Before McMILLIN, P.j., Diaz, And King, JJ.
The opinion of the court was delivered by: Diaz, J.
DATE OF JUDGMENT: 11/10/1997
TRIAL JUDGE: HON. W. M. O'BARR JR.
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED FOR CONSPIRACY TO SELL LSD
¶1. Brian Lee appeals the decision of the Forrest County Circuit Court convicting him of conspiracy to sell lysergic acid diethylamide (LSD). Lee raises the following issues in his appeal: (1) the weight and sufficiency of the evidence; (2) the admissibility of external offense evidence involving his prior sales of LSD; (3) a ruling allowing a State witness to testify concerning a transfer of drugs for which she was not present; (4) an alleged gap in the chain of custody of an audiotape recorded over a wiretap; (5) an amendment of the indictment improperly deleted two of the co-conspirators; (6) the granting of jury instructions S-1A, S-2A, and S-6; (7) the granting of jury instruction S-3, and (8) the denial of the circumstantial evidence instructions. Finding no error, we affirm the ruling of the circuit court.
¶2. In April of 1996, Karlton and Sarah Bradley met the defendant,Brian Lee, who is also known as "Moonshadow" or "Shadow." During April and May of 1996, Karlton Bradley bought LSD from Brian Lee on approximately six occasions. Thereafter, Karlton would trade the LSD with David Watkins for cocaine.
¶3. On May 28, 1996, Karlton Bradley purchased LSD from Lee. Watkins then arrived at the Bradleys' apartment to trade the LSD purchased from Lee for two ounces of cocaine. Karlton counted the LSD when Watkins arrived and after Lee left. Karlton discovered that the LSD that he purchased from Lee was missing a page, so he called Lee to complain. Lee challenged the truthfulness of Karlton's claim that the LSD had a shortage. Watkins left the Bradleys' apartment for approximately 30 minutes while Karlton attempted to correct the alleged shortage. Lee went to the Bradleys' apartment to see whether a shortage of LSD existed. Watkins later returned to the Bradleys' apartment, and Karlton told Watkins that the LSD was short and that he would have to take a loss. According to Watkins's testimony, Lee and he have never met, spoken, or been together when drugs were exchanged with Karlton.
¶4. Unknown to all of the participants in this scenario, the Mississippi Bureau of Narcotics had conducted wiretaps and set up a surveillance videotape of the events that transpired on this occasion. Thereafter, in November of 1996, Brian Lee was indicted for conspiring and agreeing with four others to sell LSD to another person. The indictment, omitting its formal parts, alleged that
"Brian Lee, on or about May 1 through May 30, 1996, in Hattiesburg, Forrest County, Mississippi, in violation of MCA section 97-1-1 (1994), did knowingly, willfully, and unlawfully conspire and agree with Karlton Bradley, David Watkins, Dan Campbell, and Chris Boulette and other persons unknown to the grand jury, to commit a felony crime . . . namely: to willfully, unlawfully, knowingly and intentionally sell Lysergic Acid Diethylamide (LSD) (a Schedule II controlled substance) to another person the subject of said conspiracy being a violation of M.C.A. section 41-29- 139(a)(1), (1996) of the Mississippi Uniform Controlled Substances Law . . . ."
¶5. Following a trial by a jury conducted on November 3-4, 1997, Lee was found guilty of the crime of conspiracy. He was subsequently sentenced on November 10, 1997, to serve twenty years in the custody of the Mississippi Department of Corrections with five years suspended and fifteen years to serve. Feeling aggrieved, Lee now perfects this appeal.
I. WHETHER THE TRIAL COURT ERRED IN REFUSING TO GRANT A DIRECTED VERDICT, A PREEMPTORY INSTRUCTION, OR ERRED IN OVERRULING THE DEFENDANT'S MOTION FOR JNOV OR A NEW TRIAL
A. Sufficiency of the Evidence
¶6. A challenge to the sufficiency of the evidence requires an analysis of the evidence by the trial Judge to determine whether a hypothetical juror could find, beyond a reasonable doubt, that the defendant is guilty. May v. State, 460 So. 2d 778, 781 (Miss. 1984). If the Judge determines that no reasonable juror could find the defendant guilty, then he must grant the motion for a directed verdict and JNOV. Id. If he concludes that a reasonable juror could find the defendant guilty beyond a reasonable doubt, then he must deny the motion. Id. This Court's scope of review is limited to the same examination as that of the trial court in reviewing the motions for directed verdict and JNOV; that is, if the facts point in favor of the defendant to the extent that reasonable jurors could not have found the defendant guilty beyond a reasonable doubt, viewing all facts in the light most favorable to the State, then it must sustain the assignment of error. Blanks v. State, 542 So. 2d 222, 225-26 (Miss. 1989). Of course, the opposite is ...