IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-KM-00828-SCT JUSTIN CROCKETT a/k/a JUSTIN RANDLE CROCKETT a/k/a JUSTIN R. CROCKETT

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 04/17/2015 TRIAL JUDGE: HON. GERALD W . CHATHAM, SR. COURT FROM W HICH APPEALED: CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT OF PANOLA COUNTY ATTORNEY FOR APPELLANT: B. BRENNAN HORAN ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: JOHN W . CHAMPION NATURE OF THE CASE: CRIMINAL - MISDEMEANOR DISPOSITION: AFFIRMED - 01/12/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE DICKINSON, P.J., KITCHENS AND KING, JJ. KITCHENS, JUSTICE, FOR THE COURT: ¶1. Justin Crockett pled g uilty in Panola C o unty Justice Court to headlighting a deer in violat i o n o f M i s s i s s i p p i C o d e S e c tion 49-7-95 (Rev. 2012). C rockett appealed 1 h is conviction

to the Circuit Court of the F irst J udicial District of Panola C ounty

. A f ter a b e n c h trial de

novo , that court f

ound C rockett guilty

. Crockett tim ely appealed to this C ourt, arguing solely

1 “ [ A ] n y d e f

en d an t w h o h as b een co n v icted o f a crim in al o f f e n se in a j u stice co u rt m ay a p p eal ev en th o u g h h e o r sh e p lead ed g u ilty .” J o n es v. S ta te , 9 7 2 S o . 2 d 5 7 9 , 5 8 0 (M iss. 2 0 0 8 ) (citin g N

eb lett v. Sta te , 7 5 M iss. 1 0 5 , 2 1 S o . 7 9 9 (1 8 9 7 )).that there was insuf f i cient evidence to support the conviction. W e f ind suf f icient evidence in the record to sustain Crockett’s conviction. Accordingly , we af f irm

. FACTS ¶2. O n J a

n u a r y 30, 2014, at approxim ately 8 :45 p.m ., Lieutenant Marion Pearson re c e i v e d

a call about a truck that had been stopped by authorities in Panola C ounty

. Pearson, a warden with the Mississippi Departm ent of W ildlif e, F isheries, and Parks, was told that the truck was carry ing three deer (a m ature doe, a sm all doe, and a s pike buck) in its bed and that the deer appeared to have been “f

reshly killed.” Pearson a rrived at the scene and questioned the three individuals w ho were in the truck: John Ky le Gordon, Michael Chad Lanier, a n d Seth Allen
W o oten. ¶3. All three m en adm itte d t h a t t h e y had been headlighting deer and inf orm ed Pearson that they had been doing so with Crockett. The three individuals f urther stated that Crockett had shot two of the deer and that they all had put them in the bed of the truck. One of them , Gordon, was w orking six weeks on and ten day s of f in North Dakota at the tim e of trial, and the State was not successf ul in securing his presence. Crockett raised no hearsay objection

to P earson’s testim o ny about what Gordon, Lanier, and W ooten had told him

. According to Pearson’s testim ony , Crockett l a t e r adm itted having shot the s p ike deer, though Crockett claim ed to have shot the deer during legal hunting hours. ¶4. The State responded with f o rensic evidence showing that the spike was shot well af ter legal hunting h ours. The trial court accepted P e a r s o n as an e x pert witness i n the f ield of “f orensic investigation of the death of a deer.” Pearson testif

ied that at approxim ately 3:00

2a . m. o n January 31, 2014, he returned to his house w ith the deer and perf orm ed standa r d procedures to determ ine the tim e of death. C rockett did n ot object to the trial c o u rt’s acceptance of Pearson a s an expert witness. Following the standard procedures, Pearson took the spike’s tem

perature in various parts of its anatom y . Pearson then plugged the tem perature readings into a com

puter program along with the am bient air tem

perature f or the night of January 30, 2014. In addition, Pearson checked f or r i gor m ortis in v arious parts of the deer’s body

. Finally , Pearson m easured the diam eter of the deer’s pupils. Af

ter f a c toring in all of the above, Pearson and his s upervis o r B r u c e Jenkins concluded—rightly or wrongly , and without objection—that the s pike buck (the only deer f or which Crockett was charged) had been killed between approxim ately 8 p.m . and 10 p.m . on January 30, 2014. ¶5. The trial court, a cting as both the ju d g e a n d t r i e r o f f a ct, f o und C rockett guilty

of killing a deer at night b y headlighting in violation of Mississippi Code Section 4 9-7-95 (Rev. 2012). ANALYSIS ¶6. Crockett’s only argum ent o n appeal is that there was insuf f icient evidence to support a conviction under Mississippi Code Section 49-7-95 (Rev. 2012). ¶7. Section 49-7-95 provides: Any person who hunts or t akes or kills a n y d e e r a t n i ght b y headlighting, by any lighting device or light am plif y ing d evice shall, upon conviction thereof , be guilty of a Class I v iolation and shall be pun i shed as provided in Section 49-7-141.
For any person t o be charged with a v iolation of this subsection, that person m ust have been observed com m itting an overt a c t c o nsistent with the hunting o f d eer at night with the aid of a light, lighting device o r light am plif y i n g

3device. Such observation of an overt a ct m ay include, but shall not be limited

to , witnessing the discharge of a weapon capable of killing a deer, hearing the report of a f

i rearm being f

ired, seeing t

he person in possession o f a recently killed deer which could n ot have been k illed during legal hunting hours , or witnessing the person com m itting any acts consistent with headlighting deer in violation of

this subsection. Miss. Code Ann. § 49-7-95(1)(a), (b) (Rev. 2012) (em phasis added). ¶8. T h i s C o u r t h as af

f irm ed a conviction under this statute when the State relied u p o n circum stantial evidence to prove its case. See Pharr v. State , 465 So. 2d 294 (Miss. 1984). The Pharr court noted t h a t “ s potting and killing a deer [ at n ight] would have been next to im p ossible without the aid of power lighting.” Id. a t 300. In P harr , an of

f icer observed a truck f rom which a spotlight was s hining in a f ield. Id. a t 296. T he of

f icer pursued the truck and ultim ately f

orced it o f

f the road. Id. The of

f icer f ound the f

ollowing in the truck: “(1) f our m en, including Milton V. Pharr, the Def e n dant b elow and A ppellant here; (2) two dead deer, both still warm and with blood running f r om their bodies; (3) a Q-beam spotlight; (4)

a seven m illim eter M agnum r if le, three spent shell casings and other am m unition; and (5) one hand f lashlight.” Id. at 2 9 7. This Court a f f irm e d the def

endant’s conviction f

or headlighting the two deer even though the of f icer had not actually

observed the def

e ndant killing either deer. Id. at 304. ¶9. Crockett’s only

argum ent on appeal is that the State p resented insuf f icient evidence

to prove that he com m itted a n “overt act” within the m eaning of Mississippi Code Section 49-7-95(1)(b) (Rev. 2012). ¶10. “ [ W] h e n a trial judge sits without a jury , this Court will not d i s t u r b h i s f a c t u a l determ inations where there i s substantial evidence in the record to support those f indings.”

4Transocean Ente r . , I n c. v. Ingalls S

hipbuilding, I

nc. , 33 So. 3d 459, 462 (Miss. 2010) (citing Ezell v. William s , 724 So

. 2d 396, 397 (Miss. 1998)). T his s t andard of review “af f o rds def erential treatm ent to the trial judge’s f indings.” Id. (citing City of Greenville v. Jones , 925 S o. 2d 106, 109 (Miss. 2006)). “[ T ]his Court ought and g enerally will af f irm a trial court sitting without a jury on a question o f f act unless, based upon substantial e vidence, the court m

ust be m anif

estly w rong.” Id. (citing Y arbrough v. Cam

phor , 645 So. 2d 867, 869 (Miss. 1994)). ¶11. Here, the trial j udge heard testim ony f rom Pearson and Jenkins t o the ef f ect that three individuals w ere f

ound at night with three recently killed deer i n their possession. These three

m en adm itted that they had b een headlighting deer. T hey f urther stated that they had been acting i n c oncert w ith C rockett and that Cro c k e t t h a d shot two of the d eer, including the spike. In addition, Crockett adm itted to L ieutenant P earson that Crockett had shot the spike, though Crockett claim ed he had shot it during legal hunting hours. ¶12. Legal hunting hours en d thirty m inutes a f ter s unset. Miss. Code Ann. § 49-7-59(1) (Rev. 2012). Pearson testif ied that sunset on January 30, 2014, occurred at 5:27 p.m ., so legal hunti n g h o u r s e nded at 5:57 p .m . T he State presented unchallenged f orensic evidence through the t e s tim ony o f Pearson and Jenkins showing that the spike could not have been killed during legal h u nting hou r s . The tim e of death was calculated to have b een between 8:00 p.m . and 10:00 p.m ., well af ter legal hunting hours. ¶13. Apply ing the def

erential standard o f r e v i e w, we cannot say that the trial court was

m anif estly w ro n g . I t i s true, as Crockett urges, that the statute requires that the def endant

5m

ust be “observed com m itting an overt act consistent with the hunting of deer at night with the aid of a light.” M iss. Code Ann. § 49-7-95(1)(b). However, the statute f urther provides that “[ s]uch observation may include, but shall not b e limited to

. . . s e e i n g the person in

p o s s e s s i o n of a recently killed deer which could not have been killed during legal hunting hours

. ” M iss. Code Ann. § 49-7-95(1)(b) (em phasis added). The State presented evidence tending to show: ( 1) p ossession of a r e c ently killed deer; (2) the deer could not have been killed during legal h unting hours; and (3) Crockett shot the deer. Furtherm o re, as the Pharr

court n oted, “spotting and k illing a deer would have been next to im possible without the aid of power lighting.” Pharr , 465 So. 2d at 300. Finally , the m en adm itted that they had been headlighting deer. ¶14. W h ile Pearson’s testim ony regarding the statem ents of Gordon, Lanier, and W ooten is h earsay , Crockett did not object to its adm ission a t trial. “The l a w i s w ell s ettled in Mississippi that appellate courts will not put trial courts in error f or i ssues not f

irst presented

to the trial court f

or resolution, and that issues not presented in the trial court cannot be f irst argued on appeal.” Purvis v. Barnes , 791 So. 2d 1 99, 202 (Miss. 2001) (internal c i t a t i o n s

om itted). I n f

ailing to object to hearsay at trial, the p arty waives the right to present the issue on appeal. Cross v. State , 759 So. 2d 354, 357 (Miss. 1 999). “‘It is elem entary that a party

s e e k i n g r eversal of the judgm ent of a trial court m ust present this Court with a record adequate to sho w t h a t a n error of reversible p roportions has been com m itted and that the point has b een procedurally preserved.’” Id. (quoting Hansen v. State , 592 So. 2d 114, 127 (Miss. 1991)).

6¶15. The trial judge w as n ot m anif estly in error in f

inding C ro c k e t t g u i l t y of violating Mississippi Code Section 49-7-95. CONCLUSION ¶16. W e af

f i rm Crockett’ s c o n v i c t i on of headlighting a deer in violation of Mississippi Code Section 49-7-95. ¶17. CONVICTION OF HEADLIGHTING DEER AND SENTENCE OF FIVE (5) DAYS IN THE PANOLA COUNTY JAI L , W I T H FIVE (5) DAYS S USPENDED, A F F I R M E D . A P P E L L A N T ’ S H U N T I N G , F I S H I N G , A N D T R A P P I N G P R I V I L E G E S ARE REVOKED FOR A PERIO D OF THREE (3) YEARS. IN ADDITION, A FEE OF $500 SHALL BE PAID PRIO R T O REINSTATEMENT O F PRIVILEGES. A P P ELLANT SHALL PAY A FINE IN T HE A MOUNT OF $2,120, PAYABLE T O THE CIRCUIT CLERK OF PANOLA COUNTY. WAL L E R , C.J., DICKINSON AND RANDOLPH, P.JJ., K ING, COLEMAN, M A X W E L L A N D B E A M , J J . , C O N C U R . C H A M B E R L I N , J . , N O T PARTICIPATING.

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