Court: Court of Appeals of Mississippi; May 29, 2012; Mississippi; State Appellate Court
Thomas Austin appealed the denial of his motion for a judgment notwithstanding the verdict (JNOV) or a new trial by the Lowndes County Circuit Court, claiming insufficient evidence supported his conviction for being a felon in possession of a weapon under Mississippi law. The court affirmed the lower court's decision.
Austin was indicted on July 30, 2009, on three counts of possession of a weapon by a convicted felon and four counts of armed robbery, with some counts later retired to the file. On May 26, 2010, he was convicted for possessing a Benelli 12-gauge shotgun and sentenced to ten years as a habitual offender. A jury could not unanimously convict him on a second count involving a .45-caliber handgun, leading to a retrial on February 22, 2011, where he was found guilty and given a consecutive ten-year sentence.
The facts leading to his arrest began on March 12, 2009, when Officer Lance Luckey observed Austin's vehicle with unbelted occupants, prompting a traffic stop. During the stop, Austin admitted he had no driver's license, and Officer Luckey, noticing the smell of marijuana, asked to search the vehicle. During the search, marijuana leaves and an open beer container were found. Austin later disclosed the presence of a weapon in the trunk, where Officer Luckey discovered both the inoperable shotgun and an operable .45-caliber handgun, though no magazine was found for the latter. Austin admitted his status as a convicted felon during the encounter, leading to his arrest. Investigator Terry Dentry, who later examined the scene, did not test the handgun's operability.
Austin testified that a shotgun in his car belonged to his stepfather and that he had possessed it since January. He also stated he found a .45-caliber handgun in a ditch shortly before a traffic stop, which he cleaned and placed in a toiletry bag. On February 23, 2011, Austin was convicted as a habitual offender on Count II of the indictment and sentenced to ten years by the MDOC. He subsequently filed a motion for judgment notwithstanding the verdict (JNOV) or a new trial, which the circuit court denied. Austin is appealing his conviction, challenging the sufficiency of the evidence.
A JNOV motion focuses on whether a rational jury could find the essential elements of the crime beyond a reasonable doubt, as established in case law. The Mississippi Code Annotated Section 97-37-5(1) prohibits firearm possession by convicted felons unless they have received a pardon, relief from disability, or a certificate of rehabilitation. It is undisputed that Austin is a convicted felon and acknowledged his possession of the handgun, arguing only that there was insufficient evidence to prove it was operable.
Officer Luckey testified that upon searching Austin's trunk, he found a 12-gauge shotgun that was inoperable and a green and white toiletry bag containing the .45-caliber handgun, which was functioning. The officer confirmed that all mechanisms of the handgun worked, and it only required a magazine to fire. Austin referenced the case Burnside v. State, where a gun was deemed permanently inoperable. However, the court distinguished Austin's case by noting that his handgun was not permanently inefficient, and thus constituted a "firearm" under the law, despite the lack of a magazine.
There is no requirement under Mississippi law for a firearm to be properly loaded when found in the possession of a convicted felon. Mississippi Code Annotated section 41-29-152(2) defines a firearm as any weapon capable of expelling a projectile by explosive action. The evidence presented, including testimony and physical evidence of a .45-caliber handgun found in Austin's vehicle, supports the conclusion that Austin, a convicted felon, possessed a firearm. Austin's post-trial motion claimed the jury's verdict was contrary to the overwhelming weight of the evidence, but he did not pursue this issue on appeal, leading to its procedural bar. Consequently, the judgment from the Lowndes County Circuit Court convicting Austin of being a felon in possession of a firearm is affirmed, with a ten-year sentence as a habitual offender to run consecutively with any other sentence, without eligibility for parole or probation. All appeal costs are assigned to Lowndes County. The vehicle in question belonged to Austin's girlfriend.
