Davis v. State, 2014–KA–00977–COA.
| Decision Date | 19 July 2016 |
| Docket Number | No. 2014–KA–00977–COA.,2014–KA–00977–COA. |
| Citation | 196 So.3d 194 |
| Parties | Charles Gregory DAVIS a/k/a Charles G. Davis a/k/a Charles Davis a/k/a Greg Davis, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Steven E. Farese, Sr., Ashland, Joseph Whitten Cooper, attorneys for appellant.
Office of the attorney general by Barbara Wakeland Byrd, attorney for appellee.
Before GRIFFIS, P.J., BARNES and ISHEE, JJ.
ISHEE, J., for the Court:
¶ 1. A DeSoto County Circuit Court jury found Charles Gregory Davis guilty of making a false representation with the intent to defraud the government, and embezzlement. As to making a false representation with the intent to defraud the government, the trial court sentenced Davis to five years, with two and one-half years to serve in the custody of the Mississippi Department of Corrections (MDOC) and two and one-half years of postrelease supervision (PRS). As to the embezzlement conviction, the trial court sentenced Davis to ten years, with two and one-half years to serve in the custody of the MDOC and seven and one-half years of PRS.1 Both sentences were ordered to run concurrently. Davis was also ordered to pay $18,814.80 in restitution—$17,827.14 to the City of Southaven, Mississippi, and $987.66 to the State Auditor.
¶ 2. Davis's posttrial motions were denied. Davis now appeals, asserting the trial court erred by: (1) denying his motion for a judgment notwithstanding the verdict (JNOV); (2) denying his motion for a change of venue; (3) improperly instructing the jury; (4) denying his motion for a mistrial; and (5) allowing a witness to testify as to the value of a vehicle.
¶ 3. Davis was the mayor of the City of Southaven (the City) for approximately sixteen years. While Davis was mayor, with approval from the Board of Aldermen (the Board), he entered into a lease agreement for a Ford Expedition. Davis used the vehicle for business purposes in his position as mayor.
¶ 4. According to the terms of the lease, when the lease ended, the City had the option to either purchase the vehicle for $10,000, sell the vehicle on its own, or have the leasing company sell the vehicle on behalf of the City. Regardless of whether the vehicle was sold, the City would be required to pay $10,000 at the end of the lease. If the City did not purchase the vehicle itself and the vehicle sold for more than $10,000, the profit would go to the City.2 Before the lease expired, Davis paid the last installment of the lease and purchased the vehicle from the leasing company for $10,000. After Davis purchased the vehicle, he fueled his vehicle with gas from the City's fuel pump. However, he also submitted reimbursement forms for mileage incurred during his business travel.
¶ 5. The Board stated that it was not informed of the terms of the lease, and in turn the City argued that it was never given the opportunity to review its options with respect to the Ford Expedition. In contrast, Davis claims that he discussed the lease and its terms with the Board, and that he was not estopped from purchasing the vehicle.
¶ 6. The State indicted Davis and charged him with one count of false representations to defraud the government, one count of embezzlement, and one count of false pretenses.3 The State proceeded with its theory that because the Board was not made aware of the terms of the lease, and as a result of Davis purchasing the vehicle for himself, the City was denied the option to exercise its rights in relation to the purchase of the vehicle. Further, the State argued that Davis unlawfully “double dipped” when he traveled for the City in the Ford Expedition, which had become a personal vehicle, and obtained gasoline from the City pumps in addition to seeking mileage reimbursement for his travel.
¶ 7. After a trial, a jury found Davis guilty of false representation and embezzlement.
¶ 8. On appeal, Davis argues that the trial court erred in (1) denying his motion for a JNOV; (2) denying his motion for a change of venue; (3) improperly instructing the jury; (4) denying his motion for a mistrial; and (5) allowing a witness to testify as to the value of a vehicle. Finding that the trial court erred in denying Davis's motion for a change of venue, we reverse and remand.
¶ 9. On February 19, 2014, Davis filed a motion for a change of venue. The motion was supported by affidavits from Ellen Jernigan, a local Republican Party leader; Mary Monteith, an attorney from Southaven; and Dr. Randall Huling, a physician from Olive Branch and a former member of the Southaven Board of Aldermen. The motion also had attached, as exhibits, copies of numerous news reports about Davis.
¶ 10. On February 20, 2014, a hearing was conducted on the motion during which Jernigan testified that the charges against Davis were prominently discussed in DeSoto County and that many in the community had prejudged Davis to be guilty of the charges against him. When asked whether Davis could receive a fair trial in DeSoto County, Jernigan responded by stating,
¶ 11. At this same hearing, the State failed to put forth any witnesses to rebut Davis's showing that he was entitled to a change of venue. The State did, however, argue that it believed that a fair jury could be impaneled and requested to go forward with voir dire. The State expressed that it would concede the motion if a fair jury could not be impaneled. The trial court stated that it would reserve its ruling until after voir dire, reasoning in part that the motion for a change of venue was filed only four days before the scheduled trial date.
¶ 12. However, on February 24, 2014, the anticipated trial date, the State filed a motion to continue the trial, citing the unavailability of a necessary witness. The motion was discussed in open court. Davis agreed that the witness was necessary for his defense as well. The trial court granted the motion and continued the case until June 9, 2014. At this same hearing, with respect to the motion for a change of venue, the trial court stated that it would consider “whether [it] need[ed] to reconvene the hearing and have the State present [its] witnesses that would counter or be contrary to the witnesses [Davis had] presented to determine if [it could] make a ruling on the motion [for change of venue] prior to convening a jury panel.” The trial court followed up and stated that “it may be judicially efficient to reconvene the hearing.”
¶ 13. On June 9, 2014, the trial court began voir dire without reconvening a hearing, and the State never put forth witnesses to rebut the presumption that arose with Davis's application for a change of venue. When the trial court engaged in voir dire and asked whether any of the venire had read, seen, or heard anything about the case, sixty-two out of eight-eight members of the venire responded affirmatively. When the trial jury was impaneled, nine of the twelve jurors plus the two alternates were among those who had stated during voir dire that they had read, seen, or heard something about Davis's case.
The trial court ultimately denied the change of venue, and the jury found Davis guilty of making a false representation with the intent to defraud the government, and embezzlement. After Davis's sentencing and the denial of his posttrial motions, this appeal ensued.
¶ 15. In Johnson v. State, 476 So.2d 1195, 1210 (Miss.1985) (citing Eddins v. State, 110 Miss. 780, 783, 70 So. 898, 899 (1916) ), the Mississippi Supreme Court explained:
The right to trial by an impartial jury is guaranteed by the organic law of the state, and when it is doubtful that such a jury can be obtained in the county of the venue of the [crime], the person on trial ... is but asking for his rights when he requests a change of venue[;] there is no imaginable reason to refuse, except, possibly, a slight additional cost to the county.
¶ 16. Mississippi's change-of-venue statute is found in Mississippi Code Annotated section 99–15–35 (Rev.2015). It states:
On satisfactory showing, in writing, sworn to by the prisoner, made to the court, or to the judge thereof in vacation, supported by the affidavits of two or more credible persons, that, by reason of prejudgment of the case, or grudge or ill will to the defendant in the public mind, he cannot have a fair and impartial trial in the county where the offense is charged to have been committed, the circuit court, or the judge thereof in vacation, may change the venue in any criminal case to a convenient county, upon such terms, as to the costs in the case, as may be proper.
¶ 17. A change of venue is at “the discretion of the trial [court], and [its] ruling thereon will not be disturbed on appeal unless it clearly appears that there has been an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.” Beech v. Leaf River Forest Prods., 691 So.2d 446, 448 (Miss.1997). “Where ... the evidence is conflicting on the question of whether or not the defendant could receive a fair and impartial trial, ourt will generally defer to the considered opinion of the trial [court].” Burrell v. State, 613 So.2d 1186, 1190 (Miss.1993).
¶ 18. This Court explained the analysis for a motion to...
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...an abuse of discretion or that the discretion has not been justly and properly exercised under the circumstances of the case.’ " Davis v. State , 196 So. 3d 194, 198 (¶17) (Miss. Ct. App. 2016) (quoting Beech v. Leaf River Forest Prods. , 691 So. 2d 446, 448 (Miss. 1997) ). ¶11. "The accuse......