Downs v. State

• Decision Date: 16 August 2007
• Docket Number: No. 2006-KA-00726-SCT.,2006-KA-00726-SCT.
• Citation: 962 So.2d 1255
• Parties: Jon Marc DOWNS a/k/a John Marc Downs v. STATE of Mississippi.
• Court: Mississippi Supreme Court

962 So.2d 1255

Jon Marc DOWNS a/k/a John Marc Downs v. STATE of Mississippi.

No. 2006-KA-00726-SCT.

Supreme Court of Mississippi.

August 16, 2007.

Benjamin Allen Suber, attorneys for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorneys for appellee.

EN BANC.

DICKINSON, Justice, for the Court.

¶ 1. When Jon Marc Downs discovered that a large sum of his money was missing, he went to his father's house to get an explanation. Downs began to hit his father. To divert his son's attention, the father pulled $200 from his billfold and handed it to Downs, who then left. Downs was convicted of robbery. The questions presented are whether the evidence supported Downs's conviction of robbery and whether Downs was entitled to have the jury instructed on simple assault as a lesser-included offense.

BACKGROUND FACTS AND PROCEEDINGS

¶ 2. Several years before the incident at issue occurred, Downs was working as a truck driver and living with his parents, Joe and Patricia Downs. During that time, Downs began putting the money he earned at work in a savings box, which was kept at his parents' home. Joe and Patricia Downs also put their money in this box, but their money was kept separate from their son's savings. When Downs became unemployed, his relationship with his parents soured. Joe Downs told his son that he could not live at the family home if he was not going to work. At the time Downs left his parents' home, he had accumulated a substantial sum of money in the savings box. Thereafter, Downs became self-employed, doing various odd jobs, and living with a friend in Brooklyn, Mississippi. For about three months during this time, Downs lived in a tent under the Camp Dantzler Bridge.

¶ 3. Sometime later, Downs discovered his money was missing, and he believed that his father had stolen it by sending his brother to retrieve the money from a shed on Browns Ferry Road, where Downs had buried it. While the record does not mention any specific altercations between Downs and his father prior to the incident at issue, the testimony indicates that the two men quarreled over the whereabouts of this money several weeks prior to September 29, 2004.

¶ 4. Downs and his father told different versions of the events which occurred on the morning of the incident. Joe Downs, who was eighty-one years old, testified that, when he saw his son approaching the front door of his home, he got up to shake his son's hand. He claims Downs hit him across the head, knocking him to the ground, and continued to hit him. He began to bleed profusely as a side effect of taking Coumadin, a blood thinner. He further stated that during the fray, he reached into his pocket for his billfold, and pulled out $200, which he handed his son to "get his attention off of me so I could get out of there." After Joe Downs handed his son the money, Downs stopped hitting his father, took the money, and left the house.

¶ 5. Downs testified that he went to his father's house to get an explanation about what happened with his money. When he got into the house, Downs claimed his father "dove" at him and "tore" at him on the floor. Downs stated "that's when I just kicked him in his belly two or three times — scared for my life." Downs testified that his father handed him a couple of hundred dollars out of his wallet and told him he would get him the rest. Downs took the money and left.

¶ 6. Joe Downs was taken to Forrest General Hospital by his neighbor, Jack Roddick, who witnessed the severity of Joe Downs' injuries shortly after the attack. According to Roddick, the skin was almost pulled off of Joe Downs's arm and he had bruises on his head. Wendi Thomas, a patrolman with the Hattiesburg Police Department, was called to Forrest General Hospital to question Joe Downs regarding the attack. Thomas testified that when she saw Downs in Trauma II, he was bleeding around his eye area. Thomas described the wound on Downs's arm as "terrible," and testified that someone at the hospital informed her that the severity of the arm wound required that it be treated as a burn. Thomas stated that Downs had purple and blue bruises on his body, which Downs indicated were very painful. Thomas later investigated the scene of the attack, and captured one photograph which depicted a large piece of skin torn from Downs's arm. Patricia Downs, Joe Downs's wife, testified that he had a knot on his forehead as big as a tennis ball. Joe Downs indicated that his arm was injured, he had two broken ribs and an injury to the side of his head. Due to the nature of Joe Downs's injuries, the hospital staff informed him that they were required to call the police. Police involvement led to an investigation, and, eventually the younger Downs's arrest.

¶ 7. Downs was indicted for robbery pursuant to Mississippi Code Annotated Section 97-3-73 (Rev.2002). At the close of the evidence, Downs's counsel sought to introduce a jury instruction on simple assault, as a lesser-included offense of robbery. The trial judge refused to give the instruction on simple assault unless Downs agreed to an instruction on aggravated assault. Recognizing that a conviction for aggravated assault would result in a more severe penalty than the crime of robbery, Downs's counsel declined the judge's offer and withdrew the simple assault instruction.

¶ 8. After the jury found him guilty of robbery, Downs timely perfected his appeal, asking this Court to reverse and render his conviction of robbery, claiming the State failed to prove all of the elements of robbery beyond a reasonable doubt and the verdict was against the overwhelming weight of the evidence. In the alternative, Downs claims that the trial judge's refusal of his simple assault instruction entitles him to a new trial.

ANALYSIS

¶ 9. Our standard in reviewing rulings on post-trial motions is an abuse of discretion. McLendon v. State, 945 So.2d 372, 384 (Miss.2006) (citing Dilworth v. State, 909 So.2d 731, 736 (Miss.2005)). Further, the standard of review for challenges to jury instructions is clear.

The Court does not single out any instruction or take instructions out of context; rather, the instructions are to be read together as a whole. A defendant is entitled to have jury instructions given which present his theory of the case. This entitlement is limited, however, in that the Court is allowed to refuse an instruction which incorrectly states the law, is covered fairly elsewhere in the instructions, or is without foundation in the evidence.

Spicer v. State, 921 So.2d 292, 313 (Miss. 2006) (citing Parks v. State, 884 So.2d 738, 746 (Miss.2004)).

¶ 10. With regard to Downs's claim that he was entitled to a lesser-included offense instruction, we conduct de novo review, as this is a question of law. State v. Shaw, 880 So.2d 296, 298 (Miss. 2004) (citing Ostrander v. State, 803 So.2d 1172, 1174 (Miss.2002)).

I.

¶ 11. Downs was indicted for robbery pursuant to Section 97-3-73 of the Mississippi Code. At the close of the State's evidence, Downs moved for a directed verdict, arguing that the State had failed to prove all of the elements of robbery. Section 97-3-73 states that:

Every person who shall feloniously take the personal property of another in his presence or from his person and against his will, by violence to his person or by putting such person in fear of some immediate injury to his person, shall be guilty of robbery.

Downs argues that the requirements of the statute were not met because the only eyewitness, Joe Downs, testified that he voluntarily gave the money in question to his son. Furthermore, Joe Downs testified that he did not believe his son had robbed him.

¶ 12. In attacking the State's case, Downs correctly points out that the uncontradicted evidence in the record indicates that he neither mentioned nor asked for any money. Rather, his father simply handed him the money. Therefore, Downs argued to the trial court that, because the State failed to prove beyond a reasonable doubt that he took the personal property of Joe Downs by physical force, and because robbery is a specific-intent crime, he was entitled to a directed verdict.

¶ 13. The State responded to these arguments, pointing out that Joe Downs "was being pummeled and in order to stop the pummeling, he gave up the wallet and, in fact, that ended." The State continued, saying, "[s]o whether he said he gave it up freely or voluntarily, I think it's still he gave it up to end the assault, and that, Your Honor, we would suggest is still robbery." Thus, the State took the position that a robbery could be committed, even where the accused had no intent to take the victim's money, and even where the victim originated the idea to give the accused the money. The trial judge disagreed with the defendant, and ultimately denied his motion.

¶ 14. In reviewing whether a verdict is supported by the evidence, we are required to look at the totality of the circumstances, and "our concern ... is whether the evidence in the record is sufficient to sustain a finding adverse to [the defendant] on each element of the offense. ... With respect to each element ... [we must] consider all of the evidence — not just the evidence that supports the case for the prosecution — in light most favorable to the verdict." McKee v. State, 791 So.2d 804, 807 (Miss.2001). Although the facts of this case are rather unique and, at first glance, appear more suited to a prosecution for assault, rather than robbery, we conclude after a careful review of Section 71-3-73, that the State met its burden of presenting to the jury a triable issue as to all of the elements of robbery.

It is hornbook criminal law that the state must prove each element of the offense. Neal v. State, 451 So.2d 743, 757 (Miss.1984). Due Process requires that the state prove each element of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (internal...