TRIAL JUDGE: HON. JOHN L. HATCHER COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT
BY: W. GLENN WATTS DISTRICT ATTORNEY: LAURENCE Y. MELLEN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION REVERSED AND REMANDED
The opinion of the court was delivered by: Banks, Justice, For The Court:
DATE OF JUDGMENT: 11/19/92
MOTION FOR REHEARING FILED:
¶1. In this case, we are presented with claims that the appellant was put in double jeopardy, that the trial court erred in denying a motion for directed verdict, that evidence of other crimes and acts was improperly admitted, that a flight instruction was not warranted, and that the trial court abused its discretion in refusing to give jury instructions on the lesser included offense of trespassing and identification. Because we conclude that the trial court committed reversible error in refusing to give the requested lesser included offense and identification instructions, we reverse.
¶2. In cause number 7514, a grand jury returned an indictment against the appellant, Patrick N. Warren, charging him with the crime of voyeurism committed on or about February 20, 1992. A jury was selected and the trial commenced. However, during the State's direct examination of the voyeurism victim, Katray James, counsel for Warren objected to the line of questioning. A conference followed in the Judge's chambers, where it was discussed and eventually conceded by the State's prosecutor that James' testimony concerning the incident on February 20 did not support the elements set out in the indictment.
¶3. In particular, the indictment alleged that Warren unlawfully peeped through a window of James' house with a lewd, licentious and indecent purpose. However, James' testimony about the February 20 incident merely revealed that Warren threatened the lives of James and her children on this particular night, and not that Warren had a lewd, licentious, or indecent purpose for being at her home. As such, the State aborted the trial.
¶4. Subsequently however, Warren was re-indicted in cause number 7611 on two counts of voyeurism. Count I of the indictment alleged that he committed the crime of voyeurism against James on or about February 11, 1992. Count II of the indictment alleged that he committed the same offense against James on or about February 20, 1992 (the same incident that had been charged in the aborted trial).
¶5. Warren filed a "Plea of Former Jeopardy" in which he argued that subjecting him to any trial for the offense of voyeurism would constitute double jeopardy in light of the previously aborted trial. The trial court agreed in part, ruling that Count II, charging Warren with the February 20 voyeurism offense, constituted double jeopardy. However, the trial court held that the February 11 voyeurism incident was not barred by double jeopardy protections.
¶6. At the subsequent trial, James testified that on February 11, 1992, at approximately 11:00 p.m., a man banged on her window and threatened to kill her and her children unless she did as he instructed. According to James, the man instructed her to go into her bedroom, pull back her curtains, take off her clothes, and "get off on self." James further testified that the man harassed and threatened her and her children for approximately two hours on the night of February 11, 1992. She identified Warren in court as the "peeping tom." Also over defense counsel's objection, James told the jury about other incidents concerning Warren which occurred on February 17 and 20. *fn1 The trial court ruled that these incidents were admissible under Miss. R. Evid. 404(b) to show identity.
¶7. Warren testified in his own defense. He denied ever having gone to James' house and threatening her or ordering her to undress for his licentious purposes. In fact, Warren claimed that during the "peeping tom" incidents he was in McComb, Mississippi visiting his grandmother; however, he offered no corroboration of this claim.
¶8. Both sides rested and closed following Warren's testimony. During the jury instruction conference, counsel for Warren requested an instruction on the law of identification and an instruction on the lesser included offense of trespassing. The trial court denied both requests.
¶9. Based upon the evidence presented, the jury found Warren guilty as charged, and the trial court sentenced him to the maximum allowed for the crime, five years imprisonment. Warren's attorney filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. The motion was denied. Aggrieved, Warren appeals to this Court.
¶10. In his first assignment of error, Warren claims that he was charged in the first and second indictment with the same offense (voyeurism) which has the same elements. He argues that under Blockburger v. United States, 284 U.S. 299 (1932), he was subjected to double jeopardy and as such his conviction cannot stand. He also contends that the two-count indictment was improper under Corley v. State, 584 So. 2d 769 (Miss. 1991), as two offenses cannot be alleged in the same indictment unless they are based on the same act or transaction.
¶11. The State responds that while Warren was indicted twice for the voyeurism that occurred on February 20, 1992, he was not tried twice, since the first trial was aborted by the State and the February 20 voyeurism charge was stricken from the second trial by the trial court. Thus, the State asserts that since the February 11 voyeurism incident was not alleged in the initial trial, the instant case is not violative of double jeopardy.
¶12. The State's position is well taken. There is no double jeopardy bar to the prosecution and conviction of Warren for the February 11 voyeurism incident in the present case. Initially, there were two separate and distinct offenses charged in a single indictment. The lower court's dismissal of one of those counts on grounds of double jeopardy, however, cured any error that might have arisen from the multi-count indictment. Moreover, because of the lower court's dismissal of the February 20 voyeurism count, this was not a case of "separate and distinct offenses. . . tried in the same criminal proceeding." Corley, 584 So. 2d at 772. Thus, this assignment of error is without merit.
¶13. Next, Warren contends that the trial court erred in denying his motion for directed verdict lodged at the close of the State's case-in- chief. The State argues that there was ample evidence to support the trial court's denial of Warren's directed verdict motion.
¶14. "It is elemental that after a motion for directed verdict is overruled at the Conclusion of the State's evidence and the appellant proceeds to introduce evidence in his own behalf, the point is waived. In order to preserve it, the appellant must renew his motion for a directed verdict at the Conclusion of all the evidence." Wright v. State, 540 So. 2d 1, 3 (Miss. 1989) (quoting Harris v. State, 413 So. 2d 1016, 1018 (Miss. 1982)); State v. Russell, 358 So. 2d 409, 413 (Miss. 1978).
¶15. Here, Warren moved for a directed verdict at the close of the State's case-in-chief. He then presented evidence in his own behalf, but did not renew his motion for directed verdict at the close of all the evidence. Thus, he waived this assignment of error, and it is therefore not properly before this Court. Notwithstanding the bar, however, we conclude that the evidence and the reasonable inferences from the evidence supported the jury's verdict of guilt beyond a reasonable doubt and that ...