        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2013-KA-00088-COA




JONATHAN KEEN A/K/A JONATHAN SCOTT                                      APPELLANT
KEEN A/K/A JONATHAN S. KEEN

v.

STATE OF MISSISSIPPI                                                      APPELLEE


DATE OF JUDGMENT:                        10/22/2012
TRIAL JUDGE:                             HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:               MADISON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 BENJAMIN FREEMAN ROBINSON
                                         MATTHEW ALLEN BALDRIDGE
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LAURA HOGAN TEDDER
DISTRICT ATTORNEY:                       MICHAEL GUEST
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF CAPITAL MURDER AND
                                         SENTENCED, AS A HABITUAL
                                         OFFENDER, TO LIFE IN THE CUSTODY
                                         OF THE MISSISSIPPI DEPARTMENT OF
                                         CORRECTIONS WITHOUT ELIGIBILITY
                                         FOR PAROLE OR PROBATION
DISPOSITION:                             AFFIRMED – 10/21/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., MAXWELL AND JAMES, JJ.

      IRVING, P.J., FOR THE COURT:

¶1.   A Madison County grand jury indicted Jonathan Scott Keen for Count I, capital

murder, pursuant to Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2014), with a
predicate felony of robbery,1 and Count II, motor-vehicle theft pursuant to Mississippi Code

Annotated section 97-17-42(1) (Rev. 2014). The case proceeded to trial on both counts.

However, at the close of the State’s case, the State moved ore tenus to dismiss Count II of

the indictment, and the court granted the motion. The jury found Keen guilty of the

remaining count, and the circuit court imposed the statutory sentence of life in the custody

of Mississippi Department of Corrections, without eligibility for parole or probation. Keen

filed a motion for a judgment notwithstanding the verdict or, in the alternative, a new trial,

which the circuit court denied.

¶2.    On appeal, Keen argues that (1) the amendment of the indictment broadened the basis

for conviction and prejudiced his defense, and (2) the evidence was insufficient to find that

Keen committed the predicate offense of robbery. Finding no error, we affirm.

                                          FACTS

¶3.    Keen owed his drug dealer, Willie Myers, $400. On the night of October 8, 2011,

Keen told Myers that he planned to go to the Ross Barnett Reservoir (Reservoir) to steal a

van and sell it for parts, and, in turn, pay back Myers for the drugs that Keen received on

credit. Myers drove Keen out to the Reservoir and parked beside a white van, which

belonged to the victim, Kerry Prisock. Prisock, a handyman, lived in his van and parked at

the Reservoir at night. After a struggle, Keen killed Prisock using a hammer that he had

found in the van. Keen admitted that he drove the van, which contained Prisock’s body, and


       1
       The indictment was later amended to charge Keen as a nonviolent habitual offender
pursuant to Mississippi Code Annotated section 99-19-81 (Supp. 2014).

                                              2
abandoned it on a dirt road off of the I-55 South Frontage Road in Jackson, Mississippi.

Myers testified that he followed the van in his car and that he saw blood on Keen’s face and

clothing after Keen abandoned the van and began to walk toward Myers’s car. Myers took

Keen to a motel where they got a room so Keen could change clothes and clean up.

According to Myers, Keen changed into clothes that Keen took out of Prisock’s van.

Incidentally, at this point, Keen was also able to pay Myers the amount that Keen owed for

drugs. At trial, it was shown that Prisock had just cashed some checks at his bank.

¶4.    After Keen cleaned up, he asked Myers to take him to New Orleans, Louisiana, and

offered to pay Myers $100. Along the way, they made a stop to purchase drugs, for which

Keen was able to pay cash. However, once they reached New Orleans, they turned around

and drove back to Jackson. Keen asked Myers to drop him off at a friend’s home. A few

days later, as Myers was driving down a street in Jackson, he spotted Keen and picked him

up, and they went to a motel, where Myers had a room.

¶5.    On October 11, 2011, the Jackson police received a phone call informing them that

a van with a body in it was located on the I-55 Frontage Road. Corporal Larry Edwards

responded to the call and found the van with Prisock’s body partially hanging out of it.

Prisock’s head had been bashed in, and his body was covered in blood. The wounds were

consistent with blows from a claw hammer. A bloodstained claw hammer was found in the

van. After being located, Myers and Keen were arrested at the motel. At the time of arrest,

Keen had a small laceration under his left eye. Upon questioning by the police, Keen

confessed to killing Prisock but claimed that he did so in self-defense, stating that Prisock

                                             3
hit him with the hammer first, resulting in a gash under his eye, and that he was afraid for his

life, so he “killed him.”

¶6.    Myers pleaded guilty to accessory after the fact of murder and to motor-vehicle theft.

Keen went to trial. At the conclusion of the State’s case, Keen moved for a directed verdict

on both counts of the indictment. The circuit court denied the motion as to the capital-

murder count, and the State made an ore tenus motion to dismiss the theft count, which the

circuit court granted. Keen rested without offering any evidence, and the jury found him

guilty of capital murder. Keen filed a post-trial motion for a new trial, which the circuit court

denied. Keen now appeals.

                                        DISCUSSION

¶7.    On appeal, Keen argues that the State, in effect, amended the indictment when it

identified Prisock’s van, and not his cash, as the personal property of which Prisock was

robbed. Keen asserts that, at that point, he was prejudiced, as his defense had been

developed on the basis that the State was contending that the item of the robbery was cash.

Keen points to the State’s opening statement as evidence that the State’s theory was that he

robbed Prisock of Prisock’s cash, not Prisock’s van. Keen also argues that the evidence was

insufficient to find that he robbed Prisock of the van. On the other hand, the State argues

that, pursuant to Mississippi Code Annotated section 99-17-20 (Rev. 2007), a capital-murder

indictment, with robbery as the predicate offense, does not have to identity the item that is

the subject of the robbery—that only the identity of the offense must be set forth. The State

also submits that Keen’s defense was not compromised because he was not forced to defend

                                               4
a new theory of the case. Finally, the State asserts that there was enough evidence to support

the jury’s finding that Prisock was robbed of his van.

¶8.    During Keen’s trial, at the end of the State’s case, the trial court, citing Rowland v.

State, 42 So. 3d 503 (Miss. 2010), expressed concern regarding whether Keen could be

convicted of capital murder with the predicate felony being robbery of the van, and also of

the separate count of theft of the van. The State agreed that the separate theft count may

invoke issues of double jeopardy and made an ore tenus motion to dismiss the theft count,

explaining that it was the State’s theory that the van was the object of the robbery.

¶9.    We agree with the State that section 99-17-20 does not require the personal property

that is the subject of the robbery to be identified in a capital-murder indictment containing

robbery as the predicate felony. The State’s decision to dismiss the separate count involving

theft of the van, and its explanation that it was proceeding under the theory that the van was

the object of the robbery, did not amend or alter the indictment in any way.2 That Keen

initially believed that the State’s theory of the case was that he had robbed Prisock of

Prisock’s cash, and not his van, changes nothing. Nothing prevented Keen from seeking



       2
           The capital-murder count of the indictment reads as follows:

       Jonathan Scott Keen, on or about the 8th day of October, 2011, in [Madison
       County, Mississippi,] and within the jurisdiction of this Court, did, without
       authority of law and with or without any design to effect death, kill and murder
       Kerry Prisock, a human being, while the said Jonathan Scott Keen was then
       and there engaged in the commission of the crime of a robbery, in violation [of
       Mississippi Code Annotated section] 97-3-73 [(Rev. 2014)] and in violation
       of [Mississippi Code Annotated section] 97-3-19(2)(e) [(Rev. 2014).]

                                              5
through discovery the identity of the item taken in the robbery. Moreover, the evidence

established that Keen robbed Prisock of several items, including Prisock’s cash, clothes, beer,

and van, any one of which would have been sufficient to constitute robbery.

¶10.   While it is clear that the indictment was not amended, we briefly discuss the

sufficiency of the indictment, as Keen contends that he was ambushed by the State’s decision

to dismiss the theft count. In general, an indictment tracking the language of a criminal

statute is sufficient to inform a defendant of the charged crime. Stevens v. State, 808 So. 2d

908, 919 (¶31) (Miss. 2002). In Golf v. State, 14 So. 3d 625, 665 (¶175) (Miss. 2009)

(internal citations omitted), the Mississippi Supreme Court stated:

       The purpose of an indictment is to furnish the defendant with notice and a
       reasonable description of the charges against him so that he may prepare his
       defense. An indictment is required only to have a clear and concise statement
       of the elements of the crime with which the defendant is charged.

Goff v. State,. In capital- murder cases, except when the underlying felony is burglary, only

“the underlying felony that elevates the crime to capital-murder must be identified in the

indictment along with the section and subsection of the statute under which the defendant is

being charged.” Bennett v. State, 933 So. 2d 930, 952 (¶84) (Miss. 2006) (citing Miss. Code

Ann. § 99-17-20). In this case, that was done. The indictment identified robbery as the

underlying felony that elevated the crime to capital murder. As such, Keen’s indictment met

the legal requirements for capital murder, and as stated, was not later amended.

¶11.   As to Keen’s contention that the evidence was not sufficient to establish that he

robbed Prisock of the van, we look to the evidence that supports the jury’s finding that Keen


                                              6
robbed Prisock of the van. “[T]he evidence is to be viewed in the light most consistent with

the jury’s verdict.” Gray v. State, 728 So. 2d 36, 62 (¶121) (Miss. 1998). The Mississippi

Supreme Court has held that the same standard applies to capital-murder cases. Id.; see also

Mackbee v. State, 575 So. 2d 16, 36 (Miss. 1990). Mississippi Code Annotated section

97-3-73 (Rev. 2014) states:

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

¶12.   In this case, Keen told Myers his plan was to steal a van and sell its parts for cash. On

the night of October 8, 2011, Myers drove Keen to the Reservoir. Although Keen told police

that he “freaked out” and abandoned his intent to “rob” Prisock of anything, his actions do

not support his claim.    Keen spoke of his intent and carried out the robbery.           After

approaching the van and finding Prisock, Keen did not walk away. Instead, he started the

van, subdued Prisock by clubbing him to death with a claw hammer, and drove off.3 Keen

admitted driving the van. This was further supported by Myers’s testimony. Abandonment

cannot occur after a crime has begun to take place. See generally Bucklew v. State, 206 So.


       3
         The record is unclear whether Prisock died immediately from the initial blows or
whether there was an additional struggle, while Keen was driving the van, resulting in his
death. However, this is of no consequence, as Mississippi follows the
“one-continuous-transaction” rule for determining whether the evidence establishes the
requisite nexus between the killing and the underlying felony to constitute capital murder,
no matter whether the victim was killed prior to the robbery. Gillett v. State, 56 So. 3d 469,
492 (¶52) (Miss. 2010). “[W]here the two crimes [–] e.g., murder and robbery [–] are
connected in a chain of events and occur as part of the res gestae, the crime of capital murder
is sustained.” Id. at (¶50).

                                               7
2d 200, 204 (Miss. 1968). Therefore, this issue is without merit.

¶13. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT OF
CONVICTION OF CAPITAL MURDER AND SENTENCE, AS A HABITUAL
OFFENDER, OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON
COUNTY.

   LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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