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Fox v. State

December 18, 1998

ELGER RUSSELL FOX APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



Before Thomas, P.j., Diaz, Herring, And Southwick, JJ.

The opinion of the court was delivered by: Herring, J.,

DATE OF JUDGMENT: 08/01/97

TRIAL JUDGE: HON. HENRY LAFAYETTE LACKEY

COURT FROM WHICH APPEALED: LAFAYETTE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: DRIVE-BY-SHOOTING: SENTENCED TO A SERVE A TERM OF 15 YRS IN THE MDOC

DISPOSITION: AFFIRMED - 12/18/1998

¶1. Elger Russell Fox appeals to this court from his conviction and sentence in the Lafayette County Circuit Court of drive-by-shooting in violation of Miss. Code Ann. § 97-3-109 (Rev.1994). He was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections. On appeal he challenges the sufficiency and the weight of the evidence supporting his conviction. Finding ample evidence to support each element of the offense and the verdict of the jury, we affirm.

A. THE FACTS

¶2. On July 27, 1996, Elger Russell Fox was riding in the passenger seat of James Willingham's Nissan Maxima automobile. Along with Fox and Willingham were two other passengers, Michael Miller and Derek Mitchell. The four occupants of the vehicle drove to Wilson Road in Oxford, Mississippi, allegedly to discuss with the residents of Wilson Road some problems that existed between the two groups. Fox testified that he took a gun along for protection. The gun was a .30 caliber carbine, a semi-automatic weapon.

¶3. Fox testified that when they reached Wilson Road, he saw Antonio Carrouthers standing beside a car and then running towards Odis Barr's house. Fox testified that he thought Carrouthers was going to get a gun. He further stated that he shot his gun into the air at that point. He alleged that he fired the gun through the sunroof of the Maxima as they were moving down Wilson Road in order "to scare them, stop them from coming" and not for the purpose of hurting anyone. After the shot was fired the automobile crashed into a ditch. Fox and Miller fled into the woods because they were frightened of a crowd that had gathered.

¶4. The other three passengers of the Nissan Maxima (Willingham, Miller, and Mitchell) corroborate Fox's story that he shot the gun straight into the air out of the sunroof. However, Camellia Barr Goolsby testified that although she did not see where the gun was pointed when the shot was actually fired, she observed Fox pointing the gun at her cousin, Antonio Carrouthers, just before the shot was fired. Carrouthers himself testified that he was alone in the yard of Odis Barr's house when he saw the Nissan Maxima approaching. He stated that he had no weapon in his hands, but he saw Fox lean down inside the vehicle and come back up with a gun. He then moved behind Odis Barr's van and that was when he heard the shot fired. He testified that although he could not testify that the gun was aimed at him, he felt like the shot was fired at him because there was no one else outside. He further testified that he did not know if Fox was trying to shoot him, he was not hit by a bullet, and to his knowledge, nothing around him was hit by a bullet.

ΒΆ5. Fox was indicted on charges of drive-by-shooting on December 16, 1996. He was convicted by a jury of his peers on July 22, 1997, and was sentenced to fifteen years in the custody of the Mississippi Department of Corrections on August 1, 1997. On August 5, he filed a motion entitled, "Motion for Judgment of Acquittal, Judgment Notwithstanding the Verdict or, in the Alternative, for a New Trial." This motion ...


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