OF JUDGMENT: 03/03/2014
COUNTY CIRCUIT COURT HON. ROBERT B. HELFRICH TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
Artea Chilton was indicted on one count of armed robbery
using a deadly weapon. After a jury trial, Chilton was found
guilty of armed robbery, and the Forrest County Circuit Court
sentenced him to twenty-five years in the custody of the
Mississippi Department of Corrections (MDOC), with twenty
years to serve, and five years of postrelease supervision
(PRS), and to pay a $5, 000 fine. After sentencing, Chilton
filed a motion for a judgment notwithstanding the verdict
(JNOV) or, in the alternative, a new trial, which the court
denied after a hearing. After our review of the record, we
AND PROCEDURAL HISTORY
On October 19, 2012, Chilton, driving a red Mustang, picked
up Darisha Johnson from her apartment complex to take her to
get something to eat. Johnson testified that Chilton instead
drove to McMullan Motors and spoke with one of the salesmen.
The salesman was later identified as Dewayne Morris.
Morris testified that Chilton wanted to look at the fastest
and most expensive car at the dealership. Morris directed
Chilton to a Dodge Charger that was on display inside of the
dealership. Morris discussed a listing price of $55, 000, but
explained to Chilton that he could possibly sell the car for
$50, 000 if Chilton paid cash. Both Chilton and Morris
testified that Chilton responded that he was going to the
bank to retrieve the cash for the car, and that he would be
Johnson testified that she and Chilton left McMullan Motors
and drove to a BancorpSouth. Chilton, dressed in all black
and wearing a mask on the back of his head, walked into the
BancorpSouth and cut in front of one of the customers, who
was later identified as Cleveland Collins. From there,
witnesses testified that Chilton loudly asked a teller who
the owner of the bank was. The teller, identified at trial as
"Clayton" or "Clay, " directed Chilton to
Tina Gibbs, the branch manager.
Gibbs testified that Chilton walked into her office and
stated that he wanted money because he was going to buy a
Dodge. Gibbs testified that she felt a bit uneasy because of
Chilton's demeanor and appearance, and she initially
thought Chilton was robbing the bank until he mentioned the
car. Therefore, she asked Chilton whether he wanted a loan.
Gibbs testified that Chilton responded that he did not need a
loan. Gibbs stated that he wanted all of the money, and that
he was robbing the bank. By this time, Gibbs had pressed the
silent alarm located on the side of her desk.
Gibbs later testified that Chilton said he had a gun, and
gestured as though it was in his pocket. However, Gibbs
stated she never actually saw Chilton's
After this brief exchange in her office, Gibbs stepped out
and informed the tellers that Chilton was robbing the bank.
Candisha Campbell, a teller at the bank, testified that Gibbs
instructed the tellers to hand Gibbs "bait money."
Michelle Long, another teller at BancorpSouth, testified that
she gave Gibbs bait money - the money typically given during
After Gibbs retrieved the bag of bait money, she handed it to
Chilton. Witnesses testified that Chilton told everyone to
"have a good weekend" before exiting the bank.
¶9. Johnson testified that Chilton appeared calm as he
entered the car, and that he had a bag of money with him.
Johnson stated that she did not feel that anything was wrong
until the police started following behind the car trying to
cut them off. Johnson said that Chilton started going through
the bag and money and throwing some of the money out of the
window. Chilton later testified that the money had trackers
in it. As soon as she got the chance, Johnson jumped out of
the car and ran to an auto parts store. Johnson also tried to
flag down Chief Charles Bolton of the Hattiesburg Police
Department; however, he was in pursuit of Chilton. A few
moments later, Chilton was apprehended.
Sergeant Laron Smith later testified that he received a call
regarding a possible robbery. He stated that he and other
officers were following behind a red Mustang until another
officer cut off the Mustang's route. Sergeant Smith
further stated that Chilton was noncompliant with commands to
get out of the car. Sergeant Smith said that several officers
had to remove Chilton from the vehicle.
Chilton and Johnson were arrested and charged with armed
robbery. However, the grand jury did not return an indictment
against Johnson. At trial, Chilton denied that he intended to
rob the bank. He said he never told Gibbs that he had a gun,
and he only wanted to discuss financing options regarding the
Dodge. According to Chilton, he threw out the trackers
because he was scared. Chilton further stated that he knew
taking the money was wrong, but he did not understand how
loans worked at a bank.
Following a two-day trial, Chilton was convicted of armed
robbery. He was sentenced to twenty-five years in the custody
of the MDOC, with twenty years to serve, followed by five
years of PRS and to pay a $5, 000 fine. Following his
unsuccessful posttrial motions, he appeals and claims: (1)
the indictment was fatally defective; (2) the circuit court
erred when it gave jury instruction S-4; (3) the circuit
court erred when it gave jury instruction S-1A; (4) there was
insufficient evidence to convict him, and the verdict is
against the overwhelming weight of the evidence; and (5) the
circuit court erred in prohibiting him from introducing a
video into evidence.
Whether the indictment was fatally
Chilton argues that the indictment was fatally defective
because it failed to charge him with "the exhibition of
a deadly weapon." "The [reviewing] Court affords
[a] de novo review to a claim that an indictment was fatally
defective for failure to include an essential element."
Warren v. State, 187 So.3d 616, 621 (¶10)
(Miss. 2016) (citation omitted). "The ultimate test,
when considering the validity of an indictment on appeal, is
whether the defendant was prejudiced in the preparation of
his defense." Id. at 621-22 (¶10).
"All objections to an indictment for a defect appearing
on the face thereof, shall be taken by demurrer to the
indictment . . . before the jury shall be impaneled . . . and
not afterward . . . ." Brown v. State, 37 So.3d
1205, 1209 (¶9) (Miss. Ct. App. 2009) (quoting Miss.
Code Ann. §99-7-21 (Rev. 2007)). "Further, the
Mississippi Supreme Court has held that where a deficiency
appearing in an indictment is non-jurisdictional, it may not
be raised for the first time on direct appeal absent a
showing of cause and actual prejudice." Id.
(citations and quotation marks omitted). Deficiencies are
jurisdictional "where the indictment fails to charge a
necessary element, and where there exists no subject matter
jurisdiction." Id. at 1210 (¶9).
The indictment against Chilton charged:
[O]n . . . October 19, 2012, [he] did willfully, unlawfully,
and feloniously take, steal, and carry away from the person
and/or the presence of, and against the will of Tina Gibbs,
approximately $1, 510.00 in U.S. Currency, the personal
property of the said Tina Gibbs by virtue of her employment
at BancorpSouth, 713 Broadway Drive, Hattiesburg,
Mississippi, by putting [her] in fear of immediate injury,
by stating that he was armed with a gun, contrary to
the form of the statue in such cases made and provided, and
against the peace and dignity of the State of Mississippi.
"An indictment must contain (1) the essential elements
of the crime charged, (2) sufficient facts to fairly inform
the defendant of the charge which he must defend, and (3)
sufficient facts to enable him to plead double jeopardy in
the event of a future prosecution for the same offense."
Warren, 187 So.3d at 621 (¶10) (citation
omitted). "Rule 7.06 of the Uniform Rules of Circuit and
County Court Practice states, in pertinent part, that 'the
indictment upon which the defendant is to be tried shall be a
plain, concise and definite written statement of the
essential facts constituting the offense charged and shall
fully notify the defendant of the nature and cause of the
In Dambrell v. State, 903 So.2d 681, 689 (¶32)