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Weaver v. State

Court of Appeals of Mississippi

September 25, 2018

KENNETH BRIAN WEAVER A/K/A KENNETH WEAVER A/K/A KENNETH B. WEAVER, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

          DATE OF JUDGMENT: 02/09/2017

          LAUDERDALE COUNTY CIRCUIT COURT HON. LESTER F. WILLIAMSON JR. JUDGE

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES PHILLIP BROADHEAD

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER

          DISTRICT ATTORNEY: BILBO MITCHELL

          BEFORE IRVING, P.J., WILSON AND TINDELL, JJ.

          IRVING, P.J.

         ¶1. Kenneth Brian Weaver was convicted of second-degree murder and sentenced to a term of forty years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and five years of supervised probation. He now appeals, asserting two issues: (1) whether the trial court erred in overruling his motion for a directed verdict or, in the alternative, his motion for a new trial; and (2) whether the trial court erred in refusing his jury instruction on imperfect self-defense. We find no merit in either of these issues; therefore, we affirm.

         FACTS

         ¶2. At 1:14 p.m. on September 22, 2015, Dusty Hicks discovered a decomposing body floating in the pond on his property in Lauderdale County. A half-filled paint-thinner jug had been tied to the body with a piece of rope. Dusty immediately called 911. He suspected that the body belonged to Sara Lynn Beard (also known as Sara Lynn Mullett), as she had been reported missing a few days prior. Dusty had met Sara, through her live-in boyfriend, Weaver, in the six months before her disappearance. Dusty later testified at trial that Weaver had been to Dusty's property during those six months before Sara went missing, and that Weaver was familiar with Dusty's property. Investigator Karey Williams with the Lauderdale County Sheriff's Department was the first to respond to the scene after Dusty's 911-call. Investigator Williams testified at trial that the pond was separated from the road by dense trees. Investigator Williams maintained that "you would never know there was a pond there unless somebody took you back there and showed it to you." The body was later identified as Sara's.

         ¶3. Earlier that morning, around 6:00 a.m., Investigator Williams had performed a "welfare check" on Sara-whose body had not yet been found and who was still being characterized as a missing person-by visiting the home that she shared with Weaver in Meridian, Mississippi. Investigator Williams testified that, during this welfare check, Weaver told him that he and Sara had visited the casino in Philadelphia, Mississippi, on Thursday night, September 17, 2015. Weaver told Investigator Williams that the two had gambled off and on through the night and into the next morning. At some point, Weaver and Sara argued because he wanted to leave, while she wanted to stay. Weaver told Investigator Williams that he ultimately left Sara at the casino, and suggested that Sara must have found another man to leave with. Investigator Williams testified that Weaver acted nervous during their conversation, and he noted that Weaver had bruises on his arm.

         ¶4. After Sara's body was discovered, police returned to Weaver and Sara's home, and Weaver voluntarily went with them for questioning. Upon arriving to the sheriff's department, Weaver waived his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966) and gave an oral statement that was largely identical to what he had initially told Investigator Williams. Shortly after giving the oral statement, Weaver gave a written statement wherein he said that he and Sara arrived at the casino on Friday night, September 18, 2015, rather than Thursday night, September 17, 2015.

         ¶5. Investigator David Rosenbaum next interviewed Weaver. Investigator Rosenbaum informed Weaver that the casino had provided the police with video surveillance showing that Weaver and Sara left the casino together. Investigator Rosenbaum also informed Weaver that Sara's body had been found. At this point, Weaver gave another statement, wherein he admitted that he and Sara left the casino together.[1] He further stated that when they left the casino, Sara began hitting him and grabbed at the guns that he kept in his truck. Weaver reduced this statement to writing. Investigator Rosenbaum told Weaver that his statement still failed to explain what happened, so Weaver provided a third statement. In this version, Weaver said that, as Sara was driving his truck, she began hitting him and firing gunshots. She pulled the truck over near a pond. Weaver maintained that as he was attempting to retrieve the gun from Sara, it fired, and a bullet struck her in the head. Like the first and second statements, Weaver reduced this third statement to writing in which he claimed that after shooting Sara, he "panic[k]ed and tried to put her in a tranquil place in a pond within just a few yards from where she pulled over . . . ."

         ¶6. Several days later, Weaver sent word through a corrections officer that he wished to speak to Investigator Dylan Anderson, with whom Weaver allegedly had attended school. Investigator Anderson testified at trial that Weaver again waived his Miranda rights and gave yet another statement, wherein he said that he and Sara argued about leaving the casino, finally agreed to leave, and were traveling south on Highway 19-with Sara driving-when they pulled over near Collinsville. Weaver maintained that Sara was reaching for his guns in the truck and that she sprayed him in the face with a can of pepper spray that he kept in the driver's side door compartment of the truck. At that point, he raised his gun and shot her. Weaver stated that he pushed her body into the passenger's seat, got into the driver's seat, and continued driving toward Collinsville, where he pulled over and placed Sara's body in a pond. Investigator Anderson testified at trial that Weaver never said anything about any pond except for the one in Lauderdale County, where Sara's body was found. Investigator Anderson further testified that Weaver had mentioned fishing at the pond on Dusty's property where Sara's body was found, which is how Weaver knew it existed. Weaver did not reduce this statement to writing.

         ¶7. Weaver was indicted for second-degree murder on March 31, 2016. He pleaded not guilty, and the trial commenced in February 2017. Stacy Jones, a forensic scientist with the Mississippi Bureau of Investigations, testified that she processed Weaver's truck. She stated that she found no bullet holes in the vehicle, but that there were small bloodstains scattered throughout. From the vehicle, she recovered a can of pepper spray, a .380-caliber handgun, and a five-round .38-caliber handgun, which contained four live rounds and one spent-shell casing. The pepper spray and the .380-caliber handgun were both recovered from the driver's side door compartment.

         ¶8. John Brentley Davis, Deputy Chief Medical Examiner for the State of Mississippi, performed Sara's autopsy. He testified that he believed the cause of Sara's death to be a single gunshot wound to her head and that the manner of death was homicide. He further testified that the evidence suggested that the gun was fired from a distance of greater than two or three feet. He also noted that the toxicology report indicated that Sara had methamphetamine and a metabolite of fluoxetine (found in Prozac) in her system when she died.

         ¶9. The State also called Investigator Rosenbaum, who testified generally about the role that he played in the investigation of Sara's death, including the interviews of Weaver that he conducted. During cross-examination of Investigator Rosenbaum, Weaver's counsel questioned him about Weaver's cell-phone records. Investigator Rosenbaum acknowledged that four calls appeared to have been made from Weaver's cell phone to 911-specifically, the Neshoba County 911-dispatch center-on September 18, 2015, at 2:53 p.m., 2:56 p.m., 2:57 p.m., and 3:15 p.m. The call taking place at 2:57 p.m. lasted for fifty-four seconds; however, the rest of the calls each lasted ten seconds or fewer. Investigator Rosenbaum testified that he never followed up with the Neshoba County 911-dispatch center regarding the phone calls.

         ¶10. After the State rested its case-in-chief, the defense moved for a directed verdict, which was denied. The defense then presented testimony from Debbie Reid, one of Dusty's neighbors, who stated that she had not noticed anything unusual occurring on Dusty's property on September 18-21, 2015. The defense next called Eddie Crosby, a private investigator, who testified that the GPS coordinates associated with the four phone calls to 911 from Weaver's cell phone indicated that the calls took place in Neshoba County. Crosby also identified several photographs of a pond located beside Highway 19 in Neshoba County, which the defense later suggested was where the shooting actually took place. Crosby stated that the pond in the photograph was located approximately fifteen miles from the casino.

         ¶11. Finally, the defense called Weaver to testify. He maintained that around 6:30 or 7:00 p.m. on Thursday, September 17, 2015, he and Sara arrived at the Silver Star Resort and Casino. They gambled until midnight or 1:00 a.m., at which time Weaver returned to his truck in the parking lot to sleep and wait for Sara. In the meantime, Sara was going back and forth from the Casino to Weaver's truck. According to Weaver, he and Sara argued into the next day about leaving the casino, and he finally convinced her to leave with him around 4:00 or 5:00 p.m. on Friday, September 18, 2015. Weaver testified that, before leaving the casino parking lot, Sara had attempted to pull a shotgun from the roof rack of his truck. He stated that he took the shotgun from Sara, ejected the shells, and laid it down in the back of the truck. Weaver testified regarding the 911 calls that he placed from his cell phone: first, he contended that he called 911 three times after the shotgun incident but that he got no response. Then, he testified that he connected with 911 a couple of times and explained the situation, but law enforcement never came to the casino. Finally, Weaver testified that he connected with 911 only one of the four times he called. Again, he maintained that no law enforcement came to the casino in response to his calls.

         ¶12. Weaver testified that, upon finally leaving the casino, Sara insisted on driving, so he sat in the passenger's seat. According to Weaver, Sara began hitting him and driving erratically, so he threw the truck out of gear and pulled it over to the side of Highway 16, just a mile and a half from the casino. Weaver testified that he and Sara continued arguing; then she sprayed him in the face with pepper spray. Weaver stated that he knew Sara often carried a small .380-caliber handgun with her and was concerned that she would reach for it next. Weaver then drew his .38-caliber handgun and, according to him, as he was pulling the hammer back, the hammer slipped, the gun fired, and a bullet hit Sara in the head. Weaver maintained that he did not point the gun at Sara.

         ¶13. Weaver testified that he attempted to flag down a vehicle, but no one stopped. He walked over to a pond[2] that was approximately 150 yards away-but not the same pond that he ultimately dumped Sara's body in-and rinsed the pepper spray off of his face. After about two hours, he got back into the truck and moved Sara's body into the passenger seat. Weaver then testified that he decided to drive Sara's body to the pond located on Dusty's property. When asked why he did not tell law enforcement that the shooting was an accident, Weaver claimed that he had been traumatized from the experience.

         ¶14. After Weaver's testimony, the defense rested its case-in-chief and renewed its motion for a directed verdict, which the trial court denied. The court instructed the jury on second-degree murder and self-defense. The jury found Weaver guilty of second-degree murder but declined to sentence him to life in prison. The trial court sentenced Weaver to forty years in MDOC's custody, with thirty years to serve, ten years suspended, and five years of probation. Weaver filed a motion for a judgment notwithstanding the verdict (JNOV) or, alternatively, a new trial, which the trial court denied. Weaver filed a timely notice of appeal.

         DISCUSSION

         I. Motion for JNOV/New Trial

         a. Sufficiency of the Evidence

         ¶15. Our appellate courts have consistently reviewed motions for a JNOV or a directed verdict under the following standard:

A motion for directed verdict challenges the sufficiency of the evidence, and the critical inquiry is whether the evidence shows beyond a reasonable doubt that the accused committed the act charged, and that he did so under such circumstances that every element of the offense existed. In judging the sufficiency of the evidence, the trial judge is required to accept as true all evidence that is favorable to the State, including reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to the defendant.

Jackson v. State, 68 So.3d 709, 719 (¶32) (Miss. Ct. App. 2011) (citations and internal quotation marks omitted).

         ¶16. Weaver argues that the trial court erred in refusing his motion for a directed verdict on the basis that the State had not sufficiently established that the crime took place in Lauderdale County. In response, the State contends that the fact that Sara's body was found in a pond in Lauderdale County is sufficient evidence for a jury to find that the crime occurred in Lauderdale County.

         ¶17. "Proof of venue is an essential part of criminal prosecution, and the State bears the burden of proving venue beyond a reasonable doubt." Hill v. State, 797 So.2d 914, 916 (¶10) (Miss. 2001). Mississippi Code Annotated section 99-11-19 (Rev. 2015) provides that:

When an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.

"While the ultimate burden of proving venue that rests upon the State is beyond a reasonable doubt, this is a standard of proof before the jury, not the trial judge." Hill, 797 So.2d at 916 (¶11).

         ¶18. Both Weaver and the State cite Hill v. State, 797 So.2d 914, 916 (Miss. 2001). In Hill, the defendant was convicted of strangling her infant son. Id. at 914 (¶1). The defendant argued that the trial court committed reversible error in refusing to grant her motion for a directed verdict on the basis that the State had failed to prove that venue existed in Forrest County, Mississippi, where the case was brought. Id. at 915-16 (¶9). The Court held that the evidence presented at trial was sufficient to establish venue in Forrest County, stating, "[a]s long as the evidence is sufficient to lead a reasonable trier of fact to conclude that the crime in the present case occurred at least partly in Forrest County, then the evidence of venue is sufficient." Id. at 916 (¶12).

         ¶19. Weaver contends that "it was clearly established in the evidence that the homicide took place in Neshoba County." We disagree. We acknowledge Weaver's testimony that he shot Sara in his truck about a mile from the casino near a pond. However, given the totality of the evidence, including his pretrial statements and other testimony, the assertion that the evidence clearly established that the homicide took place in Neshoba County is not undergirded. First, as noted, Sara's body was found in a pond in Lauderdale County, not in Neshoba County. Second, in Weaver's third statement, he said that after shooting Sara, he "panic[k]ed and tried to put her in a tranquil place in a pond within just a few yards from where she pulled over . . . ." According to Weaver's trial testimony, he snatched the truck out of gear and pulled it over to the side of the road approximately a mile from the casino in Neshoba County. Weaver does not claim, and there is no evidence in the record, that Sara's body had been relocated from a pond in Neshoba County to the pond in Lauderdale County where it was found. Additionally, Crosby, a defense witness, testified that he located a pond[3]in Neshoba County approximately 100 to 150 yards off of Highway 19 and approximately fifteen miles from the casino. It is interesting that the pond that Weaver said he walked to to wash the pepper spray off his face after he shot Sara was approximately 150 yards from the highway (the same distance from the highway to the pond found by Crosby), except that Weaver identified the highway as Highway 16, while Crosby identified the highway as Highway 19. In light of this evidence and the fact that Sara's body was found in Lauderdale County, a jury could reasonably find or conclude that the killing took place in Lauderdale County because the jury was required to view the evidence in the light most favorable to the State.

         ¶20. Weaver admits that a "rebuttable presumption" was raised that the killing took place in Lauderdale County because Sara's body was recovered there, but he contends that he rebutted the presumption. See Fairchild v. State, 459 So.2d 793, 799 (Miss. 1984), for the proposition that the fact that a body is found in a certain county "raises a rebuttable presumption, or supports an inference, that all or part of the homicide took place in [that county]."

         ¶21. After hearing arguments from both sides regarding this issue, the trial court cited Fairchild, and held:

But - - no question but that [Sara] was found in Lauderdale County. There is [a] rebuttable presumption under the law that all or part of the homicide took place in Lauderdale County under those circumstances.
And I think that's what the jury is going to have to determine. Where there is - - there is testimony here that there was an argument, there was pepper spray, and then there was - - at least his version is - - and that occurred up in Newton County [sic]. And then there [are] other statements that [Weaver] has given that they ...

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