IN THE SUPREME COURT OF MISSISSIPPI
N O. 2015-KA-01274-SCT TAMESHIA SHELTON a/k/a MICKEY

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/17/2015 TRIAL JUDGE: HON. JAMES T. KITCHENS, JR. TRIAL COURT ATTORNEYS: RODNEY A. RAY MARK TYLER JACKSON JEFFREY J. HOSFORD COURT FROM W HICH APPEALED: CLAY COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: RODNEY A. RAY ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA H. TEDDER DISTRICT ATTORNEY: SCOTT W . COLOM NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/16/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE WALLER, C.J., COLEMAN AND CHAMBERLIN, JJ. CHAMBERLIN, JUSTICE, FOR THE COURT: ¶1. On July 17, 2 0 15, a Clay County jury convicted Tam eshia Shelton of the m urder of Daniel Young. Af

ter the trial, Shelton f

iled a m otion f

or judgm ent notwit h s t anding the verdict or in the alternative f or a new trial. The trial court denied the m otion. Shelton now appeals three issues. F irst, Shelton chall e n g e s the suf f iciency o f the evidence. Second, Shelton claim s t hat the verdict is a gainst the weight of the evidence. T hird, she a lleges that the trial court erred by deny ing her requested two-theory jury instruction. Finding no error,we af

f irm Shelton’s conviction.

FACTS AND PROCEDURAL HISTORY ¶2. K e t i n a T u t t o n—Tam eshia Shelton’s y ounger sister—lived in the M h o o n V a l l e y Com m u nity of Clay C o u n t y (“Mhoon Valley ”) near W est Point, Mississippi, and Daniel Young lived in Forest, Mississippi. Tutton and Young m aintained a l ong-distance, rom antic relationship, a nd Young of ten would visit Tutton in Mhoon V a l l e y . Because Tutton lived with her m other, who disapproved o f t he couple cohabiting b ef ore m arriage, Tutton and Young would som etim es spend the night together at Shelton’s nearby residence. ¶3. On Monday , October 12, 2009, Young ar r i v e d t o v i s i t T u t t o n f o r t h e w eek.
T h roughout the week, Tutton went to work at Sitel, Inc., in Starkville, Mississippi, a n d Young visited with Tutton’s f am ily

. ¶4. On Friday , October 16, Young spent a l arge p ortion of the day at Shelton’s h ouse. He repaired her car, changed her oil, and worked o n an old truck parked at Shelton’s house. At

s om e point in the d ay , Shelton’s cousin asked t o see Shelton’s .22 c aliber revolver. She showed him t h e handgun and then cleaned and oiled all six o f i ts cham bers. Late in the

a f ternoon, Shelton cooked dinner, and Y oung ate with Shelton and Tutton’s m oth e r a t Shelton’s house. ¶5. Around 8:00 p.m ., af ter running som e e r

rands, T utton and Young returned to Tutton’s house. W hile p arked in the d riveway , Tutton t old Young that she was n o l onger planning to relocate to M eridian in t h e i mme d i ate f uture to b e closer to Young a s Sitel had hired her
perm anently

. The couple had a heated discussion that lasted f if t een to t wenty m inutes bef ore

2they

exited the car. Tutton testif ied that there was no phy sical altercation between her and Young. Af

t e r t he d iscussion, Tutton walked toward the rear of her m other’s house, and Young walked t oward Shelton’s house along t he driveway that connected t he two houses. Tutton entered her m o ther’s house and watched television with her m other and a sister. ¶6. Som etim e af

ter T utton saw Young w alking t oward Shelton’s h ouse, Shelton alleged that she heard a k

nock on her bedroom window. 1 Shelton claim s that Young w as at the window a nd asked her f

or her pistol in order to shoot a raccoon out of a tree. Young asked
f or just one bullet, but Shelton loaded six b ullets into t he handgun. Shelton claim ed that she walked t o the f

ront room of the house and gave Young the handgun. S he asked him to return and show her the raccoon once he had shot it. ¶7. S h e l t o n c laim ed t o have heard one shot shortly a f t er Young lef

t her hou s e . S h e alleged that she searched f or Y o u n g , calling his nam e . According to Shelton, she f ound Young ten to f

if t een y ards f

rom the driveway , ly ing f

ace-down i n the grass under a large tree. She claim ed that Young was grunting. Shelton im m ediately called 911 and r em ained on the phone until o f

f icers r e sponded to the scene. She reported the incident to the 911 d ispatcher

as “an accidental shooting” and m entioned—several tim es—tha t Y o u n g had intended to shoot a raccoon. ¶8. Tutton—still at her m other’s house—heard the gunshot but thought the sound was a f irecracker exploding. It was not until a neighbor inf o rm ed Tutton’s m other of a shooting in Mhoon Valley that Tutt o n knew the sound had been a gunshot. T utton drove to her

1 S h elto n w as in terv iew ed sev eral tim es t h ro u g h o u t th e in v estig a t io n . A t trial, th e S tate en tered th e reco rd in g s o f h er in terv iew s in t o ev i d e n c e an d p lay ed th em to th e j u ry .

3sister’s h ouse on t he back driveway because her sister owned a black Mustang car, and the

neighbor said that it was m entioned on the police scanner. Af t er looking in S helton’s house,
Tutton saw Shelton standing in the road. Shelton t old Tutton that Y oung ha d b e e n s hot.
Tutton f ound Young in the grass and “went crazy .” She s c ream ed and pu l led her hair and clothing. Tutton rem em

bered hearing sirens shortly af t er this. ¶9. D e p u t

y Cassandra Sm ith and Of f icer Torrey W illiam s (“Torrey ”), 2 a n a u x i l i a r y o ffi c e r with C lay County , were the f irst r esponders to the scene. They saw S helton s tanding in the

m iddle of the road, pointing toward her h ouse. Shelton w as cry ing a n d appeared distressed.
Sm ith f ollowed Shelton up the driveway to where Young lay

in the grass. ¶10. Sm ith testif

ied that Shelton was hy ste r i c a l l y scream i ng, “You’re late. You’re late.
He’s dead.” Sm ith called o ut to Young a nd touched his b ack b ut f elt no m ovem ent. Shelton began searching f

or the pistol, prom

p ting Sm ith to ask her i f Young had been shot. Shelton kept repeating, “I’ve got to f ind the gun.” She told Sm ith that the gun was a n h eirloom and that she had “to f

ind i t.” Sm ith saw the pistol on the ground a nd did not m ention it to Shelton. Instead, Sm ith escorted Shelton away f rom Y oung a nd b ack t oward the f ront of the trailer. Sm ith then instructed Torrey t o call Of f icer Ram irez W illiam s (“Ram irez”) 3 and inf orm him that she suspected that there had been a m urder. ¶11. Sm ith said that Shelton rem aine d h y s t e r i c a l a n d s h e n o t i c e d t h a t Shelton was

2 O f f icer T o rrey William s w ill b e ref erred t o b y f

irst n am e in o rd e r t o av o id co n f u sio n w i th O f f icer R am irez William s.

3 O f f icer R am irez William s w ill b e ref erred t o b y f

irst n am e in o rd er to av o id co n f u sio n w ith O f

f i cer T o rrey William s. 4constantly wiping her hands on h er baby ’s blanket as she held her baby

. Torrey also testif ied that Shelton was upset and constantly wiping her hands together when she was i n the trailer later that evening. ¶12. As Sm ith a nd Torrey began to cordon of f the a r e a a round Y oung, Of f icer W illiam Knowles responded to the scene. Knowles checked Young f or a pulse but d id not f

eel one. He then assisted the EMTs in turning Young over. The EMTs pronounced Young deceased, and Knowles took charge of Young’s body and began a hom icide invest i g a t i o n . Knowles noted the gunshot w ound o n Young’s chest and d iscovered the handgun which lay below Young’s f

eet. ¶13. Once Ram irez arrived at the scene, he exam i ned Young’s body and the position of the handgun. He t hen brief

l y interviewed Shelton. Ram irez testif ied that, af

t er inspecting the scene and interviewing Shelton, “it just wasn’t looking like an accidental shooting to m e.” ¶14. Next, S m i t h a n d T o r r e y e s c o rted Shelton t o t he s herif f ’s departm ent f

or a m ore detailed statem ent. B oth of f icers testif

ied that S helt o n w a s calm er on the drive to the sherif f ’s departm ent than earlier in the e vening. O n cross-exam ination, Torrey claim ed that Shelton was no longer wiping h er hands together, but on re-direct exami n a t i o n s t ated that Shelton was still wiping her hands together at the sherif f ’s departm ent. ¶15. M e a

n w h i l e , a ft er photos had been m ade of the scene, K nowles recovered the handg u n . He unloaded f

ive unf ired live casings a long with one em pty casing. Also, Of

f icer Brad Pettit placed paper bags over Young’s h ands to preserve evidence. Ram irez and the other of f icers also perf orm ed a grid search f

or other evidence in the vici n i t y o f Y oung’s body

. They

5discovered e vidence o f a scuf f le or altercation in the gravel driveway , f ive to ten y ards f

rom where Young’s body lay

. At t h e s i t e o f t h e scuf f le, the of f icers recovered a banana hairclip—with hair in it. ¶16. Around 12:00 a.m . t h e n e x t mo r n i n g , R a mi r ez interviewed Shelton again at the sherif f ’s departm ent. Ram irez questioned Shelton a bout t he scuf

f le that had occurred in the driveway

. S helton denied a ny kno wledge of an altercation. She also denied w earing a banana h air-clip, b ut c laim ed that Tutton som etim es wore them

. W ithout prom p ting—and
f or the f irst t im e by any one in the i nvestigation, Shelton raised the i ssue of g unpowder residue: “You can test m y clothes to s ee if I have any powder o n it [ sic]. If I would have shot him , I would have gun residue all up my a rm s—gun burn.” At the end of the interview,
Ram irez conducted a gunshot residue test on Shelton and Tutton. The t ests w ere sent to the Mississippi Crim e Laboratory

. ¶17. Over the next f

ew day s, Shelton was r e-interviewed a num ber o f tim es. Chief Deputy Eddie Scott interviewed Shelton on October 1 9. In this i nterview, Shelton claim ed that she suf f e red f rom am nesia due t o h er hospitalizatio n f o r seizures i n January 2009. She also alleged t hat she was inside her house when t he shot was f ired. Further, Shelton claim ed to have f ired the handgun on W ednesday , October 14, a t a stray d og in h er y a r d. W h ile she did not f ire the handgun on October 16, she did claim to have cleaned it that af ternoon. ¶18. Later in the af

t ernoon of October 19, A gent Geof f rey Still interviewed Shelton. For the f irst tim e, Shelton claim e d that she wore the sam e p ajam a s o n October 14 when she shot at the stray

dog as she did the night of October 16.

6¶19. On April 8, 2011, a Clay County grand jury indicted S helton f o r m u rder. A f t e r her indictm ent, Shelton was interviewed f or a f inal tim e by Lieutenant Brett W a tson on March 21, 2014. Shelton claim ed that Ram irez had sprinkled a substance onto her hands and looked

at the substance under u ltraviolet light. 4 Ram i rez denied doing so. Shelton also was hesitant in answering whether or not Tutton and Young had f ought that Friday bef

ore telling W atson that she did not rem em

ber. ¶20. Shelton was tried f o r m urder in C lay County f

rom July 14 to July 1 7, 2015. At trial,

t h e State c alled several of f icers to testif

y to their personal knowledge o f the events. S t i l l testif i ed c o ncerning his interview with Shelton that she appeared “ e vasive[ ] ” and was “try ing

to distance herself f

rom what was taking place.” He also noted the discrepancy that Shelton claim ed to have am nesia but was able to recount the week bef ore with great detail. ¶21. Lisa Funte, a m edical e xam iner who had c o n d ucted Young’s autopsy , testif ied that she had exam ined the gunshot wound and determ ined that it was consistent wi t h a s m allcaliber handgun, s uch a s a .22. She also h a d f o und a bullet inside Young. Further, Funte

t e s t i f ied that Young’s d eath was a hom icide. Funte ruled out suicide as a cause o f d e a t h because the p a t h o f t h e b u l let did not have any deviation. 5 The pathway of the bullet was

4 A s d iscu ssed in

fra , t h e resu lts o f th e f

o ren s ic testin g rev ealed th at S h elto n d id h av e p articles in d icativ e o f g u n s h o t resid u e o n h er h an d s a n d clo th i n g . B ef o re t h is f i n al in terv iew , S h e lto n h ad b e en in f o rm ed ab o u t t h e r e su l ts o f th e f o ren s ic testin g . T h is state me n t ap p e ared to b e S h e lto n ’s attem p t to d iscred it t h e resu lts o f th e g u n sh o t resid u e tests b y claim in g th at R am irez p laced th e g u n sh o t resid u e o n h er h an d s . 5 F u n te ex p lain ed in h er testim o n y th at w h en a p erso n s h o o ts h im self in th e ch est “th e b u llet g o es to o n e sid e o r th e o th er. S h e ex p lain ed t h at th is w as th e case b ecau se th e p erso n h as to b e n d h is o r h er w rist to h o l d th e f irearm an d b rin g th e b arrel ag ain st th e ch est. 7straight back a nd down. In addition to t he a utopsy , Funte perf

orm ed a gunshot residue test on Young’s hands and subm itted the test to the Mississippi Crim e Laboratory

. ¶22. Felicia R obinson, a f o rensic scientist, testif

ied that she had determ ined that the bullet recovered by Funte had b e en f ired f rom Shelton’s handgun. She also de t e r mi ned that the shell casing had been f

ired in t h e h a ndgun. I n a ddition, Robinson testif ied that her investigation revealed that the handgun had b e e n fired f rom a contact or n ear-contact position against Young’s chest in light of the burn m arks on Young’s clothes. ¶23. Jacob Burchf

ield, an ana l y st with the Mississippi Crim e Laboratory , testif ied about the results of the gunshot residue tests. He stated t hat t here were three way s f or a person to have gunshot residue on them : ( 1) discharge a f irearm , (2) b e w i t h i n two to three f eet o f a f irearm as it is discharged, or (3) handle “som ething with g unshot residue on i ts surf ace.” Burchf ield testif ied that a p e r s o n w ho shoots a f irearm l ikely would have m ore r esidue on him than som eone who was o n ly in proxim ity to the f i rearm . He also testif

ied that gunshot residue ty pically rem a ins on a person’s skin f or f our hours bef

ore a m arked decrease is noted

as a r esult of norm al activity

. Further, according to Burchf ield, residue can rem ain in clothing indef

initely

. ¶24. Burchf

i eld testif ied that Y oung’s test revealed particles i ndicative of gunshot residue

on t he backs of his hands. 6 Young’s palm s, though, tested negative f or gunshot residue.

6 B u rch f ield testif ied t h at th ree ty

p es o f resu lts w e re rep o rted b y th e M iss i s s i p p i C r im e L ab o rato r

y : p o sitiv e, n eg ativ e, an d in d icativ e . A “p o sitiv e” resu lt w as rep o rted w h en g u n sh o t resid u e w as f

o u n d . A “n eg ativ e” resu lt w as r ep o rted w h e n th ere w as n o g u n sh o t resid u e f o u n d

. L a stly , an “in d icativ e” resu lt w a s r ep o rted w h en at least th ree o u t o f f o u r o f th e categ o ries o f

p articles in g u n sh o t resid u e w ere f o u n d

. 8Shelton’s test also revealed particles indicative of gunshot residue on her p alm s and the back

of her r ight hand. Her test also revealed particles indicative of gunshot residue on Shelton’s pajam a s—both the pants and the shirt. Burchf ield also testif

ied that Tutto n ’s test was negative f

or gunshot residue. ¶25. Als o a t t r i a l , T u t t o n t e stif ied to her m em ory of the events l eading up to and af ter Young’s death. She alleged that she had inf orm ed R am irez about a tim e when Young alm ost overdosed on pain pills af ter a dental procedure. On direct e xam ination, Tutton c laim ed that she t old Ram irez about t h e i n c ident in response to a n open-ended question about any

concerns that she had h a d about Y oung during their relationship. O n cross-exam ination, though, Tutton adm itted that she had not been asked a question by R am irez bef ore she had volunteered the i nf

orm ation o n her own. Tutt o n also adm itted that she had not been concerned about suicide the night that Young died. ¶26. Edith Young—Daniel Young’s m other—testif ied that h er s on did not have a history of m ental illness, and had n ot, to her knowledge, contem plated s uicide. S he also stated that her son had not taken a num ber of pain pills a f

t er a dental procedure that he h ad when he was living in Nashville, Tennessee. ¶27. Af ter the conclusion of t h e t e s tim ony , the trial court instructed the jury —including

two instructions that e ach addressed c ircum s tantial evidence. T h e j u r y then c onvicted Shelton of f

irst-degree mu r d e r. The trial court sentenced Shelton to a l if e sentence in the custody of the Mississippi D epartm ent of Corrections. Shelton f iled a m otion f

or judgem ent notwithstanding the verdict or in t he alternative f or a new trial, and the trial court denied this

9m otion. Shelton now tim ely appeals.
ANALYSIS ¶28. To convict Shelton of m urder, t he State had t o p rove that S helton (1) killed Young (2) with the deliberate d e sign to ef f ect the death of Young and (3) without the authority of law and not in necessary

self -def ense. See Miss. Code Ann. § 97-3-19(1)(a) (Supp. 2016). 7
I. The evidence presented at trial w a s legally sufficient t o s upport the verdict. ¶29. This Court reviews a challenge to the suf f i ciency of t he evidence under the standard detailed in Bush v. State , 895 So. 2d 836, 843 (Miss. 2005). W e recognize that “the critical i nquiry ” under the standard is whether the evidence supports a f inding that the ac c u s e d
“com m itted the a ct charged

. . . under such circum stances that every e lem ent of the of f ense

e xisted.” Id

. “‘[ T]he relevant q uestion is whether, af

ter viewing the e vidence i n t h e l i g h t

m ost f avora b l e t o the prosecution, any rational trier of f act could h ave f

ound t he essential elem ents of the crim e bey ond a reasonable doubt.’” Id

. (quoting Jackson v. V irginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979) (em phasis in original)). Further: if a review of the e v i d e n c e reveals that it is of such quality and weight that, “having in m ind the bey ond a reasonable d ou b t burden of proof standard, reasonable f

a ir-m inded m en in the exercise of im partial j udgm ent m ight reach d i f f erent conclusions on every elem ent o f the of f ense,” the evidence wi l l b e

7 M ississip p i C o d e A n n o tated S ectio n 9 7 -3

- 1 9 (1 )(a) read s as f o llo w s: (1 ) T h e k illin g o f a h u m an b ein g w ith o u t th e au t h o r ity o f law b y a n y m ean s o r in an y m an n e r sh all b e m

u rd er in th e f

o l lo w in g cases: (a) Wh en d o n e w ith d elib erate d esig n to ef f e c t t h e d eath o f th e p erso n k illed , o r o f an y h u m an b e in g , s h a l l b e f irst-d eg ree m u rd er; . . . . 1 0deem ed to have been suf f icient.
Id

. ; see also Roby v. State , 183 So. 3d 857, 869 (Miss. 2016). ¶30. W e f

ind tha t t h e e v i dence was suf f i cient to s u

pport the c onviction of m urder. The evidence was undisputed that Young was killed. Am ple e xpert testim ony dem onstrated that he was killed f

r o m a single round f

ired f rom the handgun recovered at the scene. Shelton adm itted that she owned this hand g u n a n d stated—m ultiple tim es, i n separate interviews—that s he loaded the weapon bef ore Young was shot. Shelton also had gunshot residue on her hands and pajam as. In addition, she was t he f irst p erson in the investigation

to ref erence gunshot residue when she stated in an i nterview soon a f ter t he shooting: “You

can test m y clothes to see if I h ave any powder on it. [ sic] If I would have shot him , I would have gun residue all up m y arm s—gun burn.” Further, there was no evidence to show that Shelton was acting in self -def ense. All the evidence together w as suf f icient s ince a rational trier of f act could establish each elem ent bey ond a reasonable doubt. ¶31. The f

orensic evidence supported the jury ’s determ ination that Shel ton had f ired the
f irearm

. Burchf

ield testif ied that h e would expect to see m ore gunshot residue on the person who discharged the f

irearm t han o n a person who was only in t he vicinity of the discharged
f irearm

. The results of the f orensic tests dem o nstrated that Shelton d id h ave m ore gunshot residue on her skin at the t im e of testing than Y o u n g d i d

. T h i s was t he case even though Young’s hands were placed inside paper bags t o preserve the gunshot residue o n them

. Also,

m ore gunshot r esidue was p resent on Shelton’s h ands than o n Y oung’s hands despite the f act that she was tested f

our hours a f

ter the shooting—af

t er she had continued to w ipe her hands.

1 1Burchf

ield also t estif

ied that norm al activity over a period of f our hours would signif

icantly reduce the am o u nt o f gunshot residue on a person’s hands. W hile Shelton claim ed to have cleaned the f

irearm e arlier in t he day , she c l eaned the f irearm well over f

our hours bef

ore the shooting and p repared a nd a t e d i n n e r i n the i nterim

. Thus, it is not likely that the gunshot residue was on S helton f

rom handling the f

irearm earlier that day

. T his e vidence supported the argum ent that Shelton f ired the f irearm the evening that Young died. ¶32. The com

bined e vidence also allo w e d t h e j u r y t o determ ine that Shelton had shot Young deliberately

. Funte testif ied that she had determ ined Young’s death to be a hom icide based on the trajectory of t he bullet. Robinson’s testim ony supported Funte’s c onclusion,

as the weapon was f

ired f rom a contact or n ear-contact p os i t i o n . Ram irez also testif ied to his im pression that the shooting was not accidental. Further, the evidence o f t he scuf f le or altercation, a long with Shelton wiping her hands a f t er the shooting, was suf

f icient to support the jury ’s determ i nation that Shelton intended to shoot Young. ¶33. There a lso w as n o evidence that Shelton’s i ntentional killing w as j u s t i f i e d by law.
None of the f

orensic evidence supported a theory of self -def ense. There was no testim ony to support such a claim

either. ¶34. Further, there was evidence that showed that Young did not com m i t suicide. Young’s

m other testif

ied that, to her knowledge, Young had not attem pted suicide and did not have
any m e ntal illnesses. Additionally , Funte’s testim ony c oncerning t he trajectory of the bullet in Young’s body

dem onstrated that suicide would have been unlikely

. ¶35. Bey ond the t estim ony a nd f o r e n s i c evidence, t here was reason f or the jury to doubt

1 2Shelton’s account of the evening. She claim ed to suf f er f rom am nesia but was readily able

to recount the events of t he week in g reat detail. She also insinuated that t he police planted the gunsh o t residue on h er—an allegation that was not supported by any evidence in the record. Thus, the jury had reason to doubt Shelton’s account. ¶36. Under our standard of review, the question bef

ore us is not whether we believe that the evidence established guilt b e y ond a reasonable doubt. Instead, it is whether, af ter viewing the evidence in the light m ost f avorable t o the v erdict, a rational trier of f act could have f ound the e lem ents of the crim e bey ond a r easonable doubt. W e f ind that each elem ent of the crim e is supported by suf f icient evidence.
II. The verdict is not against the w eight of the evidence. ¶37. W h en reviewing a challenge that the verdict i s a g ainst weight of the e vidence, this Court “will only

disturb a verdict when it i s s o contrary to the overwhelm ing weight of the evidence that to allow it to stand would sanction an u nconscionable injustice.” Bush , 895
So. 2d at 844. Under this s tandard, “the evidence s hould be weighed in t h e l i g h t mo s t f avorable to the verdict.” Id

. ¶38. W e f

ind that t he verdi c t i s n o t a g a i n s t the weight of the evidence. Much of the analy sis under the suf

f iciency of the evidence applies to this d iscussion as well. The f orensic

e v i d e n c e presented at trial d e m onstrated that Shelton h ad shot Young. In addition, th e trajectory of the b ullet through You n g ’ s b o d y m ade the theory of suicide highly unlikely

. Further, Young did n ot have any known m ental i l l n e s s e s a n d h ad not attem pted suicide.
W e ighing the evidence “in the light m ost f avorable t o the verdict,” we conclude that t h e

1 3verdict is not against the weight of the evidence.
III. The trial court’s r efusal of the t w o-theory jury instruction w as not an abuse of discretion. ¶39. Shelton argues that t he trial c o u r t e r r e d i n r e f u s ing her r equested t wo-theory jury instruction. 8 This Court reviews the grant or ref usal of a jury instruction “under an abuse-of

discretion standard.” McInnis v. State , 61 So. 3d 872, 8 75 ( Miss. 2 011). The t rial court is “allowed to ref

use an instruction which incorrectly states the law, is covered f a irly elsewhere in t he instructions, or is without f oundation in the evidence.” Roberson v. State , 199 So. 3d 660, 664 ( Miss. 2 0 16). “Jury instructions m ust be read as a whole to determ ine if they f airly announce the law.” McInnis , 61 So. 3d at 875 (citations om itted). ¶40. “Circum s tantial evidence is ‘evidence which, without g o i n g d i r e c t l y to prove the existence of a f

act, gives rise to a logical inf erence that such f

act does exist.’” Id

. (quoting Keys v. State , 478 So. 2d 266, 268 (Miss. 1985)). The trial court is allowed to “ref use a twotheory instruction if i t h as granted a (g e n e ral) circum stantial evidence instruction.” Id

. (em p h a s i s in original); see a lso Goff v. State , 14 So. 3d 6 25, 662 (Miss. 2009) (quoting

8 “A tw o -th eo ry i n stru ctio n in stru cts th e j u ry w h at to d o w h en th e ‘reco rd su p p o rts tw o o r m o re h y

p o th eses o f th e crim e co m m itted ’ an d all th e ev id en ce o f th e crim e is circu m stan tial.” M

c In n is v. S t a te , 6 1 S o . 3 d 8 7 2 , 8 7 5 (M i ss. 2 0 1 1 ). T h e in s tru c t io n ref u sed h ere, In s tru ctio n D

- 6 , p ro v i d ed : T h e C o u rt in stru c ts th e j u ry t h a t i f th e S tate h as relied o n circu m stan tial ev id en ce to estab lish its th eo ry o f g u ilt o f th e D ef

en d an ts, th en th e ev i d en ce f o r th e S t ate m

u st b e so stro n g as to estab l ish th e g u i lt o f th e D ef en d an t , n o t o n ly b ey o n d a reaso n ab le d o u b t, b u t th e ev id en ce m u st b e so stro n g as to ex clu d e ev ery

o th er reaso n ab le h y

p o th esis o th er th an t h at o f g u ilt.

1 4Kitchens v. State , 300 So. 2d 9 22, 926 (Miss. 1974)) (“‘In a case based entirely on

circum stantial evidence, if a n instruction is allowed that the e vidence m ust exclude every reasonable theory other than that of guilt, that is hel d to em body the essentials of the two-theory

instruction, and ref

usal of the latter is not reversible error.’”). ¶41. W e f

ind that the t rial court did not abuse its discretion in deny ing the requested twotheory i nstruction since two other jury instructions f airly instructed the jury as to the law. Further, it is not necessary f or us to determ ine whether the e vidence a gainst Shelton was

com pletely circum s tantial because a trial court, u n d e r M c I n nis , m ay ref

use a two-theory ins t r u c t ion—even where all of the evidence i s circum stantial—if it has given a circum stantial evidence instruction as the trial court did here. ¶42. The trial court gave I nstruction C-12, a circ u ms t a ntial-evidence instruction, which read: The Court instructs the jury that the l aw presum es every person charged with the com m ission of a crim e to be innocent. This p resum ption places u

pon the State the burden of proving the D ef endant guilt y bey ond a reasonable doubt and to the exclusion of every reasonable hypothesis c onsistent w ith innocence

. The presum

ption of innocence of the Def endant prevails unless overcom e by evidence which satisf

ies t he jury of the Def

endant’s g uilt bey ond a r easonable doubt and to the exclusion of every reaso n a b l e hypothesis, consistent w ith innocence . The Def

e ndant is not required to prove his or her innocence. (Em phasis added.) The l anguage of this instruction f airly i nstructed t h e j u r y o n the law governing circum stant i a l e v idence. W hile the ref used, two-theory instruction included stronger language concerning circum stantial evidence, it did not provide instruction that was

m aterially dif

f erent or additional to the law covered in Instruction C -12. The t rial court also instructed the jury

with Instruction S-2A:

1 5The C ourt instructs the Jury that if y ou f ind f rom t he evidence i n this c ase bey ond a reasonable doubt and to the exclusion of every reasonable hypothesis consistent with i nnocence that the D ef e n dant, Tam eshia Shelton, did on or about O ctober 1 6 , 2009, unlawf ully , willf

ully , f eloniously , purposely and knowingly with the deliberate design to ef f ect death, kill a n d mu r d e r D aniel Young, a hu man being without authority o f law and not in necessary self

def ense[ , t]hen y ou shall f

ind the Def

endant guilty as charged. If the State h as f ailed to prove a ny of these elem ents bey ond a reasonable doubt and to the exclusion of every reasonable hypothesis c onsistent with innocence , then y ou shall f ind the Def

endant not guilty

. (Em phasis added.) This i nstruction reinf or c e d I n s truction C-12’s guidance on circum stantial evidence. Thus, we f

ind that the trial court did n ot abuse its discretion by ref u sing the twotheory instruction.
CONCLUSION ¶43. The evidence was legally suf f icient t o support the verdict and the verdict is not against the overwhelm ing weight of the evidence. Further, the trial court did n ot abuse i ts discretion when it ref

used S helton’s requested instruction. Thus, f inding no error, w e af

f irm Shelton’s conviction and sentence. ¶44. CONVICTION OF M URDER AND SENTENCE OF LIFE IMPRISONMENT IN THE CUSTODY O F THE M ISSISS I P P I D E PARTMENT OF CORRECTIONS, AFFIRMED. WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., KITCHENS, KING, COLEMAN, MAX WELL AND BEAM, JJ., CONCUR.

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