Wilbert Myles v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KA-01118-COA
WILBERT MYLES
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
5/6/2002
HON. STEPHEN B. SIMPSON
HANCOCK COUNTY CIRCUIT COURT
DONALD RAFFERTY
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CONO A. CARANNA, II
CRIMINAL - FELONY
CONVICTED OF GRAND LARCENY AND
SENTENCED TO FIVE YEARS IN PRISON
WITH THREE YEARS SUSPENDED AND TWO
YEARS TO SERVE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS.
AFFIRMED - 09/16/2003
BEFORE KING, P.J., BRIDGES AND LEE, JJ.
LEE, J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1.
This case involves charges of grand larceny against Wilbert Myles, a former Mississippi State
Trooper. On January 23, 2001, Trooper Myles met with Hancock County Deputy Justice Court Clerk
Kimberly Stone at her office. Stone had three money orders for traffic fines which related to tickets Myles
had written, but did not have the original citations, so Stone asked Myles to locate copies of the citations
or fill out affidavits regarding them. Sometime after Myles left, Stone noticed that the money orders which
had been on top of her desk were missing. Myles was not authorized to remove the money orders or to
cash them.
¶2.
Bank employees from two different banks on the coast testified that Myles came in uniform in his
patrol car to the drive-up window of each of their banks and attempted to cash the money orders which
were made out to the Hancock County Justice Court. Each teller informed Myles that he could not cash
the money orders, but could only deposit them or return them to the payor to cash.
¶3.
In Myles's testimony he claimed that he mistakenly picked up the money orders with some other
papers when he left Stone's office, and that the bank employees misunderstood his questions. He explained
that he, himself, was not attempting to cash the money orders, but that he was only inquiring as to whether
the persons who drew the three money orders could cash the orders were he to return them to these
payors. All three bank employees testified that Myles asked to cash the checks personally. In the
prosecution's cross-examination, Myles revealed that he held part-time jobs in addition to his full-time job
as a state trooper. Myles objected to the relevancy of this evidence, but the prosecutor argued it was
relevant for showing intent to take the money, and the court allowed it. Myles also admitted he had
financial problems and an outstanding civil judgment owed to Donna Stockstill.
¶4.
Myles requested an instruction for petit larceny, claiming each money order was a separate
transaction, thus defeating the $250 threshold for grand larceny; the judge, however, overruled the request.
Myles also requested a jury instruction for trespass rather than larceny, claiming that he took something
without authority to do so but without intent to deprive the owner. The trial court also denied this
instruction.
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¶5.
The jury found Myles guilty of grand larceny, and he was sentenced to five years in prison with
three years suspended. His motion for judgment notwithstanding the verdict was denied, and he now
appeals to this Court. Myles raises the following issues on appeal: (1) Did the trial court err by allowing
evidence of a civil judgment against Myles? (2) Did the trial court err in refusing to grant lesser-includedoffense instructions for petit larceny and for trespass less than larceny? We review Myles's arguments on
these points but find no merit; thus, we affirm.
DISCUSSION OF THE ISSUES
I. DID THE TRIAL COURT ERR BY ALLOWING EVIDENCE OF A CIVIL
JUDGMENT AGAINST MYLES?
¶6.
Myles first argues that the court erred by allowing the prosecution to introduce evidence concerning
a civil judgment that Donna Stockstill had against him. Our standard of review concerning admissibility of
evidence is as follows:
Admissibility of evidence rests within the discretion of the trial court. However, this Court
must also determine whether the trial court employed the proper legal standards in its fact
findings governing evidence admissibility. If in fact the trial court has incorrectly perceived
the applicable legal standard in its fact findings, the Court applies a substantially broader
standard of review. However, a denial of a substantial right of the defendant must have
been affected by the court's evidentiary ruling. Furthermore, the trial court's discretion
must be exercised within the scope of the Mississippi Rules of Evidence and reversal will
be appropriate only when an abuse of discretion resulting in prejudice to the accused
occurs.
Mooneyham v. State, 842 So. 2d 579 (¶7) (Miss. Ct. App. 2002).
¶7.
Myles claims that the prosecution erred in cross-examining him concerning a judgment against him
for an unpaid promissory note he owed to Donna Stockstill. Myles argues that nothing concerning
indebtedness constitutes a crime or shows untruthfulness, which could be the proper subject of
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impeachment pursuant to Rules 608 and 609 of the Mississippi Rules of Evidence.1 The State argues that
the trial court did not admit this cross examination as character evidence, but rather admitted it as
impeachment evidence, relevant for showing possible intent.
¶8.
Myles testified that he had no intent to cash the money orders at the banks, only that his intent was
to return the money to the three persons to whom he had written the traffic tickets. The bank tellers with
whom he dealt, however, testified that Myles unequivocally attempted to cash the money orders himself.
¶9.
Rule 404(b) of the Mississippi Rules of Evidence provides an exception to the rule that evidence
of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that
he acted in conformity therewith. The exception states that such evidence may be admissible for other
purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.
¶10.
We find that Myles's indebtedness and the fact that he worked two other jobs in addition to his job
as a trooper is not a "crime" within the meaning of Rule 404(b), nor is it necessarily a "wrong" under the
rule, either. It can be considered an "act," however, and pursuant to the rule it is not admissible to prove
his character or that he acted in conformity therewith. However, pursuant to the exceptions listed in the
rule, the judge admitted evidence of Myles's indebtedness to show that his intent or motive to steal the
money orders was based on the indebtedness and apparent need for money. The judge ruled that the jury
could weigh this evidence and determine its probative value.
¶11.
Myles cites the following rule from Professor Wigmore's noted treatise on evidence law:
1
Rule 608 of the Mississippi Rules of Evidence in part concerns admission of evidence of the
witness's character concerning truthfulness or untruthfulness. Rule 609 concerns impeachment by evidence
of conviction of a crime.
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The lack of money by A might be relevant enough to show the probability of A's desiring
to commit a crime in order to obtain money. But the practical result of such a doctrine
would be to put a poor person under so much unfair suspicion and at such a relative
disadvantage that for reasons of fairness this argument has seldom been countenanced as
evidence of the graver crimes, particularly those of violence[.]
2 Wigmore, Evidence, §392 at 431 (Chadbourn rev. 1979). Myles negates to quote the paragraph which
follows the one he cited which states:
Nevertheless in cases of merely speculative crime (such as larceny or embezzlement), and
in civil cases where the issue is whether the defendant borrowed money or not, the fact
that he was in need of it at the time is decidedly relevant to show a probable desire to
obtain it and therefore a probable borrowing or purloining; and there is here not the same
objection from the standpoint of possible unfair prejudice[.]
Id. at 431. According to Wigmore, since this is a case of larceny, evidence concerning Myles's need for
money at the time of the theft is relevant. We agree and find no error in the judge's admitting this evidence.
II. DID THE TRIAL COURT ERR IN REFUSING TO GRANT LESSERINCLUDED OFFENSE INSTRUCTIONS FOR PETIT LARCENY AND FOR
TRESPASS LESS THAN LARCENY?
¶12.
Myles argues that the trial court should have granted his request for lesser-included-offense
instructions concerning petit larceny and trespass less than larceny.
This Court's standard of review in reviewing jury instructions is as follows: In determining
whether error lies in the granting or refusal of various instructions, the instructions actually
given must be read as a whole. When so read, if the instructions fairly announce the law
of the case and create no injustice, no reversible error will be found. A lesser-includedoffense instruction is required only "where a reasonable juror could not on the evidence
exclude the lesser-included offense beyond a reasonable doubt."
Tyler v. State, 784 So. 2d 972 (¶6) (Miss. Ct. App. 2001) (citations omitted).
a. Petit larceny instruction
¶13.
First, concerning petit larceny, Myles argues he is entitled to a new trial because the money orders
should not have been taken at their face values since the cases to which they pertained were never
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docketed, an accusation was never filed, and the money orders were worthless in their unendorsed
condition. Myles argued that each money order standing alone constituted one act of petit larceny, as
opposed to the grand larceny charge when the three were grouped together. The State counters that none
of the money orders were presented individually for cashing, rather Myles took them from the clerk's office
in one motion and presented them together at both banks where he attempted to cash them all at once.
¶14.
The court denied Myles's request for an instruction on petit larceny finding that the evidence clearly
showed that Myles removed the money orders from the justice court not on separate occasions, but in a
singular act, and that he unequivocally presented all three orders at once for cashing at the banks. The
evidence in this regard was overwhelming, and pursuant to the rule from Tyler, we find a lesser-includedoffense instruction on petit larceny was not in order based on this evidence.
b. Trespass instruction
¶15.
Myles also argues he was due a lesser-included-offense instruction on trespass less than larceny.
Myles claims that since the checks were never endorsed, the State failed to prove that he actually stole
them and intended to cash them. Myles claims the tellers' testimony showed that Myles only asked them
how to return the money orders to the purchasers so they could cash them. However, the record reveals
that all three bank employees testified that Myles presented the money orders and asked if he could cash
them because those people owed him money. We, again, look to caselaw for rules concerning lesserincluded-offense instructions:
It is well settled that a lesser-included-offense instruction should be given unless the trial
judge determines, by looking at the evidence in the light most favorable to the accused, and
considering all reasonable favorable inferences which may be drawn in favor of the
accused from the evidence, that no reasonable jury could find the defendant guilty of the
lesser-included-offense, and ultimately not guilty of at least one element of the principal
charge. Whether the lesser- included-offense instruction is allowed also turns on whether
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there is an evidentiary basis for it. There must be some evidence to support the
lesser-included-offense.
Odom v. State, 767 So. 2d 242 (¶11) (Miss. Ct. App. 2000) (citations omitted).
¶16.
Evidence in favor of Myles consisted solely of his own contention concerning how he got the money
orders and what he attempted to do with them after he discovered them in his possession. Countering his
testimony, however, was the following testimony: Deputy Clerk Kimberly Stone stated that although
officers were not authorized to remove money orders from her desk, Myles did take the three money
orders; Hancock Bank Teller Lorraine Ladner at the Waveland branch testified that Myles approached
her drive-up window and asked her to cash the three money orders, which she would not allow pursuant
to her supervisor's direction; Hancock Bank Teller Rebecca Necaise at the Bay St. Louis branch testified
that Myles also approached her drive-up window and asked her to cash the three money orders, which
she would not allow; and Hancock Bank Manager Miranda Bosarge, also at the Bay St. Louis branch,
testified that she heard Myles ask Necaise to cash the three money orders for him and Necaise denied the
request, which was in accordance with their banking policy. Further, although Myles claims that he
attempted to cash the money orders because those persons owed him the money in return for favors he did
for them, all three persons who purchased the money orders testified that they did not personally know
Myles, nor did he owe them any favors nor they, him.
¶17.
Myles requested a lesser-included-offense instruction of trespass, claiming that he mistakenly
picked up the money orders from the clerk's desk and later when he discovered he had done so, he went
to the banks to attempt to cash the orders and return them to the persons who had purchased them.
However, all evidence points to the contrary. A lesser-included-offense instruction is appropriate only
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when there is an evidentiary basis for it. Odom, 767 at (¶11). Here, such did not exist and we find the
judge did not err in refusing the requested instruction.
¶18. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT OF
CONVICTION OF GRAND LARCENY AND SENTENCE OF FIVE YEARS IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITH THREE
YEARS SUSPENDED, AND THREE YEARS' PROBATION IS AFFIRMED. COSTS OF THIS
APPEAL ARE ASSESSED TO THE APPELLANT.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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