BRIEF OF THE APPELLANT

E-Filed Document Apr 1 2015 20:02:54 2014-KA-00588-COA Pages: 15 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CHRISTOPHER ANDERSON APPELLANT V. NO. 2014-KA-00588-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Benjamin A. Suber, MS Bar No. 102214 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 Fax: 601-576-4205 Email: bsube@ospd.ms.us Counsel for Christopher Anderson

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CHRISTOPHER ANDERSON APPELLANT V. NO. 2014-KA-00588-COA STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons have an interest in the outcome of this case. These representations are made in order that the justices of this court may evaluate possible disqualifications or recusal. 1. State of Mississippi 2. Christopher Anderson, Appellant 3. Honorable Patricia Burchell, District Attorney 4. Honorable Elizabeth Porter, Trial Counsel for Appellant 5. Honorable Robert Helfrich, Circuit Court Judge st This the 1 day of April, 2015. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant i

TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS.... i TABLE OF AUTHORITIES... iii STATEMENT OF THE ISSUES...1 ISSUE NO. 1 THE TRIAL COURT SHOULD HAVE GRANTED A DIRECTED VERDICT OR A JUDGMENT NOTWITHSTANDING THE VERDICT.1. STATEMENT OF THE CASE...1 STATEMENT OF THE FACTS...1 SUMMARY OF THE ARGUMENT....5 ARGUMENT...5 ISSUE NO. 1 THE TRIAL COURT SHOULD HAVE GRANTED A DIRECTED VERDICT OR A JUDGMENT NOTWITHSTANDING THE VERDICT.5. CONCLUSION...9 CERTIFICATE OF SERVICE....1 0 ii

TABLE OF AUTHORITIES MISSISSIPPI CASES Armstead v. State, 716 So. 2d 576, 583 (Miss. 1998)...6, 7 Bucklew v. State, 206 So. 2d 200, 202-04 (Miss. 1968)............................... 6, 7 Bush v. State, 895 So. 2d 836, 843(1] 16) (Miss. 2005)................................ 7 Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)...7 Henderson v. State, 660 So. 2d 220, 222 (Miss. 1995)...5 Ishee v. State, 799 So. 2d 70, 73-75 (Miss. 2001)...8 Nichols v. State, 822 So. 2d 984, 989 (Miss. Ct. App. 2002)............................. 5 West v. State, 437 So. 2d 1212, 1214 (Miss. 1983)...7, 8 MISSISSIPPI STATUTES Mississippi Code Annotated Section 97-1-7 (1972).................................. 5, 6 Mississippi Code Annotated Section 99-19-81 (1972).................................. 1 iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CHRISTOPHER ANDERSON APPELLANT V. NO. 2014-KA-00588-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT STATEMENT OF THE ISSUES ISSUE NO. 1 THE TRIAL COURT SHOULD HAVE GRANTED A DIRECTED VERDICT OR A JUDGMENT NOTWITHSTANDING THE VERDICT. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Forrest County, Mississippi, and a judgment of conviction for the crime of Attempted Burglary of an Automobile against the Appellant, Christopher Anderson. The trial judge subsequently sentenced the Appellant to seven (7) years as a habitual offender as set forth in Mississippi Code Annotated Section 99-19-81 (1972), as amended. The conviction and sentence followed a jury trial on April 8, 2014, Honorable Robert B. Helfrich, Circuit Judge, presiding. Anderson is currently in the custody of the Mississippi Department of Corrections. STATEMENT OF THE FACTS On September 2, 2013, Allen Roy Tatum called the Hattiesburg Police Department and reported that someone was possibly trying to break into his club. Tr. 54-57. Tatum, a retired employee of Mississippi Power and now owner of Club Memories, testified that he was at his club 1

awaiting for deliveries from beer and liquor trucks when he heard someone banging on the door. Tr. 55-56. Tatum continued to tell the court that as he was working in his office at the club, he heard someone knocking on his door, like they were trying to pull it open and break in. Tr. 56. Tatum went to the window and looked through the blinds and saw an individual sitting on the passenger side of his truck entering in codes on the door. Tr 56-57. The individual then came back to the door and tried to pursue or breaking in the door of the club because he pulled on the door hard. Tr. 57. Tatum stated that he decided to call the Hattiesburg Police Department. Id. According to Tatum, the individual outside appeared upset and angry because he was using a lot of profanity. Id. Tatum described the individual outside as a medium built, white male, in his late thirties or early forties and was wearing blue jeans and a gray t-shirt. Id. Tatum told the court that he was instructed by the police department to stay inside the club and not to go outside and confront the individual due to safety concerns. Tr. 58. The police arrived on the scene within three to five minutes. Tr. 59. Tatum told the police that the individual outside appeared to be breaking into his truck and also into his club. Id. Tatum identified the truck outside the club as his truck and identified documentation as to his ownership of the said referenced truck. Tr. 61, Exhibit 3, 4. Tatum stated that he did not know the individual outside his club nor had he ever discussed the sale of his truck with the individual. Tr. 63. Tatum identified that most valuable item in his truck as his bible. Tr. 64. He stated that he keeps very little change in his truck. Id. Tatum identified numerous photographs containing a Ford truck directly in front of his club. Tr. 65, Exhibits 4-6. Tatum explained that his truck was approximately ten to fifteen feet from the door to Club Memories. Tr. 66. 2

Tatum testified that before the police arrived on the scene, the individual outside was sitting down on the passenger side punching in codes on his truck. Tr. 69. However, immediately before the police arrived, Tatum said that the individual outside was sitting on the tailgate of the truck. Id. On cross-examination, Tatum admitted that there was no damage to his truck. Tr 76-77. Tatu-m did not have any broken windows, scratches, nor was anything taken from the vehicle. Tr. 77. 1 Officer Eric Gannon was the first officer on the scene at the club. Tr 86-87. Gannon testified that he received a call of a possible auto burglary in progress. Tr. 87. Gannon stated that the individual was a white male and wearing a gray t-shirt with blue jeans. Id. Gannon stated that when he arrived on the scene, the individual was walking way from the vehicle. Id. Gannon proceeded to apprehend at that time and placed him under arrest. Id. The individual was detained in order to determine the situation. Id. Gannon stated the individual complied with his requests. Tr. 87-88. According to Gannon, Anderson had indicated that he had bought the truck owned by Allen. Tr. 89. Gannon proceeded to discuss the situation with Allen. Tr. 88. Allen told Gannon that he had not tried to sell his truck, and he consented to allow Gannon to search his truck. Tr. 89. According to Gannon, everything inside the truck pertained to Allen. Id. No apparent records of sale, no bill of sale, nothing of that nature was found that the truck was involved in the sale process. Id. Gannon stated that he detained Anderson and conducted a pat-down of his person. Tr 89-90. During this pat-down, Gannon stated that he only found personal effects. Tr. 97. Gannon stated that 1 Officer Eric Gannon was a member of the Hattiesburg Police Department as a patrolman at the time of the alleged offense. 3

he did not find any truck keys; however, he also stated that he did not find any burglar tools. Tr. 90, 98 Gannon identified the individual as Christopher Anderson. Tr. 88-89. Gannon claimed that Anderson was acting nervous and sweating profusely upon being arrested. Tr. 88, 94. Gannon proceeded to turn vehicle around out of the sun and gave him full air conditioner. Tr 94. Once Anderson arrived at the police department, he was short of breath. He advised dispatch to get AAA Ambulance Service for medical assistance. Tr 94, 95, 103. AAA cleared Anderson of any medical necessities. Tr. 94-95. Gannon further stated that he looked for forced entry to the truck. Tr. 99. He indicated that there was no forced entry into the vehicle. The only thing that he was told by Allen was that Anderson tried to press the key pad to gain access to the vehicle and pounded on the window, but there was no forced entry. Id. According to Gannon, Anderson explained that he bought the vehicle some nights back. Id. Narottam Holden, an investigator for the Hattiesburg Police Department, was the lead investigator in this case. Tr. 105-06. Holden main role was to interview Anderson in regards to what occurred with this incident. Tr. 106. Anderson gave Holden a written statement of his involvement. Tr. 109. According to Holden, when Anderson gave him a statement, he stated that he made his way to Club Memories because he found a letter in his hotel room advising him that if he went there, there would be a vehicle with some keys and some money inside of it and that he was to have previously made contact with the owner of that vehicle and had made arrangements to make entry into that vehicle and get that money and other paperwork items. Tr. 110-11. Holden further stated that Anderson did not ever tell him that he had purchased the truck and he did not provide any document that proved or showed that he had purchased the truck. Tr. 111-12. 4

Holden continued that Anderson appeared very nervous and sweating profusely. Tr. 112. He seemed very fidgety and seemed to exaggerate in his statement and comments made to Holden. On cross-examination, Holden stated that Anderson did not possess a slim jim, brick, coat hanger, or any other burglary tools on the scene. Tr. 117-18. However, he did indicate that people break into cars all types of ways. Tr. 117. SUMMARY OF THE ARGUMENT The evidence was insufficient to support the verdict of guilty. ARGUMENT ISSUE NO. 1 THE TRIAL COURT SHOULD HAVE GRANTED A DIRECTED VERDICT OR A JUDGMENT NOTWITHSTANDING THE VERDICT. Anderson s motion for directed verdict should have been sustained and the case should not have gone to the jury. Alternatively, a JNOV should have been granted. In reviewing a motion for directed verdict which challenges the sufficiency of evidence, the Court looks to all the evidence before the jurors to determine whether a reasonable, hypothetical juror could find, beyond a reasonable doubt, that the defendant is guilty of the crime charged in the indictment. Nichols v. State, 822 So. 2d 984, 989 (Miss. Ct. App. 2002). Under common law, an attempt to commit a crime a consists of three elements: (1) an intent to commit a particular crime, (2) a direct ineffectual act done toward its commission; and (3) the failure to consummate its commission, Henderson v. State, 660 So. 2d 220, 222 (Miss. 1995). The 5

2 offense of attempt is codified in Mississippi Code Annotated Section 97-1-7 (1972). There was no evidence of an intent to steal anything. The offense of attempt requires the specific intent to commit a particular offense. Armstead v. State, 716 So. 2d 576, 583 (Miss. 1998). The state will argue that Anderson allegedly trying to open the truck door or entering codes into the truck was proof of intent to steal. However, that conclusion is somewhat hasty. The act of looking into truck windows does not necessarily lead to a conclusion that the looker intends to steal. Nor does the act of allegedly touching the door handle. Hence, the evidence was ambiguous at best. As in Bucklew v. State, 206 So. 2d 200, 202-04 (Miss. 1968), here in Anderson's case, there was never any showing of an intent to commit a theft, but if there was, any specific intent was abandoned prior to a completion of an unambiguous overt act and since the Supreme Court has held that the law requires that the State establish criminal intent as an element to the crime of attempt to commit a crime, the trial court here should have ranted a directed verdict of acquittal. The Bucklew court pointed out that that the defendant's [overt] act must be a direct, unequivocal act toward the commission of the intended crime. Bucklew, 206 So.2d at 202-03. Since Anderson s alleged act touching the truck door and entering a code is ambiguous, coupled with his other actions, the trial court should have granted the requested directed verdict. Alternatively, the court should have granted a new trial or rendered a not guilty verdict. In reviewing a motion for JNOV, to determine whether trial evidence is sufficient to sustain a conviction the critical inquiry is whether the evidence shows beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element 2 Miss Code Ann. 97-1-7 (1) (1972, as amended) Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, where no other specific provision is made by law for the punishment of the attempt, be punished by imprisonment and fine for a period and for an amount not greater than is prescribed for the actual commission of the offense so attempted. 6

of the offense existed. Bush v. State, 895 So. 2d 836, 843(1] 16) (Miss. 2005) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)). The deciding factor 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. Id. If the minimum conclusion is reached that, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence is sufficient. Id. The trial court should have nevertheless granted a new trial or an aquittal JNOV. The appellant's position is that the state's purported proof of an overt act is insufficient to have proven any intent to steal, at best the proof of the overt act is ambiguous. See Bucklew, supra. In the present case, the State s only evidence of intent comes from the introduction of prior convictions over ten (10) years old. Tr. 2, 37. See Armstead, supra. It is the appellant's position that, looking at the state's case in the best possible light, that no crime was committed. Going any further is pure speculation. The crime of attempt is explained in West v. State, 437 So. 2d 1212, 1214 (Miss. 1983). West was charged with attempted sexual battery, a crime requiring penetration, so the state would have been required to show an attempt at penetration. Yet the proof was that West merely fondled the victim with no proof of a specific intent or attempt to penetrate. The West court said that, even though the overt act is important, [t]he attempt statute requires that, before one may be convicted of attempt, he shall fail therein, or shall be prevented from committing the same. The gravamen of this offense of attempt is that the accused have done an overt act... and be prevented from its commission. [Emphasis added.]. The West court then ruled that the failure is a more important element than the overt act. Id. The defendant's offense conduct proved at trial was that he accosted a young woman and did no more 7

than fondle her and expose himself without any attempt at penetration. The failure to attempt penetration was not the product of his victim's... resistance or the intervention of extraneous causes. Id. The West court reversed the attempted sexual battery conviction. Attempt requires design which, therefore, contemplates intent. The Court said, [w]hatever West's intent may have been when he originally inveigled his victim into the apartment... [it had] dissipated by the time he committed his so-called overt acts... [i]f one walks into a bank with a loaded pistol in his pocket intending to rob the bank and walks up to the teller's window, but then changes his mind, he has not committed the crime of attempted bank robbery. Id. Sometimes it is a defendant's actions, and sometimes it is the defendant's words and actions which give proof of intent. In Ishee v. State, 799 So. 2d 70, 73-75 (Miss. 2001), a defendant's specific request for a young boy to perform a sex act coupled with gesturing made it clear, thus unambiguous for the court to see intent. In the present case, Anderson words show no intent to commit an offense, was even sitting on the tailgate when the police officer arrived on the scene, and his actions are ambiguous as previously shown. A judgement notwithstanding the verdict was in order upon request. Appellant respectfully looks to this Court for a remedy. 8

CONCLUSION Anderson contends that there was insufficient evidence to find him guilty of attempted burglary of an automobile. Anderson is asking this Honorable Court to reverse his conviction. Respectfully submitted, Christopher Anderson, APPELLANT /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant 9

CERTIFICATE OF SERVICE I, Benjamin A. Suber, Counsel for Christopher Anderson, do hereby certify that on this day I electronically filed the forgoing BRIEF OF THE APPELLANT with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable John R. Henry, Jr. Attorney General Office Post Office Box 220 Jackson, MS 39205-0220 Further, I have this day caused to be mailed via United States Postal Service, First Class postage prepaid, a true and correct copy of the above to the following non- MEC participants: st This the 1 day of April, 2015. Honorable Robert Helfrich Circuit Court Judge Post Office Box 309 Hattiesburg, MS 39403-0309 Honorable Patricia Burchell District Attorney, District 12 Post Office Box 166 Hattiesburg, MS 39403 Christopher Anderson, MDOC #L0636 Quitman County Satellite Facility Route 1, Box 246 Lambert, MS 38643 /s/ Benjamin A. Suber Benjamin A. Suber Counsel for Appellant Benjamin A. Suber, MS Bar No. 102214 INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER Post Office Box 3510 Jackson, Mississippi 39207-3510 Telephone: 601-576-4290 10

Fax: 601-576-4205 Email: bsube@ospd.ms.gov 11