BRIEF OF THE APPELLANT

E-Filed Document Jun 14 2017 16:56:06 2016-KA-01711-COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NATHANIEL MCKEITHAN APPELLANT V. NO. 2016-KA-01711-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF THE APPELLANT Appeal from the Circuit Court of Noxubee County, Miss. Cause No. 2015-0032 Oral Argument Not Requested Mollie M. McMillin, MS Bar No. 102708 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: mmcmi@ospd.ms.gov Counsel for Nathaniel McKeithan

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NATHANIEL MCKEITHAN APPELLANT V. NO. 2016-KA-01711-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. Nathaniel McKeithan, Appellant 3. Honorable Scott Colom, District Attorney 4. Honorable Lee J. Howard, Circuit Court Judge This the 14th day of June, 2017. Respectfully Submitted, INDIGENT APPEALS DIVISION OFFICE OF STATE PUBLIC DEFENDER BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel i

TABLE OF CONTENTS Certificate of Interested Persons.... i Table of Contents... i i Table of Authorities... iii Statement of Assignment...1 Statement of the Issues...1 Statement of the Case...1 Statement of the Facts...2 Summary of the Arguments...4 Arguments...5 I. The trial court erred in denying McKeithan s motion for directed verdict and judgment notwithstanding the verdict in Count 3 of the indictment because the evidence is insufficient to prove that McKeithan committed armed robbery against Inez Barge...5 II. The trial court erred in refusing proposed jury instruction D-8................ 7 Conclusion...9 ii

TABLE OF AUTHORITIES U.S. Supreme Court Cases Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)................. 5 State Court Cases Bush v. State, 895 So. 2d 836 (Miss.2005)....5 Cowart v. State, 178 So. 3d 651 (Miss. 2015)...5 Dambrell v. State, 903 So. 2d 681 (Miss. 2005)....6 Duckworth v. State, 477 So. 2d 935 (Miss. 1985)...8 Rodgers v. State, 166 So. 3d 537 (Miss. Ct. App. 2014)...7 Thomas v. State, 14 So. 3d 812, 821 (Miss. Ct. App. 2009).............................. 8 Williams v. State, 134 So. 3d 732 (Miss. 2014)...8 iii

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NATHANIEL MCKEITHAN APPELLANT V. NO. 2016-KA-01711-COA STATE OF MISSISSIPPI APPELLEE BRIEF OF APPELLANT STATEMENT OF ASSIGNMENT This case is properly assigned to the Mississippi Court of Appeals. STATEMENT OF THE ISSUES I. The trial court erred in denying McKeithan s motion for directed verdict and judgment notwithstanding the verdict in Count 3 of the indictment because the evidence is insufficient to prove that McKeithan committed armed robbery against Inez Barge. II. The trial court erred in refusing proposed jury instruction D-8. STATEMENT OF THE CASE This appeal proceeds from the Circuit Court of Noxubee County and a judgment of conviction for one count of house burglary and two counts of armed robbery entered against Nathaniel McKeithan following a jury trial on September 19-23, 2016, the Honorable Lee J. Howard, circuit judge, presiding. (C.P. 91-93, R.E. 6-8). McKeithan was sentenced to twenty-six years on each of the armed robbery convictions and twenty years for the burglary conviction, all in the custody of the Mississippi Department of Corrections and all consecutive to each other and to any other sentences McKeithan was already serving. (C.P. 105-107, R.E. 9-11). McKeithan filed a motion for new trial or judgment notwithstanding the verdict, which the 1

trial court denied. (C.P. 108, 111; R.E. 12, 15). McKeithan is currently in the custody of the Mississippi Department of Corrections and appeals to this honorable court for relief. STATEMENT OF THE FACTS On June 12, 2017, Richard Barge went home from work to eat lunch with his wife. (Tr. 161). When he arrived, he noticed a man at his front door, looking around. (Tr. 161). The man met Barge in the driveway and asked for directions to two different schools. (Tr. 161). Their conversation lasted for two or three minutes before the man left and Barge went inside his home. (Tr. 163). A few minutes later, the same man knocked on the door of Barge s neighbor, Kim Dziewit, and asked her for directions to the same places Barge had already directed him to. (Tr. 188-89). Later that night, Barge and his wife, Inez Barge, went to dinner with their son and daughterin-law. (Tr. 165). They returned home, but then went out again because Inez wanted ice cream. (Tr. 165). After a trip to McDonald s, Inez and Barge arrived back to their home around 9:00 p.m. (Tr. 165). Barge unlocked the door and let his wife go through first. (Tr. 166). He followed behind her. (Tr. 166). As they were walking into the house, two men wearing hoods or masks rushed in behind them and forced them onto the couches in their living room. (Tr. 166-67). They put blankets over Inez and Barge s heads so they could not see the men. (Tr. 167). Then they began demanding money and jewelry. (Tr. 169-72). One of the men took Barge s wallet out of his pocket and removed his debit card. (Tr. 168). The man asked Barge for the PIN for the card, and Barge responded with a fake PIN. (Tr. 169). The man did not believe Barge and demanded the PIN again. (Tr. 169). The man punched Barge, but Barge continued to give the same number, which the man finally accepted. (Tr. 170). One of the men picked up a Gamo air rifle that was near Barge s couch and held it to Barge s 2

head during part of the robbery. (Tr. 172). Barge was not afraid of being shot with the gun because he knew it was unloaded. (Tr. 172). Several items were stolen from the Barges, including that air rifle, a cell phone, cash, jewelry, and the debit card. (Tr. 174). Because of Inez s advanced Alzheimer s disease, she did not testify at trial, nor did she give any statements to police after the crime. (Tr. 158). Once the men left, Barge checked on his wife. (Tr. 173). Once he had checked on Inez and locked the door, Barge called his son. (Tr. 173). His son immediately called police, who arrived soon after the burglary. (Tr. 173). The robbery was reported at 9:42 p.m. (Tr. 251). A few minutes later, a man attempted to use the stolen debit card at the Bank First automatic teller machine in Macon. (223). The man, whose face was caught on the ATM camera, attempted several times to get money from the machine using the card; but the PIN Barge gave him was incorrect. (Tr. 213). Next, the same man attempted to use the debit card at a store in Shuqualak, but the card was declined because the PIN he entered was incorrect. (Tr. 227). The store s owner looked at the card and recognized Barge s name on it. (Tr. 227). The store owner, Sammy Lindsey, knew Barge and suspected that the man in his store did not have permission to use the card. Lindsey refused to return it to the man. (Tr. 227). Lindsey then called his father, who was a friend of Barge, and told him about the card. (Tr. 244). Lindsey s father called Barge to let him know about the debit card; none of them knew at the time that the Barges had been robbed. (Tr. 248). From the ATM video and a surveillance video from the store, Macon police were able to develop McKeithan as a suspect. He was arrested the next day. (Tr. 265). None of the stolen items were recovered from McKeithan or his car. (Tr. 279). The jewelry was found after an anonymous caller gave police a tip about it being hidden in the woods in Shaqualak. (Tr. 272, 277). None of the other items were recovered. 3

McKeithan admitted at trial that he had attempted to use the debit card at the Bank First and at the store in Shuqualak. But McKeithan testified that he bought the debit card from a crackhead in the parking lot of a store in Macon, in exchange for a bag of weed. (Tr. 291-94). The man told him the same PIN number that Barge told the robbers in his house. (Tr. 294-95). McKeithan testified that he tried it several times at the Bank First, then went to the store in Shuqualak to try it again. (Tr. 295-300). According to McKeithan, he was in Shuqualak most of that night before the robbery, and he had never been to the Barges house to ask for directions. (Tr. 288-90). SUMMARY OF THE ARGUMENTS The evidence is insufficient to show that Barge committed an armed robbery against Inez. There is no testimony or evidence to show that the robbers put her in fear by exhibiting a deadly weapon, or even by threatening to use a deadly weapon. There is evidence that the robbers put the air rifle up to Barge s head, but nothing in the record indicates that Inez was aware that they had picked up the rifle. Therefore, McKeithan urges this Court reverse and render his conviction for armed robbery. Secondly, the trial court erred in refusing defense instruction D-8, which would have defined deadly weapon and informed the jury whether or not an object is a deadly weapon is a question of fact they had to determine. This instruction was not an improper statement of the law, as argued by the State, nor was it fully covered in the State s or the trial court s instructions. Whether a deadly weapon was used in the crime is an essential element of the offense of armed robbery, and failure to instruct the jury on this question is reversible error. 4

ARGUMENTS I. The trial court erred in denying McKeithan s motion for directed verdict and judgment notwithstanding the verdict in Count 3 of the indictment because the evidence is insufficient to prove that McKeithan committed armed robbery against Inez Barge. When reviewing challenges to the sufficiency of the evidence, the appellate court must determine 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 (Miss.2005) (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In Cowart v. State, 178 So. 3d 651, 666 (Miss. 2015), the supreme court explained challenges to the sufficiency of the evidence as follows: A motion for judgment notwithstanding the verdict implicates the sufficiency of the evidence. This Court considers each element of the offense and reviews all of the evidence in the light most favorable to the verdict. This Court must accept as true all credible evidence consistent with guilt. This Court must give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Moreover, matters regarding the weight and credibility given the evidence are the province of the jury. This Court may reverse only when, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Thus, if any rational trier of fact could have found each and every one of the elements of the crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the prosecution, the verdict must stand. Cowart v. State, 178 So. 3d 651, 666 (Miss. 2015) (internal citations and quotation marks omitted). In order to convict McKeithan of armed robbery of Inez, the State was required to prove that he took certain items of property from the person or presence of Inez Barge... against the will of the said Inez Barge and without her consent by putting the said Inez Barge in fear of immediate injury to her person by the exhibition of a deadly weapon, to wit: an Air Rifle.... (C.P. 4, R.E. 1). No evidence or testimony was presented at trial to indicate that Inez was put in fear of immediate 5

injury by one of the robbers exhibiting a deadly weapon. Barge did not testify that his wife saw the gun or heard anyone threaten either of them with the gun. Barge felt the gun be put up to his head. But his wife s head was covered, and there is no evidence to indicate that any threat was made that she heard or was aware of. (Tr. 172-73). Barge offered little testimony regarding the rifle as used in the robbery. He testified: A. He picked it up. I think because of his hood he couldn't see the rifle in the beginning. But he saw the rifle, and he picked it up and put it to my head. And I knew that it was not loaded because I had worked on it. Q. Were you concerned that he might hit you with the rifle? A. Yes. I was afraid that when they left -- he picked it up about mid time, and I was afraid he might hit me with it or do something harmful to me and my wife before they left. Q: Were you concerned that if that rifle had hit you or your wife several times it could have caused y'all bodily injury? A: Yes. Q: After the suspect put the rifle to your head and serious fear, what happened after that? A: They left after a while. The Mississippi Supreme Court has held that it is not necessary for the victim of an armed robbery to actually see the deadly weapon used in the crime. As long as the victim reasonably believes that the defendant had a deadly weapon and the defendant makes an overt act the statute is satisfied. Dambrell v. State, 903 So. 2d 681, 689 (Miss. 2005). Barge explained that he was able to see a little of what was happening because he could see through the holes in the afghan they placed on his head. He knew that one of the robbers picked up the air rifle, and he felt it against his head. But nothing in the record indicates that Inez saw what was happening. Further, there is no 6

indication that the robbers made any overt act toward Inez that would make her believe that the men were using a deadly weapon in the crime. The use of a deadly weapon is an essential element of the crime of armed robbery, and therefore the State must prove it beyond a reasonable doubt. Viewing all the evidence in the light most favorable to the State, accepting all the credible evidence consistent with guilt as true, and giving the State the benefit of all favorable inferences in this case, McKeithan submits that the State still failed to prove the essential elements of armed robbery beyond a reasonable doubt. Therefore, McKeithan respectfully requests this Court reverse his conviction for armed robbery of Inez Barge and render a not guilty verdict on that count. II. The trial court erred in refusing proposed jury instruction D-8. This Court set forth the following standard of review for challenges to jury instructions: In reviewing challenges to jury instructions, the instructions actually given must be read as a whole.... When so read, if the instructions fairly announce the law of the case and create no injustice, no reversible error will be found. Rodgers v. State, 166 So. 3d 537, 544 (Miss. Ct. App. 2014). McKeithan offered instruction D-8, which defined deadly weapon and explained to the jury that whether an item constitutes a deadly weapon is question for the jury to resolve. The proposed instruction stated: It is a question of fact for the Jury to determine whether the air rifle claimed to have been used by Nathaniel McKeithan was a deadly weapon in the manner claimed to have been used in this case. A deadly weapon may be defined as any object, article or means which, when used as a weapon is, under the existing circumstances, reasonably capable or likely to produce death or serious bodily harm to a human being upon whom the object, article or means is used as a weapon. (C.P. 71, R.E. 3). The trial court refused the instruction after the State argued that it was not a correct statement 7

of the law and that was repetitious with instruction S-8. However, Instruction S-8, offered by the State, did not contain the first part of the instruction offered by McKeithan, explaining the duty of the jury to decide whether the air rifle was a deadly weapon. Further, the instruction offered by the defense was a correct statement of the law and the instruction offered has been held to be a proper statement on the law regarding deadly weapons in the armed robbery context. The supreme court has held that whether an object or instrument is a deadly weapon is a question of fact for the jury to determine. Duckworth v. State, 477 So. 2d 935, 938 (Miss. 1985) (string cite omitted). Further, in Williams v. State, 134 So. 3d 732 (Miss. 2014), the supreme court addressed the issue of instructing the jury on the definition of a deadly weapon. In that case, the Court analyzed the issue under the doctrine of plain error and found that an instruction exactly like the one offered by McKeithan better informs the jury that the question as to whether a particular instrument constitutes a deadly weapon lies with the jury. Id. at 737. See also Thomas v. State, 14 So. 3d 812, 821 (Miss. Ct. App. 2009). The use of a deadly weapon is an essential element, which the State must prove in order to 1 convict a defendant of armed robbery. Whether the unloaded pellet gun used in the robbery was a deadly weapon was a determination that the jury needed to make, and it was important to instruct the jury that they had to determine whether the pellet gun was a deadly weapon, not simply accept the State s argument that the pellet gun was a deadly weapon, or that the mere fact that the men were 1 Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and 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 and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years. Miss. Code Ann. 97-3-79 8

in the house with masks on was sufficient to satisfy the deadly weapon element of the charge. McKeithan s proposed instruction was a proper statement of the law and was not adequately covered by the other instructions given to the jury. The trial court s refusal of this instruction resulted in the jury not being fully and fairly instructed on the law of the case. Thus, it was error for the trial court to refuse the defense instruction. CONCLUSION McKeithan asserts that, based on the propositions cited and briefed above, together with any plain error noticed by the Court which has not been specifically raised, the judgment of the trial court and McKeithan s conviction and sentenced should be reversed and remanded to the trial court for a new trial. Respectfully submitted, BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel 9

CERTIFICATE OF SERVICE I, Mollie M. McMillin, Counsel for Nathaniel McKeithan, 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 Jason L. Davis 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: Honorable Lee J. Howard Circuit Court Judge Post Office Box 1344 Starkville, MS 39759 Honorable Scott Colom District Attorney, District 16 Post Office Box 1044 Columbus, MS 39703 Nathaniel McKeithan, MDOC #205849 Wilkinson County Correctional Facility P O Box 1889 Woodville, MS 39669 th This the 14 day of June, 2017. BY: /s/ Mollie M. McMillin Mollie M. McMillin, Appellant Counsel Mollie M. McMillin, MS Bar No. 102708 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: mmcmi@ospd.ms.gov 10