Travis S. Grimes v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-KA-01592-COA
TRAVIS S. GRIMES A/K/A TRAVIS SENTELL
GRIMES
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
04/17/2003
HON. FORREST A. JOHNSON, JR.
ADAMS COUNTY CIRCUIT COURT
JOSIE MAYFIELD HUDSON
GEORGE F. WEST
MAURICE L. TYLER
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
RONNIE LEE HARPER
CRIMINAL - FELONY
BURGLARY OF A DWELLING HOUSE:
SENTENCED TO SERVE A TERM OF TWENTYFIVE YEARS IN THE CUSTODY OF MDOC.
AFFIRMED: 1/25/2005
BEFORE KING, C.J., CHANDLER AND ISHEE, JJ.
KING, C.J., FOR THE COURT:
¶1.
Travis Grimes was convicted of burglary in the Circuit Court of Adams County, Mississippi. He
was sentenced to a term of twenty-five years in the custody of the Mississippi Department of Corrections,
and ordered to pay all court costs. Aggrieved by his conviction and sentence, Grimes has appealed and
raised the following issues which we cite verbatim:
I. Whether the trial court violated appellant's Eighth Amendment rights and due process rights by
sentencing him to the maximum penalty allowable under Mississippi law, without, inter alia, ordering a
presentencing investigative report ("PSI")[.]
II. Whether the trial court erred in not granting appellant's motion for a directed verdict[.]
III. Whether the testimony of James Calhoun, a co-conspirator, was sufficiently corroborated so as to
justify a guilty verdict in this case[.]
IV. Whether a new trial should be granted since the State failed to exclude every reasonable hypothesis
of innocence[.]
V. Whether the trial court committed plain error by not issuing a cautionary instruction concerning
accomplice testimony[.]
FACTS
¶2.
On July 17, 2002, Officer Darian Smithof the Adams County Sheriff's Department was dispatched
to 111 Redbud Lane in Adams County in response to an activated home security alarm. Gladys Lewis
resided at the address. During the investigation, Officer Smith observed that the back door of Lewis' house
had been kicked open. He noted that the door frame had been broken and a shoe print was located on
the door. Upon entering the house, Officer Smith noticed that the telephone line had been pulled out of the
wall.
¶3.
Lewis told the officer that the sound of the house alarm awakened her. As she walked down the
hall, she bumped into someone and noticed that her back door was open. That someone, whom she could
not identify, hit her over the head several times with a heavy object, and repeatedly demanded money.
Lewis indicated that the robbers had taken approximately $5,000. She also stated that there were two
persons in the house but that she could not see their faces. Lewis indicated that her door was locked prior
to going to sleep.
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¶4.
After obtaining information from Lewis regarding the incident, Officer Smith and other law
enforcement officers began to look for possible suspects. Officer James Pace of the Adams County
Sheriff's Department took photographs of Lewis' house after the incident.
¶5.
During the investigation of the crime scene, Officer Smith noticed a burgundy colored truck which
he had seen earlier when responding to the call at Lewis' house. After seeing the truck again, Officer Smith
asked Officer Marshall Washington to call in the vehicle license plate. This check of the license plate
revealed that the truck belonged to a Joseph Holleman from New Orleans, Louisiana, who had been
reported as missing. The officers took the two persons in the vehicle into custody for questioning regarding
the missing person. The persons taken into custody were identified as Okanlawan Norbet and Chivas
McElven, both residents of New Orleans.
¶6.
Smith and two other officers drove to an address on a street, very close to where the incident
occurred. These officers heard someone running through a wooded area behind the house. The officers
searched the area and located an individual who was later identified as James Calhoun. Calhoun was also
taken into custody.
¶7.
At trial, Norbet testified that along with Grimes, McElven, and Calhoun, he had come to Natchez,
Mississippi, to rob an individual named Tyrone Carter. McElven also testified that when they discovered
Tyrone Carter was in jail, the four of them decided to rob his girlfriend, Lewis. Norbet stated that he and
McElven served as "lookouts," while Grimes and Calhoun went inside Lewis' house. McElven indicated
that as Grimes got out of the vehicle to enter Lewis’ house, he retrieved a handgun out of the vehicle.
¶8.
Ryan Marvel, Calhoun's cousin, testified that Calhoun and Grimes came to his house on July 17,
2002, looking for another individual. Marvel stated that Grimes mentioned that Grimes and Calhoun had
"kicked in the girl's door."
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¶9.
On March 25, 2003, Grimes was found guilty of burglary of a dwelling and found not guilty of
armed robbery. He was sentenced to a term of twenty-five years in the custody of the Mississippi
Department of Corrections.
ISSUES AND ANALYSIS
I.
Whether the trial court violated appellant's Eighth Amendment rights and due process
rights by sentencing him to the maximum penalty allowable under Mississippi law, without, inter
alia, ordering a presentencing investigative report ("PSI").
¶10.
Grimes contends that his twenty-five year sentence was so unduly harsh and excessive as to violate
his Eighth Amendment protection against cruel and unusual punishment. He claims that the trial court failed
to state why the maximum penalty was appropriate.
¶11.
Upon receiving the guilty verdict, the trial court indicated that a presentence investigation was
unnecessary because it had already heard "extensive evidence" through the testimony presented.
¶12.
During the sentencing hearing, the court noted that the testimony of the co-defendants showed this
was a very serious matter. The co-defendants stated that they (1) traveled from New Orleans to commit
the crime, (2) broke into an occupied dwelling, and (3) were armed. After consideration of the evidence,
the trial judge imposed the maximum penalty for burglary.
¶13.
Generally, a sentence that is within the range allowed by statute will not be disturbed on appeal.
Stromas v. State, 618 So. 2d 116, 122 (Miss. 1993). "However, where a sentence is 'grossly
disproportionate' to the crime committed, the sentence is subject to attack on the grounds that it violates
the Eighth Amendment prohibition of cruel and unusual punishment."Id. In this case, the sentence was not
grossly disproportionate. It fell within the limits set by the legislature for this offense. The judge determined
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that the circumstances of the offense supported a penalty on the high end. This Court cannot say that
finding was an abuse of discretion.
¶14.
Grimes has questioned the failure of the trial court to require a presentence report. A presentence
investigation is not mandatory prior to the trial court's determination of a defendant's sentence. McCray
v. State, 785 So. 2d 1079 (¶11) (Miss. Ct. App. 2001). Therefore, this Court finds the issue to be
without merit.
II.
Whether the trial court erred in not granting appellant's motion for a directed verdict.
¶15.
Grimes asserts that his motion for a directed verdict should have been granted. He claims there
was no physical evidence which linked him to the burglary, nor could Lewis identify him as the person who
entered her home.
¶16.
In reviewing the denial of a motion for a directed verdict, this Court adheres to the following:
Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to
direct that the defendant be discharged short of a conclusion on our part that given the
evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror
could find beyond a reasonable doubt that the defendant was guilty.
Conners v. State, 822 So. 2d 290 (¶6) (Miss. Ct. App. 2001).
¶17.
In this case, the State presented eyewitness testimony from the co-conspirators, who identified
Grimes as having broken into Lewis' home. "Matters regarding the weight and credibility to be accorded
the evidence are to be resolved by the jury." Finley v. State, 725 So. 2d 226 (¶32) (Miss. 1998). In this
instance, the jury resolved the question of weight and credibility in favor of the co-conspirators.
¶18.
Having reviewed the record, this Court finds that the testimony provided by the co-conspirators
was sufficient for the court to deny a motion for a directed verdict.
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III.
Whether the trial court erred in failing to grant a motion for a new trial.
¶19.
Grimes alleges error in the failure of the trial court to grant his motion for a new trial. Grimes filed
a very succinct motion for a new trial which read: “NOW INTO COURT, through undersigned counsel,
comes MR. TRAVIS GRIMES, who hereby requests new trial based on the following: 1. The verdict in
this case was contrary to the law and evidence. 2. The admission of certain pieces of evidence, over
defense’s objection(s), resulted in prejudicial error to Mr. Travis Grimes. 3. WHEREFORE, mover herein
prays that this motion be granted.” The record before us does not reflect any oral argument on this motion.
¶20.
The trial court’s denial of Grimes’ motion for a new trial was equally succinct saying: “IT IS
HEREBY ORDERED that Mr. Grimes’ Motion for a New Trial is hereby denied.” In the brief filed with
this Court, Grimes now argues that his motion for a new trial should have been sustained because the
testimony of James Calhoun was not sufficiently corroborated to sustain a guilty verdict.
¶21.
Grimes was obligated to fully place this issue before the trial court as opposed to seeking to
develop it in his brief to this Court. The failure of Grimes to properly present this issue to the trial court for
its consideration means that it has not been properly preserved for appellate review. Sanchez v. State, 792
So. 2d 286 (¶18) (Miss. Ct. App. 2001).
¶22.
While holding this issue as not properly before the Court, we note that a motion for a new trial is
intended to test the weight of the evidence. Jackson v. State, 755 So. 2d 45 (¶8) (Miss. Ct. App. 1999).
The decision to grant a new trial is within the sound discretion of the trial court which should only do so to
prevent an unconscionable injustice. Carr v. State, 847 So. 2d 867 (¶20) (Miss. Ct. App. 2002). If we
were to apply this standard to the record before us, Grimes would still be entitled to no relief on this issue.
IV.
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Whether the trial court erred in failing to grant a motion for a new trial based on the
State's failure to exclude every reasonable hypothesis of innocence.
¶23.
Grimes contends that the State failed to exclude every reasonable hypothesis of innocence. Grimes
cites Fisher v. State, 481 So. 2d 203, 212 (Miss. 1985) and claims that "in circumstantial evidence cases,
the State is required to prove the defendant's guilt not only beyond a reasonable doubt, but to the exclusion
of every reasonable hypothesis consistent with innocence." However, this is not a circumstantial evidence
case.
¶24.
The State presented the eyewitness testimony of the co-conspirators who testified to Grimes'
participation in the crime. The State presented more than circumstantial evidence. It was then left to the
jury to decide the weight and credibility of that evidence. Finley, 725 So. 2d at (¶32). This issue is without
merit.
V.
Whether the trial court committed plain error by not issuing a cautionary instruction
concerning accomplice testimony.
¶25.
Grimes did not request a cautionary instruction on accomplice testimony. He now urges this Court
to find as plain error the failure of the trial court to sua sponte grant a cautionary instruction on accomplice
testimony. A defendant has an obligation to present to the trial court those matters which he desires
considered. Sanchez v. State, 792 So. 2d at (¶18). Where he fails to do so, that issue has not been
properly preserved for purposes of appeal. Id. However, this Court may at its option notice plain error,
where it affects a fundamental right. Williams v. State, 794 So. 2d 181 (¶23) (Miss. 2001). This matter
does not rise to the level of a fundamental right, additionally, it lacks merit.
¶26.
An accomplice instruction may be given where the totality of the State's case depends upon the
accomplice. Hall v. State, 785 So. 2d 302 (¶13) (Miss. Ct. App. 2001). However, there exists no
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requirement that the trial court offer a sua sponte instruction on accomplice testimony. Jones v. State, 872
So. 2d 53 (¶24) (Miss. Ct. App. 2003). In this case, the State's case is not totally dependent upon an
accomplice. The State presented the testimony of Marvel who indicated that
Grimes told him what had transpired. This Court affirms the trial court’s decision.
¶27. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY OF
CONVICTION OF BURGLARY AND SENTENCE OF TWENTY-FIVE YEARS IN THE
CUSTODYOF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
BRIDGES AND LEE, PJJ., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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