                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-KA-00164-SCT

DERRICK MONTRELL HENLEY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         11/09/2012
TRIAL JUDGE:                              HON. MARCUS D. GORDON
TRIAL COURT ATTORNEYS:                    JAMES E. SMITH, III
                                          STEVEN KILGORE
COURT FROM WHICH APPEALED:                NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   EDMUND J. PHILLIPS, JR.
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: ELLIOTT GEORGE FLAGGS
                                              JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                        MARK SHELDON DUNCAN
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              REVERSED AND RENDERED - 04/17/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE WALLER, C.J., KITCHENS AND COLEMAN, JJ.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    Derrick Montrell Henley appeals the verdict of a Neshoba County Circuit Court jury

finding him guilty of possession of burglary tools. We find that the State failed to present

sufficient evidence that Rice intended to use the tools in question to aid in the commission

of a burglary. Accordingly, we reverse and render Henley’s conviction and sentence.

                                         FACTS
¶2.    The events of this case occurred at Central Mississippi Recycling in Philadelphia,

Mississippi, just after midnight on June 20, 2011. Central Mississippi Recycling consists of

a main office building and four other buildings. The property has one main entrance and four

secondary entrances. When the business is closed, the main entrance is secured by a “gate”

consisting of a metal cable hanging across the driveway. When property manager Gene Luke

left the property on June 19, 2011, he made sure that the gate to the main entrance was

locked.

¶3.    Due to several previous burglaries at Central Mississippi Recycling, the Philadelphia

Police Department had increased its patrol of the area. Sometime after midnight on June 20,

2011, Officer Jonathan Dearing was patrolling near Central Mississippi Recycling when he

noticed that the gate to the main entrance of the property had been laid on the ground. He

pulled onto the property, exited his vehicle, and checked the gate. The cable appeared to

have cut marks on it, and the cable clamps for the gate had been loosened, which had caused

the cable to fall to the ground. Dearing returned to his vehicle, drove over the cable, and

began to investigate the rest of the property. After driving around the property for some

time, Dearing observed a vehicle driving with its headlights off around the side of one of the

buildings. Upon noticing Dearing, the vehicle turned around, turned its lights on, and started

to leave the property.    Dearing then initiated his blue lights and stopped the vehicle

approximately three hundred yards from the main entrance of the property.

¶4.    Dearing approached the vehicle and asked the driver what he was doing on the

property. The driver responded that he was looking for a place to turn around. Dearing

asked the driver for identification, but the driver had none, explaining that his license had


                                              2
been suspended. The driver then told Dearing that his name was Derrick Henley and gave

Dearing his social security number. At that point, Dearing noticed pliers and bolt cutters on

the floor of Henley’s vehicle. Screwdrivers, wrenches, and a socket set also were found in

Henley’s car. Dearing asked Henley to exit the vehicle and searched him, finding a flashlight

in Henley’s pocket.

¶5.    Henley was taken into custody and questioned by Lieutenant Dan Refre of the

Philadelphia Police Department. Henley denied any involvement in any criminal activity and

explained that he was merely turning around in the Central Mississippi Recycling parking

lot when he was pulled over.

                                PROCEDURAL HISTORY

¶6.    Henley was indicted for possession of burglary tools in violation of Section 97-17-35

of the Mississippi Code. See Miss. Code Ann. § 97-17-35 (Rev. 2006). His indictment

alleged that he “did willfully, unlawfully and feloniously possess tools designed to aid in the

commission of a burglary, to-wit: bolt cutters, pliers and a flashlight[.]” A jury trial was held

on November 7, 2012, in the Neshoba County Circuit Court. Luke, Dearing, and Refre

testified for the State. The bolt cutters and pliers found in Henley’s vehicle and the flashlight

found on his person were admitted into evidence during the State’s case-in-chief. At the

conclusion of the State’s case-in-chief, Henley moved for a directed verdict, arguing that the

State had failed to prove that he had possessed the tools with the intent to commit a burglary.

The trial court overruled Henley’s motion, and Henley declined to offer any evidence in

defense. During closing arguments, Henley’s attorney argued that Henley had the tools in his

vehicle because he worked as a mechanic and asserted that the bolt cutters showed no signs


                                               3
of use. Henley also requested that the Court give a peremptory instruction, which instructed

the jury to find Henley not guilty, but this request was denied.

¶7.    The jury returned a unanimous verdict finding Henley guilty of possession of burglary

tools, and the court sentenced him to five years’ imprisonment. Henley moved for a new trial,

but the trial court denied his motion. Henley now appeals to this Court, arguing that the trial

court erred in denying Henley’s motion for a directed verdict, his request for a peremptory

instruction, and his request for a new trial. Because we find that the State’s evidence in this

case was legally insufficient to secure a guilty verdict, we will discuss only Henley’s

argument regarding the trial court’s denial of his motion for directed verdict and request for

peremptory instruction.

                                STANDARD OF REVIEW

¶8.    Both a motion for a directed verdict and a request for a peremptory instruction

challenge the legal sufficiency of the evidence; thus, the standard of review for peremptory

instructions and directed verdicts is the same. Wall v. State, 718 So. 2d 1107, 1111 (Miss.

1998). This Court reviews a challenge to the sufficiency of the evidence in the light most

favorable to the State, giving the State the benefit of all favorable inferences reasonably

drawn from the evidence. Graham v. State, 120 So. 3d 382, 386-87 (Miss. 2013) (citations

omitted). “If the facts and inferences so considered point in favor of the defendant on any

element of the offense with sufficient force that reasonable men could not have found beyond

a reasonable doubt that the defendant was guilty,” this Court must reverse and render.

Edwards v. State, 469 So. 2d 68, 70 (Miss. 1985) (citing May v. State, 460 So. 2d 778, 781

(Miss. 1984)) (emphasis in original). We review a challenge to the sufficiency of the

                                              4
evidence on the last occasion that the trial court ruled on the sufficiency of the evidence.

McClain v. State, 625 So. 2d 774, 778 (Miss. 1993). In this case, the last occasion on which

the trial court ruled on the sufficiency of the evidence was in its denial of Henley’s request

for a peremptory instruction.

                                       DISCUSSION

       I.     Whether the trial court erred in denying Henley’s request for a
              peremptory instruction.

¶9.    Henley argues that he was entitled to a peremptory instruction because the evidence

presented by the State was legally insufficient to prove that he intended to use the tools in

question to aid in the commission of a burglary.

¶10.   Section 97-17-35 of the Mississippi Code makes it unlawful “for any person to have

in his possession implements, tools, or instruments designed to aid in the commission of

burglary, larceny or robbery[.]” Miss. Code Ann. § 97-17-35 (Rev. 2006). This Court has

interpreted the statute to include the following elements: “(1) adaptation and design of the

tool or implement for breaking and entering; (2) possession of such tools by one with

knowledge of their character, and (3) a general intent to use or employ them in breaking and

entering.” Pamphlet v. State, 271 So. 2d 403, 405 (Miss. 1972) (citing Johnson v. State, 246

Miss. 182, 145 So. 2d 156 (1962)). The elements of the design of the tool and the intent to

use the tool are interrelated. Regarding the adaptation and design of the tool, this Court has

held that “[I]t is not necessary that the tool or article be designed and made solely for use as

a burglar’s tool.” Fuqua v. State, 246 Miss. 191, 199, 145 So. 2d 152, 154 (1962). Whether

the tools described in the indictment were intended to be used as burglary tools is a question



                                               5
for the jury. Salisbury v. State, 293 So. 2d 434, 437 (Miss. 1974). However, “[t]he carrying

concealed about one’s person, or in one’s baggage, implements, tools, or instruments

peculiarly adapted to aid in the commission of burglary, larceny or robbery, shall be prima

facie evidence of intention to use them for such purpose.” Miss. Code Ann. § 97-17-35 (Rev.

2006) (emphasis added). As for the defendant’s intent, this Court has held that “[a]lthough

it is not necessary to show a specific intent to use the tools in a burglary, there must be

evidence either that the tools have probably been recently used for the purpose of unlawfully

breaking and entering or that they are about to be used for such purpose.” Pamphlet, 271 So.

2d at 405 (citing McCollum v. State, 197 So. 2d 252 (Miss. 1967)).

¶11.   While this Court has held that possession of ordinary tools can be punishable under

Section 97-17-35, we also have recognized an “underlying harmony in our opinions as to

adaptation of ordinary articles and tools used to burglarize.” Salisbury, 293 So. 2d at 436

(emphasis added). “The outstanding evidence in each case [involving the possession of

otherwise ordinary tools] points to at least one of the tools readily recognized as a burglary

tool.” Id. For example, in Fuqua, the defendant had in his possession spotlights, a box of

socket wrenches, a pair of black gloves, a large flashlight, a keyhole flashlight, and two large

magnets, all of which are susceptible to innocent use. Fuqua, 246 Miss. at 197. However,

the defendant also possessed a box of 150 skeleton keys, recognized as tools peculiarly

adapted to aid in the commission of a burglary, along with a police badge and a stolen

firearm. Id. at 198. This Court affirmed the defendant’s conviction for possession of

burglary tools, finding that his unexplained possession of the numerous skeleton keys was




                                               6
“strong evidence that they were possessed for a felonious purpose.” 1 Id. at 200. The other

articles found in the defendant’s possession were described by this Court as “useful adjuncts

to burglar’s tools,” and the defendant’s possession of them became unlawful when the

evidence showed that the defendant intended to use them in combination with the skeleton

keys and firearms for an unlawful purpose. Id. at 199. See also McCollum, 197 So. 2d at

256 (possession of crowbars, hammers, and a bolt cutter, along with a “burglar alarm

jumper,” a device used to circumvent the “setting off” of a burglar alarm); Corn v. State, 250

Miss. 157, 159, 164 So. 2d 777, 778 (1964) (possession of sledgehammer to which a chisel

had been welded, a tool commonly used by burglars to break open safes).

¶12.   In each of the cases cited above, the defendant’s concealed possession of a tool

peculiarly designed to aid in the commission of a burglary – skeleton keys, a burglar alarm

jumper, a modified sledgehammer – served as prima facie evidence of the defendant’s intent

to use that tool in the commission of a burglary. However, this Court has never affirmed a

defendant’s conviction for possessing burglary tools in a case where the evidence did not

point to at least one tool peculiarly designed as a burglary tool. The Court of Appeals has

affirmed a defendant’s conviction in such a case, but only upon proof that the defendant

actually had committed a burglary. Peters v. State, 920 So. 2d 1050, 1053 (Miss. Ct. App.

2003). In Peters, the defendant was charged with possession of burglary tools, and with the

burglary of two county-owned mechanic shops. Id. Police officers recovered a small




       1
         This Court noted that cases from other jurisdictions reveal that possession of
skeleton keys probably has resulted in more convictions for possession of burglary tools than
any other implement. Fuqua, 246 Miss. at 200.

                                              7
crowbar, wire cutters, vice grips, two screwdrivers, and a pair of sunglasses from the

defendant’s vehicle. Id. At the defendant’s trial, a shop employee testified that the

sunglasses belonged to him and had gone missing after the burglary. Id. He also recognized

the wire cutters and screwdrivers as tools used in the shop, but he did not recognize the

crowbar. Id. The State also presented an expert witness who testified that shoeprints found

at the crime scenes possessed “all the class characteristics” of the shoes the defendant was

wearing when he was arrested. Id. On appeal, the defendant argued that the crowbar he

possessed was an ordinary tool, and that the State had failed to prove that he intended to use

the crowbar for an unlawful purpose. Id. at 1054. The Court of Appeals rejected this

argument, finding that the State’s evidence was sufficient “to show beyond a reasonable

doubt that Peters possessed the crowbar knowing of its character, and that he intended to use,

or had in fact used the crowbar to burglarize the county property.” Id. at 1055.

¶13.   This Court has reversed a defendant’s conviction based on the State’s failure to prove

the element of felonious intent where the defendant possessed only ordinary tools. Pamphlet

v. State, 271 So. 2d 403 (Miss. 1972). In Pamphlet, a tow-truck operator was towing the

defendant’s car out of a ditch when he noticed various tools inside the vehicle. Id. at 403-

404. The truck operator informed a police officer of what he had seen in the vehicle. Id. at

404. The officer arrived at the scene, observed the tools inside the vehicle, and placed the

defendant under arrest. Id. The officer then searched the car and found a pistol and some

ammunition in the trunk. Id. The defendant was convicted of possession of burglary tools,

but this Court reversed the conviction, finding that the State had presented no evidence

showing that the defendant had intended to use the tools to commit a burglary. Id. The

                                              8
officer was not investigating a burglary, there was no evidence of an attempted burglary, and

there was no proof that the defendant had used the tools found in his vehicle for any unlawful

purpose or that he had intended to do so. Id. The evidence presented to the jury proved only

that the defendant had unconcealed, ordinary tools lying on the back seat and floorboard of

his car. Id. at 405. Because the State had presented insufficient evidence of felonious intent,

this Court held that the trial court had erred in refusing to give the defendant’s peremptory

instruction. Id. at 404.

¶14.   Viewing the evidence in the light most favorable to the prosecution, we find that the

evidence in this case is more akin to Pamphlet than Peters. Henley does not contest his

possession of the tools in question, but none of the tools he possessed was peculiarly adapted

to be used as a burglary tool. Therefore, the State was required to present more specific

evidence “either that the tools have probably been recently used for the purpose of

unlawfully breaking and entering or that they are about to be used for such purpose.”

Pamphlet, 271 So. 2d at 404. We find that the State presented no such proof. Dearing was

not investigating a burglary, nor was there any evidence of an attempted burglary, when

Henley was discovered on the property. The State presented evidence that the gate to the

property’s front entrance had cut marks on it, but there was no proof that Henley’s bolt

cutters, or any bolt cutters for that matter, had produced the cut marks. Henley’s presence on

the property after business hours may raise suspicion, but this evidence alone fails to prove

that he intended to use the tools in question to aid in the commission of a burglary. Unlike

the defendant in Peters, who was found in possession of stolen property and whose shoes

matched prints at the scene of a burglary, Henley was simply found in his vehicle with

                                              9
unconcealed tools that any mechanic or handyman would likely possess. The jury could only

speculate regarding Henley’s intent for possessing those tools. After reviewing the record

in this case, we find that the State failed to present sufficient evidence “reveal[ing]

circumstances from which it may be inferred beyond a reasonable doubt that [Henley]

intended that he . . . use the article or articles in aid of [a] burglary or other similar crime.”

Fuqua, 246 Miss. at 199. Accordingly, we find that the trial court should have granted

Henley’s request for a peremptory instruction.

       II.     Whether the trial court erred in denying Henley’s motion for new
               trial.

¶15.   Because we are reversing the trial court’s judgment based on the sufficiency of the

evidence, it is unnecessary to discuss the weight of the evidence in this case.

                                       CONCLUSION

¶16.   Because the State failed to present evidence sufficient to prove Henley’s felonious

intent beyond a reasonable doubt, we reverse and render Henley’s conviction and sentence.

¶17.   REVERSED AND RENDERED.

     KITCHENS, CHANDLER, KING AND COLEMAN, JJ., CONCUR.
DICKINSON, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
RANDOLPH, P.J., LAMAR AND PIERCE, JJ. RANDOLPH, P.J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., LAMAR AND
PIERCE, JJ.

       DICKINSON, PRESIDING JUSTICE, DISSENTING:

¶18.   Because the State presented sufficient evidence to sustain a conviction for possession

of burglary tools, I respectfully dissent.




                                               10
¶19.   When we review the sufficiency of the evidence to support a criminal conviction, we

must view the evidence in the light most favorable to the State, giving the State the benefit

of all reasonable inferences which may be drawn from the evidence.2 Because this case

involves the possession of ordinary tools – as opposed to tools specifically designed to

effectuate burglaries – the majority concludes that the State failed to prove felonious intent

by showing “either that the tools have probably been recently used for the purpose of

unlawfully breaking and entering or that they are about to be used for such purpose.” 3

¶20.   But the majority errs by ignoring the considerable circumstantial evidence of felonious

intent presented by the State. Dearing located Derrick Henley trespassing on the property

of Central Mississippi Recycling in the middle of the night. Henley was driving around the

property with his headlights off, and the property’s main entrance gate – a gate that ordinarily

is closed at the end of the work day – had been loosened to allow entry. When Henley saw

Dearing, Henley attempted to leave the property, coming to a stop three hundred yards from

the entrance, where Dearing found Henley in possession of pliers, bolt cutters, screwdrivers,

wrenches, and a socket set.

¶21.   Henley attempted to explain his presence on the property by claiming that he needed

a place to turn around. But a reasonable jury could find that the State refuted Henley’s story

with the circumstantial evidence stated above. And while the majority is correct to state that

a mechanic may very well have all of the tools Henley possessed in his car, a reasonable jury



       2
           Bateman v. State, 125 So. 3d 616, 623, 24 (Miss. 2013).
       3
      Maj. Op. ¶ 10 (quoting Pamphlet v. State, 271 So. 2d 403, 405 (Miss. 1972) (citing
McCollum v. State, 197 So. 2d 252 (Miss. 1967)).

                                              11
could find an innocent explanation unreasonable because Henley possessed those tools while

trespassing in the middle of the night. Further, the jury was justified in finding criminal

intent from the fact that Henley attempted to leave the property upon seeing law enforcement

personnel.

¶22.   This Court repeatedly has held that the State may prove the intent to distribute a

controlled substance through nothing more than the amount possessed.4 Certainly, the

plethora of incriminating circumstantial evidence in this case is sufficient.

       RANDOLPH, P.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.

       RANDOLPH, PRESIDING JUSTICE, DISSENTING:

¶23.   Our standard of review for a challenge to the sufficiency of evidence has been

repeated so often that supporting citations serve little value – we review the evidence in the

light most favorable to the State. Today’s majority fails to follow this established rule. I

respectfully dissent.

¶24.   Henley was indicted under Mississippi Code Section 97-17-35 for “willfully,

unlawfully and feloniously possess[ing] tools designed to aid in the commission of a

burglary, to-wit: bolt cutters, pliers and a flashlight . . . .” See Miss. Code Ann. § 97-17-35

(Rev. 2006). Those tools are designed for a lawful use, but a tool “may be designed for a

lawful use and still be a burglar’s tool.” Fuqua v. State, 145 So. 2d 152, 154 (Miss. 1962).

Thus, Henley’s possession of bolt cutters, pliers, and a flashlight “may or may not be

unlawful . . . depending on whether the evidence reveals circumstances from which it may



       4
       Keys v. State, 478 So. 2d 266, 268 (Miss. 1985) (citing Bryant v. State, 427 So. 2d
131, 132 (Miss. 1983)).

                                              12
be inferred beyond a reasonable doubt that [Henley] intended” to use those tools “in aid of

burglary or some other similar crime.” Id. at 155 (emphasis added). The evidence is

“sufficient if the circumstances justify the inference that the [tools] were possessed for such

criminal purpose.” Id. After the trial court rejected Henley’s motion for a directed verdict,

a jury found him guilty of the crime charged based on the circumstances surrounding his

possession of the tools. Subsequently, the trial court denied Henley’s motion for a new trial

which challenged his conviction on the same grounds.

¶25.   The circumstances surrounding Henley’s apprehension in the middle of the night at

Central Mississippi Recycling in Philadelphia, Mississippi, were sufficiently established at

trial. The facility manager testified that, at the close of business prior to Henley’s arrest, he

secured the entrance to the facility with a cable and lock. After midnight that same evening,

Philadelphia police officer Jonathan Dearing was patrolling the area and noticed that the

cable was down. Upon closer investigation, Dearing observed that the “cable . . . appeared

to [have] fresh cut marks on it” and “the cable clamps had been loosened.” Dearing entered

the facility and “observed a vehicle . . . coming around the side of [a] building with its

headlights off[,]” more than 300 yards from the entrance. Upon spotting Dearing’s patrol car,

Henley turned his headlights on and attempted to exit.

¶26.   Dearing testified that, after stopping the vehicle more than 300 yards from the gate,

he approached the defendant’s vehicle and saw “a pair of pliers on the center floorboard . .

. and, on the passenger’s side floorboard, [he] noticed a pair of bolt cutters.” He testified that

both were within Henley’s reach. Dearing further testified that, upon searching Henley, he

“found . . . a small flashlight in his front left pocket.” Henley’s only explanation for his

                                               13
presence at that location and time was that he was lost and looking for a place to turn around

– an explanation reasonable jurors and the trial court obviously rejected, perhaps based on

Henley’s driving without his headlights on after midnight at a distance of more than 300

yards from the front gate and testimony that there was “plenty of room” to turn around at the

gate without entering the property.

¶27.   Viewing the evidence in the light most favorable to the State, sufficient evidence

established that Henley entered the property with bolt cutters, pliers, and flashlight for a

criminal purpose. Henley was found after midnight on property where he had no lawful right

to be – property which earlier had been secured by a cable that was subsequently found on

the ground with “fresh cut marks” and the “cable clamps loosened.” He was found riding

around the facility in the middle of the night with his headlights off, and, upon seeing

Dearing’s patrol car, he attempted to exit. The bolt cutters and pliers were on the front

floorboard of Henley’s car, and the flashlight was found in his pants pocket, all within

accessible reach. Thus, I would affirm the trial court’s conviction and sentence.

       DICKINSON, P.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.




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