        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2017-KA-00837-COA

DEVIN SHEPHERD A/K/A DEVIN RAY                                          APPELLANT
SHEPHERD

v.

STATE OF MISSISSIPPI                                                      APPELLEE

DATE OF JUDGMENT:                        06/08/2017
TRIAL JUDGE:                             HON. GERALD W. CHATHAM SR.
COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                 OFFICE OF STATE PUBLIC DEFENDER
                                         BY: BENJAMIN A. SUBER
                                             GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY:                       JOHN W. CHAMPION
NATURE OF THE CASE:                      CRIMINAL - FELONY
DISPOSITION:                             AFFIRMED - 09/18/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., FAIR AND WILSON, JJ.

      LEE, C.J., FOR THE COURT:

¶1.   Following a jury trial in the Circuit Court of DeSoto County, Mississippi, Devin

Shepherd was convicted of home-invasion burglary in violation of Mississippi Code

Annotated section 97-17-23(1)-(2) (Rev. 2014) and sentenced to serve seven years in the

custody of the Mississippi Department of Corrections, with four years suspended upon

completion of an anger-management program and a drug-and-alcohol treatment program, and

with three years of postrelease supervision. Shepherd was credited with time served while

awaiting trial. He was ordered to pay fines and court costs and also ordered to have no
contact with the victim or the victim’s family. Shepherd now appeals his conviction.

Finding no error, we affirm.

                                          FACTS

¶2.    On January 11, 2016, Officer Christopher Rainbolt with the Southaven Police

Department responded to a dispatch call to 2207 Colonial Hills Drive in Southaven,

Mississippi. When Officer Rainbolt arrived, he spoke with Eva Steverson, the owner of the

residence, who made the 911 call. Officer Rainbolt investigated the scene and learned that

Shepherd had entered Eva’s home and was beating on the door threatening Franklin

Steverson, Eva’s grandson. Officer Rainbolt noticed and took pictures of a busted door

frame and door to the Steverson residence, damage to the laundry room-door, and a broken

bedroom window. Officer Rainbolt found Shepherd two blocks away from the home.

¶3.    At Shepherd’s trial, Eva testified that she lived with her husband and with her

grandson, Franklin. On the date of the burglary, Eva heard her door slam and then heard

beating on one of the bedroom doors. She went to the bedroom door where she saw

Shepherd beating on the door and telling Franklin “come out of there,” and that he was

“going to kill him.” Eva testified that she told Shepherd to leave her home and that she was

going to call the police. Then, Shepherd ran down the hall in front of Eva and punched one

of her doors, breaking two slated pieces. He also went out to the den door and “kicked it and

punched the trim around it.” Eva stated that Shepherd told her he was going to kill her

grandson. Eva also testified regarding an incident with Shepherd two days prior to the

burglary. On January 9, 2016, Shepherd was on her front porch, and she told him to leave.



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She stated that Franklin was drinking a cup of coffee on the porch, and Shepherd started

beating on him. Eva told Shepherd to stop, and he pushed her. Franklin then stabbed

Shepherd in the leg with a kitchen knife. Eva testified that she was scared of Shepherd for

Franklin.

¶4.    Franklin also testified at Shepherd’s trial. According to Franklin, he knew Shepherd

only as an acquaintance since eighth grade, but the two were not friends because Shepherd

“was always a bully.” Franklin stated that he never invited Shepherd to his house, and that

his grandparents told Shepherd to leave every time he came over. Franklin stated that

Shepherd forced himself around Franklin and that his grandparents did not allow Shepherd

over and had called the police on him before. Franklin testified that on the day of the

burglary, Shepherd “jerked open the screen door” which was “locked, but he jerked it out of

place.” Franklin was standing in the hallway when he saw Shepherd had entered the house.

Franklin stated he ran to his room because Shepherd was “coming back to retaliate, to kill

me.” Franklin put a wooden board under his bedroom-door handle and said that Shepherd

“started beating on the door, and he said he was going to kill me multiple times.” Because

Shepherd could not get in Franklin’s room from inside the house, Shepherd ran outside to the

window and kicked the window. He was not able to knock out the window but broke the

glass. Franklin believed that Shepherd was there to retaliate for an altercation that happened

on January 9, 2016. According to Franklin, two days prior to the burglary, Shepherd showed

up at the Steverson house uninvited. Franklin told him to leave, but Shepherd refused.

Franklin testified that Shepherd smirked at him and started punching him in the face. Eva



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witnessed the event and became very upset, and then Shepherd pushed Eva. Franklin stated

he grabbed a kitchen knife and stabbed Shepherd in the leg. Shepherd continued to hit

Franklin in the face and would not leave the house. Franklin threw some things at Shepherd.

The police were called, but no charges were pressed. Franklin stated he hoped that Shepherd

would “leave [him] alone and not come back, but he did.” Franklin testified that he believed

Shepherd came back on January 11, 2016, to retaliate for the incident two days prior, and that

he was afraid Shepherd was going to kill him.

¶5.    Shepherd also testified on his own behalf. He stated that he and Franklin had been

close friends for years who simply “got into an argument.” He said that he spent a lot of time

at the Steverson house, that he “h[u]ng out with them quite frequently,” and that he and

Franklin smoked weed together. Shepherd admitted he went to the Steverson house drunk

on the date of the burglary incident and entered without knocking. He also admitted to

breaking the window when he left but blamed it on being drunk. He stated he made “a bad

decision to go over there,” that he “trespassed,” and “maybe vandali[zed],” but he denied that

he committed burglary.

¶6.    The jury found Shepherd guilty of home-invasion burglary. He now appeals his

conviction arguing (1) that there was insufficient evidence to support his conviction and (2)

that the verdict was against the overwhelming weight of the evidence.

                                       DISCUSSION

       I.     Sufficiency of the Evidence

¶7.    Shepherd argues that there was insufficient evidence to support the guilty verdict for



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burglary, and therefore, the trial court erred by denying his motion for a judgment

notwithstanding the verdict (JNOV).

¶8.    This Court’s standard of review for a trial court’s grant or denial of a motion for a

JNOV is de novo. Estate of Gardner v. Gardner, 228 So. 3d 921 (¶19) (Miss. Ct. App.

2017). A motion for a JNOV challenges the legal sufficiency of the evidence, and where

there is substantial evidence to support the verdict, we will affirm the denial of a JNOV.

InTown Lessee Assocs. LLC v. Howard, 67 So. 3d 711, 718 (¶22) (Miss. 2011). “Substantial

evidence is information of such quality and weight that reasonable and fair-minded jurors in

the exercise of impartial judgment might have reached different conclusions.” Bryant v.

State, 151 So. 3d 1025, 1029 (¶13) (Miss. Ct. App. 2014) (quoting Daniels v. State, 107 So.

3d 961, 963 (¶10) (Miss. 2013)). “When reviewing a motion for a JNOV, the trial judge is

required to accept as true all of the evidence that is favorable to the State, including all

reasonable inferences that may be drawn therefrom, and to disregard evidence favorable to

the defendant.” Id. at (¶14) (internal quotation mark omitted). “We will reverse only where

with respect to one or more of the elements of the offense charged, the evidence so

considered is such that reasonable and fair minded jurors could only find the accused not

guilty.” Id. (internal quotation marks omitted).

¶9.    Shepherd was charged and convicted of burglary under Mississippi Code Annotated

section 97-17-23(1)-(2). “Section 97-17-23(1) sets out the elements the State must prove to

convict a defendant of burglary. Those elements are: (1) the unlawful breaking and entering

of a dwelling and (2) the intent to commit some crime therein.” Johnson v. State, 235 So.



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3d 1404, 1410 (¶13) (Miss. 2017). Section 97-17-23(2) enhances the minimum penalty when

burglary is committed “under circumstances likely to terrorize any person who is actually

occupying the house at the time of the criminal invasion of the premises.” Johnson v. State,

242 So. 3d 145, 165 (¶42) (Miss. Ct. App. 2017).

¶10.   Now on appeal, Shepherd states that the evidence was insufficient to meet the first

element of burglary—breaking and entering. He argues that because there was evidence that

Shepherd had been to the Steverson home on numerous occasions, he did not unlawfully

enter the house on the date of the burglary. But, both Eva and Franklin testified that

Shepherd was not invited to the house on the day of the burglary. Franklin stated that

Shepherd “jerked open” the screen door—pulling it out of place even though it was

locked—and entered the home. Eva testified that she heard the door slam and someone enter

the house, indicating force. By Shepherd’s own admission, he entered the house without

knocking and without permission. The supreme court has defined breaking as “any act or

force, however[] slight, employed to effect an entrance through any usual or unusual place

of ingress, whether open, partly open, or closed.” Johnson, 235 So. 3d at 1410 (¶14)

(internal quotation marks omitted).

¶11.   Here, having accepted as true all the evidence favorable to the State, the evidence with

regard to the element of breaking and entering is not such that reasonable and fair-minded

jurors could only have found Shepherd not guilty. Rather, reasonable and fair-minded jurors

could have found from the evidence that Shepherd unlawfully broke and entered the

Steverson home.



                                              6
¶12.   Shepherd also argues there was insufficient evidence to establish that he intended to

assault Franklin. The indictment specifically charged that Shepherd broke and entered with

the intent to commit the crime of attempted assault. Shepherd argues that this element was

not established because he did not possess a weapon and that Franklin admitted he was not

hit or assaulted.

¶13.   “An attempt to commit a crime consists of three elements: (1) an intent to commit a

particular crime, (2) a direct ineffectual act done toward its commission, and (3) the failure

to consummate its commission.” Craig v. State, 201 So. 3d 1108, 1111 (¶9) (Miss. Ct. App.

2016) (quoting Brooks v. State, 18 So. 3d 833, 841 (¶33) (Miss. 2009)).

¶14.   In the instant case, there was testimony that Shepherd was beating on Franklin’s

bedroom door and threatened to kill him. Shepherd admitted he broke Franklin’s bedroom

window. Eva testified that Shepherd told her he was going to kill Franklin. In addition,

Officer Rainbolt’s testimony and photographic evidence supported Eva and Franklin’s

testimony. Accepting this evidence as true, along with all reasonably-drawn inferences,

reasonable and fair-minded jurors could have concluded that Shepherd’s verbal threats

coupled with the overt act of beating on Franklin’s bedroom door and breaking his window

evidenced his intent to assault Franklin.

¶15.   The evidence in this case was sufficient for the jury to find the State had proved both

elements of burglary beyond a reasonable doubt. This issue is without merit.

       II.    Weight of the Evidence

¶16.   Shepherd also argues that the verdict was against the overwhelming weight of the



                                              7
evidence, and therefore, the trial court erred when it denied his motion for a new trial.

¶17.    “A new trial based on the weight of the evidence should be granted only in

exceptional cases in which the evidence preponderates heavily against the verdict.” Watson

v. State, 205 So. 3d 1094, 1095 (¶5) (Miss. Ct. App. 2016) (internal quotation mark omitted).

“When reviewing a denial of a motion for a new trial based on an objection to the weight of

the evidence, we will only disturb a verdict when it is so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”

Doss v. State, 212 So. 3d 886, 890 (¶13) (Miss. Ct. App. 2016). “The evidence is viewed in

the light most favorable to the verdict.” Id. “[R]eversal is warranted only if the trial court

abused its discretion in denying [the] motion for a new trial.” Watson, 205 So. 3d at 1095

(¶6).

¶18.    Here, Shepherd argues that the verdict is “clearly against the overwhelming weight

of the evidence,” because “at most, [his] case is a trespass.” For support, he points to the

testimony that he and Franklin had known each other since eighth grade, that they had

smoked weed together, and claims he was “a constant fixture at the home of Franklin.” But,

based on the evidence previously described and viewed in the light most favorable to the

verdict, we cannot find that the verdict is contrary to the overwhelming weight of the

evidence or that allowing the verdict to stand would sanction an unconscionable injustice.

This issue is without merit.

¶19.    AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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