Sims v. StateSims v. State
FACTS
¶ 2. Sims was indicted for shoplifting a case of beer from a Jones County store. The cashier testified that while she was on duty on the relevant night, Sims/the aрpellant entered the store several times. After he left the last time, the cashier noticed that a case of beer was missing from the display. The next day, she and the owner viewed the previous night‘s surveillance video, and it showed Sims taking the merchandise. A few days later, Sims entered the store again. At that time the cashier asked Sims if he was going to pаy for the beer. After declining to do so, the cashier called the police. Officer Jason Strickland responded to the call and viewed the video.
¶ 3. Sims was indicted for shоplifting. The indictment was later amended to add habitual offender recitals. Sims was convicted and his appeals has been deflected here.
DISCUSSION
1. Admissibility of Surveillance videotape
¶ 4. Sims argues that the surveillanсe tape was not properly authenticated, that it was not the original and that the chain of evidence has been broken. The tape was admitted during the testimony of the cashier who was the only clerk on duty the night the case of beer was stolen. However, before being admitted, the defense was allowed to question the cashier about the videotape. She testified that she had no knowledge of the tape being copied and that it was the tape that she had viewed at the district attorney‘s offiсe the day before the trial and also the morning after the incident. The tape was then admitted over the objections by the defense.
¶ 5. As to chain of custody, Officer Stricklаnd testified that the owner turned the tape over to him at the police station approximately thirty minutes after the officer took the incident report and viewed the video at the store. Strickland then gave the video to a detective. That detective did not testify, and the cashier was the only other witness who testified as to what was on thе video and its custody. The absence of testimony from individuals who at various times had the evidence in their possession does not prevent admission of the videotape, as every person who comes into contact with the evidence need not testify. Gilley v. State, 748 So.2d 123, 127 (Miss.1999).
¶ 6. A defect in a chain of custody arises if there is any suggestion of tampering or substitution of evidence. Wells v. State, 604 So.2d 271, 277 (Miss.1992). No evidence of such tampering was introduced. The cashier agreed that the tape accurately reflected the scene in the store on thе relevant night, though she had not witnessed the shoplifting itself that was captured on film.
¶ 7. The defense argues that the tape had been condensed for trial purposes, but
¶ 8. As to the authentication of the tape, Sims argues that the tape is a copy. However, as stated previously, there was no evidence of that introduced at trial. Additionally, the tape was properly authenticated by the cashier, who was familiar with the scene depicted on the tape. Wells v. State, 604 So.2d 271, 277 (Miss. 1992). The cashier testified that the vidеotape was an accurate depiction of the store on the night in question. It was properly authenticated.
2. Habitual Offender
¶ 9. Sims next argues that there were three errors that invаlidate his being sentenced as a habitual offender. We will discuss each in turn.
¶ 10. Sims states that the indictment was amended to include the habitual offender recitals without notice to him. He acknowledges that an indictment may be amended to add a habitual offender charge.
¶ 11. Even when an amendment is otherwise proper, it should be permitted only if the accused has “a fair oppоrtunity to present a defense and is not unfairly surprised.”
¶ 12. The second alleged error as to the amendment is that one of the prior felony convictions relied upon by the State occurred after the crime of shоplifting for which he was being tried. In December of 1998, Sims had been sentenced for burglary of a building, a sentence that was imposed after the April 1998 shoplifting incident. We find no requirement that a prior felony conviction used to enhance a sentence must have been entered before the crime occurred for which sentence is to be prоnounced. The habitual offender statute states this:
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.
¶ 13. That the enhancing conviction precede the new conviction is the only date requirement. Here, Sims was convicted of felony shoplifting in May 1999 and at that time had two prior felony conviсtions. Sims is subject to the habitual offender statute.
¶ 14. The final alleged error is that the State did not prove the existence of
¶ 15. Here, the prior sentencing orders were not formally introduced into evidence at the sentencing hearing. Instead, Sims was questioned in open court by the judge immediately after the jury‘s verdict. Sims admitted to both convictions without objections from the defense. A certified copy of the commitment papers for one felony conviction and a copy of the sentencing order for the second felony conviction were filed with the court papers the next day, but we find no reference to them at the sentencing hearing. Sims‘s attorney made no objection to the State‘s failure to place certified commitment papers into evidence.
¶ 16. In his response to the court‘s questions, Sims admitted that the two previous felony convictions charged in the indictment had occurred. When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so the first time on appeal. Cummings v. State, 465 So.2d 993, 995 (Miss.1985). In Cummings, the defendant alleged that the State did not prove beyond a reasonable doubt that he met the requirements of the habitual offender statute. Id., (referring to
¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF FIVE YEARS IN THE MISSISSIPPI DEPARTMENT OF CORRECTIONS AS AN HABITUAL OFFENDER IS AFFIRMED. SENTENCE TO RUN CONSECUTIVE TO LAUDERDALE COUNTY BURGLARY SENTENCE. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.
McMILLIN, C.J., KING, P.J., BRIDGES, IRVING, LEE, MOORE, MYERS, PAYNE, AND THOMAS, JJ.,