Rickel Davis v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-KA-00573-COA

RICKEL DAVIS APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/26/2022
TRIAL JUDGE: HON. CHARLES E. WEBSTER
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA LEBRON
DISTRICT ATTORNEY BRENDA F. MITCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 08/08/2023
MOTION FOR REHEARING FILED:

BEFORE BARNES, C.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. Rickel Davis appeals his Bolivar County Circuit Court jury conviction for armed

robbery with a sentencing enhancement based on the victim’s age. Davis argues two issues:

(1) that the trial court abused its discretion in denying his motion for a new trial based on the

weight of the evidence and (2) that the circuit court erred in refusing to give his lesser-

included-offense instruction for simple assault. Because of these alleged errors, Davis argues

that we should reverse and remand the matter for a new trial with the proposed instruction.

Finding that the trial court did not abuse its discretion in denying the motion for a new trial

based on the weight of the evidence and that no reasonable jury could have found Davis
guilty of simple assault and not armed robbery, this Court affirms the trial court’s order

denying Davis’s motion for judgment notwithstanding the verdict or a new trial.

FACTUAL AND PROCEDURAL HISTORY

¶2. On June 6, 2021, Isaac Shorter, a seventy-four-year-old man, was jogging early in the

morning in his neighborhood in Cleveland, Mississippi, when he noticed a man following

him. This man was later identified as Rickel Davis. Davis followed Shorter back to his

home, where he pulled a gun on Shorter. Shorter testified that Davis “told me to get the

money out of my pocket.” Shorter did not have any money in his pocket, and he told Davis

he was “going to have to shoot me.” Shorter then turned, ran into his house, got a gun, and

returned outside. Davis, seeing Shorter with the gun, turned and ran away.

¶3. Officer Justin Coleman was one of the officers who responded to Shorter’s call

regarding an armed robbery at his residence. While other officers went to Shorter’s address

to investigate, Coleman patrolled the neighborhood. While patrolling, he saw a black male

who was walking near the crime scene enter a residence. Meanwhile, other officers spoke

with Shorter, and Shorter contacted the grounds director of the building next to Shorter’s

house, the Amzie Moore House,1 because he knew it had cameras. While reviewing the

camera footage with the responding officers, Shorter identified the man who robbed him.

The other officers shared a description of the suspect with Coleman, who responded that he

had seen a man matching the description entering a residence earlier near the crime scene.

¶4. Officers then went to the residence Coleman identified and spoke with the owner,

1
As a historic landmark, the Amzie Moore House has various cameras surveilling the
surrounding area.

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Davis’s grandmother, who consented to a search of the home. Davis was present during the

search, and in an open closet, the officers found clothes matching those worn by the man in

the surveillance footage. They also found a .22-caliber pistol that matched the description

of the gun that Shorter had provided. Davis was taken into custody and was later indicted

for armed robbery with an elder enhancement.2 Davis entered a plea of not guilty.

¶5. During trial, the prosecution called Shorter as a witness. During direct examination,

the prosecutor asked:

Q. Mr. Shorter, could you tell us -- were you scared, afraid, or what were
your feelings when he pointed the gun at you?
A. Well, when he pointed the gun at me, and I know I wasn’t going to give
him no money, so I had to knowed he was going to shoot me. And so
I went for defense.
Q. Okay. Did it scare you?
A. Yeah.

The defense did not object to this questioning by the State. During cross-examination, the

defense attorney asked Shorter about what Davis said to him:

Q. Now, the person that was holding you at gunpoint told you to empty
your pockets? Is that what that person said?
A. Yes.

2
Mississippi Code Annotated section 99-19-351 (Rev. 2020) states:
The penalty for any felony or misdemeanor which is a crime of violence or the
crime of burglary or breaking and entering the dwelling of another shall be
subject to enhancement as provided in Sections 99-19-351 through 99-19-357
if the felony or misdemeanor was committed against any victim who is
sixty-five (65) years of age or older or who is disabled as described in 42
U.S.C. § 12102.
Mississippi Code Annotated section 99-19-357 (Rev. 2020) states:
The penalty for the offense may be enhanced by punishment for a term of
imprisonment of up to twice that authorized by law for the offense committed,
or a fine of up to twice that authorized by law for the offense committed, or
both.

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Q. Do you remember giving a statement to the Cleveland Police
Department about all this, an official statement?
A. Yes, I give a statement to them. Yes.
Q. And is that also what you told the police, is this person who pointed the
gun at you told you to empty your pockets?
A. Yes.
Q. What happened next after the person who pointed this gun at you said,
“Empty your pockets”? What happened next?
A. Well, I went in my pocket, brought my hands out, and told him that he
going to have to shoot me. And I turned around and ran in the house.

¶6. After the close of evidence, the judge and parties met in chambers to discuss jury

instructions. Davis requested instructions for a lesser-included offense of simple assault.

The judge refused the instructions based on Downs v. State, 962 So. 2d 1255 (Miss. 2007),

stating:

It would seem that this case, which appears to continue to be good law; it’s a
2007 case -- finds that -- I think it says, “In a factually appropriate case simple
assault would be a lesser included offense.” This was a robbery case, talks
about “of robbery.” I would think the analysis would be the same with regard
to armed robbery. I mean -- yeah, armed robbery.

However, it goes on to say - it appears to me that this is fact intensive analysis.
Paragraph 20, “This Court has stated that the evidence on a particular case
generally warrants a lesser included offense instruction if a rational or
reasonable juror could find the defendant not guilty of the principal offense
charged in the indictment, yet guilty of a lesser included offense. Our review
of the record leads us to conclude that the jury could not have found Downs
guilty of simple assault. As stated previously, defendant is not entitled to a
lesser-included offense instruction if the evidence does not support such
instruction. Here the entitlement to a lesser-included offense instruction on
simple assault presumes that the jury could find Downs guilty of simple
assault.”

And in the facts of this case, Downs v. State, the Supreme Court found that no
reasonable or rational juror could have found the defendant guilty of simple
assault based upon the facts that were presented at trial.

I feel the same way about this case. At this juncture, I don’t see anything that

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would suggest simple assault, as opposed to armed robbery. And, therefore,
D-1, D-2, and D-3 will be refused.

¶7. After closing arguments, the jury deliberated and returned a verdict of guilty on the

charge of armed robbery with an elderly victim enhancement. Davis moved for judgment

notwithstanding the verdict or, in the alternative, a new trial. The court denied Davis’s

motion and entered its judgment and sentence on the jury’s verdict, sentencing Davis to ten

years in custody, with five years suspended and five years to serve. Davis appealed.

¶8. On appeal, Davis makes two arguments: (1) the overwhelming weight of the evidence

contradicted a finding of the fear element of armed robbery; and (2) the circuit court erred

in denying his proposed instruction on the lesser-included offense of simple assault.

STANDARD OF REVIEW

¶9. “A challenge to the weight of the evidence is separate and distinct from a challenge

to the legal sufficiency of the evidence.” Brown v. State, 269 So. 3d 1262, 1264 (¶9) (Miss.

Ct. App. 2018) (quoting Bradford v. State, 102 So. 3d 312, 316 (¶16) (Miss. Ct. App. 2012));

accord Little v. State, 233 So. 3d 288, 292 (¶20) (Miss. 2017). A challenge to the weight of

the evidence seeks a new trial. Id. Reversal is only warranted where the trial court abused

its discretion by denying a new trial. Id. “This Court will not disturb a verdict unless the

verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand

would sanction an unconscionable injustice.” Id. (Internal quotation marks omitted). This

Court views the evidence in the light most favorable to the verdict. Id.

¶10. In this context, we review the decision of the circuit court to refuse a lesser-included

offense instruction de novo. Downs, 962 So. 2d at 1258 (¶10). Further, “[t]he circuit court

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is given great deference in its decision to instruct the jury.” Johnsey v. State, 296 So. 3d 93,

95 (¶8) (Miss. Ct. App. 2019). As stated in Downs, 962 So. 2d at 1258 (¶9):

The Court does not single out any instruction or take instructions out of
context; rather, the instructions are to be read together as a whole. A
defendant is entitled to have jury instructions given which present his theory
of the case. This entitlement is limited, however, in that the Court is allowed
to refuse an instruction which incorrectly states the law, is covered fairly
elsewhere in the instructions, or is without foundation in the evidence.

(Quoting Spicer v. State, 921 So. 2d 292, 313 (¶43) (Miss. 2006), abrogated on other

grounds by O’Connor v. State, 120 So. 3d 390, 400 (¶28) (Miss. 2013)). The defendant must

be able to point to some evidence in the record from which a reasonable juror could find him

both not guilty of the indicted offense and instead guilty of the lesser-included offense.

Gilmore v. State, 119 So. 3d 278, 286 (¶13) (Miss. 2013).

DISCUSSION

I. Weight of the Evidence

¶11. Davis argues that the circuit court abused its discretion by denying his post-trial

motion requesting a new trial on the ground that the jury’s verdict was against the

overwhelming weight of the evidence presented by the State. He contends that allowing the

verdict to stand will sanction an “unconscionable injustice.”

¶12. Mississippi Code Annotated Section 97-3-79 (Rev. 2020) provides:

Every person who shall feloniously take or attempt to take from the person or
from the presence the personal property of another and against his will by
violence to his person or by putting such person in fear of immediate injury to
his person by the exhibition of a deadly weapon shall be guilty of robbery . . . .

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(Emphasis added).3 Accordingly, in order to be convicted of armed robbery, among other

things, the State must show that the victim was put in fear of immediate injury. See id.

¶13. While a showing of fear on the part of the victim is one way to establish the fear

element, it can also be satisfied “if the victim expects or anticipates that personal injury may

result if he does not follow the assailant’s instructions” when the assailant threatens “the use

of a deadly weapon.” Young v. State, 95 So. 3d 685, 687 (¶9) (Miss. Ct. App. 2011) (quoting

Evans v. State, 957 So. 2d 430, 436 (¶19) (Miss. Ct. App. 2007) (citing Harper v. State, 434

So. 2d 1367, 1368 (Miss. 1983))).

¶14. In this case, Shorter anticipated that personal injury might result if he did not follow

his assailant’s orders, as evidenced by the fact that he said, “[Y]ou’ll have to shoot me,”

because he did not have any money to give to the assailant. In addition to Shorter

anticipating harm if he refused Davis’s command, Shorter specifically stated at trial that he

was afraid. The defense did not challenge this statement, did not object to the questioning,

and did not present any evidence to the contrary. The foregoing authority and testimony

clearly establish evidence of the fear element, and a reasonable jury could find Shorter was

placed in fear.

¶15. In Bradford, 102 So. 3d at 316 (¶17), we held that the uncontradicted testimony of the

victim of attempted arson supported the jury’s verdict. In that case, Bradford did not testify

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“In order to obtain a conviction for the crime of robbery, the State must prove
beyond a reasonable doubt that the defendant (1) feloniously [took] (2) the personal property
of another (3) in his presence or from his person and (4) against his will, (5) by violence to
his person or by putting such person in fear of some immediate injury to his person[.]”
Downs, 962 So. 2d at 1259 (¶15).

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or call any witnesses contradicting the victim’s testimony. Id. In this case, Davis did not

testify, did not call any witnesses, and could not point to any evidence that contradicted

Shorter’s testimony that he was placed in fear. The only evidence Davis argues showed a

lack of fear was that after Shorter retreated to the safety of his home, he returned with a gun

to confront Davis. However, a victim’s defensive actions do not negate the fear a victim felt

at the time of the robbery. Young, 95 So. 3d at 686 (¶2). In Young, the defendant robbed a

business by brandishing a firearm, grabbing an employee, and demanding money. Id. at 686.

The employee gave the defendant his wallet, and the defendant fled. Id. The victim and

another employee then chased after the defendant. Id. Young argued that this pursuit was

evidence that the victim was not put in fear. Id. at 687. However, this Court held that the

victim’s testimony that “there was a gun” and “a man with a mask was trying to rob this

place” was proof that the victim was afraid because they anticipated harm would come to

them if they refused the assailant’s demands. Id.

¶16. In the present case, Davis pointed a gun at Shorter and told him to “empty your

pockets.” Shorter put his hands in his pockets, realized he had nothing in them, and said,

“[y]ou’re going to have to shoot me,” before fleeing into his home. Shorter then retrieved

his own gun, and went back outside to fend off his attacker. When Davis then fled, Shorter

called the police. In Young, the victim pursued the defendant after the threat had passed, and

we held that this was not evidence that the victim was not put in fear. Id. In this instance,

as we are required to view the evidence in the light most favorable to the verdict, Shorter’s

returning from inside his house with a gun was not necessarily evidence that he was not

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afraid at the time of the robbery but, rather, that he was acting in continuous defense of

himself after the robbery, which prompted Davis to flee.

¶17. Davis relies on the canon that “actions speak louder than words” cited in Cittadino v.

State, 199 Miss. 235, 245, 24 So. 2d 93, 95 (1945), to argue that Shorter’s act of returning

with a weapon was evidence that he was not afraid. We do not find this argument

convincing.

¶18. In Cittadino, the Mississippi Supreme Court noted that “actions speak louder than

words” when it found that the State was not required to prove that a firearm was loaded in

order to prove that the firearm was perceived by the victim as a deadly weapon. Id., 24 So.

2d at 96. The action of pointing a firearm at the victim was enough to sufficiently put him

or her in fear that if he or she did not turn over their property, then the assailant could and

would use the firearm as a deadly weapon. Id. at 245-46, 24 So. 2d at 96.

¶19. It is clear that Cittadino discussed the perception of a deadly weapon on the part of

the victim, not the fear element of armed robbery. Davis cites no authority to support his

argument that “actions speak louder than words” regarding the element of fear. Moreover,

the canon of “actions speak louder than words” does not negate evidence of Shorter’s fear

at the time of the robbery. One cannot ignore the fact that Shorter fled in the first place,

which is clearly evidence of fear. Shorter fled from his assailant in order to retrieve a gun

to protect himself. A reasonable person does not protect themselves from danger without the

presence of fear. If we were to hold that any attempt to defend oneself, even after fleeing

from an assailant, eliminates the fear element, we would effectively be requiring victims to

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never defend themselves or risk that the assailant could not be convicted of their crimes.

¶20. Again, we view the evidence in the light most favorable to the verdict. Bradford, 102

So. 3d at 314 (¶7); Little, 233 So. 3d at 289 (¶1). Davis points to no evidence in the record

that supports his argument that Shorter was not placed in fear, and the jury could have

reasonably considered the evidence to have weighed in favor of the State’s argument.

Accordingly, we do not find the trial court abused its discretion in denying his motion for a

new trial.

II. Lesser-included-offense Instruction

¶21. Davis next argues that his lesser-included-offense instruction should have been

presented because there was insufficient evidence of a demand for money, which is the

distinguishing element between armed robbery and simple assault. Based on the standard set

forth in Gilmore, 119 So. 3d at 286 (¶13), which requires “a defendant must point to some

evidence in the record from which a jury reasonably could find him not guilty of the crime

with which he was charged and at the same time find him guilty of a lesser-included

offense[,]” we find that the trial court did not err by denying Davis’s requested instruction.

¶22. In a recent decision, a defendant was charged with two counts of

murder/manslaughter. Clayton v. State, No. 2021-KA-00505-COA, 2023 WL 1983169 at

*4 (¶11) (Miss. Ct. App. Feb. 14, 2023) (unpublished). After a trial, Clayton was convicted

of two counts of first-degree murder. Id. Clayton sought to have his judgment reversed due

to insufficient evidence as well as the trial court’s refusal to grant a lesser-included-offense

instruction on manslaughter. Id. at *3 (¶5). This Court agreed that manslaughter was a

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lesser-included-offense of first-degree murder, and a defendant may be entitled to such an

instruction. Id. at *4 (¶9). However, “[a] defendant has a right to a lesser-included-offense

instruction if there is some evidence from which a reasonable juror could find him both not

guilty of the indicted offense and guilty of the lesser-included-offense.” Id. at 3 (¶6)

(emphasis added) (citing Gilmore v. State, 119 So. 3d 278, 286 (¶13) (Miss. 2013)). In

determining whether the evidence supported Clayton’s lesser-included-offense instruction,

this Court stated that “it was Clayton’s responsibility at trial to point the trial judge to some

record evidence from which the jury could have found him not guilty of first-degree murder

but guilty of second-degree murder.” Id. at *5 (¶12). Based on the fact that Clayton’s

counsel offered no argument whatsoever in support of the manslaughter instruction, we held

the trial court correctly found that there was no evidence in the record supporting the notion

that a reasonable jury could have found Clayton not guilty of first-degree murder and,

instead, guilty of manslaughter. Id. Accordingly, Clayton was not entitled to a lesser-

included-offense instruction. Id.; see also Johnsey, 296 So. 3d at 97 (¶16) (holding that a

defendant was not entitled to a jury instruction on the lesser-included-offense of trespass for

a burglary charge where he could point to no evidence in the record on which a reasonable

jury could have found him guilty of trespass but not guilty of burglary).

¶23. Davis argues that the trial court should have allowed a lesser-included-offense

instruction of simple assault based on Downs because in Downs the court found that in

factually appropriate cases, simple assault can be a lesser-included-offense of robbery. Davis

argues that following the same reasoning in Downs, simple assault could be considered a

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lesser-included-offense of armed robbery. Based on this reasoning, Davis believes he should

have been entitled to a lesser-included-offense instruction for simple assault. However, he

must still point to the evidence that proves he was not guilty of armed robbery.

¶24. Davis claims there was no evidence of a demand for money; therefore, a reasonable

juror could have found him not guilty of armed robbery. But Shorter testified that Davis did

make a demand for money in the form of the command “empty your pockets.” Based on this

testimony, a reasonable jury would consider the element of a demand for money to have been

met, as any time an assailant points a gun and commands a person to empty his pockets, it

is reasonable to assume it is because they are robbing the person of his property. Because

Davis failed to point to any evidence in the record to rebut Shorter’s testimony, and given the

record before us, we find that no reasonable jury could have found him not guilty of armed

robbery and guilty of simple assault. Accordingly, the judge did not err when he refused

Davis’s lesser-included-offense instruction.

CONCLUSION

¶25. The trial court did not err in denying Davis’s motion for judgment notwithstanding

the verdict or a new trial because the jury’s decision was not against the overwhelming

weight of the evidence. Further, we do not find Davis’s arguments regarding the lesser-

included-offense instruction convincing, as there was evidence in the record upon which a

reasonable juror could have found Davis guilty of the indicted offense. The trial court did

not err in refusing his request for a lesser-included-offense instruction. For these reasons,

we affirm.

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¶26. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, LAWRENCE, McCARTY, SMITH AND EMFINGER, JJ.,
CONCUR.

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