Johnny Crump v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-00454-COA
JOHNNY CRUMP
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
2/20/2004
HON. MIKE SMITH
LINCOLN COUNTY CIRCUIT COURT
DAVID FITZGERALD LINZEY
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DEE BATES
CRIMINAL - FELONY
CONVICTED OF SIX COUNTS OF
EMBEZZLEMENT BY CONTRACT AND
SENTENCED AS AN HABITUAL OFFENDER
TO SIX TEN-YEAR SENTENCES OF
IMPRISONMENT TO BE SERVED
CONCURRENTLY IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS AND TO PAY FINES AND
RESTITUTION AS ORDERED.
AFFIRMED: 08/07/2007
BEFORE KING, C.J., GRIFFIS AND BARNES, JJ.
KING, C.J., FOR THE COURT:
¶1.
Johnny Crump appeals his conviction of six counts of embezzlement under contract. He
raises the following two issues: (1) that the evidence was insufficient to support the guilty verdict;
and (2) that the indictment should have charged him with larceny and not embezzlement under
contract. Finding no error, this Court affirms.
FACTS
¶2.
On February 6, 2003, Johnny Crump entered into six rental contracts for furniture and
electronics with Superior Rent-to-Own in Hazlehurst, Mississippi. For a down payment of $380.01,
Crump received possession of the following items: (1) a JVC home theater system, (2) a Sony Rack
stereo system, (3) a Samsung big-screen television, (4) a cherry bedroom set that included a mattress
set, (5) a dinette set, and (6) a living room set, consisting of a sofa and loveseat, a coffee table, and
an end table. The retail value of the items totaled $14,047.
¶3.
Under the terms of the contracts, Crump was to make monthly payments on the furniture,
beginning March 6, 2003. Additionally, Crump was to notify Superior of any changes in his address.
Crump agreed that, in the event he defaulted under the contracts, Superior had the right to repossess
the items. Crump also agreed that he would be responsible for damage, other than normal wear or
tear, to the items he leased.
¶4.
Billy Shane Smith, the manager of the Hazlehurst Superior store, testified that he opened
Crump’s account and observed Crump while he completed and signed the contracts. When Crump
did not make his first scheduled payment on March 6, 2003, Smith attempted to contact Crump.
Smith was unable to reach Crump at the address or phone number on the contracts. Smith then
attempted to contact Crump’s references but was unsuccessful in reaching anyone other than
Crump’s father. Crump’s father advised Smith that Crump had moved to Jackson but had left no
forwarding address and no contact information.
¶5.
On March 10, 2003, Smith sent Superior’s standard letter of delinquency to Crump at his
father’s address. That letter stated in pertinent part as follows: “If you have not paid or returned our
property within seven days from the date of this letter, we will assume that you do not intend to
return the rental property and you will be subject to criminal prosecution.”
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¶6.
Leanne James, who took over as manager of the Hazlehurst Superior store in late March 2003
also testified that she made numerous unsuccessful attempts to reach Crump. Having exhausted all
avenues to locate Crump, James “charged off” the merchandise, in accordance with store policy, on
May 20, 2003. Thereafter, on July 8, 2003, she received a call from the manager of the Shady Creek
Mobile Home Park in Jackson, Mississippi. The manager had seen the name and number of the store
on some of the abandoned items and had contacted Superior to see if they were interested in
retrieving the items. James immediately sent a crew to pick up the merchandise. When the crew
arrived in Jackson, they did not find any of the electronic equipment. The furniture – the dinette set,
the bedroom set, and the living room set – was at the mobile home park, but it was completely
destroyed.
PROCEDURAL HISTORY
¶7.
Crump was indicted on six counts of embezzlement under contract on August 7, 2003.
Following a jury trial on February 20, 2004, he was convicted of all six counts and sentenced as an
habitual offender. The trial court ordered that Crump serve ten years on each count, with the
sentences to run concurrently. As an habitual offender, Crump was not eligible for parole.
¶8.
Crump appealed his conviction on March 19, 2004. Ultimately, that appeal was dismissed
on May 13, 2004, for failure to pay costs. Crump then filed a motion for post-conviction relief,
arguing that he should be permitted an out-of-time appeal. Following the trial judge’s denial of that
motion, Crump appealed. This Court granted Crump’s appeal and permitted him to proceed with
his direct appeal out-of-time. See Crump v. State, 913 So. 2d 385 (Miss. Ct. App. 2005).
ANALYSIS
¶9.
Crump raises the following issues on appeal: (1) that the evidence was insufficient to sustain
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a conviction for embezzlement under contract; and (2) that the indictment should have charged
Crump with larceny, not embezzlement under contract.
1.
¶10.
Sufficiency of the evidence
Crump argues that, in order to prove embezzlement under contract, the State was required
to prove that Crump intended to appropriate the rental merchandise at the time he signed the contract
with Superior. In support of this argument, Crump cites the down payment he gave Superior, his use
of a valid state-issued ID card to rent the furniture, and his own testimony that he believed his
girlfriend was making the monthly rental payments.
¶11.
During trial, Crump made a motion for a directed verdict, which the trial court denied.
Crump also requested, and was denied, a peremptory jury instruction that he be found not guilty.
Following the jury’s verdict, Crump made a motion for a judgment notwithstanding the verdict. That
motion was also denied.
¶12.
In reviewing the denial of a motion for a directed verdict or a motion notwithstanding the
verdict, this Court considers the sufficiency of the evidence. See Gleeton v. State, 716 So. 2d 1083,
1087 (¶14) (Miss. 1998). Under this standard of review, the Court must,
with respect to each element of the offense, consider all of the evidence – not just the
evidence which supports the case for the prosecution – in the light most favorable to
the verdict. The credible evidence which is consistent with the guilt must be accepted
as true. The prosecution must be given the benefit of all favorable inferences that
may reasonably be drawn from the evidence. Matters regarding the weight and
credibility to be accorded the evidence are to be resolved by the jury. We may reverse
only where, with respect to one or more of the elements of the offense charged, the
evidence so considered is such that reasonable and fair-minded jurors could only find
the accused not guilty.
Id. In the case sub judice, the evidence was sufficient for the jury to find Crump guilty of
embezzlement under contract.
¶13.
Embezzlement under contract is defined by statute as follows:
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If any person shall fraudulently appropriate personal property or money which has
been delivered to him on deposit, or to be carried or repaired, or on any other contract
or trust by which he was bound to deliver or return the thing received or its proceeds,
on conviction, he shall be punished by imprisonment in the penitentiary not more
than ten years, or be fined not more than one thousand dollars and imprisoned in the
county jail not more than one year, or either.
Miss. Code Ann. § 97-23-25 (Rev. 2006). The statute itself is silent as to whether the intent to
“fraudulently appropriate” the property must be formed at the time of the signing of the contract or
whether it can be formed at some later date. The Mississippi Supreme Court, however, has
addressed this issue and has held that embezzlement requires that the intent be formed at some time
after the defendant receives the property. In Ruffin v. State, 482 So. 2d 231, 232 (Miss. 1986)
(emphasis added), the Mississippi Supreme Court upheld a conviction for embezzlement under
contract, finding that “the jury could find under the instant record that appellant formed the intent
to embezzle or convert after he lawfully received the automobile and violated the trust imposed in
him to return it.” See also Medley v. State, 600 So. 2d 957, 960 (Miss. 1992) (identifying the
differences between embezzlement and larceny to include the time that the defendant formed the
intent to unlawfully take the property. Embezzlement requires that intent be formed at some point
after the defendant lawfully obtains the property.). This interpretation is wholly consistent with the
language of the statute and the elements of the crime of embezzlement under contract.
¶14.
The State introduced evidence that Crump failed to notify Superior of at least two changes
of address, in violation of the rental contract. The jury also heard from Crump himself that although
he was responsible for the payments, he had not personally ensured that Superior had received the
money. Additionally, the jury could reasonably have inferred from the testimony of Barksdale,
Crump’s former girlfriend, that Crump formed the requisite intent after the merchandise was
destroyed. Barksdale testified that she agreed to pay Crump for the merchandise because she was
responsible for its destruction, but Crump failed to leave her his forwarding address and that she had
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no way to contact him. This evidence, viewed in the light most favorable to the prosecution,
supports a finding that Crump formed the intent to fraudulently appropriate the rental merchandise
at some point following the signing of the rental contracts. Accordingly, this issue is without merit.
2.
¶15.
Failure to charge Crump with larceny and improperly charging Crump with
embezzlement under contract
In the alternative, Crump argues that he should have been charged with larceny and not with
embezzlement under contract. Crump further argues that even if the State had charged him with
larceny, such a charge could not stand.
¶16.
This argument is nothing more than a red herring. The State, in the exercise of its
prosecutorial discretion, opted to indict Crump under the embezzlement under contract statute. The
law is clear that
[i]t is a fundamental principle of our criminal justice system that a prosecutor is
afforded prosecutorial discretion over what charge to bring in any criminal trial. See
United States v. Batchelder, 442 U.S. 114, 124, 60 L. Ed. 2d 755, 99 S. Ct. 2198
(1979) (“Whether to prosecute and what charges to file or bring before a grand jury
are decisions that generally rest in the prosecutor's discretion.”); Bordenkircher v.
Hayes, 434 U.S. 357, 364, 54 L. Ed. 2d 604, 98 S. Ct. 663 (1978) (“In our system,
so long as the prosecutor has probable cause to believe that the accused committed
an offense defined by statute, the decision whether or not to prosecute, and what
charge to file or bring before a grand jury, generally rests entirely in his discretion.”).
Watts v. State, 717 So. 2d 314, 320 (¶14) (Miss. 1998). See also Welch v. State, 830 So. 2d 664, 669
(¶24) (Miss. Ct. App. 2002). The State exercised its discretion in indicting Crump on charges of
embezzlement under contract rather than larceny. As discussed, supra, the State met its burden of
proof on those charges, and the evidence was sufficient to convict Crump of embezzlement under
contract. Accordingly, what the State could have done is of no consequence. This issue is without
merit.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY OF
CONVICTION OF SIX COUNTS OF EMBEZZLEMENT UNDER CONTRACT, IN
VIOLATION OF MISSISSIPPI CODE ANNOTATED SECTION 97-23-25, AND
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SENTENCED AS AN HABITUAL OFFENDER UNDER MISSISSIPPI CODE ANNOTATED
SECTION 99-19-81 TO SERVE SIX TEN-YEAR TERMS OF IMPRISONMENT WITHOUT
THE POSSIBILITY OF PAROLE IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, SENTENCES TO RUN CONCURRENTLY, IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.
LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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