Robert Patton v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-KA-01019-COA
ROBERT PATTON
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
06/14/2006
HON. ALBERT B. SMITH, III
BOLIVAR COUNTY CIRCUIT COURT
JOHNNIE E. WALLS
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
LAURENCE Y. MELLEN
CRIMINAL - FELONY
CONVICTED OF BRIBERY OF A PUBLIC
OFFICIAL AND SENTENCED TO FIVE YEARS
IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS WITH ONE
YEAR TO SERVE AND FOUR YEARS
SUSPENDED
AFFIRMED - 07/22/2008
BEFORE KING, C.J., IRVING AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1.
Robert Patton (Patton) and his brother, Hezekiah Patton (Hezekiah), were tried together in
the Circuit Court of Bolivar County for the crime of bribery of a public official. The jury acquitted
Hezekiah, but it found Patton guilty. The trial court sentenced Patton to five years in the custody
of the Mississippi Department of Corrections, with one year to serve and four years suspended.
¶2.
Patton appeals. He challenges the weight and sufficiency of the evidence supporting the
bribery conviction and contends that the facts show he was entrapped by State officials. He also
argues that errors occurred at his trial, which considered cumulatively, warrant a reversal.
¶3.
Finding no error, we affirm Patton's conviction and sentence.
FACTS
¶4.
Patton was the mayor of Shelby, Mississippi. On the night of March 4, 2005, Officers
Marion Bedford and Ricardo Tell, with the Shelby Police Department, responded to a burglary
reported by an employee at Minnie's Café in Shelby. Minnie's was a juke joint owned and operated
by Patton's brother, Hezekiah. Upon entering Minnie's, Officers Bedford and Tell discovered six
illegal gaming machines located in a back room. Officer Bedford radioed dispatch for assistance
from his supervisor, Eddie Shannon, who was serving as the interim police chief. Officer Tell left
the scene to apprehend the suspected burglar. At some point, Hezekiah and Patton arrived at
Minnie's. Then, Chief Shannon arrived.
¶5.
Chief Shannon testified that Patton, as the mayor, was his boss. Chief Shannon testified that
when he arrived at Minnie's, Patton asked if he could ride around the block with him in Chief
Shannon's vehicle. According to Chief Shannon's testimony, during the ride, Patton asked Chief
Shannon to leave the gaming machines at Minnie's. When they returned to Minnie's, Chief Shannon
instructed the officers not to seize the machines. Shortly thereafter, Patton and Chief Shannon rode
around the block again. Chief Shannon testified that, during this ride, Patton told him that the
gaming machines belonged to Hezekiah, and Patton would give Chief Shannon some money if he
would inform the brothers when the Mississippi Gaming Commission was coming to Shelby to
remove the gaming machines.
¶6.
On March 5, 2005, Chief Shannon reported these incidents to the Mississippi Gaming
Commission and the Office of the Attorney General of the State of Mississippi. These agencies
commenced an investigation into the allegations of bribery. As part of the investigation, Chief
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Shannon had several conversations with Patton while wearing a body wire. Many of these
conversations were recorded on microcassette tapes, which Chief Shannon turned over to
investigators with the Attorney General's Office. The following is a chronology of the evidence
gathered during the investigation and admitted at the trial:
March 8, 2005 - Patton and Chief Shannon met to take pictures of an abandoned
house as a part of city business. Patton asked Chief Shannon if everything was quiet.
Chief Shannon told Patton that an officer was not pleased about leaving the gaming
machines at Minnie's. Patton responded that the officer just wanted money, and he
would pay the officer $20 or $30. This conversation was recorded on a cassette tape
that was admitted into evidence.
March 9, 2005 - Chief Shannon met with agents from the Attorney General's Office
and from the Gaming Commission. They formulated a plan for Chief Shannon to
inform Patton that the Gaming Commission was coming to seize the gaming
machines.
March 10, 2005, morning - Chief Shannon went to Patton's home and told him that
the Gaming Commission, in response to an anonymous tip, was coming to Minnie's
around noon that day. Because Chief Shannon's body recorder malfunctioned, no
tape recording of this conversation was made; the only evidence of it was Chief
Shannon's testimony. Chief Shannon testified that Patton seemed nervous and that
Patton called Hezekiah. Then, Chief Shannon raised the issue of Patton's promise
to pay him in exchange for the tipoff. Patton stated that Hezekiah would bring him
money that weekend. A short time later, Investigator Bert Wallace with the Attorney
General's Office videotaped Hezekiah and other men moving six gaming machines
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out of the rear door of Minnie's and loading them into the bed of a pickup truck,
which they then drove away. These gaming machines were large, freestanding
machines. The videotape was admitted into evidence.
March 10, 2005, 11:15 a.m. - Gaming Commission agents searched Minnie's for the
gaming machines, but none were found.
March 10, 2005, afternoon - Chief Shannon called Patton and told him that the
Gaming Commission had come. Patton thanked Chief Shannon for the tipoff and
said that he would like to know if Chief Shannon heard they were coming back. A
tape recording of this conversation was admitted into evidence.
March 25, 2005 - Chief Shannon and Patton talked in the courtroom located in the
police department building. Chief Shannon told Patton that he had not received
anything and that he needed money to pay a bill. Patton asked him if fifty dollars
would suffice, and Chief Shannon assented. Patton said he would get back with him.
A tape recording of this conversation was admitted into evidence.
April 12, 2005 - Chief Shannon spoke with Patton at the police department and told
Patton he had not received anything, though he had taken a big risk. Patton replied
that they had both taken a big risk. Patton said that all he could do was set up the
payment, but he would make sure Chief Shannon got the fifty dollars the next day.
A tape recording of this conversation was admitted into evidence.
April 13, 2005 - Chief Shannon again told Patton he had not received anything.
Patton said that he had made arrangements for the payment that morning and that
Chief Shannon would receive the money that day. A tape recording of this
conversation was admitted into evidence.
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April 13, 2005, afternoon - Hezekiah came to the door of the police department and
nodded at Chief Shannon. Chief Shannon went over to Hezekiah, who handed Chief
Shannon fifty dollars in cash, and said, "Robert told me to give this to you." Chief
Shannon placed the money into his safe, and then he gave it to Investigator J.W.
Watkins with the Attorney General's Office. Later that afternoon, Patton asked Chief
Shannon if anyone had shown up, and Chief Shannon said yes, and the person had
given him fifty dollars as promised. Chief Shannon did not record his interactions
with Hezekiah or with Patton on that afternoon.
April 20, 2005 - Investigator E.W. Williams with the Gaming Commission seized
five illegal gaming machines from Minnie's.
April 26, 2005 - Chief Shannon called Investigator Watkins and reported that Patton
had approached him twice at Chief Shannon's residence asking that Chief Shannon
retract his statements to the authorities. No tape recording was made of these
conversations.
¶7.
Both Patton and Hezekiah testified in their own defense. Patton denied that he asked Chief
Shannon to tell him when the Gaming Commission was coming. Patton also denied that he offered
Chief Shannon any money. He testified that the fifty dollars given to Chief Shannon did not come
from him. Patton testified that Chief Shannon repeatedly bothered him about needing a loan to pay
a bill. According to Patton, this requested loan was the subject of the taped conversations. Patton
also testified that Chief Shannon had a grudge against him because Patton had not supported him
being hired as the interim police chief. Patton testified that 2005 was an election year, and he
believed Chief Shannon supported his opponent. In his testimony, Chief Shannon denied that his
conduct was politically motivated.
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¶8.
Patton testified that before March 4, 2005, he had not known there were gaming machines
at Minnie's. However, he also testified that he believed the gaming machines were legally present
at Minnie's because they had been returned there by an order of a municipal court judge. Patton
testified that he had no interest in nor derived any income from Minnie's.
¶9.
Municipal Court Judge James Strait testified that a former Shelby police chief had
confiscated two or three tabletop-size gaming machines from Minnie's and had brought them to the
police station. Judge Strait testified that he ordered the machines returned to Minnie's because the
former police chief never obtained a determination from the Gaming Commission that the machines
were illegal. Judge Strait testified that these events occurred eight months to one year prior to
Patton's trial.
¶10.
Hezekiah testified that the gaming machines shown in the videotape were approximately five
feet, eight inches high. He admitted that the gaming machines released to Minnie's by Judge Strait
had been smaller. Hezekiah denied that he was guilty of bribery. Hezekiah testified that in addition
to owning and operating Minnie's, he worked as a bail bondsman. Hezekiah testified that, on April
12, 2005, Chief Shannon contacted him regarding a bond for Shalunda Smiley, who had been
arrested. Hezekiah was in Cleveland, Mississippi when he received the call. Hezekiah admitted that
he gave Chief Shannon fifty dollars on April 13, 2005, but he asserted that this sum was a payment
for transferring Smiley to a correctional facility in Cleveland at Hezekiah's request. Copies of the
bonds and arrest reports for Smiley and a cell phone record, purportedly showing Chief Shannon's
call to Hezekiah, were admitted into evidence.
¶11.
The jury found Patton guilty of bribery, but it acquitted Hezekiah. After the guilty verdict,
Patton resigned from his position as mayor of Shelby. The trial court sentenced him to five years
in the custody of the Mississippi Department of Corrections, with four years suspended.
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LAW AND ANALYSIS
I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT, OR
WHETHER THE VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE
EVIDENCE.
¶12.
Patton filed a post-trial motion for a judgment notwithstanding the verdict (JNOV) or, in the
alternative, a new trial. The trial court denied the motion. Patton renews these arguments on appeal.
We begin by reviewing the sufficiency of the evidence, which is challenged by a motion for a
JNOV. In determining whether the evidence is sufficient to sustain a conviction, "the critical inquiry
is whether the evidence shows 'beyond a reasonable doubt that [the] accused committed the act
charged, and that he did so under such circumstances that every element of the offense existed; and
where the evidence fails to meet this test[,] it is insufficient to support a conviction.'" Bush v. State,
895 So. 2d 836, 843 (¶16) (Miss. 2005) (quoting Carr v. State, 208 So. 2d 886, 889 (Miss. 1968)).
If, viewing the evidence in the light most favorable to the State, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt, then this Court will affirm the
denial of a JNOV. Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315 (1979)). But if the facts and
inferences, so considered, point in favor of the defendant on any element of the offense with
sufficient force that no reasonable juror could have found guilt beyond a reasonable doubt, then we
must reverse and render. Id. (quoting Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985)).
¶13.
The crime of bribery of a public official is codified at Mississippi Code Annotated section
97-11-11 (Rev. 2006). The section provides in part:
Every person who shall promise, offer or give to any officer, agent or trustee,
either public or private, while holding such office, agency or trust, . . . any money .
. . with intent to influence his vote, opinion, action or judgment on any question,
matter, cause or proceeding which may be then pending, . . . shall, on conviction, be
imprisoned in the penitentiary not more than ten (10) years, or fined not more than
Five Thousand Dollars ($5,000.00), or both, and shall be forever disqualified from
holding any public office, trust or appointment, and shall forfeit his office, if any be
held.
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The four elements of the crime are: "(1) [o]ffer of bribe; (2) to public officer; (3) with the intent to
influence his action or judgment; (4) on any question, matter, cause or proceeding which may be
then or thereafter pending subject to his action or judgment." McLemore v. State, 241 Miss. 664,
672, 125 So. 2d 86, 89 (1960).
¶14.
Patton argues that the evidence was insufficient to enable a reasonable jury to find him guilty
of bribery of a public official because the State did not prove that the fifty dollars which Hezekiah
gave to Chief Shannon was bribe money. He contends that the evidence established that the fifty
dollars was a payment to Chief Shannon for transporting Smiley to Cleveland. We note that the
evidence conflicted regarding the purpose of the fifty dollars. It is the jury's role to assess the weight
and credibility of the evidence and to resolve any differences in the evidence. Latiker v. State, 918
So. 2d 68, 73 (¶12) (Miss. 2005). Nonetheless, Patton's argument is without merit because the State
need not prove a completed bribery in order to secure a conviction of bribery of a public official.
McLemore, 241 Miss. at 673, 125 So. 2d at 89. The McLemore court stated:
The condemned offense is the offer to bribe, not completed bribery. There need
not be a mutual intent on the part of both the giver and the offeree or accepter of the
bribe. It is the offering of the bribe that constitutes the substantive crime under the
statute. It is immaterial whether an attempt or offer to bribe is successful. Nor is any
actual tender of the bribe necessary to perfect the offense. The offer to produce a
bribe is sufficient.
Id. at 673, 125 So. 2d at 89-90 (citations omitted). Therefore, the State was not required to prove
that the fifty dollars constituted the bribe money.
¶15.
Patton also contends that the State failed to prove an offer to bribe. Patton argues that there
was insufficient evidence that he promised Chief Shannon anything in exchange for notification of
the Gaming Commission's arrival. In support of this argument, Patton points out that his
conversations with Chief Shannon on the night of the burglary were not captured on tape, and no
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money was mentioned during their taped follow-up conversation on the afternoon of March 10,
2005.
¶16.
Chief Shannon testified that, on the night of the burglary, Patton offered to pay him in
exchange for notification of when the Gaming Commission was coming to check on the machines.
Further, Chief Shannon's testimony about Patton's offer was corroborated by the taped conversation
on March 25, 2005, in which Patton expressed his intent to pay Chief Shannon for the tipoff, and
by the subsequent taped conversations in which Patton assured Chief Shannon that he would be paid.
Patton's motive for the bribery was firmly established by the fact that once Chief Shannon told
Patton that the Gaming Commission was coming, the gaming machines were moved temporarily out
of Minnie's. They were replaced after Chief Shannon assured Patton that the Gaming Commission
was gone. From all of this evidence, a reasonable jury could have concluded beyond a reasonable
doubt that Patton offered to pay money to Chief Shannon in an attempt to influence Chief Shannon's
action concerning the Gaming Commission. The evidence was sufficient to support Patton's
conviction of bribery of a public official.
¶17.
We now turn to Patton's argument that the verdict was against the overwhelming weight of
the evidence, which Patton challenged at the trial level with his motion for a new trial. On review
of the denial of a motion for a new trial, "we will only disturb a verdict when it is so contrary to the
overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable
injustice." Bush, 895 So. 2d at 844 (¶18). This Court takes the position of the thirteenth juror,
meaning that we will reverse if, weighing the evidence in the light most favorable to the verdict, we
"[disagree] with the jury's resolution of the conflicting testimony." Id. However, we will grant a
new trial "only in exceptional cases in which the evidence preponderates heavily against the
verdict." Id. (quoting Amiker v. Drugs For Less, Inc., 796 So. 2d 942, 947 (¶18) (Miss. 2000)).
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¶18.
Patton argues that the jury's acquittal of Hezekiah meant that it believed the fifty dollars that
Hezekiah gave Chief Shannon was for Smiley's transport. He argues that the jury's belief that the
fifty dollars was not bribe money conflicted with its finding that Patton was guilty of bribery,
rendering the verdict against the overwhelming weight of the evidence. As discussed above, the jury
reasonably could have found Patton guilty based upon his offer to bribe Chief Shannon. Therefore,
to convict Patton, the jury did not have to believe that the fifty dollars that Hezekiah gave to Chief
Shannon was the intended bribe money. Chief Shannon's testimony that Patton offered him a bribe
in return for a tipoff about the Gaming Commission was amply supported by the other evidence
offered by the State. Considered in the light most favorable to the verdict, the evidence did not
preponderate so heavily against the verdict that affirming Patton's conviction would sanction an
unconscionable injustice. This issue is without merit.
II. WHETHER PATTON WAS ENTRAPPED.
¶19.
The jury was instructed on the defense of entrapment. Patton argues that the evidence was
such that a reasonable jury, applying the beyond a reasonable doubt standard, could have only found
that his commission of bribery was the result of entrapment by state officials. The defense of
entrapment comprises "the act of inducing or leading a person to commit a crime not originally
contemplated by him, for the purpose of trapping him in its commission and prosecuting him for the
offense." McLemore, 241 Miss. at 675, 125 So. 2d at 91. The entrapment defense fails if the State
merely gave the defendant the opportunity to commit a crime which originated in the defendant's
own mind. Id. Entrapment is an affirmative defense; thus, the defendant has the burden of proof.
Hopson v. State, 625 So. 2d 395, 399 (Miss. 1993). The defendant may raise the entrapment defense
while denying any or all of the elements of the crime. Id. at 400. A defendant may raise the
entrapment defense upon a showing of: (1) proof of government inducement to commit the criminal
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act and (2) a lack of predisposition to engage in the criminal act before contact with government
agents. Id.
¶20.
Patton contends that the evidence fell short of establishing his predisposition to bribe Chief
Shannon. Patton alleges that investigators with the Attorney General's Office directed Chief
Shannon to "get" Patton. Patton argues that the evidence conclusively showed that: it was Chief
Shannon who initiated the subject of money; it was Chief Shannon who repeatedly asked for money;
and it was Chief Shannon who broached the subject of informing Patton when the Gaming
Commission was coming.
¶21.
Patton's contentions about the facts are refuted by evidence presented at the trial that
substantially showed Patton was predisposed to commit bribery before Chief Shannon contacted the
state authorities. Chief Shannon's testimony established that the government investigation was
instigated by Patton's request that Chief Shannon accept money in exchange for notifying Patton
when the Gaming Commission was coming. This request occurred on the night of the burglary,
prompting Chief Shannon's call to the Attorney General's Office and the Gaming Commission. The
existence of an outstanding offer by Patton to give money to Chief Shannon in exchange for the
tipoff was supported by the taped conversations. Contrary to Patton's arguments, there was
sufficient evidence in the record to permit a reasonable jury to reject Patton's entrapment defense.
III. WHETHER THE CUMULATIVE EFFECT OF THE ERRORS WARRANTS REVERSAL OF
PATTON'S CONVICTION AND SENTENCE.
¶22.
Citing Genry v. State, 735 So. 2d 186 (Miss. 1999), Patton argues that "there are errors so
apparent from the record and testimony that the cumulative effect of them warrants reversal." In
Genry, the supreme court stated that: "this [c]ourt may reverse a conviction and sentence based upon
the cumulative effect of errors that independently would not require reversal." Id. at 201 (¶73).
However, when there is no error as to any part, there can be no reversible error as to the whole. Id.
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¶23.
Regarding Patton's assertion that errors occurred that are apparent from the record and
testimony, this Court does not consider an appellant's broad assertions lacking any clear argument
or citation to any meaningful authority to support the assignment of error. Coleman v. State, 697
So. 2d 777, 787 (Miss. 1997). We have found that the assignments of error which Patton made in
his brief to be without merit. Thus, there are no errors for this Court to consider cumulatively. This
issue is without merit.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY OF
CONVICTION OF BRIBERY OF A PUBLIC OFFICIAL AND SENTENCE OF FIVE
YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS,
WITH ONE YEAR TO SERVE AND FOUR YEARS SUSPENDED, IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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