Jennifer Lee Hoffman v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-00456-COA
JENNIFER LEE HOFFMAN A/K/A JENNIFER APPELLANT
HOFFMAN
v.
APPELLEE
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 03/13/2014
TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
PHILLIP BROADHEAD
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: DOUG EVANS
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF ARMED ROBBERY AND
SENTENCED TO THREE YEARS IN THE
CUSTODY OF MISSISSIPPI DEPARTMENT
OF CORRECTIONS
DISPOSITION: AFFIRMED - 04/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.
JAMES, J., FOR THE COURT:
¶1. Following a jury trial in the Circuit Court of Attala County, Mississippi, Jennifer
Hoffman was convicted of armed robbery. Following a denial of Hoffman’s motion for a
judgment notwithstanding the verdict or, in the alternative, a new trial, Hoffman filed this
appeal. We affirm Hoffman’s conviction and sentence.
FACTS
¶2. On Friday evening, August 16, 2013, Henry Hood and Hoffman met in Kosciusko,
Mississippi, where Hood lived, to have sexual intercourse. Hood and Hoffman had met on
Facebook through Kayla McDaniel, a mutual associate. Hood agreed to pay Hoffman $100
to have sex with him. Hoffman, a Louisiana resident, claimed she traveled to Mississippi on
July 15, 2013, to visit for a couple of weeks. She testified that her ride from Attala County
to get home had abandoned her. Since none of her friends or family were able to lend her
money to buy a train ticket to return home, she accepted Hood’s offer.
¶3. Hoffman followed Hood to his brother’s old house in a suburban owned by
McDaniel’s boyfriend, Shawn Despres. They attempted to go in the house, but Hood did not
have keys to unlock the door. They decided to have sex in the suburban. Unbeknown to
Hood, McDaniel, Despres, and Clearence Windom were hiding in the back of the suburban.
According to Hoffman, the group offered to go with her because she did not know her way
around Kosciusko. Hood testified that he sat in the passenger seat of the suburban, and as
soon as Hoffman climbed on top of him, Windom jumped up, wrapped his arm around
Hood’s neck, and held a knife to Hood’s throat. Hood stated that Hoffman did not say
anything during the robbery. Hood testified that Hoffman instead went to his vehicle, looked
through his belongings, and stole his cell phone.
¶4. According to Hoffman and Windom, McDaniel went through Hood’s vehicle.
Hoffman stated that after Windom jumped out and grabbed Hood, she got out the suburban
and went around to the driver’s side. Hoffman claimed she had no idea the group intended
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to rob Hood and was in complete shock when the incident occurred.
¶5. Despres got out of the suburban and took Hood’s belt off of him and wrapped it
around Hood’s legs. Despres also took cash and a wallet out of Hood’s pocket. Hood stated
that Hoffman wore a black dress, the guy who took his wallet wore a mask, and the other guy
was black with dreads. In all, $580, the wallet, and the cell phone were stolen from Hood.
After they finished robbing Hood, the group got in the suburban and drove away. Hood went
to a friend’s house and called the local sheriff’s office. He told them that he had been
robbed, but failed to disclose the reason why he and Hoffman had met. He did disclose that
detail later. Also, Hood initially told officers that a gun and a knife had been used during the
robbery, but he later testified that only a knife was used.
¶6. The sheriff’s office issued a “be on the lookout” call for the suburban based on
Hood’s description of the vehicle. J.W. Jenkins, a Carthage police officer, heard the call and
stopped the suburban. Hoffman, Despres, Windom, McDaniel, and Quenton Hall were in
the suburban. Officer Jenkins asked the occupants for their driver’s licenses. There was an
active warrant for McDaniel, so Officer Jenkins arrested her and transported her to the Leake
County Jail. The other occupants of the car were turned over to deputies from Attala County
and taken into custody.
¶7. The sheriff’s office had the suburban towed to the department, and an officer searched
the truck, after receiving consent from Despres to do so. The officer found $100 stuffed into
a cigarette pack lying on the passenger seat, a black mask lying on the first row of back seats,
a black dress lying on the floorboard of the second row of back seats, and an orange hoody
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lying on the floorboard of the second row of back seats. The officer also found an empty
cell-phone case and a knife in the passenger-side-door pocket. Money was also recovered
from the suspects. The officer recovered $104 from Windom, $108 from Despres, $20 from
Hoffman, and $100 from McDaniel. A total of $432 was recovered from the suspects and
the vehicle.
¶8. After Hoffman was arrested, Hoffman was warned of her Miranda rights1 and signed
a waiver of those rights, and provided a statement that was written down by a law-
enforcement officer. While giving that statement, not only did Hoffman not tell officers
about the deal she had made with Hood, she also fabricated an account of what happened.
She told law-enforcement officers that, at 11 p.m. on the night in question, she went with
Windom, Despres, and McDaniel to pick up Hall, and they headed to McDonald’s in
Carthage. However, while they were en route, the police surrounded them in Despres’s
Suburban. She stated that they did stop at a convenience store to buy beer and cigarettes that
night, but that they never went to Kosciusko. She denied knowing anything about a robbery
and claimed that she was not involved in a robbery.
The Trial
¶9. Hoffman was indicted for armed robbery on March 13, 2014, and she was tried by a
jury in Attala County. The State’s case included testimony from codefendants McDaniel,
Despres, and Windom. Their testimony about the robbery corroborated what Hood had
testified to, with some variations.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
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Despres’s Testimony
¶10. Despres testified Hoffman set up the arrangement with Hood to have sex for money,
and afterward, she told Despres there was another way she could get more money. Despres
testified that he wore a Texas-longhorn hoody with a mask, and Windom had taken his shirt
off and put it over his head. Despres testified that he took $80 from Hood’s pocket, and that
$500 was in Hood’s wallet. After the robbery, the group stopped at a store in Dossville,
Mississippi, to get beer and cigarettes. Despres kept $100 for himself and told McDaniel to
hold another $100 for him so that he would not spend it. He spent $50 out of the stolen cash
in Carthage for gas. Despres testified that Hoffman and Windom each had $100. Despres
explained that someone threw out the wallet along with Hood’s cell phone while they were
driving down Highway 35. As they were pulling out of the gas station in Carthage, the police
pulled them over. After the officers arrested the group, Despres wrote a letter to Hoffman
in which he stated he was sorry for giving a statement against her and that it was all a lie.
At trial Despres testfied that he only wrote the letter to find out what Hoffman had said
against him.
McDaniel’s Testimony
¶11. McDaniel testified that she and Hood were friends from school, and Hood and
Hoffman met through Facebook because of her. She testified that she knew about Hoffman
and Hood’s arrangement to exchange sex for money because she read their text-message
conversation. She testified that she initially did not know about the plan to rob Hood.
Nevertheless, at some point while they were following Hood, it became apparent to her that
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the group had planned to rob him, and that Hoffman was in on the plan. McDaniel said she
did not participate in the robbery. She said she only got out of the suburban during the
robbery to change seats and she did not see what Hoffman did during that time.
Windom’s Testimony
¶12. Windom testified that he was present on the day of the robbery, but said he could not
remember what happened. The trial court granted the State permission to treat him as a
hostile witness, and the State read Windom’s statements from his plea hearing into the
record. Windom’s statements at the plea hearing closely resembled Hoffman’s testimony.
For example, Windom said Despres got out of the car and took the items from Hood, and
McDaniel, not Hoffman, went to Hood’s car. Windom testified that Hoffman remained on
the driver’s side of the truck until the incident was over. He also testified that he did not
know whose idea the robbery was. The State then called law-enforcement witnesses to
testify regarding the arrest, search of the vehicle, and photo lineup.
Hoffman’s Testimony
¶13. Hoffman admitted that she arranged to have sex with Hood in exchange for $100, but
she testified that she had no idea about the plan to rob Hood, and claimed that, if she had
known, she never would have gone to Kosciusko. She claimed that the only reason that
Despres and Windom were with her was to protect her, in case something went wrong with
Hood, and to take her to the train station afterwards. She testified that she did not see
Windom use a knife during the robbery. But she did state, “if he says he did, then he did.”
She testified that, after the robbery, Windom tried to give her some of the money, but she
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turned it down. Also, after the robbery, the group stopped and bought beer. Then, the group
wanted weed, so they picked up Quentin Hall, Hoffman’s ex-boyfriend, so he could buy it
for them. Hoffman’s initial statement after the group was arrested was admitted into
evidence at trial. At trial, Hoffman testified that she lied in her pretrial statement because
she was embarrassed, but she refused to sign the statement because she knew it was not true.
¶14. After hearing and considering all the evidence that was presented, the jury found
Hoffman guilty of armed robbery. The trial court sentenced her to serve a three years in the
custody of the Mississippi Department of Corrections. Hoffman filed a timely notice of
appeal.2
DISCUSSION
I. Whether the trial court erred when it allowed the State to present
evidence of Hoffman’s prior inconsistent statement.
¶15. “The standard of review regarding the admission or exclusion of evidence is abuse of
discretion.” Al-Fatah v. State, 916 So. 2d 584, 591 (¶21) (Miss. Ct. App. 2005) (citation
omitted). If such error occurs,we will only reverse when the abuse of discretion has resulted
in prejudice to the accused. Moss v. State, 977 So. 2d 1201, 1207 (¶4) (Miss. Ct. App. 2007).
¶16. Hoffman contends that the trial court erred in allowing the State to present evidence
of her prior inconsistent statement in violation of Mississippi Rules of Evidence 613 and
2
Hoffman moved to have law students at the University of Mississippi School of Law
Criminal Appeals Clinic work on her appeal under the direction of the supervising
professor/attorney Phillip Broadhead, as attorney of record. This Court granted the motion,
and Karen Brindisi and George Dekle III were appointed as special counsel pursuant to
Mississippi Code Annotated section 73-3-207 (Rev. 2012). Brindisi and Dekle assisted in
the preparation of Hoffman’s brief.
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801(d)(2). Hoffman argues that the impeachment was complete when she effectively
admitted on direct examination that she lied to police officers and admitted during the
suppression hearing that her oral statement to the investigators was not true. Additionally,
Hoffman argues that the State failed to establish the foundation necessary for the admission
of extrinsic evidence. And this includes confronting Hoffman with her statement and
providing Hoffman with an opportunity to explain or deny it. The State argues that this issue
is procedurally barred because Hoffman’s statement was admitted at trial without objection.
¶17. At trial, Hoffman sought to exclude her pretrial statement but did so on the ground
that it was not voluntarily given. The trial court held a suppression hearing and determined
that Hoffman had given the statement voluntarily. Hoffman did not object on the grounds
that the statement was unnecessary for impeachment or that the procedure in admitting the
statement was not correct. Moreover, Hoffman made no objection when the statement was
finally admitted. Hoffman also failed to raise this issue in her motion for a new trial.
¶18. “It is well-settled law that the failure to make a contemporaneous objection waives
the right of raising the issue on appeal.” Lang v. State, 931 So. 2d 689, 691 (¶11) (Miss. Ct.
App. 2006) (citing Ballenger v. State, 667 So. 2d 1242, 1259 (Miss. 1995)); see Ross v. State,
954 So. 2d 968, 987 (¶¶27-30) (Miss. 2007); Hayes v. State, 801 So. 2d 806, 810 (¶¶9-12)
(Miss. Ct. App. 2001). We cannot find error unless the issue was raised before the trial court.
Hunt v. State, 81 So. 3d 1141, 1143 (¶5) (Miss. Ct. App. 2011).
¶19. This issue was not before the trial court, and we consequently have no choice but to
find that this is not a proper issue for this Court to consider on appeal.
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II. Whether the trial court erred in denying Hoffman’s motion for a
JNOV, or, alternatively, her motion for a new trial.
¶20. Hoffman was convicted of armed robbery under Mississippi Code Annotated section
97-3-79 (Rev. 2014). In order to establish that Hoffman committed armed robbery, the State
was required to prove: (1) a felonious taking or attempt to take, (2) from the person or from
the presence, (3) the personal property of another, (4) against his will, (5) by the person or
by putting such person in fear of immediate injury to his person by the exhibiting of a deadly
weapon. Id. Hoffman challenges the sufficiency of the evidence and the weight of the
evidence. We will address these challenges separately.
A. Whether the evidence presented was sufficient to
sustain a conviction.
¶21. A motion for a directed verdict tests the legal sufficiency of the evidence. Solanki
v. Ervin, 21 So. 3d 552, 556 (¶8) (Miss. 2008). The Mississippi Supreme Court has stated
that “the relevant question is whether after viewing the evidence in the light most favorable
to the prosecution any rational trier of fact could have found essential elements of the crime
beyond a reasonable doubt.” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citing
Jackson v. Virginia, 443 U.S. 307, 315 (1979)) (internal quotations omitted). The court
further explained:
Should the facts and inferences considered in a challenge to the sufficiency of
the evidence “point in favor of the defendant on any element of the offense
with sufficient force that reasonable [jurors] could not have found beyond a
reasonable doubt that the defendant was guilty,” the proper remedy is for the
appellate court to reverse and render. However, if a review of the evidence
reveals that it is of such quality and weight that, “having in mind the beyond
a reasonable doubt burden of proof standard, reasonable fair-minded [jurors]
in the exercise of impartial judgment might reach different conclusions on
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every element of the offense,” the evidence will be deemed to have been
sufficient.
Id. (internal citations omitted).
¶22. Hoffman argues that the jury could not have found her guilty of armed robbery
because (1) there was no definitive proof that a deadly weapon was used; (2) her
codefendants’ testimony regarding her intent and involvement in the robbery was skeptical,
and (3) the State did not prove that she intended to rob Hood.
¶23. The State, however, did provide sufficient evidence to support the jury’s verdict.
Hood testified that when Hoffman got into his lap, a man sitting in the back seat jumped up,
wrapped his arm around his neck, and pulled a knife. Although Hood initially stated that two
different weapons were used, he consistently maintained that a weapon had been used.
Furthermore, Despres, Windom, and McDaniel all testified that a knife was used.
¶24. As to Hoffman’s argument about the credibility of her codefendants’ testimonies, our
law is clear “the jury will be the sole judge of the credibility of witnesses and the weight and
worth of their testimony. . . . [Moreover, our courts] have repeatedly held that in a criminal
prosecution the jury may accept the testimony of some witnesses and reject that of others .
. . .” Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980). Lastly, sufficient evidence was
presented to show that Hoffman intended to participate in the robbery. The codefendants
testified that it was Hoffman’s idea to rob Hood, and Hood identified Hoffman as the person
who stole his cell phone. Therefore, for the foregoing reasons, we find that this issue is
without merit.
B. Whether the verdict was against the overwhelming
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weight of the evidence.
¶25. A motion for a new trial challenges the weight of the evidence. Bush, 895 So. 2d at
844 (¶18). This Court “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.”
Id. (citation omitted). On appeal, “the power to grant a new trial should be invoked only in
exceptional cases in which the evidence preponderates heavily against the verdict.” Id. “The
evidence should be weighed in a light most favorable to the verdict.” Id.
¶26. As discussed above, the State provided plenty of evidence of armed robbery, and the
jury’s verdict does not present an “unconscionable injustice.” The jury heard testimony from
the victim and other evidence that supported his allegations. The jury also heard the
testimony of Investigator Steven Teague, who stated that the $100 that was found in the
suburban was not attributed to any of the suspects. Despres and Windom testified that
Hoffman received $100 from the robbery, thus establishing that Hoffman participated in the
robbery.
¶27. A “jury is entitled to believe or disbelieve” witnesses as it sees fit. Moore v. State,
969 So. 2d 153, 156 (¶11) (Miss. Ct. App. 2007). Thus, the jury was entitled to disbelieve
Hoffman’s testimony in which she denied planning the robbery and participating. The jury
chose to believe the testimony of the codefendants and other evidence that supported Hood’s
allegations. The trial court did not abuse its discretion in denying a new trial because the
evidence presented does not preponderate so heavily against the verdict that allowing it to
stand would constitute an unconscionable injustice. This issue is without merit.
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III. Whether the trial court abused its discretion when it denied
Hoffman’s request to instruct the jury on the lesser-nonincluded
offense of prostitution.
¶28. Lastly, Hoffman contends that the trial court erred in denying her jury instruction for
the lesser-nonincluded offense of prostitution. The trial court did not abuse its discretion
when it denied the requested lesser-nonincluded-offense jury instruction. Based on the
supreme court’s holding in Hye v. State, 162 So. 3d 750, 753 (¶4) (Miss. 2015), Hoffman
was not entitled to instruct the jury about a crime that was not charged by the State.
¶29. In Hye, the Mississippi Supreme Court expressly overruled Griffin v. State, 533 So.
2d 444 (Miss. 1988), and prior precedent that had provided that a defendant “may request an
instruction regarding any offense carrying a lesser punishment if the lesser offense arises out
of a continuing factual scenario giving rise to the charge laid in the indictment.” Hye, 162
So. 3d at 754 (¶9). The court also found that it was not bound by stare decisis to apply that
precedent to Hye’s case, because departure from precedent was “necessary to avoid the
perpetuation of pernicious error.” Id. at 755 (¶11) (citation omitted). The court found that
the Griffin rule would “interfer[e] with the role accorded to the State alone, the responsibility
to determine charges.” Id. at 758 (¶26) (citation omitted). Likewise in the instant case,
Hoffman was not entitled to the lesser-nonincluded-offense instruction on prostitution.
Accordingly, this issue is without merit.
CONCLUSION
¶30. For the above reasons, Hoffman’s conviction of armed robbery and sentence are
affirmed.
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¶31. THE JUDGMENT OF THE ATTALA COUNTY CIRCUIT COURT OF
CONVICTION OF ARMED ROBBERY AND SENTENCE OF THREE YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO ATTALA
COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
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