        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).

                                              4
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



                                             5
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



                                              6
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.

                                              7
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


                                              9
       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

                                              10
                     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.



                                             11
       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.



                                               12
¶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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