IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-01012-COA BENJAMIN W. ALLEN III A/K/A BENJAMIN WADE ALLEN III A/K/A BEN ALLEN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/06/2017 TRIAL JUDGE: HON. W INSTON L. KIDD COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: MERRIDA COXW ELL CHARLES RICHARD MULLINS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: ROBERT SHULER SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND RENDERED - 01/29/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, C.J., CARLTON, P.J., AND TINDELL, J. CARLTON, P.J., FOR THE COURT: ¶1. A H i n d s C o u n t y jury f ound Benjam in W a d e A l l e n g u i l t y o f o n e c o u n t o f

em bezzlem e nt in violation o f Mississippi Code Annotated section 97-11-25 (Rev. 2014). The trial court sentenced Allen to serve f ive y ears in the c ustody of the Mississippi Departm ent of Corrections (MDOC), with f ive y ears suspended, and two y ears o f s u pervised probation. The trial court also ordered Allen to pay restitution. Allen f iled posttrial m otions, which the trial court denied. ¶2. Allen now ap p e a l s h i s c o n v i c t i o n a n d s e n t e n c e , a nd he asserts the f ollowingassignm ents of error: (1) the evidence was insuf f icient to support Allen’s conviction; (2) the verdict was against the overwhelm ing weight of the evidence; (3) the State f ailed to prove the essential elem ents required to prove em bezzlem ent under section 97-11-25; (4) the trial

court im properly instructed the jury ; (5) an im p erm issible variance ex isted between the indictm ent a nd t he proof presented by the State at trial; ( 6) the trial court e rred by adm itting
im p roper evidence pursuant t o Mississippi Rule of E vidence 404(b); a nd (7) the State im p roperly com m ented on Allen’s f

ailure to testif

y on his behalf

. ¶3. Af ter reviewing t h e r e c o r d , w e f i n d t h a t t h e e v idence introduced at trial was insuf f icient to support Allen’s conviction f o r e m bezzlem ent. Theref

ore, we reverse and render a judgm e nt o f acquittal o n that count. In f inding t he weight and s u f f iciency of the evidence in this c ase insuf f i cient t o s u s t ain the c o nviction, we decline to address the

rem aining assignm ents of error. FACTS ¶4. I n 2 0 1 4 and 2015, the S tate Auditor began an investigation into how D o w n t o w n Jackson Partn e r s (DJP), a p rivate nonprof it organization, u tilized f unds collected f

rom business owners i n the Jackson area. H ow e v e r , t h e r e cord s hows t hat the Hinds County District Attorney ’s of

f ice subpoenaed the investigation f iles f rom the auditor’s of

f ice bef ore

com pletion of the investigation. ¶5. In February 2 016, as a result of t he investigation, a Hinds County g rand jury indicted Allen, the president of D JP, f or e ight counts of em

bezzlem e nt i n violation of Mississippi Code Annotated section 97-11-25. In t h e i n d i ctm ent, A llen was a ccused of wrongf ully

2converting to his own use and f ailing to return as requir e d : ( 1 ) a 1 9 8 9 Chevrolet pickup truck valued at $3,500; (2) $2,724.76 f or repairs to the pickup t r u c k ; ( 3 ) $ 1,810.21 f

or insurance and tag registration costs f or the pickup truck; ( 4) $1,738.37 worth of cell-phone

c harges f or his wif e Susie Allen’s cell-phone bill; (5) $ 6,620.97 worth of pay m e nts to his personal credit card b ill; (6) $38,372.99 worth of pay m ents to another personal credit card bill; (7) $ 8 6,000 that was used f o r Tony Yarber’s Inaugurati o n G a l a ; and ( 8) $ 40,136.55 worth of unauthorized donations and sponsorships. Allen was also indicted f or one count of f r audulent m i suse of public f unds, in violation of Mississippi Code Annotated section 97-
7-10 (Rev. 2014), f

o r m aking f

a l s e r epresentations to d ef raud governm e nt by causing $65,745.24 to “be u s ed f or a f r audule n t B u s iness Incubator Program ,” and one count of
lim itation of corporate donation, in violation of Mississippi Code Annotated section 97-13- 15, b y donating $86,000, an am ount in excess of $1,000 in a calendar y ear, to a political party or candidate f

or a public of

f ice. ¶6. A f t e r a t r i a l h e l d i n J a n u a r y 2017, t he jury convicted Allen of one cou n t o f

em bezzlem e nt—specif

ically , Count IV of the indictm e n t w h i ch c harged Allen with

em bezzling th e m oney used to p ay his w if e’s cell-phone bill. 1 The jury acquitted Allen of

1 A t trial, th e S t ate called th e f o l l o w i n g w itn e sses to testif y : M e lissa P atterso n , a sp ecial assistan t atto rn ey g en e ral w h o w as a ssig n ed to th e D e p a rtm e n t o f A u d it d u rin g th e D J P in v estig atio n ; E d d i e F air, th e H in d s C o u n ty T ax C o llecto r; D errick G arn er, an acco u n tan t w ith th e D ep artm en t o f A u d it; T am ek a G arrett, an ev e n t co o rd in ato r f o r M ay o r T o n y Y arb e r’s In au g u ratio n G ala. T h e d ef en se called th e f

o l lo w in g w itn e sses: Jo h n R e ev es, a f

o rm e r b o ard m em

b er at D JP ; M ik e P eters, a f o rm er b o ard m em

b er a n d ex ecu t iv e co m m ittee m em

b er at D JP ; R o b e rt G ib b s, th e atto r n ey f o r D JP ; B o b b y V iv erette, o p eratio n s m an ag er a t D JP

. T h e S tate also called K e n n et h S to k e s, a city co u n cilm a n an d f o rm er em p lo y ee at th e T ax C o llecto r ’s O f f ice, as a reb u ttal w itn ess. 3all other charges in the indictm ent. The trial court sentenced Allen to serve f ive y e ars in the custody of the M ississippi Departm ent of C orrections, with f ive y e ars suspended, and two
y ears of s u p ervised probation. The t rial court a lso ordered Allen to pay $1,738.37 in restitution. Allen f

iled a m otion f

or a judgm ent notwithstanding the verdict (JNOV) and a

m otion f or a new trial, which the trial court denied. 2 Allen now appeals.
DISCUSSION ¶7. Allen argues that the evidence p resented at trial was insuf f icient to show that he was guilty of em

bezzlem ent

. A l l e n maintains t hat the evidence s hows that DJP knowingly allowed Susie Allen to be inc l u d e d o n the D JP cell-phone plan, and that Allen f ully reim bursed DJP f

or Susie Allen’s cell-phone charges. ¶8. W h en reviewing a def endant’s challenge to the suf f iciency of t he evidence, t his Court consid e r s e a c h elem ent o f the of f ense and reviews all of t he evidence in the light m ost f

avorable to the verdict. Th[ e] Court m ust a ccept as true all credible evidence consistent with guilt. Th[ e] Court m ust give the State the benef it of all f avorable inf

erences that m a y r easonably be d r a w n f r om the e vidence. Moreover, m atters regarding the weight and credibility given the evidence are the province of t he jury

. Th[ e] Court m a y reverse only when, with respect to one or m ore o f the elem ents of the of f ense c harged, the evidence so considered is s uch that reasonable and f air-m inded jurors could only f ind the accused not guilty

. Thus, i f any rational trier of f a ct c ould have f

ound each a n d every one of the elem ents of t he cr i me b ey ond a reasonable doubt, w hen viewing the evidence in the light m ost f avorable to the prosecution, the verdict m ust stand. Smith v
. State , 250 So. 3d 4 21, 4 24 (¶12) (Miss. 2018) ( quoting C owart v
. State , 178 So. 3d 651, 666 (¶41) (Miss. 2015)). We r ecognize that in reviewing the suf f iciency of the

2 T h e reco rd ref

lects th at d u r i n g th e trial, A llen m o v ed f o r a d i rected v erd ict at th e clo se o f t h e S tate’s case-in -ch ief , an d ag ain w h en t h e S t ate f in ally rested

. T h e trial co u rt d en ied b o th o f

th e se m o tio n s. 4evidence, “[ w ]e are n ot requ i red to decide—and in f act we m

ust ref rain f rom deciding—whether we think the State proved the e lem ents. R ather, we m ust decide whether a reasonable juror could rationally say that the State did.” Lenoir v. State , 222 So. 3d 273,
278 (¶25) (Miss. 2017) (citation and internal quotation m arks o m itted)

. W e now turn to apply the law to the f

acts of this case. ¶9. Count IV of

the indictm ent charged Allen as f ollows:
W h ile acting in concert with and or a i ding abetting or encouraging another or others, on about Septem

ber 1, 2010 to January 3 1, 2014, [ A l len,] being a person undertaking t o act f or others and intrusted by th e m with business of a ny kind or m oney did willf ully , u nlawf

ully and f eloniously convert t o his own use any m o ney or other valuable thing to wit a $1,738.37 f or pay m ent of [ All e n ] a n d [ Susie] Allen’s personal cell phone bill said $1,738.37 being the l awf ul property o f Downtown Jackson P artners, a nonprof it corporation, which lawf u l currency cam e into his p o s s e s s ion by v i r t u e of his em

ploy m ent at Downtown Jackson Partners, a nonprof it corporation, and which m onies h e did not return to Downtown Jack s on Partners in violation of

Miss. Code Ann. 97-11-25[ .] ¶10. Section 97-11-25, the statute under which Allen was indicted, provides:
If any state of

f i c e r o r a ny county of

f icer, or an of

f icer in any d istrict or subdivision of a c ounty , or an of f icer of any c i ty , town or village, or a notary public, or any other person holding any public of f i ce or em ploy m ent, or any executor, adm inistrator or guardian, or any tru s t e e of an express trust, any m aster or com m issioner o r receiver, or a ny attorney at law o r solicitor, or any bank or collecting agent, or other person engaged in l ike p ublic em ploy m ent, or any o ther person undertaking to act f or others a n d i n t rusted b y them with business of a ny kind, or with m oney , shall unlawf ully convert to his own u se any m o ney or other valuable thing which c o m es to his hands or possession by virtue of h is of

f i ce or em p loy m ent, or s hall n ot, when lawf ully required to turn over such m oney or deliver such thing, i m m ediately do so according to his legal o b l i g a tion, he shall, on conviction, be com m itted to the departm ent of corrections f

or not m ore than twenty (20) y ears, or be f ined not m o re than f

ive thousand dollars ($5,000.00).

5¶11. The record ref lects that at trial, the S tate argued t hat DJP was bound to act within its stated purposes. The State m aintained that the a ddition o f Susie Allen to the cell-phone plan did not f urther DJP’s stated purposes and was t heref o re unlawf

u l. The State m aintained that since the cell-phone plan allegedly f ell outside of DJP’s stated purposes, then DJP’s approval of Susie Allen’s placem e nt on such plan was void. The State f urther asserted that because
DJP’s approval of Susie A llen’s placem ent on the DJP cell-phone p l a n w as v oid, Allen theref ore c om m itted em

bezzlem ent by including her o n the plan. The S tate also argued that although DJP’s board approved of Su s i e ’ s p l acem ent on the cell-phone plan, t he record shows that Allen f

ailed to f ully reim burse DJP f

or his wif e’s cell-phone charges. The State asserted that Allen was guilty of wrongf ully converting DJP f

unds to his own use, in violation of section 97-11-25. On appeal, the State m aintains that a reasonable juror would be justif ied in accepting this the o r y of the case. However, i n its case-in-chief at trial, the
State presented n o t estim ony o r e vidence f rom DJP or its representatives to show that Allen acted without authority or perm i ssion of the DJP b oard or that Allen owed any debt to DJP. ¶12. The S tate instead presented the t estim ony of Derrick Garner, an investigator with the
State A uditor’s Of

f ice, who conf

irm ed that the auditor’s of f ice f aile d t o c o m

p l ete its investigation into D JP. Garner testif ied that he c onducted the investigation into DJP and prepared a r e p o r t o f his f indings. Once he discovered certain alleged violations by Allen,
Garner testif

ied that t he Hinds C o u n t y D istrict A t torney ’s of f ice subpoenaed the DJP investigation f

iles f r om the State Auditor’s of f i c e. Garner adm itted t hat he had not

com pleted his investigation b e f ore the case was turned over to the d istrict a ttorney ’s of f ice.

6During cross exam ination, the f o l lowing exchange occurred: [ DEFENSE]: And, in f act, y our investigation with the Auditor’s Of f ice was incom

plete; correct?

. . . . GARNER: Y e s , s i r . I t w a s not com p leted t h e i r e n t i r e r e v i e w process. [ DEFENSE]: In f

act, y our report that w e ’ v e b e e n t a l k i n g a b o u t has stam ped on there incom

plete investigation as of October 2015?
GARNER: Correct. [ DEFENSE]: And that was t he tim e p e r i o d w h e n t h e Hinds County

district attorney subpoenaed those docum ents f r o m the Auditor’s Of

f i ce?
GARNER: Correct. [ DEFENSE]: Because y ou had not y et com pleted y our investigation in to Downtown Jackson Partners?
GARNER: Yes. Our entire of f i ce has not com

pleted the investigation. ¶13. Garner also testif

ied that during his investigation, he did review o ne audit report f rom DJP’s a ccount i n g f

i r m, BKD. Garner acknowledged that BKD possessed other auditing d ocum ents and r ecords regarding DJP and Allen, but he did not h ave a c hance t o review those docum ents bef

ore his investigation was cut short. ¶14. Regardi n g S u s i e A l l e n ’ s c e l l

- p h o n e c h a r g e s , G a rner testif ied that bef

ore his investigation stopped, he f ound d o c u me n t a tion showing t hat Allen did write one reim bursem ent check f

o r one y ear f

rom Susie Allen’s cell p hone bill. Garner stated that he did not see any o ther reim bursem e nt pay

m ents. However, Garner adm itted that there were

7several docum ents, audits, and receipts that he was not a b l e t o v iew af ter h e s topped his investigation. ¶15. Garner also adm itted that prior to his investigation being stopped, he had not had an opportunity to interview s e veral m em bers of DJP’s board of d irectors. Garner testif ied that he could not recall i f

, d uring his investigation, he was advised that the DJP board m em bers

wer e a w a r e t h a t Susie Allen was on the DJP c ell-phone bill. W hen asked whether he was able to f i nd o ut if Allen received perm ission f rom DJP’s board to put Susie Allen on the cellphone bill, Garner a nswered “No.” Garner a dm itted that if D JP was aware that Susie Allen

was on t he cell-phone b ill, and DJP knowingly paid the bi l l e a c h mo n th, then such action would not constitute em

bezzlem ent: [ DEFENSE]: If Downtown J ackson Partners was aware that Ms. Allen

was on the phone b ill a nd they knowingly paid the phone b i l l e v e r y m o n t h , t h a t w o u l d n o t c o n s t i t u t e em bezzlem ent; correct? [ GARNER]: Correct. [ DEFENSE]: Thank y o u . And do y ou know, were y ou allowed to

inv e s t i gate whether the board was aware and approved that the reim

bursem e nt program that Mr. Allen had worked out with h is c ell phone, were y ou aware of that? [ GARNER]: No. ¶16. Mike Peters, a witness f or the def ense, t estif

ied that he served on t he DJP board f rom 2009-2013 b ef

ore rotating of

f

. Peter s t e s t i f

ied that he also served on t he DJP executive

com m ittee. Peters testif

ied that although he did not recall any d iscussion where the executive

com m ittee o f DJP approved Allen adding Susie o n to the DJP c e l l

- p h o n e plan, Peters did

8recall seeing Allen’s reim bursem ent f

or the charges on a DJP f inancial statem ent. ¶17. Robert G ibbs t estif ied t hat in Decem

ber 2011, DJP asked him to s e rve a s its attorney

. Gibbs testif

ied t hat af

ter the S tat e Auditor’s investigation, the DJP board a nd executive

com m ittee asked Gibbs t o perf orm his own investigation and advise the board whether Allen should be rem oved as DJP president, in l ight of the State’s charges a gainst him

. In perf orm ing his i nvestigation, Gibbs explained that h e “looked at each of the ten counts in the indictm ent[ ,] I reviewed a ll of the docum ents that [ DJP] had [

. . . , a nd] I c om pared them to allegations that were in the indictm ent and then I reported t o the board.” Gibbs als o explained that DJP contracted with BKD, an accounting f irm , to handle check writing responsibilities, audit bills, and m ake sure that accounts were paid appropriately

. 3 ¶18. Regarding Susie Allen’s cell-phone bill, Gibbs testif i ed as f o llows: [ DEFENSE]: Okay

. Now, did y ou personally investigate a nd look f or checks where Mr. Allen reim bursed Downtown Jackson Partners? [ GIBBS]: Yes. [ DEFENSE]: Okay . And who helped y ou in that endeavor? [ GIBBS]: Again, that John Gom ez who pulled m ost of those checks

f or m e. [ DEFENSE]: Okay . And did y ou personally view them ? [ GIBBS]: I did. [ DEFENSE]: W ere those checks all paid a t the last m inut e a f t e r t he indictm ent or could y ou tell us when they were paid?

3 T h e reco r d ref

l ects th at in A llen ’s m o tio n to d ism iss th e in d ictm en t, h e stated t h at B K D p erf

o rm e d y early

au d its o f D JP

. 9[ GIBBS]: N o . T h e w a y t he processed work e d w h e n t h o s e b i l l s cam e in, Downtown Jackson Partners would cut a check f or those bills. They w ould id e n t if y the am ount of [ Susie] Allen’s cell phone bill on that am oun t , a n d Mr. Allen im m ediately w ould write a check f or that am ount to Downtown Jackson Partners. ¶19. Gibbs a lso testif

ied that DJP’s board w as a ware of and approved S usie Allen’s phone line on DJP’s cell-phone plan: [ DEFENSE]: W h a t , i f a n y t h i n g , d i d t h e b o a r d o f d i r e c t o r s o f

Downtown Jackson Partners realize i n r egards to Susie Allen’s phone line? [ GIBBS]: The board knew about the line, approved the l ine. They

didn’t want to pay f

or the line, so that’s where Mr. Allen reim bursed them f

or it, s o D owntown Jackson Partners was n ever out of any m oney because of an e xtra l ine t hat was on that account. [ DEFENSE]: A n d w ere those records, additional records that y o u - a l l

f ound available had y ou m et with an auditor or Mr. Derrick Garner at any

tim e? [ GIBBS]: Y e a h

. We c o u l d h a v e p r o vided all of thos e r e c o r d s . They are available now. [ DEFENSE]: Okay

. Did y ou e v e r me e t w i t h M r . G a r n e r or any one

af ter this f ile was subpoenaed to Mr. Sm ith’s of f ice? [ GIBBS]: No. Mr. Garner never asked to m eet with m e. Gibbs f urther testif

ied that af ter c onducting his investigation, he presented his f indings to the
DJP b oard. The board then voted upon a n d pass e d a resolution stating that Allen “was authorised to i n clude an a dditional telephone s ubscription in the nam e of Susie Allen on the corporation’s account with C S p i r e fo r c e l l u l ar telephone services with the understanding that

1 0Mr. Allen would reim b urse the corporation f

or the m onthly charge f

or th i s s u b s c ription.” The resolution also stated that “the expenditur e f o r t he additional subscription was

com pletely authorized and the accountants f or DJP r e c e i v ed f

ull reim bursem ent.” The resolution was included in the record as an exhibit at trial. 4 ¶20. In Roberts v. S

tate , 960 So. 2d 529, 531 (¶7) (Miss. Ct. App. 2006), Kenneth Roberts claim ed that the e vidence presented a t t r ial was insuf f i cient to support his conviction f or

em bezzlem e nt. Roberts argued that the trial c ourt theref ore erred in deny ing his m otion f or

a directed verdict. Id. On appeal, this Court acknowledged t hat “[ e]m bezzlem ent requires the wrongf

ul appropriation or conversion of property where the original taking was lawf ul

or with t h e consent o f the owner.” Id

. at 533 (¶15) ( citation and internal quotation m arks

om itted). This Court reviewed the evidence presented at trial and f ound as f ollows: The State has s h o w n n o attem pt by Roberts to wrongf ully convert [ his em ploy er’s] p roducts to his own use. Roberts m a de som e bad b u s i n e ss decisions

. . . and is liable to [ h i s e m ploy er] f or those debts, b ut Roberts did not intend to em

bezzle or appropriate [ his em ploy e r’s] p roducts to his own use. The def iciencies in p ay

m ent on cred i t b y the n on-approved custom ers were deducted by agreem ent f

rom Roberts’s com m ission. [ The em ploy e r] did not com plain until Roberts got in over his head and the debt accrued t o m ore t han could be covered by

his com m i ssions. Id

. Af ter viewing the evidence in the light m ost f a vorable to the State, this Court held that the e vidence was i nsuf

f icient to sustain R o b e r

t s ’ s c o n v i c t i o n fo r e m

b e z z l e m ent, and theref

ore the trial court erred in deny ing Roberts’s m otion f or a directed verdict. Id

. at (¶16). 5

4 We n o te th at p ag e 5 o f

th e 9 -p ag e reso l u tio n d o es n o t ap p ear in th e reco r d

. 5 S e e g en era lly H

o o ker v. S ta te , 5 1 6 S o . 2 d 1 3 4 9 , 1 3 5 3 ( M iss. 1 9 8 7 ) (U p o n rev iew o f ap p ellan t’s em

b e zzlem en t co n v ictio n , su p r e me c o u rt h eld “ co n v ersio n w o u ld n o t b e u n law f u l if t h e o w n er o f th e p ro p erty co n sen ted t h e reto o r m ad e a g if t o f th e p ro p erty u p o n 1 1¶21. As stat e d , w h e n reviewing a def endant’s attack on t he suf f iciency of the evidence presented a t t r i a l , w e m ust consider each elem ent of the o f f ense and review all of the evidence in the light m ost f avorable t o the verdict. Smith , 2 50 So. 3d a t 424 (¶12). W e m ust also “give the State t he b e nef it of all f avorable inf

erences that m ay reasonable be drawn f rom the evidence.” Id

. In o rder to prove that Allen was guilty of e m bezzlem ent under section 97-
11-25 and pursuant to the c harges set f orth i n his indictm ent, the State had t o show that DJP owned t he m oney at issue, that Allen unlawf ully converted t he $ 1,738.37 o wed f or Susie Allen’s c ell-phone bill t o his own use, and that Allen f ailed to r eim

b urse DJP f

or the charge.
Our r eview of the evidence presented by the S tate ref lects that the S tate f

ailed to p resent any testim o ny f

rom DJP b oard m em

bers stating that Allen did not have perm i ssion to add Susie Allen to the cell p hone plan. Additionally , we f ind no testim ony in the record f rom DJP board m em

bers or its authorized r e presentatives claim ing that Allen f ailed to r eim

burse DJP f or Susie Allen’s cell-phone charges. The State only presented e vidence showing that during the state auditor’s o f

f ice investigation into DJP, Garner f ound only one reim

bursem ent check
f or the disputed phone expense. Garner a lso test i f i e d that he never com

pleted his investigation b ef

ore the District Attorney ’s of f ice subpoenaed the investigation records, and that h e o nly reviewed one of DJP’s audit r eports prepared by BKD. The State a lso presented

no evidence to show that no other reim bursem ents occurred or t hat Allen acted without the
DJP board’s perm i ssion. The def ense, however, presented uncontradicted testim ony stating that Allen did in f

act h ave perm ission f

rom the DJP b oard to add Susie to t he c ell-phone plan,

receip t.”). 1 2as well as te s t i m o n y that Allen did reim burse DJP f

o r Susie’s c ell-phone charges. The
State’s case hinges on its claim that the perm ission b y the DJP board to A llen w as allegedly void a nd theref

ore the S tate clai ms that Allen com m itted conversion necessary f or

em bezzlem e nt by a cting on such void consent. The State c ites no legal a uthority f or its claim that the Board’s c onsent was void or that Allen’s actions i n acting upon t his allegedly void consent constitute suf

f icient evidence to show conversion or the charged em bezzlem ent. ¶22. Af ter our review of the r e cord, w e conclude that the State f ailed to p resent evidence suf f i cient to convict Allen of em bezzlem ent under Count IV of t he indictm ent. W e theref ore

reverse a nd render a judgm ent of acquittal on C o u n t I V o f t he indictm ent. Since we are reversing Allen’s conviction, we f ind no need to discuss his rem aining issues on appeal. ¶23. REVERSED AND RENDERED. GRIFFIS, C.J., BARNES, P.J. , GREENLEE, TINDELL, LAWRENCE AND McCARTY, J J., CONCUR. WESTBROOKS, J ., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. WILSON AND McDONALD, JJ., NOT PARTICIPATING.

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