McKeithan v. State

• Citation: 233 So.3d 318
• Decision Date: 09 January 2018
• Docket Number: NO. 2016–KA–01711–COA,2016–KA–01711–COA
• Parties: Nathaniel MCKEITHAN a/k/a Nathaniel Sabir McKeithan a/k/a Nathan McKeithan, Appellant v. STATE of Mississippi, Appellee
• Court: Court of Appeals of Mississippi

233 So.3d 318

Nathaniel MCKEITHAN a/k/a Nathaniel Sabir McKeithan a/k/a Nathan McKeithan, Appellant

v.STATE of Mississippi, Appellee

NO. 2016–KA–01711–COA

Court of Appeals of Mississippi.

January 9, 2018

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: MOLLIE MARIE MCMILLIN

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER

BEFORE IRVING, P.J., CARLTON AND WILSON, JJ.

CARLTON, J., FOR THE COURT:

¶ 1. A Noxubee County grand jury indicted Nathaniel McKeithan for Count I, the burglary of a dwelling; Count II, the armed robbery of Charles Barge; and Count III, the armed robbery of Inez Barge. See Miss. Code Ann. §§ 97–3–79 & 97–17–23 (Rev. 2014). A jury convicted McKeithan of all three counts. On appeal, McKeithan raises the following issues: (1) whether insufficient evidence existed to support the verdict as to Count III; and (2) whether the circuit court abused its discretion by refusing proposed jury instruction D–8.

¶ 2. Finding no error, we affirm McKeithan's convictions and sentences.

FACTS

¶ 3. A little before noon on June 12, 2015, Charles arrived at his home in Macon, Mississippi, to eat lunch with his wife, Inez. As Charles walked from his car toward his house, a man who Charles later identified as McKeithan approached and asked for directions to Central Academy and Noxubee High School. After Charles provided the directions to the two schools, McKeithan walked away on foot.

¶ 4. Inez had been diagnosed with Alzheimer's disease several years earlier, and she had a caretaker who stayed with her during the day.¹ Upon entering his home, Charles asked whether McKeithan had knocked on the door, but Inez's caretaker replied that he had not. After eating lunch with his wife, Charles returned to work.

¶ 5. Charles and Inez's neighbor, Kimberly Dziewit, testified that she was also home for lunch on June 12, 2015. As Dziewit prepared to return to work around 12:30 p.m., someone knocked on her door. At trial, Dziewit identified the man as McKeithan. She testified that McKeithan asked her for directions to Noxubee High School and Central Academy and that he never mentioned he had just asked Charles for the same directions. Dziewit stated that McKeithan told her that he was looking for work at the schools, which Dziewit thought unusual since the schools were closed for summer. Dziewit inquired about McKeithan's vehicle, and she testified that he pointed to a silver four-door car with a maroon quarter panel that was in a nearby parking lot. After Dziewit gave McKeithan the directions, he left, and she returned to work.

¶ 6. Around 7 p.m. that same evening, Charles and Inez met their son and daughter-in-law, David and Yvonne Barge, for dinner. Charles and Inez then returned home for a short time before leaving again around 9 p.m. to get milkshakes. When they returned home with their milkshakes, Charles unlocked the house door and allowed Inez to enter first. As Charles followed Inez into the house, two men grabbed the couple from behind and pushed them onto their living-room couch. Charles testified that he could not identify the assailants because they wore hoods that covered their faces. Although the assailants threw an afghan over Charles's and Inez's heads, Charles testified he could still see because the afghan was knitted and had holes in it.

¶ 7. One of the assailants grabbed Charles's wallet from his pocket and asked for the personal identification number (PIN) associated with Charles's debit card. Charles gave the man an incorrect PIN. The assailant accused Charles of lying, and he hit Charles in the face several times. The blows broke Charles's glasses and gave him a black eye. Each time the assailant asked for the PIN, Charles responded with the same incorrect number. During the burglary, the assailant picked up Charles's air rifle, which was next to the living-room couch, and he held it to Charles's head. Although Charles knew the air rifle was not loaded, he feared the man might cause serious bodily harm to him or Inez by hitting them with the air rifle. After about ten to fifteen minutes, the assailants left the house. Charles testified that, in addition to his debit card, the men stole his air rifle, his phone, about $200 from Inez's purse, and at least $32,000 in jewelry, some of which they took directly from Inez's person.

¶ 8. After the assailants fled, Charles checked on Inez and locked the door to their home. According to Charles, Inez was not herself for several days after the armed robbery and burglary. Charles testified that, despite her Alzheimer's disease, Inez was upset and confused and that she had been afraid during the home invasion that something bad would happen to them.

¶ 9. After ensuring their safety following the armed robbery and burglary, Charles called his son, David. David then reported the crime to the police, who received the call around 9:42 p.m. Chief Lucious Mason of the Macon City Police Department testified that he personally observed the Barges after the home invasion. According to Chief Mason, the Barges both appeared to be in shock, and he recalled that they described being in fear of death or serious bodily injury during the incident.

¶ 10. Between 9:43 p.m. and 9:45 p.m., just minutes after the police received the call about the home invasion, the surveillance video at Bank First in Macon, Mississippi, captured McKeithan's attempts to use Charles's stolen debit card at an ATM.² The surveillance video, which the State played at trial, showed McKeithan in the driver's seat of a vehicle as he made several attempts to withdraw money from the ATM. Although the video failed to clearly show the vehicle's passenger seat, trial testimony established that movement could be seen from that side of the vehicle.

¶ 11. That same night, around 10:30 p.m., McKeithan again attempted to use Charles's stolen debit card. This time McKeithan attempted to prepay for $10 worth of gas at Sam's G&G, a convenience store in Shuqualak, Mississippi. The store owner, Sammy Lindsey, swiped the debit card McKeithan handed him, but after McKeithan entered an invalid PIN, Lindsey noticed the debit card belonged to Charles. Lindsey knew Charles since his father and Charles were long-time friends and coworkers. Upon realizing the debit card belonged to Charles, Lindsey refused to return the card to McKeithan, and he asked how McKeithan had acquired the debit card. Lindsey testified that McKeithan acted nervous and stated that a man outside the convenience store had given him the debit card. However, Lindsey never saw the man to whom McKeithan referred. After Lindsey repeatedly refused to return the debit card, McKeithan left the convenience store. Lindsey then called his father, who contacted Charles about the debit card.

¶ 12. From the surveillance videos at the bank and the convenience store, the police developed McKeithan as a suspect in the armed robbery and burglary. Officers arrested McKeithan the day after the crime. At the same time they arrested McKeithan, the officers seized a silver car with a maroon quarter panel. Charles later identified McKeithan as the man who asked him for directions when he came home for lunch on June 12, 2015.

¶ 13. McKeithan testified at trial in his own defense. He admitted that the silver car with the maroon quarter panel the police seized belonged to him. However, McKeithan denied being near either the Barges' or Dziewit's home around lunch on June 12, 2015, and he denied asking either Charles or Dziewit for directions. McKeithan also denied that he committed the armed robbery and burglary.

¶ 14. According to McKeithan, he was in Shuqualak almost all day on June 12, 2015. Around 9 p.m. on June 12, 2015, McKeithan testified that he drove to the Sanco Food Mart to buy cigarettes. As he exited his car to walk into the food mart, McKeithan testified that a "crackhead" approached him. McKeithan stated that the man offered to sell him Charles's stolen debit card. McKeithan told the man that he did not have any cash. Instead, McKeithan gave the man some marijuana in exchange for the debit card. McKeithan testified that he immediately drove to Bank First to use the debit card and PIN the man had given him. After several unsuccessful attempts to withdraw money from Bank First's ATM, McKeithan drove to Sam's G&G to use the debit card there. However, McKeithan testified that the PIN the "crackhead" had given him again failed to work at the convenience store, and then Lindsey refused to return the debit card to him. After leaving the convenience store, McKeithan stated that he drove to another store called the Beehive, where he stayed for several hours before returning home.

¶ 15. After considering the evidence and testimony, the jury found McKeithan guilty of all three counts charged in his indictment. On September 23, 2016, the circuit court sentenced McKeithan to twenty years for the house-burglary conviction and to twenty-six years for each of the two armed-robbery convictions, with each sentence to be served in the custody of the Mississippi Department of Corrections, and with the sentences to run consecutively to one another and to any other sentence McKeithan might receive in a cause pending in federal district court.³ McKeithan filed an unsuccessful motion for a new trial or, in the alternative, a judgment notwithstanding the verdict. Aggrieved, McKeithan appeals.

DISCUSSION

I. Sufficiency of the Evidence

¶ 16. McKeithan argues the circuit court erred by denying his posttrial motion as to Count III of the indictment because insufficient evidence existed to prove that he committed armed robbery against Inez. Specifically, McKeithan asserts the State failed to present any evidence or testimony to show "that Inez was put in fear of immediate injury by [the exhibition of] a deadly weapon." Because McKeithan claims the State failed to prove this essential element of armed robbery beyond a reasonable doubt, he asks this Court to reverse his conviction as to...