Jeremy CLARK a/k/a Jeremy D. Clark, Appellant
STATE of Mississippi, Appellee.
Rehearing Denied Dec. 10, 2013.
[Copyrighted Material Omitted]
Jane E. Tucker, Jackson, Leslie R. Brown, Madison, attorneys for appellant.
Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.
GRIFFIS, P.J., ISHEE, ROBERTS and CARLTON, JJ.
¶ 1. Jeremy Clark was convicted in the Madison County Circuit Court of possession of a weapon by a felon. He was sentenced to ten years in the custody of the Mississippi Department of Corrections (MDOC), with a ten-year sentence enhancement for the use of a firearm during the commission of a felony. Clark filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. The motion was denied. Aggrieved, Clark appeals. Finding error, we reverse and remand for a new trial consistent with the findings of this opinion.
FACTS AND PROCEDURAL HISTORY
¶ 2. On March 15, 2010, Madison County Sheriff's Deputy Shane Lang received reports of illegal drug activity. He then drove to the location of the alleged drug activity. Upon arriving at the location, he observed a small group of people standing behind a building. An individual, later discovered to be Clark, started to run away. Deputy Lang pursued Clark. He could see that Clark was holding something in his right hand. As Deputy Lang neared Clark, Clark threw something onto the roof of a building. Thereafter, Clark was apprehended.
¶ 3. It was later discovered that the item Clark threw onto the roof of the building was a silver Rossi .38 handgun. Deputy Lang admitted that the gun was never examined for fingerprints, had not been reported stolen, and was not registered with the Department of Public Safety.
¶ 4. Since Clark had been convicted of robbery in August 2008, he was charged with possession of a firearm by a felon. He was later indicted by the Madison County grand jury for possession of a firearm by a felon in violation of Mississippi Code Annotated section 97-37-5 (Supp.2012). The parties agreed to stipulate to the fact that Clark was a felon within the meaning of the statute.
¶ 5. Before Clark's trial, Cedric Woodberry approached Assistant District Attorney Bryan Buckley and informed him that the gun in question was actually his. However, when Woodberry went to Deputy Lang to make a written statement, Woodberry declined to provide one after being told he could be charged with making a false statement. Nonetheless, during the trial, the defense called Woodberry as a witness. He testified that he was part of the group of individuals present when Deputy Lang arrived on the day of the incident. According to Woodberry, he was carrying a .38 Rossi handgun, and he was the one who threw the gun onto the roof of the building.
¶ 6. Arthur Jackson also testified at trial. He lives behind the building around which the individuals were gathered. He observed Clark's arrest. In Jackson's opinion, the officers would not have been able to observe which individual threw the gun onto the roof of the building because their view would have been blocked by the building.
¶ 7. Ultimately, the jury returned a guilty verdict. Clark filed a motion for a JNOV or, in the alternative, a new trial. His motion was denied. Clark was then sentenced to serve ten years in the custody of the MDOC for possession of a firearm by a felon. He was further sentenced to serve an additional ten years pursuant to Mississippi Code Annotated section 97-37-37(2) (Supp.2012) for the use of a firearm during the commission of a felony. The two terms were ordered to be served consecutively with each other. Clark's suspended sentence from his 2008 robbery conviction was also revoked and ordered to be served consecutively with the other sentences imposed.
¶ 8. Clark now appeals, arguing: (1) the trial court impermissibly sentenced him twice for the same conduct in violation of the Double Jeopardy Clause; (2) the sentence enhancement was improperly applied because there was no evidence Clark used the firearm during the commission of a felony, only that he possessed it; (3) application of the enhancement by the trial court and not the jury violates his right to a trial by jury, and the enhancement was not included in the indictment; (4) the trial court erred by refusing to allow ...