DATE OF JUDGMENT: 09/07/2012.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. LEE SORRELS COLEMAN. TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A WEAPON bye A PREVIOUSLY CONVICTED FELON AND SENTENCED TO TEN YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH SIX YEARS TO SERVE, FOUR YEARS SUSPENDED, AND FOUR YEARS OF POST-RELEASE SUPERVISION, AND ORDERED TO PAY A $5,000 FINE.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: JUSTIN TAYLOR COOK.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: MELANIE DOTSON THOMAS.
BEFORE IRVING, P.J., ROBERTS AND FAIR, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND JAMES, JJ., CONCUR.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. One night in May 2010, Marquette Profeit awoke to a loud knocking on his apartment door in Columbus, Mississippi. Profeit looked out the window and saw a man he did not know, holding a .40 caliber handgun. Profeit called 911. When the authorities arrived, Officer Kenny Brewer observed David Bursey near the side of the apartment complex. Bursey supplied a false name to Officer Brewer. Bursey also stated that a friend had dropped him off in the area. When Officer Brewer attempted to search Bursey for weapons, Bursey fled. Bursey was eventually found at a nearby home. Police recovered two handguns, a Ruger and a Hi Point, near the side of the apartment complex where Bursey was first seen. Both were .40 caliber pistols. A black t-shirt and overshirt were also found around the same area. At trial, Profeit identified Bursey as the armed man he had seen outside his apartment.
¶2. In his own defense, Bursey testified that after leaving a party in Starkville, he took the wrong exit on the way back to Tupelo and ran out of gas in search of a service station. Bursey also testified that when Officer Brewer attempted to pat him down, he fled because he had old fines and a child support warrant. Bursey denied possessing a firearm at any point that night.
¶3. The jury acquitted Bursey of attempted burglary and possession of the Ruger .40 caliber, but it convicted Bursey of possession of the Hi Point .40 caliber by a convicted felon. On appeal, Bursey argues that the trial court erred in giving a flight instruction and refusing a circumstantial evidence instruction. Bursey also contends his trial counsel was ineffective and that there was insufficient evidence to support a possession conviction. Finding no reversible error, we affirm.