Kevin Wayne Sherrod v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-KA-00720-COA

KEVIN WAYNE SHERROD A/K/A KEVIN APPELLANT
SHERROD A/K/A KEVIN W. SHERROD

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/17/2013
TRIAL JUDGE: HON. DALE HARKEY
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: BENJAMIN ALLEN SUBER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
DISTRICT ATTORNEY: ANTHONY N. LAWRENCE III
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF POSSESSION OF A
CONTROLLED SUBSTANCE AND
SENTENCED TO TWENTY-FOUR YEARS
IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH
EIGHTEEN YEARS TO SERVE AND SIX
YEARS OF POST-RELEASE SUPERVISION
DISPOSITION: AFFIRMED: 09/30/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, JJ.

FAIR, J., FOR THE COURT:

¶1. Kevin Sherrod was tried and convicted of possession of a controlled substance. On

appeal, he seeks a new trial, asserting that: (1) the court erred in excluding a packet of

powdered sweetener from evidence, and (2) the verdict runs contrary to the weight of the
evidence. Finding no error, we affirm.

FACTS

¶2. On or about April 20, 2011, Gennice Hayes and Sherrod were riding around a

Walmart parking lot in Pascagoula, Mississippi. Walmart security charged Hayes with

trespassing According to the record, she had been caught trespassing on the property once

before. Walmart Loss Prevention called the police to remove Hayes from the property.

During the arrest, one of the officers returned to the vehicle to retrieve Hayes’s purse.

Sherrod asked the officer if he could keep the purse to bail Hayes out of jail. The officer

informed Sherrod that the purse needed to be inventoried and that he would have to come to

the station to post bond for Hayes. Sherrod complied. At the station, the police inventoried

the purse and found a pack of cigarettes containing two clear bags. Hayes saw the bags

through the booking window and repeatedly stated they did not belong to her. The dispatch

supervisor informed Sherrod that he could not collect the purse because narcotics had been

found. At that point, Sherrod stated that the narcotics belonged to him. Testing at the

Mississippi Crime Laboratory revealed that the substances were a combined 11.8 grams of

cocaine. Sherrod was indicted pursuant to Mississippi Code Annotated section 41-29-

139(c)(1) (Rev. 2013) for possession of Schedule II controlled substance.

¶3. Sherrod pled not guilty at trial. He testified that although he originally stated the

narcotics were his, he did so to protect Hayes. The jury found Sherrod guilty. He was

sentenced to serve twenty-four years in the custody of the Mississippi Department of

Corrections, with eighteen years to serve and six years of post-release supervision. Sherrod’s

2
motion for a new trial was denied, and he now appeals.

DISCUSSION

1. Exclusion of Evidence

¶4. “The standard of review governing the admission or exclusion of evidence is abuse

of discretion.” Catchings v. State, 39 So. 3d 943, 950 (¶29) (Miss. Ct. App. 2009) (citing

Williams v. State, 991 So. 2d 593, 597 (¶8) (Miss. 2008)). Further, “the admission or

exclusion of evidence must result in prejudice or harm if the cause is to be reversed on that

ground.” Lenard v. State, 77 So. 3d 530, 534 (¶13) (Miss. Ct. App. 2011) (quoting Harper

v. State, 887 So. 2d 817, 829 (¶57) (Miss. Ct. App. 2004)).

¶5. At trial, the State presented Velveda Harried as an expert in forensic science and drug

analysis. Harried testified that she tested the two bags police recovered from Hayes’s purse.

She further testified that the two bags, which were entered into evidence, contained a total

of 11.8 grams of cocaine. On cross-examination, defense counsel handed Harried a

sweetener packet and asked her to identify it. The State objected. Defense counsel stated

that the one-gram sweetener packet was intended to provide the jury a visual of a substance

weighing one gram. The circuit court ultimately concluded the evidence was irrelevant. The

judge reasoned that the actual drugs seized were in evidence and an expert witness testified

the drugs weighed 11.8 grams combined.

¶6. Mississippi Rule of Evidence 401 defines “relevant evidence” as “evidence having

any tendency to make the existence of any fact that is of consequence to the determination

of the action more probable or less probable than it would be without the evidence.”

3
¶7. Sherrod argues that the court committed reversible error by excluding the sweetener

packet from evidence. He asserts that the packet was relevant to show the jury the quantity

of narcotics found in Hayes’s purse. We disagree. The sweetener packet does not “make the

existence of any fact that is of consequence to the determination of the action more probable

or less probable.” See M.R.E. 401. The expert who tested the substances testified to their

weight and classification. There was no testimony that the sweetener has the same

consistency and weight, occupies the same volume, or has any other similarity to the seized

narcotics. More importantly, the seized substances were themselves admitted into evidence.

Sherrod’s theory of defense did not challenge the weight of the substance. For these reasons,

we cannot find that the circuit court abused its discretion in excluding the sweetener packet

from evidence. Nor can we find Sherrod was prejudiced by the exclusion. This issue is

without merit.

2. Weight of the Evidence

¶8. “When reviewing a denial of a motion for a new trial based on an objection to the

weight of the evidence, we will only disturb a verdict when it is so contrary to the

overwhelming weight of the evidence that to allow it to stand would sanction an

unconscionable injustice.” Bush v. State, 895 So. 2d 836, 844 (¶18) (Miss. 2005) (citing

Herring v. State, 691 So. 2d 948, 957 (Miss. 1997)). New trials should only be granted in

“exceptional cases.” Id. (citation omitted). When making this determination, “the evidence

should be weighed in the light most favorable to the verdict.” Id. (citing Herring, 691 So.

2d at 957).

4
¶9. Officers Dale Gordon and James Catchot, both present at the scene, testified at trial.

Officer Gordon stated that when he opened the door to Hayes’s vehicle, Sherrod was holding

onto Hayes’s purse. Officer Gordon further testified that Sherrod insisted on keeping the

purse so that he could bail Hayes out of jail. Officer Catchot stated that he inventoried

Hayes’s purse and discovered the substances in the cigarette package. Daniel Lebatard, the

dispatch supervisor, testified that Sherrod claimed the drugs at the station.

¶10. Sherrod testified at trial that the drugs did not belong to him, and that he only claimed

them so that Hayes could go home to her children. Sherrod also stated that, contrary to

Officer Gordon’s testimony, he never held onto Hayes’s purse during Hayes’s arrest.

¶11. “It is well-settled law that the jury determines the credibility of the witnesses and

resolves conflicts in the evidence.” Watson v. State, 127 So. 3d 270, 272 (¶9) (Miss. Ct.

App. 2013) (citing Davis v. State, 866 So. 2d 1107, 1112 (¶17) (Miss. Ct. App. 2003)). We

cannot find that allowing the guilty verdict to stand would sanction an unconscionable

injustice. Given two conflicting statements by Sherrod, the jury found one more credible.

It resolved conflicts in the evidence in the favor of the State, a resolution within its power

and in accord with its duty. This issue is without merit. The judgment of the circuit court

is affirmed.

¶12. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT OF
CONVICTION OF POSSESSION OF A CONTROLLED SUBSTANCE AND
SENTENCE OF TWENTY-FOUR YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH EIGHTEEN YEARS TO
SERVE AND SIX YEARS OF POST-RELEASE SUPERVISION, IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

5
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND JAMES, JJ., CONCUR.

6