IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 96-KA-00170 COA

RODNEY EARL COHEN AND ROBERT LEE

THOMAS

APPELLANTS

v.

STATE OF MISSISSIPPI APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: JANUARY 26, 1996

TRIAL JUDGE: HON. ELZY JONATHAN SMITH, JR.

COURT FROM WHICH APPEALED: COAHOMA COUNTY CIRCUIT COURT

ATTORNEYS FOR APPELLANTS: RICHARD B. LEWIS FOR COHEN

AZKI SHAH FOR THOMAS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE MCCRORY

DISTRICT ATTORNEY: LAWRENCE Y. MELLEN

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: COHEN: DRIVE-BY-SHOOTING: 20 YRS;

NOT ELIGIBLE FOR PAROLE; SENTENCE

CONSECUTIVE TO ANY PREVIOUSLY

IMPOSED; THOMAS: DRIVE-BYSHOOTING: 25 YRS; NOT ELIGIBLE FOR

PAROLE; SENTENCE CONSECUTIVE TO

ANY PREVIOUSLY IMPOSED

DISPOSITION: AFFIRMED - 12/16/97

MOTION FOR REHEARING FILED: 1/2/1998

CERTIORARI FILED:

MANDATE ISSUED: 3/30/98

BEFORE THOMAS, P.J., HINKEBEIN, AND SOUTHWICK, JJ.

SOUTHWICK, J., FOR THE COURT:
Rodney Cohen and Robert Thomas were convicted by a jury in the Circuit Court of Coahoma

County of the drive-by shooting of Broderick Mosley. They appeal asserting separately that there

was insufficient evidence to support the verdict and that the verdict was against the overwhelming

weight of the evidence. We find no merit to these claims and affirm.

FACTS

The evidence consistent with the verdict was as follows. On August 2, 1995, Broderick Mosley was

walking along Hospital Drive in the City of Clarksdale when he noticed a familiar vehicle driven by

Rodney Cohen. After recognizing Cohen and Robert Thomas, a passenger in the vehicle, Mosley

quickened his pace and continued down the street to escape their observation. According to Mosley,

the vehicle then pulled up to a stop sign and Thomas yelled out of the vehicle "I knew we were going

to catch you slipping." Following this exhortation, Thomas leaned out of the window of the vehicle

and fired a gun shot at Mosley. Mosley observed the spark from the gun and fled to the Hicks Hotel

as the vehicle sped off down the street. Mosley was not injured by the gun shot.

After seeking refuge in the hotel, Mosley notified the Clarksdale Police Department of the incident.

Shortly thereafter, the police discovered a vehicle matching Mosley's description at a local barber

shop. The officers observed Cohen and Thomas inside the barber shop and requested that the two

suspects accompany them to the police department.

Cohen and Thomas were charged and convicted by a jury of a drive-by shooting.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

Cohen and Thomas assert that the trial court erred in denying their motion for a judgment

notwithstanding the verdict. Cohen contends that the State failed to present sufficient evidence to

satisfy its burden of proof. Thomas argues that at the time of the alleged incident the proof showed

that the vehicle was not moving. Thus, the jury could not convict for a "drive-by" shooting.

On appeal from the denial of a motion notwithstanding the verdict, this Court reviews the sufficiency

of the evidence in the light most favorable to the State. McClain v. State, 625 So. 2d 774, 778

(Miss. 1993). All credible evidence which is consistent with Cohen's and Thomas's guilt must be

accepted as true, and the State is given the benefit of all favorable inferences that may be reasonably

drawn from the evidence. Id.

The Mississippi Code provides, in relevant part: "A person is guilty of a drive-by shooting if he

attempts . . . to cause serious bodily injury to another, or causes such injury purposely, knowingly or

recklessly under circumstances manifesting extreme indifference to the value of human life by

discharging a firearm while in or on a vehicle." Miss. Code Ann. § 97-3-109(1) (Supp. 1997).There

must be evidence to support each element of this offense.

The victim Mosley testified that he encountered Cohen and Thomas while he was walking down the

street and that Thomas fired a shot at him. Mosley stated that he then ran to the Hicks Hotel and

called the police department. An officer from the Clarksdale Police Department testified that the

dispatcher received a call from Mosley at approximately 3:48. After investigating the incident,
officers discovered the vehicle driven during the shooting and its occupants, Cohen and Thomas, at a

nearby barber shop. This constitutes sufficient evidence to support the convictions of Cohen and

Thomas of drive-by shooting.

Thomas also asserts that there was insufficient evidence to support his conviction because the State

failed to establish that the vehicle was in motion during the incident. However, Section 97-3-109(1)

does not require that a vehicle be in motion during the commission of the offense. A label for an

offense such as "drive-by" does not create additional elements necessary for conviction beyond those

stated in the statute. The statute provides that the State must prove that the firearm was discharged

while an individual was in or on a vehicle. Miss. Code Ann. § 97-3-109(1) (Supp. 1997). This issue

is without merit.

II. WEIGHT OF THE EVIDENCE

Cohen next asserts that the trial court erred in denying his motion for a new trial because the verdict

was against the overwhelming weight of the evidence. Cohen contends that the only evidence

presented by the State to rebut his claim denying that the incident occurred was the testimony of

Mosley, the victim. Cohen argues that Mosley's testimony was not credible, and thus, the verdict is

contrary to the weight of the evidence.

In reviewing the decision of the trial court, this Court views all of the evidence in the light consistent

with the jury verdict. Strong v. State, 600 So. 2d 199, 204 (Miss. 1992). A motion for new trial

should only be granted to prevent an unconscionable injustice. McClain v. State, 625 So. 2d 774,

781 (Miss. 1993). Accordingly, we will reverse and remand for a new trial only upon reaching the

conclusion that the trial court has abused its discretion in failing to grant a new trial. Herring v.

State, 691 So. 2d 949, 957 (Miss. 1997).

Both men presented evidence that they were elsewhere at the time of the incident. Even so, the jury

heard the testimony from several witnesses who testified to facts that would indicate their guilt. None

of this evidence was incredible, unbelievable, or substantially impeached. The jury was entitled to

conclude that the proof established guilt of the drive-by shooting.

THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF

RODNEY EARL COHEN OF DRIVE-BY SHOOTING AND SENTENCE OF TWENTY

YEARS WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE

MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE SENTENCE

IMPOSED SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES

PREVIOUSLY IMPOSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO

COAHOMA COUNTY.

THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF CONVICTION OF

ROBERT LEE THOMAS OF DRIVE-BY SHOOTING AND SENTENCE OF TWENTY-FIVE

YEARS WITHOUT THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE

MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. THE SENTENCE

IMPOSED SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES

PREVIOUSLY IMPOSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
COAHOMA COUNTY.

BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HERRING,

HINKEBEIN, KING, AND PAYNE, JJ., CONCUR.