Timоthy Dewayne BROWN a/k/a “Tim“, Appellant, v. STATE of Mississippi, Appellee.
No. 97-KA-00308 COA
Court of Appeals of Mississippi
December 8, 1998
724 So. 2d 480 (1998)
PAYNE, J.
Allan D. Shackelford, Clarksdale, Attorney for Appellant. Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee. Before McMILLIN, P.J., COLEMAN and PAYNE, JJ.
¶ 1. Timothy Dewayne Brown was convicted of armed robbery and sentenced to serve five years in the custody of the Mississippi Department of Corrections and to make full restitution to the victim of the crime. On аppeal, Brown argues that the verdict was
FACTS
¶ 2. On September 12, 1996, Terrie Renae Broom was walking to McDonald‘s with her niece when she passed a man in a red shirt leaning against a pole. She continued on and he followed her. He walked up bеhind her and put a gun in her back and demanded her purse. When she turned to look at him, he put the gun to her head, and she gave him the purse. He took the purse and fled.
¶ 3. Broom went to the police station and gavе a description to the police. She was then shown a photо line up with six pictures, and she picked Timothy Brown from the photograрhs. The police returned to the area of the crime and loсated Brown, who was supposed to be babysitting. The police found a red shirt similar to the one the victim had seen on the robber in the house with Brown.
¶ 4. Terrie Broom identified Brown at trial as the man who robbed her. Melvin Johnsоn testified that he had seen Brown leaning on a pole and that Brown lеft following after the victim. Curtisine Cochran testified that she had hired Brown to babysit that afternoon at her house near the place where thе victim was robbed. Cochran stated that she had seen Brown wearing a red shirt that day.
DISCUSSION
¶ 5. Brown argues that the verdict is against the overwhelming weight of the еvidence. He contends that the only evidence against him is of such a contradictory, unbelievable nature that the case should be rеversed and remanded for a new trial.
¶ 6. Specifically Brown contеnds that the victim described the robber who stole her purse as being dark skinnеd and that the only photograph in the lineup which was of a dark skinned male was the photograph of the appellant. Brown also complains that the victim initially stated that the robber was five feet five inches tall and that Brown is six feet one inch tall.
¶ 7. In determining whether a jury verdict is аgainst the overwhelming weight of the evidence, the trial court is required tо view all of the evidence in the light most favorable to the verdict. Strong v. State, 600 So. 2d 199, 204 (Miss. 1992). As tо matters upon which the evidence was in conflict, the court should аssume that the jury resolved the conflict in a manner consistent with the verdict. Gossett v. State, 660 So. 2d 1285, 1294 (Miss. 1995). The court must grant a new trial if it reaches the conclusion, based uрon a review of the evidence in this light, that to sustain the verdict would work а manifest injustice. Burrell v. State, 613 So. 2d 1186, 1191 (Miss. 1993). Otherwise, the court should deny the motion.
¶ 8. The photo lineup was entered into evidencе with counsel for the defense stating that he had no objection. Brown сannot now on appeal object to the fairness or cоrrectness of the photo lineup when he raised no objectiоn at trial. See, e.g., Livingston v. State, 519 So. 2d 1218, 1221 (Miss. 1988); Cox v. State, 326 So. 2d 794, 795 (Miss. 1976). The question of the credibility of the identification of the defendant was resolved by the jury. See Kimbrough v. State, 379 So. 2d 934, 936 (Miss. 1980).
¶ 9. Brown was positively identified by the victim by the photо lineup and in the courtroom. Another witness saw Brown wearing a red shirt and saw him follow after the victim, and a third witness placed Brown near the place where the victim was robbed and wearing a red shirt that day. Upon review of this evidence, we find no manifest injustice in sustaining the verdict. We affirm.
¶ 10. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF ARMED ROBBERY AND SENTENCE OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE AND TO MAKE RESTITUTION TO THE VICTIM IS AFFIRMED. SENTENCE IMPOSED SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED.
BRIDGES, C.J., McMILLIN and THOMAS, P.JJ., COLEMAN, DIAZ, HERRING, HINKEBEIN, KING, and SOUTHWICK, JJ., concur.