        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-KA-00166-COA

EDWARD PARKER ELDRIDGE A/K/A                                             APPELLANT
EDWARD P. ELDRIDGE A/K/A EDWARD
ELDRIDGE

v.

STATE OF MISSISSIPPI                                                       APPELLEE


DATE OF JUDGMENT:                        01/21/2016
TRIAL JUDGE:                             HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:               HARRISON COUNTY CIRCUIT COURT,
                                         SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                         BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: SCOTT STUART
DISTRICT ATTORNEY:                       JOEL SMITH
NATURE OF THE CASE:                      CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                 CONVICTED OF BURGLARY OF A
                                         DWELLING AND SENTENCED TO
                                         TWENTY YEARS, WITH TWELVE YEARS
                                         SUSPENDED, LEAVING EIGHT YEARS TO
                                         SERVE, FOLLOWED BY FOUR YEARS OF
                                         POSTRELEASE SUPERVISION, ALL IN
                                         THE CUSTODY OF THE MISSISSIPPI
                                         DEPARTMENT OF CORRECTIONS, AND
                                         TO PAY A $2,000 FINE
DISPOSITION:                             AFFIRMED - 06/13/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

      WESTBROOKS, J, FOR THE COURT:

¶1.   Edward Parker Eldridge was convicted of burglary of a dwelling in the Circuit Court

of Harrison County. He was sentenced to twenty years, with twelve years suspended, leaving
eight years to serve in the custody of the Mississippi Department of Corrections, followed

by four years of postrelease supervision. After sentencing, Eldridge filed a motion for a

judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was

denied. Eldridge timely appeals. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    In 2014, Charles Flowers resided in a small beach cottage located in Biloxi,

Mississippi. Flowers left the cottage for work on June 10, 2014, and did not return home

until the following day.

¶3.    On June 11, 2014, Flowers arrived home and noticed the doors of his home ajar.

Flowers testified that when he tried to gain access to the house, he was unable to enter

through the doors. From a window, Flowers testified he saw blankets and guitar cables tied

together between pieces of furniture. When Flowers finally gained access to his home, he

found half of a sandwich and a half-melted bowl of ice cream. A laundry basket containing

a number of Flowers’s personal items and valuables was found by the front door. There was

also broken glass on the floor, and clothes thrown everywhere in the house.

¶4.    Steven Kelly, an investigator with the Biloxi Police Department, testified he went to

Flowers’s home to investigate after he received a call about a burglary. He testified that

when he arrived, he noticed shards of glass by Flowers’s french doors, and that it appeared

the house had been rummaged through. He testified he noticed a half-eaten sandwich and

bowl of ice cream on the table. Moreover, he testified he noticed electronic or musical-type

equipment in a laundry basket close to a door in Flowers’s home. Investigator Kelly also



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stated he did not take photos of the home during that time, because he had just started

working for the police department and had not been issued a camera.

¶5.    Flowers testified that he did not stay at his house that night, because he was afraid.

Flowers returned to his house a few days later to retrieve the rest of his items. He testified

he found a casino player’s card with the name “Edward Parker Eldridge” on it, a dirty razor,

and dirty clothes on the floor in his bathroom. Flowers also testified it appeared as if

someone had tried to break in the home again. Flowers later took the items found in his

house to the Biloxi Police Department.

¶6.    After Flowers revealed the casino player’s card with Eldridge’s name, an investigator

showed him a picture of a man named Edward Parker Eldridge. Coincidently, on June 11,

2014, Eldridge was questioned by Officer Kevin Kinny of Biloxi Police Department on

another matter. Officer Kinny stopped to visit with Eldridge and took Eldridge’s picture on

June 11, 2014. Flowers testified that he recognized the shirt worn by Eldridge in the picture,

despite the shirt being worn inside out. The shirt had the name “Home Cypress Farms”

embroidered on it. Home Cypress Farms was the name of the Flowers family farm. Flowers

stated that the shirt had been gone since the burglary. Eldridge was arrested and charged

with burglary of a dwelling.

¶7.    During the trial, Eldridge did not testify on his own behalf, and the court heard the

evidence listed above. However, Eldridge argued the State failed to prove the elements of

the crime of burglary, and tendered a jury instruction on the lesser included offenses of

criminal trespass and petit larceny. The court refused his jury instructions. Following a jury



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trial on January 20, 2016, Eldridge was sentenced to a term of twenty years, with eight years

to serve and twelve years suspended. Eldridge’s motion for a JNOV or, in the alternative,

a new trial was denied. On appeal, Eldridge asserts the court erred by denying his request

for a lesser-included-offense instruction on trespass.

                                STANDARD OF REVIEW

¶8.   “The 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.” Pierce v. State,

107 So. 3d 1011, 1014 (¶11) (Miss. Ct. App. 2012) (citations omitted).

                                       DISCUSSION

       Whether the trial court erred when it refused Eldridge’s request for a
       lesser-included-offense instruction on trespass.

¶9.    Eldridge argues that it is fundamentally unfair to prevent a defendant from being

allowed to present his defense and to have the jury instructed thereon. Eldridge is correct in

his assertion that “a defendant is entitled to have every legal defense he asserts to be

submitted as factual issue for determination by the jury under proper instruction of the court.”

Love v. State, 121 So. 3d 952, 955 (¶13) (Miss. Ct. App. 2013). “However, this entitlement

is limited in that the court may refuse an instruction which incorrectly states the law, is

covered fairly elsewhere in the instructions, or is without foundation in the evidence.”

Newell v. State, 49 So. 3d 66, 73-74 (¶¶20-21) (Miss. 2010) (citation omitted). “A

lesser-included-offense instruction should be granted unless the trial court, and ultimately the

appellate court, can say” that “[t]aking the evidence in the light most favorable to the

accused, and considering all reasonable inferences which may be drawn in favor of the


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accused from the evidence, no reasonable jury could find the defendant guilty of the lesser

included offense and conversely not guilty of at least one essential element of the principal

offense.” Pierce, 107 So. 3d at 1014 (¶11) (citations and quotation marks omitted).

¶10.   The court in Jackson v. State, 90 So. 3d 597, 607 (¶36) (Miss. 2012), stated 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. The question in this case is “whether the evidence is so clear that no reasonable

juror could have accepted the defendant’s theory that his intent to commit a crime was

formed after he was in the house.” Id. at 605 (¶34).

¶11.    Eldridge rummaged through Flowers’s personal items, then fled before he could

retrieve the items placed at the door. Eldridge is not required to prove any element of the

crime with which he was charged; however, there is no testimony or evidence submitted to

substantiate a claim for the lesser-offense theory. The trial court found that looking at all of

the evidence, a reasonable jury could not have found Eldridge guilty of criminal trespass

only. We agree.

¶12.   Therefore, this Court finds no reversible error in the trial court’s refusal of the jury

instruction on criminal trespass. Accordingly, we affirm.

¶13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT, OF CONVICTION OF BURGLARY OF A
DWELLING AND SENTENCE OF TWENTY YEARS, WITH TWELVE YEARS
SUSPENDED, LEAVING EIGHT YEARS TO SERVE, FOLLOWED BY FOUR
YEARS OF POSTRELEASE SUPERVISION, ALL IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $2,000 FINE,

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IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON
COUNTY.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON
AND GREENLEE, JJ., CONCUR. BARNES J., NOT PARTICIPATING.




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