                         IN THE SUPREME COURT OF MISSISSIPPI

                                      NO. 2004-KA-01242-SCT

BENJAMIN STEWART

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                               06/08/2004
TRIAL JUDGE:                                    HON. KENNETH L. THOMAS
COURT FROM WHICH APPEALED:                      BOLIVAR COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                         DAVID LYDELL TISDELL
ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL BY:
                                                BILLY L. GORE
DISTRICT ATTORNEY:                              LAWRENCE Y. MELLEN
NATURE OF THE CASE:                             CRIMINAL - FELONY
DISPOSITION:                                    AFFIRMED - 08/18/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




        BEFORE WALLER, P.J., EASLEY AND GRAVES, JJ.

        EASLEY, JUSTICE, FOR THE COURT:

                                     PROCEDURAL HISTORY

¶1.     Benjamin Stewart a/k/a “Benzo” was indicted by the Bolivar County Grand Jury on two

counts of burglary of a dwelling in violation of Miss. Code Ann. § 97-17-23. A jury trial was

held with the jury returning a hung jury verdict on Count I and a guilty verdict on Count II.1

Stewart was sentenced to serve a term of eight (8) years in an institution under the supervision


        1
           Count II is dealt with in this appeal and involves the burglary of Robert Gray’s
house. Within the same trial, Count I addressed the burglary of Angela Jones’s house and
resulted in a hung jury, therefore, it is not addressed in detail in this appeal.
and control of the Mississippi Department of Corrections with two (2) years suspended after

having served six (6) years in an institution under the supervision and control of the

Mississippi Department of Corrections.       Stewart filed a motion for judgment notwithstanding

the verdict, or in the alternative, motion for new trial.     The trial court denied the post-trial

motion. Stewart now appeals to this Court.

                                               FACTS

¶2.    On November 12, 2002, Lamont Robinson and Cedric Hines2 broke and entered the

back window of Robert Gray’s home in Shelby, Mississippi, located in Bolivar County. Five

guns, some jewelry and change were stolen from Gray’s home. Stewart remained on the street

corner when Robinson and Hines entered through the window.           When they got inside Gray’s

home, Robinson whistled for Stewart, and Stewart entered Gray’s house. While Stewart stood

inside the house, Robinson and Hines ransacked the house looking for guns.

¶3.    Robinson testified for the State in its case-in-chief.    Robinson had pled guilty to both

charges. Robinson testified that he had told Investigator Charlie Griffin that Stewart had gone

inside Gray’s house.       He denied having told Investigator Griffin that Stewart had been a

lookout. Robinson stated that Stewart came in through the front door, and he and Hines had

entered the house through the window. Robinson broke out the window with a shovel. Once

inside, Robinson then opened the front door for Stewart. Robinson testified that he did not see

Stewart take anything and that Stewart did not plan the burglary or act as his lookout. Robinson

testified that the items taken from Gray’s house were pawned and the proceeds were

distributed three ways with Stewart taking part of the money.      Robinson testified that he told


       2
           Stewart is Hines’s brother.

                                                 2
Stewart’s father, Benny Stewart, where the guns were because he thought it would help get

Hines out of trouble.

¶4.     Gray testified that on the evening of November 12, 2002, he returned to his house to

find items scattered all over the house and personal items taken. He discovered that his back

window had been broken out. He testified that “five guns and a lot of jewelry” were taken.

Gray called the police.3

¶5.     Charlie Griffin, an investigator with the Bolivar County Sheriff’s Department, testified

that he responded to the call regarding Gray’s house.              He testified that the investigation

developed three suspects, namely Robinson, Hines and Stewart.              Investigator Griffin testified

that Robinson and Hines admitted they had committed the burglaries. Stewart denied his

involvement.     Four of Gray’s guns were recovered and returned to him. At trial, Investigator

Griffin identified Stewart for the record as the other suspect that he had discovered in his

investigation.

¶6.     At the close of the State’s case-in-chief, the defense made a motion for directed verdict

which was denied by the trial court.       Stewart was advised of his right not to testify, and he

elected not to testify. The defense rested without putting on any proof.

¶7.     On appeal, Stewart raises the following assignments of error:

        I.       Whether the trial court erred in failing to grant defense’s jury
                 instruction D-7.



        3
           Angela Jones, the homeowner in Count I, also testified in the case. She testified
that her home had been broken into through the kitchen window, knocking out the bars on
the window and the shutters inside. Her home had been ransacked. She had a VCR and a CD
player taken. Investigator Griffin testified that those items were recovered in the
investigation.

                                                    3
        II.     Whether the trial court erred in failing to sustain defense’s
                motion for J.N.O.V., or in the alternative, motion for new trial.

                                              DISCUSSION

        I.      Jury Instruction D-7

¶8.     Stewart argues that the trial court erred in refusing jury instruction which set out the

lesser-included offense of trespass. The proffered jury instruction D-7 provided:

                 If you, the Jury[,] find that the State has failed to prove any one of the
        essential elements of count II, the crime of burglary, you must find Benjamin
        Stewart not guilty of burglary and you will proceed with the deliberations to
        decide whether the State has proved beyond a reasonable doubt all the elements
        of trespassing.
                 The crime of burglary is distinguished from trespassing by the absence
        or failure to prove a breaking and entering with the intent to commit a crime.
                 In the event you find from the evidence that the defendant is guilty of the
        lesser included offense of trespass, your verdict shall be as follows:
                 “We, the jury, find that the Defendant is guilty of trespass.”

¶9.     On appeal, the State argues that proffered jury instruction D-7 does not provide a

complete definition of trespass and failed to advise the jury of the elements required for

trespass. Therefore, the State contends that the trial court properly refused the instruction.

Pursuant to Miss. Code Ann. § 97-17-87(1) (Supp. 2004), trespass requires that a person

commit “a willful or malicious trespass upon the real or personal property of another....”

(emphasis added). The State argues that proffered instruction D-7 fails to advise the jury of

all the elements of trespass, namely that Stewart’s presence inside the house was required to

be wilful or malicious and without the consent of the owner. We agree. This Court has held

that the instruction must be a proper statement of the law.           See Murphy v. State, 566 So.2d

1201, 1206 (Miss. 1990) (“a trial judge may refuse an instruction which incorrectly states the

law, is without foundation in the evidence, or is stated elsewhere in the instructions).


                                                     4
¶10.    At trial, the State argued that the D-7 instruction should be refused because there was

direct evidence that supported Stewart’s involvement in the burglary.     In Harper v. State, 478

So.2d 1017, 1021 (Miss. 1985), the Court stated the standard for granting a lesser-included

offense instruction. The Court held:

        [A] lesser included offense instruction should be granted unless the trial judge -
        and ultimately this Court - can say, taking the evidence in the light most
        favorable to the accused, and considering all reasonable favorable inferences
        which may be drawn in favor of the accused from the evidence, that no
        reasonable jury could find the defendant guilty of the lesser included offense
        (and conversely not guilty of at least one essential element of the principal
        charge.)

See also Toliver v. State, 600 So.2d 186, 192 (Miss. 1992). Jury instructions inconsistent

with the evidentiary facts of the case should not be given. Norman v. State, 385 So.2d

1298, 1301 (Miss. 1980). In Presley v. State, 321 So.2d 309, 310 (Miss. 1975), this

Court said:

        [T]he jury should not be instructed as to a lesser-included offense in such a way
        as to ignore the primary charge as this would be confusing to the jury. It is also
        true that if the evidence does not justify submission of a lesser-included
        offense, the court should refuse to do so. Unwarranted submission of a lesser
        offense is an invitation to the jury to disregard the law.

See Grace v. State, 375 So.2d 419, 420 (Miss. 1979).               The Court further stated that:

“[L]esser-included offense instructions should be given if there is an evidentiary basis in the

record that would permit a jury rationally to find the defendant guilty of the lesser offense and

to acquit him of the greater offense.”      Hobson v. State, 730 So.2d 20, 26 (Miss. 1998)

(quoting Welch v. State, 566 So.2d 680, 684 (Miss. 1990)).

¶11.    Here, Stewart entered Gray’s home after Robinson whistled for him once inside the

house. Robinson and Hines entered the house by breaking out a window. Robinson and Hines

                                                 5
pled guilty to burglarizing Gray’s house (Count II).           Regardless of Robinson’s testimony that

Stewart did not participate in ransacking the rooms in Gray’s house, Stewart remained inside

the house while Robinson and Hines searched for valuables throughout the rooms. Stewart did

not report the burglary to the authorities or stop the burglary.

¶12.    Most damning to the Stewart’s position, the items stolen from Gray’s home were

pawned, and Stewart received part of the money.             Robinson testified that Stewart received a

portion of the proceeds from the sale of the items taken from Gray’s house. The State clearly

presented evidence that Stewart aided and abetted the burglary.             The jury determined that

Stewart was guilty on Count II for the burglary of Gray’s house.           This assignment of error is

without merit.

        II.      J.N.O.V./New Trial

¶13.    Stewart moved for a directed verdict at the close of the State’s case-in-chief. The trial

court denied Stewart’s motion.            Stewart also made a post-trial motion for judgment

notwithstanding the verdict, or alternatively, motion for a new trial, and the trial court also

denied said motion.

¶14.        This Court has made a distinction between the review of the denial of a motion for

J.N.O.V. based on the legal sufficiency of the evidence and review of a motion for new trial

based on the weight of the evidence.

        A.       Legal Sufficiency

¶15.    Stewart was convicted of burglary pursuant to Miss. Code Ann. § 97-17-23 which

provides:




                                                      6
        Every person who shall be convicted of breaking and entering the dwelling house
        or inner door of such dwelling house of another, whether armed with a deadly
        weapon or not, and whether there shall be at the time some human being in such
        dwelling house or not, with intent to commit some crime therein...

¶16.    On the issue of the legal sufficiency of the evidence, this Court held in Pinkney v.

State, 538 So.2d 329, 353 (Miss. 1988), vacated on other grounds, 494 U.S. 1075, 110 S.Ct.

1800, 108 L.Ed.2d 931 (1990), that reversal can only occur when evidence of one or more of

the elements of the charged offense is such that “reasonable and fair minded jurors could only

find the accused not guilty.” (quoting Wetz v. State, 503 So.2d 803, 808 (Miss. 1987)). A

motion for J.N.O.V. challenges the legal sufficiency of the evidence. McClain v. State, 625

So.2d 774, 778 (Miss. 1993). “[T]his Court properly reviews the ruling on the last occasion

the challenge was made in the trial court.” Id. at 778. Here, this occurred when the trial court

denied Stewart’s motion for J.N.O.V. See id.

¶17.    Stewart was outside on the corner when Robinson and Hines broke out a window to

enter Gray’s house. Robinson testified that he whistled Stewart inside. Stewart waited inside

while Robinson and Hines ransacked the house searching for valuables. Gray testified that five

guns and jewelry were stolen. Robinson pawned the items, and Stewart shared in the proceeds.

The evidence demonstrates that the elements of burglary under Miss. Code Ann. § 97-17-23

were met in this case.

        B.      Weight of the Evidence

¶18.    A motion for new trial challenges the weight of the evidence. Sheffield v. State, 749

So.2d 123, 127 (Miss. 1999).           A reversal is warranted only if the trial court abused its

discretion in denying a motion for new trial. Id.


                                                    7
¶19.    This Court held in Bush v. State, 895 So.2d 836, 844 (Miss. 2005) as follows:

        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. Herring v. State, 691 So.2d 948, 957 (Miss.1997).
        We have stated that on a motion for new trial, the court sits as a thirteenth juror.
        The motion, however, is addressed to the discretion of the court, which should
        be exercised with caution, and the power to grant a new trial should be invoked
        only in exceptional cases in which the evidence preponderates heavily against
        the verdict. Amiker v. Drugs For Less, Inc., 796 So.2d 942, 947 (Miss.2000).
        However, the evidence should be weighed in the light most favorable to the
        verdict. Herring, 691 So.2d at 957. A reversal on the grounds that the verdict
        was against the overwhelming weight of the evidence, “unlike a reversal based
        on insufficient evidence, does not mean that acquittal was the only proper
        verdict.” McQueen v. State, 423 So.2d 800, 803 (Miss.1982). Rather, as the
        “thirteenth juror,” the court simply disagrees with the jury's resolution of the
        conflicting testimony. Id. This difference of opinion does not signify acquittal
        any more than a disagreement among the jurors themselves. Id. Instead, the
        proper remedy is to grant a new trial.

¶20.    In the case sub judice, the verdict is consistent with the weight of the evidence, and a

new trial is not warranted.     Without repeating the facts previously stated, the jury heard the

testimony from all the witnesses called by the State.       Stewart did not testify, and the defense

did not call any witnesses to testify.    The jury determined that Stewart was guilty on Count II

for the burglary of Gray’s house. When polled as to Count II, all jurors stated that was their

verdict. The jury had the opportunity to weigh the evidence presented and the credibility of the

State’s witnesses. This assignment of error is without merit.

                                            CONCLUSION

¶21.    We affirm the judgment of the Circuit Court of Bolivar County.

¶22. CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF EIGHT
(8) YEARS, WITH CONDITIONS, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, TOGETHER WITH PAYMENT OF ALL COSTS
AND A FINE OF $4,000.00 TO BE PAID WITHIN TWO (2) YEARS OF RELEASE

                                                    8
FROM INCARCERATION, AFFIRMED. AFTER APPELLANT HAS SERVED SIX (6)
YEARS, THE REMAINING TWO (2) YEARS SHALL BE SUSPENDED. APPELLANT
SHALL RECEIVE CREDIT FOR ALL TIME PREVIOUSLY SERVED IN THIS CAUSE.
THE SENTENCE IMPOSED IN THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY
AND ALL SENTENCES PREVIOUSLY IMPOSED.

     SMITH, C.J., WALLER AND COBB, P.JJ., CARLSON, GRAVES AND
DICKINSON, JJ., CONCUR. DIAZ AND RANDOLPH, JJ., NOT PARTICIPATING.




                                9
