         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-KA-01354-COA

THAXTER T. BAKER A/K/A THAXTER BAKER                                         APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          01/31/2017
TRIAL JUDGE:                               HON. JOHN ANDREW GREGORY
COURT FROM WHICH APPEALED:                 CHICKASAW COUNTY CIRCUIT COURT,
                                           SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    ROBERT SNEED LAHER
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ABBIE EASON KOONCE
DISTRICT ATTORNEY:                         BENJAMIN F. CREEKMORE
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 12/04/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., CARLTON AND FAIR, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    A Chickasaw County jury convicted Thaxter T. Baker of burglary of a dwelling. The

trial court sentenced Baker to serve twenty-five years in the custody of the Mississippi

Department of Corrections (MDOC), with ten years suspended. The trial court also ordered

Baker to pay approximately $2,833.50 in restitution and costs. Baker filed posttrial motions,

which the trial court denied.

¶2.    Baker now appeals his conviction and sentence, arguing that: (1) the evidence

presented was insufficient to sustain the conviction and (2) the trial court erred in refusing

Baker’s circumstantial-evidence jury instruction.
¶3.    Finding no error, we affirm the trial court’s judgment.

                                           FACTS

¶4.    On August 15, 2014, officers with the Okolona Police Department responded to a 911

call about a suspicious vehicle parked across from the “city barn,” a facility that the City of

Okolona used for water, sewer, and sanitation services. Upon arriving at the scene, the

officers encountered Baker, who possessed items that linked him to a house burglary a block

away. Baker was arrested and later indicted for burglary of a dwelling, in violation of

Mississippi Code Annotated section 97-17-23 (Rev. 2014).

¶5.    At a trial held on January 25, 2017, the jury heard testimony from Officers Joey

Miller, Tomeka Betts, and Dwight Parker of the Okolona Police Department, as well as

Cassidy Edwards, the house-burglary victim. Baker also testified in his own defense. The

jury ultimately returned a guilty verdict, and the trial court sentenced Baker to serve twenty-

five years in the custody of the MDOC, with ten years suspended and fifteen years to serve.

The trial court also ordered Baker to pay $1,000 in full restitution to the victims, $433.50 in

court costs, $1,000 for the court-appointed counsel fee, a $200 bond fee, $100 to the Victim’s

Compensation fund, and $100 in investigative expenses, for a total of $2,833.50.

¶6.    Baker filed a motion for a judgment notwithstanding the verdict (JNOV), or, in the

alternative, for a new trial. The record reflects that Baker’s posttrial motions were untimely.

However, the trial court entered an order denying Baker’s posttrial motions and reopening

the time for Baker to perfect his appeal. Baker subsequently filed his notice appealing his

conviction and sentence.



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                                      DISCUSSION

       I.     Sufficiency of the Evidence

¶7.    Baker argues that the evidence presented at trial was insufficient to support the

conviction of burglary of a dwelling. Baker asserts that the State failed to present any

scientific evidence, including fingerprint or DNA evidence. Baker also argues that the State

failed to present any witnesses who could place him at the scene of the crime or who saw him

carry property away from the residence. Baker further maintains that he never admitted to

breaking into Cassidy’s house and committing a crime.

¶8.    We apply a de novo review to challenges to the sufficiency of the evidence. Johnson

v. State, 235 So. 3d 1404, 1410 (¶12) (Miss. 2017). “In applying de novo review, we

determine whether, after viewing the evidence in the light most favorable to the prosecution,

any rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” Id. (quoting Warren v. State, 187 So. 3d 616, 627 (Miss. 2016) (internal

quotation mark omitted)). We recognize that “[w]here the facts and inferences point in favor

of the defendant on any element of the offense with sufficient force that reasonable jurors

could not have found beyond a reasonable doubt that the defendant was guilty, the proper

remedy is to reverse and render.” Jackson v. State, 247 So. 3d 335, 337 (¶6) (Miss. Ct. App.

2018) (internal quotation marks omitted). Evidence will be deemed sufficient if “reasonable

fair-minded jurors in the exercise of impartial judgment might reach different conclusions

on every element of the offense, the evidence will be deemed to have been sufficient.” Id.

The State receives “the benefit of all reasonable inferences that may be drawn from the



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evidence.” Johnson, 235 So. 3d at 1410 (¶12) (internal quotation mark omitted).

¶9.    Mississippi Code Annotated section 97-17-23(1) sets out the elements the State must

prove to convict a defendant of burglary: (1) the unlawful “breaking and entering into the

dwelling house . . . of another” (2) “with [the] intent to commit some crime therein. . . .” Id.;

Johnson, 235 So. 3d at 1410 (¶13).1

¶10.   Our review of the transcript reflects that the jury heard testimony from several officers

with the Okolona Police Department, testimony from the victim, as well as testimony from

Baker. Felix Randle testified that on the evening of August 15, 2014, he called 911 to report

a suspicious vehicle parked near his house, across from the city barn. Randle explained that

at that time, several burglaries had occurred at the city barn. After placing the 911 call,

Randle observed two men—one short, one tall—exit the vehicle and run down the street.

Randle testified that the shorter man was wearing a backpack.

¶11.   Officer Joey Miller of the Okolona Police Department responded to the 911 call.

When Officer Miller arrived at the scene, he located the vehicle parked across from the city

barn and ran the vehicle’s tag. Officer Miller testified that he discovered that the vehicle was

registered to Thaxter Baker. Officer Miller then approached Randle’s house, where Randle

was waiting for him on the porch. Randle informed Officer Miller that he observed two men

get out of the vehicle and walk down the street. Officer Miller testified that he walked to the

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         Baker’s indictment charged that Baker “did . . . unlawfully, willfully, feloniously
and burglariously break and enter the dwelling of Cheryl Edwards, located at 405 Silver
Street, Okolona, in Chickasaw County, Mississippi, there situated in which dwelling there
were, then and there, goods, wares, chattels or merchandise kept for use, sale, deposit or
transportation, with the felonious intent to unlawfully, willfully and feloniously take, steal
and carry away the goods, wares, chattels or merchandise in said dwelling . . . .”

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house across the street from Randle and spoke to the people who lived there. Randle’s

neighbors informed Officer Miller that they also saw two men exit the vehicle and walk

down the street.

¶12.   Officer Miller then returned to Randle’s house. According to Officer Miller, as he

and Randle were talking, a man wearing a backpack walked up the street toward the parked

vehicle. Randle informed Officer Miller that the man looked like one of the men who had

exited the vehicle earlier. Officer Miller “hollered” at the man to hang on and shined his

flashlight on him. Officer Miller testified that he thought the man was going to run off, but

he eventually stopped.

¶13.   Officer Miller testified that he approached the man, whom Office Miller later

identified as Baker, and he started talking. As they talked, Officer Miller noticed a “big

bulge” in Baker’s pants pocket. Officer Miller instructed Baker to remove his hand from his

pocket, and he asked Baker what he had in his backpack and pocket. Baker responded that

he did not know. Officer Miller informed Baker that he was going to pat him down and

search him for a weapon. During the pat down, Officer Miller discovered a prescription

medicine bottle full of hydrocodone in Baker’s pants pocket. Officer Miller observed the

name Cassidy Edwards on the medicine bottle. Officer Miller testified that he knew Cassidy

and her family. Officer Miller stated that Baker informed him that he obtained the bottle and

the backpack from “a white guy named Jay on the corner.”

¶14.   After finding the prescription drug bottle, Officer Miller placed Baker under arrest and

handcuffed him. Officer Miller testified that he then searched Baker’s backpack to see if it



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contained any other controlled substances. During his search of Baker’s backpack, Officer

Miller discovered a Wii, a playstation, a television remote, and a tablet.

¶15.     Less than five minutes after placing Baker under arrest, Officer Miller heard a call

from dispatch reporting a break-in at a nearby house. Officer Miller soon discovered that the

break-in occurred at Cassidy’s home.

¶16.     Officer Tomeka Betts of the Okolona Police Department testified that on the evening

of August 15, 2014, she responded to Randle’s 911 call shortly after Officer Miller. Officer

Betts stated that once she arrived on the scene, she read Baker his Miranda2 rights and put

him in the back seat of Officer Miller’s patrol car. Officer Betts testified that “maybe one

or two minutes” after she arrived at the scene, the officers received another 911 call

regarding a break-in a block away.

¶17.     Officer Betts testified that she went to the house where the break in occurred and

spoke to Cassidy. She informed Officer Betts that items were stolen from her house, and she

provided Officer Betts with a list of the stolen items. Officer Betts testified that Officer

Dwight Parker later arrived at the house, and the two of them searched the area around the

house.

¶18.     Cassidy testified at trial that on the evening of August 15, 2014, she returned to her

house and saw that someone had broken in. Cassidy explained that the air conditioning unit

in the kitchen window “was totally turned sideways . . . enough where somebody could get

through on one side.” Cassidy also observed that the sliding glass doors leading to the patio



         2
             Miranda v. Arizona, 384 U.S. 436 (1966).

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were open; she explained that the family used her grandmother’s cane to lock the sliding

glass doors, but the cane had been moved and thrown into the living room. Cassidy also

testified that the following items were stolen from her home: a TV, a tablet, headphones, a

playstation, a Wii, a pocketknife, and her prescription cough medicine.

¶19.   Officer Miller testified that while Baker was in custody, he learned that some of the

items reported missing from Cassidy’s house were the same items contained in Baker’s

backpack and pants pocket. According to Officer Miller, Baker eventually agreed to show

him where he put Cassidy’s TV. Officer Miller and Baker walked to the location that Baker

specified, but they did not find a TV. Baker told Officer Miller that he “guess[ed] his boy

got it.” Officer Miller testified that Baker never revealed the name of his “boy.”

¶20.   Officer Dwight Parker testified that on the evening of August 15, 2014, he received

a call from patrol officers stating that Baker was in their custody. Officer Parker drove to

the scene, where he was briefed about the evening’s events. Officer Parker testified that he

drove Baker to the police department that evening where he then read Baker his Miranda

rights. Officer Parker stated that Baker waived his rights, so Officer Parker proceeded to

interview him.

¶21.   Officer Parker testified that during the interview, Baker admitted that he entered

Cassidy’s house and helped his cousin steal a TV. Officer Parker returned the next morning

to interview Baker again. Officer Parker stated that during this time, Baker refused to

provide him with a written statement or with his cousin’s name because he did not want to

“tell on” his cousin. Officer Parker testified that Baker told him, however, that when he got



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out of jail, he would help Officer Parker get the TV back.

¶22.   Officer Parker also testified that on the day after the burglary, he returned to Cassidy’s

house and took pictures of the entry point of the break-in. Officer Parker stated that the air

conditioning unit in the kitchen window was pushed all of the way through, and the

perpetrator entered the house through that window. Officer Parker testified that he did not

dust for fingerprints or test for DNA because Baker had already confessed to him that he was

inside of the house.

¶23.   Baker testified that on the evening of August 15, 2014, he went to a store where he

was approached by a man named Jay. Baker testified that Jay offered to sell him a bottle of

prescription drugs, and Jay instructed Baker to meet him at a specific location at a specific

time. Baker drove to the location Jay described and parked near the city barn, where he then

met Jay. According to Baker, Jay offered to sell him the bottle of prescription drugs as well

as a backpack containing a gaming system. Baker testified that he paid Jay $180 for the

items and then proceeded to walk back to his vehicle. While returning to his vehicle, Baker

encountered Officer Miller, who then searched Baker and discovered the prescription drugs

and gaming system. Baker denied breaking into Cassidy’s house and stealing from her.

Baker denied ever telling Officer Miller that he knew where the stolen TV was located.

Baker also denied telling Officer Parker that he participated in the burglary or helped his

cousin break into Cassidy’s house.

¶24.   The record shows that the jury heard conflicting testimony regarding Baker’s

admission of guilt: Officer Parker testified that Baker confessed to the burglary during two



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interviews; however, Baker denied confessing to Officer Parker. We recognize that “[t]he

jury is the judge of the weight and credibility of testimony and is free to accept or reject all

or some of the testimony given by each witness.” Johnson v. State, 242 So. 3d 145, 155

(¶20) (Miss. Ct. App. 2017).

¶25.   After reviewing the record and viewing the evidence in the light most favorable to the

State, we hold that a rational juror could have certainly found beyond a reasonable doubt that

the State proved all of the elements of burglary. As stated, “[t]he elements proving the

offense of burglary are a breaking and entering of a building with the intent to commit a

crime after entering.” Sykes v. State, 749 So. 2d 239, 242 (¶5) (Miss. Ct. App. 1999). Both

Officer Parker and Cassidy testified that the air conditioning unit in the kitchen window was

turned to make a large enough opening for a person to fit through it. Cassidy testified that

several items were stolen from her house, and officers found Baker in possession of the

stolen items approximately one block away from Cassidy’s house. This issue lacks merit.

       II.    Jury Instruction

¶26.   Baker next argues that the trial court erred by not giving a circumstantial-evidence

jury instruction. Baker contends that he was entitled to a circumstantial-evidence jury

instruction because the State failed to present direct evidence that Baker committed burglary;

therefore, the case against him was based entirely on circumstantial evidence.

¶27.   We review a trial court’s decision to give or refuse a jury instruction for abuse of

discretion. Burleson v. State, 166 So. 3d 499, 509 (¶28) (Miss. 2015). “Jury instructions

must be read as a whole to determine if they fairly announce the law.” Id. We recognize that



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“[t]he trial court may refuse an instruction which incorrectly states the law, is covered fairly

elsewhere in the instructions, or is without foundation in the evidence.” Id.

¶28.   In the case before us, the defense requested that the trial court give the following

circumstantial-evidence instruction:

       INSTRUCTION D-4

               The [c]ourt instructs the jury that “direct evidence” is direct proof of
       fact, such as testimony by a witness about what the witness personally saw,
       heard, or did. “Direct evidence” is the testimony of someone who claims to
       have personal knowledge of the commission of the crime for which he has
       been charged. “Direct evidence” is evidence which, if you believe it, directly
       proves a fact.

             An example is if a witness testified that he saw it raining outside and
       you believed him that would be direct evidence that it is raining.

              The [c]ourt instructs you that “circumstantial evidence” is proof of a
       fact of facts from which you could conclude, by your reason and common
       sense that another fact exists even though it is has not been proved directly.
       “Circumstantial evidence” is proof of one or more facts from which you could
       find another fact. “Circumstantial evidence” is simply a chain of
       circumstances that indirectly proves a fact. An example is if someone walked
       into the courtroom wearing a raincoat covered with drops of water and
       carrying a wet umbrella that would be circumstantial evidence from which you
       could conclude that it was raining.

               The law makes no distinction between the weight to be given to either
       direct or circumstantial evidence. You, as the jury, should decide who much
       weight to give to any evidence.

¶29.   During the jury-instruction conference, the defense maintained that Baker was entitled

to a circumstantial-evidence instruction because the State failed to present direct evidence

placing Baker at the scene or provide any DNA or fingerprint evidence. The State argued

that Officer Parker testified that Baker admitted his involvement in the burglary; therefore,



                                              10
the case was not based entirely on circumstantial evidence. The trial court agreed and

refused to give Instruction D-4, explaining that “it’s not a circumstantial case.”

¶30.   In Burleson, 166 So. 3d at 509 (¶29), the Mississippi Supreme Court held that

circumstantial evidence is “evidence which, without going directly to prove the existence of

a fact, gives rise to a logical inference that such fact does exist.” The supreme court

explained that “[d]irect evidence, on the other hand, must directly and not by inference

implicate the accused and not just show that there has been a crime.” Id. (internal quotation

mark omitted). “While evidence does not always fall neatly into one category, examples of

direct evidence include an admission or confession by the defendant to ‘a significant element

of the offense,’ or eyewitness testimony ‘to the gravamen of the offense charged.’” Id.

(quoting Kirkwood v. State, 52 So. 3d 1184, 1187 (¶10) (Miss. 2011)). The supreme court

further explained that “[t]he term gravamen is defined as the substantial point or essence of

a claim, grievance, or complaint.” Id. (internal quotation marks omitted). We recognize that

“[w]here the State is without a confession and wholly without eyewitness testimony to the

gravamen of the offense charged, the defendant is entitled to an instruction requiring the jury

to exclude every other reasonable hypothesis other than that of guilt before a conviction can

be had.” Id. (internal quotation marks omitted).

¶31.   In the recent case of Moore v. State, 247 So. 3d 1198, 1202 (¶20) (Miss. 2018), the

supreme court held although an inference of guilt arose from the evidence presented at trial,

the State failed to adduce direct evidence of the defendant’s guilt. Accordingly, the supreme

court found that the trial court abused its discretion in refusing the defendant’s circumstantial



                                               11
evidence instruction, explaining that the State “produced neither [a] confession nor an

eyewitness to the gravamen of the offense charged.” Id. at (¶17).

¶32.   However, “a circumstantial evidence instruction is not required when there is both

direct and circumstantial evidence of the guilt of the accused.” Smith v. State, 897 So. 2d

1002, 1009 (¶30) (Miss. Ct. App. 2004). The supreme court has held that a confession made

to a law enforcement officer “constitutes direct evidence of a crime.” Moore v. State, 787

So. 2d 1282, 1288 (¶18) (Miss. 2001) (quoting Ladner v. State, 584 So. 2d 743, 750

(Miss.1991)). The supreme court has also clarified “that confession takes the case out of a

circumstantial context” and “makes a circumstantial evidence instruction inapplicable.”

Taylor v. State, 672 So. 2d 1246, 1270 (Miss. 1996) (holding that a circumstantial evidence

instruction was inapplicable where a witness testified at trial that the defendant confessed to

her that he killed his stepdaughter); see also Mack v. State, 481 So. 2d 793, 795 (Miss. 1985)

(holding that an admission by a defendant to his girlfriend of an alleged burglary was a

“confession,” and constituted direct evidence of the crime; therefore, a circumstantial

evidence instruction was not required).

¶33.   In the case before us, the jury heard Officer Parker’s testimony stating that Baker

confessed to him during two interviews that he participated in the burglary. Officer Parker

testified that Baker implicated his cousin as an accomplice in the burglary, but Baker refused

to provide a written statement regarding the events because he did not want to “tell on” his

cousin. At trial, Baker denied confessing to Officer Parker that he participated in the

burglary. Baker also denied telling Officer Miller that he knew where Cassidy’s stolen TV



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was located.

¶34.   After our review, we find that Baker’s confession to Officer Parker “takes the case

out of a circumstantial context,” and we therefore find that no circumstantial evidence

instruction was required. Taylor, 672 So. 2d at 1270. Accordingly, we find that the trial

court did not abuse its discretion by denying Baker’s circumstantial jury instruction.

¶35.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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