Lewis v. State

112 So. 3d 1092, 2013 WL 1800030, 2013 Miss. App. LEXIS 220
Court of Appeals of Mississippi·Decided April 30, 2013·No. No. 2011-KA-01907-COA·Published·Cited by 14 cases

Opinion

JAMES, J.,

for the Court:

¶ 1. Robert Chad Lewis was convicted by a jury in the Circuit Court.of Hinds County of two counts of armed robbery and a third count for possession of a firearm by a convicted felon. Lewis now appeals, citing the following errors: (1) the evidence was insufficient to support his conviction, and (2) the imposition of separate sentences under Mississippi Code Annotated sections 97-37-37(2) (Supp.2012) and 97-37-5 (Supp.2012) constituted a dou[1094] ble-jeopardy violation. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around midnight on July 2, 2010, Willie Weekly and Beverly Edwards were robbed at gunpoint while standing in the parking lot of Club Elite in Jackson, Mississippi. According to Weekly and Edwards, two men riding in a dark-colored sedan exited the vehicle, held guns to Weekly’s and Edwards’s heads, and ordered them to hand over their personal belongings. One of the men ordered Weekly to remove and hand over his pants while the other man grabbed Edwards’s purse. Edwards’s purse contained a cell phone, a credit card, about $400 in cash, and a straight razor. Before driving off with the items, one of the men handed Edwards her cell phone. After the two men fled the scene, Edwards used her cell phone to call the police.

¶ 3. When the police arrived at the scene, Edwards and Weekly gave descriptions of the robbers and the vehicle. Using the information obtained, the Jackson Police Department issued a “be on the lookout” advisory (BOLO) for the robbers and the vehicle. Shortly after the BOLO was issued, Officer Michael Moore began patrolling the area, looking for a vehicle that matched the description in the BOLO. A dark-colored Toyota Camry was pulled over by Officer Moore for a traffic violation. Noticing that the vehicle matched the description in the BOLO, Officer Moore called for backup because he was advised that the occupants of the vehicle could be armed and dangerous. Once backup arrived, Officer Moore ordered the occupants to exit the vehicle. The two men in the vehicle, one of whom was Lewis, matched the description of the robbers in the BOLO. Lewis was the driver of the vehicle. While performing a protective sweep of the vehicle, Officer Moore found a Glock handgun under the driver’s seat that matched the description in the BOLO. The two men were then apprehended and taken into custody. A straight razor was also later discovered inside the vehicle during an inventory search.

¶4. At the police station, Weekly and Edwards were questioned separately about the incident. During questioning, in separate rooms, both Weekly and Edwards were presented with a photo array of possible suspects. A picture of Lewis was included in the photo array. Both Weekly and Edwards identified Lewis as one of the robbers.

¶ 5. On October 7, 2010, Lewis was indicted on two counts of armed robbery and one count of possession of a firearm by a convicted felon.1 A jury trial was held on March 28, 2011. The jury found Lewis guilty on all three counts, and sentenced Lewis to serve a term of thirty years for each count of armed robbery, to run concurrently in the custody of the Mississippi Department of Corrections. Lewis was also sentenced to ten years for possession of a firearm by a convicted felon, plus given a ten-year enhancement for use or display of a firearm during the commission of a felony, with the enhancement to run consecutively to all three counts.

¶ 6. On May 18, 2011, Lewis filed a motion for a judgment notwithstanding the verdict, or, in the alternative, a new trial, [1095] challenging the sufficiency and weight of the evidence. The circuit court’s denial of that motion led to this appeal.

DISCUSSION

I. Sufficiency of the Evidence

¶ 7. Lewis contends that the evidence was insufficient to support a conviction of armed robbery and possession of a firearm by a convicted felon. In determining whether the evidence presented by the State was sufficient to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

a. Motion for Directed Verdict

¶ 8. In its brief, the State argues that Lewis waived the appeal of his motion for a directed verdict made at the close of the State’s case-in-chief when he subsequently introduced evidence on his own behalf. “When a defendant proceeds with his case after the State rests and the court overrules the defendant’s motion for a directed verdict, the defendant waives the appeal of the directed verdict.” Foster v. State, 928 So.2d 873, 879 (¶ 8) (Miss.Ct.App.2005) (citing Holland v. State, 656 So.2d 1192, 1197 (Miss.1995)). “[AJn appellant may preserve this issue if he renews his motion for a directed verdict at the conclusion of all the evidence.” Id. at 879 (¶ 9) (citing Davis v. State, 866 So.2d 1107, 1112 (¶ 19) (Miss.Ct.App.2003)). At the close of the State’s case-in-chief, Lewis moved for a directed verdict, arguing the evidence was insufficient to prove that Lewis was one of the robbers. The motion was overruled, and Lewis proceeded to introduce evidence on his own behalf. Lewis renewed his motion at the conclusion of all evidence. Thus, we find that Lewis preserved the issue of insufficiency of the evidence with regard to Lewis being identified as one of the robbers.

b. Armed Robbery

¶9. In order to establish that Lewis committed armed robbery, the State was required to prove the following elements beyond a reasonable doubt: (1) a felonious taking or attempt to take (2) “from the person or from the presence” (3) the personal property of another (4) against his will (5) “by violence to his person or by putting” him “in fear of immediate injury to his person by the exhibition of a deadly weapon.” Miss.Code Ann. § 97-3-79 (Rev.2006). Lewis contends that because no fingerprints or DNA tests were conducted on any of the items retrieved from the vehicle, and because the State did not establish that Lewis had actual or constructive possession of the handgun found in the vehicle, the State failed to meet its burden. This argument fails for a number of reasons. First, considering the testimony and evidence presented during trial, a DNA test was not warranted. The Mississippi Supreme Court has held that, in criminal matters, a DNA test is not required absent a showing that it would significantly aid the defense. Rubenstein v. State, 941 So.2d 735, 781 (¶202) (Miss.2006). In this ease, Lewis has failed to show how a DNA analysis would aid his defense in any way. During trial, when the State presented Edwards with the straight razor that was retrieved from the vehicle driven by Lewis, Edwards identified it as the same straight razor that she had in her purse on the night of the robbery.

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Lewis v. State, 112 So. 3d 1092, 2013 WL 1800030, 2013 Miss. App. LEXIS 220 (Mich. Ct. App. 2013).

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