                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2009-KA-00216-SCT

TONNIE L. THOMAS

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         02/09/2009
TRIAL JUDGE:                              HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:                WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF INDIGENT APPEALS
                                          BY: LESLIE S. LEE
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JOHN R. HENRY, JR.
DISTRICT ATTORNEY:                        WILLIE DEWAYNE RICHARDSON
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 09/23/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




      EN BANC.

      CHANDLER, JUSTICE, FOR THE COURT:

¶1.    Tonnie L. Thomas was indicted for fourth-degree arson for setting fire to a jail cell

in Greenville, Mississippi. On January 28-29, 2009, Thomas was tried in the Circuit Court

of Washington County. The jury convicted Thomas of fourth-degree arson. Thomas had a

separate sentencing hearing and was determined to be an habitual offender pursuant to

Mississippi Code Section 99-19-83. The trial court sentenced Thomas to life in the custody

of the Mississippi Department of Corrections (MDOC) without the possibility of parole or
probation. Thomas now appeals from that conviction and sentence. Finding no error, this

Court affirms the verdict and sentence.

                                           FACTS

¶2.    While detained in the City of Greenville Jail, Thomas admittedly set a fire in his jail

cell. Officer Terrence Wigfall, a patrolman, testified at Thomas’s arson trial that on March

3, 2007, he had been working as a jailer at the Greenville Police Department. Early that

morning, Wigfall and Thomas had a confrontation. Thomas was in a single-man jail cell

located in the rear of the jail. The cell had three concrete walls and one wall of bars. Both

men “exchanged words back and forth” that day. Thomas requested some medical attention

for wounds that he had received at a previous time. Officer Wigfall stated that “I told him

I wasn’t going to clean his wounds, but I would get the stuff for him to clean them himself.”

As Wigfall walked away, Thomas made a remark like “I have something for you” and

Wigfall returned to Thomas’s cell. When Wigfall went toward the cell, Thomas grabbed a

bucket, dipped it into the toilet, and threw the water in Wigfall’s face. Wigfall stated that

Thomas made a statement “[t]hat he [Thomas] would kill me if he wasn’t locked up.”

¶3.    Later that day, Howard Plant, a trusty, ran to the jailer’s office located in the front of

the jail and screamed that there was a fire. Wigfall ran to the back of the jail; saw a fire in

the first cell, which was Thomas’s cell; and ran to the front of the jail to get a fire

extinguisher. When Wigfall first arrived at the cell, he saw a blanket that had been woven

through the bars of the cell and a small fire. Because of the blanket, Wigfall could not see

inside the cell or see Thomas. Officer Donell Robinson was with Wigfall when the fire

occurred. Wigfall turned around to get an extinguisher, and by the time Officer Robinson


                                               2
returned with another extinguisher, Wigfall had put out the fire. However, the fire had

spread in the time that it took Wigfall to return with an extinguisher. During this time,

Thomas, as far as Wigfall knew, was still in his cell. Wigfall could not see Thomas because

of the smoke and because the cell was dark. The smoke drifted from Thomas’s cell into the

other cells, causing other inmates to cough from the smoke. Wigfall notified the police

captain of the fire and the fire department. The fire department arrived at the jail. Thomas

was restrained and placed in the drunk tank. On the way to the holding tank, Wigfall stated

that Thomas said, “Yeah, I set the fire. Yeah, I set the fire.” Wigfall stated that Thomas had

an angry demeanor as he was going to the tank and that he was covered in dry extinguisher

powder. The fire department then began to ventilate the area with fans. Wigfall stated that

Thomas was angry because he was denied use of the telephone and he had been denied

medical attention. At that point, Thomas set the fire.

¶4.    After Wigfall’s testimony, Thomas requested to return to jail for the remainder of the

trial. The trial court had an on-the-record discussion with Thomas and his counsel, informing

Thomas of the limitations should Thomas wish to testify in his trial. Thomas did not want

to testify, and he returned to jail. The trial court instructed the jury on its return to the

courtroom that Thomas had chosen voluntarily to absent himself from the proceedings.

¶5.    Robinson also testified and substantiated much of Wigfall’s account of the incident.

Robinson was with Wigfall when Thomas threw the toilet water into Wigfall’s face.

Robinson testified, “Yeah. [Thomas] said he was going to kill – he was going to kill

somebody. He wanted to kill an officer.” Robinson later clarified that Thomas had meant

that he wanted to kill Wigfall.


                                              3
¶6.    After the fire had been extinguished and while Thomas was being escorted to the

drunk tank, Robinson heard Thomas state, “Yeah, I wanted to see what you all made of. I

was going to kill everybody in here.” On cross-examination, Robinson admitted that his

report did not have Thomas’s statement that he wanted to kill everyone. However, Robinson

stated that Thomas did admit that “I started this fire with matches.” Robinson also stated that

Thomas had said that he set the fire to get out of his cell.

¶7.    Victor Anderson, captain of the Greenville Fire Department, testified that, prior to

verifying that the fire had been extinguished, he had waited for the police to get an inmate

out of the cell. As the police officers handcuffed and brought the inmate out of the cell, the

inmate stated “I tried to kill them, I tried to see what they were made out of.” The fire

department ventilated the jail for about twenty minutes to clear the thick smoke from the fire.

Anderson described the cell as being charred and having dry extinguisher chemicals

throughout the room. The walls of the cell were charred, and the top part of the enclosed

ceiling had damage. Anderson stated that charring could be caused only by fire. In addition,

Anderson stated that he did not know who the inmate wanted to kill and that his report did

not contain the statement made by the inmate. He also testified that he was not permitted to

assess the value of property damage to a structure.

¶8.    Officer Christopher Tharp also responded to the fire at the Greenville City Jail.

According to his testimony, when he entered the building, he noticed heavy smoke. As he

went upstairs to the jail, another officer, Officer Equoane Smith, was ahead of him. Once

he saw that the fire was extinguished, Tharp, Smith, and other jail staff escorted Thomas to

the “small tank.” Tharp stated that Thomas had said “I caught it on fire. Yeah, I caught it.


                                               4
I caught it . . . . Yeah, yeah, I caught it. I caught it on fire with matches.” After ventilation

of the jail was completed, Tharp gathered evidence of the fire. Tharp collected a blanket, a

sheet, and a Double Quick match box with no wooden matches in it. The sheet was in small

pieces because of the fire. Officer Smith also testified that he had heard Thomas state “Yeah,

I set it, yeah, I set it.” At the time, Smith did not know what Thomas was referring to in his

statement.

¶9.    Fred Jones, Jr., a jailer at the Greenville Police Department, testified about the

condition of the jail cell. He noticed that a blanket, sheet, and mattress were burned in the

cell. The mattress was thrown away, because the center was badly burned and unusable.

Later, the cell was repainted and sanitized with bleach to clean the soot.

¶10.   James Whitehead, a support-service worker at the Greenville Police Department,

proffered testimony outside the presence of the jury about the repairs to the jail cell after the

fire. In his proffer, Whitehead stated that he did not know the cost of the repairs for the

damage to the cell.

¶11.   Following his conviction and sentence, Thomas raised four issues on appeal as

follows:

       I.     Sufficiency of the Evidence and Weight of the Evidence

¶12.   Thomas asserts that the evidence was insufficient to support the jury verdict and that

the verdict was against the overwhelming weight of the evidence. Thomas claims that he

was simply trying to get attention because he wanted to make a telephone call and to get

medical attention.

       A.     Sufficiency of the evidence

                                               5
¶13.   This Court has stated that the standard of review for a directed verdict and a judgment

notwithstanding the verdict are the same. Barfield v. State, 22 So. 3d 1175, 1185 (Miss.

2009). Both challenge the legal sufficiency of the evidence. Id. On appellate review, this

Court must “consider all of the evidence – not just the evidence which supports the case for

the prosecution – in the light most favorable to the verdict” in regard to each element of the

offense. Fleming v. State, 732 So. 2d 172, 182 (Miss. 1999) (citing Cooper v. State, 639 So.

2d 1320, 1324 (Miss. 1994)). When credible evidence is consistent with guilt, it is accepted

as true, and the prosecution has the benefit of all reasonable inferences drawn from this

evidence. Cooper, 639 So. 2d at 1324. In Stewart v. State, 986 So. 2d 304, 308 (Miss.

2008), this Court stated:

       [T]he critical inquiry is whether the evidence shows “beyond a reasonable
       doubt that accused committed the act charged, and that he did so under such
       circumstances that every element of the offense existed; and where the
       evidence fails to meet this test it is insufficient to support a conviction.” Carr
       v. State, 208 So. 2d 886, 889 (Miss. 1968). The relevant question is 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. Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct.
       2781, 61 L. Ed. 2d 560 (1979).

Stewart v. State, 986 So. 2d 304, 308 (Miss. 2008) (quoting Jones v. State, 904 So. 2d 149,

153-54 (Miss. 2005)).

¶14.   The indictment stated in part:

       That TONNIE L. THOMAS, on or about 3rd Day of March, 2007, in
       Washington County, did unlawfully, willfully and feloniously and maliciously
       attempt to set fire to or attempt to burn the Greenville City Jail, located at 216
       Main Street, Greenville, Mississippi, the personal property of the City of
       Greenville. . . .




                                               6
¶15.   The State indicted Thomas for fourth-degree arson pursuant to Mississippi Code

Section 97-17-9(1). This section states:

       Any person who wilfully and maliciously attempts to set fire to or attempts to
       burn or to aid, counsel or procure the burning of any of the buildings or
       property mentioned in the foregoing sections, or who commits any act
       preliminary thereto, or in furtherance thereof, shall be guilty of arson in the
       fourth degree and upon conviction thereof be sentenced to the penitentiary for
       not less than one nor more than two years or fined not to exceed one thousand
       dollars.

Miss. Code Ann. § 97-17-9(1) (Rev. 2006).

¶16.   The evidence at trial showed that Thomas wilfully and maliciously attempted to set

fire or burn the Greenville City Jail. A fire occurred in the jailhouse cell occupied by

Thomas. Jailers responded to the fire by opening a fire extinguisher and dousing the cell

with the chemical. After the fire was extinguished, the evidence recovered from Thomas’s

cell consisted of a burned blanket, pieces of a burned sheet, a burned mattress, and an empty

matchbox, which normally held wooden matches. The cell was charred by the fire, and the

walls had to be sanitized and repainted. Upon notification of the fire, the fire department

responded, and while there was no longer a fire on their arrival, the jail had thick smoke and

had to be ventilated by fire department personnel.

¶17.    Numerous witnesses testified that Thomas had admitted to setting fire to the jail.

Furthermore, Wigfall stated that Thomas had stated that he would kill Wigfall if he was not

in jail. Officer Robinson corroborated Wigfall’s testimony and stated that Thomas wanted

to kill an officer, that being Wigfall. Robinson also heard Thomas state that he was going

to kill everyone and that he wanted to see what everyone was “made of.” Additionally, when

law-enforcement staff escorted Thomas to the “tank,” the fire captain, Anderson, stated that


                                              7
he had heard Thomas state that he had tried to kill everyone and had tried to see what they

were “made out of.”

¶18.   Thomas asserts that no reasonable juror could have found other than that he was

attempting to burn the jail because he was simply trying to get medical attention and make

a telephone call. The evidence supporting this assertion is minimal, at best. Officer Wigfall

stated that Thomas wanted attention, and when he did not get it, Thomas started the fire.

However, Wigfall did not know whether Thomas was trying to get attention or to harm

everyone. Officer Robinson testified that one of the reasons Thomas set the fire was to get

out of jail. But Robinson also said that Thomas stated “he wanted to kill everybody in there.”

Considering the evidence in the light most favorable to the State, a rational trier of fact could

have found beyond a reasonable doubt that Thomas willfully and maliciously set the fire in

an effort to harm persons at the jail. Thomas’s observations that Officer Robinson and

Captain Anderson had not included Thomas’s statement to the effect that he wanted to “kill”

others in their reports was a credibility issue to be resolved by the jury. See Nelson v. State,

10 So. 3d 898, 908 (Miss. 2009).

¶19.   When viewing the evidence in the light most favorable to the verdict, a rational trier

of fact could have found the essential elements of fourth-degree arson beyond a reasonable

doubt. This Court finds that the verdict was based on legally sufficient evidence, and

reversal is not warranted in this case.

       B.     Weight of the Evidence

¶20.   A challenge to the weight of the evidence is separate and distinct from a challenge to

the legal sufficiency of the evidence. Fleming, 732 So. 2d at 183. The party who challenges

                                               8
the weight of the evidence seeks a new trial. Barfield, 22 So. 3d at 1187. Under these

circumstances, the standard of review is an abuse of discretion, and reversal is warranted

where the trial court abused its discretion by denying a party a new trial. Id. This Court will

not disturb a verdict unless the verdict is “so contrary to the overwhelming weight of the

evidence that to allow it to stand would sanction an unconscionable injustice.” Fleming, 732

So. 2d at 183; see also Nelson, 10 So. 3d at 908. This Court weighs the evidence in the light

that is most favorable to the verdict. Jones, 904 So. 2d at 154. On issues of witness

credibility, the jury determines the weight and credibility of each witness’s testimony.

Nelson, 10 So. 3d at 905.

¶21.   Thomas asserts that the only logical conclusion the jury could have reached was that

he had set fire to the sheet and blanket for attention and not to burn the jail. Again, the

record reveals only a scintilla of evidence that Thomas merely wanted attention. The

evidence showed that Thomas had asked to use the telephone and to get medical attention.

Officer Wigfall was to provide materials for Thomas’s wounds. However, Thomas also

admitted to starting the fire with matches, to wanting to kill everyone, and to wanting to see

what everyone was “made of” or “made out of.” Consequently, the overwhelming evidence

was that Thomas had wanted to set fire to the jail to harm the persons within the jail.

Viewing the evidence in the light most favorable to the verdict, we find that the verdict was

not so contrary to the overwhelming weight of the evidence that to allow it to stand would

sanction an unconscionable injustice. The trial court did not err by denying Thomas’s motion

for new trial, and a new trial is not warranted in this case.

II.    Jury Instruction on Lesser Offense of Malicious Mischief and/or Vandalism

                                               9
¶22.   Thomas next argues that the trial court erred by refusing his lesser-offense jury

instructions on malicious mischief and/or vandalism. He contends that jury instructions D-8

and D-9 should have been given to the jury, as they represented his theory of the case.

¶23.   This Court reads jury instructions as a whole and not in isolation. Rushing v. State,

911 So. 2d 526, 537 (Miss. 2005). When the instructions are read as a whole, “if the

instructions fairly announce the law of the case and create no injustice[,]” the appellate court

will find no reversible error. Montana v. State, 822 So. 2d 954, 958 (Miss. 2002). “A

defendant is entitled to jury instructions on his theory of the case whenever there is evidence

that would support a jury's finding on that theory.” Id. at 962. However, a trial court may

refuse a jury instruction when it is an incorrect statement of law, fairly covered in other

instructions, or has no foundation in the evidence. Poole v. State, 826 So. 2d 1222, 1230

(Miss. 2002) (citing Smith v. State, 802 So. 2d 82, 88 (Miss. 2001)). Reversal is not

warranted when instructions, taken as a whole, fairly, though not perfectly, announce the law.

Rushing, 911 So. 2d at 537.

¶24.    The State indicted Thomas on fourth-degree arson pursuant to Mississippi Code

Section 97-17-9(1). This code section was set out in Issue I and will not be repeated here.

Thomas claims that either the malicious mischief or vandalism statute is applicable to his

case. The 2003 amendment to Mississippi Code Section 97-17-67, which was in effect at the

time Thomas was indicted and pertained to malicious mischief, stated:

       (1) Every person who shall maliciously or mischievously destroy, disfigure,
       or injure, or cause to be destroyed, disfigured, or injured, any property of
       another, either real or personal, shall be guilty of malicious mischief.




                                              10
       (2) If the value of the property destroyed, disfigured or injured is Five Hundred
       Dollars ($500.00) or less, it shall be a misdemeanor punishable by a fine of not
       more than One Thousand Dollars ($1,000.00) or imprisonment not exceeding
       twelve (12) months in the county jail, or both.

       (3) If the value of the property destroyed, disfigured or injured is in excess of
       Five Hundred Dollars ($500.00), it shall be a felony punishable by a fine not
       exceeding Ten Thousand Dollars ($10,000.00) or imprisonment in the
       Penitentiary not exceeding five (5) years, or both.

       (4) In all cases restitution to the victim for all damages shall be ordered. The
       value of property destroyed, disfigured or injured by the same party as part of
       a common crime against multiple victims may be aggregated together and if
       the value exceeds One Thousand Dollars ($1,000.00), shall be a felony.

       (5) For purposes of this statute, value shall be the cost of repair or replacement
       of the property damaged or destroyed.

       (6) Anyone who by any word, deed or act directly or indirectly urges, aids,
       abets, suggests or otherwise instills in the mind of another the will to so act
       shall be considered a principal in the commission of said crime and shall be
       punished in the same manner.

Miss. Code Ann. § 97-17-67 (2003). See Amended Bylaws 2003, Ch. 434, § 1, eff. July 1,

2003. The Legislature amended section 97-17-67 in 2009; however, that amendment is

inapplicable to Thomas’s argument, as the event occurred in 2007 and Thomas was indicted

in 2008, before the effective date of the 2009 amended statute. See Laws 2009, Ch. 379, §

2, eff. July 1, 2009.

¶25.   Thomas sought to have proposed jury instruction D-8 submitted to the jury. Proposed

jury instruction D-8 related to malicious mischief and stated:

              The Court instructs the Jury that should you find that the State of
       Mississippi has failed to prove to you, from the evidence, beyond a reasonable
       doubt that Tonnie Thomas is guilty of trying to burn the Greenville City Jail
       as alleged in the indictment, then you should continue your deliberations to
       decide whether Tonnie Thomas is guilty or not guilty of the misdemeanor
       crime of malicious mischief.


                                              11
               The Mississippi law states that if any person shall willfully or
       mischievously injure or destroy any of the work, materials, or furniture of any
       jail, then that person is guilty of malicious mischief. If you find that Tonnie
       Thomas is guilty of malicious mischief, then you should write your verdict on
       a separate sheet of paper, and the form of your verdict shall be:

       “We, the Jury, find Tonnie Thomas guilty of the misdemeanor crime of
       malicious mischief[.”]

              If you find that the State of Mississippi had failed to prove this crime
       of malicious mischief, then you should write your verdict on a separate piece
       of paper and the form of your verdict shall be:

       “We, the Jury, find Tonnie Thomas not guilty.”

¶26.   Thomas also sought to have a jury instruction on vandalism. Mississippi Code

Section 97-17-39 concerning vandalism states:

       If any person, by any means whatever, shall wilfully or mischievously injure
       or destroy any of the burial vaults, urns, memorials, vases, foundations, bases
       or other similar items in a cemetery, or injure or destroy any of the work,
       materials, or furniture of any courthouse or jail, or other public building, or
       schoolhouse or church, or deface any of the walls or other parts thereof, or
       shall write, or make any drawings or character, or do any other act, either on
       or in said building or the walls thereof, or shall deface or injure the trees,
       fences, pavements, or soil, on the grounds belonging thereto, or an ornamental
       or shade tree on any public road or street leading thereto, such person, upon
       conviction, for such offense, shall be punished as follows:

              (a) If the damage caused by the destruction or defacement of
              such property has a value of less than Three Hundred Dollars
              ($300.00), any person who is convicted of such offense shall be
              fined not more than One Thousand Dollars ($1,000.00) or be
              imprisoned in the county jail for not more than one (1) year, or
              both.

              (b) If the damage caused by the destruction or defacement of
              such property has a value equal to or exceeding Three Hundred
              Dollars ($300.00), any person who is convicted of such offense
              shall be fined not more than Five Thousand Dollars ($5,000.00)
              or be imprisoned in the State Penitentiary for up to five (5)
              years, or both.


                                             12
Miss. Code Ann. § 97-17-39 (Rev. 2006). Proposed jury instruction D-9, relating to

vandalism, stated:

              The Court instructs the Jury that if you find that the State of Mississippi
       has proven to you from the evidence, beyond a reasonable doubt, that Tonnie
       Thomas attempted to set fire to or burn the Greenville City Jail as alleged in
       the indictment, but you further find that the State of Mississippi has failed to
       prove to you, from the evidence, beyond a reasonable doubt, that the value of
       the damage to the property of the Greenville City Jail or the City of Greenville
       was more than Three Hundred Dollars ($300.00) then you should find Tonnie
       Thomas guilty of the misdemeanor crime of Attempted Arson of a Jail and
       you should write your verdict on a separate sheet of paper and the form of your
       verdict shall be:

       “We, the Jury, find the Defendant guilty of the Misdemeanor Crime of
       Attempted Arson.”

¶27.   The trial court refused both instructions because there was no evidence of the value

of the destroyed items. Defense counsel called Jones, a jailer, who testified that the mattress,

blanket, and sheet were destroyed in the fire. The cell walls had to be cleaned, sanitized, and

repainted after the fire. Whitehead, another jailer, proffered testimony about the repairs to

the cell following the fire. However, Whitehead could not give a dollar amount for the

repairs to the cell. When refusing the instructions, the trial court reasoned, in part:

       Well, I checked my notes and just to make sure that it’s my understanding that
       when a lesser offense or a lesser-included offense, jury instruction [is] offered,
       that there has to be some way a jury can rationally determine, find that offense.
       And under the state of their testimony, I don’t believe there is any way in the
       world that a jury can rationally find guilty or not guilty on either one of those,
       defacing city jail or malicious mischief, since we don’t have any value.

¶28.   Thomas argues that enough circumstantial evidence and testimony about the damage

had been presented for the jury to infer the misdemeanor penalty for the cost of repairing the

items to be less than $500 for malicious mischief and less than $300 for vandalism. He



                                              13
claims that the malicious mischief and vandalism statutes do not require proof of value,

rather the value only dictates whether the crime is a misdemeanor or felony. Thus, Thomas

claims that he was entitled to a lesser-offense instruction, because the jury could have

determined that Thomas was not guilty of attempting to burn the jail but guilty of a

misdemeanor crime of either malicious mischief or vandalism based on the respective $500

or $300 threshold amount. An accused is entitled to a lesser-offense instruction only where

there is an evidentiary basis in the record. McGowan v. State, 541 So. 2d 1027, 1028 (Miss.

1989).

¶29.     Thomas argues that he was entitled to a lesser-offense instruction because there was

an evidentiary basis for it in the record. This Court has stated that the evidentiary standard

for lesser-offense instructions is the same as that for lesser-included-offense instructions.

Dampier v. State, 973 So. 2d 221, 231 (Miss. 2008). “If a lesser offense, as opposed to a

lesser-included offense, arises from the same operative facts and has an evidentiary basis, we

have held the defendant is entitled to an instruction for the lesser charge the same as if it were

a lesser-included charge.” Moore v. State, 799 So. 2d 89, 91 (Miss. 2001) (citing Griffin v.

State, 533 So. 2d 444, 447-48 (Miss. 1988)). Further, a lesser-included offense “is one in

which all its essential ingredients are contained in the offense for which the accused is

indicted, but not all of the essential ingredients of the indicted offense. An accused could not

be guilty of the offense for which he is indicted without at the same time being guilty of the

lesser-included offense.” Brazzle v. State, 13 So. 3d 810, 815 (Miss. 2009) (quoting Porter

v. State, 616 So. 2d 899, 909-10 (Miss. 1993) (Hawkins, J., specially concurring)). To be

entitled to a lesser-included-offense instruction, “[i]n short, the defendant must point to

                                               14
evidence in the record from which a jury reasonably could find the defendant not guilty of

the crime with which the defendant is charged and at the same time find the defendant guilty

of the ‘lesser offense.’” Id. at 816 (citing Dampier v. State, 973 So. 2d 221, 231 (Miss.

2008)).

¶30.   The distinction between a lesser-included offense and a lesser offense (or lesser-

related offense) additionally has been expressed by this Court as follows:

       Again we emphasize that it is always important to clearly delineate the
       difference between a lesser non-included offense and a lesser included offense.
       A lesser included offense requires that the elements of the greater offense
       contain the elements of the lesser offense.

Green v. State, 884 So. 2d 733, 737 (Miss. 2004). “On the other hand, a lesser non-included

offense applies where there is evidentiary support that a defendant is guilty of a lesser charge

arising from the same nucleus of operative facts.” Id. (citing Mease v. State, 539 So. 2d

1324, 1329 (Miss. 1989)).

¶31.   We find no error in the refusal of jury instructions D-8 and D-9. The instructions

were incorrect statements of law, and they lacked an evidentiary basis in the record.

McGowan, 541 So. 2d at 1028. The record contains no evidence of the monetary value of

the items destroyed or damage sustained in the jail by the fire. Indeed, Thomas contends that

the elements of malicious mischief and vandalism do not require proof of value. We

disagree. A review of both statutes, Sections 97-17-39 and 97-17-67, shows that both would

require proof of monetary value in order to gain a conviction. See Miss. Code §§ 97-17-39,

97-17-67 (Rev. 2006). Notwithstanding this, the statute under which the State indicted

Thomas, Section 97-17-9(1), has no required element of monetary value in order to convict.



                                              15
See Miss. Code § 97-17-9(1) (Rev. 2006). Indeed, the statute provides that “[a]ny person

who wilfully and maliciously attempts to set fire to or attempts to burn or to aid, counsel or

procure the burning of any of the buildings or property mentioned in the foregoing sections

. . . .” shall be guilty of arson in the fourth degree. There is no value component whatsoever

to the essential element of fourth-degree arson, nor is there a distinction between a felony or

misdemeanor violation as in the malicious mischief and vandalism statutes. The crime of

fourth-degree arson results only in a felony conviction.

¶32.   Even assuming arguendo that Thomas was entitled to a lesser-nonincluded-offense

instruction, the trial court properly excluded D-8 and D-9 as incorrect statements of law.

Instruction D-8 does not contain the essential monetary or value element for malicious

mischief and would have peremptorily instructed the jury that the crime committed was a

misdemeanor. Thomas was not entitled to such an instruction. Instruction D-9 provided for

a misdemeanor crime of attempted arson, which incorporates language from the vandalism

statute, however, there is no misdemeanor crime of attempted arson.

¶33.   Thomas also argues that the trial court placed the burden of proof on the defense to

prove the monetary value of the destroyed items and damage to the jail in order to justify a

lesser-offense instruction. We disagree. The trial court stated:

       . . . So I’m not trying – I’m not shifting the burden of proof to the defense.
       I’m just saying that if there is nothing in the evidence to sustain the jury
       instructions, how can I grant – I guess that’s what I’m saying.

Further, Thomas cites a number of Court of Appeals cases for the proposition that juries are

permitted to infer the value of items based on evidence presented at trial. However, the cases

cited by Thomas are distinguishable from the facts before this Court. At his trial, no


                                              16
evidence was solicited as to the value of the items destroyed or the costs of repairs to the jail

cell. In the cases Thomas cites for authority, the evidence showed a minimum of a

quantifiable value of the goods either at the time of purchase or cost of replacement. See

Williams v. State, 994 So. 2d 821, 825 (Miss. Ct. App. 2008) (Court of Appeals affirmed

conviction for grand larceny where witness stated that the cost of the stolen items was

approximately $500 to $550 and the court found that jury could reasonably infer that the rest

of the tools had fair market value greater than $100, for a total of more than $250, the

statutory minimum at that time); Ezell v. State, 956 So. 2d 315, 322 (Miss. Ct. App. 2006)

(Court of Appeals affirmed two convictions for receiving stolen property in excess of $500,

finding that evidence of value of motorcycle and trailer was based on purchase prices of

$5,600 and $500 plus another trailer in trade, respectively, and finding that a “reasonable jury

could have inferred that the motorcycle and trailer had market values in excess of $500 at the

times of their knowing possession by Ezell”); Smith v. State, 881 So. 2d 908, 910-11 (Miss.

Ct. App. 2004) (Court of Appeals affirmed a grand-larceny conviction finding that the

prosecution did not present direct testimony on current value, however a witness “testified

that he paid between three and four thousand dollars for the rims. Although this was not

direct testimony of the value of the rims, we find that it circumstantially provided a basis

from which the jury could infer that the rims were worth at least $250 because of the amount

of the purchase price”).

¶34.   Thomas adds that the State never refuted that the cost of the repairs was less than

$500. Thomas’s argument on this point fails, because the plain language of the statute under




                                               17
which he was indicted, Section 97-17-9(1), as previously quoted, has no element of value.

Thus, the State had no obligation to prove the value of repairs or destroyed items.

¶35.   As further support for his position, Thomas also contends that the State admitted in

the motion to dismiss that the second indictment against him, pursuant to Section 97-19-7,

was dismissed for an inability to prove the items destroyed had a value of more than twenty-

five dollars. The prosecution explained that the charge had been dismissed because the

indictment did not contain all the proof. Regardless of the reason for the dismissal of the

indictment, the charge against Thomas, fourth-degree arson, has no value component. In

other words, the value of destroyed property is not an element of arson in the fourth degree.

¶36.   Thomas also claims that the trial court failed to consider the disparity in punishment

between the principle charge, arson, a felony, and the lesser offense, a misdemeanor,

especially in light of Thomas’s eligibility as an habitual offender. See Taylor v. State, 577

So. 2d 381, 383 (Miss. 1991). However, as previously stated, the felony crime of arson in

the fourth degree has no element of value, whereas both the felony and misdemeanor crimes

of malicious mischief and vandalism have value as an element. No evidence was presented

at trial concerning the value of the destroyed items or the repairs. This Court has held that

a trial judge may refuse instructions where they are without proper foundation in the

evidence of the case. Young, 891 So. 2d at 819-20. The trial court did not err by excluding

jury instructions D-8 and D-9.

       III.   Speedy Trial

¶37.   Thomas argues that the State violated his right to speedy trial and that the charges

against him should be dismissed.

                                             18
¶38.   A criminal defendant’s right to a speedy trial is guaranteed by the Sixth and

Fourteenth Amendments to the United States Constitution. Hersick v. State, 904 So. 2d 116,

121 (Miss. 2004). Article 3, Section 26 of the Mississippi Constitution provides a criminal

defendant with a right to a speedy trial. Id.; Price v. State, 898 So. 2d 641, 647 (Miss. 2005).

“Mississippi has also codified speedy trial guarantees to further protect the rights of

defendants.” Price, 898 So. 2d at 647; see Miss. Code Ann. § 99-17-1 (Rev. 2007).1

¶39.   A claim for speedy trial turns on a question of fact: whether good cause was shown

for the delay of the trial. Flora v. State, 925 So. 2d 797, 814 (Miss. 2006). “Under this

Court’s standard of review, this Court will uphold a decision based on substantial, credible

evidence.” DeLoach v. State, 722 So. 2d 512, 516 (Miss. 1998); see also Flora v. State, 925

So. 2d 797, 814 (Miss. 2006); Price, 898 So. 2d at 647. Ordinarily, this Court will reverse

when there is no probative evidence to support a finding of good cause by the trial court.

Price, 898 So. 2d at 647. With speedy-trial issues, the prosecution bears the burden of

showing good cause and bears the risk of nonpersuasion. Id. (citing DeLoach, 722 So. 2d

at 516).

¶40.   The sole remedy for a constitutional speedy-trial violation, should this Court find one,

is reversal of the trial court’s decision and dismissal of charges against the defendant. Price,

898 So. 2d at 647.

¶41.   In Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the

United States Supreme Court provided a balancing test to assess whether a defendant’s Sixth


       1
          Thomas asserts his constitutional right to speedy trial. He does not assert a speedy-
trial issue pursuant to statute. See Miss. Code Ann. § 99-17-1 (Rev. 2007).

                                              19
Amendment right to a speedy trial has been violated. The four-prong test considers: (1)

length of delay, (2) reason for the delay, (3) defendant’s assertion of his right to speedy trial,

and (4) prejudice to the defendant. Barker, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101

(1972).

¶42.   When analyzing the Barker factors by conducting a balancing test, no magic or

exacting application procedures are in place. Price, 898 So. 2d at 648. Rather, the quality

of the evidence dictates the weight assessed to each factor and “in the absence of evidence,

identification of the party with the risk of non-persuasion.”          Id.   No factor alone is

dispositive, especially given that the totality of the circumstances are considered in each case.

Id.; Poole v. State, 826 So. 2d 1222, 1228-1229 (Miss. 2002). Additionally, the balancing

process is not restricted to the Barker factors to the exclusion of other relevant

circumstances. Jefferson v. State, 818 So. 2d 1099, 1106 (Miss. 2002).

       Length of delay

¶43.   When a constitutional speedy-trial claim is at issue, the delay is calculated from the

date of the defendant’s arrest. Fleming, 604 So. 2d at 299. This Court has held that a delay

of eight months is presumptively prejudicial. Smith v. State, 550 So. 2d 406, 408 (Miss.

1989). This delay triggers the balancing of the other three Barker factors. Hersick, 904 So.

2d at 121; Price, 898 So. 2d at 647. Only when a delay is presumptively prejudicial will this

Court engage in further analysis pursuant to Barker. Hersick, 904 So. 2d at 121 (citing

Barker, 407 U.S. at 530).




                                               20
¶44.   Here, Thomas was arrested on March 3, 2007. His trial began on January 27, 2009.

The length of the delay between his arrest and his trial was 696 days.2 Except for one brief

period when Thomas requested a continuance, the majority of the delay was attributable to

the State.3 Notwithstanding the one request for a continuance by Thomas, his trial was

delayed well beyond the eight-month period considered presumptively prejudicial for issues

of speedy trial, thus requiring additional analysis. Poole, 826 So. 2d at 1229 (citing Smith,

550 So. 2d at 408). The trial court determined that this factor weighed against the State.

       Reason for delay

¶45.   Any delay caused by a particular party will be assessed against that party. Poole, 826

So. 2d at 1229. Because the State bears the burden of providing a speedy trial, it must show

either a delay caused by the defendant or good cause for the delay. Hersick, 904 So. 2d at

121. To the extent that the State demonstrates that the defendant caused the delay or that the

State had no control over the delay, this factor does not weigh against it. Fleming, 604 So.

2d at 299. When the State is responsible for the delay, this factor weighs against it. Id. “[I]f

       2
           The applicable timeline for Thomas was as follows:

               March 3, 2007            arrest
               April 2007               first indictment
               September 2007           second indictment
               June 13, 2008            third indictment
               June 26, 2008            speedy trial demand
               September 29, 2008 motion to dismiss
               October 8, 2008          motion for continuance filed by
                                        Thomas
               November 4, 2008         continuance order granted
               January 27, 2009         trial
       3
         Defense counsel acknowledged a thirty-five to forty day delay on Thomas’s part
due to defense counsel’s recent employment as Thomas’s attorney.

                                              21
the state deliberately causes a delay, the impediment weighs ‘heavily’ against the state” and

“since the state bears the risk of nonpersuasion, even a ‘neutral’ reason for delay must weigh

against the state, albeit lightly.” Id.

¶46.   A hearing was conducted prior to trial on the speedy-trial issue. Apart from one

request for a continuance for a brief thirty-five to forty day period, no delay was attributable

to Thomas. The State explained that the delay occurred because of the need to reindict

Thomas. The State indicted Thomas three times for the fire under different statutes.

Initially, Thomas was indicted in April 2007 with arson. At the time that Thomas set fire to

the jail, he was being detained on a murder charge and an unrelated arson charge. Due to

evidentiary concerns, the State reindicted Thomas for third-degree arson in September 2007,

and later reindicted him in June 2008 for fourth-degree arson. During this time period,

Thomas was incarcerated in the jail on other, unrelated charges and was tried and convicted

of those other charges prior to the trial at issue,on fourth-degree arson. Also while detained

in the jail, Thomas later was charged with assault against a law-enforcement officer. The

State attributed the delay to negligence and not to an intentional delay on its part. The trial

court determined that the State showed good cause, because it attempted to proceed in a

timely manner, however, it had difficultly in conforming the indictment to the evidence. The

trial court did not weigh this factor against the State.

       Thomas’s assertion of his right to speedy trial

¶47.   “A defendant ‘has no duty to bring himself to trial . . . .’ Still he gains far more points

under this prong of the Barker test where he has demanded a speedy trial.” Jefferson, 818

So. 2d at 1107-1108 (quoting Brengettcy v. State, 794 So. 2d 987, 994 (Miss. 2001)).

                                               22
¶48.   Thomas asserted his right to speedy trial on June 26, 2008, shortly after the third and

final indictment in his case. He subsequently filed a motion to dismiss, raising the speedy-

trial issue through counsel on September 29, 2008. The trial court weighed this factor in

favor of Thomas.

       Prejudice to Thomas

¶49.   When analyzing the prejudice prong under Barker, this Court considers: (1) the

“actual prejudice to the accused in defending his case, and (2) interference with the

defendant's liberty.” Brengettcy, 794 So. 2d at 994 (quoting Perry v. State, 637 So. 2d 871,

876 (Miss. 1994)). This Court considers three interests when analyzing whether a defendant

has suffered prejudice for a lengthy delay in the speedy-trial context: “(1) preventing

‘oppressive pretrial incarceration;’ (2) minimizing anxiety and concern of the accused; and

(3) limiting the possibility that the defense will be impaired.” Id. (citing Barker, 407 U.S.

at 532). This Court has found no speedy-trial violation where a defendant was not tried, in

part, due to the fact that he was being tried for other crimes. Saucier v. State, 259 So. 2d

484, 486 (Miss. 1972); see also Brengettcy, 794 So. 2d at 994-995 (“Brengettcy indicates

that, while awaiting trial, he was already incarcerated on an unrelated charge. Obviously, if

Brengettcy was already in jail on unrelated charges, any prejudice that could have arisen

merely from interference with his liberty is alleviated.”)

¶50.   Thomas argues that one of the three prejudice factors weighs in his favor. This factor

is the minimization of anxiety and concern of the accused. Because Thomas was facing the

possibility of a life sentence without parole, he claims that the delay in trial caused anxiety

and concern, and the trial court erred by finding for the State on this Barker factor.

                                              23
¶51.   During the hearing on the motion to dismiss, the prosecution made the trial court

aware that, when Thomas was arrested on March 3, 2007, for setting fire to the jail, he

already was being detained in the Greenville City Jail on separate charges of murder and

arson. When Thomas was arrested on the murder and arson charges, the trial court set a

$200,000 bond on those charges, however, Thomas did not post bond. While incarcerated

on the murder and unrelated arson charges, Thomas was charged with fourth-degree arson,

now subject to this Court’s analysis, and a later charge of assault on a law-enforcement

officer. Therefore, it was the State’s position that Thomas never had any restraints on his

liberty due to the fourth-degree-arson charge because he already was being held on other

charges at the time of the fourth-degree arson, for which he never posted bond. In other

words, Thomas was sitting in jail on other charges, regardless of the fourth-degree-arson

charge. In addition, Thomas was tried and convicted on the murder charge and sentenced

to life in prison without the possibility of parole while awaiting trial on the fourth-degree-

arson charge. Furthermore, the State argues that it was difficult, if not impossible, to

differentiate any anxiety that Thomas may have had concerning the delay in his fourth-

degree-arson charge and possible life sentence without parole because he was facing a

murder charge at the same time. Incidently, the State pointed out that Thomas was convicted

of murder and sentenced to life imprisonment without the possibility of parole on the murder

charge in the intervening time period.

¶52.   Thomas did not argue, and there was no showing that he suffered any prejudice in

being able to defend his case. Indeed, the witnesses were mainly jail staff, law-enforcement




                                             24
officers, and fire-department personnel. There was no claim that Thomas was unable to

defend his case. The trial court weighed this factor in favor of the State.

¶53.   The trial court did not err iny denying Thomas’s motion to dismiss based on an

alleged speedy-trial violation. This Court looks at the totality of the circumstances, and no

factor alone is dispositive. Price, 898 So. 2d at 648; Poole v. State, 826 So. 2d 1222,

1228-1229 (Miss. 2002). Further, the balancing process is not restricted to the Barker

factors to the exclusion of other relevant circumstances. Jefferson, 818 So. 2d at 1106.

Thomas’s trial was delayed more than twenty-two months from the time of arrest in March

2007 until the trial in January 2009. This factor, length of delay, was in favor of Thomas

because the delay was well beyond the eight-month period, which demonstrates a

presumptive delay. Additionally, the reason for delay also weighs in favor of Thomas,

although lightly. This Court has stated that even a neutral reason weighs against the State,

although it is lightly weighed. Fleming, 604 So. 2d at 299. While the State did not

intentionally delay Thomas’s trial, it admittedly had trouble indicting Thomas correctly.

Therefore, the trial court erred by finding this factor in favor of the State. As for the third

factor, the assertion of the right to speedy trial, the trial court correctly determined that his

factor weighed in favor of Thomas. The trial court correctly determined that the fourth

Barker factor, prejudice to Thomas, weighed in favor of the State. Due to the unusual

circumstances surrounding Thomas’s incarceration, including (1) his detention and failure

to post bond on other charges at the time of his fourth-degree-arson arrest, and (2) his

subsequent trial and conviction of life without the possibility of parole on his murder charge

while awaiting trial on the fourth-degree-arson charge, Thomas suffered no prejudice to his

                                               25
liberty. He also suffered no prejudice to his criminal defense. While Thomas contended that

he suffered prejudice in the form of anxiety and concern for his potential conviction and

sentence, pursuant to the second prejudice factor, we agree with the State that it is nearly

impossible to discern whether Thomas had anxiety for his fourth-degree-arson charge when

he also faced murder charges. Thus, the trial court correctly found that the fourth factor

weighed in favor of the State.

¶54.     Considering the totality of the circumstances, this Court finds that no speedy-trial

violation occurred. While Thomas had a presumptive delay in his trial that, at a minimum,

was due to the State re-indicting Thomas several times, the State had no deliberate reason to

cause the delay. Further, Thomas timely asserted his right to speedy trial. However, Thomas

was not prejudiced either by actual prejudice or by loss of liberty by the delay. Therefore,

the trial court did not err finding no violation of Thomas’s Sixth Amendment right to speedy

trial.

         IV.    Disproportionality

¶55.      Thomas asserts that his sentence of life without parole as an habitual offender was

grossly disproportionate to his crime. He claims that the trial court’s sentence of life without

parole for essentially what he characterizes as a misdemeanor crime of burning a sheet,

blanket, and mattress, was cruel and unusual punishment pursuant to the Eighth Amendment

of the Constitution of the United States. He also argues that the trial court erred by finding

no inference of gross disproportionality, and thereby failing to conduct a proportionality

analysis.




                                              26
¶56.   “Sentencing is within the complete discretion of the trial court and not subject to

appellate review if it is within the limits prescribed by statute.” Isom v. State, 928 So. 2d

840, 850 (Miss. 2006) (quoting Wall v. State, 718 So. 2d 1107, 1114 (Miss. 1998)). The

general rule in Mississippi is that this Court will not disturb a sentence that does not exceed

the maximum term allowed by the statute. Id. (citing Fleming v. State, 604 So. 2d 280, 302

(Miss.1992)). “[T]his Court will review a sentence that allegedly imposed a penalty that is

disproportionate to the crime.” Id.

¶57.   In Solem v Helm, the United States Supreme Court provided the following

three-prong test for an Eighth Amendment proportionality analysis:

       (I) the gravity of the offense and the harshness of the penalty;
       (ii) the sentence imposed on other criminals in the same jurisdiction; and
       (iii) the sentences imposed for commission of the same crime in other
       jurisdictions.

Nichols v. State, 826 So. 2d at 1290 (citing Solem v. Helm, 463 U.S. 277, 290-92, 103 S. Ct.

3001, 3010-11, 77 L. Ed. 2d 637 (1983)).

¶58.   “We review sentences in light of the factors articulated by the United States Supreme

Court in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983), only when

a threshold comparison of the crime committed to the sentence imposed leads to an inference

of ‘gross disproportionality.’” Johnson v. State, 950 So. 2d 178, 183 (Miss. 2007) (citing

Nichols v. State, 826 So. 2d 1288, 1290 (Miss. 2002)); see also Hughes v. State, 983 So. 2d

270, 284 (Miss. 2008).

¶59.   In Sumrell v. State, 972 So. 2d 572, 576 (Miss. 2008) (quoting Edwards v. State, 800

So. 2d 454, 469 (Miss. 2001)), this Court stated:



                                              27
       This Court noted, however, that Solem was overruled in Harmelin v.
       Michigan, 501 U.S. 957, 965-66, 111 S. Ct. 2680, 2686-87, 115 L. Ed. 2d 836
       (1991) "to the extent that it found a guarantee of proportionality in the Eighth
       Amendment. In light of Harmelin, it appears that Solem is to apply only when
       a threshold comparison of the crime committed to the sentence imposed leads
       to an inference of 'gross disproportionality.'" Hoops v. State, 681 So. 2d at
       538 (citations omitted). The appellate courts will not apply the three-prong
       disproportionality test when there is a lack of this initial showing. Young v.
       State, 731 So. 2d 1120, 1125 (Miss. 1999); Williams v. State, 784 So. 2d 230,
       236 (Miss. Ct. App. 2000).

Sumrell, 972 So. 2d at 576 (quoting Edwards, 800 So. 2d at 469). Generally, sentences that

do not exceed the maximum term allowed by statute will not be considered grossly

disproportionate and will not be disturbed on appeal. Mingo v. State, 944 So. 2d 18, 34

(Miss. 2006) (citing Fleming v. State, 604 So. 2d 280, 302-03 (Miss. 1992)).

¶60.   Thomas was indicted pursuant to Mississippi Code Section 97-17-9(1), which

provides:

       Any person who wilfully and maliciously attempts to set fire to or attempts to
       burn or to aid, counsel or procure the burning of any of the buildings or
       property mentioned in the foregoing sections, or who commits any act
       preliminary thereto, or in furtherance thereof, shall be guilty of arson in the
       fourth degree and upon conviction thereof be sentenced to the penitentiary for
       not less than one nor more than two years or fined not to exceed one thousand
       dollars.

Miss. Code Ann. § 97-17-9(1) (Rev. 2006). The maximum sentence for fourth-degree arson

is two years. Miss. Code Ann. § 97-17-9(1). However, Thomas also was sentenced as an

habitual offender pursuant to Section 99-19-83, which provides:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to and served separate terms of one (1) year or more in
       any state and/or federal penal institution, whether in this state or elsewhere,
       and where any one (1) of such felonies shall have been a crime of violence

                                             28
       shall be sentenced to life imprisonment, and such sentence shall not be reduced
       or suspended nor shall such person be eligible for parole or probation.

Miss. Code Ann. § 99-19-83 (Rev. 2007). At the sentencing hearing, the evidence presented

showed that Thomas met the criteria to be determined to be an habitual offender. Gloria

Gibbs, a correctional records technician with the MDOC, testified about Thomas’s prior

felony convictions. The trial court sentencing order stated, in part:

       Having heard the evidence presented and the argument of counsel this Court
       hereby finds that the Defendant, TONNIE L. THOMAS, was convicted on or
       about October 13, 1992, in Washington County Cause no. 22,679 for the
       crimes of Count II - Simple Assault on a Law Enforcement Officer and
       sentenced to five (5) years, for Count III - Aggravated Assault and sentenced
       to ten (10) years, and for Count IV - Escape and was sentenced to one (1) year;
       and on or about May 3, 2001, in Washington County Cause No. CR-99-00798
       for the crime of Possession of a [F]irearm by a Convicted Felon and sentenced
       to six (6) months; and on or about August 9, 2001, in Washington County
       Cause No. CR-2001-200 for the Crime of Count II - Possession of a Firearm
       by a Felon and sentenced to three (3) years; and on or about November 15,
       2002, in Greene County Cause No. 21-01-10-15 for the Crime of Simple
       Assault on a Peace Officer and sentenced to two (2) years; and said charges
       being separately brought and arising out of separate incidents at different times
       and that this Defendant has been sentenced to and has serve[d] separate terms
       of one (1) or more years in a state penal institution, and finding that
       Aggravated Assault is a violent crime. As such, this Court hereby finds that
       TONNIE L. THOMAS is in fact an habitual offender.

At the sentencing hearing, the testimony showed that in 1992, Thomas was sentenced to ten

years for aggravated assault, five years for simple assault, and one year for escape. He

served a total of five years and 298 days for those three crimes. Thomas also was sentenced

for two convictions as a felon in possession of firearms and one conviction of simple assault

of a police officer. He was in custody for those crimes for five years and six months.

¶61.   Based on Thomas’s extensive criminal background and at least one prior violent

felony of aggravated assault, the trial court sentenced Thomas to life in prison without parole.


                                              29
However, Thomas had a long history of being a repeat offender. In Ewing v. California,

538 U.S. 11, 29, 123 S. Ct. 1179, 1189-90, 155 L. Ed. 2d 108 (2003), the United States

Supreme Court upheld consideration of the current crime with regard to prior criminal

behavior when determining proper sentencing for the current criminal conviction and stated

that “[i]n weighing the gravity of Ewing's offense, we must place on the scales not only his

current felony, but also his long history of felony recidivism.” The Ewing Court also held

that “Ewing's sentence is justified by the State's public-safety interest in incapacitating and

deterring recidivist felons, and amply supported by his own long, serious criminal record.”

Ewing v. California, 538 U.S. 11, 29-30, 123 S. Ct. 1179, 1190, 155 L. Ed. 2d 108 (2003).

Thomas’s sentence did not exceed the maximum term allowed by statute and thus was not

grossly disproportionate. Mingo v. State, 944 So. 2d 18, 34 (Miss. 2006) (citing Fleming

v. State, 604 So. 2d 280, 302-03 (Miss. 1992)); Isom v. State, 928 So. 2d at 850. The trial

court properly considered both Thomas’s past criminal history and his current conviction of

fourth-degree arson during sentencing. See Ewing, 538 U.S. at 29-30, 123 S. Ct. at 1190;

Miles v. State, 864 So. 2d 963, 969 (Miss. Ct. App. 2003). Because Thomas made no initial

showing that his sentence was grossly disproportionate to the crime, the trial court did not

err by conducting no further Solem analysis. Solem v. Helm, 463 U.S. at 290-92, 103 S. Ct.

at 3010-11. We find no merit to Thomas's argument that his sentence is violative of the

Eighth Amendment's ban on cruel and unusual punishment.

                                      CONCLUSION

¶62.   For the reasons stated, this Court affirms the jury verdict and sentencing of the Circuit

Court of Washington County.

                                              30
¶63. CONVICTION OF FOURTH-DEGREE ARSON AND SENTENCE OF LIFE
IMPRISONMENT, AS AN HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT THE POSSIBILITY
OF PAROLE OR PROBATION, AFFIRMED.

     WALLER, C.J., CARLSON, P.J., RANDOLPH, LAMAR AND PIERCE, JJ.,
CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY GRAVES, P.J., AND DICKINSON, J.

       KITCHENS, JUSTICE, DISSENTING:

¶64.   Without citation to any authority, the majority holds that proof regarding the value of

the damaged or destroyed property was required in order for Thomas to have been entitled

to a jury instruction regarding malicious mischief. This is contrary to our established case

law; and, because the denial of Thomas’s instruction denied him due process of law, I

respectfully dissent.

¶65.   “From the very term ‘property’ the law infers some value.” Ill. Cent. R.R. Co. v.

State, 94 Miss. 759, 48 So. 561, 562 (1909). Thus, when a defendant is charged with a crime

against property, and the value of the damage to that property dictates whether the offense

is a misdemeanor or a felony, it is not necessary for the State to have proven the value of the

damage in support of the lesser offense if the evidence is sufficient to show that property

suffered some damage. Henley v. State, 729 So. 2d 232, 238-39 (Miss. 1998). See also

Williams v. State, 763 So. 2d 186, 189 (Miss. Ct. App. 2000); Rogers v. State, 920 So. 2d

550, 551-52 (Miss. Ct. App. 2006).

¶66.   In Henley, the defendant was convicted of grand larceny for stealing a truck in

violation of Mississippi Code Section 97-17-41 (1994), which provided, “[e]very person who

shall be convicted of taking and carrying away, feloniously, the personal property of another,



                                              31
of the value of Two Hundred Fifty Dollars ($250.00) or more, shall be guilty of grand

larceny.” Henley, 729 So. 2d at 238. Henley appealed on the ground that there was a lack

of evidence to establish the value of the truck, and therefore, his conviction for grand larceny

could not stand. Id. We agreed and found there was “simply no evidence in the record as

to the value of the truck.” But because Henley admitted stealing the truck, there was

sufficient evidence to support a conviction of petit larceny under Mississippi Code Section

97-17-43 (1994), which provided, in pertinent part, “[i]f any person shall feloniously take,

steal and carry away any personal property of another under the value of Two Hundred Fifty

Dollars ($250.00), he shall be guilty of petit larceny.” Id. (emphasis added). In reaching this

conclusion, we found that “[w]ithout any evidence as to the value of the truck, the State has

failed to meet its burden of proof as to one of the elements of grand larceny and conviction

of same cannot be upheld.” Id. at 238 (emphasis added). Even though the petit larceny

statute contained a value element as well, we did not require the State to prove the value

because Henley admitted stealing the truck. Id. at 239. In effect, this Court recognized a

presumption that all personal property has some value. Hence, all that was required for the

lesser offense was proof that the personalty was stolen by the accused. Id.

¶67.   Here, the lower court’s conclusion that there was not enough evidence to show that

the value of the fire damage was below $500 is a misinterpretation of applicable law. In

Henley, the State was not required to prove that the value of the truck was under $250, only

that the truck was stolen from its owner by the accused. Thus, in crimes against property

with a value-based dividing point between misdemeanor and felony, when no value is

proven, a felony conviction is precluded. But, if all other elements of the crime are

                                              32
sufficiently proven, the accused may be convicted of a lesser-included, or lesser-related,

misdemeanor.

¶68.   Thomas sought a jury instruction on misdemeanor malicious mischief. The malicious

mischief statute in effect at the time stated in part, “(1) Every person who shall maliciously

or mischievously destroy, disfigure, or injure . . . any property of another . . . shall be guilty

of malicious mischief. (2) If the value of the property destroyed . . . is Five Hundred Dollars

($500.00) or less, it shall be a misdemeanor.”         Miss. Code. Ann. § 97-17-67 (2003)

(emphasis added). Contrary to the majority’s conclusion otherwise, under this statute, a

person need only maliciously or mischievously cause damage to another’s property to be

convicted of misdemeanor malicious mischief. Because it is clear from the evidence that the

fire did cause some property damage, there was, in this case, a sufficient evidentiary basis

for the trial court to have granted Thomas’s request for a lesser-related offense instruction

on misdemeanor malicious mischief.

¶69.   Thomas sought to give the jury the option of convicting him of misdemeanor

malicious mischief, basing his defense on the theory that he did not intend to burn the jail

building, but meant merely to burn the bed sheets he had woven through the steel bars of his

concrete cell. By denying instruction D-8, or some modified version of it, the trial judge left

the jury with but two options: convicting Thomas of fourth degree arson or acquitting him.

Thomas was thus foreclosed from presenting his theory of the case to the trier of fact.

¶70.    In Keeble v. U.S., 412 U.S. 205, 212-13, 93 S. Ct. 1993, 36 L. Ed. 2d 844 (1974), the

United States Supreme Court addressed a similar situation:




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       [I]f the prosecution has not established beyond a reasonable doubt every
       element of the offense charged, and if no lesser offense instruction is offered,
       the jury must, as a theoretical matter, return a verdict of acquittal. But a
       defendant is entitled to a lesser offense instruction – in this context or any
       other – precisely because he should not be exposed to the substantial risk that
       the jury’s practice will diverge from theory. Where one of the elements of the
       offense charged remains in doubt, but the defendant is plainly guilty of some
       offense, the jury is likely to resolve its doubts in favor of conviction. . . .
       Indeed, while we have never explicitly held that the Due Process Clause of the
       Fifth Amendment guarantees the right of a defendant to have the jury
       instructed on a lesser offense, it is nevertheless clear that a construction of the
       Major Crimes Act to preclude such an instruction would raise difficult
       constitutional questions.

¶71.   Keeble was convicted of assault with intent to inflict great bodily injury after denial

of his request to have the jury instructed that they might convict him of simple assault. Id.,

412 U.S. at 206. Intent to commit serious bodily injury was a necessary element of the crime

with which Keeble was charged, but not of the lesser crime of simple assault. Id. at 213. The

Supreme Court found that the nature of Keeble’s intent was “very much in dispute at trial,”

and that “the jury could rationally have convicted him of simple assault if that option had

been presented.” Id. However, “the jury was presented with only two options: convicting

the defendant of assault with intent to commit great bodily injury, or acquitting him

outright.” Id. The Supreme Court found Keeble could not be deprived of the “protection

afforded by an instruction on a lesser included offense, assuming of course that the evidence

warrants such an instruction,” and reversed and remanded. Id. at 214.

¶72.   Likewise, Thomas should not have been deprived of the protection afforded by his

proffered instruction on the lesser-related offense of malicious mischief, inasmuch as proof

that Thomas had, in fact, committed that offense is easily found in the record. As Keeble

makes clear, the very purpose of jury instructions is rooted in the right to a fair trial as

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guaranteed by the federal and state constitutional provisions that ensure that no person be

deprived of life, liberty, or property without due process of law. U.S. Const. amend. V; Miss.

Const. art. 3, § 14. For this reason, we repeatedly have held that a defendant is entitled to

have the trial court instruct the jury regarding his or her theory of the case. See, e.g., Smith

v. State, 802 So. 2d 82, 88 (Miss. 2001) (citations omitted). Because the trial court’s failure

to provide the jury a proper instruction on the lesser-related offense of misdemeanor

malicious mischief prevented Thomas from presenting his theory of the case to the jury, I

would reverse and remand for a new trial in accordance with this opinion.

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




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