Wilson v. State
| Docket Number: | 2005-KA-02136-SCT Linked Case(s): 2005-KA-02136-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 10-25-2007 Opinion Author: Carlson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Felony shoplifting - Aiding and abetting instruction - Felony sentence - Section 97-23-93(7) - Hearsay - M.R.E. 801(d)(2)(E) - M.R.E. 801(a) - M.R.E. 401, 402 & 403 Judge(s) Concurring: Smith, C.J., Waller, P.J., Easley, Randolph and Lamar, JJ. Non Participating Judge(s): Dickinson, J. Dissenting Author : Diaz, P.J. Dissent Joined By : Graves, J. Procedural History: Jury Trial |
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| Trial Court: |
Date of Trial Judgment: 10-05-2005 Appealed from: Madison County Circuit Court Judge: Samac Richardson District Attorney: David Byrd Clark Case Number: 2005-0077 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Christine Wilson |
Julie Ann Epps, Cynthia Hewes Speetjens |
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| Appellee: | State of Mississippi | Office of the Attorney General | ||
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Felony shoplifting - Aiding and abetting instruction - Felony sentence - Section 97-23-93(7) - Hearsay - M.R.E. 801(d)(2)(E) - M.R.E. 801(a) - M.R.E. 401, 402 & 403 |
| Summary of the Facts: | Christine Wilson was convicted and of felony shoplifting and sentenced to five years with the last year suspended, and five years supervised probation. She appeals. |
| Summary of Opinion Analysis: | Issue 1: Aiding and abetting instruction Wilson argues that the court erred by granting an improper jury instruction which does not require that she knowingly, intentionally or willfully do an act to aid, assist or encourage the crime but allows the jury to convict her if the others committed the crime, she knew of it but was merely present and did an act which incidentally assisted or encouraged the crime even though she may have not had intent to further the crime. Similar language in a jury instruction was upheld in Kelly v. State, 493 So. 2d 356, 359 (Miss. 1986). Not only does the instruction meet the requirement that a jury instruction not simply state that a defendant merely approved of the crime, but the jury instruction in no way lessened the responsibility of the jury in returning a guilty verdict against Wilson only if each and every element of the crime of felony shoplifting was proven beyond a reasonable doubt as to Wilson. Wilson also argues that because the jury instruction is incompatible with the Fifth Circuit’s Pattern Jury Instruction on Aiding and Abetting which was adopted by the Court in Milano v. State, 790 So. 2d 179 (Miss. 2001), the giving of the jury instruction in today’s case was plain error. Even though the jury instruction was not in the form which was adopted in Milano, there is no error, much less reversible error, in the trial court’s giving of the instruction when it is read along with all the other jury instructions which were given. Issue 2: Felony sentence Wilson argues that the court erred in sentencing her, thus entitling her to a new sentencing hearing. Section 97-23-93(7), the statute under which Wilson was indicted, was amended by the Legislature after Wilson was indicted but prior to her trial. This amendment effectively made the charge of shoplifting merchandise over $250 in value but not more than $500 in value to be a misdemeanor rather than a felony. Wilson argues that she should be sentenced as a misdemeanant instead of a felon and that the jury made a finding only that she shoplifted merchandise with a value of more than $250 rather than the required $500. When the statutory penalty for a particular crime is legislatively reduced after the date of the commission of the crime but before the date of sentencing, the trial court must sentence the defendant under the amended statute. In today’s case, the Court is not dealing with an amended sentencing statute, but instead an amended statute as it relates to the elements of the criminal offense. Only the elements of the crime of felony shoplifting changed and not the penalty, which has remained the same during this amendment process. Wilson was properly convicted based upon section 97-23-93 as it existed on the date of the crime. Issue 3: Hearsay Wilson argues that the court erred in admitting hearsay testimony by a co-defendant concerning what the three women were doing inside the store while he was outside the store, as well as Wilson’s knowledge of the overall plan to commit the crime of shoplifting. Just because the witness was not physically inside the store, he was not prevented from observing activity inside the store. From his testimony, the jury reasonably could have inferred that the witness had at least some view of the activities occurring in the store. In addition, the testimony was cumulative, at best, to the officer’s eye-witness testimony as to what he observed the suspects doing, including Wilson. The State’s assertion that the witness’s “we-all-went-to-steal” testimony was admissible under M.R.E. 801(d)(2)(E), concerning statements by a co-conspirator during the course and in furtherance of the conspiracy, is wrong. This testimony is not hearsay under M.R.E. 801(a)(1) or (2). Further, the evidence was both relevant and admissible under M.R.E. 401, 402 and 403, so that the jury could consider this evidence along with the other evidence, including the officer’s eye-witness testimony as to what he personally observed the three women doing inside Dillard’s. |
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