IN THE SUPREME COURT OF MISSISSIPPI NO. 2017-KA-00178-SCT EDDRICK WILLIS CY

R US a/k/a EDDRICK CY RUS a/k/a EDDRICK W. CY

R US

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 01/12/2017 TRIAL JUDGE: HON. JON MARK W EATHERS TRIAL COURT ATTORNEYS: TIMOTHY KEVIN BYRNE STEVEN ALFRED KOHNKE JACK LUCIAN DENTON DECARLO CHAS HOOD COURT FROM W HICH APPEALED: ATTORNEYS FOR APPELLANT: FORREST COUNTY CIRCUIT COURT OFFICE OF THE STATE PUBLIC DEFENDER BY: BENJAMIN ALLEN SUBER GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 02/08/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE KITCHENS, P.J., KING AND COLEMAN, JJ. KING, JUSTICE, FOR THE COURT: ¶1. On Decem

ber 1 3 , 2016, a jury convicted E ddrick C y rus of sale of less than t wo gram s of a controlled substance. Cy rus appeals his conviction, arguing that t he verdict w as against the overwhelm i ng w eight of the e vidence and that he is consequently entitled to a new trial.Because the verdict is not against the overwhelm ing weight of t he evidence, this Court

af f irm s his conviction. FACTS AND PROCEDURAL HISTORY ¶2. On July 30, 201 4 , C y r u s s o l d heroin to Joshua Kizziah, a c o nf idential inf

orm ant

m aking a controlled buy arrang e d b y Agent Benji Hensarling. The buy w as captured on a very c lear video that depicted Cy rus giving Kizziah two ba g s i n e x c hange f or m oney . The video had a tim e stam

p on it o f “2001/02/14.” Agent Hensarling testif ied that no one ever

s ets the clock on the video equipm ent. Kizziah gave the two bags t o Agent Hensarli n g . Agent Hensarling testif

ied that he placed the alleged heroin i n a bag, heat sealed the bag, and
p l aced it in the locked Metro Evidence locker. Sergeant J o e Kennedy testif ied t h a t h e observed Com m ander A dam s r etrieve the bag f rom the e vidence locker. He testif ied that he then transported the bag to t he M i ssissippi Forensics Laboratory

. A drug analy st f rom the Forensics Lab testif

ied r e g a r d i n g the F orensics Lab’s chain of custody procedures. She determ ined that the bag contained heroi n a n d t h e n o n - c o ntrolled substance diphenhy dram ine. Agent Hensarling testif

ied that he retrieved the bag f r om the Forensics Lab a f

t er testing was

com pleted and transported it back to the police station. The chain of custody f orm o n the bag itself depicts only

that Agent Hensarling placed the bag into the Metro Evidence locker on July 30, 2014. Sergeant Kennedy testif ied that t he police of

ten noted the chain of custody in a l og book, rather than on t he evidence itself , although that l og book was never placed into evidence.

2¶3. The State t ried Cy rus in Decem

ber 2016, and the jury f

ound him guilty of the sale of less than two gram s of a controlled substance. T he c ourt sentenced Cy rus t o serve f

ourteen
y ears without t h e possibility of parole, as a habitual a nd second and subsequent of f ender. Cy rus appeals his conviction, arguing that the trial court erred by deny ing his m otion f or a

new trial because the verdict was against the overwhelm ing weight o f the evidence f or two

reasons. He argues that the evidence does not support that the incident occurred on July 30, 2014. He also argues that the State f ailed to prove the chain of custody of

the evidence. ANALYSIS ¶4. I n c o n s i d e r i n g w h e t h e r a verdict is contrary to t he overwhelm ing weight o f t h e evidence, this Court reviews the evide nce in the light m ost f avorable to the verdict to determ ine whether the verdict is so contrary to the overwhelm ing weight o f the evidence that allowing it to stand would am ount to an unconscionable injustice. Little v. S tate , – So. 3d

– , 2017 W L 4546740 (Miss. Oct. 12, 2017). In reviewing the evidence in t h e l i g h t mo s t f avorable to the verdict, the Court m ust accept the evidence supporting the verdict as true. Gillett v. State , 5 6 So. 3d 469, 5 0 4 (Miss. 2010). T h is Court will reverse a trial court’s denial of a m otion f

or new trial only when the trial court abused its discretion. Id. ¶5. Cy rus c laim s t hat since the date on the video indicates t he y e ar 2001, the S tate f ailed
to prove t hat the transaction o c curred on July 30, 2 014. Both Agent Hensarling and Kizziah testif i ed t hat the buy o ccurred on July 30, 2014. Agent Hensarling testif ied that n o one ever

s e t the tim e on the video equipm ent. W eighing witness testim ony and determ ining credibility is the province of the jury

. O s b o r n e v. S t ate , 54 So. 3d 841, 8 46 (Miss. 2 011). The jury

3clearly believed their testim ony regarding the discrepancy

. 1 Additionally , t he evidence bag

indicated t hat Agent Hensarling placed it into the evidence locker on July 30, 2014. Viewing this evidence i n t he light m ost f a vorable to the verdict, it cannot be said that the verdict is so contrary to the overwhelm ing weight of the evidence that it am ounts to an unconscionable injustice. ¶6. The test r e g a r d i n g t h e c h a i n o f c u s t ody is whether an i ndication or reasonable inf erence exists “of probable tam pering with the evidence or substitution o f the evidence.” Tubbs v. State , 1 8 5 So. 3d 363, 369 (Miss. 2016) (internal q u o t a t i o n s o m i tted). A
presum ption of r egularity applies t o the actions of the public of f icers, and the def

e ndant bears
t he burden of producing evidence that the chain of custody has been b roken. Id. A m er e suggestion o f substitution does not m eet this burden. Id. Moreover, it is unnecessary that
every handler of

the evidence testif

y . Id. ¶7. Kizziah testif

ied that he g a ve to A gent Hensarling t he bags he received f rom Cy rus. Agent Hensarling t estif

ied that he placed t h e b a g s in an e v idence bag, heat sealed it, and placed it in the evidence locker. The evidence bag itself a l so ref lects this. Sergeant Kennedy testif i ed that he observed his com m ander rem o ve the e vidence, and that he transported it to the Forensics Lab. T he Forensics Lab em ploy ee testif

ied a s to the Forensics Lab’s chain of

c u s t o d y p rocedures and testif ied regarding handling the bags herself

. Agent Hensarling testif i ed that he retrieved the evidence f rom the Forensics Lab and returned it to the police station. C y

r us does not even appear to m ake a m ere suggestion of i m propriety in the chain

1 T h e j u ry also v iew ed th e v ery

clear v id eo an d co u ld h av e ascertain ed if th e p arties in v o l v ed ap p eared f

if teen y ears y o u n g er th an th ey ap p eared in th e co u rtro o m . 4of custody

. Rather, he argues that the State f ailed to prove the c hain of c ustody because no phy sical evidence of the chain of custody was produced, given that the e vidence bag’s chain of custody f

orm was lef

t m ostly blank and that the log book w as not entered into e vidence. Cy rus does not point to any cases f rom this C ourt that hold t hat the chain of custody m ust be
proven w ith phy s i cal evidence. It is clear that testim ony by the evidence handlers m ay prove the chain of custody

. See Tubbs , 185 So. 3d a t 3 69. V iewing the chain o f custody testim ony in the light m ost f

avorable to the verdict, it cannot be said that the v erdict is so contrary to the overwhelm ing weight of the evidence that it am ounts to an unconscionable injustice. CONCLUSION ¶8. Cy rus’s argum e nts a re without m er i t

. C y r u s ’ s c o n v i c t i o n w a s n o t against the overwhelm ing weight of

the evidence, and this Court af f irm s his conviction. ¶9. AFFIRMED. WALLER, C.J., RANDOLPH AND KITC H E NS, P.JJ., COLEMAN, MAX W ELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

5