Fulcher v. State, 1999-KA-00741-COA.

• Decision Date: 26 June 2001
• Docket Number: No. 1999-KA-00741-COA.,1999-KA-00741-COA.
• Citation: 805 So.2d 556
• Parties: Jonathan FULCHER a/k/a Jonathan M. Fulcher, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

805 So.2d 556

Jonathan FULCHER a/k/a Jonathan M. Fulcher, Appellant, v. STATE of Mississippi, Appellee.

No. 1999-KA-00741-COA.

Court of Appeals of Mississippi.

June 26, 2001.

Rehearing Denied September 18, 2001.

Certiorari Denied January 24, 2002.

Leslie C. Gates, Meridian, Attorney for Appellant.

Office of the Attorney General by John R. Henry, Jr., Jackson, Attorney for Appellee.

EN BANC.

ON MOTION FOR REHEARING

MYERS, J., for the court:

¶ 1. The motion for rehearing is granted. The original opinion is withdrawn, and this opinion substituted.

¶ 2. A Lauderdale County Circuit Court jury found Jonathan Fulcher guilty of attempted robbery. Receiving habitual offender status, Fulcher was sentenced to life imprisonment without the possibility of parole. Fulcher appealed his conviction, presenting eight issues for our review:

I. DID THE INDICTMENT ADEQUATELY CHARGE ATTEMPTED SIMPLE ROBBERY?

II. SHOULD THE ISSUE OF ATTEMPTED SIMPLE ROBBERY HAVE BEEN SUBMITTED TO THE JURY?

III. DID THE JURY INSTRUCTIONS ADEQUATELY INSTRUCT THE JURY ON EVERY MATERIAL ELEMENT OF THE OFFENSE OF ATTEMPTED SIMPLE ROBBERY?

IV. DID THE TRIAL COURT ERR IN PERMITTING EVIDENCE OF UNCHARGED BAD ACTS AND FAILING TO GIVE LIMITING INSTRUCTIONS?

V. WAS THE DEFENDANT UNDULY PREJUDICED BY THE PROSECUTOR'S ACTIONS?

VI. DID THE TRIAL COURT ERR IN THE EXCLUSION OF EVIDENCE THAT THE VICTIM WORKED AT A "GAY BAR"?

VII. DID THE EVIDENCE PRESENTED SUPPORT THE ALLEGATION OF OWNERSHIP IN THE INDICTMENT, AND DID THE STATE PROVE BEYOND A REASONABLE DOUBT OWNERSHIP OF THE PROPERTY ALLEGED TO HAVE BEEN THE SUBJECT OF AN ATTEMPTED ROBBERY?

VIII. IS THE STATE BARRED FROM RE-PROSECUTION OF THE CHARGE OF ATTEMPTED SIMPLE ROBBERY WHERE THAT CHARGE WAS NOT SUFFICIENTLY PLED IN THE INDICTMENT AND THE DEFENDANT WAS EFFECTIVELY ACQUITTED OF THE TWO GREATER CHARGES OF ARMED ROBBERY AND SIMPLE ROBBERY?

Finding no error, we affirm.

FACTS

¶ 3. On January 18, 1998, William Greg Cooley was at a rest stop in Sandersville, Mississippi, urinating in the open. Cooley testified that there was no one present so he felt it not improper to relieve himself. During this process, Jonathan M. Fulcher drove up on his motorcycle. Fulcher asked Cooley for a flashlight. Cooley checked his vehicle, told Fulcher he did not have a flashlight and started to leave. Fulcher informed Cooley that he was a police officer off duty and was obligated to arrest Cooley for public urination. Fulcher is not a police officer. Fulcher frisked Cooley and expressed annoyance that he would have to wait at the rest stop for a police car to arrive. During the wait, Fulcher asked if Cooley worked at Bonita Lakes Mall at the Sunglass Hut. Cooley responded that he did. Fulcher became angry and accused Cooley of having refused to assist him in a request for a special order of sunglasses.

¶ 4. After standing there for ten to fifteen minutes, Fulcher told Cooley he could relax. Fulcher then struck and kicked Cooley several times. Believing Fulcher to be a police officer, Cooley offered no defense. At some point, Cooley was knocked unconscious. When Cooley came to, he found Fulcher in possession of his keys and wallet. Asked by Fulcher how much money he had, Cooley responded that he had maybe $27. Fulcher then asked if he had a bank account and checks for the sum of $200. Fulcher also inquired to whom Cooley's vehicle was titled. Cooley responded that it was in his parents' names. Fulcher took and kept the money that was in Cooley's wallet.

¶ 5. Cooley tried to get away, but was caught by Fulcher, who stated, "[i]f I ever see you again, you're going to give me anything I want." Fulcher made Cooley repeat that statement and said that he would see him the next day.

¶ 6. Cooley departed in his vehicle and was followed by Fulcher who finally turned off at the Quitman exit. Cooley, who suffered black eyes, bleeding shins, bruises, and abrasions, drove to Rush Hospital in Meridian to visit a friend. The police were called from Rush Hospital.

¶ 7. On Monday, January 19, 1998, Cooley went to work at the Sunglass Hut, which is located in a kiosk in the Bonita Lakes Mall. After Cooley had worked for approximately an hour, Fulcher walked up to the kiosk and asked, "You remember me?" and "You remember what I told you? I told you that anything I want you're going to have to give it to me." Cooley proceeded to show Fulcher different sunglasses. Fulcher requested that he be shown the most expensive sunglasses. Cooley told Fulcher, "Don't do this. You are going to jail." Fulcher replied, "If you don't do what I tell you, I am going to put holes in you." Unhappy with Cooley's lack of enthusiasm Fulcher stated, "[Y]ou don't want to do it, do you?" Fulcher then opened his jacket and revealed a gun tucked in his pants. About this time, a mall employee recognized Fulcher and stopped to talk. After a quick conversation, this employee walked away. Shortly thereafter, Cooley started to hyperventilate and went to his knees gasping for breath. When other mall customers saw that Cooley was in distress and came to his aid, Fulcher walked away. Cooley was taken to the mall office, where he regained his breath and reported the attempted robbery.

¶ 8. Fulcher was indicted under Miss. Code Ann. §§ 97-3-79 (armed robbery), 97-3-73 (simple robbery), and 99-19-83 (habitual offender) (Rev.1994), for the incident at the Bonita Lakes Mall. The jury was instructed on armed robbery and attempted simple robbery. The jury found Fulcher guilty of attempted simple robbery. After a bifurcated hearing on the habitual portion of the indictment, the trial court sentenced Fulcher to life imprisonment without the possibility of parole.

ANALYSIS

I. DID THE INDICTMENT ADEQUATELY CHARGE ATTEMPTED SIMPLE ROBBERY?

II. SHOULD THE ISSUE OF ATTEMPTED SIMPLE ROBBERY HAVE BEEN SUBMITTED TO THE JURY?

¶ 9. Because these two issues are so closely intertwined, we shall address them together. Fulcher presents two principal arguments in making these two assignments of error. First, he claims that the indictment did not set forth an overt act for the commission of attempted simple robbery, as is required when charging the attempt to commit any crime. Hawthorne v. State, 751 So.2d 1090, 1092 (¶ 13) (Miss.Ct.App.1999). Fulcher argues that while the indictment did allege an overt act toward the commission of armed robbery, namely, the exhibition of a deadly weapon, this allegation does not go toward satisfying the requirement of an overt act for the charge of attempted simple robbery. Fulcher does not challenge the adequacy of the indictment as it pertains to the charge of armed robbery.

¶ 10. The State counters that, because the indictment sufficiently charged Fulcher with the crime of armed robbery, the crime of attempted simple robbery was sufficiently charged as a lesser-included offense. We agree. The Mississippi Supreme Court has stated that "[a] lesser included offense by definition is one in which all its essential ingredients are contained in the offense for which the accused is indicted, but not all of the essential ingredients of the indicted offense." Payton v. State, 642 So.2d 1328, 1334 (Miss. 1994) (quoting Porter v. State, 616 So.2d 899, 909-910 (Miss.1993)).

¶ 11. In Mississippi, a person is guilty of armed robbery when they "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." Miss.Code Ann. § 97-3-79 (Rev. 1994). A person is guilty of simple robbery when they "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." Miss.Code Ann. § 97-3-73 (Rev.1994). The courts of this state have held that simple robbery is a lesser-included offense of armed robbery. Williams v. State, 772 So.2d 1113, 1116(¶ 8) (Miss.Ct. App.2000); Gilmore v. State, 772 So.2d 1095, 1099(¶ 11) (Miss.Ct.App.2000); Gibby v. State, 744 So.2d 244, 244(¶ 1) (Miss. 1999). Therefore, it follows that attempted simple robbery is also a lesser-included offense of armed robbery. "The purpose of an indictment is to put the defendant on notice of the nature and cause of the charges against him." Richardson v. State, 769 So.2d 230, 233(¶ 4) (Miss.Ct.App. 2000). The charging of Fulcher with the crime of attempted simple robbery did not add any additional necessary elements to the prosecution's burden. We find that because the indictment sufficiently charged Fulcher with the crime of armed robbery, the crime of attempted simple robbery was sufficiently charged as an inferior offense. Miss.Code Ann. § 99-19-5 (Rev.2000).

¶ 12. Fulcher also argues that a constructive directed verdict was granted on the charge of simple robbery when the trial court failed to submit that charge to the jury because of insufficiency of the evidence. In doing so, Fulcher directs the attention of this Court to Harris v. State, 723 So.2d 546 (Miss.1997). In Harris, the defendant was indicted on three charges of deliberate design murder, but the trial court granted a directed verdict on these counts. Id. at 546. The State was then allowed to proceed against the defendant with charges of aggravated assault on the theory that aggravated assault was a lesser-included offense of deliberate design murder. Id. at 547. The defendant was subsequently convicted on three counts of aggravated assault. Id. at 546. The Mississippi Supreme Court held that where a trial judge grants a directed verdict on a charge listed in the indictment, that grant acts as a directed verdict as to all lesser-included offenses of that charge unless the lesser offenses are pleaded in the indictment. Id. at 549.

¶ 13. We do not find Harris to be controlling in this matter, because "[c]rucial to...