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Allen v. State

Court of Appeals of Mississippi

January 29, 2019

BENJAMIN W. ALLEN III A/K/A BENJAMIN WADE ALLEN III A/K/A BEN ALLEN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 03/06/2017

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. WINSTON L. KIDD JUDGE

          ATTORNEYS FOR APPELLANT: MERRIDA COXWELL CHARLES RICHARD MULLINS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD

          DISTRICT ATTORNEY: ROBERT SHULER SMITH

          BEFORE GRIFFIS, C.J., CARLTON, P.J., AND TINDELL, J.

          CARLTON, P.J.

         ¶1. A Hinds County jury found Benjamin Wade Allen guilty of one count of embezzlement in violation of Mississippi Code Annotated section 97-11-25 (Rev. 2014). The trial court sentenced Allen to serve five years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended, and two years of supervised probation. The trial court also ordered Allen to pay restitution. Allen filed posttrial motions, which the trial court denied.

         ¶2. Allen now appeals his conviction and sentence, and he asserts the following assignments of error: (1) the evidence was insufficient to support Allen's conviction; (2) the verdict was against the overwhelming weight of the evidence; (3) the State failed to prove the essential elements required to prove embezzlement under section 97-11-25; (4) the trial court improperly instructed the jury; (5) an impermissible variance existed between the indictment and the proof presented by the State at trial; (6) the trial court erred by admitting improper evidence pursuant to Mississippi Rule of Evidence 404(b); and (7) the State improperly commented on Allen's failure to testify on his behalf.

         ¶3. After reviewing the record, we find that the evidence introduced at trial was insufficient to support Allen's conviction for embezzlement. Therefore, we reverse and render a judgment of acquittal on that count. In finding the weight and sufficiency of the evidence in this case insufficient to sustain the conviction, we decline to address the remaining assignments of error.

         FACTS

         ¶4. In 2014 and 2015, the State Auditor began an investigation into how Downtown Jackson Partners (DJP), a private nonprofit organization, utilized funds collected from business owners in the Jackson area. However, the record shows that the Hinds County District Attorney's office subpoenaed the investigation files from the auditor's office before completion of the investigation.

         ¶5. In February 2016, as a result of the investigation, a Hinds County grand jury indicted Allen, the president of DJP, for eight counts of embezzlement in violation of Mississippi Code Annotated section 97-11-25. In the indictment, Allen was accused of wrongfully converting to his own use and failing to return as required: (1) a 1989 Chevrolet pickup truck valued at $3, 500; (2) $2, 724.76 for repairs to the pickup truck; (3) $1, 810.21 for insurance and tag registration costs for the pickup truck; (4) $1, 738.37 worth of cell-phone charges for his wife Susie Allen's cell-phone bill; (5) $6, 620.97 worth of payments to his personal credit card bill; (6) $38, 372.99 worth of payments to another personal credit card bill; (7) $86, 000 that was used for Tony Yarber's Inauguration Gala; and (8) $40, 136.55 worth of unauthorized donations and sponsorships. Allen was also indicted for one count of fraudulent misuse of public funds, in violation of Mississippi Code Annotated section 97-7-10 (Rev. 2014), for making false representations to defraud government by causing $65, 745.24 to "be used for a fraudulent Business Incubator Program," and one count of limitation of corporate donation, in violation of Mississippi Code Annotated section 97-13-15, by donating $86, 000, an amount in excess of $1, 000 in a calendar year, to a political party or candidate for a public office.

         ¶6. After a trial held in January 2017, the jury convicted Allen of one count of embezzlement-specifically, Count IV of the indictment which charged Allen with embezzling the money used to pay his wife's cell-phone bill.[1] The jury acquitted Allen of all other charges in the indictment. The trial court sentenced Allen to serve five years in the custody of the Mississippi Department of Corrections, with five years suspended, and two years of supervised probation. The trial court also ordered Allen to pay $1, 738.37 in restitution. Allen filed a motion for a judgment notwithstanding the verdict (JNOV) and a motion for a new trial, which the trial court denied.[2] Allen now appeals.

         DISCUSSION

         ¶7. Allen argues that the evidence presented at trial was insufficient to show that he was guilty of embezzlement. Allen maintains that the evidence shows that DJP knowingly allowed Susie Allen to be included on the DJP cell-phone plan, and that Allen fully reimbursed DJP for Susie Allen's cell-phone charges.

         ¶8. When reviewing a defendant's challenge to the sufficiency of the evidence, this Court

considers each element of the offense and reviews all of the evidence in the light most favorable to the verdict. Th[e] Court must accept as true all credible evidence consistent with guilt. Th[e] Court must give the State the benefit of all favorable inferences that may reasonably be drawn from the evidence. Moreover, matters regarding the weight and credibility given the evidence are the province of the jury. Th[e] Court may reverse only when, with respect to one or more of the elements of the offense charged, the evidence so considered is such that reasonable and fair-minded jurors could only find the accused not guilty. Thus, if any rational trier of fact could have found each and every one of the elements of the crime beyond a reasonable doubt, when viewing the evidence in the light most favorable to the prosecution, the verdict must stand.

Smith v. State, 250 So.3d 421, 424 (¶12) (Miss. 2018) (quoting Cowart v. State, 178 So.3d 651, 666 (¶41) (Miss. 2015)). We recognize that in reviewing the sufficiency of the evidence, "[w]e are not required to decide-and in fact we must refrain from deciding-whether we think the State proved the elements. Rather, we must decide whether a reasonable juror could rationally say that the State did." Lenoir v. State, 222 So.3d 273, 278 (¶25) (Miss. 2017) (citation and internal quotation marks omitted). We now turn to apply the law to the facts of this case.

         ¶9. Count IV of the indictment charged Allen as follows:

While acting in concert with and or aiding abetting or encouraging another or others, on about September 1, 2010 to January 31, 2014,
[Allen, ] being a person undertaking to act for others and intrusted by them with business of any kind or money did willfully, unlawfully and feloniously convert to his own use any money or other valuable thing to wit a $1, 738.37 for payment of [Allen] and [Susie] Allen's personal cell phone bill said $1, 738.37 being the lawful property of Downtown Jackson Partners, a nonprofit corporation, which lawful currency came into his possession by virtue of his employment at Downtown Jackson Partners, a ...

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