                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2011-KA-00077-SCT

RICO VEAZY AND BRANDON MOSLEY a/k/a
BRANDON DUANE MOSLEY

v.

STATE OF MISSISSIPPI




DATE OF JUDGMENT:                        12/14/2010
TRIAL JUDGE:                             HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:               BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANTS:                 CHARLES E. GRIFFIN
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                       BRENDA FAY MITCHELL
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 03/14/2013
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      LAMAR, JUSTICE, FOR THE COURT:

¶1.   Rico Veazy and Brandon Mosley were convicted of armed robbery and were

sentenced to eight years and ten years, respectively, in the custody of the Mississippi

Department of Corrections (MDOC) after being tried together in the Bolivar County Circuit

Court. The robbery involved a Mustang vehicle belonging to Veazy but undergoing repairs

by mechanic Jimmy Smith, who maintained that the vehicle was taken from his automobile
repair shop at gunpoint. Finding no merit in any of the defendants’ issues, we affirm the

judgment of the circuit court.

                   FACTS AND PROCEEDINGS IN TRIAL COURT

¶2.    At some point in February 2010, Veazy had his 1989 Ford Saleen Mustang brought

to Jimmy’s Repair Shop, owned by mechanic Jimmy Smith, in Cleveland. Three of the

vehicle’s tires were slashed, the windshield was badly damaged, and the transmission was

“locked up.” Smith repaired the transmission and replaced other parts, and Veazy’s mother,

Bobby Veazy,1 paid the bill for this work. After this payment, Smith did other work on the

car, including purchasing various parts with his own funds and installing them. The parties

dispute whether this additional work was requested or authorized by Veazy.

¶3.    On July 9, 2010, Veazy came into Smith’s shop, accompanied by Brandon Mosley,

who was unknown to Smith at the time. Veazy and Mosley joined Smith inside his office.

At this point, the testimony of the defendants and Smith diverges dramatically. According

to Smith, he began working on a ticket for the work done, and Veazy and Mosley agreed to

wait while it was drawn up. Mosley surreptitiously positioned himself behind Smith and then

placed a pistol to his head, demanding the keys to the Mustang. Smith testified that, at this

point, he feared for his life.

¶4.    Smith told Veazy that the keys were hidden elsewhere on the property, and that Veazy

should not shoot him if he wanted the keys. Smith testified that he believed that he would

have been killed had the keys been with him in the room. Smith then left his office, collected



       1
         Mrs. Veazy’s name is sometimes spelled “Bobbie” and “Bobbi” in the briefs, but it
is spelled “Bobby” in the trial transcript.

                                              2
the keys from a hot water vat in which he had kept them hidden, and led the defendants to

the Mustang, which he proceeded to start. The defendants followed Smith closely on the

walk to the vehicle, with Mosley keeping the gun concealed with a small towel. At no point

during this sequence did Veazy pay for the work done or the parts installed in his vehicle.

¶5.    Veazy and Mosley got into the car and began to drive off. Smith then ran to his truck

and collected a firearm. He shouted to his employees to call 9-1-1. Smith testified that Veazy

was backing up and that he believed one of his mechanics, Jose Rojas, was in danger of being

run over. Smith therefore fired at the vehicle three times to prevent Veazy from injuring or

killing Rojas. These warning shots resulted in the back windshield of the Mustang being

blown out.

¶6.    Smith’s testimony was corroborated in part by Rojas and two other mechanic-

employees, Sammy Murray and Donny Berryhill, who were working at the shop on that day.

Smith was the only witness who testified to seeing Mosley with a gun. But the three

mechanic-employees, Rojas, Murray, and Berryhill, testified that Smith shouted for someone

to call 9-1-1 because someone had a gun.

¶7.    Veazy and Mosley testified to a very different sequence of events. According to

Veazy, he authorized work only on the transmission, windows, and new tires. He claimed

that Smith rebuilt the engine, worked on the heads of the engine, replaced a mirror, did body

work, and balanced the tires without his authorization. Veazy stated that on July 9, 2010, he

collected the vehicle from Smith without confrontation, anger, or ever exhibiting a firearm.

He stated that he did not even have a firearm at the time, and was unaware of whether

Mosley had a weapon. Veazy did state that Smith had prepared a ticket for him when he


                                              3
collected the vehicle, but he believed that this ticket was merely a copy of one already paid

by his mother, Bobby. Rico believed that all work had been paid for.

¶8.    Veazy stated that Smith had cranked the car himself and then handed the key to

Veazy. However, as Veazy and Mosley began to leave the premises in the Mustang, Smith

began yelling and then started firing upon the vehicle. Veazy was surprised by this behavior

and did not know why Smith had shot at him. Mosley similarly testified that he came to the

shop with Veazy unarmed, and never exhibited a weapon. Mosley did testify that if he had

exhibited a weapon, he did not think he would admit having done so. Mosley confirmed that

after he and Veazy had obtained the car without incident, Smith had begun to fire upon the

vehicle without apparent provocation.

¶9.    After driving off after the incident, Veazy and Mosley left the car behind a barn on

the side of Highway 8 East. Veazy testified that he abandoned the vehicle because it ran out

of gas. Despite having been fired upon without apparent cause, neither defendant attempted

to alert the police to Smith’s actions. Later that same day, Veazy turned himself in to the

Cleveland Police Department. However, he testified at trial that he did not know that he was

wanted by the police until the next day. Veazy stated that he turned himself in after his

mother received a phone call, but he did not state who made the call or what information was

conveyed.

¶10.   The trial for Veazy and Mosley commenced on November 29, 2010, and concluded

on December 2, 2010. They both were convicted of armed robbery. Veazy received an eight-

year sentence and Mosley received a ten-year sentence, both to be served in the custody of

the MDOC. Veazy and Mosley filed separate appellate briefs but asserted the same


                                             4
assignments of error: (1) that the trial court erred in refusing to quash the indictment; (2) that

the property set out in the indictment was not “the personal property of another” for purposes

of Mississippi Code Section 97-3-79 (Rev. 2006); (3) that the trial court erred in refusing to

permit testimony concerning the intent of the defendants and for the purpose of impeaching

Jimmy Smith’s testimony; and (4) that the trial court erred in refusing a jury instruction

concerning criminal intent. We find that all of these issues lack merit, and we affirm the

judgment of the circuit court.

                                        DISCUSSION

       A. The Indictment

¶11.   The first two issues are closely related – both addressing the same perceived flaw in

the indictment – and may be addressed together. Armed robbery is defined as follows:

       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 . .
       ..

Miss. Code Ann. § 97-3-79 (Rev. 2006). Robbery has three essential elements: “(1) felonious

intent, (2) force or putting in fear as a means of effectuating the intent, and (3) by that means

taking and carrying away the property of another from his person or in his presence.” Croft

v. State, 992 So. 2d 1151, 1157 (Miss. 2008) (quoting Walker v. State, 913 So. 2d 198, 223

(Miss. 2005)). Armed robbery requires the additional element of exhibition of a deadly

weapon. Clark v. State, 756 So. 2d 730, 732 (Miss. 1999) (stating “[T]he proof of the crime

of armed robbery must necessarily include that the exhibition of the deadly weapon, causing




                                                5
violence or fear of immediate injury, was the means by which the personal property of

another was taken.”).

¶12.   The defendants allege that the third element of armed robbery was not met, in that the

State alleged no “property of another” that could have been stolen, and that the defendants

were therefore entitled to judgment notwithstanding the verdict (JNOV). They argue that it

is undisputed that the Ford Mustang was the property of Veazy. The State maintains that

Smith had the rightful possession of the vehicle, since “[a]ll motor vehicles repaired for any

person, and at his instance, shall be liable for the price of the labor and material employed

in constructing, manufacturing or repairing the same; and the mechanic to whom the price

of said labor and material may be due shall have the right to retain possession of such motor

vehicles so repaired until the price be paid.” Miss. Code Ann. § 85-7-107 (Rev. 2011)

(emphasis added). However, the defendants maintain that the unpaid balance represented

certain repairs performed by Smith but not authorized by Veazy.              Furthermore, the

defendants contend that, even if Smith maintained a possessory interest in the vehicle, it was

still not his property under the meaning of the armed-robbery statute.

¶13.   The defendants also contend that the trial court erred in failing to quash the

indictment. The indictment against the defendants stated, in part, as follows:

       RICO VEAZY AND BRANDON MOSLEY, late of the County and Judicial
       District aforesaid, on or about July 9, 2010, in the County, Judicial District and
       State aforesaid, and within the jurisdiction of this Court, individually or while
       aiding and abetting and/or acting in concert with each other, did unlawfully,
       willfully and feloniously, take a Ford Mustang containing or to which was
       affixed, the property of Jimmy Smith or Jimmy’s Repair Shop, Inc., by way of
       repair and/or parts placed by Jimmy’s Repair Shop, Inc., from the person or
       presence of and against the will of Jimmy Smith by violence to his person or
       by putting him in fear of immediate injury to his person by the exhibition of


                                               6
       a deadly weapon, a pistol, contrary to the form of the statute in such cases
       made and provided and against the peace and dignity of the State of
       Mississippi.

(Emphasis added.) The defendants argue that this indictment alleged no property that could

have been stolen. They note that the State may not pursue a “general” indictment alleging

theft without alleging the specific property in question. See Khang Son Nguyen, et al. v.

State, 761 So. 2d 873 (Miss. 2000).

¶14.   The determinative question for both issues, then, is whether a person may commit

robbery by taking through force or the threat of force his own property, when another (as,

here, an uncompensated mechanic) has the right of possession of that property. This is a

relatively unusual fact pattern, but it is not an issue of first impression in Mississippi. Both

the defendants and the State cite the case of Herron v. State, 176 Miss. 795, 170 So. 536

(1936), which bears some similarity to this case.

¶15.   In Herron, Charlie Morris made a trade with Tom Herron, the father of defendant

Lehman Herron, to sell him a mule, taking as part payment a mare, along with a cash

payment of $50 and a note for the balance. Morris maintained control of the mare in the

interim, and he and Frank Kincade were leading the mare to be bred when, according to the

State’s witnesses, the two Herrons confronted them and demanded possession of the mare

at gunpoint. Lehman Herron, at trial, insisted that he never exhibited a gun. The Herrons took

the mare home, and that same day attempted to deliver the mule to Morris, but he refused to

accept it. Lehman Herron contended that the evidence was insufficient, under law, to

maintain a conviction, since the mare was his property.




                                               7
¶16.   This Court found otherwise, determining that, since the mare was merely pledged to

secure a cash payment, “Morris still was the rightful owner of the mare, and had, at all

events, title of possession and a lien for the purchase price of $50 in cash to be paid for the

mule. This was a sufficient title in Morris to sustain the allegations of property in him, and

to make out his ownership of the property.” Herron, 170 So. at 537-38. This Court went on

to hold that “[i]f the appellant had the right to the immediate possession, the taking might not

constitute robbery, but only trespass, but here he had no right of possession, and knew the

facts which gave Morris possession of the property.” Id. at 538. This Court also approvingly

quoted the Texas case of Fanin v. State, stating that:

       We are not willing to lay down the proposition that if a man collects a debt by
       force and threats, and putting in fear, he will not be guilty of robbery. There
       might be peculiar facts and circumstances which would exonerate him, and
       which the jury might consider in mitigation of the punishment, but no man has
       a right, as we understand the law, to take the law in his own hands, and at the
       point of a six-shooter, putting his debtor in fear of his life or serious bodily
       injury, collect a debt, however just, and then defend against it, on the ground
       that the property was not fraudulently taken because appellant owed him the
       money, and would not pay him. This is more than a simple trespass, and it will
       be a dangerous doctrine to hold that a man can thus collect his debts.

Herron, 170 So. at 538 (citing Fanin v. State, 51 Tex. Crim. 41, 45, 100 S.W. 916, 918 (Tex.

Crim. App. 1907)). Since Herron, it has consistently remained the law of this State that debts

should not be collected, in the charmingly archaic language of Fanin, “at the point of a six-

shooter,” or otherwise by force or threat of force.

¶17.   Several decades after Herron was decided, this Court addressed a similar instance of

what might be considered vigilante debt collection. In Freddie Lee Williams v. State, 317

So. 2d 425 (Miss. 1975), this Court was confronted with the case of a defendant who



                                               8
attempted to collect a refund on recently purchased shoes at gunpoint. Williams had

purchased a pair of shoes for $25.15 on February 9, 1974, and, according to him, was

informed by the sales clerk that the shoes could be returned if they did not fit. On February

11, 1974, Williams attempted to return the shoes for a refund or exchange, but was informed

that the store would not accept scuffed shoes. Angrily, Williams returned later in the day with

a pistol. At gunpoint, Williams returned the shoes, displayed the sales slip, and demanded

exactly the sales amount, $25.15, and no more, from the cash register. This Court was unable

to “accept appellant’s argument that his alleged ‘good faith’ taking of a sum of money

entitled him to a peremptory instruction.” Williams, 317 So. 2d at 427. This Court cited

Herron and Fanin with approval, and determined that:

       The record shows that the appellant brazenly entered the store, cocked his
       pistol, disturbed the peace, harassed the store employees, aimed the loaded
       pistol at Reynolds, called him a son-of-a-bitch an [sic] in “wild-west” fashion
       took at gun point money -- the property of another. Such violent self-help as
       a means of obtaining redress for grievances concerning property rights is
       inimical to order and the appropriate administration of justice. It would be
       most unjudicious to accept his argument that such a caper was done in good
       faith without animus furandi, and that, therefore, the case should not have
       gone to the jury.

Williams, 317 So. 2d at 428.

¶18.   In today’s case, it is well established that, while Veazy had title to the Mustang, Smith

had the right of possession of the Mustang through his mechanic’s lien under Mississippi

Code Section 85-7-107. See also J.A. Broom & Son v. S.S. Dale & Sons, 109 Miss. 52, 67

So. 659 (1915) (holding that the holder of a mechanic’s lien takes precedence over the rights




                                               9
of the holder of a reserved title to an automobile).2 After reviewing this State’s longstanding

jurisprudence on the issue, we are convinced that robbery relates to possession of property,

not to title. It is well established that a robber cannot acquire title to property by seizing it

forcibly. Allstate Ins. Co. v. Estes, 345 So. 2d 265, 266 (Miss. 1977). At best, he can acquire

unlawful possession without title. Indeed, a thief also may steal goods in which the victim

has no legal title. This Court has held that contraband liquor -- in which a person can have

no titled ownership interest -- may be the subject of a larceny or a robbery. Passons v. State,

208 Miss. 545, 45 So. 2d 131, 134 (1950) (overruled on other grounds). More recently, the

Court of Appeals has extended this holding to the theft of illegal narcotics. Woods v. State,

883 So. 2d 583, 588 (Miss. Ct. App. 2004).

¶19.   Furthermore, in Bullock v. State, 391 So. 2d 601, 609 (Miss. 1980), a capital-murder

case, there was some dispute as to whether a car taken from the victim during the course of

a robbery and murder actually belonged to the victim. The issue was found to be moot where


       2
        Although there was some dispute at trial as to whether Rico and Bobby Veazy had
authorized some of the work on the car, this was an issue of fact that was resolved by the
jury when it determined that a robbery had occurred. The jury was properly instructed in the
relevant law, with Jury Instruction D-8 providing that:

       Under Mississippi law, a repair shop does not acquire an ownership interest in
       a motor vehicle by virtue of performing repairs or placing parts on the motor
       vehicle at the instance of the owner.
       Jimmy Smith and/or Jimmy’s Repair Shop did not acquire an ownership
       interest in Rico Veazy’s Ford Mustang by virtue of any repairs or parts placed
       on the motor vehicle.
       However, the mechanic to whom the price of said labor and material may be
       due shall have the right to retain possession of such motor vehicle so repaired
       until the price has been paid.

(Emphasis added.)

                                               10
the testimony was undisputed that the victim was in possession of the vehicle, with this Court

specifically holding that “[a]n indictment charging robbery or larceny of property is properly

laid in the party having possession, either as owner, bailee or agent.” Id. at 609 (citations

omitted).

¶20.   Finally, the defendants suggest that the Legislature did not intend for the armed

robbery statute, Mississippi Code Section 97-3-79 (Rev. 2006), to go so far as to cover the

forcible taking of property subject to a lien. In support of this argument, the defendants cite

Mississippi Code Sections 97-17-77, criminalizing the removal of property subject to an out-

of-state lien; 97-17-75, criminalizing the removal or sale of property subject to an out-of-

county lien; and 97-19-51, criminalizing the sale of personal property previously sold or

encumbered. The defendants note that “[w]hen different code sections deal with the same

subject matter, these sections are to be construed and interpreted not only so they harmonize

with each other but also where they fit into the general and dominant policy of the particular

system of which they are part.” Andrews v. Waste Control, Inc., 409 So. 2d 707, 713 (Miss.

1982). However, the statutes cited by the defendants do not apply to a case like today’s case,

where encumbered personal property is taken by force or the threat of force; nor do these

statutes demonstrate a general legislative intent to exclude property subject to liens from the

application of the robbery statute.

¶21.   In line with Mississippi precedent, this Court finds that, when a person takes property

in which he himself maintains title, but which is legally in the possession of the victim, by

force or threat of force by exhibition of a deadly weapon, the armed-robbery statute applies.

Accordingly, it was not error for the trial court to refuse to quash the indictment, and the

                                              11
defendants were not entitled to a JNOV on these grounds. We therefore find that the

defendants’ first and second assignments of error are without merit.

       B. Hearsay

¶22.   The defendants contend that, on a series of occasions, the trial court erred in failing

to permit Bobby and Rico Veazy to introduce hearsay testimony regarding comments

allegedly made by Jimmy Smith. They contend that the denial of these statements “denied

due process and rendered the trial fundamentally unfair.” A trial court’s decisions as to

admitting and refusing evidence are reviewed under an abuse-of-discretion standard, and this

Court will not reverse for reason of error in an evidentiary decision unless it is shown that

the error adversely affected a substantial right of a party. Hargett v. State, 62 So. 3d 950,

952-53 (Miss. 2011). We find that the statements the defendants sought to admit constituted

inadmissible hearsay to which no exceptions applied, and the trial court therefore committed

no error in denying the admission of the statements.

¶23.   As to the one instance of hearsay testimony that would have been introduced by

Bobby Veazy, Veazy’s attorney made a proffer after Bobby’s testimony was excluded,

stating that he believed “the testimony would be that Mr. Smith, the complaining witness in

this case, did, in fact, call her immediately after this event occurred; that Mr. Smith told her

that he had just shot out the car window, the back window of Rico Veazy’s vehicle; that he

had seven bullets left, and he would finish [Veazy] off when he sees him.” We determine that

this evidence was properly excluded; not only was it clear hearsay that did not fall under any

hearsay exception, the statement also was irrelevant to our case today. Smith was not charged

with any crime in this case. Additionally, both the shooting out of the window and the

                                              12
alleged threat occurred after the robbery of the vehicle. Even if the testimony were relevant,

the probative value of such a statement was substantially outweighed by the danger of unfair

prejudice. Miss. R. Evid. 403.

¶24.   The record does not show the content of the hearsay statements of Smith that Veazy

would have offered. Veazy attempted to testify as to statements made by Smith on at least

three separate occasions. At each of these instances, the State objected on hearsay grounds,

and the objections were sustained. The defendants did not attempt to dispute the trial court’s

ruling and made no proffer of what Veazy would have stated. The defendants further assert

that the State was permitted to introduce hearsay testimony through its own witnesses, but

they give no examples of this and we find none in the record. Even assuming that the State

was improperly permitted to introduce hearsay testimony, a party cannot “open the door” to

hearsay. Mixon v. State, 921 So. 2d 275, 278 (Miss. 2005) (citing Murphy v. State, 453 So.

2d 1290, 1294 (Miss. 1984)).

¶25.   The defendants attempted to introduce the various hearsay statements, relying in part

upon Mississippi Rule of Evidence 803(24), the “catch-all” hearsay exception. At trial,

defense counsel also mentioned Mississippi Rule of Evidence 803(1), the “present-sense

impression” exception, but this argument has not been raised on appeal. On appeal, the

defendants also attempt to raise Mississippi Rule of Evidence 803(3), the hearsay exception

for a then-existing mental, emotional, or physical condition; however, this argument was

never raised at trial and therefore need not be considered. See, i.e., Chantey Music Publ'g,

Inc. v. Malaco, Inc., 915 So. 2d 1052, 1060 (Miss. 2005), holding that “[t]his Court [will]

not entertain arguments made for the first time on appeal . . . .”

                                              13
¶26.   The defendants also contend that they should have been permitted to make these

hearsay responses under Mississippi Rule of Evidence 106, Mississippi’s codification of the

common-law doctrine of completeness.

¶27.   We find that the various statements that the defendants assert should have been

admitted all constituted inadmissible hearsay to which no exception has been shown to apply.

The defendants have failed to show that the trial court abused its discretion in denying the

admission of the statements. This assignment of error is without merit.

       C. Jury Instructions

¶28.   In their final assignment of error, the defendants contend that the trial court failed to

instruct the jury on the issue of criminal intent. The defendants note our holding that:

       The court must so instruct the jury in every robbery case, and must in some
       sufficient form explain and define the term “felonious intent.” The extent of
       the definition required depends upon the evidence in the particular case. State
       v. Spratt, N.C., 144 S.E.2d 569 [(N.C. 1965)]. In some cases, as where the
       defense is an alibi or the evidence develops no direct issue or contention that
       the taking was under a bona fide claim of right or was without any intent to
       steal, “felonious intent” may be simply defined as an “intent to rob” or “intent
       to steal.” State v. Spratt, supra. On the other hand, where the evidence raises
       a direct issue as to the intent and purpose of the taking, a more comprehensive
       definition is required.

Thomas v. State, 278 So. 2d 469, 473 (Miss. 1973) (citations omitted). The defendants argue

that, in this case, the trial court erred in sustaining the State’s objection to jury instruction D-

7, which would have informed the jury that:

       The State of Mississippi is required to prove beyond a reasonable doubt that
       Rico Veazy took the personal property of Jimmy Smith and/or Jimmy’s Repair
       Shop with the intent to permanently deprive Jimmy Smith and/or Jimmy’s
       Repair Shop of said property.
       The Ford [M]ustang is the property of Rico Veazy.



                                                14
       If you find that the only personal property taken by Rico Veazy was the Ford
       [M]ustang, the law requires you to find Rico Veazy not guilty.

The State objected to this instruction on the ground that there is no requirement in an armed-

robbery case that an accused must be proven to have intended to permanently deprive the

victim of possession of the property. The trial court denied it as, in part, cumulative to the

instruction on the elements of armed robbery.

¶29.   At this point, the defense indicated that it would not object to the striking of the

“permanently deprive” language. The Court then noted that there was no testimony that

Smith owned the Mustang, but that he might well have had a lien. The defense agreed, but

asserted that Smith had no right to hold the vehicle and that the jury might be confused

without an instruction on whether Smith had acquired an ownership interest. The Court then

offered to give an amended version of D-7. The State and the defense both stated that they

would have no objection if the instruction informed the jury that a mechanic to whom the

price of labor or material is due shall have the right to retain possession; however, the

defense wanted to add language that repair or parts installed had to be done at the owner’s

direction. The apparent result was Instruction D-8, which was offered to the jury, and reads

as follows:

       Under Mississippi law, a repair shop does not acquire an ownership interest in
       a motor vehicle by virtue of performing repairs or placing parts on the motor
       vehicle at the instance of the owner.
       Jimmy Smith and/or Jimmy’s Repair Shop did not acquire an ownership
       interest in Rico Veazy’s Ford Mustang by virtue of any repairs or parts placed
       on the motor vehicle.
       However, the mechanic to whom the price of said labor and material may be
       due shall have the right to retain possession of such motor vehicle so repaired
       until the price has been paid.



                                             15
The record shows that the defendants consented to the substitution of D-8 for D-7, and in so

doing effectively withdrew or abandoned their request for D-7. At a more fundamental level,

proposed Jury Instruction D-7 was erroneous in that it would have suggested to the jury that

a person cannot be guilty of armed robbery if someone other than the victim has title to the

property taken. As discussed above, this is not the case. The trial judge correctly refused an

instruction that would have included an erroneous statement of the law. For all of the above

reasons, we find that this assignment of error, too, lacks merit.

                                      CONCLUSION

¶30.   Based on today’s discussion, we find no merit in any of the defendants’ assignments

of error. Thus, we affirm the judgment of the Circuit Court for the Second Judicial District

of Bolivar County.

¶31. AS TO RICO VEAZY: CONVICTION OF ARMED ROBBERY AND
SENTENCE OF EIGHT (8) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.
SENTENCE SHALL RUN CONSECUTIVELY TO ALL PRIOR SENTENCES.

¶32. AS TO BRANDON MOSLEY: CONVICTION OF ARMED ROBBERY AND
SENTENCE OF TEN (10) YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITH CONDITIONS, AFFIRMED.
SENTENCE SHALL RUN CONSECUTIVELY TO ALL PRIOR SENTENCES.

    WALLER, C.J., DICKINSON AND RANDOLPH, P.JJ., PIERCE, KING AND
COLEMAN, JJ., CONCUR. KITCHENS, J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY CHANDLER, J.

       KITCHENS, JUSTICE, SPECIALLY CONCURRING:




                                             16
¶33.   The great Muddy Waters 3 himself could not have done a better job than the appellants

and their able counsel of trying to “muddy the waters” of this case. Yet, this remains a

straightforward and simple armed robbery case, and I join the majority in affirming the

convictions. However, I write separately to suggest, with utmost respect to the majority, that

affirmance could have been achieved with considerable economy of verbiage.

¶34.   The indictment properly charged Veazy and Mosley with armed robbery by saying,

in essence, that they stole auto parts that belonged to Smith, from Smith’s presence and

against Smith’s will, by putting Smith in fear of immediate injury to his person by the

exhibition of a deadly weapon, namely, a pistol. While the indictment does contain some

surplusage, that is the thrust of it, and that is the State’s theory of the case. The jury was

properly instructed, consistent with the charging language of the indictment.

¶35.   Even though the defendants vigorously disputed and valiantly defended against the

accusation laid in the indictment, the proof of guilt was sufficient, and they were duly

convicted. Smith’s claim of a mechanic’s lien on Veazy’s automobile, a vehicle which

contained components that still belonged to Smith because Veazy had not paid for them, is

relevant only to the extent that it supports the State’s contention that Smith did not willingly

part with the automobile parts. In short, the defendants were not prosecuted for stealing

Veazy’s own car; they were prosecuted for, and convicted of, stealing, at gunpoint, Smith’s

automobile parts that were affixed to Veazy’s car.




       3
       Muddy Waters was the stage name of McKinley Morganfield (1913-1983), renowned
Mississippi blues musician.

                                              17
¶36.   Thus, the majority’s protracted analysis about debts and liens, in my humble opinion,

is superfluous and unnecessary. I would have traveled a much shorter route to arrive at the

same destination as that reached by my esteemed colleagues in the majority.

       CHANDLER, J., JOINS THIS OPINION.




                                            18
