Victor Sims v. State of Mississippi , 213 So. 3d 90 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-KA-01311-COA
VICTOR SIMS A/K/A VICTOR L. SIMS A/K/A APPELLANT
VICTOR LAVINO SIMS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/24/2015
TRIAL JUDGE: HON. WAYMAN DAL WILLIAMSON
COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: ANTHONY J. BUCKLEY
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF FOUR COUNTS OF
ARMED ROBBERY AND SENTENCED TO
FOUR CONCURRENT TERMS OF
TWENTY-EIGHT YEARS, ALL IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
DISPOSITION: AFFIRMED - 09/20/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
CARLTON, J., FOR THE COURT:
¶1. Victor Sims appeals his convictions and sentences for four separate counts of armed
robbery. See Miss. Code Ann. § 97-3-79 (Rev. 2014). On appeal, Sims raises the following
issues: (1) whether his trial attorneys rendered ineffective assistance of counsel; and (2)
whether the verdicts were contrary to the weight of the evidence. Finding no error, we
affirm.
FACTS
¶2. On October 21, 2014, a Jones County grand jury indicted Sims and his nephew, Randy
Dunn, for one count of armed robbery involving four separate victims. The single-count
indictment charged that, on March 16, 2014, Sims and Dunn, working in conjunction with
one another:
[W]illfully, unlawfully, and feloniously attempt[ed] to take or took the
personal property of Joyce McCoy, Evelyn Thomas, Dorothy Jackson, and
Victoria Dean from the person and presence of [McCoy, Thomas, Jackson, and
Dean], against their will, by violence to their person, by putting them in fear
of immediate injury by exhibition of a handgun, a deadly weapon . . . .
¶3. On December 11, 2014, the circuit court appointed Patrick Pacific as Sims’s public
defender. On February 3, 2015, Sims filed a pro se motion to dismiss the charge against him.
The next month, on March 16, 2015, Pacific filed a motion in limine to exclude from the trial
the alleged victims’ statements and any references to the statements. In correspondence
dated March 24, 2015, Sims wrote a letter to the Mississippi Bar in which he complained
about his legal representation. Then, on March 27, 2015, Sims filed a second pro se motion
to dismiss the charge against him. On April 1, 2015, Pacific filed a motion to withdraw as
Sims’s counsel. Citing Sims’s letter to the Mississippi Bar, Pacific asserted to the circuit
court that he felt he could no longer represent Sims.
¶4. On April 2, 2015, the circuit court entered orders denying Sims’s motion in limine and
his two motions to dismiss the charge against him. Although the circuit court also denied
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Pacific’s motion to withdraw as Sims’s attorney, the court appointed Brad Thompson from
the public defender’s office to serve as co-counsel on Sims’s case. On April 17, 2015,
Pacific and Thompson filed a motion to reduce Sims’s bond. However, the circuit court
denied that motion as well.
¶5. The circuit court scheduled Sims’s trial for May 18, 2015. However, ten days before
trial, on May 8, 2015, the grand jury handed down an amended indictment against Sims and
Dunn. The amended indictment still charged Sims and Dunn with armed robbery of the four
victims named in the original indictment. However, instead of charging Sims and Dunn with
only one count of armed robbery involving all four victims, the amended indictment now
charged Sims and Dunn with four separate counts of armed robbery—one count for each of
the four separate victims.
¶6. On May 14, 2015, Sims’s attorneys and Dunn’s attorney filed an unsuccessful joint
motion to quash the amended indictment. Although the circuit court denied the motion, the
court rescheduled Sims’s and Dunn’s trial dates to afford each of the defendants a fair
opportunity to present a defense to the amended multi-count indictment. Pursuant to its
ruling, the circuit court rescheduled Sims’s trial date for June 23, 2015.
¶7. At Sims’s trial, Lieutenant Robert Morris testified that he responded to an armed-
robbery complaint at McCoy’s house at 11:39 p.m. on March 16, 2014. When Lieutenant
Morris arrived at the scene, McCoy informed him that she and several other ladies had been
playing cards when two black males entered with guns and demanded the ladies’ money.
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Lieutenant Morris further testified that the ladies identified Sims as one of the robbers and
stated that Sims and his accomplice drove away in a black Pontiac Grand Prix.
¶8. Agent Josh Stringer with the Mississippi Bureau of Narcotics next testified. At the
time of the armed robbery, Agent Stringer was employed as an officer with the Laurel Police
Department. Agent Stringer also responded to the armed-robbery complaint at McCoy’s
house. While en route to McCoy’s house, Agent Stringer learned Sims was a suspect and had
allegedly fled the crime scene in a black Pontiac Grand Prix. Due to prior interactions with
Sims, Agent Stringer knew Sims currently lived with his girlfriend, Sholanda Simmons, who
owned a black Pontiac Grand Prix. As a result, Agent Stringer testified that he drove to
Simmons’s residence to try to locate Sims and the car.
¶9. As he drove toward Simmons’s house, Agent Stringer encountered a crowd of people
gathered outside a nearby residence. Members of the crowd flagged down Agent Stringer’s
marked patrol car, and he pulled over to speak to them. Agent Stringer testified that one of
the individuals, Octavia Jackson, said she had heard that Sims was a suspect in the armed
robbery. Octavia further told Agent Stringer that she was not present at the time of the
robbery but that she had been at McCoy’s residence earlier in the evening when Sims had
also been present. Agent Stringer testified that Octavia stated Sims had appeared to be under
the influence of something and had caused a disturbance. Octavia told Agent Stringer that,
due to Sims’s behavior, McCoy had forced Sims to leave, and Octavia had left shortly after
Sims.
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¶10. Agent Stringer further testified that he spoke to Kimberly Ransom, who was present
at the time of the armed robbery and had her wallet and some cash stolen. Agent Stringer
said Ransom told him that she knew without a doubt that Sims and Dunn were the two
suspects involved in the crime. Agent Stringer testified that Ransom informed him that Sims
wore sunglasses and concealed the lower part of his face and that he held a small silver
revolver. Ransom also told Agent Stringer that, even though Dunn wore what appeared to
be a pair of stockings over his face, she still recognized him.
¶11. The jury next heard from McCoy, the victim who owned the house where the armed
robbery occurred. McCoy stated that both Sims and his girlfriend, Simmons, had been at her
home earlier in the evening prior to the robbery. McCoy testified that Sims wore a brown
shirt and black pants during his initial visit and that he told Octavia, who was playing cards,
that “[h]e should take her money out of her wallet.”
¶12. McCoy further testified that, around 1 a.m., she was cleaning up the mess from the
party in her bathroom when Sims returned. Even though Sims wore a black stocking cap
over his face to hide his identity, McCoy stated that she could still see his complexion.
McCoy also testified that Sims wore the same clothes from earlier and that she heard one of
the other ladies refer to Sims by name when Sims entered the house. McCoy testified that
Dunn accompanied Sims and pointed a silver gun at her while Sims pointed a black gun at
the other ladies in the kitchen. McCoy said that, before leaving, Sims asked whether McCoy
had anything on her. McCoy testified that she pointed to the couch, where her purse was
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lying. According to McCoy, Sims stole her wallet, Social Security card, debit cards, and
about $700 in cash from her purse.
¶13. The State next called McCoy’s mother, Dorothy, as a witness. Dorothy also testified
that Sims was at McCoy’s house prior to the robbery and that he told Octavia he ought to
take Octavia’s money. Dorothy testified that one of the other ladies, Dean, then had some
words with Sims following his comment to Octavia. Dorothy stated that Dean “told [Sims]
to get out from behind her[,] talking about taking somebody’s money, and he said a few
words.” Dorothy characterized the exchange between Dean and Sims as slightly hostile, and
she testified that Sims left after the exchange. However, Dorothy further stated that Sims
returned later with another man and that Sims wore the same brown shirt and black pants that
he wore earlier. Dorothy testified that Sims pointed a silver pistol at her and the other ladies
in the kitchen while his partner held a silver gun on her daughter, McCoy, in the bathroom.
Although Sims wore something over his face, Dorothy testified that she recognized Sims and
that Dean even called Sims by name after he entered. Dorothy further testified that Sims
stole about $300 from her.
¶14. Thomas, another of the armed-robbery victims, testified that Sims and another man
entered McCoy’s house holding guns. Thomas stated that Sims held a silver revolver on her
and the other ladies in the kitchen while his accomplice pointed a black gun at McCoy.
Thomas testified that she recognized Sims because he wore the same clothes that he had on
earlier in the day. According to Thomas, when Sims robbed her, he was wearing a brown
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shirt, black pants, and a black baseball hat with a gold symbol on it. Thomas also testified
that she had known Sims for about fifteen years and had worked with his mother. Thomas
stated that Sims stole about $300 from her.
¶15. The final armed-robbery victim, Dean, testified next. Dean stated that, the first time
Sims entered McCoy’s home, he stood behind Dean’s chair at the kitchen table. Dean further
testified that Sims told Octavia that he needed to take Octavia’s purse, and Dean said she was
unsure whether Sims was joking when he made the statement. Regardless of whether Sims
intended the comment as a joke, Dean told him to not stand behind her chair. Dean also
stated that Sims, who was wearing a brown shirt and black pants, left McCoy’s house soon
after the exchange.
¶16. Dean further testified that, around 1 a.m., McCoy was tidying the house when
someone entered the doorway directly behind Dean’s chair and said, “Give up the money.”
Without turning around to look at the speaker, Dean testified that she replied, “Victor, get
out from behind me playing.” Dean said she immediately recognized the speaker as Sims
because she had known Sims for over twenty years. When Dean finally turned around, she
saw Sims and another man both holding guns. According to Dean, Sims’s gun appeared to
be black. Although Sims seemed to have a black stocking tied around his head, Dean
testified that he was still wearing the same brown shirt and black pants from his earlier visit
to McCoy’s house. Dean stated that Sims and his accomplice stole about $250 from her.
¶17. During the defense’s case-in-chief, Sims testified on his own behalf. Sims testified
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that, on the night of the armed robbery, his girlfriend, Simmons, allowed him to borrow her
car. Sims stated that he dropped Simmons off at McCoy’s house around 6 p.m. and then
returned a little after 9 p.m. to pick her up. While at McCoy’s house to pick up Simmons,
Sims testified that he jokingly made a comment to one of the ladies that he would “take [her]
little chump change.” Because Simmons had already left the card game by the time he
arrived to pick her up, Sims testified that he did not stay at McCoy’s house very long.
¶18. Sims and his sister, Verlinda, both testified that Sims left Verlinda’s house around
10:30 p.m. the night of the robbery to go to Dunk’s, a night club about thirty minutes away
in Hebron, Mississippi. Sims testified that he stopped at a place called Norman’s and then
arrived at Dunk’s around 11:30 p.m. Sims further stated that he was still at Dunk’s when the
armed robbery occurred. Sims’s nephew, Phillip Sims, testified that he was also at Dunk’s
on the night in question and that he saw Sims there. According to Phillip’s testimony, he first
saw Sims around 12:25 a.m.
¶19. Upon learning that the police suspected Sims of the armed-robbery incident, Verlinda
testified that she called Sims around 11:45 p.m. to relay the news. Despite Phillip’s
testimony that he saw Sims at Dunk’s around 12:25 a.m., Verlinda testified that Sims met her
around 12:30 a.m. at a local mall so he could return Simmons’s car. Verlinda stated that she
followed Sims to Simmons’s house, where Sims parked Simmon’s car and got into
Verlinda’s car. Verlinda testified that Sims had just climbed into her vehicle when the police
arrived and arrested Sims.
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¶20. After considering all the evidence and testimony, the jury found Sims guilty of all four
armed-robbery counts. The circuit court then sentenced Sims to four concurrent terms of
twenty-eight years in the custody of the Mississippi Department of Corrections. Sims filed
an unsuccessful motion for a judgment notwithstanding the verdict or, in the alternative, a
new trial. Aggrieved by his convictions and sentences, Sims appeals.
DISCUSSION
I. Whether Sims’s trial attorneys rendered ineffective assistance of
counsel.
¶21. Sims argues that his trial attorneys rendered ineffective assistance of counsel by
failing to object to the prejudicial hearsay testimony of two of the State’s witnesses and by
failing to request an alibi jury instruction. We separately address each of the two allegations
raised under this assignment of error. Upon review, we find no merit to Sims’s ineffective-
assistance-of-counsel claim.
¶22. To prove ineffective assistance of counsel, Sims must show (1) his attorneys’
performance was deficient, and (2) the deficiency prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687 (1984). Appellate courts presume that trial counsel’s
decisions are strategic, and we give great deference to trial counsel’s performance. Blunt v.
State, 55 So. 3d 207, 210 (¶11) (Miss. Ct. App. 2011). “With respect to the overall
performance of the attorney, counsel’s choice of whether or not to file certain motions, call
witnesses, ask certain questions, or make certain objections falls within the ambit of trial
strategy and cannot give rise to an ineffective[-]assistance[-]of[-]counsel claim.” Shinn v.
9
State, 174 So. 3d 961, 965 (¶10) (Miss. Ct. App. 2015) (citation omitted).
¶23. Thus, defendants face “a strong but rebuttable presumption that counsel’s
performance falls within the broad spectrum of reasonable professional assistance.” Blunt,
55 So. 3d at 210 (¶11) (citation omitted). To overcome the presumption, a defendant must
show a reasonable probability that, but for his counsel’s unprofessional errors, the outcome
of the proceeding would have been different. Goldman v. State, 162 So. 3d 889, 893 (¶15)
(Miss. Ct. App. 2015). “A fair assessment of attorney performance requires that every effort
be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689. In examining ineffective-assistance-of-counsel claims,
the appellate court conducts a de novo review of the record as a whole and looks at the
totality of the circumstances. Blunt, 55 So. 3d at 210 (¶12).
¶24. As we have previously stated:
It is unusual for this Court to consider a claim of ineffective assistance
of counsel when the claim is made on direct appeal because there is usually
insufficient evidence within the record to evaluate the claim. Because an
appellate court is limited to the trial record on direct appeal, issues of
ineffective assistance of counsel are more appropriate in a motion for
postconviction relief. We may address such claims on direct appeal only if (a)
the issues are based on facts fully apparent from the record, or (b) the parties
stipulate that the record is adequate, and we determine that additional findings
of fact by a trial judge are not needed[.] If the record is not sufficient to
address the claims on direct appeal, we dismiss the claims without prejudice,
preserving the defendant’s right to raise the claims later in a properly filed
motion for postconviction relief.
Shinn, 174 So. 3d at 965 (¶11) (internal citations and quotation marks omitted).
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¶25. In addressing Sims’s claim of ineffective assistance of counsel, we acknowledge that
the State declines to stipulate that the record is adequate for judicial review of this issue on
direct appeal. Therefore, unless the issue is “based on facts fully apparent from the record[,]”
we must dismiss Sims’s claim without prejudice. Id. (citation omitted). Upon review, we
find the record in this case contains sufficient evidence to address Sims’s claim on direct
appeal. We therefore address the merits of Sims’s ineffective-assistance-of-counsel claim.
We first discuss Sims’s allegation that his attorneys rendered ineffective assistance by failing
to object to certain hearsay testimony. We then address Sims’s assertion that his attorneys
erred by failing to request an alibi jury instruction.
a. Hearsay Testimony
¶26. Sims contends that his trial attorneys repeatedly failed to object to prejudicial and
inadmissible hearsay testimony elicited from two of the State’s witnesses. Specifically, Sims
takes issue with the following: (1) Lieutenant Morris’s testimony about “what [the] women
at the card game supposedly told him about the robbery[,]” including his testimony that Dean
“allegedly told him she definitely recognized . . . Sims as the robber and called [Sims] by
name”; and (2) Agent Stringer’s testimony about the statements Octavia and Ransom gave
him, including Octavia’s statement that she had heard one of the suspected armed robbers
was Sims, and Ransom’s statement that she was present when the robbery occurred and knew
the robbers were Sims and Dunn.
¶27. “We presume that decisions not to object to testimony were strategic if they fairly can
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be characterized as such.” Shinn, 174 So. 3d at 967 (¶15) (citations omitted). In the present
case, the State argues that Sims’s attorneys raised no objections at trial to Lieutenant Morris’s
and Agent Stringer’s testimony as part of a reasonable trial strategy to “fully develop the
inconsistencies between what certain witnesses initially told police and what [those same
witnesses later] testif[ied] to at trial.” Upon review, we agree that the evidence in the record
reflects and supports a trial strategy of attacking inconsistencies in witness testimony. Thus,
we find that the decision by Sims’s attorneys to not object to the disputed testimony can be
fairly characterized as a strategic decision.
¶28. Throughout Sims’s trial, the record reflects that the defense attempted to emphasize
the inconsistencies existing among the various witness accounts of the armed robbery.
During opening statements, Sims’s attorney, Pacific, stated:
Now, we don’t really know what happened that night. There [were] so many
inconsistencies in the statements [as to] what happened, who wore what, who
said what, [and] who was there. . . . The only evidence that we have that ties
. . . Sims to this crime is the four victims’ statements[,] which all somewhat
contradict each other . . . .
¶29. During the State’s case-in-chief, Sims’s attorneys repeatedly seized upon the
opportunity to cross-examine witnesses about the various inconsistencies in their accounts
of the armed robbery. With respect to Lieutenant Morris’s testimony and Agent Stringer’s
testimony, Sims’s attorneys questioned the two law-enforcement officials about the differing
accounts of the armed robbery related to them by the alleged victims.
¶30. As the record reflects, Lieutenant Morris testified on direct examination that he
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responded to the armed-robbery call at McCoy’s house. While interviewing the witnesses
present at the scene, Lieutenant Morris testified that Dean told him that she recognized Sims
as one of the armed robbers because she had known Sims for a while, because Sims had been
at McCoy’s house earlier in the evening wearing almost the exact same clothing, and because
Dean recognized Sims’s voice.
¶31. Although Sims’s attorneys raised no objection to Lieutenant Morris’s direct testimony
about what Dean told him, the record reflects that the defense revisited the issue during
Lieutenant Morris’s cross-examination. In response to questions by Sims’s attorneys,
Lieutenant Morris admitted that, other than Dean, none of the other ladies at McCoy’s house
told him that Sims was one of the armed robbers. Furthermore, Lieutenant Morris testified
during his cross-examination that he found nothing inside or outside the house to implicate
Sims in the crime. Instead, Lieutenant Morris agreed that he and his fellow officers began
to consider Sims as a suspect based solely on the statements provided by the ladies at
McCoy’s house. We also note that Dean herself testified to the same statements that
Lieutenant Morris attributed to her during his testimony. As the record reflects, Sims’s
attorneys then had an opportunity to question her about her statements during cross-
examination.
¶32. Following Lieutenant Morris’s testimony, the State next called Agent Stringer as a
witness. Agent Stringer testified on direct examination that, as he was driving to the house
of Sims’s girlfriend to look for Sims and the suspected getaway car, he encountered Octavia.
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Agent Stringer stated that Octavia wanted to report the armed robbery to him. Agent Stringer
further stated that he informed Octavia that law enforcement already knew of the armed
robbery, and he asked whether Octavia had any information on the crime. Octavia responded
that she had been present at McCoy’s house earlier in the evening but had not been present
when the robbery actually occurred. Agent Stringer testified that Octavia also stated she had
heard that Sims was a suspect in the robbery. In addition, Agent Stringer testified that he
spoke to Ransom, who told him that she was present when the armed robbery occurred and
that “she knew without a doubt” that Sims and Dunn were the two suspects involved in the
armed robbery.
¶33. As the record reflects, Sims’s attorneys again raised no objections to Agent Stringer’s
testimony as to what Octavia and Ransom told him. However, on cross-examination, Sims’s
attorneys further questioned Agent Stringer about the statements each woman gave him on
the night of the armed robbery. With regard to Octavia’s statement, the record shows that
Agent Stringer again testified that Octavia had admitted she was not present at the time of
the armed robbery and was simply relaying information she had heard from someone else.
With regard to Ransom’s statement, Sims’s attorneys asked on cross-examination whether
Agent Stringer was aware that Ransom had later signed a statement saying that Sims was not,
in fact, involved in the armed robbery. In response, Agent Stringer testified that he was not
aware that Ransom had signed such a statement since that would have been handled by the
case investigators rather than by him.
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¶34. In questioning the four victims about the events of the armed robbery, the defense
continued to highlight any inconsistencies existing in their testimony. The record shows that,
in addition to identifying discrepancies between the witnesses’ trial testimony and their prior
statements to police, the defense also attempted to emphasize the inconsistencies that existed
from one account of the armed robbery to the next. Finally, during its closing argument, the
defense once again identified for the jury the various discrepancies and inconsistencies
existing among the witnesses’ accounts of the armed robbery.
¶35. Upon review, we find that Sims fails to meet his burden to show that his attorneys’
“representation fell below an objective standard of reasonableness.” See Strickland, 466 U.S.
at 688. As our caselaw recognizes, Sims was only guaranteed “the right to reasonably
effective counsel or competent counsel, not perfect counsel or one who makes no mistakes
at trial.” Havard v. State, 928 So. 2d 771, 780 (¶7) (Miss. 2006) (citations omitted).
Furthermore, as previously stated, “counsel’s choice of whether or not to . . . make certain
objections falls within the ambit of trial strategy and cannot give rise to an ineffective[-
]assistance[-]of[-]counsel claim.” Shinn, 174 So. 3d at 965 (¶10) (citation omitted). After
reviewing the totality of the circumstances, we find the record contains evidence to show that
Sims’s attorneys may have decided not to object to the disputed testimony as part of an
overall trial strategy to attack the inconsistencies existing in the testimony of the various
eyewitnesses and the State’s other witnesses. As a result, we find no merit to this assignment
of error.
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b. Alibi Jury Instruction
¶36. As acknowledged, Sims also contends that his trial attorneys provided ineffective
assistance of counsel because they failed to request an alibi jury instruction. According to
Sims, his alleged alibi constituted his sole defense at trial. Sims asserts that his attorneys’
failure to request an alibi jury instruction meant the jury was not properly presented with his
theory of the case and was not informed that he did not have to prove the truth of his alibi.
¶37. Jurisprudence reflects that this Court has previously upheld ineffective-assistance-of-
counsel claims due to inadequate jury instructions. McTiller v. State, 113 So. 3d 1284, 1291
(¶23) (Miss. Ct. App. 2013). “When claiming ineffective assistance of trial counsel because
of jury instructions, it is the duty of the appellant to demonstrate both error in failing to
receive the instruction and the prejudice to the defense.” Havard, 928 So. 2d at 789 (¶28)
(citation and internal quotation marks omitted). As this Court has stated:
When confronted with issues concerning jury instructions, an appellate court’s
primary concern is that the jury was fairly instructed and that each party’s
proof-grounded theory of the case was placed before it. A defendant is entitled
to jury instructions that support his theory of the case, even when the evidence
supporting his theory is weak, inconsistent, or of doubtful credibility.
Evidence supporting the defendant’s theory of the case may even arise from
. . . his own testimony.
Love v. State, 85 So. 3d 940, 942 (¶8) (Miss. Ct. App. 2012) (internal citations and quotation
marks omitted).
¶38. Although Sims claims that his alibi constituted his sole defense at trial, as previously
discussed, the record shows that his attorneys pursued a defense and a trial strategy that
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attacked the contradictions and inconsistencies in the victims’ stories to impeach the victims’
credibility. In the defense’s opening statement and closing argument, Sims’s attorneys never
referenced Sims’s alleged alibi but instead repeatedly emphasized the discrepancies among
the different eyewitness accounts of the armed robbery. In addition, throughout the trial,
Sims’s attorneys questioned the victims and other witnesses about the inconsistencies in the
victims’ stories.
¶39. The record also shows that Sims testified on his own behalf and asserted that he was
at a night club at the time of the armed robbery. A review of the record, however, shows that
the trial testimony, including Sims’s own testimony, failed to support an alibi instruction or
to foreclose the possibility that Sims possessed the opportunity to commit the offense.
¶40. As the record reflects, the victims identified Sims as one of the armed robbers, and
Sims himself testified that he had known the victims “for a long time.” Sims also admitted
being at McCoy’s house prior to the armed robbery to pick up his girlfriend, Simmons. Sims
further testified, though, that he was about thirty minutes away at Dunk’s, a night club, when
the armed robbery occurred. Lieutenant Morris testified that he responded to the armed-
robbery complaint at McCoy’s house at 11:39 p.m. According to Sims, he arrived at Dunk’s
around 11:30 p.m. Sims’s nephew, Phillip, similarly testified that Sims was at Dunk’s the
night of the armed robbery. However, Phillip testified that he did not see Sims at the night
club until around 12:25 a.m. Thus, as the record reflects, no one testified to seeing Sims at
Dunk’s at the time the armed robbery actually occurred.
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¶41. The record also reflects that Sims’s sister, Verlinda, testified to meeting Sims at a
local mall around 12:30 a.m. Verlinda further testified that she then followed Sims to his
girlfriend’s house to return the girlfriend’s vehicle. According to Verlinda, Sims had just
climbed into her vehicle when police arrived and arrested him. Thus, the testimony provided
at trial placed Sims within the geographical location of the armed robbery around the time
that the crime occurred. The testimony revealed that Sims possessed the opportunity to
commit the armed robbery at the reported time of the offense. As a result, the testimony
failed to provide Sims with an alibi that foreclosed the possibility that he committed the
armed robbery at the reported time and location of the crime.
¶42. The record reflects that Sims’s testimony constituted a general denial of having
committed the crime. Instead of pursuing an alibi defense, Sims’s attorneys attacked the
credibility of the witnesses by highlighting the inconsistencies and contradictions in their
stories. Rule 9.05 of the Uniform Rules of Circuit and County Court sets forth the discovery
requirements for asserting an alibi defense. We acknowledge that, in its appellate brief, the
State provides that “the prosecutor indicated a month prior to trial [that] the defense had
provided a written notice of the intention to offer an alibi defense as required by [R]ule 9.05
. . . , [but] we cannot find such in the record.” Indeed, the record before this Court contains
no documents to show that Sims provided notice to the State of his intent to assert an alibi
defense, including the specific place he claimed to be during the alleged offense and the
names of any witnesses upon whom he intended to rely to establish his alleged alibi defense.
18
See URCCC 9.05.
¶43. We now turn to jurisprudence to review the evidentiary predicate for an alibi defense
and related jury instructions. In Owens v. State, 809 So. 2d 744, 746-47 (¶¶7-8) (Miss. Ct.
App. 2002), this Court stated:
[T]he law relating to an alibi defense involves something more than a simple
denial by the defendant that he was present at the precise time the crime was
committed. Black’s Law Dictionary suggests that the defense requires
evidence that the defendant’s location at the relevant time was “so removed
therefrom as to render it impossible for him to be the guilty party.” Black’s
Law Dictionary 71 (7th ed. 1999). Thus, a defendant in close enough physical
proximity to have committed the crime may deny the criminal activity and may
affirmatively assert that he was elsewhere at the critical time. However, if the
asserted alternate location is such that, based on the version of events
contended for by the defense, it would remain within the realm of physical
possibility for the defendant to have committed the crime, then the defense is
nothing more than a denial and would not rise to the level of alibi. It is a
fundamental concept of our system of criminal procedure that an instruction
may not be given, even if it correctly recites the law, if there is no evidentiary
basis for the instruction. Hodge v. State, 801 So. 2d 762, 775 (¶42) (Miss. Ct.
App. 2001).
A defendant desiring to assert an alibi defense must, therefore, present
evidence that, if found credible by the jury, would raise a reasonable doubt as
to his culpability based on notions of the physical impossibility of having been
at the crime scene during the crime’s commission.
¶44. As already discussed, Sims testified that he was at a night club at the time the armed
robbery occurred, and Sims’s nephew, Phillip, testified that he saw Sims at the night club
around 12:25 a.m. However, the record reflects that officers responded to the armed-robbery
complaint at McCoy’s house at 11:39 p.m. In addition, Phillip’s testimony directly
contradicted the defense testimony given by Sims’s sister, Verlinda, who stated that she met
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Sims at a local mall at 12:30 a.m. so he could return his girlfriend’s car.
¶45. Despite Sims’s testimony denying that he committed the crime and claiming that he
was at a night club at the time, as in Owens, Sims failed to offer “evidence as to the physical
distance from his alleged location to the place where the crime was committed from which
the jury could reasonably conclude that it was impossible for him to have committed the
crime.” Owens, 809 So. 2d at 747 (¶8). As a result, the record shows that Sims’s evidence,
or lack thereof, failed to present the necessary elements of an alibi defense. Thus, the circuit
court was not required to instruct the jury on the issue. See id.; see also Cochran v. State,
913 So. 2d 371, 374-75 (¶¶10-15) (Miss. Ct. App. 2005) (finding that the trial court correctly
denied the defendant’s alibi jury instruction because the instruction lacked a foundation in
the evidence).
¶46. Based on a review of the record and Mississippi caselaw, we find that Sims’s
testimony amounted to a simple denial of having committed the crime that failed to require
an alibi jury instruction. See Owens, 809 So. 2d at 746-47 (¶¶7-8). Since the evidence failed
to provide a sufficient evidentiary foundation to support or require an alibi instruction, we
find no ineffective assistance of counsel by Sims’s attorneys based on the failure to request
such an instruction. In addition, we find that Sims’s attorneys may very well have chosen
not to submit an alibi jury instruction as part of a calculated trial strategy and due to a lack
of a sufficient evidentiary foundation for such an instruction. Although this strategy proved
unsuccessful, we cannot say that Sims’s attorneys provided a deficient performance or that,
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but for their deficient performance with regard to this issue, a reasonable probability exists
that the outcome of the trial would have been different. See also Havard, 928 So. 2d at 791
(¶32) (“Trial counsel’s decision not to submit lesser offense instructions, while it turned out
to be unsuccessful, was appropriate trial strategy, and thus beyond the realm of serious
consideration on a claim of ineffective assistance of counsel.”). We therefore find no merit
to Sims’s argument that his attorneys were ineffective due to their failure to submit an alibi
jury instruction.
II. Whether the verdicts were contrary to the weight of the evidence.
¶47. Sims next contends that the jury’s guilty verdicts were contrary to the weight of the
evidence. According to Sims, the testimony of the four alleged armed-robbery victims was
so contradictory that the testimony failed to support the verdicts against him. In addressing
Sims’s argument, we apply the following standard of review:
When considering challenges to the weight of the evidence, we view the
evidence in the light most favorable to the verdict. To disturb a verdict on this
ground, we would have to find it was contrary to the overwhelming weight of
the evidence and an unconscionable injustice. Our review requires [that] we
accept all evidence consistent with the defendant’s guilt as true[,] together with
any reasonable inferences that may be drawn from the evidence. Any factual
disputes are properly resolved by the jury and do not mandate a new trial.
Duke v. State, 146 So. 3d 401, 407 (¶22) (Miss. Ct. App. 2014) (internal citations and
quotation marks omitted).
¶48. A review of the record reflects no merit in Sims’s contention that the verdicts were
contrary to the weight of the evidence. Though the victims’ testimony about the armed
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robbery contained inconsistencies, these conflicts are not sufficient to warrant a reversal of
the guilty verdicts. See id. at (¶23); Grossley v. State, 127 So. 3d 1143, 1149 (¶20) (Miss.
Ct. App. 2013). While the victims’ testimony varied in some respects, their accounts also
corroborated each other on several material points. The victims’ testimony also provided
sufficient evidence of each element of the indicted offenses for the jury to find Sims guilty
of each offense beyond a reasonable doubt. Furthermore, we recognize that the
determination of how much weight and credibility to give to a witness’s testimony falls
within the jury’s province. Price v. State, 23 So. 3d 582, 586 (¶17) (Miss. Ct. App. 2009).
¶49. As the record reflects, all four of the armed-robbery victims named in Sims’s
indictment identified Sims as one of the two men who entered McCoy’s house on March 16,
2014, and robbed them at gunpoint. The women testified that they recognized Sims even
though he tried to conceal his face. According to the four victims of the armed robbery, Sims
had been at McCoy’s house prior to the robbery, and he had worn a brown shirt and black
pants. All four women testified that Sims still wore the same brown shirt and black pants
when he returned to rob them. Thomas testified that she also recognized Sims because she
had known him for about fifteen years and had worked with his mother. In addition, Dean
stated that, even before turning around to look at the robbers, she recognized Sims’s voice
and that she addressed Sims by name. According to Dean, she immediately recognized Sims
because she had known him for over twenty years.
¶50. The record also reflects that the victims reported to law enforcement that the robbers
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drove away in a black Pontiac Grand Prix. According to Agent Stringer, he knew from his
prior interactions with Sims that Sims’s girlfriend owned a black Pontiac Grand Prix.
Furthermore, as Sims himself testified at trial, his girlfriend had let him borrow her car on
the night of the armed robbery. Sims’s sister, Verlinda, also testified that she met Sims at
a local mall around 12:30 a.m. so he could return Simmons’s car.
¶51. After viewing the evidence in the light most favorable to the jury’s verdicts, we cannot
say that the inferences the jury drew from the evidence were unreasonable or that the verdicts
against Sims are unconscionable. See Duke, 146 So. 3d at 407 (¶22). We therefore find no
merit to Sims’s assignment of error.
¶52. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT, SECOND
JUDICIAL DISTRICT, OF CONVICTION OF FOUR COUNTS OF ARMED
ROBBERY AND SENTENCE OF FOUR CONCURRENT TERMS OF TWENTY-
EIGHT YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO JONES COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.
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