Bennie Owens v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-KA-00991-COA
BENNIE OWENS
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
05/16/2000
HON. HOWARD Q. DAVIS JR.
COAHOMA COUNTY CIRCUIT COURT
DARNELL FELTON
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
LAURENCE Y. MELLEN
CRIMINAL - FELONY
BURGLARY OF A DWELLING: SENTENCED TO TEN
YEARS IN THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITH ALL TEN YEARS SUSPENDED,
FIVE YEARS SUPERVISION, AND MAKE
RESTITUTION TO VICTIM
AFFIRMED - 2/26/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
3/19/2002
BEFORE McMILLIN, C.J., BRIDGES, AND CHANDLER, JJ.
McMILLIN, C.J., FOR THE COURT:
¶1. This is an appeal by Bennie Owens from his conviction for burglary in the Circuit Court of Coahoma
County. Owens raises two issues on appeal. He first contends that the trial court erred in permitting the
victim to identify certain items recovered by law enforcement as belonging to her because a proper
predicate was not laid to support her identification. Owens bases his argument on the proposition that the
items were all mass-produced consumer items and that the State should have been required to show some
particular distinguishing characteristic of the property clearly identifying the items as those of the defendant
before permitting her to testify to ownership before the jury. Secondly, Owens claims that his sole defense
to the charge of burglary was that of alibi and the trial court improperly refused to instruct the jury on that
defense. We find no error as to either issue and, therefore, we affirm the conviction.
I.
Facts
¶2. There is no need for a lengthy recitation of the facts. It is enough to say that the State presented a
witness who claimed to have seen Owens, another individual named Jermell Victory, and an unnamed
juvenile outside Rita Ogunnubi's apartment in the early morning hours of October 8, 1999. According to this
witness, both Owens and Victory were carrying baskets apparently filled with goods, and Owens was seen
lowering a window to Ogunnubi's apartment. A police officer summoned to the scene discovered the
window was broken. Ogunnubi was out of town at the time, but upon her return she discovered several
items missing from her apartment, including a microwave, some laundry baskets, and an electronic game.
Items fitting the description provided by Ogunnubi were, according to Ogunnubi, subsequently returned to
her by the police. The prosecution offered no evidence to the jury as to how it had managed to recover
these items.
¶3. Owens was the only person to testify for the defense, and he claimed that, on the morning of the
burglary, he was asleep on the couch in another apartment in the same complex. Owens and Victory were
charged as co-indictees in the same indictment and were tried together. The jury acquitted Victory but
convicted Owens.
II.
Failure to Give Alibi Instruction
¶4. Owens did not pre-file an alibi instruction. Instead, he asked the court to consider an instruction that, on
appeal, he characterizes as a "guilt by prior association" instruction. The trial court refused that instruction.
After the court declined this instruction, defense counsel asked the court to give its "standard alibi
instruction." The trial court refused to instruct the jury on how to consider the defendant's alibi, apparently
on the sole ground that the defense "didn't put on a third person to testify as an alibi witness."
¶5. The State, in its brief, did not address the issue of the trial court's refusal to instruct the jury as to
Owens's alibi defense. Instead, the State limits itself to arguing the propriety of the trial court's refusal to give
Owens's "guilt by prior association" instruction. While we have little doubt that Owens's requested
instruction concerning guilt by association was properly refused, that is not the issue before this Court.
Furthermore, there can be no legitimate contention that Owens did not properly raise the issue of the failure
to give an alibi defense instruction. To demonstrate this fact, we quote Owens's statement of the second
issue presented in his brief. In the table of contents, Owens characterized the issue as follows:
After the Court Refused Bennie's Instruction on Association the Court Should Have Given Its
Standard Instruction on Alibi.
In his actual statement of the issues, Owens stated the issue in the following form:
Whether Reversible Error Occurred When the Evidence Supported the Giving of an Alibi Instruction
and an Alibi Instruction was Refused.
¶6. The Mississippi Supreme Court has held that, when there is evidence before the jury that would support
a defense of alibi, it is reversible error not to instruct the jury as to how the law compels the jury to consider
such evidence. Young v. State, 451 So. 2d 208, 210 (Miss. 1984). See also Sanford v. State, 372 So.
2d 276, 279 (Miss. 1979); Newton v. State, 229 Miss. 267, 274-75, 90 So. 2d 375, 378 (1956).
¶7. However, the law relating to an alibi defense involves something more than a simple denial by the
defendant that he was present at the precise time the crime was committed. Black's Law Dictionary
suggests that the defense requires evidence that the defendant's location at the relevant time was "so
removed therefrom as to render it impossible for him to be the guilty party." Black's Law Dictionary 71
(7th ed. 1999). Thus, a defendant in close enough physical proximity to have committed the crime may
deny the criminal activity and may affirmatively assert that he was elsewhere at the critical time. However, if
the asserted alternate location is such that, based on the version of events contended for by the defense, it
would remain within the realm of physical possibility for the defendant to have committed the crime, then the
defense is nothing more than a denial and would not rise to the level of alibi. It is a fundamental concept of
our system of criminal procedure that an instruction may not be given, even if it correctly recites the law, if
there is no evidentiary basis for the instruction. Hodge v. State, 801 So. 2d 762, 775 (¶42) (Miss. Ct.
App. 2001).
¶8. A defendant desiring to assert an alibi defense must, therefore, present evidence that, if found credible
by the jury, would raise a reasonable doubt as to his culpability based on notions of the physical
impossibility of having been at the crime scene during the crime's commission. In this case, Owens claimed
to be in the same apartment complex at the time the crime occurred. He offered no evidence as to the
physical distance from his alleged location to the place where the crime was committed from which the jury
could reasonably conclude that it was impossible for him to have committed the crime. Insofar as the record
revealed, it would have been entirely possible for the defendant to have temporarily left the apartment,
participated in the crime, and returned to the apartment. In this circumstance, we view Owens's testimony
indicating that he was asleep at the critical time to be nothing more than a simple denial of guilt and we do
not conclude that it presents all the necessary elements of a classic alibi defense that would have required
the trial court to instruct the jury on the issue.
III.
Insufficient Evidence of Ownership of Recovered Items
¶9. We find no error in permitting the robbery victim to identify items recovered by the police as being
those belonging to her and discovered missing after her apartment was broken into. Owens suggests that the
owner's testimony was not sufficiently probative of ownership because there was no testimony as to the
precise means by which the witness distinguished the items from what could have been items of similar
appearance but not, in fact, the items taken in the burglary. As to items such as a microwave oven, an
electronic game, and a number of baskets, this Court is satisfied that, though such items may be mass
produced under circumstances that they may render the items indistinguishable one from the next in their
original condition, once they pass into individual ownership, they may reasonably be expected to develop
characteristic marks through use and wear that would permit the owner to positively identify the particular
item. These characteristics may, in some cases, be so subtle that they do not register point by point in the
owner's consciousness but nevertheless are of sufficient strength in the aggregate to leave the owner with the
strong conviction that it is that owner's property.
¶10. We see no reasoned basis to exclude that sort of evidence or to require, as a precondition of its
admission, a recitation from the owner of those distinguishing marks and features that lead the witness to
claim ownership of the item. Certainly, testimony of ownership is not conclusive on the question, and the
defense is free, through a rigorous cross-examination, to attempt to cast doubt on the certainty of the
witness's identification of the property as her own, but that is not the same thing as excluding the evidence
altogether or creating some sort of evidentiary rule requiring that a factual predicate relating to the unique
aspects of the property necessarily precede the witness's claim of ownership.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF
CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TEN YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH ALL
TEN YEARS SUSPENDED WITH FIVE YEARS SUPERVISION AND ORDER TO MAKE
FULL RESTITUTION TO VICTIM IS AFFIRMED. SENTENCE SHALL RUN
CONSECUTIVE TO ANY AND ALL PREVIOUSLY IMPOSED SENTENCES. ALL COSTS
ARE ASSESSED TO COAHOMA COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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