                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2008-CT-01576-SCT

JOHNNY MCINNIS

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          08/25/2008
TRIAL JUDGE:                               HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                 JONES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   OFFICE OF INDIGENT APPEALS
                                           BY: JUSTIN T. COOK
                                                LESLIE S. LEE
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                         ANTHONY J. BUCKLEY
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               REVERSED AND REMANDED - 04/07/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       LAMAR, JUSTICE, FOR THE COURT:

¶1.    This Court granted Johnny McInnis’s petition for certiorari, in which he appeals the

affirmance of his conviction for burglary of a dwelling. McInnis argues that the trial court

committed reversible error in failing to grant a two-theory instruction when the State

presented no direct evidence that he committed the crime of burglary. We agree and reverse

and remand, as the trial court failed to grant any circumstantial-evidence instruction.
                                             FACTS

¶2.    On the night of October 8, 2007, eighty-four-year-old Hillary Kissenger awoke to an

unfamiliar noise and discovered a black male in her bedroom. She testified that, while she

did not have her glasses on, she could discern that the intruder had a light complexion with

curly hair and wore a white t-shirt and belt. Kissenger saw the intruder grab her purse and

run out of the house. She immediately called the police.

¶3.    At approximately 10:55 p.m., the police received Kissenger’s 911 call. Sergeant

Shannon Caraway was on patrol two blocks from Kissenger’s home on Thirty-second Street

when she received a dispatch call to be on the lookout for a black male wearing a white t-

shirt. Caraway immediately proceeded toward Kissenger’s home and had turned onto Thirty-

third Street when she saw a black male wearing a white t-shirt drive past her. Caraway

turned around and followed the car as it proceeded to travel at a high rate of speed. At 10:56

and 37 seconds, the car stopped approximately six blocks from the site of the burglary, and

Caraway identified the driver as Johnny McInnis. McInnis also had a passenger, Bonnie

Woods Armstrong,1 described as a “black hispanic female.”

¶4.    Caraway asked McInnis why he was driving so fast, and Armstrong answered that she

needed to use the rest room. Caraway also told McInnis that his description matched that of

someone who had just committed a burglary. While Caraway did not tell McInnis where the

burglary had occurred, McInnis voluntarily responded that he “was just on Thirty-second

Street trying to hustle some Mexicans.” Caraway then noticed that there were three purses




       1
           Armstrong did not testify at trial.

                                                 2
on the front seat between McInnis and Armstrong. Armstrong identified one purse as hers,

but she did not know who owned the other purses or where they had come from. Caraway

determined that one purse belonged to Kissenger, because it contained several items bearing

Kissenger’s name. Kissenger’s wallet, which contained her driver’s license and social

security card, also was found in the car. Caraway also discovered two, crumpled Tustmark

Bank envelopes approximately eight feet from the driver’s side of McInnis’s car. Kissenger

went to the scene and identified the purse and envelopes as hers.

¶5.    McInnis’s mother, Ruthie Mae McInnis, testified that, on the night of October 8, 2007,

she had received a phone call from a female asking to speak to her son. Mrs. McInnis

testified that her son had spoken to the female and then had left the house.

¶6.    Johnny McInnis testified that Armstrong had called him around 10:00 p.m. or 10:30

p.m. on October 8, 2007, and had asked him to pick her up at Thirty-second Street. McInnis

stated that he picked up Armstrong approximately thirty or thirty-five minutes later in a

driveway and helped her put her belongings into his car. McInnis testified that Armstrong

had two purses.

¶7.    McInnis denied burglarizing Kissenger’s home and telling Sergeant Caraway that he

had tried to hustle Mexicans for money. He also stated that no Trustmark envelopes had

been on the ground near his car at the time of his arrest.

                           COURT OF APPEALS DECISION

¶8.    The Court of Appeals found that the trial court properly had denied McInnis’s two-

theory instruction, as the evidence was not purely circumstantial and the instruction was




                                              3
cumulative with the elements instruction.2 The Court of Appeals found the following facts

to be direct evidence, requiring a denial of McInnis’s two-theory instruction:

       In this case, Kissenger testified that the burglar was a black male wearing a
       white T-shirt. The record indicates that McInnis was in the vicinity during the
       time the burglary occurred. McInnis was spotted by Officer Caraway leaving
       the area within seconds of the 911 call being placed by Kissenger. McInnis
       was subsequently chased and detained by the police. When McInnis was
       detained, Officer Caraway informed McInnis that he fit the description of a
       stocky black male wearing a white T-shirt, who had just committed a burglary
       of a dwelling house. McInnis told Officer Caraway that he was just on 32
       Street trying to “hustle” some Mexicans. Officer Caraway testified that she
       did not tell McInnis where in the area the burglary had occurred. Also, during
       their investigation, the officers found Kissenger’s purse on the front seat of the
       car that McInnis was driving.3

The Court of Appeals also found that the proffered two-theory instruction was cumulative

with the following instruction (S-1), which the trial court had granted:

             JOHNNY L. MCINNIS, has been charged in Count I with the offense
       of Burglary of a Dwelling House.

                 If you find from the evidence in this case beyond a reasonable doubt
       that:

             1. Johnny L. McInnis, on or about the 8 day of October, 2007, in the
       Second Judicial District of Jones County, Mississippi;

                 2. Did break and enter;

               3. The dwelling house of Hillary D. Kissenger located at 1438 32
       Street, Laurel, Mississippi;

                 4. With the intent to commit the crime of larceny therein;

              5. Once therein, Johnny L. McInnis, did unlawfully take, steal and
       carry away the personal property of Hillary Kissenger;


       2
           McInnis v. State, 2010 WL 522692, at *5 (Miss. Ct. App. Feb. 16, 2010).
       3
           Id. at *4.

                                               4
              Then you shall find the defendant, Johnny L. McInnis, guilty in Count
       1 of Burglary of a Dwelling House.

             If the State has failed to prove any one or more of the above elements
       beyond a reasonable doubt, then you shall find the defendant, Johnny L.
       McInnis, not guilty in Count I of Burglary of a Dwelling House.4

¶9.    Instruction S-1 contains no language that is traditionally included in any

circumstantial-evidence instruction. It is a customary elements instruction containing the

reasonable-doubt standard.5 Therefore, we next analyze whether the trial court erred in

failing to grant McInnis’s two-theory instruction, when no other circumstantial-evidence

instruction was granted.
                                        DISCUSSION

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

standard.6 Jury instructions must be read as a whole to determine if they fairly announce the

law,7 and they must be supported by evidence.8 “[A] court may refuse an instruction which

incorrectly states the law, is covered fairly elsewhere in the instructions, or is without




       4
           Id. at *5.
       5
        This flawed reasoning is found in another Court of Appeals’ decision, Moses v. State
30 So. 3d 391, 395 (Miss. Ct. App. 2010). Instructing the jury that it must find the elements
of a crime beyond a reasonable doubt does not cure and render harmless the trial court’s
refusal of a circumstantial-evidence instruction where such an instruction is warranted. See
Stringfellow v. State; 595 So. 2d 1320, 1322 (Miss. 1992); Gilleylen v. State, 255 So. 2d
661, 663 (Miss. 1971); Kendall v. State, 217 So. 2d 35, 36 (Miss. 1968).
       6
           Davis v. State, 18 So. 3d 842, 847 (Miss. 2009).
       7
           Id.
       8
           Jackson v. State, 815 So. 2d 1196, 1200 (Miss. 2002).

                                               5
foundation in the evidence.” 9 Because we find the trial court committed reversible error in

failing to grant a two-theory instruction as requested by McInnis, we decline to address the

second issue raised on appeal: Whether the trial court erred in granting an accomplice

instruction.

¶11.   We begin our discussion by defining “circumstantial evidence.” Circumstantial

evidence is “evidence which, without going directly to prove the existence of a fact, gives

rise to a logical inference that such fact does exist.” 10 In this case, McInnis submitted a two-

theory instruction, which is a specific type of circumstantial-evidence instruction. A two-

theory instruction instructs the jury what to do when the “record supports two or more

hypotheses of the crime committed” and all the evidence of the crime is circumstantial.11

This court recently has held that a trial court may refuse a two-theory instruction if it has

granted a (general) circumstantial-evidence instruction.12 A circumstantial-evidence

instruction provides that the State must prove the defendant guilty beyond a reasonable doubt

and to the exclusion of all reasonable hypotheses consistent with innocence.13 In this case,




       9
           Jones v. State, 797 So. 2d 922, 927 (Miss. 2001).
       10
            Keys v. State, 478 So. 2d 266, 268 (Miss. 1985).
       11
         Goff v. State, 14 So. 3d 625, 677-78 (Miss. 2009) (Waller, C.J., dissenting) (The
term “‘two-theory’ is a misnomer. A better name would be a ‘two-interpretation’
instruction[.]”)
       12
         Id. at 625, 662-63 (finding that circumstantial-evidence instruction embodies
essentials of a two-theory instruction).
       13
            State v. Rogers, 847 So. 2d 858, 864 (Miss. 2003).

                                               6
McInnis did not request a circumstantial-evidence instruction, but as previously noted, he did

request a two-theory instruction.

¶12.   While a two-theory instruction is different from a circumstantial-evidence instruction,

“the rules for when they are appropriately given apply to both.” 14 But our caselaw has been

less than clear as to the application of these “rules.” 15 As noted by Justice Robertson in his

concurring opinion in Montgomery v. State, this Court has “no less than eighteen

articulations of the test for determining whether and when the circumstantial evidence burden

of proof rule should apply.” 16

¶13.   Earlier this year, this Court addressed a similar case, and, speaking for a unanimous

court, Justice Kitchens again articulated a rule for cases in which a circumstantial evidence

instruction is warranted when requested by the defendant: “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.” 17 The term “gravamen” is defined as the “substantial

point or essence of a claim, grievance, or complaint.” 18 Therefore, if any evidence presented




       14
            Id. at 864.
       15
            Montgomery v. State, 515 So. 2d 845, 849 (Miss. 1987) (Robertson, J., concurring).
       16
            Id.
       17
        Kirkwood v. State, 52 So. 3d 1184, 1187 (Miss. 2011) (quoting Mack v. State, 481
So. 2d 793, 795 (Miss. 1985)).
       18
            Black’s Law Dictionary 562 (7th ed. 2000).

                                                7
fits the direct-evidence definition from Kirkwood, the trial court may properly refuse a

circumstantial-evidence instruction.

¶14.   The gravamen for the offense of burglary of a dwelling are that: (1) McInnis broke

into and entered Kissenger’s home and that (2) McInnis had the intent to commit some crime

therein.19 In this case, the State was required to prove either directly or circumstantially that

McInnis was the man who broke into and entered Kissenger’s home with the intent to commit

larceny. And in fact, the jury was instructed to that effect. But Kissenger did not testify that

she saw McInnis commit any act in her home, nor is there any other direct evidence that

identifies McInnis as the perpetrator. The gravamen for this offense is tied to a specific

defendant. Furthermore, McInnis never confessed or made any admission to a significant

element of the crime. While the Court of Appeals identified various testimony as direct

evidence that a crime was committed, this was not direct evidence that McInnis committed

the crime of burglary. Therefore, the trial court abused its discretion by denying a two-theory

instruction, because it gave no other circumstantial instruction.

                                       CONCLUSION

¶15.   The trial court abused its discretion in refusing to grant McInnis a two-theory

instruction, as the State presented no direct evidence that McInnis committed the crime of

burglary. Therefore, we reverse and remand for a new trial consistent with this opinion.

¶16.    REVERSED AND REMANDED.




       19
            Miss. Code Ann. § 97-17-23 (Rev. 2006).

                                               8
    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH,
KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.  KING, J., NOT
PARTICIPATING.




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