Kidder v. State

326 So.3d 1027

Bobby KIDDER, Appellant,

v.STATE of Mississippi, Appellee.

No. 2018-KA-01696-COA

Court of Appeals of Mississippi.

April 20, 2021

Rehearing Denied August 3, 2021

ATTORNEYS FOR APPELLANT: MARK KEVIN HORAN, Greenwood, BRADLEY DAVID DAIGNEAULT, Grenada

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, Jackson

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. This appeal stems from Bobby Kidder's conviction and sentence in the Quitman County Circuit Court before Judge Linda F. Coleman on October 25, 2018. He raises issues concerning whether the issue of venue should have been submitted to the jury and whether the jury was properly instructed regarding assault. Finding no error, we affirm the conviction and sentence.

FACTS AND PROCEDURAL HISTORY

¶2. On the evening of February 26, 2016, Jennifer Hentz and her mother, Monica Ross, were driving separate cars slowly along Dummyline Road (a gravel road). Kidder pulled behind them in his truck, and as the cars slowed down, he began to follow closely. Ross pulled over to the side of the road to allow him to pass. As Kidder passed, the passenger in his vehicle pointed a gun out of the window at Ross, who then attempted to dial 911, but the call dropped. Kidder then turned around and hit Ross's car. Kidder reversed and drove forward, hitting Hentz's car causing her airbag to deploy. Both Hentz and Ross sustained injuries, and their cars suffered significant damage. Kidder attempted to flee the scene but crashed in nearby woods. The Quitman County Sheriff's Department responded and ultimately arrested Kidder. The Tallahatchie County Sheriff's Department also responded to the accident scene.

¶3. Prior to trial, a motion to dismiss was raised as to venue, specifically whether the collision occurred in Tallahatchie County or Quitman County. During pretrial proceedings, Kidder presented Kelly Greenwood as an expert witness in the field of civil engineering and the official county engineer for both Quitman and Tallahatchie Counties, who stated that the entirety of Dummyline Road was within Tallahatchie County. The State provided several witnesses from the Quitman County Sheriff's Department who testified that they believed the area to be in Quitman County. The trial judge denied the motion to dismiss, holding that venue is a question of fact to be resolved by a jury. Prior to the start of the trial, Kidder filed a motion to reconsider, which was heard by the court before jury selection. However, the judge reserved any determination of venue until after witnesses testified regarding the location of the incident.

¶4. During the trial, Ross testified that she and her daughter, Hentz, lived at 788 Dummyline Road in Tallahatchie County; however, her mailbox (located across the street from her home) was in Quitman County. Ross stated that she was less than a block from her home, but on the same side of the road as her mailbox, during the assault.

¶5. Quitman County Deputy Sheriff, Tommy Bryant, told the court that Dummyline Road runs through Panola, Quitman, and Tallahatchie Counties. He explained that Dummyline Road is divided with Quitman County to the west and Tallahatchie County to the east. He further stated that he understood the center of the road to mark the county line. Bryant indicated that the victims' cars were in the southbound lane of the road, which he believed to be Quitman County. Similarly, Jimmy Mathews, the 911 coordinator, indicated that according to the county map, the county line runs down the middle of Dummyline Road with Quitman County to the west.

¶6. Brandon Hodges, an enforcement officer with the Mississippi Department of Transportation, testified for the defense. Hodges stated that he had informed Deputy Bryant that the assault occurred in Tallahatchie County because the unpaved gravel on Dummyline Road marks the start of Tallahatchie County. Kelly Greenwood, the county engineer for both Tallahatchie and Quitman Counties, testified that the whole roadway—all of Dummyline Road—was entirely in Tallahatchie County. Greenwood stated the coordinates for the assault indicated that it occurred 12.7 feet from Quitman County.

¶7. After the state's last witness, the trial court denied Kidder's motion for reconsideration based on Ross's direct testimony that the accident occurred in Quitman County, as well as the testimony of Captain Pratcher of the Quitman County Sheriff's Department, Tommy Bryant, and Jimmy Matthews, the emergency management director for Quitman County. Jury instructions were given for aggravated assault and reckless driving. A jury instruction was not provided for the lesser included offense of attempted simple assault.

¶8. Kidder was found guilty of two counts of attempted aggravated assault in violation of Mississippi Code Annotated section 97-3-7(2)(a)(ii) (Rev. 2014) and was sentenced to serve five years in custody for each count with the two terms set to run consecutively. Kidder filed a motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied. He now appeals, arguing that the court erred in submitting the issue of venue to the jury because there was no genuine issue of material fact for the jury to consider regarding the county in which the collision occurred. Kidder also argues that the court erred in failing to give a jury instruction for the lesser included offense of attempted simple assault.

DISCUSSION

I. The issue of venue was properly submitted to the jury.

¶9. Kidder argues that the circuit court erred when allowing the jury to make the determination of proper venue. Mississippi Code Annotated section 99-11-3(1) (Rev. 2015) provides that

[t]he local jurisdiction of all offenses, unless otherwise provided by law, shall be in the county where committed. But, if on the trial the evidence makes it doubtful in which of several counties, including that in which the indictment or affidavit alleges the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.

Furthermore, Mississippi Annotated Section 99-11-19 (Rev. 2015) specifies that

[w]hen an offense is committed partly in one county and partly in another, or where the acts, effects, means, or agency occur in whole or in part in different counties, the jurisdiction shall be in either county in which said offense was commenced, prosecuted, or consummated, where prosecution shall be first begun.¹

¶10. This case calls into question whether the actual offense was committed in Quitman County or Tallahatchie County. "Under Mississippi criminal procedure, questions of fact as to venue are for the determination of the jury and are not to be decided by the trial court." State v. Fabian , 263 So. 2d 773, 775 (Miss. 1972). "Venue may be proved by either direct or circumstantial evidence." Hill v. State , 797 So. 2d 914, 916 (¶10) (Miss. 2001).

¶11. "In Presley v. State , ... the Mississippi Supreme Court examined Sec. 2419, Code of 1942, which provides that ‘if on the trial the evidence makes it doubtful in which of several counties, or judicial districts, or justice of the peace districts, ... including that in which the indictment, or affidavit, alleges it, the offense was committed, such doubt shall not avail to procure the acquittal of the defendant.’ " Steed v. State , 752 So. 2d 1056, 1063 (¶19) (Miss. Ct. App. 1999) (citing Presley v. State , 217 Miss. 112, 63 So. 2d 551, 555 (1953) ). "The court [in Presley ] held that such language in a statute eliminates the requirement that proof of venue be proven beyond a reasonable doubt in cases where there is a conflict in the evidence as to which of two or more counties or districts in Mississippi is the place of the offense ...." Id. In Steed , this Court found that "[t]he testimony and evidence presented by the State proved that there was a proper factual question relative to venue which could be presented to the jury." Id. at 1064 (¶19).

¶12. Two years later in Hill our state Supreme Court held that "[p]roof of venue is an essential part of criminal prosecution, and the State bears the burden of proving venue beyond a reasonable doubt." Hill , 797 So. 2d at 916 (¶10) (emphasis added). "While the ultimate burden of proving venue that rests upon the State is beyond a reasonable doubt, this is a standard of proof before the jury, not the trial judge." Id. at (¶11). Steed and Hill present a disagreement regarding the state's burden of proof relative to venue in a criminal trial. This is a conflict that we encourage our state's highest court to resolve.

¶13. In Hill , proof of venue was supported by the statement of the defendant that she had just passed the Glendale exit when her son started having breathing problems. Id. at 915 (¶4). A Jones County Sheriff's investigator and a detective with the Hattiesburg Police Department both testified that the exit location is in Forrest County. Id. Hill argued that neither officer had personal knowledge of her whereabouts and that the statement was not an admission that she strangled her son. Id. at 916 (¶13). Hill continued that the jury should not be permitted to disbelieve her statement for the purposes of determining guilt, while nevertheless using the statement as a basis for establishing venue. Id. Our Supreme Court stated, "While this issue is a close one, we hold that this Court's deferential standard of review on appeal of a guilty verdict dictates an affirmance." Id. at (¶14). And " ‘it is the function of the jury to pass upon the weight and worth of the evidence and to determine the credibility and veracity of the witnesses.’ " Id. at 916-17 (¶14) (quoting Pate v. State , 419 So. 2d 1324, 1326 (Miss. 1982) ).

¶14. Here, several of the State's witnesses, including officers, testified that they believed the collision occurred in Quitman County. The State's witness also testified that all of Dummyline Road was not in one county. Alternatively, Kidder's witness, ...