Wilson v. State

• Decision Date: 23 June 2016
• Docket Number: No. 2015–KA–00066–SCT.,2015–KA–00066–SCT.
• Parties: Randy Charles WILSON a/k/a Randy Wilson v. STATE of Mississippi.
• Court: Mississippi Supreme Court

194 So.3d 855

Randy Charles WILSON a/k/a Randy Wilson

v.STATE of Mississippi.

No. 2015–KA–00066–SCT.

Supreme Court of Mississippi.

June 23, 2016.

Richard T. Starrett, Jackson, attorney for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

EN BANC.

COLEMAN

, Justice, for the Court:

¶ 1. A Warren County jury convicted Randy Wilson of receiving stolen property in violation of Mississippi Code Section 97–17–70

. The trial court sentenced Wilson to ten years in the custody of the Mississippi Department of Corrections. Finding no error, we affirm Wilson's conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶ 2. On April 2, 2012, between 1:00 p.m. and 2:00 p.m., Paul Powers stepped outside his house on Canada Cross Road in Edwards, Hinds County, Mississippi. As he walked to his truck, which was parked in the front yard, Powers observed a two-tone blue and white “Duly”¹ pickup truck parked in the driveway of the property belonging to his neighbors, Pauline and Randy Vessel. Powers saw two African–American males, one wearing a lightly colored, possibly white, t-shirt, and the other wearing a “greenish” colored t-shirt. Powers testified that his observation was from a distance of about 134 yards and that he was not able to observe the facial features of either of the two men.

¶ 3. Powers testified that he previously had borrowed a sixteen-foot, tandem-axle utility trailer from the Vessels. The trailer, according to Powers, was “parked in the front yard of Mr. Vessel's house right in the front of his shed.” Powers stated that the man wearing the white t-shirt picked up a “tubular object,” such as a pipe, and proceeded to strike the front, or the “tongue,” of the trailer. According to Powers, the “tongue,” also known as the “jack” or the “hitch,” is the feature of the trailer which one hooks to the back of a truck. Powers testified that the Vessels kept a lock on the trailer and that he called Pauline Vessel to inquire whether anyone had permission to borrow the trailer.

¶ 4. When he learned from Pauline that no such permission had been given, Powers followed in his own truck: “As it [the suspect truck] was going out of Pauline's driveway I was pulling out [of] my driveway and got behind the vehicle on Canada Cross Road. We came up to Highway 27 to the stop sign and took a right going towards Vicksburg on Highway 27. At that time I had called 911 which contacted Hinds County.” Powers observed the suspect truck leave Hinds County and enter Warren County. Powers testified that he followed the truck “the whole time” and that two people were inside the truck. According to Powers, “[w]e were coming up [Highway] 27 and we got to China Grove Road. We took a left off Highway 27.” Powers continued, “[a]t that time, once we pulled onto China Grove Road[,] the vehicle pulled over to the right hand side of the road as [if] to let me pass. And I tried to pull in behind them and at that point the[y] started going down the road again.” Powers stated that he remained in contact with a 911 operator, whom he updated regarding the whereabouts of the suspect truck.

¶ 5. According to Powers, the truck pulled onto the edge of the road a second time next to a gravel driveway. Powers drove around the truck, proceeded down China Grove Road, met an unmarked Ford F–150 law enforcement truck, and turned his own vehicle around. Powers testified that he had not been able to observe the suspect truck the entire time. But when Powers returned to the gravel road, he saw the suspect truck parked on the gravel road, but with no trailer attached. The Ford F–150 law enforcement truck had “pulled in there in front of them” and Powers recognized “the same two people with the same clothes” as he had observed at the Vessels' house.

¶ 6. Investigator Randy Lewis, the officer who responded to Powers's 911 call, testified that the tag number information received from Powers indicated that the vehicle was registered to Timothy Wilson. According to Lewis, “Mr. Wilson and his vehicle came out” in a blue and white Ford which matched the tag information provided by Powers. Lewis testified that Timothy Wilson was driving and was wearing a green work shirt. The passenger in the truck was Randy Charles Wilson, who was wearing a white shirt. Lewis then located the sixteen-foot, double-axle trailer, which was registered to Randy Vessel of Canada Cross Road, just off the dead-end gravel road, China Grove Lane, which turned off from China Grove Road. Lewis arrested Randy Wilson and Timothy Wilson.

¶ 7. A Warren County Grand Jury indicted Randy Wilson and Timothy Wilson, charging that they:

[W]hile aiding and abetting and/or acting in concert with each other and/or others on or about April 2, 2012, in the County aforesaid, and within the jurisdiction of this Court did willfully, unlawfully, and feloniously receive, possess or buy personal property, to wit: 16 foot tandem axle trailer which was feloniously taken away from Randy and Pauline Vessell [sic], knowing or having reasonable grounds to believe the same to have been so taken wherein such property has a value in excess of $500.00 in violation of Miss.Code of 1972, Ann. Sec. 97–17–70

, contrary to the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

The case was tried on September 3 and 4, 2014, in the Circuit Court of Warren County. In addition to the testimony of Powers and Lewis, Pauline Vessel testified that she and her husband had purchased the trailer in April of 2009 and that they had paid $1,400 for it. Vessel added that she had seen the trailer on China Grove Road “behind a house.” Vessel stated that she knew it was her trailer because her “husband had welded some metal pieces on the back to put a board because we hauled four-wheelers....” Eddie Calvin, the owner of the property on which the Vessels' trailer was found, testified that he did not see Timothy Wilson and Randy Wilson on April 2, 2012, but that a man he believed to be a police officer removed the trailer from his property.

¶ 8. The trial court denied ore tenus motions for directed verdict by both defendants. After the motions for directed verdict were denied, each defendant presented his case-in-chief. Timothy Wilson presented two alibi witnesses. Willie Dotson testified that, on April 2, 2012, Timothy was working with him in Vicksburg from 8:00 a.m. until 12:00 p.m., when Timothy left for lunch and “never did come back.” Henry Ray Hunter testified that he, too, worked with Timothy on April 2, 2012, and that they were working to repair a house in Vicksburg from about 7:00 a.m. or 8:00 a.m. until lunchtime, after which Timothy did not return to work. He stated that Timothy was going back and forth between jobs that day.

¶ 9. Randy Wilson testified in his own defense. He stated that his brother Timothy had driven him to China Grove Road about 6:00 a.m. or 6:30 a.m. on April 2, 2012, to see a lady friend at a house where she lived. According to Randy, he remained with his friend until “about a quarter to one or something like that,” until his brother returned to collect him. It was after Timothy had picked him up that Lewis “pulled us over and asked us about a trailer.” Randy denied having been to Hinds County that day. The female friend with whom Randy claimed to have been on April 2, 2012, now lives in Joliette, Illinois. Randy indicated that his friend, who was married, did not wish to participate in his defense, as he and she had been romantically involved and she did not want her husband to find out.

¶ 10. The State called Jeff Riggs, Under Sheriff for the Warren County Sheriff's Office, who participated in the investigation on China Grove Lane on April 2, 2012. Riggs testified that Randy had indicated to him that he had been picked up by his brother, Timothy, from his girlfriend's house. He stated that China Grove Lane “is a dead-end road” on which there were about seven houses. Because Randy did not point to a specific house, Under Sheriff Riggs checked two random houses on China Grove Lane “to see if possibly that was where the girlfriend was.” According to Riggs, nobody was home.

¶ 11. The jury found both Randy Wilson and Timothy Wilson guilty as charged. Randy Wilson filed a motion for judgment notwithstanding the verdict, which the trial court denied. He was sentenced to ten years in the custody of the Mississippi Department of Corrections: “three (3) years to serve, with remaining balance suspended with post release supervision for five (5) years....” This appeal concerns only Randy Wilson's conviction and sentence.

ANALYSIS

¶ 12. Wilson raises five issues on appeal.

1. Whether the trial court committed plain error by allowing Jury Instruction S–4, which informed the jury that proof the defendant stole the property in question is prima facie evidence that the defendant knew that the property was stolen property. Alternatively, whether defense counsel was ineffective for failing to object to Instruction S–4.

¶ 13. Instruction S–4 informed the jury “that proof that a defendant stole the property that is the subject of the charge against him, or her, shall be prima facie evidence that the defendant had knowledge that the property was stolen.” The language of the jury instruction tracked the language of Mississippi Code Section 97–17–70(3)(b)

: “Proof that a defendant stole the property that is the subject of a charge under this section² shall be prima facie evidence that the defendant had knowledge that the property was stolen.” Miss.Code Ann. § 97–17–70(3)(b) (Rev.2014).

¶ 14. Defense counsel lodged no objection to Instruction S–4. We have held repeatedly that “an offended party's failure to object to jury instructions at trial procedurally bars the issue on appeal.” Neal v. State, 15 So.3d 388, 397 (Miss.2009)

(quoting Smith v. State, 835 So.2d 927, 939 (Miss.2002) ). Nevertheless, an “obvious error which was not properly raised by the defendant and which affects a...