IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2025-CA-00431-COA
STATE OF MISSISSIPPI APPELLANT
v.
TEVIN JAMES BENJAMIN APPELLEE
DATE OF JUDGMENT: 02/13/2025
TRIAL JUDGE: HON. KATHY KING JACKSON
COURT FROM WHICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL
BY: WILSON DOUGLAS MINOR
ATTORNEYS FOR APPELLEE: DOUGLAS LAMONT TYNES JR.
DUSTIN NORMAN THOMAS
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 09/08/2026
MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., EMFINGER AND LASSITTER ST. PÉ, JJ.
WILSON, P.J., FOR THE COURT:
¶1. Tevin Benjamin was convicted of capital murder, but the Mississippi Supreme Court
later reversed his conviction, holding that the trial court erred by admitting statements that
police obtained from Benjamin in violation of Miranda v. Arizona, 384 U.S. 436 (1966), and
Edwards v. Arizona, 451 U.S. 477 (1981). See Benjamin v. State, 116 So. 3d 115, 118-23
(¶¶7-20) (Miss. 2013). When Benjamin was retried, the jury found him not guilty.
¶2. Benjamin subsequently filed a civil action against the State for compensation for
wrongful conviction and imprisonment. See Miss. Code Ann. §§ 11-44-1 to -15 (Rev. 2019).
A jury returned a verdict for Benjamin, and the trial court awarded him compensation for the time he was incarcerated. On appeal, the State argues that the trial court erred by denying
its motion for judgment notwithstanding the verdict (JNOV) “because the evidence was so
deficient that it could not have supported a verdict in Benjamin’s favor.”
¶3. Viewed in the light most favorable to Benjamin, the conflicting testimony at trial was
sufficient to support the jury’s verdict. Therefore, the trial court did not err by denying the
State’s motion for JNOV, and the judgment awarding Benjamin compensation is affirmed.
FACTS AND PROCEDURAL HISTORY
¶4. The Mississippi Supreme Court previously summarized the basic facts of the
underlying robbery and murder as follows:
On October 23, 2008, Michael and Linda Porter were traveling to Pascagoula
to watch Linda’s grandson play football. It was a dark, rainy night. At
approximately 6:50 p.m., they stopped at a Conoco gas station in Moss Point
to ask for directions to the football stadium. The Conoco was on the corner of
Peters Street and Highway 63. Michael, who was driving, pulled in front of
the gas station, parallel to the pumps, with the front of the car facing Peters
Street. He exited the car to go into the gas station, and Linda stayed in the car.
She saw three young men standing in front of the car, one with a white towel
over his head. About ten seconds later, two of the men walked past the car,
and she heard a commotion in the rear of the car. She looked through the rear
window and saw two of the men attacking Michael, while the third man with
the white towel kept watch on her. Michael wrestled with the men and
managed to open the driver’s side door, push them off, get inside the car, and
slam the door on them. Once inside the car, Michael held the door shut with
his right hand and attempted to work the gear shift with his left hand. The man
with the white towel approached the car, aimed a gun at Linda, and then at
Michael, and fired. The bullet struck Michael in the chest. The assailants fled.
Michael managed to get the car in gear and drive away, but quickly succumbed
to the bullet wound. Linda stopped the car and ran to a nearby house for help.
When the police and paramedics arrived, Michael was transported to Singing
River Hospital, where he was pronounced dead. Linda was unable to identify
the assailants, whom she described as black males in their early twenties.
Benjamin, 116 So. 3d at 117 (¶2).
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¶5. The police arrested Benjamin, Darwin Wells, Terry Hye, and Alonzo Kelly in
connection with the crime. Benjamin was fourteen years old at the time of the crime, Wells
was fifteen, Hye was sixteen, and Kelly was seventeen. A Jackson County grand jury
indicted Benjamin, Wells, and Hye for capital murder. Kelly was indicted as an accessory
after the fact and later pled guilty to that charge. Following separate jury trials, Wells was
convicted of murder, and Benjamin and Hye were convicted of capital murder.
¶6. On appeal, the Mississippi Supreme Court reversed Benjamin’s conviction, holding
that the trial court erred by denying Benjamin’s motion to suppress statements the police
obtained from him in violation of Miranda, 384 U.S. 436, and Edwards, 451 U.S. 477. See
generally Benjamin, 116 So. 3d at 118-23 (¶¶7-20).1 In March 2014, Benjamin was retried,
and the jury found him not guilty.
¶7. In September 2014, Benjamin filed a petition for compensation for wrongful
conviction and imprisonment under Mississippi Code Annotated sections 11-44-1 to -15.
The case was tried in January 2025.
¶8. Benjamin testified that on the morning of the shooting, he smoked marijuana with
Kelly and Hye, and all three later met Wells at the Little Super Convenience Store. After
they left the Little Super, Wells got into a fight with another man, and the police arrived. The
police searched Benjamin, Hye, Kelly, and Wells but let them go. The group then went to
Kelly’s house, where they smoked marijuana again. Benjamin said he did not have any
1
Wells’s conviction and Hye’s conviction were affirmed on appeal. See generally Wells v. State, 73 So. 3d 1203 (Miss. Ct. App. 2011); Wells v. State, 328 So. 3d 124 (Miss. Ct. App. 2021), cert. denied, 328 So. 3d 1252 (Miss. 2021); Hye v. State, 162 So. 3d 750 (Miss. 2015), cert. denied, 577 U.S. 876 (2015).
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money for the fair later that evening, but Wells said not to worry because they would “hit a
couple licks later on and . . . get [Benjamin] some money.” Benjamin testified that he
understood “hit a lick” to “mean[] just getting some money some type of way.” Benjamin
assumed Wells planned to sell cocaine or “fake crack” because that was what Wells had
always done in the past, and Benjamin had “never known [Wells] for doing nothing else.”
¶9. Later, the group walked to the Conoco. Benjamin testified that they were standing in
the street next to the Conoco2 waiting to make a sale when the Porters drove up to the gas
station. Michael parked the car, entered the store, exited the store, and began walking back
toward his car. Suddenly, Wells started “speed walking” toward Michael. Benjamin stated
that he walked behind Wells for a short distance because he thought Wells was going to sell
drugs to Michael. Benjamin testified that Wells slipped and fell down, stood up, and then
pulled a gun out of his coveralls. Benjamin testified that until that moment, he did not know
that Wells had a gun, and he turned and started to walk away when he saw the gun.
According to Benjamin, Wells ran to the Porters’ car and began pulling on the car door, but
it was locked. Wells then shot Michael. Benjamin testified that when he heard gunshots, he,
Hye, and Kelly “all took off running.” Benjamin testified that he had nothing to do with the
robbery or murder and was not involved in any altercation with Michael.
¶10. A few days later, Benjamin’s mother took him to the police station. Benjamin told
the police that he was at the fair at the time of the shooting and knew nothing about the
2
Benjamin testified that he and his friends were “all banned from the Conoco.”
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shooting, which was not true.3 Benjamin testified that he lied to the police because they told
him he might be able to go home depending on what he had to say.
¶11. Darwin Wells testified at trial, and the transcript of his pretrial deposition was
admitted into evidence. In his deposition, Wells testified that he, Kelly, Hye, and Benjamin
were all at the Conoco around 6:10 or 6:15 p.m. on the night of the shooting. Wells testified
that they “sent [an] old drunk in the store” to buy cigarettes and cigars for them, and Wells
“went behind the store to [urinate].” Wells testified that when he returned from behind the
store, the Porters drove up, and Michael asked him for directions. Wells told Michael he
could not give him directions, and Michael went inside the store. Wells claimed that he
asked Michael for “change” as Michael exited the store. Wells testified that by this point,
Benjamin was already “headed up the street” away from the Conoco, that Hye was “en route
behind” Benjamin, and that Kelly “was already way on down the street.” Wells claimed that
when he asked Michael for change, Michael suddenly “grabbed [him] in an aggressive
manner” and they got “into a tussle.” Wells claimed that he broke loose, drew his gun, and
shot Michael in self-defense. Wells claimed that he never tried to rob Michael and that he,
Benjamin, Hye, and Kelly never planned to rob anyone. Wells reiterated that Benjamin was
already walking down the street away from the Conoco before he fought with Michael.
Wells maintained that Benjamin did nothing to help him and that Benjamin “didn’t know
anything” about a robbery or shooting and could not have known anything “[b]ecause it was
a spur-of-the-moment situation. No one knew it was going to happen. It just happened out
3
This was the statement the Mississippi Supreme Court later held was obtained in violation of Miranda and Edwards.
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of the blue at the spur of the moment.”4
¶12. At trial, Wells unexpectedly testified that he was at the fair from 5 to 10 p.m. on the
night of the shooting, that he was not at the Conoco and knew nothing about the shooting,
and that the police coerced his confession. In his written confession, Wells had stated that
he approached Michael outside the Conoco and “ask[ed] him for a dollar,” that Michael said
nothing and got in his car, that Wells tried to “open the car door and ask” again for a dollar,
that Michael “slammed [Wells’s] finger in the door,” and that Wells “then pulled out [his]
gun and tried to unjam it and it went off.” However, Wells testified at trial that his written
statement was coerced and wholly “made-up.” He also denied that the transcript of his
deposition accurately reflected his deposition testimony.
¶13. Hye testified on direct examination that Wells acted alone and that Benjamin had
nothing to do with the robbery. However, on cross-examination, Hye became frustrated,
declared he was “done talking,” and refused to answer the State’s questions. Because Hye
refused to testify on cross-examination, the trial judge struck his “entire testimony.”
¶14. The State called Linda as a witness. As described above, Linda testified that she
remained in the car while Michael went inside the Conoco. She testified that she saw three
young men in the parking lot and that one man watched her while two other men attacked
Michael at the rear of the car. She testified that Michael fought his way back to the driver’s
seat, but before he could drive away, the man who had been watching her approached the car
4
Wells acknowledged that there was some discussion of “hitting a lick.” But he testified that “hit a lick” “doesn’t mean to rob nobody or to do anything illegal. Hit a lick means to prosper or gain success in a righteous form or fashion,” including even the fortuitous receipt of discounted legal services.
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and shot Michael in the chest. Linda testified that she was unable to identify the three men
because it was dark and raining. She could only describe them as three young black males
in their early twenties. Linda acknowledged that she could not identify Benjamin (or anyone
else) as one of Michael’s attackers. She also acknowledged that Michael’s autopsy showed
no injuries other than the fatal gunshot wound.
¶15. The trial court admitted Kelly’s testimony from Benjamin’s two criminal trials
pursuant to Mississippi Rule of Evidence 804(b)(1) because the State was unable to locate
Kelly or serve him with a subpoena.5 According to Kelly, Benjamin and Hye came to his
house on the day of the shooting, and he heard Hye and Wells talking on the phone about
“hitting a lick”6 because Wells and Benjamin needed money. Later on, Kelly, Hye, and
Benjamin met Wells at the Little Super, and Wells got into a fight with someone else. The
police arrived, “searched” everyone, and then let everyone go. Around 6 p.m., Kelly, Hye,
Wells, and Benjamin returned to the Little Super and then walked to the Conoco. Kelly
testified that Wells told Benjamin, Hye, and Kelly that he was going to “hit a lick” and
showed them all a gun. Kelly testified that he refused to go to the Conoco with Wells
because they always got into trouble there. Kelly remained at a stop sign down the street
from the Conoco. Benjamin and Hye continued to walk with Wells to the Conoco. Kelly
testified that he did not see what happened at the Conoco. He could see Benjamin and Hye
5
The State offered Kelly’s testimony from Benjamin’s first trial. Once the trial court ruled that Kelly’s prior testimony was admissible, Benjamin elected to introduce Kelly’s testimony from Benjamin’s second trial in his rebuttal case.
6
Kelly testified that “hitting a lick” means “getting money.” He said “it can mean robbery” but can also mean “go cut yards.”
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“standing in the road,” but he could not see Wells. Then he “heard a gunshot.” Kelly
testified that Benjamin, Hye, and Wells all ran down the street toward him, with Wells about
ten feet behind the other two. Kelly turned and ran with them to Wells’s house, and then
Kelly, Benjamin, and Hye went back to the Little Super. Hye and Benjamin “caught a ride
to Pascagoula,” while Kelly went back to his house. According to Kelly, the group met the
next day to discuss what they would tell the police if they were questioned. Kelly planned
to say that he was with his girlfriend at the time of the shooting, and Benjamin and Hye
planned to say they were at the fair.
¶16. The jury deliberated for about an hour before returning a nine-to-three verdict in favor
of Benjamin. The trial court subsequently entered a judgment against the State in the amount
of $255,616.44 plus attorney’s fees of $51,123.29.7 The State filed a motion for JNOV,
which the trial court denied, and a notice of appeal.
ANALYSIS
¶17. On appeal, the State argues that the trial court erred by denying the State’s motion for
JNOV because the evidence was insufficient to support a verdict in Benjamin’s favor.
Specifically, the State argues “that a reasonable and fairminded jury could only reach one
conclusion: that Tevin Benjamin was directly involved in the attempted robbery of Michael
Porter and thus failed to prove by a preponderance of the evidence that he did not commit
capital murder with the underlying felony of robbery.”
¶18. “A motion for JNOV tests the legal sufficiency of the evidence supporting the verdict,
7
Compensation and attorney’s fees are set by statute. Miss. Code Ann. § 11-44-7(2).
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not the weight of the evidence.” St. Dominic-Jackson Mem’l Hosp. v. Martin, 386 So. 3d
359, 364 (¶14) (Miss. 2024) (quoting Corley v. Evans, 835 So. 2d 30, 36 (¶16) (Miss. 2003)).
Our standard of review is de novo. Id. We are “required to consider the evidence in the light
most favorable to the non-moving party, giving that party the benefit of all favorable
inferences that reasonably may be drawn therefrom.” Id. (quoting Wilson v. Gen. Motors
Acceptance Corp., 883 So. 2d 56, 63 (¶21) (Miss. 2004)). This Court may render judgment
notwithstanding the verdict only if the evidence points so overwhelmingly in favor of the
moving party that no reasonable juror could have found for the non-moving party. Id. at 370
(¶37). When viewing the evidence in the light most favorable to the non-moving party, if a
reasonable jury could find for that party, then the jury’s verdict must stand. Id.
¶19. To obtain compensation under the wrongful conviction statutes, Benjamin was
required to prove by a preponderance of the evidence (1) that he was convicted of capital
murder and served part of his sentence for capital murder; (2) that his conviction was
reversed; (3) that he was found not guilty at his new trial; (4) that he did not commit the
crime of capital murder; and (5) that “[h]e did not commit or suborn perjury, or fabricate
evidence to bring about his conviction.” Miss. Code Ann. § 11-44-7(1). The State denied
that Benjamin could prove that he did not commit the crime of capital murder, but the State
conceded that he satisfied all other requirements under the statute. Therefore, the only issue
for the jury was whether Benjamin proved by a preponderance of the evidence that he did not
commit the crime of capital murder. Id.
¶20. “Notably, unlike a criminal trial, the plaintiff in a civil action seeking damages from
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the State for his wrongful conviction bears the burden of proof.” Isaac v. State, 187 So. 3d
1009, 1012 (¶11) (Miss. 2016). “As such, it was [Benjamin’s] duty to disprove every
element of the crime for which he was charged and convicted.” Higgins v. State, 202 So. 3d
1274, 1280 (¶14) (Miss. Ct. App. 2016). Benjamin was convicted of capital murder with the
underlying felony of robbery. As relevant here, capital murder is the “killing of a human
being without the authority of law by any means or in any manner . . . [w]hen done with or
without any design to effect death, by any person engaged in the commission of the crime of
. . . robbery.” Miss. Code Ann. § 97-3-19(2)(e) (Rev. 2006).
¶21. Essentially, the State argues that the evidence at trial conclusively established that
three men—Wells, Hye, and Benjamin—went to the Conoco to “hit a lick” and attempted to
rob Michael; that Benjamin was one of the two men who attacked Michael; and that Wells
shot and killed Michael during the robbery. The State emphasizes that Benjamin admitted
that he heard Wells say he wanted to “hit a lick,” that he (Benjamin) went onto the gas station
property, and that he was in close proximity to Wells when Wells shot Michael.
¶22. However, as discussed above, Benjamin denied that he participated in a robbery or the
assault on Michael. Benjamin claimed that he did not know that Wells had a gun and
believed Wells was only trying to sell drugs. Moreover, no witness testified that Benjamin
attacked Michael or participated in the robbery. Linda acknowledged that it was dark outside
the Conoco and that she could not identify the men who attacked or shot Michael. Wells
testified in his deposition that Benjamin did not participate in a robbery, and Kelly previously
testified that Benjamin was standing in the street when Kelly heard gunshots.
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¶23. “A jury’s verdict is given great deference by this Court, and conflicts of evidence
presented at trial are to be resolved by the jury.” Miss. State Fed’n of Colored Women’s
Club Hous. for Elderly in Clinton Inc. v. L.R., 62 So. 3d 351, 367 (¶54) (Miss. 2010)
(emphasis added) (quotation marks omitted). “The jury,” not this Court “determines the
weight and credibility of witnesses.” Solanki v. Ervin, 21 So. 3d 552, 568 (¶41) (Miss.
2009). Therefore, “[w]hen reviewing a motion for [JNOV], an appellate court considers the
evidence in light most favorable to the party against whom the motion has been made, and
disregards any evidence on the part of moving party in conflict with that evidence; if there
is credible evidence, and reasonable inferences which may be drawn therefrom, which would
support the verdict, the verdict must stand.” Griffin v. Tall Timbers Dev. Inc., 681 So. 2d
546, 552 (Miss. 1996); see also Solanki, 21 So. 3d at 565 (¶35) (stating that on a motion for
JNOV, the “court should consider the evidence offered by the non-moving party and any
uncontradicted evidence offered by the moving party” (emphasis added)).
¶24. Here, Benjamin’s testimony conflicted with the testimony of Wells and Kelly in some
respects. Benjamin’s testimony also directly conflicted with Linda’s testimony that three
men participated in the botched robbery. Nonetheless, it was up to the jury to weigh the
evidence and resolve the conflicts. The evidence, including Benjamin’s testimony and other
corroborating evidence, was sufficient for a reasonable jury to find by a preponderance of
the evidence that Benjamin was merely present at the crime scene. See Hughes v. State, 983
So. 2d 270, 276 (¶14) (Miss. 2008) (explaining that mere presence at a crime scene is
insufficient to prove guilt, even if the defendant approved of the criminal act and took no
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steps to prevent it). Therefore, the evidence was sufficient for a reasonable jury to find by
a mere preponderance of the evidence that Benjamin did not participate in a robbery.
¶25. In sum, viewing the evidence in the light most favorable to Benjamin, we cannot say
that the evidence so overwhelmingly points in favor of the State that reasonable jurors could
not have returned a verdict in favor of Benjamin. Therefore, the trial court did not err by
denying the State’s motion for JNOV.
¶26. AFFIRMED.
BARNES, C.J., WESTBROOKS, McDONALD, McCARTY, EMFINGER,
WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR. CARLTON, P.J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. LAWRENCE, J., NOT
PARTICIPATING.
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