Lewis v. State

573 So. 2d 719, 1990 WL 257434
Mississippi Supreme Court·Decided December 19, 1990·No. 07-KA-59296·Published·Cited by 31 cases

Opinion

573 So.2d 719 (1990)

Frederick LEWIS and Anthony Wimberly
v.
STATE of Mississippi.

No. 07-KA-59296.

Supreme Court of Mississippi.

December 19, 1990.

*720 A. Randall Harris, Alvin M. Binder, Binder Milner & Milner, Jackson, for appellants.

Mike C. Moore, Atty. Gen., Jack B. Lacy, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and BLASS, JJ.

BLASS, Justice, for the Court:

This case involves two felony shop-lifting convictions. On June 5, 1987, Anthony Wimberly and Frederick Lewis left Wimberly's house in Jackson in Wimberly's station wagon and drove to Starkville, Mississippi. There they visited a woman named Bridgett House. At some point on the trip, Lewis had damaged the electrical plug on the "fuzz-buster." According to Wimberly and Lewis, while they were in Starkville, Ms. House told them they could probably get a new plug at the Wal-Mart store in West Point. Lewis drove to Wal-Mart in West Point. Lewis and Wimberly went into the store together.

On the same morning, Anthony's mother, Yvonne Wimberly, and one Robert Hobbs left Ms. Wimberly's home in Jackson and drove to West Point. They also went to Wal-Mart. Ms. Wimberly and Robert Hobbs travelled in a blue Blazer automobile and Hobbs apparently remained seated in the car outside while she went into the store. Anthony saw his mother just outside the store and later in the store. According to his testimony, it was a pure coincidence that they happened to be in the city the same day and at Wal-Mart at the same time.

Inside the store, a Wal-Mart employee became suspicious of Mr. Wimberly and caused him to be placed under observation by a store security man. The security man testified that he kept Wimberly under observation, and saw a woman, later determined to be Yvonne Wimberly, approach Anthony with a shopping cart which contained a fan in a large box with a VCR in a smaller box under it. While the security man watched, Wimberly opened the fan box and removed the fan, placing it behind some other merchandise, inserted the VCR in its container into the box which had contained the fan. He then took tape which the woman had in the cart, and resealed the fan box containing, now, the much more expensive VCR.

The woman was kept under observation until she moved to the front and left the store, having paid the price marked on the fan package which had the VCR concealed in it. After she was outside the store, the Wal-Mart employee attempted to stop her and get her to come back into the store but she left the shopping cart and got into the blue Blazer. The security man tried to get her to come out and back into the store, but Hobbs started the vehicle, backed it up, running over the feet of the security man and knocking him down. The Blazer crashed into another automobile, then went forward and left the premises at a high rate of speed. One of the employees of the store jumped into his own truck and left in pursuit of the blue Blazer.

*721 Almost simultaneously Wimberly and Lewis came out of the store and went to the station wagon. Wimberly got in to drive. The security man managed to get to them and asked if they had anything that belonged to the store. Wimberly said they did not and drove away. The store official who was pursuing the blue Blazer testified that it was travelling at a high rate of speed and he was attempting to catch up with it when he was passed by the station wagon and recognized the individual who had behaved suspiciously in the store as the driver of the station wagon. The store official was unable to catch up with the speeding vehicles and stopped and called the officers, reporting the event.

About 20 or 30 minutes later the officers found a blue Blazer in the ditch on the side of the road near Artesia. Several persons were around the vehicle and a truck driver, with a rope, was attempting to pull it out of the ditch. The officers inquired about who the vehicle belonged to and Wimberly responded that it was his. He later corrected the statement to say that it belonged to his uncle. Lewis spoke up and indicated that he was also with the vehicle. The station wagon in which Lewis and Wimberly had been riding earlier was parked about 300 yards farther down the road ahead of the Blazer. The officers arrested Wimberly and Lewis and took them back to the police station in West Point. Later, Yvonne Wimberly and Robert Hobbs were located some short distance away, hiding in the bushes. In the bushes along the roadside near the station wagon, the officers found a quantity of merchandise including hair care products, VCRs, and other items.

A clothes hamper box inside the station wagon was found to contain a VCR hidden on the inside. The VCR which had been put into the fan box at the store was found in the shopping cart and recovered. The price of that particular VCR was some $287.86, which was more than the price of the fan. The fan was on sale for $14.95.

Robert Hobbs, Yvonne Wimberly, Anthony Wimberly and Frederick Lewis were indicted by the Grand Jury of Clay County on October 7, 1987 for the crime of felony shop-lifting, the VCR in the fan box being described in the indictment. The parties were released on bail. Robert Hobbs did not return and, apparently, was still at large at the time of the trial. Yvonne Wimberly had become critically ill and was not tried. Anthony Wimberly and Frederick Lewis, however, pled not guilty and were tried on April 7, 1988. Both were found guilty and sentenced to serve a term of five years in the custody of the Department of Corrections, and to pay a fine of $1,000 each. Motion for a new trial was made and overruled and the defendants appealed, raising two assignments of error:

I. Whether or not the due process clause of the Fourteenth Amendment was violated by the introduction of evidence of other crimes, and
II. Whether the verdict of guilty was against the overwhelming weight of the evidence.

DISCUSSION OF ASSIGNMENT OF ERROR I.

WHETHER OR NOT THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT WAS VIOLATED BY THE INTRODUCTION OF EVIDENCE OF OTHER CRIMES.

This record does not contain any evidence of other crimes denominated as such. Rule 404(b), Miss.R.Evid., says, "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity of mistake or accident." Wheeler v. State, 536 So.2d 1347, 1352 (Miss. 1988); Griffin v. State, 504 So.2d 186 (Miss. 1987); Neal v. State, 451 So.2d 743, 759 (Miss. 1984). The defendants say that they have no knowledge of the items of merchandise found in the vicinity of the station wagon nor of the VCR in the clothes hamper inside the station wagon. No evidence was offered by the state to show the origin of the goods found.

*722 We do not decide whether or not the fact that the merchandise was found in the bushes and in the station wagon constituted evidence of the commission of other "crimes"[1] by one or more of the participants in this episode. But, conceding, for the sake of discussion, that this evidence was evidence of other crimes, wrongs, or acts, within the purview of 404(b), the evidence is not necessarily rendered inadmissible by the rule. Davis v. State, 530 So.2d 694, 698 (Miss. 1988). It is not admissible to prove the character of a person, in order to show t

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