                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2013-CT-02132-SCT

RICHARD WHITE a/k/a TONEY BUCK a/k/a
RICHARD DELAINE WHITE

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          10/18/2013
TRIAL JUDGE:                               HON. ALBERT B. SMITH, III
TRIAL COURT ATTORNEYS:                     LESLIE FLINT
                                           JAMIE BANKS
                                           WILBERT L. JOHNSON
COURT FROM WHICH APPEALED:                 QUITMAN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF THE STATE PUBLIC
                                           DEFENDER
                                           BY: ERIN ELIZABETH PRIDGEN
                                               GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         BRENDA FAY MITCHELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 07/21/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       BEAM, JUSTICE, FOR THE COURT:

¶1.    Richard White was convicted of burglary of a dwelling. The jury was instructed it

could find White guilty of burglary of a dwelling if it found he broke and entered Newell and

Johanna Inman’s home “with the intent to commit the crime of larceny and/or assault

therein.” While the jury was instructed on the elements of aggravated assault, it was not
given any instruction on the definition of larceny. On appeal, a divided Court of Appeals

affirmed his conviction. White v. State, No. 2013-KA-02132-COA, 2015 WL 3954218, at

*1 (Miss. Ct. App. June 30, 2015). We granted White’s petition for writ of certiorari.

¶2.   Consistent with this Court’s recent decision in Windless v. State, 185 So. 3d 956

(Miss. 2015), we affirm the judgment of the Court of Appeals as well as the trial court’s

judgment and sentence.

                      FACTS AND PROCEDURAL HISTORY

      [Newell and Johanna Inman lived] in Lambert, Mississippi, . . . in Quitman
      County. On Sunday, January 29, 2012, Newell and Johanna drove to Okolona,
      Mississippi, to visit a sick relative in the hospital. It was dark when they
      arrived home a little after 7 p.m. Newell was driving, and Johanna was in the
      front passenger’s seat.
              As they approached their home, Newell and Johanna both noticed that
      a light was on in one of the two storage rooms connected to their carport. The
      doors to the storage rooms were shut and unlocked. Newell thought that
      Johanna had left the light on, and Johanna thought that Newell was responsible
      for the light. As Johanna was exiting the parked car, Newell asked her to turn
      off the light in the storage room, which was immediately to her right. Johanna
      opened the storage-room door just enough to reach the light switch inside. But
      the light was already off. Johanna turned the light back on.
              Johanna was surprised by an intruder in her storage room. His hands
      were behind his back, as though he was hiding a weapon. According to
      Johanna, the intruder was standing in a “parade rest” or “at ease” military
      posture. Johanna screamed for Newell.
              As sixty-five-year-old Newell rushed around the car to help Johanna,
      the intruder tried to escape. Newell swung at him – and missed. The
      significantly younger intruder pummeled Newell with something metallic,
      knocking Newell to his knees and shattering his glasses. Newell’s head was
      severely lacerated, and his right arm was broken.[] The intruder fled around
      the carport and across the yard. Regaining his balance, Newell briefly tried to
      chase the intruder. Newell had to stop when blood from the lacerations on his
      head began to obscure his vision.
              While driving to the emergency room, Johanna called 911. At that time,
      Johanna did not recognize the intruder. But Newell did from the many times



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      he had seen him around town. However, Newell did not know the intruder’s
      name.
              The next day, the Inmans positively identified White as the intruder.
      They recognized him from a photograph that was presented by law
      enforcement. Johanna also showed law enforcement the undisturbed metal file
      that she had found in the front yard. Newell inventoried the storage room and
      discovered that he was missing a hammer, a pair of Channellock pliers, at least
      two files, and some of his screwdrivers. Law-enforcement officers found a
      fingerprint on a box in the storage room where the intruder had been hiding.
      A fingerprint examiner from the Mississippi Crime Laboratory later testified
      that the fingerprint matched the middle finger on White’s left hand. Newell
      and Johanna both testified during White’s trial. They each identified White as
      the intruder.
              White was questioned after he was arrested. He denied any
      involvement in the burglary. At trial, White testified that he was at his home
      in Lambert with family when the crimes occurred. But he did not call any
      witnesses to corroborate his claimed alibi.
              In rebuttal, the prosecution called Charlie Booker Jr., who lived close
      to the Inmans’ residence. Booker testified that White had been at his house
      late on the afternoon of the burglary. White had stopped by to see Booker’s
      father. White left on foot after Booker told him that his father was not at
      home.

White, 2015 WL 3954218, at **1-2.

¶3.   At trial, the court gave the following jury instruction regarding the elements of the

charged crimes:

      In Count I, if you believe from the evidence in this case beyond a reasonable
      doubt that:

      1.     On or about January 29, 2012, RICHARD WHITE AKA “TONEY
             BUCK” did unlawfully, wilfully, feloniously break and enter the
             dwelling house of Newell Inman and /or Johanna Inman, and

      2.     said dwelling house was located at 213 10th Street in Lambert,
             Mississippi, and

      3.     said break and enter was with the intent to commit the crime of larceny
             and/or assault there,



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       then you shall find the defendant guilty of burglary of a dwelling in Count I.

       ...

       In Count II, if you believe from the evidence in this case beyond a reasonable
       doubt that:

       1.     That on or about January 20, 2012, the defendant RICHARD WHITE
              AKA “TONEY BUCK” did unlawfully, feloniously, purposely or
              knowingly cause bodily injury to Newell Inman,

       2.     with a flat iron or metal file or like object, a means likely to produce
              serious bodily harm,

       then you shall find the defendant guilty of aggravated assault in Count II.

The instructions did not define larceny.

¶4.    The jury found White guilty of burglary but acquitted him of aggravated assault.

White appealed, arguing the trial court had erred in failing to instruct the jury regarding the

elements of larceny and assault. In affirming White’s conviction, a majority of the Court of

Appeals found that the jury had been instructed on the elements of aggravated assault, and

also found the jury had been fairly instructed on the underlying offenses of burglary, because

“[i]t was undisputed that the intruder stole the Inmans’ property and assaulted Newell.”

White, 2015 WL 3954218, at *4.

¶5.    In dissent, Judge Fair argued that the majority affirmed the convictions because

evidence of theft and assault existed, but said this Court has not drawn an evidentiary

distinction when requiring that the jury be instructed on the intent requirement for burglary.

Id. at *7 (Fair, J., dissenting). Judge Fair concluded that the jury instructions did not fairly




                                               4
instruct the jury on the intent requirement for burglary in conformity with this Court’s

precedent. Id.

¶6.    White petitioned this Court for certiorari, which we granted to address the issue of

whether the trial court failed to fairly instruct the jury on the applicable law.

                                          ANALYSIS

¶7.    This Court must review jury instructions as a whole to ascertain whether the jury was

fully and fairly instructed regarding the applicable law. Conner v. State, 138 So. 3d 143, 149

(Miss. 2014). “We will not find error if the instructions fairly, though not perfectly,

announce the applicable rules of law.” Id.

¶8.    Because White failed to object at trial to the jury instruction complained of on appeal,

error–if any–on the trial court’s part regarding the jury instruction at issue is subject to plain-

error review. Windless, 185 So. 3d at 961-62 (The plain-error doctrine requires the finding

of not only an error, but one that resulted in a ‘miscarriage of justice’ affecting the

defendant’s fundamental rights.”).

¶9.    In Windless, the defendant was convicted of capital murder with the underlying felony

of burglary. Id. at 959. The trial court instructed the jury on the essential elements of both

the principal offense of capital murder and the underlying felony of burglary. Id. But while

the trial court identified larceny as the crime Windless intended to commit vis-vis the

burglary, it did not define the offense of larceny. Id. Windless did not object at trial to the

complained-of jury instruction. Id. at 960.




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¶10.   Noting first that Windless’s claimed error on appeal was subject to plain-error review

only, due to failure to preserve the error at trial, this Court found no miscarriage of justice

affecting Windless’s fundamental rights. Id. at 961-62. Windless reiterated that larceny is

commonly understood to connote stealing or theft. Id. at 962 (citing Conner, 138 So. 3d at

150). The State had submitted sufficient evidence for the jury to find that “Windless

feloniously broke into and entered the victim’s house with the intent to steal.” Id. at 962.

And the jury instructions fairly informed Windless’s jury of the applicable rules of law.

Accordingly, this Court found no merit to Windless’s argument. Id.

¶11.   Here, White was on trial for burglary, not larceny. As Windless reiterated, “[t]he

elements of burglary are (1) ‘breaking and entering the dwelling house or inner door of such

dwelling house of another’ (2) ‘with the intent to commit some crime therein[.]’” Windless,

185 So. 3d at 960-61 (quoting Miss. Code Ann. § 97-17-23(1) (Rev. 2014)) (emphasis

added). The crime of burglary “does not contain two separate and distinct ‘subcrimes[.]’”

Id. at 961 (quoting Booker v. State, 716 So. 2d 1064, 1067-68 (Miss. 1998)). “Rather, the

intent to commit some crime, be it a felony or misdemeanor, is simply an element of the

crime of burglary.” Id. (quoting Booker, 716 So. 2d at 1068) (emphasis maintained). The

State is not obligated to prove that the accused actually committed the underlying offense of

burglary. Daniels v. State, 107 So. 3d 961, 964 (Miss. 2013). “Only the intent need be

proven to establish the second element of the crime of burglary.” Windless, 185 So. 3d at

961 (quoting Moore v. State, 344 So. 2d 731, 735 (Miss. 1977)).




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¶12.     Complying with this Court’s precedent, the trial court identified the specific crime

White’s indictment alleged he intended to commit, when it instructed the jury on the elements

of burglary at the conclusion of White’s trial. Daniels, 107 So. 3d at 964. In defining intent,

the trial court used the word “larceny” as a shorthand statement of its definition, i.e., to steal,

take and carry away the goods of another with the intent to deprive the owner of his or her

goods permanently and to convert same to the use of the taker.

¶13.     As this Court found to be the case in Windless, White’s jury did not need a formal

definition of the term “larceny” to understand its meaning and to apply that meaning to the

evidence presented in this case. See Windless, 185 So. 3d at 962 (“larceny is commonly

understood to connote stealing or theft”). The State clearly met its burden on the second

element, based upon the evidence presented at trial. The evidence showed that, after White

that left Newell and Johanna’s premises, Newell inventoried the storage room where White

had been discovered by the Newells. Newell testified he was missing a hammer, a pair of

pliers, at least two files, and some screwdrivers.

¶14.     Consistent with Windless, use of the word “larceny” as it is commonly used and

understood by the general public was sufficient in this case to define for the jury the requisite

intent needed to support a conviction of burglary.

                                        CONCLUSION

¶15.     For these reasons, we affirm the judgment of the Court of Appeals affirming White’s

burglary conviction as well as the judgment and sentence of the Quitman County Circuit

Court.



                                                7
¶16. COUNT I: CONVICTION OF BURGLARY OF A DWELLING AND
SENTENCE OF TWENTY-FIVE (25) YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE IN
THIS CAUSE SHALL RUN CONSECUTIVELY TO ANY AND ALL SENTENCES
PREVIOUSLY IMPOSED. APPELLANT SHALL PAY FULL RESTITUTION TO
THE VICTIM, IF ANY.

    WALLER, C.J., RANDOLPH, P.J., LAMAR AND COLEMAN, JJ., CONCUR.
KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
DICKINSON, P.J., AND KITCHENS, J. MAXWELL, J., NOT PARTICIPATING.


       KING, JUSTICE, DISSENTING:

¶17.   Because I believe that the jury should have been instructed on the elements of the

underlying offense of larceny in order to find that White had the requisite intent, I

respectfully dissent.

¶18.   The crime of burglary of a dwelling is committed by “breaking and entering the

dwelling house or inner door of such dwelling house of another . . . with intent to commit

some crime therein[.]” Miss. Code Ann. § 97-17-23(1) (Rev. 2014). The jury must be

instructed as to some specific crime that the State alleges the defendant intended to commit.

Daniels v. State, 107 So. 3d 961, 964 (Miss. 2013). It is true that the State does not have to

prove every element of the intended crime to prove burglary. Id. However, in order to prove

that a defendant intended to commit a specific crime, the jury must have some lodestar by

which it can navigate in order to ascertain what that intended crime entails. Ideally, that

lodestar consists of an instruction describing the elements of the intended crime.

¶19.   In Conner, this Court found that trial courts “should instruct the jury on the elements

of the intended crime in a burglary trial.” Conner v. State, 138 So. 3d 143, 150 (Miss. 2014)



                                              8
(emphasis added). However, the Court noted that jury instructions must fairly, but not

perfectly, instruct the jury on the applicable law. Id. In addition to a burglary instruction that

failed to list the elements of larceny, the trial court in Conner gave an instruction that “[a]n

inference of the intent to steal may arise from proof of the breaking and entering.” Id. at 149.

Because the Court deemed that an intent to commit larceny (an element of burglary) was

similar to the intent to steal on which the jury was explicitly instructed, the Court found that

the jury was fairly instructed on the applicable law. Id. at 149-50.

¶20.   In the case at hand, the jury instructions informed the jury that it should find White

guilty of burglary if he broke and entered the Inman’s house with the intent to commit

larceny or assault. White was also charged with, and the jury was separately instructed on,

aggravated assault. Because the jury instructions contained every element of aggravated

assault, the jury was fairly informed regarding the applicable law of assault, pursuant to our

holding in Conner, and could thus fairly ascertain whether White possessed the requisite

intent to assault required for a burglary conviction. However, the jury was not instructed on

the elements of larceny, nor was any sort of “intent to steal” instruction given. Unlike in

Conner, the jury in this case had utterly no basis upon which to determine whether White

intended to commit larceny. In this case, the Court of Appeals relied on, and the majority

does not repudiate, the idea that evidence of an intent to commit larceny suffices. But Judge

Fair’s dissent was correct that evidence of the element of a crime does not replace a correct

jury instruction on such element. Taken to its logical conclusion, such an argument could

allow mere evidence of the crime to replace a jury instruction on any element of a crime. For



                                                9
example, had the State introduced evidence of breaking and entering, the Court of Appeals’

conclusion would allow it to forego actually instructing the jury that it must find that a

defendant broke and entered a dwelling, merely because it introduced evidence to that effect.

¶21.    The majority relies on Windless v. State for its proposition that the mere mention of

larceny sufficiently instructs the jury in this case. Windless v. State, 185 So. 3d 956 (Miss.

2015). Windless, a plurality opinion, was a capital murder case. Id. The plurality

determined that it was not plain error to fail to instruct the jury on the definition of larceny,

which, in that case, was the intended offense to the underlying offense of burglary to the

primary offense of capital murder. Id. This case is simply more akin to Conner. And a jury

should know the elements of larceny under Mississippi law in order to possess the ability to

find beyond a reasonable doubt that a defendant intended to commit larceny. Windless, 185

So. 3d at 963 (Dickinson, P.J., dissenting). “[T]he crime of larceny is not universal.” Id.

(Dickinson, P.J., dissenting). “The abridged ninth edition of Black’s Law Dictionary defines

fifteen different kinds of larceny, each with its own definition.” Id. at 963-64 (Dickinson,

P.J., dissenting). Mississippi has approximately fourteen statutes covering various crimes

of larceny. Id. at 964 (Dickinson, P.J., dissenting) (citing Miss. Code Ann. §§ 97-17-41 to

97-17-64 (Rev. 2014)). Thus, according to this Court’s pronouncement in Conner, a jury

should be fairly instructed on the elements of the intended crime in order to determine

beyond a reasonable doubt whether the requisite intent existed. This Court appears to

overrule Conner with today’s decision.




                                               10
¶22.   Because it was not instructed upon any basis whatsoever on which it could fairly

determine whether White possessed the requisite intent to commit larceny, the jury was not

fully and fairly instructed on the elements of burglary. Therefore, I would reverse White’s

conviction, because the jury was not fairly instructed on the applicable law; thus he was

deprived of his right to have a jury determine whether every element of the offense of

burglary was proven beyond a reasonable doubt.

       DICKINSON, P.J., AND KITCHENS, J., JOIN THIS OPINION.




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