                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2017-KA-00604-SCT

CHARLES NAYLOR a/k/a CHARLES EDWARD
NAYLOR a/k/a CHARLES E. NAYLOR a/k/a
CHARLES ED NAYLOR

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT:                         03/03/2017
TRIAL JUDGE:                              HON. JON MARK WEATHERS
TRIAL COURT ATTORNEYS:                    ZACHARY M. VAUGHN
                                          JAMES LANE
                                          CANDANCE L. RICKMAN
                                          PAUL B. JOHNSON, III
                                          TANGI A. CARTER
                                          ROBERT WHITACRE
                                          T. MICHAEL REED
                                          PATRICIA BURCHELL
                                          JASON DARRELL LITTLE, JR.
COURT FROM WHICH APPEALED:                FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF THE STATE PUBLIC
                                          DEFENDER
                                          BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY:                        PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 04/05/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.

      KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1.   After discovering an interloper inside a parked, inoperable Volvo vehicle that he knew

belonged to Bobby Brewer, Jerry McGill called the police, then pursued the man as he fled
on foot. The police identified the man as Charles Naylor. Naylor had in his possession

Brewer’s global positioning system (GPS) and an insurance card that bore Brewer’s name.

He was convicted of burglary of an automobile and was sentenced, as an habitual offender

pursuant to Mississippi Code Section 99-19-81 (Rev. 2015), to seven years’ imprisonment

without parole. On appeal, Naylor claims that the evidence was insufficient to support his

conviction. Finding no merit in Naylor’s claim on appeal, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Jerry McGill owns an automobile mechanic shop in Hattiesburg, Mississippi, around

the corner from Bobby’s Muffler and Brake Shop (Bobby’s Muffler), which is owned by

Bobby Brewer. On October 29, 2015, McGill, who does mechanic work at night, was

responding to a broken-down vehicle call when he drove by Bobby’s Muffler. McGill noticed

that a door was open on the Volvo parked outside Bobby’s Muffler. McGill knew the vehicle

belonged to Brewer.

¶3.    When McGill stopped to close the door, a man raised his head inside the Volvo and

got out. The man, whom law enforcement personnel later identified as Charles Naylor,

walked over to McGill, who still was in his truck. Naylor informed McGill that the Volvo

belonged to him, that he had dropped it off for repairs, and that Brewer was to work on it the

next morning. McGill told Naylor that he worked at Bobby’s Muffler and asked for Naylor’s

information, whereupon Naylor replied that the shop already had his information. When

McGill snapped a photograph1 of Naylor, Naylor walked away. McGill telephoned the police

       1
        This photograph, taken with McGill’s cellular telephone, was introduced in evidence
as Exhibit 1 and shown to the jury.

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at that point. He then got out of his truck, looked in the Volvo, and noticed that papers had

been strewn about its interior and that the glove box had been “just tore all open . . . .”

¶4.    McGill remained on the line with the police and followed Naylor, who was walking

ahead, in his truck. McGill did not lose sight of Naylor and followed him until Naylor sat

down on the sidewalk outside a McDonald’s restaurant, located approximately a quarter mile

from Bobby’s Muffler. McGill, who was instructed to wait at a gas station across from the

McDonald’s, saw officers arrest Naylor outside the restaurant.

¶5.    Officer Allen Grace of the Hattiesburg Police Department responded to McGill’s call.

Naylor was identified and was detained. In Naylor’s possession, police found a global

positioning system (GPS) unit and an automobile insurance card for a white Volvo which

bore Bobby Brewer’s name. Officer Grace testified that he had lifted some fingerprints from

Brewer’s Volvo but explained that those fingerprints were not Naylor’s. According to Officer

Grace, after apprehending Naylor, he had investigated the scene at Bobby’s Muffler and

found the Volvo unlocked with a door open; the vehicle’s glove box also was open.

¶6.    Bobby Brewer testified at Naylor’s trial that the Volvo had been inoperable, locked,

and parked in front of his shop until the alleged burglary and that “[i]t had been locked for

sometime [sic] . . . .” He continued that his insurance card had been in the glove box and that

his “GPS was either [lying] on the floorboard or somewhere other than the glove box.”

¶7.    Naylor was convicted of burglary of an automobile and was sentenced by the Circuit

Court of Forrest County, as an habitual offender pursuant to Mississippi Code Section 99-19-

81 (Rev. 2015), to seven years’ imprisonment without parole. On appeal he claims that the



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State failed to “prove that Naylor actually broke into Mr. Brewer’s Volvo[;] therefore, the

evidence was insufficient and the verdict was contrary to the weight of the evidence.”

                                STANDARD OF REVIEW

¶8.    “When reviewing a challenge for sufficiency of the evidence, this Court must

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.’” Ambrose v. State, 133 So. 3d 786, 791 (Miss. 2013) (citations omitted).

“The prosecution must be given the benefit of all favorable inferences that may be reasonably

drawn from the evidence.” McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).

       [I]f a review of the evidence reveals that it is of such quality and weight that,
       “having in mind the beyond a reasonable doubt burden of proof standard,
       reasonable fair-minded men 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.

Shelton v. State, 214 So. 3d 250, 256 (Miss. 2017) (citations omitted).

¶9.    “When the weight of the evidence is challenged, this Court ‘will reverse only when

the verdict [is] so contrary to the weight of the evidence that to allow it to stand would

sanction an unconscionable injustice.’” Christian v. State, 207 So. 3d 1207, 1214 (Miss.

2016) (quoting Wales v. State, 73 So. 3d 1113, 1121 (Miss. 2011)).

                                         ANALYSIS

¶10.   “Every person who shall be convicted of breaking and entering, in the day or night,

any . . . automobile . . . with the intent to steal therein . . . shall be guilty of burglary and

imprisoned in the penitentiary not more than seven (7) years.” Miss. Code Ann. § 97-17-



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33(1) (Rev. 2014). Actual breaking has been defined by this Court as “‘any act of force,

however slight, “employed to effect an entrance through any usual or unusual place of

ingress, whether open, partly open, or closed.’”’ Johnson v. State, 2017 WL 6059930, *3

(Dec. 7, 2017) (quoting Templeton v. State, 725 So. 2d 764, 766 (Miss. 1998) (quoting

Smith v. State, 499 So. 2d 750, 752 (Miss. 1986))).

¶11.   Naylor argues that, “with the evidence presented, it is just as likely that Naylor came

upon the Volvo with the door already open and Naylor merely trespassed in the Volvo and

committed petit larceny.” But under this Court’s standard for reviewing challenges to the

sufficiency of the evidence, even if, “having in mind the beyond a reasonable doubt burden

of proof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might

reach different conclusions on every element of the offense, the evidence is sufficient.”

Shelton, 214 So. 3d at 256. Moreover, “‘when the evidence is conflicting, the jury will be

the sole judge of the credibility of witnesses and the weight and worth of their testimony.’”

Little v. State, 233 So. 3d 288, 292 (Miss. 2017) (quoting Gathright v. State, 380 So. 2d

1276, 1278 (Miss. 1980)). Brewer testified that the Volvo was locked outside Bobby’s

Muffler at the time of the crime and that it had been locked for some time. In his closing

argument, Naylor contended that he merely had happened upon a Volvo with an open door.

Despite Naylor’s contention to the contrary, the jury was entitled to believe Brewer’s

testimony that his Volvo had been locked until the alleged burglary.

¶12.   In 1997, this Court adopted and applied a standard by which a defendant’s

participation in a burglary can be inferred by the defendant’s possession of recently stolen



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property. Shields v. State, 702 So. 2d 380, 382 (Miss. 1997). “That is, ‘the inference of

participation in the crime drawn from possession of the fruits of the crime is to be judged like

any other inference, that is, on the strength of that inference in the light of the facts of each

particular case.’” Id. (quoting Cosby v. Jones, 682 F. 2d 1373, 1383 (11th Cir. 1982)). Of

course, “[t]he circumstances of possession and the presence or absence of evidence of

participation in the crime other than mere possession must be viewed.” Shields, 702 So. 2d

at 382 (citing Cosby, 682 F. 2d at 1380, 1382-83). This Court noted some “common sense

circumstances to be considered” in determining whether a burglary can be inferred from a

defendant’s possession of stolen items:

       1.     The temporal proximity of the possession to the crime to be inferred;

       2.     The number or percentage of the fruits of the crime possessed;

       3.     The nature of the possession in terms of whether there is an attempt at
              concealment or any other evidence of guilty knowledge;

       4.     Whether an explanation is given and whether that explanation is
              plausible or demonstrably false.

Id. at 383 (quoting id.).

¶13.   In Shields, the defendant offered to sell three guns at a pawn shop the same day the

guns had been stolen and their owner’s house had been burglarized. Shields, 702 So. 2d at

381. The pawn shop purchased two of the guns. Id. The third gun, which was not purchased

by the pawn shop, was recovered at the pawn shop. Id. In affirming Shields’s conviction, this

Court considered the circumstances:

       The first factor, the temporal proximity of possession, lends great strength to
       the inference that Shields committed the burglary. There is evidence that

                                               6
       Shields possessed fruits of the burglary on the same day of the burglary. The
       second factor also lends strength. Three of the four items taken were identified
       in Shields’ possession. The third factor detracts from the inference. Shields
       sold these guns, bearing serial numbers, in his own name without any attempt
       to hide his identity. Finally, the fourth factor lends strength to the inference,
       since Shields offered no explanation whatever. Although there is evidence that
       he told the pawnbroker that he bought and sold guns all of the time, there is no
       indication that he bought these guns or acquired them in any other manner.

Id. at 383.

¶14.   Naylor claims that “more than proximity is needed” to sustain a burglary conviction.

But evidence that Naylor possessed fruits of the burglary on the same day of the burglary

when he was apprehended a quarter mile from the site of the burglary strengthens the

inference that Naylor committed the burglary. Moreover, Naylor had not been out of

McGill’s sight from the time he walked away from the Volvo until he was taken into police

custody. The first Shields “common sense circumstance,” the temporal proximity of

possession, is satisfied. Both items, the GPS and the insurance card, were found in Naylor’s

possession and, therefore, the second factor also strengthens the inference that Naylor

committed the burglary. The third factor neither strengthens nor detracts from the inference

that Naylor committed the burglary because the record does not reflect whether he attempted

to conceal the contraband. Officer Grace could not remember whether the items were found

in Naylor’s backpack or in his pocket. The fourth factor strengthens the inference, because,

according to Officer Grace’s testimony, Naylor could not explain his possession of Brewer’s

insurance card.

¶15.   Nevertheless, this Court also must consider the “circumstances of possession and the

presence or absence of evidence of participation in the crime other than mere possession . .

                                              7
. .” Shields, 702 So. 2d at 382 (citing Cosby, 682 F. 2d at 1380). Plentiful evidence beyond

the mere circumstance of Naylor’s possession of the stolen items supports an inference that

Naylor burglarized Brewer’s Volvo.

¶16.   McGill testified that he had seen a man later identified as Naylor in the Volvo, which

McGill knew belonged to Brewer, with one of the vehicle’s doors open. McGill testified that

Naylor falsely claimed both that the car belonged to him and that he had dropped the car off

to be repaired. McGill continued that, when he photographed the Volvo’s occupant with his

cellular phone, the man walked away. McGill then stated that he had called the police and

remained on the line with the police while, in his truck, he followed Naylor, who was

walking ahead on foot. McGill never lost sight of Naylor and followed him until Naylor sat

down on the sidewalk outside a McDonald’s, located approximately a quarter mile from

Bobby’s Muffler. McGill then witnessed officers arrest Naylor outside the McDonald’s. In

Naylor’s possession, police found a global positioning system (GPS) unit and an automobile

insurance card for a white Volvo which had Bobby Brewer’s name on it.

¶17.   Naylor references Ladd v. State, in which the Mississippi Court of Appeals held that

“the mere act of walking through a raised, open garage door does not constitute an ‘act of

force, however slight, employed to effect an entrance’ and is not a ‘breaking.’” Ladd v. State,

87 So. 3d 1108, 1115 (Miss. Ct. App. 2012). And this Court approved the decision of the

Court of Appeals in Watson v. State: “We agree with the Court of Appeals in Ladd[] that

merely walking through an open door does not satisfy the ‘breaking’ requirement for burglary

of a dwelling.” Watson v. State, 123 So. 3d 446, 448 (Miss. 2013). However, in Ladd, the



                                              8
crime victim testified that she had left the garage door open. Ladd, 87 So. 3d at 1114. Here,

Brewer testified that his Volvo had been locked at the time Naylor is alleged to have

burglarized it. The jury was entitled to believe Brewer’s testimony.

¶18.   While Naylor references an argument that the verdict was contrary to the

overwhelming weight of the evidence in his brief’s argument summary, he presents no

further argument or authority in support of this claim. This Court “is under no obligation to

consider an assigned error without citation to authority.” Brown v. State, 798 So. 2d 481,

497 (Miss. 2001) (citing Brown v. State, 534 So. 2d 1019, 1023 (Miss. 1988)).

                                     CONCLUSION

¶19.   Because the evidence was sufficient to support Naylor’s conviction of burglary of an

automobile, we affirm.

¶20.   AFFIRMED.

    WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM,
CHAMBERLIN AND ISHEE, JJ., CONCUR.




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