Dambrell v. State

905 So. 2d 655, 2004 WL 1154451
CourtCourt of Appeals of Mississippi
DecidedMay 25, 2004
Docket2002-KA-01260-COA
StatusPublished
Cited by3 cases

This text of 905 So. 2d 655 (Dambrell 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
Dambrell v. State, 905 So. 2d 655, 2004 WL 1154451 (Mich. Ct. App. 2004).

Opinion

905 So.2d 655 (2004)

Zacharia Chase DAMBRELL, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-KA-01260-COA.

Court of Appeals of Mississippi.

May 25, 2004.
Rehearing Denied August 3, 2004.

*656 Phillip Broadhead, Columbia, Ross Parker Simons, Frank Hartley, attorneys for appellant.

Office of the Attorney General by Scott Stuart, attorney for appellee.

Before KING, C.J., THOMAS, MYERS, JJ.

KING, C.J., for the Court.

¶ 1. Zacharia Dambrell was convicted in the Circuit Court of Jackson County of attempted armed robbery. Aggrieved by his conviction Dambrell appeals and states the following issue:

I. Whether the circuit court erred in denying defendant's motion for a directed verdict, peremptory instruction, and judgment notwithstanding the verdict because the State did not sufficiently prove an overt act toward the commission of the crime of attempted armed robbery.

¶ 2. Finding that the State failed to prove each element of the indictment, this Court reverses and renders.

STATEMENT OF FACTS

¶ 3. On May 9, 2000 at about 2:00 p.m. Zach Dambrell and a few friends began smoking marijuana and ingesting drops of LSD. The young men continued taking the drugs until well past midnight, and in the early morning hours of May 10, after taking his second dose of LSD, seventeen-year-old Dambrell began talking with his friends about robbing the E-Z Serve convenience store located about a quarter of a mile away for money and cigarettes.

¶ 4. To facilitate the robbery, Dambrell's friends gave him a knife, a towel to cover it with, and a t-shirt to cover his face. Dambrell tied the t-shirt around his neck, put the knife in his belt, and went to the E-Z Serve. Upon arrival at the store *657 Dambrell hid behind a dumpster. After noticing suspicious activity by the dumpster, the store clerk walked outside, saw someone hiding behind the dumpster and went back in to call the police. After the clerk walked back inside, Dambrell pulled the t-shirt up to cover the lower half of his face, took the knife out of his belt and entered the store.

¶ 5. A video surveillance tape from the E-Z Serve store indicates that Dambrell entered the store with a t-shirt partially covering his face, and a knife in his right hand. After only a few steps inside the store, Dambrell stopped, saw the store clerk on the phone, and without saying a word to the clerk, cursed, slung the knife and towel to the floor and fled. The entire scenario lasted only a few seconds. After Dambrell fled, the store clerk walked over to retrieve the item Dambrell had thrown down, and for the first time saw the knife. Dambrell threw the t-shirt into the dumpster outside the store and walked back to his friend's house.

¶ 6. On November 7, 2000, Dambrell was indicted for attempted armed robbery pursuant to Mississippi Code Annotated Section 97-3-79.

¶ 7. Dambrell was convicted by a jury of attempted armed robbery and sentenced to six years in the custody of the Mississippi Department of Corrections. Aggrieved by the denial of his motion for a directed verdict and judgment notwithstanding the verdict, Dambrell has appealed.

ISSUE AND ANALYSIS

Whether the circuit court erred in denying defendant's motion for a directed verdict, peremptory instruction, and judgment notwithstanding the verdict because the State did not sufficiently prove an overt act toward the commission of the crime of attempted armed robbery.

¶ 8. This Court finds the indictment to be problematic and dispositive of the case, and will therefore not address the issue as stated by Dambrell.

¶ 9. Rule 7.06 of the Uniform Circuit and County Court Rules states:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words "against the peace and dignity of the state."

UCCCR 7.06 (emphasis added).

¶ 10. The indictment against Dambrell read as follows:

Zach C. Dambrell in Jackson County, Mississippi, on or about May 10, 2000, did willfully, unlawfully and feloniously attempt to, steal and carry away from the person and/or the presence of, and against the will of Owen Waters, merchandise, the personal property of Owen *658 Waters of which he was in lawful possession by virtue of his employment with E-Z Serve, by putting the said Owen Waters in fear of immediate injury to his person, by the exhibition of a deadly weapon, to wit: a knife, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

(emphasis added).

¶ 11. Beyond question, this indictment was "a plain, concise, and definite written statement of the essential facts constituting the offense charged." The State was required to prove each essential fact constituting the offense charged. Bullock v. State, 447 So.2d 1284, 1286 (Miss.1984). Those essential facts were: (1) that Dambrell attempted to take personal property from Owen Waters; (2) that Owen Waters had possession of the personal property by virtue of his employment with E Z Serve; and (3) that Dambrell exhibited a knife to Owen Waters, and by doing so, caused him to fear immediate injury to his person. The State's obligation was to prove each of the essential fact; not two out of three, but each essential fact. Id.

¶ 12. In his appeal Dambrell has argued that the State failed to prove each essential element of the charge. He specifically argues that the State failed to prove the exhibition of a knife. The trial court was troubled by this issue also. In an effort to satisfy that concern, the court questioned Owen Waters. The trial court's questions and the responses of Owen Waters were as follows:

THE COURT: I have a question. Mr. Waters, you indicated that when he [Zach] walked in he had the towel and —
MR. WATERS: The towel, he had the knife wrapped up in the towel, so I never did actually see the knife until after he slung it.
THE COURT: So he came in and he had the towel and —
MR. WATERS: Wrapped around the knife.
THE COURT: That's all?
MR. WATERS: Yes, sir.
THE COURT: Could you tell what it was?
MR. WATERS: Not at that point, no, sir. I didn't know until he slung it. That's when I knew he had a knife.
THE COURT: So when he slung it the towel and the knife went off in the same direction?
MR.

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Related

Yucaitis v. State
909 So. 2d 166 (Court of Appeals of Mississippi, 2005)
Dambrell v. State
903 So. 2d 681 (Mississippi Supreme Court, 2005)

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Bluebook (online)
905 So. 2d 655, 2004 WL 1154451, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dambrell-v-state-missctapp-2004.