Anthony Lee Tucker v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-00762-COA
ANTHONY LEE TUCKER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
11/20/2007
HON. LEE J. HOWARD
CLAY COUNTY CIRCUIT COURT
LESLIE S. LEE
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
FORREST ALLGOOD
CRIMINAL - FELONY
CONVICTED OF POSSESSION OF STOLEN
PROPERTY AND SENTENCED AS A
HABITUAL OFFENDER TO TEN YEARS IN
THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PAROLE,
PROBATION, OR EARLY RELEASE, AND
TO PAY A FINE OF $10,000 UPON
RELEASE FROM CONFINEMENT
AFFIRMED - 11/24/2009
BEFORE KING, C.J., BARNES AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
Anthony Tucker was indicted for possession of stolen property with a value of over
$500 in violation of Mississippi Code Annotated section 97-17-70 (Rev. 2006), which was
amended to add habitual-offender status pursuant to Mississippi Code Annotated section 9919-81 (Rev. 2007). Following a jury trial on October 3-5, 2007, a guilty verdict was
returned, and Tucker was sentenced as a habitual offender to ten years in the custody of the
Mississippi Department of Corrections (MDOC) without the possibility of parole, probation,
or early release, and ordered to pay a fine of $10,000 upon his release.
¶2.
Tucker appeals, arguing that: (1) the evidence was legally insufficient to support the
verdict or, in the alternative, the verdict is against the overwhelming weight of the evidence;
(2) he was improperly charged because the State’s theory of the case was that Tucker actually
stole the property; (3) in the alternative, the indictment was insufficient to charge the crime
for which he was convicted; (4) the trial judge erred in refusing jury instructions D-2A and
D-3, and granting instructions S-3 and S-4; (5) the trial judge erred in failing to sustain a
defense objection during the State’s closing argument; (6) he was deprived of effective
assistance of counsel, thereby depriving him of his constitutional right to a fair trial; and (7)
cumulative error demands a new trial. The record does not reflect that Tucker’s assistance
of counsel was constitutionally ineffective, and the parties have not stipulated that the record
is adequate for us to weigh the trial judge’s findings of fact. Therefore, we affirm Tucker’s
conviction and sentence without prejudice, so he may supplement the record with additional
evidence in which to pursue his ineffective assistance of counsel claim through appropriate
post-conviction-relief proceedings.
FACTS
¶3.
On Monday October 10, 2005, at approximately 10:00 a.m., Jason Cole arrived at his
place of employment, Foot Gear in West Point, Mississippi, and discovered that the gate’s
2
lock had been broken and the front door was ajar.1 Once inside, Cole found that most of the
store’s athletic wear was missing from the racks along the wall and throughout the store; the
phone line had been cut; and the store’s computer had been stolen. He also discovered that
Foot Gear’s storage room had been ransacked, and a myriad of athletic shoes were missing.
Pairs of shoes were taken both with and without the matching shoe box.2 After Cole
contacted the West Point Police Department, it was discovered that the security-system lines,
which were located behind the store, had been cut, thereby disabling surveillance cameras.
The amount of inventory stolen from Foot Gear was valued at approximately $109,614.
¶4.
No fingerprints were recovered from the store, nor were there any leads related to the
burglary until October 18, 2005, when the police received an anonymous tip from a female
caller. Detective Zate McGee, who investigated the burglary, testified that the anonymous
caller told the police that “Tucker had broken into Foot Gear on October 8th[,] and . . . he had
hid[den] the merchandise that was stolen in a yellow shed and in a house located at 1893
Matthews Gin Road.” Detective McGee testified that, following standard procedure, she
checked to see if Tucker was in the police system. Her investigation revealed that Tucker
was listed on the MDOC’s active offender’s list. As a convicted felon released on probation
from the State of Wisconsin, Tucker was living in Mississippi via the Interstate Compact
Agreement. Tucker had requested a transfer to Mississippi in order to live with his sister,
1
At the time of the burglary, Foot Gear in West Point, Mississippi was owned by
Haresh Khiatani.
2
The shoe boxes left behind later proved helpful in verifying that the merchandise
recovered was the same that was stolen from Foot Gear. Some of the shoes recovered bore
the same model number as its matching shoe box, which the thieves left at the store.
3
Christann Gibbs (Christann).
Tucker’s parole officer in Mississippi was Mississippi
Department of Corrections’ employee Johnny Hancock. After being contacted by the West
Point Police, Hancock, accompanied by Officer McGee and Ryan Boykin, with the MDOC,
went to investigate the residence described by the informant. During his testimony, Hancock
detailed what occurred at the home.
¶5.
Upon their arrival, Hancock noticed Tucker walking from the house, which was
located at 1893 Matthews Gin Road, toward a yellow storage shed that was located behind
the house. Tucker’s sister, Christann; his brother-in-law, James Gibbs (Gibbs); and Erica
Witherspoon, Tucker’s friend, were also outside the house when Hancock and the other
officers arrived. Hancock informed Tucker and the others that they were there to search for
stolen merchandise, and initially, Gibbs gave his consent for a search of the house. A search
warrant or consent was not needed to search the shed because that was supposed to be the
residence of Tucker. As a condition of Tucker’s parole and interstate transfer of his
supervision, Hancock was authorized to search Tucker’s residence, or investigate matters
concerning Tucker, as he was under the control, or authority, of the MDOC. At trial, there
was testimony given that Tucker lived in the house rather than the shed, but evidence
supported that someone had been living in the shed. The shed had a bed that appeared to
have been slept in, a sofa, a coffee table, an ashtray, electrical service, and other signs of
occupancy. Also, Tucker’s packed duffle bag was located in the shed.
¶6.
Hancock testified that upon entering the shed, he observed numerous articles of new
clothing and athletic shoes. Among other things, Hancock specifically remembered seeing
a “whole line of brand new white shoes lined up at the edge of the bed” and “numerous trash
4
bags loaded with brand new clothing.” Hancock testified that Tucker told him that the “items
were not stolen, that he got the items from . . . [t]wo guys in a white van.” However, at trial,
through his attorney and his sister, Christann, Tucker claimed that the items were a gift from
Gibbs.
¶7.
By the time the police searched the shed, Christann, Gibbs, and Witherspoon had
entered the house, locked the door, and would not let the officers enter. The officers
determined that a search warrant was needed, so while Detective McGee went to obtain a
warrant, Hancock and Boykin remained at the residence and secured the area to ensure that
no one left the house. Tucker had been handcuffed and placed in the back seat of the patrol
car.
¶8.
During this time, Hancock and the other officers noticed a burn pile in the back yard.
Because it was evening, the officers used flashlights to discern what had been burned. In the
ashes and remains of the burn pile, the officers observed and photographed pieces of clothing
tags, wire that appeared to be from commercial-type clothes hangers, and small pieces of
plastic that looked like melted plastic clothes-hanger clasps used by retail stores. After
obtaining a search warrant and upon entering the house, the officers found approximately 140
items of new athletic wear, jeans, caps, and athletic shoes of various sizes. Not only were
there clothing and shoes strewn about the house, there were numerous garbage bags full of
new clothes.
¶9.
In an effort to explain the copious amounts of new athletic wear, Christann testified
that her husband often brought home multiple pairs of expensive athletic shoes and/or clothes
for her and their five children, and that she had no reason to suspect that he had not
5
purchased the items. She testified that her husband was “real kindhearted and generous . .
. [and that he did not] mind helping people.” Christann testified that Gibbs spoiled her and
the children, so it was not uncommon for him to bring home six or more pairs of expensive
new tennis shoes per person, at one time. However, she also testified that she and Gibbs
were going through a divorce, in part, because he had pulled a gun on her, and she thought
he brought so many expensive new clothes home to impress her or win her back. Tucker did
not testify. At trial, Christann was still a co-defendant, and Gibbs had pled guilty to
possession of stolen goods on July 19, 2006. Aggrieved by the jury’s guilty verdict, Tucker
now appeals.
DISCUSSION
I.
WHETHER THE EVIDENCE WAS LEGALLY INSUFFICIENT TO
SUPPORT THE VERDICT OR, IN THE ALTERNATIVE, WHETHER THE
VERDICT IS AGAINST THE OVERWHELMING WEIGHT OF THE
EVIDENCE.
¶10.
Our standard of review relating to the legal sufficiency of evidence is well settled:
In reviewing whether the evidence supporting a jury verdict is legally
sufficient, this Court does not determine whether from the evidence we would
have voted to convict or acquit. Rather, we view the evidence in the light most
favorable to the prosecution and determine whether a rational juror could have
concluded beyond a reasonable doubt that all elements of the crime were
satisfied. The proper remedy for insufficient evidence is for the Court to
reverse and render.
Readus v. State, 997 So. 2d 941, 944 (¶13) (Miss. Ct. App. 2008) (internal citations omitted)
(emphasis added).
However, when reviewing whether the verdict is against the
overwhelming weight of the evidence, we sit as a hypothetical “thirteenth juror,” and “we
will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence
6
that to allow it to stand would sanction an unconscionable injustice.” Lamar v. State, 983
So. 2d 364, 367 (¶5) (Miss. Ct. App. 2008) (citing Bush v. State, 895 So. 2d 836, 844 (¶18)
(Miss. 2005)). If an appellate court disagrees with the verdict of the jury, the proper remedy
is to grant a new trial. Id. (citation omitted).
A.
¶11.
Legal Sufficiency of the Evidence
Tucker moved for a directed verdict at the close of the State’s case-in-chief and
renewed the motion after the State finally rested after rebuttal. Tucker last challenged the
legal sufficiency of the evidence when he filed a post-trial motion for a judgment
notwithstanding the verdict. “Therefore, this Court is to consider all of the evidence
presented throughout the course of the trial. ‘All evidence and inferences derived therefrom,
tending to support the verdict, must be accepted as true, while all evidence favoring the
defendant must be disregarded.’” Gibson v. State, 731 So. 2d 1087, 1092 (¶12) (Miss. 1998)
(citing Ballenger v. State, 667 So. 2d 1242, 1252 (Miss. 1995)).
¶12.
Tucker argues that “[t]his case should have never gone to the jury.” And, that “[t]here
was clearly insufficient evidence that Tucker constructively possessed any of the items
alleged to be stolen . . . or that [Tucker] knew or should have known that the items were
stolen.” Considering the evidence in the light most favorable to the State, we disagree.
¶13.
Mississippi Code Annotated section 97-17-70(1) states:
A person commits the crime of receiving stolen property if he intentionally
possesses, receives, retains or disposes of stolen property knowing that it has
been stolen or having reasonable grounds to believe it has been stolen, unless
the property is possessed, received, retained or disposed of with intent to
restore it to the owner.
(Emphasis added). Tucker argues that the State failed to meet its burden to prove that he
7
constructively possessed stolen items because the State did not prove that he exercised
dominion or control over the items. With regard to constructive possession, the supreme
court has recognized that: “What constitutes a sufficient external relationship between the
defendant and the . . . property to complete the concept of ‘possession’ is a question which
is not susceptible of a specific rule.” Curry v. State, 249 So. 2d 414, 416 (Miss. 1971).
¶14.
However, the following must be established:
[T]here must be sufficient facts to warrant a finding that [the] defendant was
aware of the presence and character of the particular substance [or property]
and was intentionally and consciously in possession of it. It need not be actual
physical possession. Constructive possession may be shown by establishing
that the [property or item] involved was subject to his dominion or control.
Proximity is usually an essential element, but by itself [it] is not adequate in
the absence of other incriminating circumstances.
Id. In other words, “the State must show incriminating circumstances, in addition to
proximity, in order to prove constructive possession.” Cheatham v. State, 12 So. 3d 598,
601 (¶7) (Miss. Ct. App. 2009) (citing Fultz v. State, 573 So. 2d 689, 690 (Miss. 1990)).
¶15.
Tucker relies on the fact that he did not own the house or shed that he was living in,
and he had only lived there a few days before the stolen athletic wear was discovered. This
argument is unavailing, as ownership of residential property or one’s length of stay is not
outcome determinative in the legal sufficiency of evidence; it is simply a factor for
consideration.
¶16.
Tucker previously had told Hancock, his parole officer, that he lived in the shed, and
it was evident that someone had been occupying the shed. Also, Tucker’s packed duffle bag
was located in the shed. The shed, as well as the house, contained numerous items that were
shown to have been stolen from Foot Gear. Although Christann testified that Tucker was
8
occupying the living room of the house, she stated that Tucker did not have a key to the
residence; she said that he could not come and go from the home at will. From the evidence
presented, one could reasonably conclude that Tucker was primarily occupying the shed, but
he had access to the home as well.3 Even if Tucker were sleeping in the living room of the
house, there were numerous stolen items in the living room and throughout the house in close
proximity to Tucker, Christann, and Gibbs.
¶17.
In addition to the evidence of Tucker’s living arrangements, remains of charred
clothing tags and burned retail-type clothes hangers were also located on the premises.
Additionally, the anonymous informant reported that Tucker had robbed Foot Gear and had
hidden the stolen merchandise in the yellow shed and house located at 1892 Matthews Gin
Road, where Tucker and the items were found. Most condemning, Hancock testified that
Tucker told him that he had received the stolen items from two guys in a white van. This
was in contradiction to Christann’s later testimony that her husband had given Tucker the
items as a gift.
¶18.
Considering the facts in the light most favorable to the prosecution, the record
indicates that the State presented ample evidence of “incriminating circumstances” other than
proximity to support a finding that Tucker intentionally possessed, received, retained, or
disposed of stolen property knowing that it had been stolen or having reasonable grounds to
believe it had been stolen. This issue is without merit.
B.
Overwhelming Weight of the Evidence
3
Testimony was given that established that the shed did not have plumbing or
running water.
9
¶19.
Tucker argues that the overwhelming weight of the evidence is against the verdict, and
that the State failed to prove that Tucker exercised dominion or control over the stolen items,
used the items, or intended to convert the items for personal use. Tucker asserts that the
“only evidence of any guilty knowledge came from Johnny Hancock, who testified [that]
Tucker told him he [had] received the property from two guys in a van.” This assertion is
inadequate to prove that the weight of the evidence is against the verdict.
¶20.
Tucker correctly recognizes Thompson v. State, 457 So. 2d 953, 956 (Miss. 1984) for
the principle that mere possession without any indication of guilty knowledge is insufficient
to uphold a conviction of receiving stolen goods. The evidence presented to the jury in
Thompson was minimal when compared to the evidence presented to the jury in the instant
case. And, contrary to Tucker’s argument, “[a] conviction may be had on circumstantial
evidence alone.” Tolbert v. State, 407 So. 2d 815, 820 (Miss. 1981) (citation omitted). This
is true because “[c]ircumstantial evidence need not exclude every possible doubt but only
every reasonable doubt, or reasonable hypothesis of innocence.” Id. (citation omitted).
¶21.
In Thompson, a set of silverware had been stolen from a residence and found its way
to Charles Thompson’s possession. Thompson, 457 So. 2d at 955. Thompson admitted
purchasing the silverware and sending it to a mint, but he denied knowing that it was stolen.
Id. The only evidence that the State presented was a postal receipt, memorializing the
shipment of the silver to a mint, which was found in Thompson’s rented storage building
inside a stereo equipment box, that was shown to be property of Rose’s Department Store.
Id. In Thompson, the fact that the stereo equipment was stolen was not presented to the jury
because it was excluded, and the State presented no evidence other than the shipping receipt
10
to show that Thompson must have known that the items were stolen. Id. The supreme court
found that argument to be tenuous, and it held the State had presented no proof that
Thompson knew the items were stolen; the supreme court went on to opine that guilty
knowledge was the essence of the crime. Id. at 955-56.
¶22.
Returning to the instant case, a review of the record reveals that the circumstantial
evidence presented weighed heavily against a reasonable hypothesis of innocence. We will
not reiterate the numerous facts stated above, but suffice it to say, there was substantially
more evidence presented to the jury than a lone receipt found in a storage building. The
weight of the evidence established that a reasonable person could have concluded that Tucker
knew or should have known that the items were stolen when “two guys in a white van”
appeared to give away hundreds, and possibly thousands, of dollars’ worth of new athletic
wear.4 Other than Christann’s conflicting testimony, Tucker has presented no evidence that
Hancock was inaccurate or dishonest in his account of Tucker’s admission. When presented
with conflicting testimony, it is for the jury to weigh the credibility of the witnesses, as well
as the evidence. Nix v. State, 8 So. 3d 141, 146 (¶26) (Miss. 2009) (citation omitted). If the
means by which Tucker said he had received the stolen items were not enough to deduce
guilty knowledge, the removal and burning of the clothing tags and retail-type clothes
hangers were also indicative of guilty knowledge. Contrary to Tucker’s assertion, there was
more presented to the jury than hearsay testimony of an anonymous informant that Tucker
4
Tucker has made no assertion that he purchased the items, and it was established
at trial that he did not have a job. Also, Christann testified that her husband and another
relative gave Tucker clothing because Tucker had so few possessions.
11
was in possession of the stolen merchandise, and we hold that the verdict reached by the jury
is consistent with the weight of the evidence presented by the State in the instant action.
Accordingly, this issue is without merit.
II.
¶23.
WHETHER TUCKER WAS IMPROPERLY CHARGED BECAUSE
THE STATE’S THEORY OF THE CASE WAS THAT TUCKER
ACTUALLY STOLE THE PROPERTY.
In what seems rather contradictory to his claim of innocence and ignorance, Tucker
relies on Hentz v. State, 489 So. 2d 1386, 1389 (Miss. 1986) for this issue asserting that,
where a defendant is charged with receiving stolen goods and the evidence shows that he is
guilty of the larceny of the goods in question, he cannot be convicted of possession of stolen
property. Tucker is correct in his understanding of Hentz. The supreme court stated:
It is elementary law that one who steals property cannot be convicted of
receiving, concealing or aiding in concealing the property stolen. The statutes
making the receiving of stolen goods a substantive offense are not intended to
punish the thief by way of a double penalty but are directed against those who
would make theft easy or profitable. Nor can one who has stolen property
jointly with another, that is to say, who jointly with another takes part in the
caption and asport[a]ta[t]ion of the property, be convicted of receiving stolen
property . . . .
Id. (quoting Thomas v. State, 205 Miss. 653, 39 So. 2d 272, 273 (1949)). However, Tucker
does not fully address the significant differences presented in Hentz and the instant case.
¶24.
In Hentz, a case which involved the theft of a combine and its subsequent destruction,
the State failed to furnish discovery to the defense that may have proven that Larry Hentz
was guilty of the actual theft, rather than the crime he was charged with, which was
possession of stolen goods. Id. at 1388. Such evidence would have provided Hentz with a
complete defense to the crime of possession of stolen goods. Id. The State claimed that it
12
did not furnish the evidence to the defense because it did not think the evidence was
exculpatory. Id. However, at trial, the State presented evidence that Hentz, in his own truck,
took an accomplice to the place where the combine was located; he was present, aiding,
abetting, and participating in the theft of the combine; and Hentz arranged for the destruction
of the combine in order to remove it from his father’s property. Id. at 1389. Unlike Hentz,
no testimony or evidence established that Tucker was present at the scene of the burglary.
¶25.
As discussed, Tucker initially told Hancock the merchandise found in the shed was
not stolen, and that he had gotten it from two guys in a white van. However, he discarded
that reason, and at trial, he argued Gibbs must have bought or somehow acquired the items.
He asserted that they were simply a gift to him. In response, the State was allowed to present
evidence that the items were stolen from Foot Gear, and that Tucker knew or should have
known that he was in possession of stolen merchandise. It was made clear to the jury,
through the trial judge’s statements, that Tucker was on trial for possession of stolen goods,
not burglary. Furthermore, testimony was given that the police had recovered no fingerprints
or leads about the burglary until the anonymous informant contacted the police. Other than
the State’s remarks, during its closing argument, that “they” robbed the store or that it was
an “ex-con” or “professional” job, the State offered no proof that Tucker was involved in the
actual burglary. The remarks were defused when the trial judge stated, “[t]he jury is allowed
to draw reasonable inferences from the evidence.
burglary.” 5
(Emphasis added).
The defendant is not on trial for
Although the aftermath of the burglary and some
surrounding events were described, the record reflects that the State presented a case against
5
The objection in reference to the “ex-con” statement was sustained.
13
Tucker for possession of stolen property, for which he was charged. And, unlike in Hentz,
there is no indication in the record that any discovery, prior to trial, was withheld from
Tucker. This issue is without merit.
III.
¶26.
WHETHER THE INDICTMENT WAS INSUFFICIENT TO
CHARGE THE CRIME FOR WHICH TUCKER WAS CONVICTED.
Although Tucker did not raise this issue at trial, “substantive challenges to the
sufficiency of the indictment are not waivable and may be raised for the first time on appeal.”
Havard v. State, 928 So. 2d 771, 801 (¶59) (Miss. 2006) (citation omitted). Tucker claims
that the indictment in the instant case “clearly had a substantive defect in failing to
sufficiently identify the stolen property [he] was alleged to constructively possess.” We
disagree.
¶27.
The determination of whether an indictment is fatally defective is a question of law
and warrants a broad standard of review by this Court. Nguyen v. State, 761 So. 2d 873, 874
(¶3) (Miss. 2000) (citation omitted). Therefore, as a question of law, the standard of review
is de novo. Jones v. State, 993 So. 2d 386, 394 (¶19) (Miss. Ct. App. 2008) (citation
omitted). The purpose of an indictment is “to inform the defendant with some measure of
certainty as to the nature of the charges brought against him so that he may have a reasonable
opportunity to prepare an effective defense . . . .” Moses v. State, 795 So. 2d 569, 571 (¶13)
(Miss. Ct. App. 2001).
¶28.
Rule 7.06 of the Uniform Circuit and County Court Rules,6 provides the framework
for a proper indictment, and it states the following:
6
Formerly Rule 2.05 of Uniform Rules of Circuit Court Practice.
14
The indictment upon which the defendant is to be tried shall be a plain, concise
and definite written statement of the essential facts constituting the offense
charged and shall fully notify the defendant of the nature and cause of the
accusation. Formal and technical words are not necessary in an indictment, if
the offense can be substantially described without them. An indictment shall
also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and
by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is
brought;
5. The date and, if applicable, the time at which the offense was
alleged to have been committed. Failure to state the correct date
shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”
The court on motion of the defendant may strike from the indictment any
surplusage, including unnecessary allegations or aliases.
[Adopted effective May 1, 1995; amended August 26, 1999.]
We now consider the indictment in the instant case. It included the following:
ANTHONY TUCKER . . . on or about the 18th day of October, 2005, in the
County aforesaid, did unlawfully, wilfully, and feloniously, receive or possess
the personal property of Haresh Khiatani d.b.a. Foot Gear, to-wit: athletic
apparel, said property having a total value in excess of $500.00, and having
been feloniously taken away from the said Haresh Khiatani d.b.a. Foot Gear,
and further that the said ANTHONY TUCKER knew or should have known
at the time of the receiving or possessing of said property that said property
had been so feloniously taken, in violation of MCA § 97-17-70; contrary to the
form of the statutes in such cases made and provided, and against the peace
and dignity of the State of Mississippi.
15
¶29.
Tucker’s indictment included the seven formal requirements stated above. It appears
that Tucker takes issue with the fact that he was indicted for possessing “athletic apparel .
. . having a total value in excess of $500.00" instead of individually-listed items of apparel.
He claims that because there was “property recovered in all of the different areas of James
Gibb’s property, this [description] was insufficient.” Tucker relies heavily upon Nguyen for
support of his argument related to this issue.
¶30.
In Nguyen, the supreme court found an indictment, which stated that Khang Son
Nguyen and Thi Mai Le (Nguyen appellants) were charged with receiving or possessing
“114 items, including . . .,” was insufficient. Nguyen, 761 So. 2d at 877 (¶12). The supreme
court stated that since the indictment said “including” rather than “comprised of,” there
could have been other items that the Nguyen appellants could have been accused of
receiving, which were not included in the indictment. Id. Also, and even more significant,
the supreme court found that the indictment was insufficient because the stolen property was
made up of six different categories or classifications of goods. Id.7 That is not true in the
7
In Nguyen, the supreme court discussed previous cases wherein the property
description in an indictment was found to be sufficient. The supreme court stated:
This Court summarized from earlier cases . . . that “a diamond ring,” “one
mule and one horse,” and “one suit of clothes” have been a sufficient
description of the property at issue, even though a more particular description
of each might have been possible. A description of a “neat calf” has been
found sufficient. A description of “110 pounds of dairy feed,” along with the
value of the feed has been found sufficient. An indictment alleging the theft
of “two Chevrolet motors (less head) and one Plymouth Motor (with head)”
has been found sufficient. A description of “six sacks of ammonium nitrate”
has also been found sufficient.
Nguyen, 761 So. 2d at 876 (¶11) (internal citations omitted).
16
instant case.
¶31.
Despite Tucker’s assertion that we “would be hard-pressed to find a citizen in
[Mississippi] to agree that a[n] Ole Miss sweatshirt is identical to a Mississippi State or
Jackson State sweatshirt[,]” we think that all would agree they, nonetheless, both are
sweatshirts. And as such, both sweatshirts would be considered athletic wear, regardless of
what institution they may promote. Likewise, items such as caps, shirts, tennis shoes, and
jeans are also distinguishable as athletic wear. Unlike the appellants in Nguyen, Tucker was
not convicted of possessing various classes of items for which he was not indicted. Rather,
he was charged with and convicted of possessing only one class of stolen property– athletic
apparel.8
¶32.
Specifically, Tucker was indicted for receiving or possessing athletic wear, which
was stolen from Foot Gear and exceeded a value of over $500, and that is exactly what he
was convicted of. It is of no instance that the indictment did not list each individual cap,
sweatshirt, pair of tennis shoes, etc. The purpose of an indictment is “to inform the defendant
with some measure of certainty as to the nature of the charges brought against him so that he
may have a reasonable opportunity to prepare an effective defense.” Moses, 795 So. 2d at
571 (¶13). In our judgment, the indictment was sufficient to inform Tucker as to the charges
he was facing such that he had a fair opportunity to prepare a defense. Accordingly, this
issue is without merit.
IV.
WHETHER THE TRIAL JUDGE ERRED IN GRANTING AND
REFUSING CERTAIN JURY INSTRUCTIONS.
8
There were some non-clothing items taken from the house, but they were returned
when it was determined that the items did not belong to Foot Gear.
17
¶33.
Tucker argues that he was refused an instruction that allowed him the opportunity to
present his theory of the case. In addition, Tucker contends that the instructions received by
the jury were “hopelessly confusing and conflicting.” Jury instructions are to be given or
refused based upon the following guidelines:
Jury instructions are to be read together and taken as a whole with no one
instruction taken out of context. A defendant is entitled to have jury
instructions given which present his theory of the case; however, this
entitlement is limited in that the court may refuse an instruction which
incorrectly states the law, is covered fairly elsewhere in the instructions, or is
without foundation in the evidence.
Goff v State, 14 So. 3d 625, 663 (¶163) (Miss. 2009) (citation omitted). Tucker argues that
the State presented an elements instruction which did not specify which items it alleged
Tucker possessed, and the State failed to prove the items came from Foot Gear or exceeded
$500. We disagree. Submitted jury instruction S-2 states:
The [c]ourt instructs the [j]ury that if you find from the evidence in this case
beyond a reasonable [doubt] that the Defendant, Anthony Tucker, alone or
with another or others, did on or about October 18, 2005, unlawfully, willfully,
and feloniously, possess athletic apparel which had been stolen from Footgear,
[sic] having a total value in excess of $500.00, and the Defendant knew or
should have known at the time of possessing said property that it was stolen,
then you shall find the Defendant guilty as charged of Possession of Stolen
Property. If the State has failed to prove any of these elements beyond a
reasonable doubt, then you shall find the Defendant not guilty.
¶34.
There was ample evidence presented at trial that established the athletic apparel,
which was discovered in the shed, came from Foot Gear and exceeded a value of $500.
Testimony established that the items correlated to Foot Gear’s inventory records, and the
approximate value of the various items was presented to the jury. Additionally, testimony
established that there were pairs of shoes found at the scene that matched shoe boxes that
18
were left behind at the store. As there was an evidentiary foundation, the trial court did not
err in submitting jury instruction S-2.
¶35.
Next, Tucker contends that the trial judge committed an error by submitting jury
instruction S-3 because it failed to accurately define the crime, and there was no evidence
that Tucker aided, counseled, or encouraged Gibbs in the commission of the crime of
possession of stolen property. Jury instruction S-3 states the following:
The [c]ourt instructs the [j]ury that under the laws of the State of Mississippi
anyone who aids, assists, or encourages in the commission of a crime is
deemed a principal in that crime and is just as responsible as if he had
committed the whole act with his own hand. Therefore, if you find from the
evidence in this case beyond a reasonable doubt that the Defendant, Anthony
Tucker, did aid, assist, or encourage another or others in the commission of the
crime of possession of stolen property, then the Defendant was a principal to
the possession of stolen property and is criminally responsible for that crime.
¶36.
Jury instruction S-3 is an accurate statement of law. It is well settled 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.” Swinford v. State, 653 So. 2d 912, 915 (Miss. 1995) (citation
omitted). In Swinford, the supreme court elaborated further, and stated:
Aiding and abetting is defined to be “the offense committed by those persons
who, although not the direct perpetrators of a crime, are yet present at its
commission, doing some act to render aid to the actual perpetrator . . . .”
And[,] such aiding and abetting may be manifested by acts, words, signs,
motions, or any conduct which unmistakably evinces a design to encourage,
incite or approve of the crime, or even by being present, with the intention of
giving assistance, if necessary, though such assistance may not be called into
requisition.
Id. (citation omitted) (emphasis added).
¶37.
The record is replete with evidence to support a conclusion that Tucker had conduct
19
which evinced a design to encourage or approve of the crime. Whether he lived in the home
where a plethora of stolen items were strewn about, or whether he lived in the shed and had
received the items from two guys in a white van, there was a sufficient evidentiary
foundation presented such that the instruction could be given to the jury. We find no error
in the trial judge’s decision to submit jury instruction S-3.
¶38.
Next, Tucker argues that the trial judge improperly denied jury instructions D-2A and
D-3. Instruction D-2A states in relevant part: “If the State fails to prove beyond a reasonable
doubt that the property in question was not given to Anthony Tucker as a gift and that he
knew or had reasonable grounds to believe it was stolen then you should find the Defendant
not guilty.” And, instruction D-3 states: “The [c]ourt instructs that if the accused, Anthony
Tucker, was at the time of the offense ignorant to the fact the property in question was
stolen[,] then Anthony Tucker can not be found guilty of the offense of [r]eceiving or
[p]ossession [sic] [s]tolen [p]roperty.”
¶39.
It is obvious these instructions address the State’s burden to prove that Tucker knew
or had reason to know that the items were stolen. As shown in jury instruction S-2 supra,
other instructions informed the jury of the State’s burden and what it had to prove to justify
a guilty verdict. When read as a whole, the proffered jury instructions were repetitious.
Therefore, we find the trial judge did not err in refusing instructions D-2A and D-3.
¶40.
Finally, Tucker contends that it was error to grant instruction S-4, which states:
The [c]ourt instructs the [j]ury that possession as used in these instructions
does not mean exclusive possession, or exclusive dominion and control. Two
or more people maybe [sic] in possession of the same property at the same
time if that property is subject to their dominion and control, no matter how
fleeting the possession, or how slight the dominion and control.
20
Tucker argues that this instruction is in conflict with instruction D-1, which was given; and
therefore, Tucker contends that this caused the jury instructions, when read as a whole, to be
confusing to the jury. It appears that Tucker argues that instruction D-1 describes possession
over individual items rather than any, or all, of the property stolen from Foot Gear. Even a
cursory reading of the two instructions reveals that this argument is flawed.
¶41.
Instruction D-1 states: “The [c]ourt instructs the jury that to constitute possession,
there must be sufficient facts to warrant a finding that Anthony Tucker exercised custody or
control of the particular property and was intentionally and consciously in possession of it.”
When read as a whole, it is clear that the “particular property” described in instruction D-1
is the same “property” described in jury instruction S-2 supra, which was described as
athletic apparel stolen from Foot Gear exceeding a value of $500.
¶42.
Tucker also takes issue with the instruction’s wording related to the duration of
possession: specifically, the words “fleeting” and “slight.” This argument is unpersuasive.
The supreme court has held that: “In our state to be found guilty of receiving stolen
property[,] the [S]tate must prove that the accused had control or dominion over the custody
of the goods. [But,] [t]his dominion or control, however, may be brief and temporary.”
Lewis v. State, 573 So. 2d 713, 714 (Miss. 1990) (internal citation omitted) (emphasis added).
The jury instructions accurately reflected the law and clearly informed the jury, and when
read as a whole, the instructions were not conflicting or confusing. Therefore, this issue is
without merit.
V.
WHETHER THE TRIAL JUDGE ERRED IN FAILING TO SUSTAIN
A DEFENSE OBJECTION DURING THE STATE’S CLOSING
ARGUMENT.
21
¶43.
As discussed during its closing argument, counsel for the State speculated that Foot
Gear had been burglarized by more than one individual, using the term “they” several times.
The State also referred to the burglary as an “ex-con” job. The defense objected arguing that
the State had not presented any evidence as to whom “they” may have been, and the defense
also objected to any reference to an “ex-con job” arguing that the State was trying to
persuade the jury that Tucker had committed the burglary. The trial judge overruled the
objection as to the statements relating to the burglary and sustained the objection as to the
“ex-con” statements. The judge explained that the jury was allowed to draw reasonable
inferences from the evidence presented. The trial judge was correct.
¶44.
The supreme court has stated that:
Attorneys are allowed a wide latitude in arguing their cases to the jury.
However, prosecutors are not permitted to use tactics which are inflammatory,
highly prejudicial, or reasonably calculated to unduly influence the jury. The
standard of review that appellate courts must apply to lawyer misconduct
during opening statements or closing arguments is whether the natural and
probable effect of the improper argument is to create unjust prejudice against
the accused so as to result in a decision influenced by the prejudice so created.
In closing argument, that wide latitude extends not only to the facts presented
in evidence, but also to deduction and conclusions he may reasonably draw
therefrom, and the application of the law to the facts. However, arguing
statements of fact which are not in evidence or necessarily inferable from facts
in evidence is error when those statements are prejudicial.
Dampier v. State, 973 So. 2d 221, 235-36 (¶39) (Miss. 2008) (internal citations and
quotations omitted). This Court must first determine whether the individual comments
constituted “improper argument,” and if so, we must then determine whether the “improper
argument” created “unjust prejudice.” Id. at 236 (¶40) (citation omitted). As illustrated
above, Tucker’s sole defense was ignorance that the items were stolen. With that defense
22
in mind, we consider the disputed statement and determine whether it was improper:
Ladies and gentlemen, does this look like a professional person’s job or like
a bunch of 20 year olds going and smashing the window and just grabbing
some stuff and running? You know what it looks like. You can tell what it
looks like. And, ladies and gentlemen, if you believe anything that Ms. Gibbs
said, that stuff appeared at her house the very next morning[,] . . . you tell me
who you think knew stuff was stolen at that house[.]
¶45.
We find that the statement was not an improper argument, and it was reasonable for
the State to theorize about how the items were stolen and present that theory in an effort to
refute Tucker’s claimed ignorance. The nature of the burglary and the experience of those
who committed it were inferable from the evidence presented. Furthermore, we find that the
statements did not result in unjust prejudice to Tucker given that the trial judge distinctly
stated that Tucker was not on trial for burglary. There can be no doubt that the jury was
aware that they were not being asked to determine whether Tucker committed the burglary.
Rather, the record indicates that they would have been aware that they were to determine
whether Tucker knew or should have known that the numerous items found in the shed and
house where he was living were stolen.
¶46.
Considering the wide latitude given to an attorney when arguing his or her case to a
jury and applying the two-part standard set forth in Dampier, we find the State’s argument
was not out of bounds for a closing argument, so there is no plain error to be found. Id.
(citation omitted). Accordingly, this issue is without merit.
VI.
¶47.
WHETHER TUCKER WAS
ASSISTANCE OF COUNSEL.
DEPRIVED
OF
EFFECTIVE
Tucker contends that his trial counsel was deficient and committed numerous errors
throughout the trial. Tucker asserts six reasons that his defense counsel’s performance
23
should be considered ineffective: (1) counsel failed to make objections as the State extracted
hearsay testimony from State witnesses related to the anonymous tip that Tucker had broken
into Foot Gear and was hiding the stolen merchandise in a house and yellow shed located at
1893 Matthews Gin Road; (2) counsel was ineffective for failing to prevent the State from
eliciting testimony that he was on parole; (3) counsel should not have questioned Hancock
about other bad acts allegedly committed by Tucker, namely complaints, in the form of
signed affidavits, by Tucker’s ex-wife alleging that Tucker threatened and harassed her; (4)
counsel failed to object to the indictment as it was insufficient to allege what items Tucker
was supposed to have constructively possessed; (5) counsel submitted an incomplete jury
instruction on constructive possession, and the jury instructions were confusing and
contradictory; and (6) counsel failed to request the jury be admonished to disregard
statements made by the State during closing arguments referring to “ex-cons” and “they”
committing the burglary, as well as not requesting a mistrial.
¶48.
The case of Read v. State, 430 So. 2d 832, 841 (Miss. 1983), established that a
convicted criminal is permitted to raise the issue of ineffective assistance of counsel on direct
appeal, even if the matter has not been presented to the trial court. When the issue is raised,
this Court's review is strictly limited to a review of the appellate record. Id. We may
determine the merits of a claim of ineffective assistance of counsel only when the record
affirmatively shows ineffectiveness of constitutional dimensions, or the parties have
stipulated that the record is adequate such that further information concerning the findings
of fact by a trial judge are not needed for appellate review. Id. If these two conditions are
not met, this Court should review the other issues in the case, and if we otherwise affirm the
24
conviction, we should do so without prejudice so the defendant may raise the issue of
ineffective assistance of counsel through appropriate post-conviction-proceedings. Id.
¶49.
After reviewing the record, we do not find that the record affirmatively shows
ineffectiveness of constitutional dimensions, and the parties have not stipulated that the
record is adequate such that we can adequately weigh the trial judge’s findings of fact.
Therefore, we affirm Tucker’s conviction without prejudice so as to allow him to further
supplement the record with additional evidence and raise his ineffective-assistance-ofcounsel claim through appropriate post-conviction-proceedings.
VII.
¶50.
WHETHER CUMULATIVE ERRORS DEMAND A NEW TRIAL.
“This court may reverse a conviction and sentence based upon the cumulative effect
of errors that independently would not require reversal . . . . However, where there was no
reversible error in any part, so there is no reversible error to the whole.” Michael v. State,
918 So. 2d 798, 806 (¶18) (Miss. Ct. App. 2005) (citing McFee v. State, 511 So. 2d 130, 136
(Miss. 1987)). Tucker has failed to establish the existence of errors upon which a claim of
cumulative effect can be grounded. Therefore, this issue is without merit.
¶51.
Finding no reversible error in the trial below, we affirm the judgment of the circuit
court.
¶52. THE JUDGMENT OF THE CIRCUIT COURT OF CLAY COUNTY OF
CONVICTION OF POSSESSION OF STOLEN PROPERTY AND SENTENCE AS
A HABITUAL OFFENDER OF TEN YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR
PAROLE, PROBATION, OR EARLY RELEASE, AND TO PAY A FINE OF $10,000
UPON RELEASE FROM CONFINEMENT, IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO CLAY COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
25
CARLTON AND MAXWELL, JJ., CONCUR.
26
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.