Lewis v. State

110 So. 3d 814, 2013 WL 812009, 2013 Miss. App. LEXIS 105
CourtCourt of Appeals of Mississippi
DecidedMarch 5, 2013
DocketNo. 2012-KA-00395-COA
StatusPublished
Cited by5 cases

This text of 110 So. 3d 814 (Lewis 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
Lewis v. State, 110 So. 3d 814, 2013 WL 812009, 2013 Miss. App. LEXIS 105 (Mich. Ct. App. 2013).

Opinion

FAIR, J.,

for the Court:

¶ 1. Christopher Lewis was convicted of armed robbery by a jury before the Harrison County Circuit Court. He now appeals asserting that the evidence was insufficient to support his conviction, that jury instruction D-5 was erroneously refused, that his motion for a mistrial was improperly denied, and that he was prejudiced by the admission of hearsay testimony from one of the State’s witnesses. Finding that the evidence was sufficient to support Lewis’s conviction and that any error committed by the trial court was harmless, we affirm.

FACTS

¶ 2. Sopek Seng was the part owner and operator of M & S Convenience Store in [817]*817Gulfport. One afternoon, between 4:00 p.m. and 5:00 p.m., Lewis entered the store with a handgun while Seng was stocking the drink cooler. Lewis pushed her over to the cash register while demanding money. After Seng emptied the first register, Lewis threatened to shoot her baby, who was sleeping in a car seat behind the counter. Seng emptied the second register. Lewis was wearing a large dark jacket, a face mask, a ball cap, white gloves, dark pants, and white tennis shoes. After Seng emptied the second register, he fled from the store.

¶ 3. When police arrived, Seng explained that she knew the man who robbed her; she recognized “Chris” by his voice and lazy eye. Lewis was a regular customer at a different convenience store, First Stop, where Seng worked during the day. Officer Adam Gibbons believed Seng was describing Lewis, with whom he was familiar. An hour later, Officer Gibbons found Lewis half a mile away walking down the street carrying a beer. He arrested Lewis for public drunkenness. Lewis was carrying sixty-three dollars, comprised of twenty-eight one-dollar bills, three five-dollar bills, and one twenty-dollar bill.

¶ 4. At trial, Lewis did not testify but put on several alibi witnesses. The jury convicted Lewis of armed robbery, and he was sentenced to serve nineteen years and eleven months in the custody of the Mississippi Department of Corrections. The circuit court denied Lewis’s motion for a judgment notwithstanding the verdict (JNOV).

DISCUSSION

1. Sufficiency of the Evidence

¶ 5. A motion for a JNOV challenges the legal sufficiency of the evidence. McClain v. State, 625 So.2d 774, 778 (Miss.1993). If the evidence “point[s] in favor of the defendant on any element of the offense with sufficient force that reasonable men could not have found beyond a reasonable doubt that the defendant was guilty the proper remedy for the appellate court is to reverse and render.” Bush v. State, 895 So.2d 836, 843 (Miss.2005) (citation omitted). However, if “reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence will be deemed to have been sufficient.” Id. This Court will consider the evidence in the light most consistent with the verdict and give the State the benefit of all inferences favorable to the verdict. McClain v. State, 625 So.2d 774, 778 (Miss.1993) (citations omitted).

¶ 6. Lewis was convicted of armed robbery under section 97-3-79 of the Mississippi Code Annotated (Rev.2006). Robbery by use of a deadly weapon is established if the defendant took the personal property of another from his presence and against his will by violence or by putting him in fear of immediate injury by exhibiting a deadly weapon. Williams v. State, 317 So.2d 425, 427 (Miss.1975). Lewis asserts that the victim’s testimony alone was not enough to find guilt of these elements beyond a reasonable doubt. Lewis challenges the victim’s ability to identify a man wearing a mask and argues that no physical evidence was ever found and that he presented several alibi witnesses.

¶ 7. Contrary to Lewis’s argument, the Mississippi Supreme Court has held that “[identification based on the testimony of a single witness ... can support a conviction, even though denied by the accused.” Passons v. State, 239 Miss. 629, 634, 124 So.2d 847, 848 (1960). “[T]he jury is the judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony given by each witness.” Meshell v. State, 506 So.2d 989, [818]*818992 (Miss.1987). Specifically, questions about the credibility of a victim’s identification are to be resolved by the jury. Brown v. State, 724 So.2d 480, 481 (¶ 8) (Miss.Ct.App.1998). Further, the absence of physical evidence does not negate a conviction where there is testimonial evidence. See Williams v. State, 512 So.2d 666, 670 (Miss.1987).

¶ 8. The State played video-surveillance footage that clearly showed a man using a handgun to rob the convenience store. Seng detailed the robbery for the jury and explained that she was able to recognize Lewis because she knew him well. He came into First Stop several times a day and sometimes did odd jobs at the convenience store for her. The mask he wore had large eye holes, so she could see that his skin was light and that he had a lazy eye. She also recognized Lewis’s voice and distinctive speech pattern. Seng stated several times that she was one hundred percent sure that Lewis had robbed her store.

¶ 9. In contrast, Lewis’s cousin and uncle testified to his whereabouts that day. His cousin stated that Lewis had been home with him until about 4:30 p.m. that day. Lewis’s uncle testified that he and Lewis went to get a beer that afternoon shortly before 6:00 p.m. He stated that Lewis acted normal and was not winded or nervous. The jury was entitled to judge the credibility of these witnesses and clearly accepted Seng’s testimony while rejecting that of the defense witnesses. Accepting the State’s evidence as true and viewing that evidence in the light most favorable to the State, we conclude that the evidence was sufficient for a reasonable fair-minded juror to find the essential elements of the crime beyond a reasonable doubt. See Stewart v. State, 986 So.2d 304, 308 (¶ 13) (Miss.2008).

2. Two-Theory Instruction

¶ 10. In reviewing the grant or denial of jury instructions, this Court considers the instructions given as a whole. Morgan v. State, 995 So.2d 812, 816 (¶ 12) (Miss.Ct.App.2008). A trial court may refuse instructions that incorrectly state the law, are covered fairly elsewhere in the instructions, or are without foundation in the evidence. Id. If the given instructions fairly announce the law and create no injustice, there is no reversible error. Id.

¶ 11. Lewis contends that instruction D-5 should have been given because its content was not fairly covered in other instructions, and it correctly states the defendant’s rights. Instruction D-5 reads as follows:

The Court instructs the jury that if there is a fact or circumstance in this case susceptible to two interpretations, one favorable and the other unfavorable to the Defendant, and when the jury has considered said fact or circumstance with all other evidence, and there is a reasonable doubt as to the correct interpretation, then you, the jury, must resolve such doubt in favor of the Defendant, Chris[ jtopher Thomas Lewis, and place upon such fact or circumstance the interpretation most favorable to the Defendant, Christopher Thomas Lewis.

¶ 12. This is “a two-theory instruction, which is a specific type of circumstantial-evidence instruction.” McInnis v. State,

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Bluebook (online)
110 So. 3d 814, 2013 WL 812009, 2013 Miss. App. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-state-missctapp-2013.