                    IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2013-KA-00772-SCT

CHARLES DAVID BURLESON, II a/k/a CHARLES
BURLESON

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         10/12/2012
TRIAL JUDGE:                              HON. JAMES LAMAR ROBERTS, JR.
TRIAL COURT ATTORNEYS:                    JOHN C. HELMERT, JR.
                                          VICKI R. SLATER
                                          RICHARD D. BOWEN
                                          JOSH WISE
COURT FROM WHICH APPEALED:                PRENTISS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF STATE PUBLIC DEFENDER
                                          BY: ERIN ELIZABETH PRIDGEN
                                               GEORGE T. HOLMES
                                               JOHN CARL HELMERT, JR.
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: MELANIE DOTSON THOMAS
DISTRICT ATTORNEY:                        J. TRENT KELLY
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              REVERSED AND REMANDED - 05/21/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    Charles David Burleson II appeals his conviction and sentence for capital murder with

the underlying felony of robbery. Finding that the trial court erred in amending Burleson’s

indictment to charge him as a violent habitual offender and in denying Burleson’s proffered
circumstantial-evidence instruction, we reverse Burleson’s conviction and sentence and

remand this case for a new trial.

                          FACTS & PROCEDURAL HISTORY

¶2.    On Saturday, May 15, 2010, Donnie Holley returned to his home in Thrasher,

Mississippi, after a fishing trip with his son Scott. As he was checking his mail, he noticed

a white car driving off his property and away from his house. When he entered his house,

he found his son Steven lying on the floor in the living room. Steven was completely

unresponsive, and a pool of blood had collected under his head. Donnie immediately called

9-1-1. Steven was taken to the hospital, but doctors were unable to revive him, and he died

from his injuries five days later.

¶3.    Officer Derrick Hester of the Prentiss County Sheriff’s Department and his partner

Officer Tammy Johnson were the first to respond to Donnie’s 9-1-1 call. They arrived at the

house around 1:00 p.m. After medical personnel arrived to tend to Steven, Officer Hester

and Officer Johnson investigated the rest of the house. The bedrooms in the house appeared

to have been ransacked. In Steven’s room, clothes were strewn across the floor, dresser

drawers had been left open, and the mattress had been thrown off the bed.

¶4.    Officer Hester called Investigator Roy Ragin of the Prentiss County Sheriff’s

Department to assist with the crime scene investigation. Upon entering the Holley residence,

Investigator Ragin observed blood stains on the couch in the living room, next to where

Steven was found. Investigator Ragin collected a knife discovered under Steven’s body, but

he did not observe any blood on the knife. Investigator Ragin observed that a medicine



                                             2
cabinet in the house was in disarray, as if someone had rummaged through it. Outside the

house, Investigator Ragin found broken glass from the storm door in the Holleys’ carport,

and one of the metal bars on the storm door was missing. Investigator Ragin interviewed

Donnie to find out if anything was missing from the house, and he also spoke to some of the

Holleys’ neighbors. Donnie stated that a flat-screen TV, a DVD player, and some

prescription medication were missing from the house.

¶5.    After leaving the Holleys’ house, Investigator Ragin received a call from Joey Clark,

a narcotics investigator with the Prentiss County Sheriff’s Department. Investigator Clark

previously had worked on a case involving Steven, and he offered to help Investigator Ragin

locate people who might have been associated with Steven. Investigator Clark met with

Investigator Ragin and Officer Hester on the evening of May 15 to discuss the investigation.

¶6.    At around midnight on May 15, Investigator Clark and Investigator Ragin received

a text message from Tammy Cook, who lived approximately twenty miles from the Holleys,

asking for details about Steven. Investigator Ragin went to Cook’s house to interview her.

Cook told Investigator Ragin that a man named Jeremy Huguley had been to her house at

least twice that day, once early in the morning and again around 1:00 p.m. On his second

visit, Huguley had arrived with his girlfriend Kayla Cartwright and another man, later

identified as Burleson, whom Cook did not recognize at the time. Huguley, Burleson, and

Cartwright had arrived at Cook’s house in a white Oldsmobile. Cook watched Huguley take

a metal bar out of the car and throw it into the woods next to her house. Huguley also

retrieved a garbage bag from the car and placed it under Cook’s porch. Huguley and



                                             3
Cartwright then left in the white car, but Burleson stayed outside, talking to Cook’s son Max.

Shortly thereafter, someone driving a green Ford Mustang picked up Burleson. Max then

retrieved the metal bar that Huguley had thrown into the woods, and Cook retrieved the

garbage bag that Huguley had left under her porch. Cook inspected the contents of the

garbage bag and found prescription medication information forms with Donnie Holley’s

name on them. At that point, Cook contacted Investigator Clark and Investigator Ragin. Cook

also told Investigator Clark that Huguley previously had left a gun at her house, hidden in

Max’s room. Huguley had come back to her house while she was gone and retrieved the gun

and took $200 in cash from her son’s room.

¶7.    Based on Cook’s statements, Investigator Ragin notified the police to be on the

lookout for a white Oldsmobile or a green Ford Mustang. Cartwright and Huguley were both

taken into custody in the early hours of May 16, 2010. Huguley was intoxicated when he was

brought to the police station, so he was not interviewed at that time, but Investigator Ragin

was able to interview Cartwright. Investigator Ragin received Cartwright’s consent to search

her home for the items missing from the Holley residence. Cartwright and Huguley were

living together at the time. At Cartwright’s home, Investigator Ragin found a flat-screen TV,

a comforter, some CDs, an electric drill, two wallets, and a cell phone, all of which belonged

to the Holleys. Investigator Ragin also found prescription medication bottles belonging to

Donnie Holley in a garbage can outside Cartwright’s house.

¶8.    Cartwright stated that, before noon on the day of Steven’s attack, she and Huguley had

picked up Burleson at a truck stop in Baldwin, Mississippi. After stopping briefly at



                                              4
Cartwright’s house, the trio went to the Holleys’ house in Thrasher. They all rode together

in Cartwright’s white Oldsmobile. When they arrived at the Holley residence, Cartwright

stayed in the car, while Huguley and Burleson entered the house. Cartwright asked Huguley

and Burleson to look for her hair straightener, which she previously had left at the Holley

residence. Huguley could not find the straightener, so Cartwright went inside to tell Steven

what it looked like. When she entered the house, Steven was sitting on the couch in the living

room, and Burleson was sitting across from him on a love seat; Huguley was not in the living

room. Cartwright then went back outside and sat in her car while she waited for Huguley and

Burleson. Huguley later brought Cartwright her straightener and then went back inside the

house.

¶9.      Shortly thereafter, Cartwright recalled that “[Burleson] came outside with a pole, but

I’m not positive that it was David. It might have been [Huguley] that brought it out. And

then [Huguley] brought out a TV wrapped in a blanket, and they put it in the back seat.”

Cartwright was sure that Burleson and Huguley had each brought an item to the car “because

two people can’t really be at one place at the same time.” Either Burleson or Huguley –

Cartwright could not remember who – also placed a toolbox in the car. The contents of the

toolbox were unknown to Cartwright at the time. When Huguley got in the car, he had a

wallet, a cell phone, and some cash, which he had not had earlier in the day. As they were

leaving the Holleys’ house, Cartwright saw Donnie checking his mail at the end of the road.

¶10.     After leaving the Holley residence, Cartwright, Huguley, and Burleson went to Cook’s

house in Jumpertown. Cartwright observed Huguley speaking with Cook’s son Max, holding



                                               5
the metal bar from the Holleys’ storm door in his hands. When Huguley returned to the car,

he did not have the metal bar anymore. Burleson’s girlfriend Stacy Filgo picked up Burleson

from Cook’s house, and Cartwright took Huguley to Booneville to pay his bail bondsman.

¶11.   Burleson was arrested by U.S. Marshals in Oakland, Tennessee, on May 19, 2010, as

he was leaving a Walmart. At the time of his arrest, Burleson was with Filgo. They had

arrived at the Walmart in a green Ford Mustang, with Burleson driving. Under the driver’s

seat of the car, police recovered a handgun. Cook identified the gun as the one Huguley had

taken from her house on the day of Steven’s attack.

¶12.   On October 26, 2010, Burleson and Huguley were indicted for the capital murder of

Steven Holley, with the underlying felony of robbery. The Prentiss County Circuit Court

ordered the defendants’ trials to be severed. On May 16, 2012, the State moved to amend

Burleson’s indictment to charge him as a habitual offender under Section 99-19-83 of the

Mississippi Code. In support of this motion, the State presented evidence that Burleson

previously had been convicted of five separate counts of burglary and larceny of a dwelling.

The trial court granted the State’s motion to amend the indictment on June 11, 2012.1 The

State also announced prior to trial that it would not pursue the death penalty against

Burleson. Burleson’s trial commenced on October 8, 2012.

¶13.   At Burleson’s trial, the State introduced into evidence the metal bar found outside

Cook’s house. Investigator Ragin testified that the metal bar appeared to have come from

the Holleys’ storm door, and Dr. Thomas Deering, who had performed Steven’s autopsy,

       1
        The State’s motion to amend Burleson’s indictment and subsequent withdrawal of
that amendment are the subject of Burleson’s second assignment of error on appeal.

                                             6
testified that Steven’s injuries were consistent with having been caused by the bar. The State

also introduced the handgun found under the driver’s seat of the car Burleson was driving

on the day of his arrest. Cook confirmed that this gun was the same gun Huguley had

retrieved from her house on the day of Steven’s attack. After the State rested its case-in-

chief, Burleson moved for a directed verdict, arguing that the prosecution had failed to

present sufficient evidence of the elements of capital murder or the underlying felony of

robbery. The trial court denied Burleson’s motion. Burleson chose not to testify and

presented no other witnesses in his defense, so the case was sent to the jury.

¶14.   On October 12, 2012, after a four-day trial, the jury returned a verdict finding

Burleson guilty of capital murder. After the jury returned its verdict, the State informed the

trial court that it no longer sought to have Burleson sentenced as a habitual offender, as the

additional charge would have no effect on Burleson’s sentence. The trial court agreed and

sentenced Burleson to life in prison without the possibility of parole, without ruling on the

habitual-offender charge.       Burleson subsequently filed a motion for judgment

notwithstanding the verdict (JNOV) or, in the alternative, a new trial. After a hearing, the

trial court denied those motions.

¶15.   Burleson now appeals, raising the following assignments of error:

       I.     Whether the trial court violated Burleson’s right to due process of
              law by amending the indictment against him to include habitual
              offender status under Section 99-19-83 of the Mississippi Code.

       II.    Whether the trial court erred in admitting a gun introduced into
              evidence by the State.




                                              7
       III.   Whether the trial judge erred in failing to give a circumstantial
              evidence jury instruction.

       IV.    Whether the evidence was insufficient to sustain a conviction for
              capital murder.

                                      DISCUSSION

       I.     Whether the trial court violated Burleson’s right to due process of
              law by amending the indictment against him to include habitual
              offender status under Section 99-19-83 of the Mississippi Code.

¶16.   A trial court’s decision to amend an indictment is an issue of law, which this Court

reviews de novo. Fulton v. State, 146 So. 3d 975, 977 (Miss. 2014) (citing Spears v. State,

942 So. 2d 772, 773 (Miss. 2006)).

¶17.   Five months before trial, the State moved to amend Burleson’s indictment to charge

him as a habitual offender under Section 99-19-83 of the Mississippi Code. In support of this

motion, the State alleged that Burleson had five prior felony convictions for burglary and

larceny of a dwelling. The State alleged that at least one of Burleson’s prior burglary

convictions was for a crime of violence. The State attached the indictments and judgments

of conviction for each of Burleson’s prior offenses as exhibits to its motion.

¶18.   At the hearing on the motion to amend the indictment, the State argued that each of

Burleson’s prior burglary convictions represented per se crimes of violence. In support of

this argument, the State cited Brown v. State, 102 So. 3d 1130, 1137 (Miss. Ct. App. 2011),

in which the Court of Appeals recently had held that burglary of a dwelling is a per se crime

of violence under Section 99-19-83. The State did not present any evidence indicating that

any of Burleson’s prior burglaries actually involved violence. Burleson objected to the



                                             8
amendment of the indictment, arguing that burglary of a dwelling should not be considered

a per se crime of violence. Burleson also pointed out that Brown was pending before this

Court on certiorari review and could be overruled. The trial court acknowledged that Brown

had not necessarily finally resolved the issue before it. However, finding no authority directly

contrary to Brown, the trial court ordered that Burleson’s indictment be amended to include

a habitual-offender enhancement under Section 99-19-83. The trial court also stated that it

would revisit the issue at sentencing, in the event that Brown was overruled.

¶19.   After the jury rendered a guilty verdict, the State and the trial court concluded that the

habitual-offender charge would have no affect on Burleson’s sentence. Accordingly,

Burleson was not sentenced as a habitual offender.

¶20.   On appeal, Burleson claims that the trial court erred in amending his indictment to

charge him as a habitual offender. First, Burleson argues that burglary of a dwelling is not

per se a crime of violence for the purpose of habitual-offender sentencing, and that the State

failed to prove that one of his prior convictions was for a crime of violence. He also argues

that the amendment of the indictment did not give him fair notice of the charges against him.

Finally, he claims that the amendment of his indictment violated his right to testify, his right

to assert a theory of defense, and his right to a fair trial, because he would receive the same

sentence if found guilty of any lesser felony.

¶21.   In order to charge a defendant as a habitual offender under Section 99-19-83 of the

Mississippi Code, the State must prove, among other things, that the defendant has a prior

felony conviction for “a crime of violence.” Miss. Code Ann. § 99-19-83 (Rev. 2007). This



                                                 9
Court has held that certain felonies are considered per se crimes of violence, because their

essential elements include the use of force or violence against another person. See, e.g.,

Magee v. State, 542 So. 2d 228, 235 (Miss. 1989) (holding that robbery is per se a crime of

violence under Section 99-19-83). However, this Court has never held that burglary is per

se a crime of violence. On the contrary, in Brown v. State, 102 So. 3d 1087, 1092 (Miss.

2012), this Court held that burglary of a dwelling is not per se a crime of violence under

Section 99-19-83, and that the State bears the burden of proving that a defendant’s prior

burglary conviction actually involved violence. Here, the State presented no evidence

supporting its allegation that one of Burleson’s prior burglaries actually involved violence.

By failing to do so, the State did not “allege with particularity the nature or description of the

offense constituting the previous convictions” and did not afford Burleson a fair opportunity

to present a defense to the habitual-offender charge. URCCC 11.03; URCCC 7.09. With no

evidence indicating that one of Burleson’s prior burglaries actually involved violence, the

trial court erred in amending Burleson’s indictment to charge him as a habitual offender

under Section 99-19-83.

        II.    Whether the trial court erred in admitting a gun introduced in
               evidence by the State.

¶22.   Prior to trial, Burleson filed a motion in limine seeking to exclude certain evidence

the State intended to introduce at trial. Included in the evidence sought to be excluded was

the handgun found in the car Burleson was driving on the day of his arrest. On the first day

of trial, prior to voir dire, Burleson requested the trial court to rule on the admissibility of

each piece of evidence listed in the motion in limine, so that the State would not mention any

                                               10
potentially inadmissible evidence to the venire. The State responded that it did not intend

to mention any of the contested evidence during voir dire. Burleson’s attorney then stated,

“Sounds like it obviates the need for a resolution by the Court, and we’ll deal with those as

the proof arises. Your Honor, those are the only matters we wish to present to the Court

before voir dire.”

¶23.   The State introduced the gun in question twice during trial. First, during Cook’s

testimony, the State sought to introduce the gun so Cook could identify it as the gun Huguley

had taken from her house on the day of Steven’s attack. The trial court asked Burleson if he

had any objection to the gun’s admission, and Burleson responded that he did not. Later,

during the testimony of Burleson’s arresting officer, the State sought to introduce a

photograph of the items found in the car Burleson was driving on the day of his arrest, which

depicted the gun. Burleson objected to the admission of the photograph but specifically

stated that his objection did not apply to the gun, but to the “remainder of the contents of that

photograph.” The trial court overruled this objection. The gun was then introduced for the

officer to identify, and Burleson again failed to object. At the end of the trial, after both

parties had rested, Burleson asked the trial court to make a retroactive ruling excluding the

handgun from evidence. The trial court denied Burleson’s request. Burleson now argues that

the trial court erred in allowing the admission of the gun because it was irrelevant to the

alleged offense and was unduly prejudicial.

¶24.   We find that Burleson’s argument regarding the admission of the gun is procedurally

barred, as he failed to pursue his motion in limine to a ruling and failed to raise a



                                               11
contemporaneous objection at trial. “[T]he burden is on the movant to obtain a ruling on a

pre-trial motion, and failure to do so constitutes a procedural bar.” Ross v. State, 954 So. 2d

968, 992 (Miss. 2007) (citations omitted) (holding that defendant who failed to pursue his

motion to suppress a gun to a ruling prior to trial and failed to object to the gun’s admission

at trial waived his argument regarding the gun’s admissibility). See also URCCC 2.04.

While Burleson filed a motion to exclude the handgun and even raised the issue during a

pretrial-motions hearing, he failed to request a ruling on the issue at any point prior to trial.

And when the State sought to introduce the gun at trial, Burleson failed to object. “Counsel

must object contemporaneously to inadmissible evidence in order to preserve the error for

appeal.” Boyd v. State, 977 So. 2d 329, 337 (Miss. 2008) (citations omitted). Because

Burleson failed to object to the gun’s admission at the proper time, we hold that he is

procedurally barred from raising this issue on appeal.

¶25.   Notwithstanding the procedural bar, we find that Burleson’s argument is without

merit. “All relevant evidence is admissible, except as provided by the Constitution of the

United States, the Constitution of the State of Mississippi, or by [the Mississippi Rules of

Evidence].” Miss. R. Evid. 402. Evidence is considered relevant if it has “any tendency to

make the existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence.” Miss. R. Evid. 401. Of

course, relevant evidence may be excluded if its probative value is substantially outweighed

by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Miss. R.

Evid. 403. “Where a trial court determines that potentially prejudicial evidence possesses



                                               12
sufficient probative value, it is within that court’s sound discretion whether or not to admit

same, since M.R.E. 403 does not mandate exclusion but rather provides that the evidence

may be excluded.” Jones v. State, 904 So. 2d 149, 152 (Miss. 2005) (citing Baldwin v.

State, 484 So. 2d 148, 156 (Miss. 2001)).

¶26.   This Court has held that weapons found near the place where the defendant was

arrested are admissible, “even where it is not claimed nor proved that they were used in the

commission of the alleged crime in cases where the evidence has probative weight, or where

they constitute a part of the surrounding scene or picture, or are a part of the circumstances

of the arrest.” Wilkins v. State, 264 So. 2d 411, 413 (Miss. 1972) (emphasis added). Here,

while the State never argued that the gun was used in the commission of the crime, the gun

certainly had other probative value. Huguley and Burleson both were charged as principals

in Steven’s murder, so the State had the burden of proving either that Burleson committed

the crime, or that he aided Huguley in its commission. See Swinford v. State, 653 So. 2d

913, 915 (Miss. 1995) (citations omitted) (“[A]ny person who is present at the commission

of a criminal offense and aids, counsels, or encourages another in the commission of that

offense is an ‘aider and abettor’ and is equally guilty with the principal offender.”) Cook

testified that Huguley had taken the gun from her house on the day of the crime. Burleson’s

possession of the gun after the crime corroborated Cartwright’s testimony that Burleson was

present during the crime. Based on the evidence presented to the trial court, and in light of

Burleson’s failure to raise a contemporaneous objection, we find that the trial court did not

abuse its discretion in admitting the gun into evidence.



                                             13
       III.   Whether the trial judge abused his discretion in failing to give a
              circumstantial evidence jury instruction.

¶27.   Prior to trial and during arguments on jury instructions, Burleson requested that the

trial court give a so-called “circumstantial-evidence instruction,” which instructed the jury

that it could not render a guilty verdict unless the State proved his guilt “beyond a reasonable

doubt and to the exclusion of every reasonable hypothesis consistent with innocence.” After

extensive argument on the issue, the trial court denied Burleson’s proffered instruction

without comment. On appeal, Burleson claims that the trial court erred in declining to give

the circumstantial-evidence instruction because the case against him was based entirely on

circumstantial evidence.

¶28.   “This court reviews a grant or denial of a jury instruction under an abuse-of-discretion

standard. Jury instructions must be read as a whole to determine if they fairly announce the

law[.]” McInnis v. State, 61 So. 3d 872, 876 (Miss. 2011) (citing Davis v. State, 18 So. 3d

842, 847 (Miss. 2009)). The trial court may refuse an instruction which incorrectly states the

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

Heidel v. State, 587 So. 2d 835, 843 (Miss. 1991) (citations omitted). “[W]hen serious doubt

exists as to whether an instruction should be included, the doubt should be resolved in favor

of the accused.” Davis, 18 So. 3d at 847 (citing Stringfellow v. State, 595 So. 2d 1320, 1322

(Miss. 1992)).

¶29.   This Court previously has defined circumstantial evidence as “evidence which,

without going directly to prove the existence of a fact, gives rise to a logical inference that

such fact does exist.” Keys v. State, 478 So. 2d 266, 268 (Miss. 1985). Direct evidence, on


                                              14
the other hand, “must directly and not by inference implicate the accused and not just show

that there has been a crime.” Price v. State, 749 So. 2d 1188, 1194 (Miss. Ct. App. 1999).

“While evidence does not always fall neatly into one category, examples of direct evidence

include an admission or confession by the defendant to ‘a significant element of the offense,’

or eyewitness testimony ‘to the gravamen of the offense charged.’” Kirkwood v. State, 52 So.

3d 1184, 1187 (Miss. 2011) (quoting Mack v. State, 481 So. 2d 793, 795 (Miss. 1985)). The

term “gravamen” is defined as the “substantial point or essence of a claim, grievance, or

complaint.” McInnis, 61 So. 3d at 876 (quoting Black’s Law Dictionary 562 (7th ed. 2000)).

Where the State “is without a confession and wholly without eyewitness testimony to the

gravamen of the offense charged,” the defendant is entitled to an instruction requiring the

jury to “exclude every other reasonable hypothesis other than that of guilt before a conviction

can be had.” Mack, 481 So. 2d at 795; Pettus v. State, 200 Miss. 397, 411, 27 So. 2d 536,

540 (1946).

¶30.   In this case, Burleson did not confess to the crime or admit to any significant element

thereof, and the parties dispute whether the State presented direct evidence of the

“gravamen” of the offense charged. To secure a conviction for capital murder, the State was

required to prove that Burleson and Huguley killed Steven without the authority of law, with

or without design to effect his death, while engaged in the commission of a robbery. See

Miss. Code Ann. § 97-3-19-(2)(e) (Rev. 2014). To prove the underlying robbery, the State

was required to show that Burleson and Huguley took Steven’s personal property, with

felonious intent, in his presence or from his person, against his will, by violence to his person



                                               15
or by putting him in fear of some immediate injury to his person. See Miss. Code Ann. § 97-

3-73 (Rev. 2014).

¶31.   After a review of the evidence presented at trial, we find that the State failed to

present any direct evidence that Burleson killed Steven. Cartwright testified that Steven was

still alive when she, Huguley, and Burleson arrived at his house, and she actually entered the

house and saw Steven alive. Cartwright did not witness the attack itself, nor did she testify

that she was even aware that Steven had been killed. The only other evidence arguably

implicating Burleson in the murder was Cartwright’s equivocal testimony that she may have

seen Burleson leave the house with a metal bar from the Holleys’ storm door. While the

above testimony may raise a strong inference as to what happened inside the Holleys’ house

on May 15, 2010, direct evidence must “directly and not by inference implicate the accused”

in the commission of the crime. Price, 749 So. 2d at 1194. Because no one witnessed

Steven’s attack, it cannot be said that the State presented direct evidence that Burleson was

a willing participant in the murder.

¶32.   Nevertheless, this Court has held that direct evidence of the underlying felony

obviates the need for a circumstantial-evidence instruction in capital-murder cases. See

Lynch v. State, 877 So. 2d 1254, 1265 (Miss. 2004), post-conviction relief granted in part

on other grounds, Lynch v. State, 951 So. 2d 549 (Miss. 2007). In Lynch, the defendant was

convicted of capital murder during the commission of a robbery. Lynch, 877 So. 2d at 1260.

The defendant and a cohort had carjacked the victim, and the cohort had fatally shot the

victim. Id. At trial, the court denied the defendant’s request for an instruction he alleged to



                                              16
be “‘approximately’ the ‘two theory’ instruction that has been approved and adopted in

Mississippi by this Court.”2 Id. at 1263. On appeal, this Court affirmed the trial court’s

denial of the two-theory instruction, holding that the case against the defendant was not

entirely circumstantial. Id. at 1265. Specifically, this Court found that the defendant had

made an “admission against interest as to the underlying felony.” Id. In his statement to the

police, the defendant had admitted that he was aware that his cohort was armed with a

handgun and intended to carjack someone. Id. at 1266. This Court held that the defendant’s

statement to the police, while “not a ‘confession properly so-called,’ still constitutes an

admission nevertheless.”     Id. (citing Mack, 481 So. 2d at 795).         Accordingly, the

circumstantial-evidence instruction properly was denied.

¶33.   The Court of Appeals also has held that a capital-murder defendant is not entitled to

a circumstantial-evidence instruction when the State presents direct evidence of the

underlying felony. Carson v. State, 125 So. 3d 104 (Miss. Ct. App. 2013). In Carson, the

defendant was convicted of capital murder with the underlying felony of robbery. Id. at 106.

On appeal, the defendant argued that the trial court had erred in refusing his proffered

circumstantial-evidence instruction, because the State had failed to present direct evidence

that he had shot the victim. Id. The Court of Appeals rejected this argument, holding that the

instruction was not required, because the State had presented direct evidence of the

underlying robbery. Id. At trial, the victim’s neighbor testified that he had seen the



       2
       The two-theory instruction is a specific type of circumstantial-evidence instruction.
McInnis, 61 So. 3d at 875. “Although two separate instructions, the rules for when they are
appropriately given apply to both.” State v. Rogers, 847 So. 2d 858, 865 (Miss. 2003).

                                             17
defendant holding the victim at gunpoint and watched the defendant leave the victim’s house

in the victim’s car shortly thereafter. Id. The Court of Appeals found this testimony to be

direct evidence of the underlying robbery, an essential element of capital murder, which

constituted direct evidence of the “gravamen of the offense charged.” Id.

¶34.   Consistent with the above holdings, we find that the underlying felony in a capital

felony-murder charge constitutes the gravamen of the offense of capital murder. Because it

elevates an unlawful killing from manslaughter or simple murder to capital murder, the

underlying felony constitutes the “substantial point or essence” of a capital-murder charge.

McInnis, 61 So. 3d at 876. Accordingly, we must determine whether the State presented any

direct evidence of a robbery in this case.

¶35.   At trial, Cartwright testified that Huguley took a flat-screen TV from the Holleys’

house, and that Burleson took a metal bar from the Holleys’ house. The State argues that this

testimony constitutes direct evidence of the “taking” element of robbery. While this arguably

is true, evidence of a mere taking does not constitute the gravamen of the offense of robbery.

Robbery includes the elements of larceny, but with the additional element of “force or putting

in fear as a means of effectuating the [felonious] intent.” Goff v. State, 14 So. 3d 625, 647

(Miss. 2009). Compare Miss. Code Ann. § 97-3-73 with Miss. Code Ann. § 97-17-41 (Rev.

2014). The State was required to prove the elements of robbery, not merely larceny, to obtain

a conviction of capital murder. See Miss. Code Ann. § 97-3-19(2)(e). Because the State

could not prove that a robbery had occurred without presenting evidence of violence or threat

of violence, we hold that this element is the gravamen, or “substantial point or essence” of



                                             18
the offense of robbery. McInnis, 61 So. 3d at 876. In the instant case, the State presented

no eyewitness testimony that Burleson took Steven’s personal property from him by violence

or by putting him in fear of immediate injury. Cartwright’s testimony proved only that

Huguley and Burleson had taken items from the Holley’s house, and the jury was left to infer

from the rest of the evidence how they obtained those items.

¶36.   The State argues that, if a circumstantial-evidence instruction is required in this case,

then this Court can no longer enforce the “one-continuous-transaction” doctrine in capital-

murder cases. This argument is without merit. This Court has held that, in a capital-murder

case, the State must prove that the killing and the underlying felony occured as part of a

continuous chain of events and part of the res gestae. Batiste v. State, 121 So. 3d 808, 813

(Miss. 2013). See also West v. State, 553 So. 2d 8, 13 (Miss. 1989). But this issue is

completely distinct from the issue of whether the evidence of this continuous transaction is

direct or circumstantial. If the State attempts to prove, solely by circumstantial evidence, that

the defendant killed the victim while engaged in the commission of a robbery, then our

precedent requires the trial court to give a circumstantial-evidence instruction.

¶37.   We find that State did not present any direct evidence that Burleson committed capital

murder with the underlying felony of robbery. Accordingly, the trial court abused its

discretion in refusing to give Burleson’s proffered circumstantial-evidence instruction. This

Court has rejected the proposition that the failure to give such an instruction can be harmless

error. See McInnis, 61 So. 3d at 875 n.5; Stringfellow, 595 So. 2d at 1322. Therefore,

Burleson is entitled to a new trial in which the jury is instructed that “every reasonable



                                               19
hypothesis other than that of guilt must be excluded in order to convict.” Manning v. State,

735 So. 2d 323, 338 (Miss. 1999).

       IV.    Whether the evidence was insufficient to sustain a conviction for
              capital murder.

¶38.   When a defendant challenges the legal sufficiency of the evidence, “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.’” Beasley v. State, 136 So. 3d 393, 401-02 (Miss. 2014) (quoting Ivy

v. State, 949 So. 2d 748, 751 (Miss. 2007)). This Court must accept all evidence supporting

the guilty verdict as true, and the State must be given the benefit of all reasonable inferences

that can be drawn from the evidence. McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).

This Court also must disregard evidence favorable to the defendant. Noe v. State, 616 So.

2d 298, 302 (Miss. 1993) (citations omitted). The evidence will be found legally sufficient

to affirm the defendant’s conviction if “it is of such weight and quality that, ‘having in mind

the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the

exercise of impartial judgment might reach different conclusions on every element of the

offense.” Bush, 895 So. 2d at 843 (quoting Edwards v. State, 469 So. 2d 68, 70

(Miss.1995)). If any reasonable trier of fact could have found the essential elements of the

crime beyond a reasonable doubt, this Court will not disturb the jury’s verdict. Id. On

appeal, Burleson argues that the State presented insufficient evidence that he had robbed or

killed Stephen or had aided Huguley in doing so.




                                              20
¶39.   Viewing the evidence in the light most favorable to the jury’s verdict, we find that

reasonable jurors could find that Burleson committed capital murder with the underlying

felony of robbery. The evidence indicates that Steven, Burleson, and Huguley were the only

people inside the Holleys’ house at the time of Steven’s attack. Cartwright testified that she

witnessed Burleson leaving the Holleys’ house with a metal bar, and Dr. Thomas Deering

opined that this bar was consistent with the type of blunt object that caused Steven’s fatal

injuries. Dr. Deering also testified that Steven’s death was a homicide. From these facts, the

jury reasonably could infer that Burleson actually killed Steven. “The absence of physical

evidence does not negate a conviction where there is testimonial evidence.” Brown v. State,

130 So. 3d 1074, 1082 (Miss. 2013) (quoting Graham v. State, 812 So. 2d 1150, 1153 (Miss.

Ct. App. 2002)). Cartwright also testified that either Burleson or Huguley carried a television

and other personal property out of the Holleys’ house and placed those items in her car. The

State presented evidence that Huguley had taken a handgun from Cook’s house on the

morning of the murder, and the same gun was found in the car Burleson was driving on the

day of his arrest. Based on this evidence, the State argued, and the jury reasonably could

have inferred, that Burleson and Huguley had a ‘“community of intent’ for the commission

of the crime.” Welch v. State, 566 So. 2d 680, 684 (Miss. 1990) (citing Malone v. State, 486

So. 2d 360 (Miss. 1986)). After reviewing the evidence presented in this case, we do not find

that a reasonable jury only could have found Burleson not guilty of the charged offense. See

Weeks v. State, 122 So. 3d 373, 379 (Miss. 2013). This argument is without merit.

                                      CONCLUSION



                                              21
¶40.   For the foregoing reasons, we reverse Burleson’s conviction and sentence and remand

this case to the Prentiss County Circuit Court for a new trial.

¶41.   REVERSED AND REMANDED.

     DICKINSON, P.J., CHANDLER AND COLEMAN, JJ., CONCUR.
KITCHENS, J., CONCURS IN PART AND IN RESULT WITH SEPARATE
WRITTEN OPINION JOINED BY KING, J. KING, J., CONCURS IN PART AND
IN RESULT WITHOUT SEPARATE WRITTEN OPINION. PIERCE, J., DISSENTS
WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J., AND
LAMAR, J.

       KITCHENS, JUSTICE, CONCURRING IN PART AND IN RESULT:

¶42.   I agree with the plurality that the trial court erred in not granting Charles Burleson a

circumstantial evidence instruction. The prosecution presented no direct evidence of the

gravamen of capital murder, and Burleson therefore was entitled to a jury instruction

informing the jury that the State must prove the defendant’s guilt “beyond a reasonable doubt

and to the exclusion of every reasonable hypothesis consistent with innocence.” Leflore v.

State, 535 So. 2d 68, 70 (Miss. 1988); Montgomery v. State, 515 So. 2d 845, 848 (Miss.

1987); Westbrook v. State, 32 So. 2d 251, 251 (Miss. 1947).

¶43.   I also agree with the plurality’s well-reasoned analysis that the trial court erred by

allowing an amendment to the indictment to charge Burleson as an habitual offender. In

Mississippi, criminal defendants accused of felonies have a constitutional right to an

indictment supported by probable cause. See Ginn v. State, 860 So. 2d 675, 683 (Miss.

2003); Miss Const. art. 3, § 27. It follows that amendments to indictments also must be

supported by probable cause. See Edwards v. State, 737 So. 2d 275, 293 (Miss. 1999). We

have defined probable cause as being “less than evidence which would justify condemnation

                                             22
. . . but more than bare suspicion.” Powe v. State, 235 So. 2d 920 (Miss. 1970) (internal

citations omitted). Thus, the question concerning the legitimacy of this amendment to the

indictment turns on whether it was supported by probable cause. In order to prosecute a

criminal defendant as an habitual offender under Section 99-19-83 of the Mississippi Code,

the State must prove that the defendant previously has been convicted of two felonies. One

of those two felonies must have been for a “crime of violence.” Miss. Code Ann. § 99-19-83

(Rev. 2007). Here, the State submitted proof that Burleson previously had been convicted

of five burglaries. In Brown, we held that a burglary conviction is not per se a crime of

violence. Brown v. State, 102 So. 3d 1087, 1091 (Miss. 2012). Proof of a prior burglary

conviction therefore does not provide probable cause to amend an indictment under Section

99-19-83. Turning to the proof that the prosecution submitted to support amendment of the

indictment of this case, it is clear that none of that evidence established that Burleson

previously had been convicted of any violent crime. Thus, the amendment to the indictment

was supported by nothing other than the prosecutor’s unsupported assertion that “[a]t least

one of the foregoing convictions was for a crime of violence . . . .” A prosecutor’s

unsubstantiated assertions do not give rise to probable cause, and it is clear that the

amendment to the indictment here is unconstitutional in that it is unsupported by probable

cause. Miss. Const. art. 3, § 27.

¶44.    Because, however, the trial court also erred by failing to exclude the gun from

evidence, I concur only in part and in the result reached by the plurality.

                                     A. The Handgun



                                             23
¶45.   Prior to trial, Burleson’s counsel filed a motion in limine seeking to exclude the

handgun found in the car Burleson was driving on the day of his arrest. The State then

assured the trial court that “the gun will be linked to other testimony not to – to the capital

murder via the robbery which occurred and things that followed this event . . . .” The State

never made good on this promise.

¶46.   Rule 402 of the Mississippi Rules of Evidence warns that “[e]vidence which is not

relevant is not admissible.” Relevant evidence is defined as “evidence having any tendency

to make the existence of any fact that is of consequence to the determination of the action

more probable or less probable than it would be without the evidence.” M.R.E. 401. Here,

it is indisputable that the handgun had no connection to the crime charged in the indictment

and that the prosecution never proved that it did. In effect, the State displayed a handgun to

the jury during the guilt phase of Burleson’s murder trial. There was no proof that the

decedent was shot or that he ever saw this weapon. Burleson objected to the admissibility

of the handgun and was irrevocably prejudiced by its admission.3

¶47.   Also, we should not consider the handgun in a vacuum. Not only did it have nothing

to do with the alleged crime, it also was exhibited during a trial in which the court did not

submit a circumstantial evidence instruction to the jury. Thus, whatever harm the irrelevant

weapon inflicted upon the fairness of Burleson’s trial was made worse by the absence of a

circumstantial evidence instruction.

       3
        The presence of the gun was so prejudicial and irrelevant that it likely confused the
jury. In fact, in its brief submitted to this Court, the State itself gets confused about the
importance of the handgun, opining “[t]his case arises from the May 15, 2010, shooting
death of Stephen Holley, in Prentiss County, Mississippi.”

                                              24
                                      CONCLUSION

¶48.   Ultimately, the handgun was patently irrelevant, and its admission, despite Burleson’s

well-pled motion in limine, prejudiced Burleson’s defense. Thus, while agreeing with the

plurality that the trial court erred by refusing to instruct the jury regarding circumstantial

evidence and by allowing the prosecution to charge Burleson as an habitual offender under

Section 99-19-83, I concur in part and in result only.

       KING, J., JOINS THIS OPINION.

       PIERCE, JUSTICE, DISSENTING:

¶49.   Respectfully, I dissent from the plurality’s decision to reverse Charles David

Burleson’s conviction for failure to grant a circumstantial-evidence instruction. As previous

members of this Court have recognized and expressed, this instruction is a mere restatement

of the reasonable-doubt burden of proof and serves no real purpose, and I am in accord with

those who have called for its abolition. See Mack v. State, 481 So. 2d 793, 796 (Miss. 1985)

(Robertson, J., concurring); Montgomery v. State, 515 So. 2d 845, 849 (Miss. 1987)

(Robertson, J., concurring); King v. State, 580 So. 2d 1182, 1192 (Miss. 1991) (Banks, J.,

concurring); Stringfellow v. State, 595 So. 2d 1320, 1322 (Miss. 1992) (Pittman, J.,

concurring).

¶50.   Criticism of the instruction is best summarized in Justice Robertson’s concurring

opinion in Mack, in which he opined:

       Upon reflection, it seems that the circumstantial evidence instruction and the
       many battles this Court has fought regarding when it should be given may in
       reality be much ado about nothing. If an accused’s guilt is established to the
       exclusion of every reasonable hypothesis consistent with innocence, then it


                                             25
       may be said that he has been found guilty beyond a reasonable doubt.
       Conversely, if the evidence has not excluded from the juror’s mind a
       reasonable hypothesis consistent with innocence, it follows that the State has
       not established guilt beyond a reasonable doubt. After all, what – and all – that
       is constitutionally required is that the accused’s guilt be established beyond a
       reasonable doubt, period. See Jackson v. Virginia, 443 U.S. 307, 315, 99 S.
       Ct. 2781, 61 L. Ed. 2d 560 (1979).

Mack, 481 So. 2d at 797 (Robertson, J., concurring) (emphasis in original).

¶51.   Indeed, the United States Supreme Court has rejected the notion that a circumstantial-

evidence instruction must be given in any criminal case lacking direct evidence. Holland v.

U.S., 348 U.S. 121, 75 S. Ct. 127, 99, L. Ed. 150 (1954). In Holland, the Court held that

“the better rule is that where the jury is properly instructed on the standards of reasonable

doubt, such an additional instruction on circumstantial evidence is confusing and incorrect.”

Id. at 140 (citations omitted). The Court reasoned:

       Circumstantial evidence in this respect is intrinsically no different from
       testimonial evidence. Admittedly, circumstantial evidence may in some cases
       point to a wholly incorrect result. Yet this is equally true of testimonial
       evidence. In both instances, a jury is asked to weigh the chances that the
       evidence correctly points to guilt against the possibility of inaccuracy or
       ambiguous inference. In both, the jury must use its experience with people and
       events in weighing the probabilities. If the jury is convinced beyond a
       reasonable doubt, we can require no more.

Id.

¶52.   In reliance on Holland, the federal courts have abolished any distinctions between

direct and circumstantial evidence, both in addressing jury instructions and in judging the

sufficiency of the evidence.4 A majority of the states have followed suit.5 Review of the

       4
        See U.S. v. Johnson, 713 F.2d 633, 653 (11th Cir. 1983); U.S. v. Atnip, 374 F.2d
720, 722 (7th Cir. 1967); Wood v. U.S., 361 F.2d 802, 806 (8th Cir. 1966); Dirring v. U.S.,
328 F.2d 512, 515 (1st Cir. 1964); Strangway v. U.S., 312 F.2d 283, 285 (9th Cir. 1963);

                                              26
decisions of other jurisdictions applying Holland reveals several compelling concerns with

the instruction.



Hunt v. U.S., 316 F.2d 652, 654 (D.C. Cir. 1963); U.S. v. Thomas, 303 F.2d 561, 563 (6th
Cir. 1962); U.S. v. Moia, 251 F.2d 255, 258 (2d Cir. 1958); Corbin v. U.S., 253 F.2d 646,
649 (10th Cir. 1958);U.S. v. Allard, 240 F.2d 840, 841 (3d Cir. 1957); Brewer v. U.S., 224
F.2d 189, 191 (5th Cir. 1955).
       5
          See State v. Logan, 747 S.E.2d 444, 452 (S.C. 2013) (requiring trial courts to give
a jury instruction that defines direct and circumstantial evidence, explains that neither
category of evidence is entitled to greater weight, and imposes the reasonable-doubt burden
of proof); State v. Dorantes, 331 S.W.3d 370 (Tenn. 2011); Ex parte Carter, 889 So. 2d
528 (Ala. 2004); State v. Humpherys, 8 P.3d 652 (Idaho 2000); State v. Guthrie, 194
S.E.2d 163 (W. Va. 1995); State v. Grim, 854 S.W.2d 403 (Mo. 1993); State v. Jenks, 574
N.E.2d 492, 503 (Ohio 1991), superseded by constitutional amendment on other grounds
as stated in State v. Smith, 684 N.E.2d 668 (Ohio 1997); Commonwealth v. Sanders, 551
A.2d 239 (Pa. Super. 1988); People v. Bryant, 499 N.E.2d 413 (Ill. 1986); State v. Adcock,
310 S.E.2d 587 (N.C. 1984); Hankins v. State, 646 S.W.2d 191 (Tex .Crim. App.1983);
State v. Smith, 434 A.2d 664, 668 (Conn. 1981); State v. Derouchie, 440 A.2d 146 (Vt.
1981); Matter of Use by Trial Courts of Standard Jury Instructions in Criminal Cases,
431 So. 2d 594 (Fla. 1981); State v. Eagle, 611 P.2d 1211 (Utah 1980); State v. Turnispeed,
297 N.W.2d 308 (Minn. 1980); State v. O’Connell, 275 N.W.2d 197 (Iowa 1979); State v.
Roddy, 401 A.2d 23 (R.I. 1979); State v. Bell, 560 P.2d 925 (N.M. 1977); State v. Bush,
569 P.2d 349 (Haw. 1977); State v. Cowperthwaite, 354 A.2d 173 (Me.1976); Bails v.
State, 545 P.2d 1155 (Nev. 1976); State v. Gosby, 539 P.2d 680 (Wash. 1975); Blakely v.
State, 542 P.2d 857 (Wyo.1975); People v. Austin, 523 P.2d 989 (Colo. 1974); State v.
Draves, 524 P.2d 1225 (Or. App. 1974); State v. Wilkins, 523 P.2d 728 (Kan. 1974); Henry
v. State, 298 A.2d 327 (Del.1972); Murray v. State, 658 S.W. 2d 438, 442-43 (Ark. 1971),
but see Ward v. State, 658 S.W.2d 379 (Ark. 1983); State v. Harvill, 476 P.2d 841 (Ariz.
1970); Allen v. State, 420 P.2d 465 (Alaska 1966); State v. Ray, 202 A.2d 425 (N.J. 1964);
Holland v. Commonwealth, 323 S.W.2d 411 (Ky.1959). See also Hebron v. State, 627
A.2d 1029 (Md. 1993) (holding that the “reasonable hypothesis” test is a matter of
evidentiary sufficiency to be determined by the court, and not the proper subject of jury
instructions); People v. Seabrooks, 354 N.W. 2d 374 (Mich. App. 1984) (holding that a
circumstantial-evidence instruction should be given only “where the circumstantial evidence
against the defendant is weak.”); Johnson v. State, 632 P.2d 1231 (Okl. Crim. App.1981)
(holding that the “reasonable hypothesis” test may be used by the court in testing the
sufficiency of the evidence, but that it should be included in the jury instructions only to cure
some other grossly misleading instruction).


                                               27
¶53.   First, due to the difficulty of identifying certain evidence as “circumstantial” or

“direct,” courts have long struggled to identify accurately the circumstances in which rules

regarding circumstantial evidence should be applied. More than twenty years ago, Justice

Robertson noted that “[c]areful, but not exhaustive, research” revealed eighteen different

articulations of the test for determining when the circumstantial-evidence instruction should

be given. See Montgomery, 515 So. 2d at 849-50. While this Court recently has endeavored

to establish a more uniform rule, see Kirkwood, 52 So. 3d at 1186-87; McInnis, 61 So. 3d

at 876, it is beyond argument that “evidence in criminal cases does not fit into two nice, neat,

mutually exclusive categories: direct and circumstantial. There are too many shades of gray.

Most trials are full of evidence from one end of the spectrum to the other.” Keys v. State,

478 So. 2d 266, 268 (Miss. 1985).

¶54.   Once a court has undertaken the complicated, and in some cases impracticable, task

of determining whether a circumstantial-evidence instruction is warranted, another problem

arises. The simple act of giving the instruction in one class of cases, but not in others,

erroneously implies that there is a legally significant distinction between circumstantial and

direct evidence. The Holland Court confirmed that these categories of evidence are

“intrinsically no different.” Holland, 348 U.S. at 140.

¶55.   Mississippi already follows the above line of reasoning. Under this Court’s precedent,

“[c]ircumstantial evidence is entitled to the same weight and effect as direct evidence and

this Court has upheld convictions based solely on circumstantial evidence.” Cardwell v.

State, 461 So. 2d 754, 761 (Miss. 1984) (citations omitted). See also Bogard v. State, 233



                                              28
So. 2d 102, 105 (Miss. 1970) (citations omitted) (“[I]t has been held generally and also by

this Court that circumstantial evidence is not inferior to direct evidence when all of the facts

are considered.”).

¶56.     Burleson argues that, while direct and circumstantial evidence may have equal

probative value in some cases, the manner in which the jury analyzes the evidence is

different. No, not really, as the Honorable Learned Hand recognized even prior to Holland:

         All conclusions have implicit major premises drawn from common knowledge;
         the truth of testimony depends as much upon these, as do inferences from
         events. A jury tests a witness’s credibility by using their experience in the past
         as to similar utterances of persons in a like position. That is precisely the same
         mental process as when they infer from an object what has been its past
         history, or from an event what must have proceeded [sic] it. All that can be
         asked is that the importance of the result to the accused shall demand a
         corresponding certainty of his guilt; and this is commonly and adequately
         covered by telling them that the conclusion shall be free from fair doubt. To
         elaborate this into an inexorable ritual, or to articulate it for different
         situations, is more likely to impede, than to promote, their inquiry.

U.S. v. Becker, 62 F.2d 1007, 1010 (2d Cir. 1933). The circumstantial-evidence instruction

does not instruct the jury in any way concerning the differences between the two categories

of evidence or how to analyze them. The circumstantial-evidence instruction “only serves

to confuse laymen into supposing that they should use circumstantial evidence otherwise than

testimonial.” State v. Harvill, 476 P.2d 841, 844 (Ariz. 1970) (quoting Becker, 62 F.2d at

1010).

¶57.     In my opinion, the most problematic aspect of the instruction is that the additional

“reasonable hypothesis” language suggests to the jury that the State is held to a distinct and

higher burden of proof in cases lacking a confession from the defendant or eyewitness



                                                29
testimony to the gravamen of the offense. This implicates not only the jury’s duty as the trier

of facts at trial, but this Court’s responsibility to judge the sufficiency of the evidence on

appeal. The United States Supreme Court has rejected the notion that the burden of proof

is somehow heightened in “circumstantial-evidence cases,” holding that, in all criminal cases,

the Constitution requires that the prosecution must establish all elements of the offense

against the accused beyond a reasonable doubt. See Jackson, 443 U.S. at 315; In re

Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). “Indeed, so long as

the court instructs the jury on the necessity that the defendant’s guilt be established beyond

a reasonable doubt, . . . the Constitution does not require that any particular form of words

be used in advising the jury of the government’s burden of proof.” Victor v. Nebraska, 511

U.S. 1, 5, 114 S. Ct. 1239, 127 L. Ed. 2d 583 (1993) (citations omitted). Even in

jurisdictions where the instruction has not yet been abolished, courts are in agreement that

the level of proof necessary to convict a defendant is not affected merely by the categories

of evidence presented at trial. See, e.g., Brown v. State, 391 S.E.2d 108, 110 n.2 (Ga. 1990)

(rejecting defendant’s argument that Georgia’s statutory circumstantial-evidence rule

imposes a stricter standard of review, and recognizing that “in order for wholly

circumstantial evidence to authorize a rational trier of fact in finding the defendant guilty

beyond a ‘reasonable’ doubt, it would have to exclude every ‘reasonable’ hypothesis save

that of guilt”); State v. Wright, 445 So. 2d 1198 (La. 1984) (holding that Louisiana’s

statutory circumstantial-evidence rule does not create a standard separate from Jackson v.

Virginia, but is an evidentiary guideline to facilitate appellate review of whether a reasonable



                                              30
juror could have found a defendant guilty beyond a reasonable doubt); People v. Towler, 641

P.2d 1253, 1259-60 (Cal. 1982) (holding that the circumstantial-evidence instruction is

“primarily for the guidance of the trier of fact” and does not create a stricter standard of

review in circumstantial-evidence cases).

¶58.   In accord with this reasoning, this Court has recognized that instructing the jury only

on the reasonable-doubt standard is, “practically speaking, no less stringent than a

circumstantial instruction requiring the jury to find the accused’s guilt beyond a reasonable

doubt and ‘to the exclusion of every reasonable hypothesis other than that of guilt.”

Stringfellow, 595 So. 2d at 1322 (emphasis added). The majority in Stringfellow shared

Justice Robertson’s criticism in Mack that “[i]f a juror has a reasonable doubt of the

defendant’s guilt, certainly there is a reasonable hypothesis consistent with innocence.” Id.

Thus, the addition of a circumstantial-evidence instruction “suggests that a unique standard

governs cases in which the evidence of guilt is entirely circumstantial, that the burden of

proof in those cases is different in some fundamental respect.” People v. Bryant, 499 N.E.

2d 413, 419 (Ill. 1986). “Rather than aiding jurors in applying the reasonable doubt standard,

an additional charge on circumstantial evidence focusing on the ‘reasonable hypothesis’

theory serves only to distract jurors from examining the proper standard of proof as the

primary focus of their deliberations.” Hankins v. State, 646 S.W. 2d 191, 1999 (Tex. Ct.

Crim. App. 1981).

¶59.   Today, I would clarify for our jurisprudence that one standard of proof applies in all

criminal cases in Mississippi: the State bears the burden of proving every element of the



                                             31
offense beyond a reasonable doubt.6 See Winship, 397 U.S. at 364; Jackson, 443 U.S. at

318-19.    The reasonable-hypothesis “standard” found in our circumstantial-evidence

instruction merely repeats the proper burden of proof in different terms, and the instruction

impermissibly attempts to add vocabulary to the reasonable-doubt standard. “The beyond

a reasonable doubt standard is a requirement of due process, but the Constitution neither

prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter

of course.” Victor, 511 U.S. at 5. Antithetically, this Court has long prohibited the lower

courts of this State from attempting to define the term “reasonable doubt” through jury

instructions, finding that the term is “obscure and it must be assumed that the members of the

jury were men of ordinary intelligence and capable of understanding their meaning.”

Cannon v. State, 190 So. 2d 848, 851 (Miss. 1966). Distinctions among “reasonable doubt,

all possible doubt, beyond a shadow of a doubt, and the like,” are not properly the subject of

jury instructions. Heidelberg v. State, 584 So. 2d 393, 396 (Miss. 1991). Reasonable doubt

is synonymous with a reasonable hypothesis other than that of guilt, and this Court’s

       6
         In so holding, we reject Burleson’s argument that the Court of Appeals has held that
the reasonable-hypothesis “standard” is distinct from the general reasonable-doubt standard.
See State v. McMurry, 906 So. 2d 43, 47 (Miss. Ct. App. 2004). In McMurry, the State
appealed the defendant’s acquittal, arguing that the trial court erred in giving what was
essentially a circumstantial-evidence instruction. The Court of Appeals held that the
instruction should not have been given because the evidence against the defendant was not
entirely circumstantial. Id. The Court of Appeals rejected the defendant’s argument that the
instruction was a reasonable-doubt instruction, noting that “the standard reasonable doubt
instruction does not require examination of every reasonable hypothesis other than that of
guilt.” Id. But the Court of Appeals did not hold that the “reasonable hypothesis” language
in the defendant’s instruction imposed a higher burden of proof. Rather, the Court of
Appeals merely recognized that the Mississippi Model Jury Instruction for reasonable doubt,
unlike the defendant’s proffered instruction, did not include the “reasonable hypothesis”
language. See id.

                                             32
continued support of the circumstantial-evidence instruction contradicts our own admonition

that reasonable doubt should not be defined by the courts.

¶60.   Burleson urges this Court to refrain from joining the growing number of jurisdictions

that have abolished the circumstantial-evidence instruction, arguing that an important

distinction exists in Holland that diminishes its persuasive power to this Court. Burleson

points out that the Holland Court’s holding was based on a federal rule entitling a criminal

defendant to a jury instruction defining the term “reasonable doubt.” See Holland v. U.S.,

209 F.2d 516, 523 (10th Cir. 1954). Because the jury in Holland was “properly instructed

on the standards of reasonable doubt” in accordance with this rule, the Court held that no

further instruction was required. Holland, 348 U.S. at 140. Burleson claims that, because

Mississippi courts do not give definitional instructions on reasonable doubt, Holland should

have no bearing on this Court’s decision regarding the propriety of the circumstantial-

evidence instruction.

¶61.   As stated above, courts are neither prohibited from nor required to define the

reasonable-doubt standard. Victor, 511 U.S. at 5. Rather, as the Holland Court held, “taken

as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the

jury.” Holland, 348 U.S. at 140. In abolishing its circumstantial-evidence instruction, the

Supreme Court of Illinois rejected an argument identical to the one presented by Burleson,

holding:

       We are not persuaded that in the absence of a definition of reasonable doubt
       the “reasonable theory of innocence” charge must be retained as a sort of
       proxy for a definition of that term. The question whether the instruction
       should be retained is, we believe, distinct from the question of whether

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       reasonable doubt must be defined. We do not consider here whether an
       instruction defining reasonable doubt is necessary; if one were required, we
       see no reason why the same definitional instruction would not be used in all
       cases, no matter whether the evidence of guilt was wholly direct, wholly
       circumstantial, or a mixture of the two. Thus, no purpose is served by
       preserving here, for this category of cases, an instruction that is at once
       obscure and misleading.

Bryant, 499 N.E.2d at 419-20. I find the Bryant Court’s reasoning persuasive. As stated

above, the State’s burden of proof remains the same in all cases regardless of whether it

produces direct evidence of the crime. Because an additional circumstantial-evidence

instruction is required only in certain classes of cases, without explanation to the jury, it is

both duplicitous and misleading.

¶62.   While I remain adherent and reverential to stare decisis, the careful and thoughtful

analysis of other courts addressing this issue leads me to the conclusion that the

circumstantial-evidence instruction serves no legitimate purpose and should no longer be

used. Abolishing the circumstantial-evidence instruction will serve the beneficial purpose

of eliminating the “aggregate hodgepodge” of precedent attempting to explain when the

instruction is warranted. See Montgomery, 515 So. 2d at 849 (Robertson, J., concurring).

It also will “promote uniformity and eliminate the endless arguments over whether a case is

circumstantial or direct.” King, 580 So. 2d at 1195 (Banks, J., concurring). And, most

importantly, it will establish consistency in this Court’s review of the sufficiency of the

evidence in all criminal cases.

¶63.   Here, Burleson’s proffered instruction did not provide any legally significant

information that was not covered elsewhere in the instructions actually given to the jury. All



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of the evidence presented against him, whether direct or circumstantial, was entitled to the

same weight and effect. The jury was properly instructed on the presumption of innocence

and the State’s burden of proving every material element of the crime charged beyond a

reasonable doubt. The jury also was instructed that a reasonable doubt could arise from a

lack of evidence, insufficiency of the evidence, or a conflict in evidence. Having been so

instructed, it was the jury’s duty to determine, based on all the evidence presented, whether

the evidence established each element of the offenses charged beyond a reasonable doubt.

¶64.   I see no logical reason to continue to require trial courts to give an instruction that

provides the jury with no legally relevant information, but serves only to confuse the jury’s

duty as the finder of fact. For these reasons, I would abolish the so-called circumstantial-

evidence instruction. And I would find Burleson’s assignment of error to be without merit.

¶65.   Lastly, I would not address Burleson’s claim that the trial court erred in allowing the

State to amend the indictment to include habitual-offender status under Mississippi Code

Section 99-19-83 (Supp. 2014). There is no controversy for our review since the State

withdrew the habitual-offender charge. And this Court does not issue advisory opinions.

Nelson v. State, 72 So. 3d 1038, 1045 (Miss. 2011).

       RANDOLPH, P.J., AND LAMAR, J., JOIN THIS OPINION.




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