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Gibby v. State

March 18, 1999

JAMES T. N. GIBBY A/K/A JAMES TRAVIS NEWTON GIBBY A/K/A JAMES T. GIBBY A/K/A JAMES N. GIBBY
v.
STATE OF MISSISSIPPI



The opinion of the court was delivered by: Banks, Justice

DATE OF JUDGMENT: 04/16/97

TRIAL JUDGE: HON. ROBERT WALTER BAILEY

COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

DISPOSITION: REVERSED AND REMANDED - 3/18/99

EN BANC.

¶1. We have for review an armed robbery conviction. We find that the evidence was not sufficient to support the armed robbery conviction, but was sufficient to support a conviction on the lesser included offense of simple robbery. Accordingly, we reverse and remand.

I.

¶2. On September 23, 1995, Gibby and another man, Casey Welford (now deceased), went to Johnson Dodge automobile dealership in Meridian, Mississippi. The men feigned interest in purchasing a truck and Randy Shelton, a salesman for Johnson Dodge, went on a demonstration ride with the men. Welford drove, Gibby sat in the backseat, and Shelton sat in the front passenger seat.

¶3. The three men drove south on Highway 19 and eventually turned the truck around and headed back toward Meridian. They turned onto Azalea Drive, and Welford stopped the truck. Gibby told Shelton to get out of the truck. Shelton asked, "Sir?" Gibby leaned forward and poked something hard through his jacket pocket into Shelton's ribs. Gibby, more aggressively this time, told Shelton to get out of the truck.

¶4. Shelton assumed that the hard object which he could not see was a gun, and he got out of the truck. He testified that he was in shock. Gibby and Welford drove away in the truck.

II.

¶5. Gibby raises the issue of whether the evidence submitted by the state is sufficient to sustain the conviction of armed robbery. In order to secure a conviction of armed robbery under § 97-3-79 of the Mississippi Code, the state must prove that the accused took the personal property of another against his will and "by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon. . . ." Miss. Code Ann. § 97-3-79. In the case sub judice, Gibby attacks the jury's decision that he "exhibited a deadly weapon." Gibby points to the witnesses' testimonies and notes that there is a conflict over whether a gun was present. This Court must examine the conviction of armed robbery to determine if the state met its burden under the statute.

ΒΆ6. The standard of review is well established. See Jones v. State, 669 So. 2d 1383 (Miss. 1995); McClain v. State, 625 So. 2d 774 (Miss. 1993); Benson v. State, 551 So. 2d 188 (Miss. 1989). Evidence is examined in a light most favorable to the state. Jones, 669 So. 2d at 1388. All credible evidence found consistent with defendant's guilt must be accepted as true. Id. The prosecution is allowed the benefit of sound and reasonable inferences drawn from the evidence. Id; Edwards v. State, 615 So. 2d 590, 594 (Miss. 1993). This Court may only reverse a jury's conviction for insufficient evidence where the evidence viewed in the light most favorable to the prosecution is such that a fair and reasonable jury could not find the defendant guilty. See Jones, 669 So. 2d at ...


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