Ben Allen filed a motion for a j.n.o.v.* in Hinds County Circuit Court Wednesday. A jury convicted Mr. Allen of one count of embezzlement of Downtown Jackson Partner funds. He is the Executive Director of the business improvement district. The jury acquitted him on nine other counts of embezzlement. The motion states:
1. The embezzlement verdict in Count 4 was against the overwhelming weight of the evidence. Embezzlement cannot occur when the supposed victim voluntarily approves of the use of the property. In the present case, according to the Indictment, Downtown Jackson Partners (“DJP”) was the owner of the property. DJP consented to Mr. Allen having a phone line for his wife. The testimony was uncontroverted that Mr. Allen reimbursed DJP under their approved procedure. Both the investigation by Board Attorney Robert Gibbs and the Board of DJP found as a fact that Mr. Allen had fully reimbursed DJP. Therefore, there can be no embezzlement....
3. Mr. Allen was indicted for embezzlement under Miss. Code Ann., § 97-11-25. This Code Section deals with public officials, trustees, or lawyers, none of which applies to Mr. Allen. Mr. Allen specifically incorporates the Motion to Dismiss, the exhibits attached thereto, the hearing, and the motion for a directed verdict argument in support of this point. The Indictment against Mr. Allen was void, and therefore, the verdict must be overturned because Mr. Allen cannot be convicted for allegedly violating a statute that does not apply to him.
4.The Trial Court erred by allowing, over objection, the undisclosed testimony of Councilman Kenneth Stokes. This last minute production of this witness, which the prosecution was fully aware of before trial, was a violation of discovery. Mr. Allen has a constitutionally protected right to voir dire the jury to determine which members of the panel might have known Mr. Stokes and this right was denied.
5. Additionally, Mr. Stokes’ testimony was improper rebuttal testimony. Mr. Stokes gave improper opinion testimony that the assessment collected by DJP was a “tax”. Councilman Stokes was not tendered or accepted as an expert under M.R.E., Rule 702. No report was provided to Mr. Allen’s attorneys prior to trial. If Mr. Stokes is an expert, then the Rules required a report prior to his testimony. If not an expert, then his testimony was improper under Rule 701. If offered as an expert, then Mr. Allen should have been offered his expert report prior to trial. In no event was Mr. Stokes’ testimony proper rebuttal testimony. The Mississippi Supreme Court has consistently held that the prosecutor cannot withhold for rebuttal evidence that which should be brought in its case-in-chief.
6. The Trial Court erred by allowing the State to argue that DJP was dealing with “public money”or that the “assessment” collected by DJP was a “tax”. The indictment clearly alleged that the money in Count 4 was the property of DJP, a private non-profit corporation. The proof was unconverted that DJP is a private corporation. The employees were private employees, a fact admitted to by the State’s own witness, Melissa Patterson. DJP was in no way affiliated with a public agency or subdivision of the State, County or City. Further, the indictment never mentions that the money in question was a “tax”. In fact, this issue was clearly addressed in McGowan v. Capital Ctr., 19 F. Supp2d 642 (S.D. Miss. 1998) a case in which both the City of Jackson and the State of Mississippi argued that the assessment collected by Business Improvement Districts was not a tax but rather an assessment. Judge Tom S. Lee
ultimately held that the money collected was not a tax.....
Mr. Allen is scheduled to be sentenced on March 8. District Attorney Robert Shuler Smith has not filed a response to this motion.
*judgment non obstante veredicto. A j.n.o.v. takes place when a judge believes there is no factual basis for a jury verdict and reverses the verdict.