        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-KA-01167-COA

GREGORY WOODS A/K/A GREGORY JAMES                                           APPELLANT
WOODS A/K/A GREGORY J. WOODS A/K/A
STINK

v.

STATE OF MISSISSIPPI                                                          APPELLEE


DATE OF JUDGMENT:                          08/13/2014
TRIAL JUDGE:                               HON. ROGER T. CLARK
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                         JOEL SMITH
NATURE OF THE CASE:                        CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                   CONVICTED OF BURGLARY OF A
                                           DWELLING AND SENTENCED AS A
                                           HABITUAL OFFENDER TO SERVE
                                           TWENTY-FIVE YEARS IN THE CUSTODY
                                           OF THE MISSISSIPPI DEPARTMENT OF
                                           CORRECTIONS WITHOUT THE
                                           POSSIBILITY OF PROBATION OR PAROLE
DISPOSITION:                               AFFIRMED - 12/08/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., CARLTON AND FAIR, JJ.

       LEE, C.J., FOR THE COURT:

¶1.    Gregory Woods was convicted of burglary of a dwelling and sentenced as a habitual

offender to twenty-five years in the custody of the Mississippi Department of Corrections

without the possibility of probation or parole. In this appeal, we must determine whether the
evidence was sufficient to support the guilty verdict.

                                           FACTS

¶2.    On March 2, 2014, Sherri Ann McNulty was awakened around 4 a.m. by a loud noise

outside her house in Biloxi, Mississippi. McNulty testified that she heard “a really, really

loud noise beating on something over there [(the neighbor’s house)], and then . . . heard glass

breaking.” McNulty further described the noise as “something heavy beating against a wall

. . . over and over.” She called 911, and informed the dispatcher it sounded like the house

next door was being broken into.

¶3.    Officer Bryan Wallace arrived at the scene and heard loud banging inside 171

Iberville Drive, the house next door to McNulty’s house. Officer Wallace noted the lights

were off inside the house. Officer Wallace testified that Woods opened the door and

explained that he had just moved into the house and was moving furniture around. Officer

Wallace advised Woods to go back inside the house.

¶4.    About the same time, another officer, Grandver Everette, was walking around outside

of the house and noticed a broken window. Officer Everette testified he saw that the window

pane had been removed and a trash can was underneath the window. He observed a concrete

rock on the ground by the trash can with shattered glass around it.

¶5.    Notified of the broken window, Officer Wallace again approached Woods, who had

exited the house and was standing in the yard. Woods informed Officer Wallace that the

house had been left to him by his grandmother. Other than a prescription bottle with his

name on it, Woods was unable to provide identification or proof to confirm his claim.



                                              2
¶6.    The owner of the property, Tony Eckwood, was located. After viewing the house,

Eckwood noticed furniture and smaller items had been moved, including weapons and other

valuables.

                                       DISCUSSION

¶7.    Woods argues that the evidence was legally insufficient to support the guilty verdict.

Woods also contends the verdict is against the overwhelming weight of the evidence.

¶8.    In determining whether the State presented legally sufficient evidence to support the

verdict, “the critical inquiry is whether the evidence shows ‘beyond a reasonable doubt that

[the] accused committed the act charged, and that he did so under such circumstances that

every element of the offense existed[.]’” Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss.

2005). If, viewing the evidence in the light most favorable to the State, any rational trier of

fact could have found, beyond a reasonable doubt, that the essential elements of the crime

existed, this Court will affirm the conviction. Id. The jury determines the credibility of

witnesses and resolves conflicts in the evidence. Davis v. State, 866 So. 2d 1107, 1112 (¶17)

(Miss. Ct. App. 2003).

¶9.    Mississippi Code Annotated section 97-17-23 (Rev. 2014) states that burglary of a

dwelling is the “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 . . . .” Woods argues the State did not prove that he intended to commit a crime, only

that he was present at the house. However, the defendant in Brown v. State, 799 So. 2d 870,



                                              3
871 (¶3) (Miss. 2001), made a similar argument. The police found Brown’s legs sticking out

of the window of an auto repair shop at night. Id. Although Brown had no items from the

shop in his possession, the Mississippi Supreme Court concluded that intent “may be inferred

from the circumstances.” Id. at 872 (¶8). The court stated:

       Some presumptions are to be indulged in against one who enters a building
       unbidden at a late hour of night, else the burglar caught without booty might
       escape the penalties of the law. People are not accustomed in the nighttime to
       enter homes of others, when asleep, with innocent purposes. The usual object
       is theft; and this is the inference ordinarily to be drawn in the absence of
       explanation from breaking and entering at night accompanied by flight when
       discovered, even though nothing has been taken.

Id. (quoting Nichols v. State, 207 Miss. 291, 296-97, 42 So. 2d 201, 202-03 (1949)).

¶10.   Additionally, this Court addressed a similar issue in Blythe v. State, 141 So. 3d 407

(Miss. Ct. App. 2013), and in Crawford v. State, 839 So. 2d 594 (Miss. Ct. App. 2003). In

Blythe, the defendant was seen leaving the victim’s garage “during night-time hours, with

no discernible innocent purpose.” and without the permission of the homeowner. Blythe, 141

So. 3d at 412 (¶14). Nothing had been taken from the victim’s home. Id. at 410 (¶3). In

Crawford, the victim found the defendant in his home, trying to “frantically” leave the

premises. Crawford, 839 So. 2d at 595 (¶2). Like Blythe, Crawford was in the victim’s

home without permission and was not in possession of any stolen property. Id. at (¶¶2, 4).

We stated that “an inference of the intent to steal may arise from proof of the breaking and

entering.” Id. at (¶¶5-6) (citation omitted).

¶11.   In this instance, Woods was found in the victim’s home without permission. There

was evidence of a breaking and entering. Viewing the evidence in the light most favorable



                                                4
to the State, we find that there was sufficient evidence for the jury to convict Woods of

burglary of a dwelling. This issue is without merit.

¶12.   Woods also argues the verdict is against the overwhelming weight of the evidence.

“When reviewing a denial of a motion for a new trial based on an objection to the weight of

the evidence, we will only disturb a verdict when it is so contrary to the overwhelming

weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”

Bush, 895 So. 2d at 844 (¶18). The evidence is viewed in the light most favorable to the

verdict. Id. From the evidence previously described, we cannot find that allowing the

verdict to stand would sanction an unconscionable injustice. This issue is without merit.

¶13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT OF
CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE AS A
HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT THE POSSIBILITY
OF PROBATION OR PAROLE IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO HARRISON COUNTY.

     IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL,
FAIR, JAMES AND WILSON, JJ., CONCUR.




                                             5
