Cheeks v. State

843 So. 2d 87, 2003 WL 722764
CourtCourt of Appeals of Mississippi
DecidedMarch 4, 2003
Docket2001-KA-01537-COA
StatusPublished
Cited by3 cases

This text of 843 So. 2d 87 (Cheeks v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cheeks v. State, 843 So. 2d 87, 2003 WL 722764 (Mich. Ct. App. 2003).

Opinion

843 So.2d 87 (2003)

Kenyatta Donta CHEEKS, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-KA-01537-COA.

Court of Appeals of Mississippi.

March 4, 2003.
Rehearing Denied April 22, 2003.

*88 Azki Shah, Clarksdale, attorney for appellant.

*89 Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before THOMAS, P.J., IRVING and MYERS, JJ.

IRVING, J., for the court.

¶ 1. Kenyatta Donta Cheeks appeals from a judgment entered in the Circuit Court of Madison County pursuant to a jury's verdict which found Cheeks guilty of burglary of an automobile. In this appeal, Cheeks raises the following issues:

I. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ALLOWING, OVER DEFENSE'S OBJECTIONS, EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS OF THE DEFENDANT IN VIOLATION OF RULES 403 AND 404(b) OF THE MISSISSIPPI RULES OF EVIDENCE. AND FURTHER, ERRED IN FAILING TO CHARGE THE TRIAL JURY SUA SPONTE WITH A LIMITING INSTRUCTION CONCERNING THE ADMISSION OF SUCH EVIDENCE.
II. WHETHER THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE VERDICT.
III. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN REFUSING TO GIVE A CIRCUMSTANTIAL EVIDENCE INSTRUCTION TO THE JURY.
IV. WHETHER THE ASSISTANCE RECEIVED BY APPELLANT WAS INEFFECTIVE.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. At approximately 2:30 a.m. on July 11, 2000, Officer Michael McGahey of the Ridgeland Police Department was parked in a clearing off of Old Canton Road observing the traffic as it passed by. He noticed a Buick LeSabre pass by several times within a short period. He took more notice of the LeSabre when it turned into Sunchase Apartments. About five to ten minutes later, the LeSabre came out and Officer McGahey then watched the LeSabre turn into Canton Square Apartments. The LeSabre then drove through the parking lot and stopped for a few seconds at every parking place within the parking lot. Officer McGahey found these actions suspicious and decided to question the occupants of the LeSabre.

¶ 4. When Officer McGahey approached the vehicle, he found that it was occupied by two individuals, a female driver and a male passenger. After observing the male passenger lying down in the back seat, Officer McGahey ordered both occupants out of the vehicle and attempted to obtain their identity. The female identified herself and presented photo identification. The male passenger identified himself and produced a driver's license reflecting the same name he had given to the officer. As Officer McGahey questioned both of them, he found that their stories did not match regarding their reason for being at the Canton Square Apartments. Officer McGahey asked the male passenger to identify the owner of the vehicle. The male passenger first said he did not know, but he stated later that the vehicle belonged to his cousin, Kenyatta Cheeks. He eventually admitted that he was in fact Kenyatta Donta Cheeks. Officer McGahey arrested Cheeks for giving false information.[1] Afterwards, the LeSabre was impounded and its contents were inventoried. *90 Among the things found in the LeSabre was a JVC CD player that was in the dashboard but not wired to the car.

¶ 5. At 6:46 a.m., Officer Rick Miller, also of the Ridgeland Police Department, received a telephone call concerning an automobile burglary at Sunchase Apartments. Officer Miller took the burglary report and spoke to the victim. The victim described in detail the JVC CD player that was stolen and showed Officer Miller an owner's manual for the CD player. Officer Miller was aware of the facts regarding the arrest of Cheeks by Officer McGahey and asked the victim to come down to the police department to visually identify the CD player. Once the victim positively identified the CD player that was taken out of Cheeks's LeSabre as her stolen property, it was released to her. In addition to the victim's visual identification of the CD player, the model number of the stolen CD player matched the model number in the owner's manual that the victim had previously produced. Also scratch marks on the CD player taken from Cheeks's vehicle matched the scratch marks found on the dashboard of the burglarized vehicle. Subsequently, Cheeks was charged with automobile burglary. Other pertinent facts will be related during the discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Evidence of Other Crimes, Wrongs, or Acts

¶ 6. The relevancy and admissibility of evidence are within the discretion of the trial judge, and the decision of the trial judge will not be reversed unless that discretion has been abused. Smith v. State, 656 So.2d 95, 98 (Miss.1995). However, this discretion of the trial court must be exercised within the boundaries of the Mississippi Rules of Evidence. Id. Under the rules, an "error may not be predicated upon a ruling that admits or excludes evidence unless a substantial right of the party is affected." M.R.E. 103(a). Unless the trial judge's discretion is so abused as to be prejudicial to the accused, we will not reverse the ruling of the trial court. McGowan v. State, 706 So.2d 231, 243 (¶ 43) (Miss.1997).

¶ 7. Initially, we point out that the defense has failed to preserve the objection on appeal. Prior to the State calling its first witness, defense counsel and the State conferred with the trial judge concerning what the defense counsel deemed inadmissible evidence. Specifically, defense counsel asked the trial judge to disallow the introduction of evidence that Cheeks was in possession of a stolen vehicle, the LeSabre, with an altered vehicle identification number (VIN).

¶ 8. During its case-in-chief, the State did not mention that the vehicle in which Cheeks was arrested was in fact stolen. However, on direct examination of Cheeks, defense counsel questioned Cheeks on his knowledge that the LeSabre was a stolen vehicle at the time of his taking possession and the fact the VIN was altered. Accordingly, during the cross-examination of Cheeks, the State further questioned Cheek as to his knowledge of the altered VIN and asked if he played an active role in the alteration. Defense counsel did not object to the cross-examination of Cheeks on these facts.

¶ 9. The defense failed to properly preserve the issue of other crimes, wrongs, or acts for appeal. There was no evidence within the record where the defense counsel made any objection to the State's cross-examination of Cheeks regarding the altered VIN. The defense only had a conference with the State and trial judge about the stolen LeSabre and the altered VIN. *91 No motion or specific objection to the admittance of evidence of prior bad acts or wrongs was stated on the record by the defense. By failing to object on the grounds of prior bad acts, this issue is waived on appeal. Walker v. State, 671 So.2d 581, 605-6 (Miss.1995). Moreover, defense counsel opened the door for such questioning by the questions asked on direct examination. This issue lacks merit.

2. Sufficiency of the Evidence

¶ 10. Cheeks alleges that the State presented insufficient evidence to support a conviction for burglary of an automobile. Cheeks maintains that the State's case was wholly circumstantial. Furthermore, Cheeks argues that the State did not produce a single eyewitness nor did he ever confess to the crime.

¶ 11.

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Bluebook (online)
843 So. 2d 87, 2003 WL 722764, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cheeks-v-state-missctapp-2003.