IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TERRANCE MONTREAL JENKINS NO KA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

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1 E-Filed Document Sep :46: KA COA Pages: 15 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TERRANCE MONTREAL JENKINS APPELLANT VS. NO KA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE:(601)

2 Table of Contents Table of Authorities... ii Statement of the Issues... 1 Statement of the Case... 1 Statement of the Facts... 1 Summary of the Argument... 4 Argument... 5 Conclusion Certificate of Service i

3 Table of Authorities Cases Bell v. State, 725 So. 2d 836 (Miss. 1998)... 9 Blue v. State, 827 So. 2d 721 (Miss. Ct. App. 2002)... 6, 8 Clark v. State, 756 So. 2d 730 (Miss. 1999) Clayton v. State, 759 So. 2d 1169 (Miss. 1999)... 6, 7, 8 Downs v. State, 962 So. 2d 1255 (Miss. 2007)... 5 Graham v. State, 185 So. 3d 992 (Miss. 2016)... 9 Ingram v. State, 483 So. 2d 688 (Miss. 1986)... 7 McKee v. State, 791 So. 2d 804 (Miss. 2001)... 5 Miller v. State, 740 So. 2d 858)(Miss. 1999)... 9 Sykes v. State, 291 So. 2d 697 (Miss. 1974)... 7 Veazy v. State, 113 So. 3d 1226 (Miss. 2013) Walls v. State, 827 So. 2d 718 (Miss. Ct. App. 2002)... 5 Statutes Mississippi Code Annotated Section , 11 ii

4 Statement of the Issues I. The jury s verdict is supported by sufficient evidence. II. Jury Instruction Number 5 reflected Jenkins theory of defense, and did not constructively amend his indictment. Statement of the Case The Grand Jury of Leflore County indicted Terrance Montreal Jenkins for one count of armed robbery in violation of Mississippi Code Annotated Section (CP 1). After a trial by jury, Honorable Judge Richard A. Smith presiding, the jury found that Jenkins was guilty as charged. (CP 45). The trial court sentenced Jenkins to a 20 year sentence in the custody of the Mississippi Department of Corrections, with 10 years to serve, 5 years of post-release supervision, and 5 years of unsupervised probation. (CP 49). The court also ordered Jenkins to pay a $1,800 in restitution, $250 to the District Attorney s office for investigation fees, and $350 to Leflore County in lieu of attorney fees. (CP 49). Statement of the Facts In December of 2014, Terrance Jenkins, Centrelle Neal, and Carter Neal heard that Henry Hampton had received payment from a lawsuit settlement, and they devised a plan to rob him. 1 (TR 77). Jenkins called a couple of his friends until he eventually learned where Hampton was. (TR 46 and 78). Then he, Centrelle, and Carter went to where Hampton was, picked Hampton up, and took him to a liquor store. (TR and 79). While Hampton was in the liquor store, the men talked about their plan to rob Hampton. (TR 83). The plan was that they would all drive to Browning Road, Jenkins would get Hampton to the back of the vehicle and hold him down, Centrelle would get the money out of Hampton s pockets, and Carter would drive the getaway 1 Hampton received the money after he was in a car accident that left him with cognitive and hearing impairments, and affected his ability to communicate. (TR 116). Dominique Williams, Hampton s friend who saw him counting his money on the day in question, testified that Hampton had at least $3,600 in cash. (TR 46). 1

5 car. (TR 79 and 85). Afterwards, Jenkins was going to go to Scott Triple Stop and call Deputy Rodney Spencer presumably to provide some story as a cover up for the robbery. (TR 85). After the group left the liquor store, Jenkins drove to a secluded portion of Browning Road, and said that he had to stop to use the restroom. (TR 87). At the same time, Hampton got out so that he could shoot the gun that he had purchased that day. (TR 87 and 159). However, Jenkins asked Hampton if he could shoot the gun. (TR 88). After Jenkins took the gun from Hampton, he shot it two times, and then placed the gun on the floor board of the driver s side of the vehicle. (TR 88). After that, the robbery went according to plan except that when Jenkins and Centrelle initially attempted to rob Hampton, he fought back and Jenkins hit Hampton in the face, and then Hampton ran into the woods. (TR and ). But Jenkins chased him into the woods, and came out holding a gun and the money. (TR 93 and ). And there was no indication that, after Jenkins robbed Hampton using the gun, that Hampton attempted to fight back. Although Hampton had brought a gun of his own, Jenkins had taken the gun from him, and the gun remained in the vehicle when Hampton ran. (TR 56 and 89). Therefore, the gun that Jenkins had was the gun that he had brought with him before the robbery. (TR 79, 94, 101, and 105). When Jenkins returned from chasing Hampton, he declared I got the money. (TR 94). After the robbery, Jenkins, Centrelle, and Carter drove to the Triple Stop. (TR 95). Jenkins told Centrelle and Carter to try and get in touch with Deputy Spencer. (TR 95). Jenkins wanted to contact Deputy Spencer because he planned to tell him that Hampton had tried to rob him. (TR 95). Eventually, someone got in touch with Deputy Spencer and asked him to meet Jenkins at the car wash. (TR 95). Before Deputy Spencer arrived, Jenkins hid the money and his gun in the back of the Explorer. (TR 96). 2

6 When Deputy Spencer arrived at the car wash, and he and Jenkins started talking, Centrelle and Carter drove away. (TR 61 and 97). At that point, Jenkins told Deputy Spencer that someone (Hampton) had tried to shoot and kill him. (TR 61). Jenkins said that he was able to take the gun away from Hampton during the altercation, and he gave Hampton s gun to Deputy Spencer. (TR 61, 96, and 105). Deputy Spencer asked Jenkins to take him to the scene of the incident, and, when they arrived, they saw Hampton staggering down the street. (TR 66). Deputy Spencer noticed that Hampton was disoriented, he was bleeding from his nose and mouth, and he was very upset. (TR 66). Hampton told Deputy Spencer that Jenkins had jumped him and robbed him. (TR 67). When Deputy Spencer encountered Hampton, he called an ambulance, and Hampton was taken to the hospital. While he was at the hospital, he told a number of people, including his mother and his cousin, that Jenkins, Carter, and Centrelle had robbed him. (TR 121). Deputy Spencer detained Jenkins so that he could investigate. And, when Hampton was released from the hospital that evening, he was also detained so that investigators could determine what actually happened. (TR 144). Carter Neal testified that, while Jenkins was with Deputy Spencer, Centrelle and Carter had driven to an alley beside Jerry Smith s house. (TR 97). Centrelle got out of the truck with the money, and he was supposed to give it to Jenkins girlfriend, but Carter testified that he never saw the money after that. (TR 97 and 108). Carter explained that he never asked about it and he assumed he would not get any of the money because it had Jenkins blood on it. (TR 98). Bill Staten, an investigator with the Leflore County Sheriff s Department, was able to recover $1800 in cash from Kiki Sharkey, Jenkins girlfriend. (TR 137). And he learned that Sharkey had received the money from Centrelle at Carter s house. (TR 137 and ). That 3

7 money was returned to Hampton; however, at the time of trial, the remaining money had not been recovered. (TR 141). When Jenkins was detained, officers informed him of his Miranda rights, he signed a waiver form, and he agreed to speak to Investigator Staten. (TR 143). In his statement, which was introduced at trial, Jenkins gave a statement that largely contradicted any other information that the investigators discovered. Although witnesses claimed that Jenkins is the one who got in touch with Hampton, Jenkins claimed that it was Hampton who called him and asked for a ride to the liquor store. (TR 46, 79, and 146). And although the same witnesses stated that Jenkins arrived with Carter and Centrelle, Jenkins said that he went alone to get him, and that no one rode with them to the store. (TR 47, 80-81, and 146). After providing this brief statement, Jenkins told Investigator Staten that he wanted to go back to his cell, and the interrogation ended. (TR ). At trial, the State presented six witnesses, including Henry Hampton, and Carter Neal, one of Jenkins co-indictees, who all testified about the events surrounding the armed robbery. Defense counsel did not call any witnesses, and conceded that the State had proved that Jenkins robbed Hampton, but argued that the State did not prove that Jenkins used a gun during the robbery. (TR ). After considering all of the evidence that was presented, and instructions on both armed robbery and simple robbery, the jury found that Jenkins was guilty of armed robbery. (TR 220). It is from this conviction that Jenkins now appeals. Summary of the Argument The State presented sufficient evidence to justify a reasonable juror s finding that Jenkins robbed Hampton by using a firearm to place him in fear. And, contrary to the Appellant s claim, 4

8 Instruction Number 5 did not constructively amend Jenkins indictment, and it did not lessen the State s burden to prove that Jenkins was guilty of armed robbery. Argument I. The jury s verdict is supported by sufficient evidence. At trial, defense counsel conceded that Jenkins robbed Hampton, but argued that there was insufficient evidence to show that Jenkins used a gun during the robbery. However, the jury found that Jenkins was guilty of armed robbery. Now, on appeal, Jenkins argues that, while the State proved that Jenkins robbed Hampton and that Jenkins used physical force during the robbery, it did not provide sufficient evidence to prove that Hampton was put in fear by the display of a gun. (Appellant s Brief p. 8-9). This argument is contrary to the evidence that was presented, as well as the trial court s finding that the evidence supported the inference that Hampton was fearful. (TR 190). When this Court reviews whether a verdict is sufficiently supported by the evidence, it should look at the totality of the circumstances of the particular case. Downs v. State, 962 So. 2d 1255, 1259 (Miss. 2007)(citing McKee v. State, 791 So. 2d 804, 807 (Miss. 2001)). And the Court must consider all of the evidence in the light most favorable to the verdict. Id. But [t]his Court [should] only reverse where a reasonable, fair-minded juror could not have found one of the required elements of the crime. Walls v. State, 827 So. 2d 718, 720 (Miss. Ct. App. 2002)(citation omitted). Based on Jenkins indictment, the State was required to prove that Jenkins 1) unlawfully, willfully and feloniously took, or attempted to take Hampton s personal property from his person of or from his presence, 2) against Hampton s will by putting him in fear of immediate injury by the exhibition of a handgun. (CP 1). This Court has held that a victim s assumption that a 5

9 weapon was used is not sufficient to sustain an armed robbery conviction. Blue v. State, 827 So. 2d 721, 724 (Miss. Ct. App. 2002)(citations omitted). Instead, there must be actual evidence demonstrating the exhibition of a gun. Id. Furthermore, the State must prove that the accused placed the victim in fear as a means to effectuate the armed robbery. See Clayton v. State, 759 So. 2d 1169, 1171 (Miss. 1999). In Clayton, the Supreme Court found that the evidence showed that the robbery at issue was the result of violent force, and was not achieved by placing the victim in fear of injury to her person. Id. Although the victim testified that she was afraid, it was clear from her testimony that she was not afraid until after the defendant had taken her purse. Id. Although the robbery statute provides that a person is guilty of robbery if they take personal property from another person against his will by violence to his person, or by putting such person in fear of some immediate injury to his person, because Clayton s indictment only alleged that the taking occurred by placing the victim in fear of immediate injury, the conviction could not be sustained by proving that the taking occurred due to violence. Id. at The Supreme Court found that there was no evidence that Clayton acted with the intent to intimidate or cause fear in the victim, and, therefore, there was insufficient evidence to support the robbery conviction, and remanded for re-sentencing for the lesser-included offense of grand larceny. Id. at Consistent with this Court s opinion in Clayton, the State was required to show that Jenkins used a gun during the robbery, and that his use of the gun was intended to intimidate or cause fear in the victim, Hampton. See Id. at That requirement was accomplished. In this case, the evidence was sufficient to show that Jenkins used a gun to effectuate the robbery. Not only did Jenkins bring his own gun in preparation for the robbery, but he also snatched 6

10 Hampton s gun away from him, fired it twice, and then put it where Hampton could not retrieve it. (TR 168). At trial, Hampton was repeatedly asked whether he was afraid when Jenkins grabbed his gun from him. (TR ). Due to Hampton s disabilities, his answers to questions were often difficult to understand. However, when asked whether he was afraid when Jenkins snatched his gun, he intimated that being afraid in that situation is automatic and that he was in a state of shock because [he] didn t expect to get out of there. (TR 171). Therefore, a reasonable juror could have concluded that Hampton was placed in fear by Jenkins use of a firearm. The Appellant argues that the only evidence of how Hampton s money was taken from him was that it was by Jenkins and Centrelle physically removing it from Hampton s presence, through violence, but without displaying a deadly weapon. (Appellant s Brief p. 8-9)(emphasis added). However, Carter testified that Centrelle and Jenkins attempts to use physical force to take Hampton s money were not successful because Hampton initially fought back and got away. (TR 90). While it is true that Carter testified that he did not see Jenkins threaten Hampton with a gun, it is also true that Carter was not with Hampton and Jenkins in the woods when Jenkins actually stole Hampton s money. (TR 94 and 106). However, Carter testified that, when Jenkins ran out of the woods and yelled that he had the money, Jenkins was also carrying his own gun. (TR 94). Based on this evidence, a reasonable juror could have concluded that Jenkins was able to finally successfully rob Hampton by using his gun to place him in fear. And that Hampton did not fight back, or attempt to get his money back, due to the fact that he knew Jenkins was armed. But the question of whether the money was taken by force or due to fear was a question for the jury to resolve. See Clayton, 759 So. 2d at 1172 (citing Ingram v. State, 483 So. 2d 688, 689 (Miss. 1986) and Sykes v. State, 291 So. 2d 697, 698 (Miss. 1974)). 7

11 A reasonable juror could have found that Hampton was placed in fear when Jenkins snatched and fired his own gun, or a reasonable juror could have found that Hampton was placed in fear when Jenkins used his own gun to successfully complete the robbery. Either way, the evidence was sufficient to create a jury question, and to support the jury s finding that Jenkins was guilty of armed robbery. Therefore, contrary to the Appellant s argument, this case is not analogous to the facts in Clayton. If, for some reason, this Court finds that there was insufficient evidence to support the armed robbery conviction, then it should remand for sentencing of the lesser-included offense of robbery (and not grand larceny, as the Appellant suggests). The jury was instructed that if it did not find Jenkins guilty of armed robbery, it could find him guilty of simple robbery, which is a lesser-included offense of armed robbery. (CP 35); See Blue, 827 So. 2d at 724. If this Court finds that the State did not prove the necessary elements of armed robbery specifically that Hampton was placed in fear of a deadly weapon then the Court should find that Jenkins is guilty of simple robbery. See Id. To re-sentence him for grand larceny, as the Appellant suggests, this Court would have to find that Jenkins took Hampton s money through force alone, and that Hampton never feared Jenkins. See Clayton, 759 So. 2d at Such a finding would not be supported by the record. II. Jury Instruction Number 5 reflected Jenkins theory of defense, and did not constructively amend his indictment. At trial, defense counsel conceded that the State presented sufficient evidence to prove that Jenkins robbed Hampton. Jenkins theory of defense was that he committed simple robbery, rather than armed robbery. Instruction Number 5 informed the jury of the elements for armed robbery as well as those for simple robbery. 8

12 In regard to armed robbery, the jury was instructed that if it found that Jenkins took or attempted to take personal property from the person or presence of Hampton by violence to the person of [Hampton], or by putting [Hampton] in fear of immediate injury to his person by the exhibition of a deadly weapon, to wit a handgun then it should find Jenkins guilty of armed robbery. (CP 34). In the same instruction, and in regard to simple robbery, the jury was instructed that if it found that Jenkins took or attempted to take personal property from the person or presence of Hampton by violence to the person of [Hampton], or by putting [Hampton] in fear of immediate injury to his person then it should find Jenkins guilty of robbery. (CP 35). Defense counsel did not object to this instruction because it reflected Jenkins theory of defense. The Supreme Court has held that an instruction that substantially alters the elements of proof necessary for a conviction is considered a constructive amendment to the indictment, and such amendments are reversible per se. Bell v. State, 725 So. 2d 836, 855 (Miss. 1998)(citations omitted). But the Court has also held that [n]ot all variances between the indictment and instructions constitute a constructive amendment, nor do they rise to plain error. Id. Where a variation between an indictment and an instruction does not modify an essential element of the offense charged, then the defendant is not prejudiced, and reversal is not warranted. See Id. at 856. And, as long as [a] change does not materially alter facts which are the essence of the offense... or materially alter a defense to the indictment as it originally stood in a way that would prejudice the defendant s case, then [a variance between an indictment and an instruction] is permissible. Graham v. State, 185 So. 3d 992, 1001 (Miss. 2016)(quoting Miller v. State, 740 So. 2d 858, 862)(Miss. 1999)(further citation omitted)). 9

13 On appeal, Jenkins argues that Instruction Number 5 was an improper constructive amendment of his indictment, and takes issue with the fact that the instruction regarding armed robbery included the phrase by violence to his person. (Appellant s Brief p. 11). Jenkins argues that this language should have been excluded because it lessened the State s burden of proof for the armed robbery charge, and the language was not contained in the indictment. (Appellant s Brief p. 11). However, the jury instruction tracked the language of the Robbery using [a] deadly weapon statute, which provides that a person who takes or attempts to take personal property from another person against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery. Miss. Code Ann (emphasis added). And, because this language was also present in the simple robbery instruction, the language did not lessen the State s burden. Jenkins could not have been convicted of armed robbery unless the jury found that he robbed Hampton by the exhibition of a deadly weapon. This is what separates armed robbery from simple robbery. See Veazy v. State, 113 So. 3d 1226, 1229 (Miss. 2013)(citing Clark v. State, 756 So. 2d 730, 732 (Miss. 1999)). The jury was instructed that, if it found that Jenkins did not use a weapon during the robbery, then it should convict Jenkins of Robbery, rather than Armed Robbery. While the indictment did not include the words by violence to his person, the indictment did track the essential elements of the statute, and the indictment fully informed Jenkins of the statute that he was charged under. And the variance between the indictment and Instruction Number 5 did not relieve the State of its burden to prove the essential elements of armed robbery. Accordingly, Jenkins was not prejudiced by the instruction, and this issue is without merit. 10

14 Conclusion The issues presented by Jenkins are without merit. Accordingly, the State of Mississippi respectfully requests that this Honorable Court affirm Jenkins conviction and sentence. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

15 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed (and mailed by United States Postal Service) the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Richard A. Smith Circuit Court Judge Post Office Box Greenwood, MS Honorable W. Dewayne Richardson District Attorney Post Office Box 426 Greenville, MS George T. Holmes, Esq. Office of Indigent Appeals Post Office Box 3510 Jackson, MS This the 29th day of September, s/barbara Byrd BARBARA BYRD SPECIAL ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601)