        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-KA-00391-COA

MELVIN GRAYER                                                               APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          01/29/2018
TRIAL JUDGE:                               HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT,
                                           FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: KAYLYN HAVRILLA McCLINTON
DISTRICT ATTORNEY:                         JOEL SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 08/06/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE BARNES, C.J., GREENLEE, TINDELL AND McCARTY, JJ.

       McCARTY, J., FOR THE COURT:

¶1.    After his first trial ended in a mistrial, Melvin Grayer was convicted of burglary, and

ultimately sentenced as a habitual offender to serve fourteen years in the custody of the

Mississippi Department of Corrections. Because the court refused to give a jury instruction

on the lesser-included offense of trespass, we reverse and remand for a new trial.

                                          FACTS

¶2.    Predawn on a spring day in 2017, Officer Victor Moreno and Officer Zachary Couey

of the Gulfport Police Department responded to an alarm call at the Tabernacle Faith
Ministries Church in Gulfport. Officer Moreno’s body camera recorded his arrival and what

happened afterward. Both officers noticed a broken window on the south side of the church

with its screen on the ground nearby. They entered the church through an unlocked door

located near the broken window. Officer Moreno noticed that an alarm panel and a

thermostat had been ripped from the wall.

¶3.    Entering a kitchen area, Officer Moreno saw a man face down on the floor. The

man’s hands were underneath his body, and a flashlight was resting on the floor beside him.

The officers demanded he identify himself. The man was unresponsive. The situation

quickly escalated with the officers using a burst of shouted profanity. Still, the man remained

face down. The officers cautiously approached him, cuffed his hands behind his back, and

the man identified himself as Melvin Grayer. Officer Moreno searched him, finding an odd

assortment of objects—an identification card, multiple rolls of masking tape, batteries, a

jersey, and a bottle of liquid.

¶4.    Officer Moreno continued to search the church and noticed a room that looked as if

it had been ransacked—drawers were pulled out, items were on the floor, and another alarm

had been pulled from the wall. By this time, Pastor Anthony Thompson had arrived at the

church. The pastor testified that the room with the drawers pulled out was the usher’s room

and contained church supplies. The pastor indicated that the items usually contained in these

drawers were not necessarily missing but just not where they belonged. The pastor explained

that he had closed everything up before securing the church the night before.

¶5.    Officer Couey questioned Grayer, who denied that he was committing a burglary.



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Instead, Grayer told the officer that he had seen a man he knew named Larry Smith break the

window of the church and then run away. Grayer admitted that he did go through the broken

window into the church but that he only did it so he could have a place to sleep. Later, the

officer would come to believe that the “Larry Smith,” who Grayer saw, was actually an alias

Grayer used for himself.

                                       DISCUSSION

       I.     Trespass Instruction

¶6.    Grayer argues that the trial court erred by refusing jury instruction D-8, which was a

lesser-included-offense instruction on trespass. We agree.

¶7.    A defendant is entitled to a lesser-included-offense instruction if there is an

evidentiary basis in the record “even though the evidence that supports it is weak,

inconsistent, or of doubtful credibility.” Barnes v. State, 158 So. 3d 1127, 1136 (¶33) (Miss.

2015). Furthermore, the evidence in a particular case generally warrants granting a lesser-

included-offense instruction if a rational or reasonable jury could find the defendant not

guilty of at least one element of the principal offense charged in the indictment yet guilty of

the lesser-included offense. We view the evidence in the light most favorable to the

defendant and consider all reasonable inferences in favor of the defendant. Pierce v. State,

107 So. 3d 1011, 1014 (¶11) (Miss. Ct. App. 2012). Our standard of review “for a claim that

a defendant was entitled to a lesser-included-offense instruction is de novo, as this is a

question of law.” Id.

¶8.    Trespass is a lesser-included offense to every burglary. Jackson v. State, 90 So. 3d



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597, 606 (¶35) (Miss. 2012); but see Eldridge v. State, 232 So. 3d 767, 769-70 (¶¶9-11)

(Miss. Ct. App. 2017) (explaining the need for factual support for a trespass jury instruction).

Accordingly, if a rational or reasonable jury could have found Grayer not guilty of burglary

yet guilty of trespass, then the trespass instruction should have been given. Id.

¶9.    Considering all reasonable inferences in Grayer’s favor, we find that he presented a

viable alternative explanation of his presence in the church. Grayer told Officer Couey that

he witnessed another man break the window of the church before fleeing, after which Grayer

entered the church to sleep. The factual and legal interrelation between the two crimes was

also well understood by the State. During trial, another detective testified that a prior

conviction of Grayer for burglary supported the decision to charge Grayer with burglary,

rather than the lesser crime of trespass. Ultimately, whether the defendant entered the church

to sleep or to steal is a question only a jury can answer. Grayer is entitled to the lesser

included instruction.

¶10.   The dissent argues that the evidence of Grayer’s intent to steal was clear because

“Grayer rummaged through and opened drawers” and “[i]tems discarded by Grayer were

thrown about the church.” But even though Grayer had a series of odd items on his person,

there was no evidence that these items belonged to the church or that Grayer himself

rummaged through the drawers. Furthermore, unlike the defendant in Jackson, Grayer’s

theory of defense was that he trespassed on church property in order to sleep. Grayer

presented a defense that he was not the person who broke into the church. The jury may

reject Grayer’s theory of defense and ultimately decide that he was committing burglary, but



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that is not our concern. Our concern is simply that Grayer receive a fair trial, which includes

allowing the jury to be instructed on his theory of defense.

¶11.      The trial court also refused to give the instruction for another reason—it did not

accurately reflect the elements of trespassing. But the instruction tracks the language of

Mississippi Code Annotated section 99-17-87(1) (Rev. 2014), which states that trespass is

the “willful or malicious” intrusion “upon the real property of another.” Instruction D-8

states:

          The Court instructs the jury that if you find from the evidence that the State
          has failed to prove beyond a reasonable doubt any element of the crime of
          Burglary then you may consider the lesser charge of Trespass.

          If you are convinced from the evidence beyond a reasonable doubt that:
                 1) On or about May 25, 2017, in the First Judicial District of
                 Harrison County, Mississippi,
                 2) MELVIN GRAYER unlawfully and willfully
                 3) [t]respassed on the real or personal property of another,
          then you shall find MELVIN GRAYER “Guilty” of willful Trespass.

¶12.      Grayer was entitled to have his theory of the case—even if highly unlikely—submitted

to the jury under proper instruction of the court. Denial of this fundamental right is grounds

for reversal.

          II.    Pro Se Issues Raised in Supplemental Brief

¶13.      Grayer raises several issues in a supplemental brief: (1) the indictment was defective;

(2) the trial court erred in admitting the recording from Officer Moreno’s body camera; (3)

evidence of his prior conviction for burglary was inadmissible; (4) his habitual-offender

status was not proven; (5) he was entitled to a bifurcated sentencing hearing; and (6) the trial

court erred in denying his motions for a directed verdict and a judgment notwithstanding the


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verdict.

¶14.   Since we are reversing and remanding for a new trial, most of these issues are moot.

However, we will briefly address the issues regarding the indictment, Grayer’s habitual-

offender status, and the admission of his prior burglary conviction.

¶15.   Grayer argues that his indictment was defective because it did not include the length

of incarceration for each prior conviction. Grayer is mistaken; the indictment does include

this information. Grayer also argues that his habitual-offender status was not proven. Grayer

is again mistaken; during the sentencing hearing the State submitted a “pen pack” into

evidence, and it contained information about his prior convictions.

¶16.   Grayer further contends that the trial court erred in allowing Detective Crump to

testify about his 2012 burglary conviction. Before his first trial, Grayer had filed a motion

in limine to exclude evidence of any prior convictions. Grayer implies that the trial court

granted his motion, arguing that “despite the ruling on the motion in limine, the State

continually elicited inadmissible testimony.” But during the second trial, the trial court

indicated that it had denied the motion. Referencing its prior ruling, the trial court stated that

Detective Crump could testify about the conviction “as it related to the issue of intent and her

formulation in her mind to charge Grayer with a burglary.” We do not have the record of the

first trial, so we do not know if the trial court conducted the proper admissibility tests under

Mississippi Rules of Evidence 403 and 404(b). If this issue arises during retrial, then the trial

court should make it findings clear.

                                       CONCLUSION



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¶17.     Because the defendant should have been allowed to instruct the jury on his theory of

the case, which was the lesser-included-offense instruction of trespass, he is entitled to a new

trial.

¶18.     REVERSED AND REMANDED.

    BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL
AND McDONALD, JJ., CONCUR. LAWRENCE, J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY J. WILSON, P.J., AND C. WILSON, J.

         LAWRENCE, J., DISSENTING:

¶19.     I respectfully dissent from the reversal of the jury’s verdict, which found Grayer guilty

for the burglary of the Tabernacle Faith Ministries Church. Because there was ample

evidence of Grayer’s intent to steal therein, along with evidence of a breaking and entering,

I would find that the trial judge was correct in denying a lesser-included trespass instruction

and would affirm the verdict of the jury.

¶20.     In Jackson v. State, 90 So. 3d 597, 604 (¶30) (Miss. 2012), the Mississippi Supreme

Court affirmed a burglary conviction when the trial court in that case refused a lesser-

included trespass instruction. The facts in Jackson are very similar to the facts in this case.

In Jackson, a Hinds County Sheriff’s Department Deputy testified that he arrived at the

location of the alleged burglary and inspected the home in question. Id. at 600 (¶6). The

door to the home had been “kicked in,” and the deputy saw a footprint on one of the doors

to the home. Id. Another door had actually been broken open. Id. Upon entering the home,

the deputy notice that several drawers had been pulled out and personal property was

scattered around the home. Id. The Mississippi Supreme Court found that the jury had



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“every right to make the logical inference that Jackson broke and entered the [home] and

guest house with the intent to commit burglary.” Id. at 604 (¶30). Important to the issue of

affirming the denial of a lesser-included trespass instruction, was the fact that Jackson did

not know the victims. Id. at 607 (¶38). The court found that “no reasonable jury would have

found that Jackson’s sole crime was trespass without the intent to commit larceny.” Id. at

607 (¶40). In Jackson, the combination of not knowing the victim, clear evidence of a

breaking and entering, and clear evidence of the intent to steal therein created a unique

situation where the denial of a lesser-included trespass instruction was affirmed.1 Id. at 608

(¶42).

¶21.     The evidence in this case is remarkably similar to the evidence in Jackson. The

window to the church had been broken from the outside—evidenced by the glass found on

the inside of the church. Additionally, two alarm panels had been ripped from the walls and

numerous drawers were open and ransacked. Items discarded by Grayer were thrown about

the church. Grayer was found by the police inside the church. As in Jackson, there was clear

evidence of a breaking and entering through the broken window, along with discernible

evidence of intent to steal the personal property therein. That Grayer did not have permission

         1
        This Court has affirmed the logic in Jackson, and found that detailed evidence of
breaking accompanied with “rummaging through the victim’s effects,” was more than
enough to question “whether the evidence was so clear that no reasonable juror could have
accepted the defendant’s theory [ . . . ].” Eldridge v. State, 232 So. 3d 767, 770 (¶10) (Miss.
Ct. App. 2017). Specifically, we relied on the supreme court’s finding in Jackson that, “the
inference ordinarily to be drawn from a defendant’s unexpected breaking and entering into
the home of another person unknown to him, followed by his rummaging through the
victim’s effects and fleeing upon discovery, is that the defendant had the intent to commit
larceny.” Jackson, 90 So. 3d at 605 (¶34). In Grayer’s case, the trial court relied on those
words from the Mississippi Supreme Court.

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to be in the church, or that he knew no members of the church, was not in dispute. This,

coupled with evidence that Grayer rummaged through and opened drawers, and displaced

personal property of someone he did not know proved his intent to steal. If there is evidence

of a breaking and entering and an intent to steal, then, by definition, it cannot be a trespass.

Miss. Code Ann. §97-17-33 (Rev. 2014).

¶22.   The trial court found all of the essential elements of burglary of the church had been

proven, and no set of facts could allow a reasonable jury to find the defendant not guilty of

burglary and guilty of the lesser-included trespass. The evidence of rummaging through the

drawers of the Church proved his intent to steal—not sleep as he told the officers who found

him. In other words, the evidence before the jury was that Grayer’s intent, once he broke into

and entered the church, was to look for and steal the personal property therein and not to just

to find a place to sleep. If it were to sleep, then the drawers of the church would not have

been rummaged through.

¶23.   The trial court went into detail in its ruling to refuse the proposed lesser-included

trespass instruction:

       The court is persuaded here that similarly to Jackson, there’s been an
       unexplained breaking and entering by the accused, who is unknown to the
       victim, followed by a rummaging through his personal, or business, or church
       effects, which some of which were found at or near the person of the defendant
       when he was confronted by law enforcement. The inference that Mr. Grayer
       was merely a trespasser without other criminal intent is not reasonable under
       these facts.

The court, taking the evidence in the light most favorable to Grayer, determined that no

reasonable jury could find he was guilty of only the lesser-included offense of trespass.



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¶24.   Further, in Jackson, the supreme court held that a “trial court has considerable

discretion when instructing the jury.” Id. 90 So. 3d at 606 (¶34) (citing Utz v. Running &

Rolling Tucking Inc., 32 So. 3d 450, 474 (¶78) (Miss. 2010)). If we give trial courts

“considerable discretion” to decide which instructions are warranted by the testimony which

they have heard, those decisions should be affirmed except when the court abused its

discretion or misapplied the law. Here, we have neither. The court articulated exactly why

the facts and the law aligned this case with Jackson in explaining the decision to deny a

lesser-included trespass instruction.

¶25.   Accordingly, I would find that the trial judge’s determination to refuse the lesser-

included instruction of trespass was consistent with the Supreme Court’s holding in Jackson,

and the evidence in this case. Under these specific facts, denying a lesser-included

instruction of trespass was not an abuse of discretion. Therefore, I respectfully dissent.

       J. WILSON, P.J., AND C. WILSON, J., JOIN THIS OPINION.




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