ZARTAVIOS DEVONTA JONES A/K/A ZARTAVIOUS JONES A/K/A TAE APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 12/12/2017
COUNTY CIRCUIT COURT HON. CELESTE EMBREY WILSON TRIAL JUDGE
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BILLY L. GORE
DISTRICT ATTORNEY: JOHN W. CHAMPION
Zartavious Jones was convicted of armed robbery based on
evidence that he used a gun to rob another young man when
they met to make a trade involving some Nike Air Jordan shoes
and designer clothes. Jones was sentenced to serve thirty
years in the custody of the Mississippi Department of
Corrections (MDOC), with ten years suspended.
On appeal, Jones argues that there is insufficient evidence
to sustain his conviction and that the jury's verdict was
against the overwhelming weight of the evidence. He also
argues that the trial court erred by refusing to instruct the
jury on the lesser-included offense of petit larceny. We
conclude that the State presented sufficient evidence to
sustain the conviction. However, we hold that Jones was
entitled to an instruction on the lesser-included offense of
petit larceny, and we reverse and remand for a new trial.
AND PROCEDURAL HISTORY
In June 2016, Nicholas Brusseau, then sixteen years old,
posted photos on Instagram of some shoes and clothes that he
wanted to sell-a pair of Nike Air Jordan shoes, a Ferragamo
belt, and a True Religion shirt. Jones, then nineteen years
old, saw the post and contacted Brusseau through Instagram.
The two exchanged texts and photos and agreed to a trade.
Brusseau would trade Jones the shoes, shirt, and belt for two
pairs of Robin's jeans, which Brusseau testified were
worth $400 a pair. Brusseau testified that the shoes, shirt,
and belt were worth approximately $380 to $400. Brusseau and
Jones agreed to meet at Brusseau's house in Southaven.
On June 12, 2016, Jones's girlfriend, Alyssa Lagomarsino,
drove him to Brusseau's house, and Brusseau met them at
the end of his driveway. Jones got out of the car and asked
to look at the shoes. Brusseau handed Jones one of the shoes.
Although Jones did not try on the shoes, he said that
"the shoes weren't his size but it was okay."
Brusseau then showed Jones the shirt and belt. Jones put the
belt around his waist but not through his belt loops. Jones
then tossed a backpack on the ground to Brusseau's left.
Brusseau testified, "[A]s I went to open [the backpack]
I looked back, and [Jones] had already grabbed [the shoes,
shirt, and belt] in his left hand and had a gun in his right
hand." Brusseau testified that Jones pointed the gun at
him, quickly got back into the car, and continued to point
the gun at him through the car's open window. Jones then
said, "I'm out this [expletive]," and he told
Lagomarsino to "go." As Lagomarsino and Jones drove
away, Brusseau took a picture of the car's license plate.
At some point, Brusseau realized that the jeans in the
backpack were "Wal-Mart jeans" rather than the
promised Robin's jeans. Brusseau testified that he did
not try to take his shoes and clothes back from Jones
"[b]ecause there was a gun in front of [him], and [he]
didn't want to risk [his] life." Brusseau stated,
"I was scared for my life. I was shocked, and I was just
trembling. I didn't know what to do."
Brusseau reported the incident to Southaven police about
twenty minutes later. According to Detective Todd Samples,
Brusseau stated that Jones robbed him at gunpoint and
"waiv[ed] [the gun] at him in a threatening
manner." A few days later, Officer Thomas Long went to
the house that Jones shared with Lagomarsino. Long collected
the Nike Air Jordan shoes, the Ferragamo belt, and the True
Religion shirt. Lagomarsino testified that Jones had hidden
the items in the attic of the house. The police never
recovered the gun that Jones allegedly used.
Lagomarsino testified that on the morning of June 12, 2016,
Jones told her that "he needed to go trade some
things" and asked her to drive him to Brusseau's
house. According to Lagomarsino, Jones stepped out of the car
and stood next to the open car door during the exchange with
Brusseau. Lagomarsino testified that Jones tried on the shoes
while he stood next to the car. After Jones and Brusseau made
the trade, Jones got back in the car and told her to drive,
and she took Jones back to their house. On the way home,
Jones told her that he had not given Brusseau the Robin's
jeans he had promised. Lagomarsino told Jones that he was
"going to get in trouble" for tricking Brusseau,
but Jones dismissed her concerns. Lagomarsino testified that
Jones did not display or waive a gun during the exchange. She
also testified that she did not see Jones with a gun at any
time before, during, or after the exchange. However, on
cross-examination, Lagomarsino conceded that it was
"possible" that Jones had a gun that he kept hidden
from her view.
A DeSoto County grand jury indicted Jones for armed robbery,
and the case proceeded to a one-day trial on September 25,
2017. During the charge conference, Jones requested a jury
instruction on petit larceny as a lesser-included offense of
armed robbery. Defense counsel argued that the
instruction was appropriate because the jury could find that
Jones took the shoes, belt, and shirt but never possessed or
displayed a gun. However, the State objected, and the trial
court refused the instruction, concluding that the evidence
did not support it. As a result, the court instructed the
jury on armed robbery only.
The jury found Jones guilty of armed robbery. Jones filed a
post-trial motion for judgment notwithstanding the verdict or
a new trial, which was denied. The court sentenced Jones to
serve thirty years in MDOC custody, ...