IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-01718-COA
Z ARTAVIOS DEVONTA JONES A/K/A Z ARTAVIOUS JONES A/K/A TAE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/12/2017 TRIAL JUDGE: HON. CELESTE EMBREY W ILSON COURT FROM W HICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE DISTRICT ATTORNEY: JOHN W . CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 02/19/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. J. WILSON, P.J., FOR THE COURT: ¶1. Zartavious J ones w as convicted o f a r m ed robbery based on evidence that he used a
g u n to rob a nother y oung m an when they m et to m ake a trade involving som e Nike Air Jordan shoes a nd d esigner clothes. Jones was s e ntenced t o serve thirty y e ars in the custody
of the Mississippi Departm ent of Corrections (MDOC), with ten y ears suspended. ¶2. On appeal, Jones a rgues that there is insuf f i cient evidence to s ustain h i s c o nviction and that the jury ’s verdict was against the overwh e l m i n g w eight of t he evidence. He also
argues that the trial court erred by ref using to instruct the jury on the lesser-included of f enseof petit larceny

. W e conclude that the Sta t e p r e s e n t e d suf f icient evidence to sustain the conviction. However, we h old that Jones was entitled to an instruction on the lesser-included
of f ense of petit larceny , and we reverse and rem a nd f or a new trial.
FACTS AND PROCEDURAL HISTORY ¶3. In June 2016, Nicholas Brusseau, then sixteen y e ars o ld, posted p hotos o n Instagram of som e s h o e s a n d c lothes that he wanted to sell—a pair of Nike Air Jordan shoes, a Ferragam o belt, and a True R eligion shirt. Jones, then nineteen y ears old, s a w the post and contacted Brusseau through Instagram

. The two exchanged texts and photos and agreed to

a trade. Brusseau would trade Jones the s hoes, shirt, and belt f or two pairs of R obin’s jeans,
which Brusseau testif

ied were worth $400 a pair. B r usseau testif

ied that the shoes, shirt, and belt were worth a

pproxim ately $380 to $400. B russeau a n d Jones agreed to m eet at Brusseau’s house in Southaven. ¶4. On June 12, 2016, Jones’s girlf r i end, Aly ssa Lagom a rsino, drove him to Brusseau’s house, and Brusseau m et them at the end of his driveway

. Jones got out of the car and asked

to look a t the shoes. Br u s s e a u h a nded J ones one of the shoes. Although Jones did not try

on the shoes, he said t hat “the s hoes weren’t his size but i t w as o kay .” Brusseau then showed
Jones the shirt and belt. Jones put the belt around his waist but not t hrough his belt loops.
Jones then t o ssed a backpack on the ground to Brusseau’s lef t

. B russeau testif

ied, “[ A]s I

went to open [ the backpack] I looked back, and [ Jones] had already g rabbed [ the shoes, shirt, and belt] in his lef

t hand and had a gun in his right hand.” Brusse au t estif ied that Jones pointed the gun at him , quickly got back into the car, and continued t o p oint the gun at h im

2through t he car’s open w indow. Jones then said, “ I’m o ut t his [ e xpleti v e ] ,” and he told

Lagom arsino to “go.” As Lagom arsino a nd Jones drove away , Brusseau t ook a picture of the
car’s license p late. At som e point, Brusseau realized that t he j eans in the backpack were “W al-Mart jeans” rather than the prom ised Robin’s jeans. 1 Brusseau testif ied t hat he did not try to take his shoes and c lothes back f r o m J o n e s “ [ b ] ecause t here was a gun in f ront of [ him ], and [ he] d idn’t want t o risk [ his] lif e .” Brusseau stated, “I w as scared f or m y lif e
. I was shocked, and I was just trem bling. I didn’t know what to do.” ¶5. B r u sseau reported the incident to S outhaven p olice ab o u t t w e n t y mi n u t e s l a t e r
. A c c o r d i n g to Detective T odd Sam ples, Brusseau stated that Jones robbed him at gunpo i n t and “waiv[ ed] [ the gun] at him i n a threatening m anner.” A f ew day s later, Of

f icer Thom as Long went to the house t hat Jones shared with Lagom arsino. Long collected the Nike Air Jordan shoes, t he Ferragam o belt, and t he True Religion s hirt. Lagoma r s ino testif ied that
Jones had hidden t he item s in the attic of the h ouse. T h e police never recovered the gun that Jones allegedly

used. ¶6. Lagom arsino testif i ed that on the m o rning o f June 12, 2016, Jones told her that “he needed to go trade som e things” and asked her to d rive him to Brusseau’s house. According

to Lagom a rsino, Jones stepped o ut of the car and stood next to the open car door during the exchange with Brusseau. Lagom arsino testif ied that Jones tried on t he shoes while he stood

next to the car. Af

ter Jones and Brusseau m a de t he trade, Jones got back in the car and told her to drive, and she took Jones back to their house. On the way h om e, Jones told her that

1 It is n o t clear ex actly w h en B ru sseau realized th at th e j ean s w ere n o t R o b in ’s j ean s. 3he had n ot given Brusseau the Robin’s j eans he had prom i sed. L agom arsino told Jones that

he was “ going t o get in trouble” f or tricking B r u s s e a u , but J ones dism issed her c oncerns. Lagom arsino testif

i ed that Jones di d n o t display or waive a gun d uring the exchange. She also testif ied that she d id not see Jones with a gun at any tim e bef ore, d uring, or af

ter the exchange. However, on cross-exa mi n a t i o n , L agom arsino conceded that it was “possible” that Jones had a gun that he kept hidden f rom her view. ¶7. A DeSoto C ounty g r a n d jury indicted Jones f

o r arm ed robbery , and the c a se proceeded

to a o ne-day trial o n Septem ber 25, 2017. During the charge conf e rence, Jones requested a jury instruction on p e t it larceny as a lesser-included of f ense of arm ed robbery

. 2 Def ense counsel a r g u e d that t he i nstruction was appropriate because t he jury could f ind that Jones took the shoes, belt, and shirt but never p o s s e s s e d or d isplay ed a g un. However, the State objected, and the trial c o u r t ref used the instruction, concluding that t he evidence did not support it. As a result, the court instructed the jury on arm e d robbery

only

. 3

2 T h e m in im

u m sen ten ce f

o r arm ed ro b b ery is th ree y e a rs’ im p riso n m e n t, an d t h e m ax im u m sen ten ce i s lif

e i mp r i s o n m en t. M iss. C o d e A n n
. § 9 7 -3 -7 9 (R ev
. 2 0 1 4 ). A d ef en d a n t co n v i cted o f

arm ed ro b b ery

is n o t elig ib le f

o r p aro le. M iss. C o d e A n n . § 4 7 -7

- 3 (g )(i) ( S u p p
. 2 0 1 8 ) ; M iss. C o d e A n n
. § 9 7 -3 -2 ( 1 )(j ) (R ev
. 2 0 1 4 ). I n c o n trast, p etit larcen y is a m isd em ean o r w ith a ma x i mu m sen ten ce o f six m o n t h s in th e co u n ty j ail. M iss. C o d e A n n
. § 9 7 -1 7 -4 3 (R ev . 2 0 1 4 )

.

3 Jo n es also s u b m itted a lesser-in clu d ed -o f f en se in stru c tio n o n sim

p l e ro b b ery
. S

ee M iss. C o d e A n n
. § 9 7 -3 -7 3 & -7 5 (R e v . 2 0 1 4 )

. T h e S tate o b j e cted to b o th lesser-in clu d e d

o f f en se in stru ctio n s. H o w ev er, t h e S tate also arg u e d , in t h e altern ativ e, th at if t h e p etit larcen y in stru ctio n w as g ran ted , th e in s tru c tio n o n sim p le ro b b ery sh o u ld b e g iv en as w ell. D u rin g th e ch arg e co n f

eren c e, Jo n es arg u ed th at o n ly a p e tit larcen y

in stru ctio n sh o u l d b e g iv en , an d h e w ith d rew th e sim p le ro b b ery i n s tru c t io n af ter th e trial co u rt ref

u sed h is p etit l a r c e n y in stru ctio n
. B e cau se Jo n e s w ith d rew h is r eq u est f o r a sim p le r o b b ery in stru ctio n , th at issu e is n o t b ef

o re u s o n ap p eal. In ad d i tio n , b e cau se th e e v id en ce at a n e w trial m ay b e d if f e ren t th an th e ev id en ce at th e f irst trial, w e can n o t s a y w h e th er a sim p le ro b b ery 4¶8. The j ury f o und Jones guilty of arm ed robbery

. J ones f iled a post-trial mo t i o n f or judgm ent notwithstanding the verdict o r a new trial, which was denied. The court sentenced Jones to serve thirty

y ears in MDOC c ustody , with ten y ears s uspended. Jones then f iled a
tim ely notice of appeal.
ANALYSIS ¶9. On appeal, Jones argues that ( 1 ) h e w a s entitled to a jury instruction on the lesserincluded of

f ense o f petit l arceny ; (2) the evidence was insuf f icient to support h is c onviction; and (3) he is entitled to a new trial because the jury ’s verdict was a gainst the overwhelm ing weight o f the evidence. W e agree that Jones w as entitled to a n instruction on petit larceny ,

a n d w e reverse and r em and t he c ase f or a new trial on that ground. However, th e S t a t e presented suf

f icient evidence to support a conviction f or arm ed r obbery ; ther e f o re, we decline Jones’s request that we reverse and render a judgm ent of acquittal. 4
I. Lesser-Included Offense Instruction ¶10. As noted above, Jones proposed a jury instruction o n petit larceny as a l esser-included
of f ense o f arm ed robbery

. He argued that the evidence s upported the instruction because the

in stru ctio n sh o u ld b e g iv en at th e n ew trial. A l l th at w e can say is th at su ch a n in stru ctio n sh o u ld b e g iv en if it is w a rran ted b y th e ev id en ce at t h e n ew t r i a l an d eith er Jo n es o r th e S tate req u ests it. S

ee H a rveso n v. S ta te , 4 9 3 S o
. 2 d 3 6 5 , 3 7 5 (M iss. 1 9 8 6 ) (h o ld in g th at a lesser-in c lu d ed -o f

f e n se i n stru ctio n th at is “w arran t ed b y th e ev id en ce” sh o u ld b e g iv en at th e req u est o f

eith er th e S tate o r

th e d ef en se).

4 We m u st ad d ress Jo n es’s ch allen g e t o th e su f f icien c y o f th e e v id e n ce ev en th o u g h w e rev e rse an d rem an d th e case f o r a n ew trial o n o th er g ro u n d s. N ew ell v. S ta te , 1 7 5 S o
. 3 d 1 2 6 0 , 1 2 6 7 -6 8 (¶5 ) (M iss. 2 0 1 5 ). We ad d ress th e issu e b e cau se w e w o u ld rev erse an d ren d er— an d th e D o u b le Jeo p ard y C lau se w o u ld b ar a retrial— i f w e co n clu d e d th at th e S tate h ad p resen ted in su f

f icien t ev id en ce to su p p o rt th e co n v ictio n
. Id

.

5jury could f ind that he took Brusseau’s shoes and clothes but never possessed or display ed

a gun. The S tate objected to Jones’s proposed instruction, arguing t hat it was not supported by the evidence. The trial judge denied the instruction. ¶11. W h en a def

endant “ c l a i m [ s ] t h a t h e w a s e n t i t l e d t o a l e sser-included of f ense instruction, we c onduct de novo review, as this is a question of law.” Downs v. State , 962
So. 2d 1255, 1258 (¶10) (Miss. 2007). “[ A] def e ndant has a n a

b solute right to have the jury
instructed on
. . . lesser-included of f enses if the evidence supports such an instruction, and there is ‘ reversible e rror in not g iving the lesser-included of f ense instruction.’” Id. at 1260 (¶22) (quoting Fairchild v. State , 459 So. 2d 793, 8 01 (Miss. 1984)). “[ A ] lesser-included
of f ense i s one in which all the e ssential ingredients are contained in the of f e nse f or which the accused is indicted.” Id. at 1261 (¶23) (ellipses om i t t e d ) ( q uoting Porter v. State , 616 So. 2d 899, 909-10 (Miss. 1993)). “In other words, the superior of f ense cannot b e c o mmi tted without the lesser-included of f ense also being com m i tted.” Id. ¶12. A person is guilty of arm ed robbery if he f e l oniously takes property f rom the victim ’s
person or presence and against the victim ’s will, either by violence to t he victim ’s person or by putting the victim “ in f ear of im m ediate injury to his person by t he exhibition of a deadly weapon.” Miss. Code Ann. § 9 7-3-79. A person is g uilty o f petit larceny if he takes, steals, and carries away t he personal property of another that has a value of less than $1,000. Miss. Code Ann. § 97-17-43. Our Suprem e Court has held that larceny is a lesser-included of f ense of robbery

. See Clayton v. State , 759 So. 2d 1169, 1173-74 (¶¶14-15) (Miss. 1999); Jones

v. State , 567 So. 2d 1189, 1192 (Miss. 1990); see also Thomas v. S tate , 2 78 So. 2d 469, 471

6(Miss. 1973) (“It should be r e me mb e r e d that although robbery a nd l arceny are distinct

crim es, nevertheless, in a ge n e ric sense, r o bbery and larceny are but dif f erent degrees of larceny

. It has been said t hat robbery is in its f inal analy s is a f

o rcible larceny f

rom the person of another.”); People v. P i e r c e , 8 77 N.E.2d 408, 411-12 (Ill. 2007) ( discussing larceny ’s history as a lesser-included of f ense of robbery ). On the f acts a nd i ndictm ent in this case, larceny was a lesser-included of

f e nse of the indicted of

f ense of arm ed robbery

. 5 ¶13. In ref

using Jones’s prof

f ered instruction on petit larceny , the trial court stated:
It’s undisputed i n the f

a cts that the item s were t a k e n f r o m t he presence or person of the victim , Mr. Brusseau. There’s n o evidence to support the instruction based o n m y notes f rom the trial. I’ll cite Sullivan [ v. S tate , 8 83 So. 2d 142 (Miss. Ct. App. 2 004)] and Jones [ v. State , 104 So. 3d 851 (Miss. Ct. App. 2012)] as the basis f or the [ c]ourt’s decision. ¶14. In the two cases cited by the t rial co u r t , t h i s C o u r t stated that a larceny “usually ” involves a taking o f property that is com m itted “outside of [ the] presence” of the property ’s

owner. Jones , 1 0 4 S o. 3d at 8 54 (¶13) (quoting Silas v. S tate , 847 So. 2d 899, 902 (¶16) (Miss. Ct. App. 2002)); S ullivan , 883 So. 2d at 145 (¶9) (quoting Silas ). However, neither

case h eld that a larceny can only occur outside t he owner’s presence. Nor do tho s e cases hold that a taking of property f rom the owner’s presence i s a lway s a r obbery or never a

5 A rm ed ro b b ery also en c o m p asses an “attem

p t t o t ak e” p ro p erty f

ro m th e p erso n o r p resen ce o f

th e v ictim

b y th e ex h i b itio n o f a d ead ly w eap o n . M iss. C o d e A n n . § 9 7 -3 -7 9

. “[ T ] h eref o re a co n v ictio n b ased o n arm ed ro b b ery d o es n o t req u ire th at th ere b e an actu al tak in g ,” o n ly an “attem

p t.” C r o ft v. S ta te , 9 9 2 S o
. 2 d 1 1 5 1 , 1 1 5 9 (¶3 3 ) (M iss. 2 0 0 8 ). In co n trast, larcen y g en erally req u i res p ro o f th at th e d ef en d an t to o k p o s sessio n o f t h e p ro p erty an d p ro o f o f at least a “slig h t” “asp o rtatio n ” o r m o v em en t o f th e p ro p erty

. H a rb in v. S ta te , 4 0 2 S o
. 2 d 3 6 0 , 3 6 1 -6 2 (M iss. 1 9 8 1 ). T h u s, i t is p o ssib l e t h a t larcen y w o u ld n o t b e a lesserin clu d ed o f

f en se o f an arm ed ro b b ery th at in v o l v e d o n ly an u n su ccessf u l “ attem p t to tak e” p ro p erty

. B u t th e in d ictm e n t in th is case ch arg ed o n ly an actu a l tak in g , a n d it is u n d isp u ted th at an actu al tak i n g o ccu rred

. 7larceny

. Indeed, by stating that a larceny “usually ” occurs outside of the presence of the

property owner, this C ourt clearly im plied tha t a l arceny can be com m itted i n t he owner’s presence. W e now m ake that point clear. ¶15. Our conclusion on this issue is consistent with the statutory def i nitions of robbery

and larceny

. Again, a person is g uilty of larceny if he takes, s t eals, and carries away the personal property of another. See Miss. Code Ann. §§ 97-17-41 &

- 43. T he s tatute does not state that the taking m

ust occur outside the presence of the property ’s owner. The taking becom es a robbery only when t he taking is done f rom the person or presence of the victim a nd is “done by m eans of violence or intim i d a t i o n
. ” 3 W ay ne R

. L a Fave, Substantive Criminal Law § 2 0.3(d) ( 3d ed. 2016); see Miss. Code Ann. § § 97-3-73 & -79. “Larceny f rom t he person

or presence of the victim is not robbery without this added elem ent of f orce or f e ar.” LaFave, supra , § 20.3(d) (em phasis added). ¶16. The proposition that larceny ma y b e c o mmi t t e d i n the presence of the property ’s

owner is a lso consistent with our Suprem e Court’s d iscussion of the dif f e r e n ce between larceny and rob b e r y i n Mackbee v. State , 575 So. 2d 16 (1990). There, the Court quoted approvingly a Pennsy lvania case that explained that a ty pical purse sn atching m ay support

a conviction f

or robbery because “[ t]he f orce u sed in t aking the purse f rom the victim ’s a rm

was a h arm f

ul touching of the person, accom pa n i e d with suf

f icient f o rce to com

pel the

v i c tim to part with the conscious control of her property [ .]” Id. at 36 ( em p hasis om it t e d ) (quoting Commonwealth v. Brown , 484 A.2d 738, 7 42 (Pa. 1984)). The Court c o ntrasted the
p u r s e s n a tcher w ith “the case of the thief who m erely t akes the property of another wit h

8intent perm anently to deprive h im thereof , using no f

orce o r t h r e a t o f f

orce on the victim —like the pickpocket.” Id. The Court stated that a ty pical t hef t by a p ickpocket “is non-violent, poses n o t hreat to the victim who is unaware of

the taking, and is accordingly graded less severely t han robbery .” Id. Finally , the Court stated t h a t “ [ a ] victim who is

aware of t he taking of p roperty f rom h is p erson is apt to r ef lex action to protect him self and his property

and thus m ay

be injured by

the f elon.” Id. ¶17. In this case, Brusseau testif ied that Jones took h i s p r o p e r t y f rom his presence by pointing a gun at him

. If the jury believed Brusseau, h is testim ony was suf f icient to support

a conviction on the indicted o f f ense o f arm ed robbery

. Ho w e v e r , t h a t i s not the relevant question in this context. ¶18. W h en we r eview the deni a l o f a def e ndant’s request f

or a lesser-included-of

f ense instruction, “[ w]e m

u st view the evidence i n the light m o st f avorable to t he def

endant, draw
all reasonable inf

erences in his f

avor, and take into account that the jury m a y not be required to believe any evidence of f ered by the State.” Gilmore v. State , 119 So. 3d 278, 286 (¶13) (Miss. 2 013) (quotation m arks om itted). A def endant is entitled to such an instruction if he can “point to some evidence in the record f rom which a jury reasonably could f ind him not guilt y o f t h e c r i m e with which he was charged and at the sam e t im e f ind him guilty of a lesser-included of

f ense.” I d. ( em phasis added) (quoting Goodnite v
. S tate , 7 9 9 S o. 2d 64,
69 (¶24) (Miss. 2001)). “[ L ]esser-in c l u d e d of f ense instructions should not be granted on

m ere speculation.” Franklin v. S tate , 136 S o. 3 d 1021, 1026 (¶11) (Miss. 2014). However,

a def endant’s request f

o r such an instruction m

ust be granted “if a ‘ rational’ or ‘reasonable’

9jury c ould f i nd the d ef

endant not guilty of the principal of f ense
. . . , y et guilty of the lesserincluded of

f ense.” Downs , 962 So. 2d at 1261 (¶28) (quoting Monroe v. State , 515 So. 2d 860, 863 (Miss. 1987)); accord Perry v. State , 637 S o. 2 d 8 7 1 , 8 77 (Miss. 1994). “Furtherm ore, every accused has a f undam ental right to have her theory of the case presented

to a jury , ev e n i f the evidence i s m inim al.” C h inn v
. State , 958 So. 2 d 1223, 1225 (¶13) (Miss. 2007). “Finally , when serious doubt exists as to whether an instruction should be included, the doub t s h o u l d b e resolved in f avor of the accused.” Davis v. State , 18 So. 3d 842, 847 (¶15) (Miss. 2009). ¶19. Apply ing a de n ovo standard of review, Downs , 962 So. 2d at 1258 (¶10), and viewing the evidence in the light m ost f avorable to Jon e s , w e c o n c l u d e that h e was entitled to an i nstruction on the lesser-included of f e nse of petit larceny

. Based on Lagom a r s i n o ’ s testim o ny , a rational jury could have concluded that Jones d id not display or even have a gun when he m et Br u s s e a u to m ake their trade. Lagom a rsino stated that it was “possible” that
Jones had a gun that h e kept h idden f rom her view. How ever, Jones stood only a f ew f eet f rom Lagom arsino throughout the exchange, and Brusseau claim ed t hat Jones continued to point a gun through the open w indow of the car even as he got back in t o the car. Yet, Lagom arsino testif

ied t hat she never saw Jones brandish a gun—and, i ndeed, n ever saw Jones with a gun on the day in question. F urtherm ore, the police recovered all of Brusseau’s property but did n o t f

ind the gun that Jones allegedly used in t h e c r i me. Under these circum stances, a rational jury could h ave f o und that J ones did not use a gun to take Brusseau’s property

and, thus, did not com m it an arm ed robbery

.

1 0¶20. The que s t i o n r em ains whether a rational jury could have f ound Jones guilty of

the lesser-included o f

f ense of petit l arceny
. See Downs , 962 So. 2d at 1261 (¶28) (holding that

a lesser-included-of

f ense instructi o n i s w arranted only if a rational j ury could f ind the def endant not guilty of the greater of f ense and guilty of the lesser- i n c l u ded of f ense). In addressing this issue, we note that Jones is distinguishable f rom the purse snatcher that our Suprem e Court discussed in M ackbee , supra . The purse snatcher w a s g u i l t y of robbery because he used actual “f orce” to seize the purse f

rom his victim

. Mackbee , 5 75 So. 2d at 36. 6 However, we acknowledge that Jones is also distinguishable f rom t h e pickpocket discussed in Mackbee

. The Suprem e Court reasoned that the pickpocket com m itted only a larceny because he used “no f orce or threat of f

orce on t he victim ,” “who [ w as] u naware of

t h e taking.” Id. Here—even if Jones did not have a gun, used no f orce, and m ade n o threat—Brusseau was aware of the taking once he realized that Jones was leaving and had given him “W al-Mart jeans” rather than Robin’s jeans. ¶21. Nonetheless, we conclude that a rationa l j u r y c o uld h ave f o und Jones guilty of

the

6 F o r th e sam e b asic reaso n , th is case is d istin g u i sh ab le f ro m th e t w o cases th at th e trial co u rt cited as th e b asis f o r its ru lin g
. S

ee s u p r a ¶ ¶1 3 -1 4

. In S

u l liva n , t h e v ictim testif i ed th at th e ro b b er b ran d ish ed a k n if e an d p h y sically stru g g led w ith h i m , a n d th ere w as n o ev id en ce to s u g g est th at th e tak in g w as acco m p lish ed w ith o u t p h y sical f o r ce. S u lliva n , 8 8 3 S o
. 2 d a t 1 4 3 , 1 4 5 (¶¶3 , 9 ). B ecau se th ere w as n o ev id en ce o f a n o n v io len t tak in g , th e trial co u rt p ro p erly

ref u sed a p etit larcen y in stru ctio n
. Id

. at 1 4 5 (¶9 ). S im ilarly in Jo n es , th e v ictim testif

ied th at th e ro b b e r sn atch ed m o n ey f ro m h er cash reg ister an d “u sed p h y sical f o rce to o v erco m e [ h er resistan ce] b y g r a b b in g h er arm w ith o n e h an d w h il e p u s h i n g h er b ack w ith th e o t h er h an d

. ” Jo n es , 1 0 4 S o
. 3 d a t 8 5 4

- 5 5 (¶1 5 )

. T h e d ef e n d an t p u rsu ed a m istak en i d en tity d e f

en se, id

. at 8 5 3 , 8 5 5 (¶¶6 , 1 8 ), b u t th ere w as n o ev id en ce to co n trad ict th e cash i er’s v ersio n o f th e r o b b ery
. T h i s C o u r t h eld th at th e v ictim ’s u n co n trad icted testim o n y th at th e ro b b er co m m itted “v io len t acts” j u stif ied t h e trial co u rt’s d en ial o f a p etit larcen y in stru ctio n
. Id

. at 8 5 5 (¶1 5 ). 1 1lesser-included of f ense of petit larceny

. The evidence w as suf f icient f or a jury to have f

ound
that an u narm e d J ones sim ply tricked Brusseau—i.e., that Jones tossed Brusseau a bag of cheap jeans and then q

uickly f led with the Air Jordans, shirt, a nd belt. In other words, there

was s om e evidence to support Jones’s theory that h e obtained Brusseau’s property b y stealth

or trick r ather t han b y f

orce or threat. That describes a larceny , not a robbery

. See Register

v. Stat e , 2 3 2 M i s s
. 1 2 8 , 132, 97 So. 2d 919, 921 ( 1957) (“[ I ]f there be a taking by trick or contrivance, and carry ing a way with f elonious intent, but no violence o r putting in f ear a s a

m eans of the caption of another’s property , there is a larceny , but no robbery .”); Chaney v.
State , 739 So. 2d 4 16, 418 (¶8) (Miss. Ct. App. 1999) ( “[ R]obbery requires only extrem ely slight f o rce or violence, but does not include stealth.”). ¶22. Thus, there was s uf f icient evidence f

o r a r ational j ury t o f

ind Jones not guilty of arm ed robbery but guilty of petit larceny

. Theref o re, the trial court erred by not g r a n t i n g Jones’s request f o r an instruction on t he lesser of f ense. T h e denial of a p roperly requested i nstruction

on a lesser-included of

f ense is r eversible error. See, e.g. , Downs , 962 So. 2d at 1260 (¶22) (“[ A] d ef endant has an absolute right t o have the jury instructed on lesser-included of f enses if the evidence supports suc h an instruction, and there is reversible error i n not giving the lesser-included of

f ense instruction.”); Smith v. State , 725 So. 2d 922, 927 ( ¶10) (Miss. Ct. App. 1998) (“[ A] t rial c o u r t ’ s ref usal t o grant a def

endant’s properly requested lesserincluded-of

f ense instruction, which is a c orrect statem ent of t h e law and supported by
suf f i cient evidence, constitutes reversible error.”). Indeed, when supported by the e vidence, the de f e n d a nt’s right t o a lesser-included of f ense instruction “has, i n a long l ine of cases,

1 2been held essential to a f a ir trial.” W

alls v. State , 759 So. 2d 483, 487 (¶12) (Miss. Ct. App. 2000). 7 Accordingly , we m ust reverse and rem and this case f or a new trial. ¶23. A l t h o u g h w e a r e rem anding the case f or a new trial, we e m

phasize t hat there w a s suf f i cient evidence f

or a r a t i o n a l jury to f

ind J ones guilty of either arm ed robbery or petit larceny

. W hen the evidence at trial would perm it the jury to f ind the def

end a n t g u i l ty of either t he i ndicted of

f e nse or a lesser-included of f e nse, “a classic jury question” is presented. Odom v. State , 7 6 7 So. 2 d 242, 246 (¶13) (Miss. Ct. App

. 2000). In such a case, if the def endant requests an instruction on the lesser-included of f ense, the i nstruction m

ust be granted. Booze v. State , 964 So. 2d 1218, 1223-24 (¶¶20, 23) (Miss. Ct. App. 2007).
II. Sufficiency of the Evidence ¶24. As noted above, Jones also argues that the evidence wa s i n s u f f i c i e n t to support a conviction f

or arm ed robbery . W e disagree. ¶25. “W hen this Court reviews the suf f i ciency of evidence supporting a guilty verdict, we view the evidence in the light m ost f avorable to the State a nd decide if r ational jurors could have f ound the State p roved each elem ent of the c rim e .” Lenoir v
. State , 222 So. 3d 273, 279 (¶25) (Miss. 2017). The issue is not “whether we think the State p r o v e d the elem ents. Rather, we m

u st decide whether a reasonable j uror c o uld rationally say that the State did.” Poole v. State , 46 So. 3d 290, 293-94 (¶20) (Miss. 2010). ¶26. “The e s s e n t ial elem ents of arm ed robbery are: ( 1) a f e lonious taking o r a ttem

pt to take, (2) f

rom the p erso n o r f

rom the presence, ( 3) the personal property of another, (4)

7 S ee a l so K eeb le v. U

n ited S ta tes , 4 1 2 U

. S

. 2 0 5 , 2 1 2 -1 3 (1 9 7 3 ) (d i scu ssin g th e p ractical im

p o rtan ce o f th e rig h t); B o

yd v. S ta t e , 5 5 7 S o
. 2 d 1 1 7 8 , 1 1 8 1 (M iss. 1 9 8 9 ) (sam e). 1 3against his will, (5) by violence to his p erson or by putting such person in f ear of im m ediate injury to his person by t he e xhibition of a deadly w e a pon.” Oliver v. State , 2 34 So. 3d 443,
445 (¶11) (Miss. Ct. App. 2017), cert

. d e n i e d , 233 So. 3 d 822 (Miss. 2018). Jones argues that there w as insuf

f icient evidence to prove that he used a gun. In the alternative, he argues that the evidence was undisputed that he to o k p ossession of Brusseau’s s h oes and clothes bef ore he allegedly drew the gun. Both argum ents are without m erit. ¶27. As to Jones’s f

irst argum ent, Brusseau clearly testif ied that J ones p oi n t e d a gun at him

. Lagom a rsino testif ied that she did not see a gun, but s he a l so conc e d e d t h a t i t w a s possible that Jones concealed the g un f rom her. W hether Brusseau brandished a gun was an issue of f act f or the jury t o decide. “The jury sits a s trier of f a c t and is c harged w ith the duty
of determ ining what weight a nd worth to af f ord the testim ony of t he various witnesses.”
W oods v. State , 8 83 So. 2d 583, 5 89 (¶16) (Miss. Ct. App. 2004). “ The testim ony of a single uncorroborated w itness is suf f icient to sustain a conviction, even [ if there is] m ore than one
person t estif

y ing to the contrary

. ” W illiams v. State , 512 So. 2d 666, 670 (Miss. 1987) (citations om itted). In such cases, we will not se t aside the jury ’s v erdict unless the “testim ony necessary to support [ it] is s o im plausible or so substantially im peached as to be unworthy of belief

.” B rown v. State , 764 So. 2d 463, 4 67 (¶9) (Miss. Ct. App. 2000). In this case, Lagom arsino herself conceded that Jones could have display ed a gun that s he did not

see. Moreover, t he jury was f ree to disbelieve Lagom arsino’s t estim o ny altogether. See, e.g. , Meshell v. State , 506 So. 2 d 989, 992 (Miss. 1987) (“[ T]he j ury is the j udge of the weight and credibility of t estim ony a nd is f ree to accept or reject all or som e o f the testim ony given by

1 4each witness.”). Under these circum stances, B russeau’s testim ony was suf f icient to support

an arm ed robbery conviction. ¶28. Jones’s second argum ent is virtually identical to an argum ent that we rejected not too long ago in Oliver , s upra . In that case, the victim ( Rone) was riding his skateboard when an acquaintance (Oliver) pulled up beside him in a car and asked to b o r r o w his c e ll phone. Oliver , 234 So. 3d at 444 (¶3). Rone allowed Oliver to borrow the phone, and Oliver then said that he was going to keep it. Id. at (¶4). R one dem anded that Oliver return the phone, b u t O l i v e r r e f

used, pulled a gun f

rom under his car seat, c ocked the gun, and p ointed i t at
Rone. Id. Oliver then d

rove o f f with t he phone. Id. at (¶5). “Rone t estif ied that Oliver was still p ointing the g un at him as h e drove o f f .” Id. at 4 46 n.3. O n appeal, O liver argued that there was insuf

f icient evidence t o support a conviction f or arm ed r obbery Rone “ voluntarily relinquished possession o f the p hone” bef ore O l iver ever display ed a gun. Id. at (¶15). W e rejected this argum ent, explaining: Although Rone i nitially allow e d O l i v er to borrow his phone, the t aking occurred when O live r r e f u s ed to return the phone, and exhibited a deadly weapon to intim idate or cause f ear in Rone in order to keep it. The taking was not com plete until Oliver drove out o f Rone’s presence with t he phone.

. . . [ T]he testim ony s hows f

ear was the m eans of

the taking. In o ther words, the taking was ef

f ectuated through f

ear of im m ediate injury

to Rone. Id. at (¶¶16-17) (paragraph break and f ootnote om itted). ¶29. The same r e a s o n i n g a p p l i e s i n t h i s c a s e
. Brusseau “voluntarily relinquished possession” of

his shoes and clothes. Id. at (¶15). However, according to Brusseau, Jones then q uickly pulled out a gun as he was still i n t h e p r o c e s s of picking u p the shoes and clothes. In addition, Brusseau testif ied that h e did n ot try to take his shoes and clothes back

1 5f

rom Jones because he was in f ear f or his lif e. Thus, a s in Oliver , Brusseau’s “testim ony shows f ear was the m eans of the taking. In other w ords, the taking was ef f e ctuated through
f ear of im m edia t e injury to [ B russeau].” Id. at (¶17). Accordingly , there was suf f icient evidence f

or a rational jury to f

ind that Jones g u i l t y o f t he crim e of arm e d robbery

. Miss. Code Ann. § 97-3-79.
CONCLUSION ¶30. There was suf

f icient evidence f

or a r a t ional jury t o f

ind Jones g uilty of a r

m ed robbery

. However, there was also evidence that would have perm i tted a rational j ury to f ind t hat Jones

com m itted o nly the lesser-included of f ense o f p etit larceny

. Theref o re, the trial court erred by deny ing Jones’s request f or an instruction on the lesser-included of f ense, and this case

m ust be reversed and rem anded f or a new trial. ¶31. REVERSED AND REMANDED. BARNES, C.J., CARLTON, P.J., GREENLE E , WESTBROOKS, TINDELL, McDONALD, L AWRENCE AND McCARTY, JJ., CONCUR. C. W ILSON, J., NOT PARTICIPATING.

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