          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-KA-02132-COA

RICHARD WHITE A/K/A TONEY BUCK A/K/A                                        APPELLANT
RICHARD DELAINE WHITE

v.

STATE OF MISSISSIPPI                                                         APPELLEE


DATE OF JUDGMENT:                         10/18/2013
TRIAL JUDGE:                              HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED:                QUITMAN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF STATE PUBLIC DEFENDER
                                          BY: ERIN ELIZABETH PRIDGEN
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:                        BRENDA FAY MITCHELL
NATURE OF THE CASE:                       CRIMINAL - FELONY
TRIAL COURT DISPOSITION:                  CONVICTED OF BURGLARY OF A
                                          DWELLING AND SENTENCED TO
                                          TWENTY-FIVE YEARS IN THE CUSTODY
                                          OF THE MISSISSIPPI DEPARTMENT OF
                                          CORRECTIONS, WITH THE SENTENCE TO
                                          RUN CONSECUTIVELY TO ANY
                                          PREVIOUSLY IMPOSED SENTENCES
DISPOSITION:                              AFFIRMED - 06/30/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      ROBERTS, J., FOR THE COURT:

¶1.   A jury sitting before the Quitman County Circuit Court found Richard White guilty

of burglary of a dwelling.1 The circuit court sentenced White to twenty-five years in the


      1
          The jury found that White was not guilty of aggravated assault.
custody of the Mississippi Department of Corrections. White appeals and makes only one

claim. He argues that the circuit court committed plain error when it did not sua sponte

instruct the jury on the elements of larceny and/or assault – the underlying intended crimes

that the indictment listed for the burglary charge. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    For more than thirty-five years, Newell Inman and his wife, Johanna, lived at the same

address in Lambert, Mississippi, a small town in Quitman County. On Sunday, January 29,

2012, Newell and Johanna drove to Okolona, Mississippi, to visit a sick relative in the

hospital. It was dark when they arrived home a little after 7 p.m. Newell was driving, and

Johanna was in the front passenger’s seat.

¶3.    As they approached their home, Newell and Johanna both noticed that a light was on

in one of the two storage rooms connected to their carport. The doors to the storage rooms

were shut and unlocked. Newell thought that Johanna had left the light on, and Johanna

thought that Newell was responsible for the light. As Johanna was exiting the parked car,

Newell asked her to turn off the light in the storage room, which was immediately to her

right. Johanna opened the storage-room door just enough to reach the light switch inside.

But the light was already off. Johanna turned the light back on.

¶4.    Johanna was surprised by an intruder in her storage room. His hands were behind his

back, as though he was hiding a weapon. According to Johanna, the intruder was standing

in a “parade rest” or “at ease” military posture. Johanna screamed for Newell.

¶5.    As sixty-five-year-old Newell rushed around the car to help Johanna, the intruder tried



                                              2
to escape. Newell swung at him – and missed. The significantly younger intruder pummeled

Newell with something metallic, knocking Newell to his knees and shattering his glasses.

Newell’s head was severely lacerated, and his right arm was broken.2 The intruder fled

around the carport and across the yard. Regaining his balance, Newell briefly tried to chase

the intruder. Newell had to stop when blood from the lacerations on his head began to

obscure his vision.

¶6.    While driving to the emergency room, Johanna called 911. At that time, Johanna did

not recognize the intruder. But Newell did from the many times he had seen him around

town. However, Newell did not know the intruder’s name.

¶7.    The next day, the Inmans positively identified White as the intruder. They recognized

him from a photograph that was presented by law enforcement. Johanna also showed law-

enforcement officers the undisturbed metal file that she had found in the front yard. Newell

inventoried the storage room and discovered that he was missing a hammer, a pair of

Channellock pliers, at least two files, and some of his screwdrivers. Law-enforcement

officers found a fingerprint on a box in the storage room where the intruder had been hiding.

A fingerprint examiner from the Mississippi Crime Laboratory later testified that the

fingerprint matched the middle finger on White’s left hand. Newell and Johanna both

testified during White’s trial. They each identified White as the intruder.

¶8.    White was questioned after he was arrested. He denied any involvement in the

burglary. At trial, White testified that he was at his home in Lambert with family when the

       2
          After an orthopedic physician set the bone, Newell wore a sling for months. He
later received extensive therapy.

                                             3
crimes occurred. But he did not call any witnesses to corroborate his claimed alibi.

¶9.    In rebuttal, the prosecution called Charlie Booker Jr., who lived close to the Inmans’

residence. Booker testified that White had been at his house late on the afternoon of the

burglary. White had stopped by to see Booker’s father. White left on foot after Booker told

him that his father was not at home.

¶10.   During closing arguments, White’s attorney argued that the Inmans’ in-court

identification of White was tainted by the allegedly suggestive photo identification the day

after the crime. White’s attorney also argued that the fingerprint examiner’s testimony was

just an opinion, and experts often make mistakes. White did not dispute that the intruder,

whoever he was, broke into the Inmans’ storage room to steal something and/or arm himself

in case he was discovered. Neither White nor the State submitted a proposed jury instruction

on the essential elements of larceny. However, the jury was necessarily instructed on the

essential elements of assault by way of the jury instruction on aggravated assault, which was

the second count in the two-count indictment. As previously mentioned, the jury found

White guilty of burglary of a dwelling but, inexplicably, acquitted him of aggravated assault.

White appeals.

                                         ANALYSIS

¶11.   According to White, he is entitled to a new trial because the circuit court committed

plain error in instructing the jury. For the first time on appeal, White argues that the circuit

court should have sua sponte instructed the jury on the elements of larceny and/or assault.

In other words, White’s claim is based on the concept that the essential elements of dwelling-



                                               4
house burglary must also include the essential elements of the crime that he intended to

commit when he broke into the Inmans’ home.

¶12.   White is correct that the circuit court is responsible for assuring that the jury is “fully

and properly instructed on all issues of law relevant to the case.” Harrell v. State, 134 So.

3d 266, 270 (¶14) (Miss. 2014) (quotation omitted). A circuit court commits plain error if

it does not instruct the jury on the essential elements of the crime. Bolton v. State, 113 So.

3d 542, 544 (¶4) (Miss. 2013). The circuit court instructed the jury that it was to find White

guilty of burglary of a dwelling if it found beyond a reasonable doubt that White “did

unlawfully, willfully[, and] feloniously break and enter the [Inmans’] dwelling house . . .

with the intent to commit the crime of larceny and/or assault . . . .”

¶13.   A person is guilty of burglary of a dwelling upon proof beyond a reasonable doubt “of

breaking and entering the dwelling house or inner door of such dwelling house of another .

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

2014) (emphasis added). The prosecution is not obligated to prove that the accused actually

committed the underlying offense of the burglary; but it must prove that at the time of the

breaking and entry, the accused intended to commit some specific offense. Daniels v. State,

107 So. 3d 961, 964 (¶16) (Miss. 2013). That is, the prosecution must “offer proof of the

intent to commit some specific crime as the second element of burglary.” Id. (emphasis

added). Therefore, the Mississippi Supreme Court has held that because the essential

elements of burglary include the intent to commit a specific crime, the jury instructions must

also identify the specific crime the accused intended to commit. Id. at (¶17). The jury must



                                               5
not be allowed “to arbitrarily select some crime of which there was no proof, and use that

nonexistent offense to convict [a defendant] of burglary.” Id.

¶14.   Unless a defendant confesses, it is often extremely difficult to determine exactly what

he intended to do when he broke and entered someone else’s home. As the supreme court

has recognized:

       The State seldom has direct and positive testimony expressly showing the
       specific intent of an intruder at the time he unlawfully breaks into a dwelling
       house; however, such testimony is not essential to establish the intent to
       commit a crime. Intent is an emotional operation of the mind, and is usually
       shown by acts and declarations of the defendant coupled with facts and
       circumstances surrounding him at the time. [A d]efendant’s intention is
       manifested largely by the things he does.

Dixon v. State, 240 So. 2d 289, 290 (Miss. 1970). Consequently, circumstantial evidence is

adequate to prove that a defendant had felonious intent when he broke and entered a

dwelling. Jackson v. State, 90 So. 3d 597, 604 (¶27) (Miss. 2012). A defendant’s felonious

intent “is an issue of fact which falls within the exclusive province of the jury.” Id.

Additionally, jurors are entitled to logically infer that a defendant broke and entered a home

with the intent to commit larceny because “[l]aw-abiding citizens do not break into the homes

of people they do not know and rummage through their effects, then flee when their actions

are discovered.” Id. at (¶30).

¶15.   White cites no authority stating that reversible error is the unavoidable result when a

circuit court does not unequivocally instruct a jury on the elements of the intended crime in

a burglary trial. However, only in capital-murder cases is a circuit court required to instruct

a jury on the elements of the legislatively specified underlying felony that elevates the murder



                                               6
to a capital offense. See id. Instead, the supreme court has held that a circuit court “should

instruct the jury on the elements of the intended crime . . . .” Conner v. State, 138 So. 3d

143, 150 (¶16) (Miss. 2014) (emphasis added). The circuit court is required to instruct the

jury fairly – not perfectly – regarding “the applicable rules of law.” Id. at 149 (¶14). We

review the jury instructions as a whole to determine whether the circuit court fulfilled its

obligation. Id.

¶16.   In Conner, the supreme court held that although the circuit court did not instruct the

jury on the underlying intended crime for the burglary, the jury instructions as a whole

adequately instructed the jury that it was required to find that the defendant “broke and

entered the victim’s dwelling with the intent to steal.” Id. at 150-51 (¶16). Therefore, the

supreme court affirmed the burglary conviction. Id. at 151 (¶16). During the prosecution’s

closing argument in the present case, the prosecution argued that White most likely intended

to steal the Inmans’ personal property. The evidence certainly supports that conclusion, since

some of Newell’s tools were missing. The circuit court instructed the jury that to find White

guilty of burglary, it must find that White “intended to commit larceny and/or assault” when

he broke and entered the Inmans’ home. The jury instructions clearly identified the specific

underlying crime that White intended to commit.

¶17.   Additionally, the jury was, in fact, instructed regarding the elements of aggravated

assault. The jury could have found that when White saw the Inmans’ vehicle approaching

the carport, he went inside the storage room to arm himself to commit an assault in case he




                                              7
was discovered.3 It is undisputed that the intruder severely beat Newell with a tool. The fact

that the jury found White not guilty of aggravated assault is totally irrelevant to the issue of

plain error in the jury instruction regarding the elements of burglary. It is impossible to

rationalize the jury’s inconsistent verdicts in this case. It defies logic that the jury concluded

that White broke and entered the storage room with the intent to steal something or commit

assault, but somebody else committed the aggravated assault. Whether it was an example of

jury nullification or the jury’s belief that one felony conviction was simply enough, we will

never know. Regardless, the inconsistent jury verdicts are of no concern. See Sanders v.

State, 63 So. 3d 497, 504 (¶20) (Miss. 2011). White relied solely on misidentification and

an alibi as his defenses. When reviewing the legal sufficiency of a burglary conviction, it is

totally unnecessary to determine whether there was sufficient evidence to find that the

accused actually committed the underlying offense.

¶18.   The plain-error doctrine requires proof of an error that resulted in a “manifest

miscarriage of justice.” Blunt v. State, 55 So. 3d 207, 211 (¶16) (Miss. Ct. App. 2011). The

plain-error doctrine has also been construed to include any error that “seriously affects the

fairness, integrity[,] or public reputation of judicial proceedings.” United States v. Olano,

507 U.S. 725, 736 (1993). If the instructions fairly state the law of the case and create no

injustice, then we will not find reversible error. Wilson v. State, 72 So. 3d 1145, 1156 (¶31)

       3
          Based on White’s prior criminal history – shown later at his sentencing hearing –
either belief of his intention may well have been justified. White had either been previously
arrested for or convicted of two prior felonies, drug possessions, three counts of shoplifting,
disorderly conduct, simple assault, resisting arrest, petty larceny, multiple counts of
trespassing, driving under the influence, malicious mischief, and multiple other similar
offenses.

                                                8
(Miss. Ct. App. 2011) (citations omitted). Taking the jury instructions as a whole, the circuit

court instructed the jury on all of the statutory elements of dwelling-house burglary,

including the specific underlying offenses. Moreover, the jury was instructed on the essential

elements of aggravated assault. It was undisputed that the intruder stole the Inmans’ property

and assaulted Newell. As stated above, White’s defenses were misidentification and alibi.

There is no manifest miscarriage of justice because the circuit court did not sua sponte

instruct the jury regarding the specific elements of larceny. We decline to reverse the trial

judge on an issue never presented to him. Based on the facts of this case, we find no plain

error.

¶19.     Additionally, it appears that the supreme court has recently receded from its rather

emphatic statement in Bolton, 113 So. 3d at 544 (¶4), that the “fail[ure] to instruct the jury

on all of the essential elements of [a crime] . . . constitutes plain error.” See also Harrell, 134

So. 3d at 275 (¶30) (“[I]t is always and in every case reversible error for the courts of

Mississippi to deny an accused the right to have a jury decide guilt as to each and every

element.”). It is unclear whether harmless error may result from the failure to instruct the

jury regarding the elements of the underlying criminal intent of a dwelling-house burglary.

In Jones v. State, 2012-KA-00374-COA, 2013 WL 3991816 (Miss. Ct. App. Aug. 6, 2013)

(final mandate issued Sept. 4, 2014), this Court affirmed a sexual-battery conviction even

though the jury was not instructed that it must find that the defendant was at least twenty-four

months older than the child victim. It was patently obvious to the jury that the defendant was

decades older than the eight-year-old victim. Id. The three opinions in Jones discussed the



                                                9
fact that some precedent at the time supported a harmless-error analysis under the

circumstances.4 This Court denied rehearing in Jones on November 26, 2013. On February

20, 2014, the supreme court granted certiorari. Jones v. State, 132 So. 3d 579 (Miss. 2014).

¶20.   However, a majority of the supreme court subsequently found that “there is no need

for further review, and that the [w]rit of [c]ertiorari should be dismissed.” Jones v. State,

2012-CT-00374-SCT (Aug. 14, 2014). Presiding Justice Dickinson, joined by three others,

issued a separate written statement and included a proposed opinion. Id. The proposed

opinion stated that the defendant – through his counsel – had waived his right to have the jury

instructed on the essential element of the difference between his age and the victim’s when

the defendant withdrew his correctly worded proposed jury instruction. Id. at (¶24).

Whether based on harmless error or waiver, the result is the same – Jones’s conviction was

affirmed. Just as the difference between Jones’s age and the victim’s was patently obvious

to the jury, it was obvious to the jury in this case that the intruder intended to either steal

something from the Inmans or commit an assault. Assuming for the sake of discussion that

the circuit court erred in this case, that error must likewise be harmless and/or waived. We

find no merit to this issue.

¶21. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY OF
CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-
FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY
AND ALL SENTENCES PREVIOUSLY IMPOSED, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO QUITMAN COUNTY.

       4
        See Neder v. United States, 527 U.S. 1, 15 (1999); Bolton, 113 So. 3d at 544 (¶4);
Rogers v. State, 95 So. 3d 623, 632 (¶30) (Miss. 2012); Berry v. State, 728 So. 2d 568, 571
(¶6) (Miss. 1999).

                                              10
     LEE, C.J., GRIFFIS, P.J., CARLTON, MAXWELL AND JAMES, JJ.,
CONCUR. FAIR, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED
BY IRVING, P.J., BARNES AND ISHEE, JJ.

       FAIR, J., DISSENTING:

¶22.   I must respectfully dissent from the majority, due to our supreme court’s recent ruling

in Conner v. State, 138 So. 3d 143 (Miss. 2014). White was convicted of burglary under

Mississippi Code Annotated section 97-17-23(1) (Rev. 2014), which provides:

       Every person who shall be convicted of breaking and entering the dwelling
       house or inner door of such dwelling house of another, whether armed with a
       deadly weapon or not, and whether there shall be at the time some human
       being in such dwelling house or not, with intent to commit some crime
       therein, shall be punished . . . .

The jury received the following instruction:

       In Count I, if you believe from the evidence in this case beyond a reasonable
       doubt that:

       1) On or about January 29, 2012, RICHARD WHITE AKA “TONEY BUCK”
       did unlawfully, willfully [and] feloniously break and enter the dwelling house
       of Newell Inman and/or Johanna Inman[,] and

       2) said dwelling house was located at . . . Street in Lambert[,] Mississippi, and

       3) said break[ing] and enter[ing] was with the intent to commit the crime of
       larceny and/or assault there,

       then you shall find the defendant guilty of burglary of a dwelling in Count 1.

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

¶23.   White argues that the circuit court’s failure to instruct the jury on the elements of

larceny and assault is plain error. Neither party requested that the jury be instructed on the

elements of larceny or assault. However, that does not render the issue procedurally barred.


                                               11
The circuit court is responsible for assuring that the jury is “fully and properly instructed on

all issues of law relevant to the case.” Harrell v. State, 134 So. 3d 266, 270 (¶14) (Miss.

2014) (quotation omitted). “The crime of burglary requires the jury to find beyond a

reasonable doubt that the defendant broke and entered the dwelling house of another with the

intent to commit some crime therein.” Conner v. State, 138 So. 3d 143, 149 (¶14) (citing

Miss. Code Ann. § 97-17-23(1)). Jury instructions on burglary must identify the crime the

defendant intended to commit. Id. (citing Daniels v. State, 107 So. 3d 961, 964 (¶17) (Miss.

2013)). The jury was instructed to find White guilty if it concluded, beyond a reasonable

doubt, that he unlawfully, willfully, and feloniously broke and entered the Inmans’ house

with the intent to commit larceny and/or assault. Thus, White’s instructions adhered to

Daniels.

¶24.   In Harrell, the supreme court found that, for a capital-murder charge, the circuit

court’s failure to instruct the jury as to the elements of the underlying felony of robbery was

reversible error. Harrell, 134 So. 3d at 270 (¶14). Four months after the Harrell decision,

the supreme court held that, for the crime of burglary, as long as the jury is “fully and fairly

informed” of the intent requirement for burglary, jury instructions need not list the elements

of the underlying crime. Conner, 138 So. 3d at 149 (¶16).

¶25.   Now, with Conner in mind, we must determine whether the jury was “fully and fairly

informed” of the intent requirement for burglary. See id. In this case, the jurors were

instructed that they could find White guilty of burglary if they found he unlawfully, willfully,

and feloniously broke and entered the dwelling with the intent to commit larceny and/or



                                              12
assault. Likewise in Conner, 138 So. 3d at 149 (¶12), the defendant was charged with

burglary of a dwelling with the intent to commit larceny. The jury was not instructed on the

elements of larceny. Id. But the circuit court specifically instructed the jury that the

“required intent” they had to find was “intent to steal.”5 Id. at 150 (¶16). See also Blythe v.

State, 141 So. 3d 407, 413 (¶18) (Miss. Ct. App. 2013). The court also instructed the jury

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

Conner, 138 So. 3d at 150 (¶15). Our supreme court affirmed Conner’s conviction, stating:

       While the trial court should instruct the jury on the elements of the intended
       crime in a burglary trial, here, the jury instructions correctly instructed the
       jurors that they could find Conner guilty of burglary if they found he broke and
       entered the victim’s dwelling with the intent to steal. We find that the jury
       instructions fairly, although not perfectly, instructed the jury on the applicable
       law . . . .

Id. at (¶16) (emphasis added).

¶26.   The Conner decision relied on the fact that, although no instruction listed the elements

of larceny, Conner’s jury had received separate instructions on larceny that were sufficient

to inform the jury of the applicable law. Id. Unlike the jury in Conner, the jury in this case

received no separate instructions on larceny or assault. The majority affirms White’s

conviction because there was undisputed evidence of theft and assault. But Conner did not

draw factual or evidentiary distinctions when concluding that a jury should be instructed on

the intent requirement for burglary.

¶27.   As stated by the majority, the plain-error doctrine has been construed to include error



       5
         Larceny requires the specific intent to steal or “deprive the owner of his property.”
Slay v. State, 241 So. 2d 362, 364 (Miss. 1970).

                                              13
that “resulted in a manifest miscarriage of justice” or “seriously affects the fairness,

integrity[,] or public reputation of judicial proceedings.” Brown v. State, 995 So. 2d 698, 703

(¶21) (Miss. 2008) (citation omitted). We apply the plain-error rule only when the error

affects a defendant's fundamental rights. Id. As this Court stated in Blunt, “[d]ue[-]process

rights include the right to a properly instructed jury.” Blunt v. State, 55 So. 3d 207, 211 (¶16)

(Miss. Ct. App. 2011). See also Shaffer v. State, 740 So. 2d 273, 282 (¶31) (Miss. 1998)

(holding that the trial court's failure to instruct the jury properly on the elements of the crime

charged denied the defendant due process). White’s jury instructions did not list the elements

of the underlying crimes of larceny or assault. Nor did his instructions “fully and fairly

inform[] the jury of the intent requirement for burglary,” in conformity with Conner.

Conner, 138 So. 3d at 149 (¶16). So the jury instructions did not “fairly . . . instruct[] the

jury on the applicable law.” Id. at 150 (¶16). As a result, I would reverse the circuit court’s

judgment and remand White’s case to the circuit court.

       IRVING, P.J., BARNES AND ISHEE, JJ., JOIN THIS OPINION.




                                               14
