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Jones v. State

Court of Appeals of Mississippi

February 19, 2019

ZARTAVIOS DEVONTA JONES A/K/A ZARTAVIOUS JONES A/K/A TAE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/12/2017

          DESOTO 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

         EN BANC.

          J. WILSON, P.J.

         ¶1. 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.

         ¶2. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶3. 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.

         ¶4. 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.[1] 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."

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.[2] 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.[3]

         ¶8. 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, ...


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