Johnson v. State, No. 2008-KA-00576-COA (Miss. App. 5/25/2010)

• Decision Date: 25 May 2010
• Docket Number: No. 2008-KA-00576-COA.,2008-KA-00576-COA.
• Parties: JASON C. JOHNSON APPELLANT, v. STATE OF MISSISSIPPI APPELLEE.
• Court: Mississippi Court of Appeals

Page 1

JASON C. JOHNSON APPELLANT, v. STATE OF MISSISSIPPI APPELLEE.

No. 2008-KA-00576-COA.

Court of Appeals of Mississippi.

May 25, 2010.

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III, DATE OF JUDGMENT: 2/21/2008.

DISPOSITION: AFFIRMED.

ATTORNEY FOR APPELLANT: W. DANIEL HINCHCLIFF.

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: DEIRDRE McCRORY.

DISTRICT ATTORNEY: MICHAEL GUEST.

BEFORE KING, C.J., BARNES AND ISHEE, JJ.

BARNES, J., FOR THE COURT:

¶ 1. A Rankin County Circuit Court jury found Jason Johnson guilty of shooting into a dwelling house. The trial judge sentenced Johnson to ten years in the custody of the Mississippi Department of Corrections (MDOC). Johnson now appeals his conviction and sentence, challenging the weight and sufficiency of the evidence as to the element of willfulness. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the afternoon of May 22, 2005, the victim, Kankalelus "Ken" Aldridge, arrived at a trailer on Lawrence Road in Rankin County. He was returning his two-year-old twin children to their mother, Tyana Taylor, who lived in the trailer with her children, grandmother, mother, and brother. After Aldridge took his sleeping children into the trailer one by one, he went back outside to his vehicle and saw another vehicle pull up; the vehicle was occupied by "three guys." Aldridge testified that one of the men, Sergio Watson,¹ came up to him as he was standing inside his open driver's side door and said "give it up."

¶ 3. Aldridge testified that Watson punched him in the face, while another man, later identified as Marcus Divine, struck Aldridge with a baseball bat. Meanwhile, a third man called "Cook," later identified as Johnson, who is Watson's brother, "came with a rifle, [and] had the rifle aimed at [Aldridge's] face." Aldridge said the three individuals stole his hat, car keys, and approximately $80 in cash from his pocket. Aldridge claims he heard Taylor's mother, Jennifer Stokes, standing near the front door, pleading to Johnson, "don't shoot," as the gun fired twice. Aldridge "was continuing to struggle, trying to avoid getting shot, using the other guy as kind of a shield to block the gun from shooting [him]." The three men then departed in their vehicle. Stokes invited Aldridge into the trailer to wait for the police. When law enforcement arrived, Aldridge recounted what had happened and then went to the hospital for treatment of his injuries from being hit with the bat. Aldridge's car keys were found, but his money and hat were never recovered.

¶ 4. Raymond Duke, a deputy with the Rankin County Sheriff's Department, arrived after receiving a report about "trespassing with shots fired at a property on Lawrence Road." Deputy Duke testified that Aldridge, who was still on the scene, told him "he had been physically assaulted, robbed, and shots were . . . actually fired into a residence." Aldridge also told Deputy Duke that his vehicle's windshield had been burst out when he had dodged an attempted blow to his head with a bat. Aldridge had been robbed of "his ball cap and eighty dollars in cash." Deputy Duke also interviewed Taylor, her sister, and their mother, Stokes. These three witnesses all corroborated what Aldridge had reported: that Johnson was the individual with the firearm. At trial, responding to the district attorney's query as to whether he had observed anything at the scene to indicate that shots had been fired, Deputy Duke answered:

Yes, sir. The grandmother was actually standing in the doorway when the assault occurred, and advised that a round had struck the trailer. And I did locate, just to the right of the door, about halfway, the middle height of the door, what appeared to be a projectile entry into the side of the trailer.

He also found one spent .22 cartridge in front of the trailer where Aldridge's vehicle had been parked during the altercation.

¶ 5. Deputy Tim Lawless, who also had investigated the incident, testified that he personally observed a hole in the trailer; the witnesses informed him that the hole was not there before the incident in question. The witnesses stated that was where one of the bullets had struck the residence. He attempted to dig the bullet from the vinyl siding of the trailer, but the bullet could not be located. Subsequently, Deputy Lawless conducted two interviews with Johnson. In the first statement, Deputy Lawless testified that Johnson said the three men (Watson, Devine, and Johnson) went to the trailer to buy some marijuana, but when they arrived, they decided they were going to rob Aldridge of the drugs and money instead. Deputy Lawless testified that in Johnson's second statement, while Johnson denied owning a gun and shooting at anybody during the incident, he admitted again that he, Watson, and Devine "did go down with the plans of robbing the victim, Mr. Ken Aldridge." Deputy Lawless testified that Johnson stated Devine had pointed the gun at Aldridge and fired it; however, Deputy Lawless noted that none of the other witnesses implicated Devine in the shooting.

¶ 6. At trial, Stokes recounted the incident as follows:

Well, a loud noise woke me up because I had worked that night, and I was resting, and noise woke me up. So when I went outside, that's when Ken's, his car, his door was open, and Sergio had him like straddled the door . . . and they was tussling. And Cook [Johnson] had a gun. . . . And I told him, don't shoot that gun. And he still shot, but he missed Ken, and he hit our trailer. And my mom and my grand babies was [sic] standing in that door when that bullet hit it.

. . . .

He was pointing, I was screaming. I was telling him to stop, and he still shot that gun.

Stokes testified that Johnson shot the rifle twice. She identified a hole in the siding of the trailer, which had not been there before, that she thought was caused by one of the bullets shot by Johnson.

¶ 7. Johnson, testifying at trial in his own defense, stated that Aldridge was the individual who had shot the firearm, which caused the hole in the trailer. Johnson recounted that Aldridge telephoned him and asked to speak to Watson; therefore, Johnson "put the phone on speaker" and heard Aldridge tell Watson that he was returning his twins to Taylor and asked whether Watson "need[ed] anything." Watson requested that Aldridge bring him about one hundred dollars' worth of marijuana. Aldridge directed Watson to come to the trailer on Lawrence Road; so Johnson drove Watson and Divine there. Johnson initially observed Watson and Aldridge having a friendly conversation, and Aldridge "pulled out a sack of marijuana." However, then Watson and Aldridge began fighting. Aldridge "ran to his car and grabbed a gun" while Devine, in an attempt to rid Aldridge of the firearm, hit Aldridge with a bat. Johnson stated that Aldridge dropped the gun; so he grabbed it. Johnson recounted that, at this point, Stokes came out of the trailer and saw him with the firearm. Johnson stated he was going to take the clip out of the firearm when Aldridge tried to snatch the gun, and it accidentally fired one time into the air. Johnson, Watson, and Devine then left the scene. Johnson denied telling Deputy Lawless about a plan to rob Aldridge, or that he had earlier stated Devine had the rifle. Johnson maintained he "told [Lawless] exactly what had went on."

¶ 8. After a jury trial, Johnson was acquitted of Counts I and II, armed robbery and aggravated assault with a bat,² but he was convicted of Count III, shooting into a dwelling house. The trial court sentenced Johnson to ten years in the custody of the MDOC and ordered him to pay a $10,000 fine and court costs.³ The trial court denied Johnson's motion for a new trial or, in the alternative, a judgment notwithstanding the verdict (JNOV). Johnson timely filed a notice of appeal.

ANALYSIS

¶ 9. Johnson argues that the evidence fails to show that he "willfully" shot into the dwelling since he was actually aiming at Aldridge, who was near the front of the trailer. He claims this case presents an issue of first impression regarding the meaning of the element "willfully" for the crime of shooting into a dwelling house. Specifically, he argues that all of the testimony only establishes that he intended to shoot Aldridge, not the dwelling. The State argues that because Johnson did not raise this specific argument before the trial court, it cannot be raised for the first time on appeal.⁴

¶ 10. It is well established that this Court is "not obligated to review appellate arguments which were not presented in the trial court because `[a] trial judge cannot be put in error on a matter which was not presented to him for decision.'" Foster v. State, 928 So. 2d 873, 880-81 (¶17) (Miss. Ct. App. 2005) (quoting Davis v. State, 866 So. 2d 1107, 1113 (¶24) (Miss. Ct. App. 2003)). In Foster, the defendant's motion for a directed verdict was too general to support appellate review on the specific issue he raised on appeal. Id. at 881 (¶18). Similarly, in Beckum v. State, 917 So. 2d 808, 813 (¶13) (Miss. Ct. App. 2005), Marvin Beckum, Jr., did not raise the specific allegations in his motion for a JNOV or a new trial as he did on appeal. Consequently, this Court held that Beckum's related allegation on appeal was procedurally barred. Id.; see also Neese v. State, 993 So. 2d 837, 843 (¶12) (Miss. Ct. App. 2008) (the defendant was procedurally barred to raise issue on appeal he did not raise before the trial court);Gilmore v. State, 772 So. 2d 1095, 1098 (¶8) (Miss. Ct. App. 2000) (the defendant was procedurally barred from raising an argument for first time on appeal when he had filed a generic JNOV motion in the trial court). We find the same situation here.

¶ 11. At trial, Johnson argued during his motion for a directed verdict that the State failed to establish that the bullet actually hit the trailer; and furthermore, it was...