IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-KA-00854-COA MALCOLM K. PATRICK A/K/A MALCOLM KENDREL PATRICK A/K/A MALCOLM PATRICK APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/15/2017 TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS COURT FROM W HICH APPEALED: SCOTT COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD DISTRICT ATTORNEY: MARK SHELDON DUNCAN NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND RENDERED - 06/26/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., WILSON AND TINDELL, JJ. IRVING, P.J., FOR THE COURT: ¶1. Malcolm Patrick appeals the judgm ent of the Scott County Circuit Court adjudicating
him guilty of receiving stolen property and s entencing him to ten y ears, wi t h t w o y ears suspended, in the custody of the Mississippi Departm ent of Corrections ( M D O C )

. In this appeal, Patrick a rgues: his s entence is excessive; the trial court erred b y g r a n t i ng a certain jury instruction; his due process rights were violated because he w as f o rced t o w ear jail attire during his trial; and the State f a iled to present suf

f icient evidence to sustain the verdict.¶2. Because we f ind the evidence insuf

f icient to sustain the verdict, we reverse and render Patrick’s conviction and sentence. Theref ore, we do n ot address Patrick’s o ther argum ents, except f or a lim ited discussion of the legality

of his sentence.
FACTS ¶3. On October 28, 2 015, Vickie Stroud contacted the Scott County Sherif f ’s Departm ent and reported that her son, Perry Stroud’s Honda Forem a n 4x4 f our-wheeler h ad been stolen. The Scott County Sherif f ’s Departm ent conducted an investigation and l isted the
f our-wheeler as stolen on the N ational Crim e Inf orm ation Center (NCIC) registry

. Of f icers canvassed the area searching f or inf orm ation and f

o r the stol e n p r o perty

. Investigator Donald Sim pson led the investigation and testif ied that the day af

ter the f our-wheeler was reported stolen, he received inf

o rm ation that it had been spotted. Shortly af ter, a concerned citizen,
W i llie W ilson, i nf

orm ed law enf

o rcem ent of

f icers that he had seen Patrick r iding the fourwheeler and could arrange to p urchase it. According to the State, W ilson received nothing
in e x c h a n g e f

or his a greem ent to work with investigators. He testif ied that he agreed to participate because he wanted to do the right thing. ¶4. W i lson called P atrick, who of f ered to s ell W ilson the f

our-wheeler f

or $750. Vickie testif i ed that s he purchased th e f our-wheeler in Decem

ber 2 006, f

or $6,500, and that she thought the vehicle was w o r t h b e tween $1,000 a nd $5,000, but later testif ied that it was worth at least $ 3,500 at the tim e it was stolen. Vickie’s s on, P erry , testif ied that he thought the vehicle was worth approxim ately $4,200 at the tim e it was stolen. ¶5. Investigator Sim

p son contacted Brad Ellis, the sherif f ’ s d epartm ent’s lead narcotics

2investigator, and asked him to f a cilitate the controlled buy . Investigator Ellis arranged f or W i lson to m eet him at the sherif f ’s departm ent, where he provided t he recording equipm ent and the of f icial state f

unds to p urchase the f

our-wheeler. W ilson then m et with P atrick and purchased the f

our-wheeler and a trailer that he used to transport it. The entire transaction

was c a p t u r e d via both a udio and video using the recording equipm ent provided by the sherif f ’s d epartm e nt. As agreed, W ilson purchased t he f our-wheeler and the trailer f or a total of $750. ¶6. Patrick was indicted on March 27, 2017, f or receiving stolen p r o p e rty

. On June 7, 2017, a jury f

ound Patrick guilty of re c e i v ing stolen property

. The circuit court sentenced
him to ten y ears, with t wo y ears suspended and eight y ears t o serve, in the custody of the
MDOC. On June 16, 2017, P atrick f iled a m otion f

o r a new trial, challenging, am ong other things, the weight a nd su f f i c i e n c y o f the evidence. Following the denial of that m otion, Patrick now appeals.
DISCUSSION
I. Excessive Sentence ¶7. A c c o r d i n g t o M ississippi Code Annotated s e c t i o n 9 7

- 1 7

- 7 0 ( 4 ) , t h e m a x i m u m s e n t e n c e f or receiving s tolen property v a l u e d a t l e s s than $5,000 is f ive y ears. Miss. Code Ann. § 97-17-70(4) (Rev. 2014). However, a s stated, the circuit court sentenced him to ten y ears. ¶8. T h e S t ate concedes, and we agree, that Patrick received an er r o n e o u s s e n t e n c e , because the m axim

um allowable sentence f

or h is of f ense was f

ive y e ars. H owever, since we

are reversing and rendering Patri c k ’s conviction and s e ntence on another ground, it is not

3necessary

that we correct the illegal sentence.
II. Sufficiency of the Evidence ¶9. The S tate presented evidence t o s h o w t h a t Patrick w as in possession of the stolen
f our-wheeler around the t i me t h a t i t w a s stolen and that he sold it f or a price that was, arguably , below its m arket value. The f our-wheeler was stolen o n O c t o b e r 2 8, 2015, and Patrick s old it on N ovem

b er 6, 2015, f

or $ 750. As noted, the o wner bought t he f our-wheeler
in Decem ber 2006 f

or $6,500 and testif

i ed that in October of 2015, alm ost nine y ears later, she would not have accepted any am ount less than $3,500. She r eiterated that she had been of f ered that am ount but chose not to sell it. However, the record is n ot clear as to the date that am ount was of

f ered. In a leading question, t he owner f inally af f irm ed that she believed the f o ur-wheeler was worth $3,500 in October 2 015. Also, as p reviously stated, the owner’s

son testif ied that he thought the f

our-wheeler was worth $ 4,200. No additional e v idence was of f ered as to the value of

the nearly

nine-y ear-old vehicle. ¶10. The State contends that the evidence is suf f i cient to sustain Patrick’s conviction. It points to the tim ing of his possession of the f our-wheeler, coupled with the f act that he sold it at a price well below m arket value, t o argue that he knew the property was stolen, and the jury was entitled to conclude that Patrick was guilty of receiving stolen property

. ¶11. Patrick responds that the State did not c arry its burden, as it did not prove bey ond a reasonable doubt that he knew the property was stolen as required by statute: A p e r s o n c om m its the crim e of receiving s t olen p roperty if he intentionally possesses, receives, retains or disposes of stolen property k nowing that it h as been stolen or having r e asonable grounds to b elieve it has been stolen, u nless the property i s p o ssessed, r e c e i ved, retained or disposed of with intent to

4restore it to the owner.

Miss. Code Ann. § 97-17-70(1) (Rev. 2014). “ A disparity b etween the v alue of the property in question and the price a t which t h e d e f endant subsequently sells it m ay be evidence of guilty knowledge when coupled with the possession of the burglary tools adapted f o r breaking and entering and burglarizing. ” Whatley v. State , 490 So. 2d 1220, 1 222 (Miss. 1986). T he def

e ndant’s “actions subsequent t o receipt m ay have a bearing on whether he knew or should hav e k n o w n t h e p roperty to be stolen.” Id. Patrick argues that “a sale f or $750

. . . is not out of l i n e w i t h [ t h e o w ner’s] valuation. [ The] sale price, a s ide f rom not being grossly

disparate to the value, could just as easily prove Patrick sim

ply needed som e cash in a hurry .” “Guilty knowledge is the gist of

the of f ense of receiving stolen property

. Guilty knowledge m ay b e shown by evidence that t he def endant r eceived the property under circum stances that would lead a reasonable m an to believe it to be s tolen.” W hatley , 490 So. 2d at 1222. ¶12. The f

acts in W hatley are strikingly

sim ilar to our f

acts: On August 30, 1984, e m

p loy ees f rom the Tennessee Gas P ipeline Corporation reported that a generator, worth about $350.00 to $400.00[ , ] had been stolen f rom the back of their truck in the parking lot of t he Holiday Inn in Greenville, Mississippi. T he record is bare of evidence regarding the i dentity o f t he actual thief or thieves. A t about 1:00 a .m . on the m o rning o f August 31, 1984, an em plo y e e o f t h e Holiday Inn, Ronald Kilgore, of f ered to s ell a portable generator to Charles W illm er, who w as a n of f -duty p o l i c e man working as a security guard f

or the h otel. W ill me r d ecided not to b uy the generator; however, on the f

o llowi n g d a y at work he saw the larceny report on a generator which was stolen. It f it the descripti o n o f the generator which Kilgore had of

f ered to s ell him

. He reported this inf orm ation to Sgt. Criswell of the Greenville P olice. Criswell cond u c t e d an investigation, which ultim ately led to the recovery of the generator o n Septem ber 7, 1984, and the arrest of the def e ndant, Perry

W hatley

.
5According to testim o ny f r om Charles R ochelle, who testif i ed as a s t a t e ’s witness, P erry W hatley appeared in R ochelle’s b ar in Greenville on the night of August 3 0 , 1984, at about 10:30 to 11:30 p .m . W hatley told R ochelle t hat he had a p o wer plant that he wanted to pawn to h im , and he assured Rochelle that the generator belonged to him

. Rochelle t estif ied that he told W hatley t hat he wanted a b i ll of s ale executed f or the generator, a nd t hat if W hatley did not return to pick it up the next day he would sell it

. W hatley agreed to sign the bill of sale f

or the generator. According to Rochelle, [ h]e m ore or less p awned it to m e, but I took a bill of sale on it in case he didn’t com e back.
W h en W hatley did not return f or the generator withi n a couple o f day s, Rochelle asked Kilgore to help him sell it. W hen Kilgore was unsuccessf u l, Rochelle f

inally located a b u y e r, Charles Prestridge. Rochelle sold the generator to Prestridge f

or $100.00; h owever[ ,] af ter he was contacted b y the police, he gave Prestridge his m o ney back, and recovered the generator. Id . at 1221. ¶13. In reversing W hatley ’ s conviction, the Mississippi Suprem e Court stated: The state’s evidence, taken in the light m ost f avorable to it at the close of the state’s c ase, m erely established possession of property recently stolen, which w a s worth m ore than $100.00, and which was sold, o r p awned, b y t h e def endant f or $ 20.00. That e vidence was i nsuf f icie n t t o show guilty knowledge. Fur t h e r m ore, the state presented no evidence at trial bearing on the def endant’s r eceipt of t he goods, a nd the def endant’s v ersion o f r eceipt of the goods was apparently rejected by

the jury

. T h e s tate f

ailed to present evidence suf f i cient to withstand t he def endant’ s m otion f o r a directed verdict on the charge of receiving stolen property

. Id . at 1224. ¶14. Patrick contends that the State presented no evidence as to how h e c am e into possession of the f

our-wheeler. “Unexplained p o ssession of recently stolen property , standing alone, is insuf

f icient to satisf

y the guilty k

nowledge required as an elem ent f or the crim e of receiv i n g s tolen property .” McClain v. State , 6 25 So. 2d 774, 779 (Miss. 1993).

6W e agree, based on W hatley , that the evidence is insuf f icient to show that Patrick knew that the f o ur-wheeler had been stolen; theref ore, we f i nd t hat the State f

ailed to prove bey ond a reasonable doubt that Patrick was guilty of receiving stolen property

. W e r everse and render the judgm ent of the S cot t C o u n t y Circuit Court f i nding Patrick guilty of receiving stolen property , and the accom

pany ing sentence. ¶15. REVERSED AND RENDERED.
G R I F F I S , P .J., BARNES, FAI R , W I L S O N , G R E E N L E E , W E S T B R O O K S A N D TI N D E L L , J J . , C O N C U R . C A R LTON, J ., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J. CARLTON, J., DISSENTING: ¶16. I respectf

ully dissent. I would af

f irm the conviction, f

inding that the r ecord contains suf f i cient evidence to support the jury verdict and conviction. 1 I would, however , r em and
f or resentencing because I a gree that the sentence im posed exceeds the statutory m axim u m . LEE, C.J., JOINS THIS OPINION.

1 S ee J o h n s o n v
. S ta te , 2 3 5 S o . 3 d 1 4 0 4 , 1 4 1 0 (¶1 2 ) (M iss. 2 0 1 7 ) ( In rev iew in g a ch allen g e to t h e s u f

f i c i en cy o f th e ev id en ce w e d eterm in e “w h eth er, af ter v iew in g th e ev id e n c e in th e lig h t m o st f av o r ab le t o th e p ro s ecu tio n , a n y ratio n al trier o f f act c o u ld h av e f o u n d th e essen tial e lem en ts o f t h e crim e b ey o n d a r easo n ab le d o u b t.

. . . T h e S tate is g iv en th e b e n e f i t o f all reaso n ab l e i n f

eren ces th at m a y b e d r aw n f ro m th e ev i d en ce.” (in tern al q u o tatio n m ark s an d citatio n s o m itted )). 7