Applewhite v. State

375 So.3d 1179

Dontavious APPLEWHITE a/k/a Dantavious Applewhite, Appellant

v.STATE of Mississippi, Appellee

NO. 2022-KA-00290-COA

Court of Appeals of Mississippi.

05/02/2023

Rehearing Denied September 5, 2023

QUITMAN COUNTY CIRCUIT COURT, HON. LINDA F. COLEMAN, JUDGE

ATTORNEY FOR APPELLANT: KATHRINE COLLINS CURREN

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

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. Dontavious Applewhite was convicted of capital murder with a firearm enhancement and aggravated assault with a firearm enhancement. The Quitman County Circuit Court denied Applewhite’s post-trial motions. Aggrieved, Applewhite appeals and challenges the sufficiency and weight of the evidence.

¶2. Finding no error, we affirm.

FACTS

¶3. In the early morning hours of August 6, 2017, officers from the Lambert Police Department were dispatched to the scene of a shooting in Lambert, Mississippi. Upon arrival, the officers entered a building and discovered the deceased body of Kelvin Blackburn.

¶4. After interviewing witnesses at the scene, officers learned that prior to the shooting, Blackburn, along with David Jackson, Jerry Cooley, Jason Roberson, Elliot Hunt, and Mack Riley, were gathered at a table, gambling. Witnesses stated that at some point during the evening, Darrell Walter and Applewhite entered the building and stood near the table where the men were gambling. After observing the men for a period of time, Walter pulled out a gun and held it to Blackburn’s head and ordered Blackburn to give him the cash from his pocket. Blackburn tried to grab the gun and wrestle it away from Walter. During the struggle, the other men at the table hid and sought cover. The witnesses reported hearing gunshots coming from inside the building, and then a short time later, they heard more gunshots fired from outside the building. During the altercation, Roberson suffered a gunshot wound to his left arm, for which he sought medical treatment. Blackburn suffered multiple gunshot wounds and succumbed to his injuries before the police officers arrived.

¶5. Walter and Applewhite were both indicted for one count of capital murder with a firearm enhancement and one count of aggravated assault with a firearm enhancement. Applewhite moved to sever his case from Walter's case, and the circuit court granted the motion.

¶6. At Applewhite’s trial, the jury heard testimony from Hunt, Cooley, Roberson, and Jackson, as well as Denise Lockhart, who was also present in the building on the night of the shooting. The jury also heard testimony from law enforcement officers who arrived at the scene, the medical examiner, an investigator from the Mississippi Bureau of Investigation (MBI), and three employees of the Mississippi Forensics Laboratory. Applewhite moved for a directed verdict at the close of the State’s case-in-chief, and the circuit court denied the motion.

¶7. The jury ultimately returned two guilty verdicts, finding that Applewhite acted in concert with Walter to commit armed robbery, resulting in Blackburn’s death and a gunshot wound to Roberson. For his capital-murder conviction, the circuit court sentenced Applewhite to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC), with eligibility for parole. For his aggravated-assault conviction, the circuit court sentenced Applewhite to serve ten years in the custody of the MDOC. The circuit court ordered the sentences to run concurrently. The circuit court imposed an additional five-year sentence because of the firearm enhancements, and the circuit court ordered the firearm-enhancement sentence to run concurrently with the aggravated-assault sentence.

¶8. Applewhite filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, in which he challenged the sufficiency and weight of the evidence. Applewhite argued that the State failed to prove that he was involved in the shootings of Blackburn and Roberson. The circuit court denied the motion. This appeal followed.

DISCUSSION

¶9. Applewhite argues that the State presented insufficient evidence for the jury to find beyond a reasonable doubt that he was guilty of capital murder and aggravated assault. Applewhite also argues the verdict is contrary to the overwhelming weight of the evidence. We disagree.

I. Sufficiency of the Evidence

¶10. Applewhite asserts that the evidence presented by the State is insufficient to support his convictions. Specifically, he asserts that the State failed to prove that Applewhite was involved in the shootings of Roberson and Blackburn or that he helped facilitate the robbery. Applewhite submits that as a result, the circuit court erred in denying his motion for a JNOV.

[1, 2] ¶11. "A directed verdict, [JNOV,] and a request for peremptory instruction all challenge the legal sufficiency of the evidence presented at trial." Woods v. State, 242 So. 3d 47, 54 (¶24) (Miss. 2018). "In reviewing the sufficiency of the evidence on appeal, we view the evidence in the light most favorable to the State and decide if rational jurors could have found the State proved each element of the crime." Johnson v. State, 310 So. 3d 328, 331 (¶13) (Miss. Ct. App. 2021) (internal quotation mark omitted). "We 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." Id. In the case before us, we must determine whether a reasonable juror could rationally find that Applewhite committed the elements of capital murder with the underlying felony of robbery, as well as the elements of aggravated assault.

[3]¶12. Capital murder is "the killing of a human being without the authority of law by any means or in any manner … when done with or without any design to effect death, by any person engaged in the commission of the crime of … robbery." Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2014). We recognize that "unlike other sections of the capital murder statute, subsection 2(e) does not require the prosecution to prove the elements of murder, only that the killing took place while the accused was ‘engaged in the commission’ of the enumerated felonies." Story v. State, 296 So. 3d 104, 116 (¶39) (Miss. Ct. App. 2019) (quoting Layne v. State, 542 So. 2d 237, 243 (Miss. 1989)). Therefore, "we must find the evidence sufficient to prove [Applewhite’s] participation in the crime of robbery." Id.

[4–7] ¶13. As to Applewhite’s claim that the State failed to present evidence that he was involved in the shootings, we point out that "proof that [Applewhite] shot or assisted in shooting the victims is not necessary to convict [him] of capital murder." Id. at (¶38). Furthermore, to find Applewhite guilty of capital murder, "it is not necessary to prove he committed the robbery himself, only that he acted in concert with [Walter] or aided and abetted [Walter] in robbing [Blackburn]." Id. at (¶40). Indeed, "[i]t is well established that any person who is present at the commission of a criminal offense and aids, counsels, or encourages another in the commission of that offense is an ‘aider and abettor’ and is equally guilty with the principal offender." Id. at 116-17 (¶40). "In order to be held criminally liable as an aider and abett[o]r in the commission of a felony, one must ‘do something that will incite, encourage, or assist the actual perpetrator in the commission of the crime.’ " Sneed v. State, 31 So. 3d 33, 41 (¶24) (Miss. Ct. App. 2009).

¶14. The record reflects that the jury was instructed on aiding and abetting in the commission of the underlying felony of robbery. Specifically, the jury was instructed that Applewhite would be guilty of capital murder with a firearm enhancement if Applewhite

individually or while aiding and abetting and/or acting in concert with [Walter], did unlawfully, wilfully and feloniously, without authority of law, and with or without deliberate design to … effect death, kill [Blackburn], while … individually or while aiding and abetting and/or acting in concert with [Walter] was/were engaged in the commission of the crime of robbery … with the use of a firearm.

The jury was also instructed on general aider and abettor culpability by an instruction using identical language adopted by the Mississippi Supreme Court in Milano v. State, 790 So. 2d 179, 185 (¶21) (Miss. 2001):

The guilt of a defendant in a criminal case may be established without proof that the defendant personally did every act constituting the offense alleged. The law recognizes that, ordinarily, anything a person can do for himself may also be accomplished by that person through the direction of another person as his or her agent, by acting in concert with, or under the direction of, another person or persons in a joint effort or enterprise.

If another person is acting under the direction of the defendant or if the defendant joins another person and performs acts with the intent to commit a crime, then the law holds the defendant responsible for the acts and conduct of such other persons just as though thedefendant had committed the acts or engaged in such conduct.

Before any defendant may be held criminally responsible for the acts of others it is necessary that the accused deliberately associate himself in some way with the crime and participate in it with the intent to bring about the crime.

Of course, mere presence at the scene of a crime and knowledge that a crime is being committed are not sufficient to establish that a defendant either directed or aided and abetted the crime unless you find beyond a reasonable doubt that the defendant was a participant and not merely a knowing spectator.

In other words, you may not find any defendant guilty unless you find beyond a reasonable doubt that every element of the offense as defined in these instructions was committed by some person or persons, and that the

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