                     IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2011-CT-00941-SCT

DARYL CONNER

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                           07/01/2011
TRIAL JUDGE:                                HON. ROBERT P. CHAMBERLIN
TRIAL COURT ATTORNEYS:                      DAVID CLAY VANDERBURG, ANGELA M.
                                            JONES, JENNIFER MUSSELWHITE
COURT FROM WHICH APPEALED:                  DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     OFFICE OF STATE PUBLIC DEFENDER
                                            BY: JUSTIN T. COOK
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                          JOHN W. CHAMPION
NATURE OF THE CASE:                         CRIMINAL - FELONY
DISPOSITION:                                AFFIRMED - 05/15/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       EN BANC.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    A jury found Daryl Conner guilty of burglary and felony fleeing a police officer, and

the Circuit Court of DeSoto County sentenced him as a habitual offender to two consecutive

life sentences. Conner appealed to the Court of Appeals, which affirmed his convictions and

sentences. This Court granted Conner’s petition for certiorari in which Conner argues that

the evidence was insufficient to support his conviction for felony fleeing, that the trial court
erred by failing to instruct the jury on the elements of larceny, and that, because the pen

packs establishing Conner’s habitual-offender status were not admitted at the sentencing

hearing, the trial court erred by sentencing him as a habitual offender.

¶2.    We affirm the judgments of the Court of Appeals and the trial court. We find that the

evidence was sufficient to support Conner’s felony-fleeing conviction and that the jury was

fully and fairly instructed. We further find that the pen packs establishing Conner’s status as

a habitual offender were admitted at the sentencing hearing. Therefore, we affirm Conner’s

convictions and sentences.

                        FACTS AND PROCEDURAL HISTORY

¶3.    One morning, Mary Campbell entered her master bedroom to discover an unknown

man in her home on Windersgate Drive in Olive Branch, Mississippi. The man fled from the

home, entered a small, dark automobile parked in an adjacent driveway, backed his car down

Windersgate Drive to Collinswood Road, and drove off. Once the car left her sight, Campbell

entered her home and called 911.

¶4.    The 911 dispatcher relayed the description of the dark vehicle to officers in the area.

Within approximately one minute of the dispatch, Officer Matthew Kinne spotted a car

matching Campbell’s      description of the car at the corner of Collinswood Road and

Germantown Road. Officer Kinne initiated a pursuit of that vehicle, which ended when the

vehicle crashed. Then, a foot pursuit ensued and officers arrested the driver.

¶5.    Campbell later identified Daryl Conner from a photo lineup as the man in her home.

The grand jury indicted Conner for burglary of a dwelling, felony fleeing, and petty larceny.

Later, the trial court amended Conner’s indictment to charge him as a habitual offender. The


                                              2
jury convicted Conner of burglary of a dwelling and felony fleeing, and the trial court

sentenced him as a habitual offender to serve two consecutive life sentences without the

opportunity for parole.

                                        ANALYSIS

       I.     Whether the State presented sufficient evidence of Conner’s
              identity to support his conviction for felony fleeing.

¶6.    The Court of Appeals recognized that no witness had identified Conner as the person

arrested following the pursuit. Conner v. State, No. 2011-KA-00941-COA, 2013 WL

1800065, *3 (Miss. Ct. App. April 30, 2013). But the Court of Appeals also found that:

       [t]he short passage of time from Campbell’s report of a man in her home and
       the short distance from her home to the point where Officer Kinne spotted the
       similar vehicle and began the chase were sufficient evidence for the jury to
       infer that Conner was the individual who was driving the car and fled the arrest
       and whom Officer Kinne caught and arrested at the end of the chase.

Id. Conner argues that no reasonable juror could draw such an inference from the evidence

presented at trial. Although we agree with the Court of Appeals’ conclusion that the evidence

was sufficient to support the felony-fleeing conviction, we do so for a different reason.

¶7.    On a challenge to the sufficiency of the evidence, this Court will reverse and render

“if the facts and inferences point in favor of the defendant on any element of the offense with

sufficient force that reasonable men could not have found beyond a reasonable doubt that the

defendant was guilty . . . .” Young v. State, 119 So. 3d 309, 315 (Miss. 2013) (quoting

Hughes v. State, 983 So. 2d 270, 275-76 (Miss. 2008)). Our “relevant inquiry is whether any

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

doubt.” Young, 119 So. 3d at 315. “This Court considers the evidence in the light most



                                              3
favorable to the state.” Hughes, 983 So. 2d at 276 (citing Bush v. State, 895 So. 2d 836, 843

(Miss. 2005)). “The state receives the benefit of all favorable inferences that may reasonably

be drawn from the evidence.” Hughes, 983 So. 2d at 276 (citing Wilson v. State, 936 So. 2d

357, 363 (Miss. 2006) (citing Hawthorne v. State, 835 So. 2d 14, 22 (Miss. 2003))).

Likewise, the sufficiency of the evidence used to identify the accused “is primarily a question

for the jury, provided the evidence could reasonably be held sufficient to comply with the

requirement of proof beyond a reasonable doubt.” Passons v. State, 239 Miss. 629, 634, 124

So. 2d 847, 848 (1960).

¶8.    The Court of Appeals primarily relied on the proximity between the location of the

burglary and where Officer Kinne spotted a vehicle matching the description provided by

Campbell. This circumstantial evidence turns on the fact that Campbell last saw Conner

driving down Collinswood Road, which leads only to Germantown Road, and that Officer

Kinne spotted the vehicle he pursued at the corner of Collinswood and Germantown Roads

approximately one minute after he received the description from dispatch.

¶9.    But none of the evidence presented at trial established the distance Conner had to

travel on Collinswood Road in order to reach Germantown Road. If that distance were, for

example, 500 yards, then the jury’s verdict based upon the timing of events established by

the evidence would appear reasonable. But if that same distance were ten miles, the one-

minute time frame would operate against the State, and the jury’s decision would prove

completely unreasonable, as no reasonable juror could infer that Conner could travel ten

miles in one minute. Accordingly, in the absence of any evidence of the length of

Collinsworth road, the Court of Appeals’ reliance on proximity was misplaced.

                                              4
¶10.   That said, a reasonable juror could draw a chain of inferences through the evidence

presented at trial to sufficiently identify Conner as the perpetrator of the felony fleeing.

Campbell identified Conner at trial as the man she had seen in her home. She also testified

that she provided a description to the 911 dispatcher of a tall black man fleeing in a dark car.

Officer Kinne testified that he received a description of the car and suspect from dispatch and

that, after receiving that description, he began looking for a black man in a dark sedan,

wearing a dark shirt.

¶11.   At trial, the prosecution entered into evidence a video from Officer Kinne’s dashboard

camera that revealed a black male, wearing a dark-colored shirt, fleeing from the dark sedan

Officer Kinne pursued. A reasonable juror could conclude that the man running from the

sedan was the same man described by Campbell to the dispatcher, and therefore the same

man Campbell identified during trial. Accordingly, the State presented sufficient evidence

to identify Conner as the perpetrator of the felony fleeing, and we affirm his conviction on

that charge.

       II.     Whether the trial court erred by failing to instruct the jury on the
               elements of larceny.

¶12.   Conner was convicted of burglary under Mississippi Code Section 97-17-23, which

provides that “[e]very 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, shall be punished . . . .” Miss. Code Ann. §




                                               5
97-17-23 (Rev. 2006). The trial court gave the following instruction on the elements of

burglary:

             In Count I, Defendant Daryl Conner has been charged with the crime
       of Burglary of a Dwelling.

               If you find from the evidence in this case, beyond a reasonable doubt,
       that:

               1)      On or about August 18, 2007, the Defendant Daryl Conner
                      unlawfully broke and entered;

               2)     The dwelling house of Billy and/or Mary Francis Campbell;

               3)     With the intent to commit the crime of Larceny inside the
                      building;

             then you shall find Defendant Daryl Conner guilt of Burglary of a
       Dwelling in Count 1.

             If the State has failed to prove any one of these elements beyond a
       reasonable doubt, then you shall find the Defendant not guilty in Count 1.

The trial court also instructed the jury that “[a]n inference of the intent to steal may arise

from proof of the breaking and entering.”

¶13.   Conner argues that the jury instructions were defective because the jury was not

instructed on the elements of the intended crime of larceny. But he failed to request a larceny

instruction at trial. Nonetheless, the issue is not procedurally barred. The trial court must

“assure that the jury is ‘fully and properly instructed on all issues of law relevant to the

case.’” Harrell v. State, 134 So. 3d 266, 270 (Miss. 2014) (quoting Kolberg v. State, 829 So.

2d 29, 46 (Miss. 2002), overruled on other grounds. “There is no doubt that the trial court

is ultimately responsible for rendering proper guidance to the jury via appropriately given




                                              6
jury instructions, even sua sponte.” Harrell, 134 So. 3d at 270 (quoting Kolberg, 829 So. 2d

at 45).

¶14.      This Court reviews jury instructions “as a whole to determine whether the jury was

fully and fairly instructed according to the applicable law.” Clark v. State, 40 So. 3d 531,

544 (Miss. 2010). We will not find error if the instructions fairly, though not perfectly,

announce the applicable rules of law. Id. The crime of burglary requires the jury to find

beyond a reasonable doubt that the defendant broke and entered the dwelling house of

another with the intent to commit some crime therein. Miss. Code Ann. § 97-17-23(1) (Rev.

2006). This Court has held that jury instructions on burglary must identify the crime the

defendant intended to commit. Daniels v. State, 107 So. 3d 961, 964 (Miss. 2013).

¶15.      Conner’s jury instructions complied with Daniels by identifying larceny as the crime

he intended to commit. The jury was instructed to find Conner guilty of burglary if it

concluded, beyond a reasonable doubt, that Conner unlawfully broke and entered the victim’s

dwelling house with the intent to commit the crime of larceny therein. The jury also was

instructed that “[a]n inference of the intent to steal may arise from proof of the breaking and

entering.” See Gillum v. State, 468 So. 2d 856, 861 (Miss. 1985) (holding that proof of

breaking and entering raises a reasonable inference of an intent to steal).

¶16.      We find that, although the jury instructions did not list the elements of larceny, they

fully and fairly informed the jury of the intent requirement for burglary. The elements of

larceny are the taking and carrying away of another’s personal property without consent and

with felonious intent, that is, the intent to permanently deprive the owner of his property.

Love v. State, 208 So. 2d 755, 756 (Miss. 1968). The Court has described “felonious intent”

                                                 7
as “the intent to steal.” Smith v. State, 214 Miss. 453, 59 So. 2d 74 (1952). The jury

instructions expressly stated that the “required intent” that the jurors had to find was “the

intent to steal.” And the general lay understanding of the term “larceny” is that it connotes

stealing or theft. Commonwealth v. Lawrence, 418 N.E. 2d 629, 631 (Mass. App. Ct. 1981).

While the trial court should instruct the jury on the elements of the intended crime in a

burglary trial, here, the jury instructions correctly instructed the jurors that they could find

Conner guilty of burglary if they found he broke and entered the victim’s dwelling with the

intent to steal. We find that the jury instructions fairly, although not perfectly, instructed the

jury on the applicable law; therefore, we affirm Conner’s burglary conviction.

       III.    Whether the trial court erred by sentencing Conner as a habitual
               offender.

¶17.   Prior to trial, the State moved to amend Conner’s indictment to charge him as a

habitual offender under Mississippi Code Section 99-19-83, which provides for life

imprisonment without parole or early release. Miss. Code Ann. § 99-19-83 (Rev. 2007).

During a pretrial hearing on the State’s motion, the State presented certified pen-pack records

listing Conner’s prior convictions and an affidavit from Candace Whisman, Director of

Sentence Management Services for the Tennessee Department of Corrections, explaining that

Conner had served the necessary separate sentences of more than one year. The trial court

granted the State’s motion and amended the indictment to add habitual-offender status.

¶18.   At Conner’s sentencing hearing, the State did not produce the pen packs and affidavit.

Instead, the State asked the trial court to “refer back to the record that the Defendant has been

amended as a 1983 habitual offender.” The trial court asked if the defense had any objection



                                                8
to the “convictions that have previously been submitted in a motion to amend hearing being

incorporated into this sentencing hearing by reference.” Conner did not lodge an objection

to the incorporation by reference. He did object to the admission of the convictions on the

grounds of hearsay and violation of his right of confrontation. The trial court overruled these

objections. Conner then objected to habitual-offender sentencing as cruel and unusual

punishment. The trial court found that the documents established Conner as a habitual

offender under Section 99-19-83, rejected Conner’s proportionality argument, and sentenced

him to life imprisonment as a habitual offender. Conner then objected to being sentenced as

a habitual offender on the ground that his habitual-offender status had not been proven

beyond a reasonable doubt.

¶19.   Conner now argues that the State failed to meet its burden of proving his habitual-

offender status because the pen-pack documents and affidavit (pen packs) were never

introduced into evidence at the sentencing hearing. Conner’s argument is procedurally barred

because he never raised it before the trial court. Clark v. State, 40 So. 3d 531, 539 (Miss.

2010). However, this Court may employ plain-error review if “a defendant’s substantive or

fundamental rights are affected.” Grayer v. State, 120 So. 3d 964, 969 (Miss. 2013). A

defendant has a fundamental right of freedom from an illegal sentence. Id. Because Conner

argues that the State failed to submit evidence proving his habitual-offender status at the

sentencing hearing, the argument is reviewable as plain error. Grayer, 120 So. 3d at 969

(defendant’s argument that the State failed to prove his habitual-offender status with

competent evidence was reviewable as plain error). “To determine if plain error has occurred,

this Court must determine ‘if the trial court has deviated from a legal rule, whether that error

                                               9
is plain, clear[,] or obvious, and whether that error has prejudiced the outcome of the trial.’”

Id. (quoting Lafayette v. State, 90 So. 3d 1215, 1220 (Miss. 2012) (Carlson, P.J., specially

concurring)).

¶20.   When the defendant is indicted as a habitual offender, “[a] jury is to decide the

question of guilt and subsequently the circuit judge is to serve as the finder of fact in

determining whether the habitual offender part of the indictment is established by the

requisite degree of proof.” Seely v. State, 451 So. 2d 213, 215 (Miss. 1984). A sentencing

hearing on a defendant’s habitual-offender status must occur separately from the trial on the

principal charge. URCCC 11.03. At this hearing, the elements in the applicable habitual-

offender statute must be proven beyond a reasonable doubt. Davis v. State, 680 So. 2d 843,

851 (Miss. 1996). We have held that pen-pack records may constitute competent evidence.

Taylor v. State, 122 So. 3d 707, 709, 711 (Miss. 2013). The defendant must be afforded a

reasonable opportunity to challenge the State’s proof. Keyes v. State, 549 So. 2d 949, 951

(Miss. 1989).

¶21.    “[T]he state has the same burden of proof as to the habitual offender portion of the

indictment as it has on the principal charge.” Young v. State, 507 So. 2d 48, 50 (Miss. 1987).

The defendant has the same rights at the habitual-offender sentencing hearing as at trial. Id.

In Young v. State, we observed that “there appears to be some tendency to routinely allow

the state to produce some documentation of prior offenses and for the trial court to

perfunctorily find the defendant an habitual offender, then routinely pass out the sentence

mandated. . . .” Id. The Court emphasized that “a bifurcated trial means a full two-phase trial




                                              10
prior to any finding that the defendant is an habitual offender and subject to enhanced

punishment.” Id.

¶22.   The Court in Young reversed and rendered Young’s habitual-offender sentencing

enhancement due to deficiencies in the sentencing hearing. Id. at 50. At the sentencing

hearing, the State introduced documents showing Young was a habitual offender. Id. at 49.

Young objected to their admission on the ground that no foundation had been laid. Id. The

prosecutor referred the trial court to Young’s trial testimony, in which he had admitted the

convictions. Id. at 50. The trial judge overruled Young’s objection based on his testimony

from the trial. Id. This Court held that the trial court had erred by relying on trial testimony

that had not been introduced at the sentencing hearing. Id. The Court stated that “the

language employed by [the prosecutor] cannot be stretched so as to be considered a

reintroduction of the evidence. On the contrary, it seems simply an invitation to the trial

judge to rely on that evidence without having it reintroduced, which he subsequently did.”

Id.

¶23.   In Grayer v. State, 120 So. 3d 964 (Miss. 2013), this Court also found a habitual-

offender sentence to have been based on insufficient evidence. After the State recited

Grayer’s prior felony convictions and referred the trial court to the indictment, the trial court

found Grayer to be a habitual offender. Grayer, 120 So. 3d at 967. The State never put

certified copies of the prior convictions into evidence. Id. at 969. This Court held that,

because the State had produced no evidence at the sentencing hearing to support Grayer’s

habitual-offender status, the State had failed to prove beyond a reasonable doubt that Grayer




                                               11
was a habitual offender, and the trial court had erred by sentencing him as a habitual

offender. Id.

¶24.   Conner argues that the pen packs were not introduced into evidence at his sentencing

hearing; therefore, the State failed to prove his habitual-offender status beyond a reasonable

doubt. We disagree. The trial court expressly incorporated the pen packs into the record of

the sentencing hearing and gave Conner an opportunity to object; Conner made no objection

to the incorporation of the pen packs by reference. The trial court rejected Conner’s

arguments against the admission of the pen packs, and then the court considered the pen

packs before finding Conner to be a habitual offender. It is manifest from the trial court’s

statements on the record that the trial court actually reviewed the pen packs at the sentencing

hearing. The facts show that, while there was some irregularity in the manner in which the

pen packs were introduced into evidence, they were, in fact, introduced into evidence. We

note that the pen packs are part of the appellate record.

¶25.   We observe that the incorporation of pen packs introduced at a prior proceeding “by

reference” at a sentencing hearing is not the preferred method of introduction. See Stanford

Young, Miss. Trial Handbook for Lawyers §22:2 (3d ed. 2013) (stating that “an attorney

seeking to admit a document into evidence should identify it and have the reporter mark it

for record identification”). The record of a sentencing hearing should clearly and

unambiguously reflect the admission of habitual-offender evidence. This saves the appellate

court from the task of combing the record to ascertain whether the State’s proof actually was

admitted at the sentencing hearing. But here, unlike in Young and Grayer, the State’s




                                              12
evidence supporting Conner’s status as a habitual offender was admitted at the sentencing

hearing. Therefore, no error occurred, and this issue is without merit.

¶26.   Finally, we address Justice Kitchens’s argument that Conner’s Sixth Amendment right

of confrontation was violated by the admission of Whisman’s affidavit. We have not held

that Confrontation-Clause guarantees exist during sentencing, even if sentencing occurs

under our habitual-offender statutes. Holland v. State, 705 So. 2d 307, 328 (Miss. 1997); but

see Pitchford v. State, 45 So. 3d 216, 252 (Miss. 2010) (applying the Confrontation Clause

to jury sentencing). The Supreme Court of the United States has held that the Confrontation

Clause does not apply during the sentencing process. Williams v. Oklahoma, 358 U.S. 576,

583-84, 79 S. Ct. 421, 3 L. Ed. 2d 516 (1959); Williams v. New York, 337 U.S. 241, 246-

251, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949). Post-Crawford, the federal circuit courts

continue to apply Williams and do not recognize a right to confrontation during sentencing

proceedings. Crawford v. Washington, 541 U.S. 36, 51, 124 S. Ct. 1354, 1364, 158 L. Ed.

2d 177 (2004); see, e.g.,United States v. Beydoun, 469 F.3d 102, 108 (5th Cir. 2006). In

light of the fact that this Court has not determined that the Confrontation Clause applies to

sentencing proceedings, and Conner does not raise this issue on appeal, we decline to find

that the admission of Whisman’s affidavit was plain error. We affirm the judgments of the

Court of Appeals and the DeSoto County Circuit Court.

¶27. COUNT I: CONVICTION OF BURGLARY OF A DWELLING AND
SENTENCE OF LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT
OF CORRECTIONS AS AN HABITUAL OFFENDER, WITHOUT THE
ELIGIBILITY FOR PAROLE, AFFIRMED. COUNT III: CONVICTION OF
FELONY FLEEING AND SENTENCE OF LIFE IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCES
SHALL RUN CONSECUTIVELY TO ANY SENTENCE CURRENTLY BEING

                                             13
SERVED. APPELLANT SHALL PAY COURT COSTS AND A FINE OF $1,000.00
WITH CONDITIONS AND SHALL BE GIVEN CREDIT FOR 349 DAYS FOR TIME
SERVED.

      WALLER, C.J., RANDOLPH, P.J., LAMAR, PIERCE AND COLEMAN, JJ.,
CONCUR. DICKINSON, P.J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED IN PART BY KITCHENS AND KING,
JJ., KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY KING, J.

     DICKINSON, PRESIDING JUSTICE, CONCURRING IN PART AND
DISSENTING IN PART:

¶28.   I fully join the majority’s decision to affirm Conner’s conviction for felony fleeing

and his sentence as a habitual offender on that charge. But, because the trial court failed to

instruct the jury adequately on Conner’s burglary charge, I would reverse that conviction.

¶29.   The trial judge instructed the jury that, in order to convict Conner of burglary, it must

find beyond a reasonable doubt that he intended to commit a larceny in Campbell’s home.

But, because the trial judge did not instruct the jury on the legal requirements for a larceny,

Conner now argues that the jury could not determine whether he possessed the requisite

intent to commit larceny.

¶30.   Neither the State nor Conner requested a larceny instruction at trial. In most cases,

a litigant who fails to request a certain jury instruction waives the issue for appeal.1

However, we have made it clear that the trial judge had the ultimate duty to provide the jury

with proper instructions. And a jury that has not been properly instructed on the elements

of a crime is inherently unable to render a verdict based on those elements. It follows that,




       1
           Ballenger v. State, 667 So. 2d 1242, 1252 (Miss. 1995).

                                              14
in such cases, the defendant’s fundamental right to due process of law and a fair trial have

been compromised, and we may grant relief under the plain-error doctrine.2

¶31.   Conviction for burglary of a dwelling requires the jury to find beyond a reasonable

doubt that the defendant broke and entered the dwelling of another with the intent to commit

“some crime” therein.3 But, unless the prosecution informs the jury of the specific crime the

State alleges the defendant intended to commit, the indictment is “fatally flawed.” 4

¶32.   Indeed, the trial court must instruct the jury on the specific crime the State contends

the defendant intended to commit because “[t]he failure to instruct the jury on some specific

crime in the second element of burglary would have allowed each of the jurors to arbitrarily

select some crime of which there was no proof, and use that nonexistent offense to convict

[the defendant] of burglary.” 5

¶33.   Here, the trial judge instructed the jury that, in order to find Conners guilty of

burglary, it must have found that he intended to commit “larceny.” But the jury was left to

guess what it means to commit a larceny. While the prosecutor was not required to prove the

elements of larceny – indeed, the State could never prove the elements of larceny where the



       2
        Flora v. State, 925 So. 2d 797, 811 (Miss. 2006) (quoting Williams v. State, 794 So.
2d 181, 187 (Miss. 2001), overruled on other grounds by Brown v. State, 995 So. 2d 698
(Miss. 2008), (citing Gray v. State, 549 So. 2d 1316, 1321 (Miss. 1989)); Bolton v. State,
113 So. 3d 542, 544 (Miss. 2013) (quoting Rogers v. State, 95 So. 3d 623, 632 (Miss.
2012)).
       3
           Miss. Code Ann. § 97-17-23(1) (Rev. 2006).
       4
        Lambert v. State, 462 So. 2d 308, 311 (Miss. 1984) (citing Newburn v. State, 205
So. 2d 260 (Miss. 1967); State v. Buchanan, 75 Miss. 349, 22 So. 875 (1898)).
       5
           Daniels v. State, 107 So. 3d 961, 964 (Miss. 2013).

                                              15
defendant broke and entered in an unsuccessful attempt to commit a larceny – it failed to

consider the jury’s need to know those elements in order to analyze whether the defendant

intended to commit them.

¶34.   Larceny is “the taking and carrying away from any place, at any time, of the personal

property of another, without his consent, by a person not entitled to the possession thereof,

feloniously, with intent to deprive the owner of his property permanently, and to convert it

to the use of the taker or of some person other than the owner.” 6

¶35.   It is not an answer to say that jurors understand what is a larceny. I find it highly

unlikely that all members of a jury consisting predominantly of lay persons – not attorneys

and judges – would know the requirements for a larceny. But, even if some of the jurors

claimed to know the requirements for a larceny, they are specifically instructed not to

consider their own views of what the law requires and to apply only the law given to them

by the trial judge.

¶36.   So, when a trial judge requires the jury to determine whether the defendant intended

to commit larceny, that judge may not leave the jury to speculate as to the meaning of

larceny. This is not to say that all jurors are completely ignorant of the law – they are not.

But, because jurors are forbidden from applying their own knowledge of the law, they must

be informed by the trial judge of the law to be applied.

¶37.   By failing to instruct on the elements of larceny, the trial judge left the jurors to assign

their own meaning to that word. This eliminated their ability to determine whether the



       6
       Mapp v. State, 248 Miss. 898, 904, 162 So. 2d 642, 645 (1964) (quoting 52 C.J.S.
Larceny § 1, p. 779; Jackson v. State, 211 Miss. 828, 52 So. 2d 914 (Miss. 1951)).

                                               16
defendant intended to commit that crime beyond a reasonable doubt. And this failure was

not remedied because the trial judge instructed that the jury might infer an intent to steal from

the act of breaking and entering. The intent to steal, standing alone, is not larceny. One must

intend to permanently deprive the other of his or her property. And, even if stealing and

larceny were synonymous, the trial judge never instructed the jury to find the intent to steal

beyond a reasonable doubt, nor did he explain that he intended the instruction on the intent

to steal to define or explain the meaning of larceny. He merely instructed the jury that the

intent to steal might be inferred from the circumstances of breaking and entering.

¶38.   The instructions left the jury to speculate as to the meaning of a legal term,

eviscerating the jury’s ability to consider Conner’s guilt. Accordingly, I would reverse

Conner’s conviction for burglary of a dwelling and remand for a new trial on that charge.

       KITCHENS AND KING, JJ., JOIN THIS OPINION IN PART.

    KITCHENS, JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:

¶39.   There can be no doubt that prosecutions under Mississippi’s habitual-offender statutes

must occur in bifurcated trials. Seely v. State, 451 So. 2d 213, 214 (Miss. 1984). At the

sentencing trial, “the circuit judge is to serve as the finder of fact in determining whether the

habitual offender part of the indictment is established by the requisite degree of proof[,]” that

is, beyond a reasonable doubt. Id. at 215. After reviewing the transcript of the pretrial

hearing on the motion to amend the indictment as well as the sentencing hearing, I am

convinced that the State failed to prove the allegations of habitual-offender status in Conner’s

indictment beyond a reasonable doubt, and Conner was denied his right to confront a witness



                                               17
against him in the process. Because the State failed in its proof, and Conner’s constitutional

right to confrontation was violated, I must respectfully dissent in part. I would vacate his

sentences and remand for resentencing as a nonhabitual offender. I also join the part of

Justice Dickinson’s opinion arguing for the reversal of Conner’s burglary conviction. With

the majority, the only point upon which we agree is that Conner’s conviction of felony

fleeing should be affirmed.

¶40.   Conner’s amended indictment alleges that he has five prior convictions: two for

robbery with a deadly weapon, and three for robbery. The indictment alleges that he was

sentenced to and served more than one year on each of those prior charges.7 The motion to

amend the indictment was accompanied by pen packs from the State of Tennessee

Department of Corrections and an affidavit from Candace Whisman, a corrections official,

outlining her interpretation of Conner’s sentences and prison time. The trial court amended

the indictment based upon the State’s representation that, at sentencing, it would be able to

prove beyond a reasonable doubt that Conner had served more than a year on two prior

convictions, at least one of which was a violent crime. In other words, the trial court’s

acceptance of the pen packs and affidavit for the purpose of amending the indictment opened

the door for the State to undertake the task of proving Conner’s habitual-offender status. By




       7
        Mississippi Code Section 99-19-83 requires proof of only two prior convictions for
which the defendant was sentenced to and served more than one year. However, the State
apparently wanted to make it abundantly clear that Conner had five prior convictions that
could meet the standard for a life sentence as an habitual offender. See Miss. Code Ann. §
99-19-83 (Rev. 2007).

                                             18
no means did the trial court’s ruling mean that the State also had crossed the threshold of

reasonable doubt necessary for it to sentence Conner as an habitual offender.

¶41.   Both at the pretrial hearing and at sentencing, Conner objected to the admission of the

pen pack and explanatory affidavit because it violated his right to confront the witnesses

against him. Additionally, at the sentencing hearing, he argued that the State had failed to

meet its burden of proof in showing that he should be sentenced as an habitual offender.

Because I find that the issues are interrelated, I will address them together.

¶42.   It is undisputed that Conner has an extensive criminal history. At the age of forty-nine,

he has amassed an impressive rap sheet. However, the scope and depth of Conner’s criminal

past in no wise relieves the State of proving beyond a reasonable doubt, in a separate trial,

that Conner has twice been convicted of crimes for which he was sentenced to and served

more than one year, one of those being a violent crime.8 Miss. Code Ann. § 99-19-83 (Rev.

2007). The prosecution set out to make such proof by means of the extensive pen-pack

records outlining Conner’s criminal history, as well as Whisman’s accompanying affidavit

providing her interpretation of those records’ meaning. The State attempted to place the pen

packs and affidavit into evidence by asking the court to incorporate them into the record

through reference to the pretrial hearing on the motion to amend the indictment. At that point,




       8
       The State could have greatly eased its requirement of proof by charging Conner
under Section 99-19-81. That section requires that the State show only that Conner was
sentenced to a year on two separate crimes. For such proof, just the judgment of conviction
and sentence would have been enough. At Conner’s age, he likely would have served out the
remainder of his life under that sentence. See Miss. Code Ann. § 99-19-81 (Rev. 2007).

                                              19
the trial court determined that the State had met its burden, and that Conner should be

sentenced as an habitual offender.

¶43.   After reviewing the transcript of the sentencing hearing, I cannot see how the trial

court was able to determine beyond a reasonable doubt that Conner was an habitual offender

under Section 99-19-83 based upon the pen pack itself. The pen pack covers multiple felony

convictions, misdemeanor convictions, and parole releases and revocations over a twenty-

year period. It is extensive. In the record on appeal, it is not in chronological order. After

studying the pen pack, it is not clear to me how much time Conner served for a number of

the felonies for which he was convicted. The only way to reach a conclusion as quickly as

the trial court did, without an extensive knowledge of the Tennessee Department of

Corrections’s administrative regulations, would be to rely totally upon the affidavit provided

by Whisman.

¶44.   When the court asked Conner whether he objected to incorporating the pen pack and

affidavit into evidence, he argued that the documents were inadmissible hearsay and that they

violated his right to confront the witnesses against him.9 The judge overruled those

objections. He then conducted a brief examination of Conner’s prior convictions and

sentences.




       9
        Conner did not raise the confrontation clause issue on appeal. However, he did object
on that basis at the sentencing trial. “Under the doctrine of plain error, we can recognize
obvious error which was not properly raised by the defendant on appeal, and which affects
a defendant’s fundamental, substantive right.” Corbin v. State, 74 So. 3d 333, 337 (¶ 11)
(Miss. 2011) (quoting Smith v. State, 986 So. 2d 290, 294 (Miss. 2008) (internal quotations
omitted)).

                                             20
       Court: First and foremost, I’ll note that the documents before the Court do
       establish Mr. Conner as a Section 99-19-83 habitual offender and he will be
       sentenced as such.

       I’m looking at Mr. Conner. Here’s a conviction for a robbery with a deadly
       weapon, appears to be a second conviction, appears to be contemporaneously,
       but a second conviction for robbery with a deadly weapon. The third,
       apparently contemporaneous, robbery conviction. Appears to be a repeat of
       that same conviction, the next one. And another non-contemporaneous later in
       time, robbery conviction.

¶45.   At no point did the court specifically find that Conner had served a year or more on

any of those listed prior convictions, nor did it indicate which prior convictions alleged in the

indictment specifically were being used to enhance Conner’s sentence or for which ones the

State had met its burden of proof. It is obvious to me, after having reviewed the extensive pen

packs, that the only way to make real sense out of Conner’s conviction and sentencing

history is through the affidavit from Whisman. This constituted the real proof against Conner

in adjudicating him an habitual offender. Her absence from Conner’s sentencing hearing

deprived him of the fundamental right to confront the witnesses against him, and his sentence

as an habitual offender should be reversed.

¶46.   “[T]he admission of a testimonial statement of a witness who does not appear at trial

is barred, unless that witness is unavailable, and the defendant has had a prior opportunity

for cross-examination.” Corbin v. State, 74 So. 3d 333, 338 (¶ 13) (Miss. 2011) (emphasis

added). “[A] statement is testimonial when it is given to the police or individuals working

in connection with the police for the purpose of prosecuting the accused.” Hobgood v. State,

926 So. 2d 847, 852 (¶ 11) (Miss. 2006). The United States Supreme Court has stated that

testimonial statements can be “ex parte in-court testimony . . . material such as affidavits, .



                                               21
. . [or] statements that were made under circumstances which would lead an objective witness

reasonably to believe that the statement would be available for use at a later trial.” Crawford

v. Washington, 541 U.S. 36, 51-52, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004) (emphasis

added) (internal quotations omitted). Whisman’s affidavit, explaining the complicated and

extensive pen pack detailing Conner’s sentencing history, was unequivocally testimonial. It

explained the meaning of the attached pen-pack documents and was used to remove any

doubt as to Conner’s prior sentences and their length. Whether Whisman’s interpretation of

the pen-pack materials is right or wrong, it is, nevertheless her interpretation. Conner had

a state and federal constitutional right to cross examine her. See U.S. Const. amend. VI; Miss.

Const. art. 3, § 26.

¶47.   The State had a burden to prove its case at the sentencing hearing. It provided the

certified pen-pack documents, which the majority correctly recognized as competent

evidence. See Taylor v. State, 122 So. 3d 707, 709, 711 (¶ 11) (Miss. 2013). However, as

clearly recognized by the State, the documents are difficult to interpret without the

knowledge of someone well versed in the administrative procedures of the Tennessee

Department of Corrections. Whisman interpreted the documents in the pen pack and stated

her conclusions regarding Conner’s prior convictions and sentences. It was incumbent upon

the State to produce Whisman as a witness to ensure that she could explain her reasoning for

her conclusions, and it was incumbent upon the State to provide Conner the opportunity to

cross-examine her and challenge the validity of her conclusions. At the sentencing hearing,

the State argued that Conner should have subpoenaed Whisman if he wished to cross-

examine her. This is incorrect. The burden is on the State to prove the defendant qualifies for

                                              22
habitual-offender status; it is not on the defendant to prove that he does not. Whisman was

necessary to prove the State’s case, and the State had the burden to ensure her appearance

at the sentencing hearing. Whisman’s affidavit was the State’s strongest and clearest proof

that Conner was an habitual offender beyond a reasonable doubt. Such a testimonial

statement is barred from admission into evidence when its author does not appear at trial.

Corbin, 74 So. 3d at 338. As Whisman did not appear at trial, her affidavit should have been

denied admission into evidence. The trial court’s failure to do so was reversible error.

¶48.   As for the majority’s contention that this Court has never held that confrontation rights

exist at sentencing, I must disagree. This Court unequivocally has held that those rights exist

at the sentencing stage of a bifurcated trial.

       A jury is to decide the question of guilt and subsequently the circuit judge is
       to serve as the finder of fact in determining whether the habitual offender part
       of the indictment is established by the requisite degree of proof. The state has
       the same burden of proof as to the habitual offender portion of the indictment
       as it has on the principal charge. The defendant also has the same rights at
       both stages of trial.

Seely, 451 So. 2d at 215 (Miss. 1984) (emphasis added). Clearly, in a proceeding against an

alleged habitual offender in Mississippi, the accused’s right to confront the witnesses against

him exists at the guilt phase of his bifurcated trial, and that same right exists at sentencing.

¶49.   This Court long ago recognized that, in cases in which the State seeks to punish a

defendant as an habitual offender, “[t]here appears to be some tendency to routinely allow

the state to produce some documentation of prior offenses and for the trial court to

perfunctorily find the defendant an habitual offender. . . .” Id. The Court recognized that the

only way to adjudicate habitual-offender status was to hold “a full two-phase trial prior to



                                                 23
any finding that a defendant is an habitual offender and subject to enhanced punishment.”

Id. Here, the trial court perfunctorily examined an extensive and confusing record of

Conner’s criminal history and relied on an inadmissible, testimonial affidavit to conclude that

Conner qualified for habitual-offender status. Conner’s right to confrontation was violated,

and he was summarily adjudicated an habitual offender in a hearing resembling a trial in only

the loosest terms, as far as its recognition of the rules of evidence and the constitutional rights

of a criminal defendant are concerned. Without Whisman’s affidavit in evidence, the State

did not remove all reasonable doubt from its allegations that Conner was an habitual

offender. Accordingly, I would hold that Conner’s sentence as an habitual offender should

be reversed, and his case should be remanded for resentencing as a nonhabitual offender.

       KING, J., JOINS THIS OPINION.




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