloud went to the apartment of Debra Mallard, who lived across the hall from Cotton and Edwards, in order to get a towel to clean his wound. Mallard testified that at that time McCloud talked about killing Edwards. Shortly thereafter, Edwards returned home and was walking up the stairs to the apartment when McCloud shot him in the shoulder with the twenty-five caliber pistol. McCloud's defense is that he reasonably believed Edwards was reaching for a gun and, fearing for his life, he shot Edwards in self-defense. The record indicates that Edwards was unarmed and was unaware that McCloud was even in the apartment building at the time he was shot. Edwards suffered a bruised lung and loss of blood. Doctors were unable to remove the bullet.
Contrary to McCloud's arguments on appeal, the testimony and other evidence contained in the record support the jury's determination of guilt. A motion for a judgment notwithstanding the verdict questions the legal sufficiency of the evidence presented. McClain v. State , 625 So. 2d 774, 778 (Miss. 1993). Where a defendant moves for a judgment notwithstanding the verdict, the credible evidence of the defendant's guilt must be accepted as true and viewed in a light most favorable to the State. Id. A reviewing court is authorized to reverse only where, with respect to one or more of the elements of the offense charged, the evidence is such that reasonable and fair-minded jurors could not find the accused guilty. Wetz v. State , 503 So. 2d 803, 808 (Miss. 1987).
A motion for a new trial relates to the weight of the evidence and "is addressed to the trial court's sound discretion." May v. State , 460 So. 2d 778, 781 (Miss. 1984). However, the jury alone determines the weight of the evidence and credibility of witnesses. Burrell v. State , 613 So. 2d 1186, 1192 (Miss. 1993). Where a jury has returned a verdict of guilty, the reviewing court's authority is restricted and it "may not reverse as long as there is credible evidence in the record from which the jury ...