Earnest H. Johnson v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-KA-00571-COA

EARNEST H. JOHNSON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/15/2021
TRIAL JUDGE: HON. LILLIE BLACKMON SANDERS
COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: ZAKIA HELEN ANNYCE BUTLER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALEXANDRA RODU ROSENBLATT
DISTRICT ATTORNEY: SHAMECA COLLINS
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED IN PART; REVERSED AND
REMANDED IN PART - 09/20/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

SMITH, J., FOR THE COURT:

¶1. An Amite County Circuit Court jury convicted Earnest Johnson of burglary of a

dwelling (Count I) and automobile theft (Count II). Following the jury’s verdict, the Amite

County Circuit Court sentenced Johnson to twenty-five years for Count I and ten years for

Count II, with both sentences to be served concurrently in the custody of the Mississippi

Department of Corrections (MDOC). The circuit court also gave Johnson credit for time

already served. On appeal, Johnson raises the following arguments: (1) the State presented

insufficient evidence to support a conviction as to Count I for burglary of a dwelling; and (2)
jury instruction S-1 omitted an essential element as to Count II for automobile theft.

¶2. Upon review, we find no reversible error as to Count I for burglary of a dwelling and

affirm Johnson’s conviction and sentence as to that charge. As to Count II, however, we find

that the jury was never instructed regarding the value of the vehicle alleged as stolen.

Because the vehicle’s value is necessary to establish the applicable statutory sentencing

range, we reverse Johnson’s conviction and sentence as to Count II for automobile theft and

remand for a new trial.

FACTS

¶3. On October 16, 2019, the Amite County Sheriff’s Office received a phone call from

a neighbor of Dennis Coggins. Although Coggins had been arrested in June 2019 and was

still incarcerated in the Amite County Jail, the neighbor noticed that Coggins’s truck

appeared to be missing from Coggins’s driveway. In response to the neighbor’s phone call,

Investigator Dewayne Whetstone went to Coggins’s residence. Investigator Whetstone found

that the gate leading to Coggins’s driveway had been left wide open, the lock had been cut

off, and Coggins’s truck was not on the property. Investigator Whetstone further found the

doors to both Coggins’s residence and shed open and the lock to the shed missing.

Investigator Whetstone testified that it appeared as though someone had rummaged through

both Coggins’s home and shed. Investigator Daniel Meaux, also employed by the Amite

County Sheriff’s Office, photographed the interior and exterior of Coggins’s home and shed.

¶4. The investigators interviewed Coggins in jail and showed him photographs of the

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interior and exterior of his home. Coggins testified that a barbed-wire fence enclosed his

property on three sides and that there was a gate across the residence’s driveway on the

fourth side of the property. At the time of his arrest, Coggins had locked the front door of

his home but had left the key in the lock. He stated that his shed had been padlocked at the

time of his arrest and that the gate across his driveway also had been closed and locked.

From the investigators’ photographs, Coggins observed that someone had cut off the padlock

on his shed door and had rummaged through the items inside his home. Coggins further

testified that the lock on his gate appeared to be missing and that the gate had been left wide

open.

¶5. Also based on the investigators’ photographs, Coggins determined that numerous

items had been stolen from his home and shed. Along with other items, the missing personal

property included TVs, about $8,500 in cash, his 2008 Chevrolet Silverado, two mini bikes,

and a dirt bike. Coggins stated that he had been incarcerated with Johnson at the Amite

County Jail and, upon learning that Johnson would be released before him, had asked if

Johnson would go to his house and bring him “some bond money.” Coggins testified that

he knew Johnson had a job lined up after he got out of jail and had offered to sell Johnson

his truck. According to Coggins, Johnson stated that “he wouldn’t feel comfortable [going

inside Coggins’s house] without written permission, and that was the end of that

conversation.” Coggins testified that he and Johnson had no further discussions about his

truck or retrieving the money from inside his house. Coggins also stated that he never told

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Johnson how much money was inside his house or exactly where the money was located.

¶6. Once they had confirmed that Coggins’s 2008 Chevrolet Silverado was missing from

his residence, the investigators marked the vehicle as stolen on the National Criminal

Information Center’s database. On December 3, 2019, the investigators received information

that Coggins’s truck had been observed being driven on Interstate 55. After alerting several

law-enforcement agencies along the route to be on the lookout for the vehicle, the

investigators learned that the truck had been stopped in Lincoln County. Johnson was the

driver and sole occupant of the vehicle at the time of the traffic stop.

¶7. Investigators Whetstone and Meaux drove to the scene and transported Johnson back

to Amite County. Johnson waived his Miranda rights1 and gave a statement to the

investigators. Investigator Meaux stated that Johnson initially claimed to have permission

to drive Coggins’s truck. When the investigators disputed Johnson’s claim, Johnson

admitted that “he took [Coggins’s] stuff and that he wanted to get back at Coggins.”

According to Investigator Whetstone, Johnson admitted that he had entered Coggins’s home,

taken cash from inside the home, and taken Coggins’s truck. Investigator Meaux testified

that Johnson had admitted to making three different trips to Coggins’s home and taking

property from the residence on each trip. Johnson provided the investigators with

information about the location of several items stolen from Coggins’s home and shed.

¶8. Following the recovery of his truck, Coggins discovered that the vehicle had sustained

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Miranda v. Arizona, 384 U.S. 436 (1966).

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body damage. About thirty days after investigators returned the truck to him, Coggins sold

the truck for $5,000. Coggins testified that in his opinion the Chevrolet Silverado had been

worth at least $5,000 at the time it was stolen. Along with Coggins’s truck, investigators

recovered and returned to Coggins a mini-bike stolen from his shed and several TVs stolen

from inside his home.

¶9. After the State rested its case-in-chief, Johnson testified on his own behalf. Johnson

stated that he and Coggins were not friends but that Coggins had learned Johnson was about

to be released from jail and had asked Johnson to go to his (Coggins’s) house and “get some

money and come bond him out.” Johnson testified that Coggins had indicated the money

would be inside a pair of pants lying on the floor in the home. Johnson stated that after his

release from jail, he went to Coggins’s residence and retrieved the money. After taking “two

more steps” into Coggins’s home and observing some of the items inside Coggins’s bedroom,

however, Johnson claimed that he could not bring himself to return to the jail and give

Coggins the money. Johnson stated that he did not have a vehicle of his own and that

Coggins was going to allow him to use the truck “to bring his [(Coggins’s)] money back.”

Then, according to Johnson, Coggins was going to allow Johnson to use the vehicle as a

work truck in his (Johnson’s) new business.

¶10. Johnson testified that he could not clearly remember whether the gate to Coggins’s

property had been opened or closed when he arrived, but he stated that he “want[ed] to say

open.” He also stated that the door to Coggins’s residence was open when he arrived and

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that “[t]he place was already wrecked all the way to the bedroom.” Johnson admitted that

he never repaid the money he took from Coggins’s residence. Even after his decision not to

return to the jail and give Coggins his money, Johnson returned to Coggins’s residence on

two other occasions. With regard to the mini-bikes and dirt bike taken from Coggins’s shed,

Johnson testified that Coggins had asked him to retrieve those items and to keep them safe

until Coggins’s release from jail. As a result, Johnson stated that he did so and that he

always intended to return the items to Coggins.

¶11. The jury convicted Johnson of both burglary of a dwelling and automobile theft. The

circuit court gave Johnson credit for time already served and sentenced him to twenty-five

years for burglary of a dwelling and ten years for automobile theft, with both sentences to be

served concurrently in MDOC’s custody. Johnson unsuccessfully moved for judgment

notwithstanding the verdict or, alternatively, a new trial. Aggrieved, he appeals.

DISCUSSION

I. Sufficiency of the Evidence as to Count I

¶12. Johnson contends that insufficient evidence supported his conviction for burglary of

a dwelling and that the circuit court erred by denying his motion for JNOV as to Count I.

Specifically, Johnson asserts that the State failed to prove beyond a reasonable doubt that he

committed a “breaking” to gain entry to Coggins’s residence. He therefore asks this Court

to reverse his conviction as to Count I.

¶13. “A JNOV motion challenges the legal sufficiency of the evidence.” Briggs v. State,

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337 So. 3d 716, 720 (¶19) (Miss. Ct. App. 2022) (quoting Valentine v. State, 322 So. 3d 417,

422 (¶15) (Miss. 2021)). When reviewing challenges to the sufficiency of the evidence, the

following standard applies:

[W]e view all evidence, including all reasonable inferences, in the light most
favorable to the State. We will affirm the conviction if any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. The issue on appeal is not whether the reviewing court would have
found the defendant guilty; rather, the conviction must be affirmed if there was
sufficient evidence for any rational trier of fact to have rendered a guilty
verdict.

Id. (citations and internal quotation marks omitted).

¶14. Mississippi Code Annotated section 97-17-23(1) (Rev. 2020) defines burglary of a

dwelling as “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 . . . .” Thus, the essential elements of burglary of a dwelling are “(1) unlawful

breaking and entering, and (2) intent to commit a crime therein.” Ward v. State, 285 So. 3d

136, 140 (¶16) (Miss. 2019) (quoting Jackson v. State, 90 So. 3d 597, 604 (¶27) (Miss.

2012)). Relevant to the present appeal, our caselaw provides that

a breaking is conducted by an act of force, regardless of how slight, necessary
to be used in entering a building, such as turning a knob, a slight push to
further open a door, or raising a latch. To constitute burglary, a structure must
generally be closed. Otherwise[,] the entry is merely a trespass, not a breaking
and a burglary. Even if the door was unlocked or if only slight force was
needed to gain entry, such entry has been viewed as forcible for the purposes
of our burglary statute.

McLain v. State, 317 So. 3d 33, 35 (¶9) (Miss. Ct. App. 2021) (citations and internal

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quotation marks omitted).

¶15. Here, the State was not required to prove that the door to Coggins’s home was either

fully secured or closed for the jury to convict Johnson of burglary of a dwelling. Rather, as

our caselaw establishes, Coggins’s home only needed to “generally be closed[,]” and even

a slight act of force, such as a small “push to further open a door,” would suffice for the

element of “breaking.” Id. (quoting Foster v. State, 281 So. 3d 229, 233 (¶11) (Miss. Ct.

App. 2019)).

¶16. Coggins acknowledged that on the day of his arrest, he left his house key in the door

to his residence. He specifically insisted, however, that he not only closed but also locked

the door. In response to questioning that directly addressed the secured nature of his

residence on the last day he was there, Coggins stated that his front door was closed and

locked when he left. Similarly, in McLain, this Court affirmed a jury’s verdict in a burglary

case where sufficiency of the evidence as to the “breaking” element was primarily at issue.

Id. at 36 (¶15). The McLain Court recognized “that evidence [a] door is usually shut was

sufficient to prove the ‘breaking’ element” for burglary of a dwelling. Id. at (¶14). The

McLain Court further found the victim’s testimony “that he usually kept the door to his home

closed” was sufficient to prove the defendant’s entry into the home constituted a “breaking.”

Id.

¶17. In the present case, Coggins also testified that he had closed and locked the gate

across his driveway and that the gate remained that way at all times. Despite taking these

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steps to secure his property, though, Coggins noted that the investigators’ photographs

showed his lock for the gate was missing, the gate and front door to his home were wide

open, his home was in disarray, and several items of personal property were missing.

¶18. Upon being questioned by Investigators Whetstone and Meaux, Johnson admitted that

he had entered Coggins’s residence and taken cash from inside the home without any

intention of delivering the money to Coggins, who was still incarcerated. Contrary to the

State’s evidence that Coggins’s home and property were both well secured by a barbed-wire

fence, locked gate, and locked front door, Johnson claimed that he thought the gate had been

open when he arrived at the residence and that the front door was also open. “Under our

long-established system of criminal justice, the jury is the finder of fact.” Benthall v. State,

311 So. 3d 697, 704 (¶24) (Miss. Ct. App. 2021) (quoting McDaniel v. State, 290 So. 3d

1286, 1291 (¶17) (Miss. Ct. App. 2020)). As a result, “it is the jury’s province to determine

witness credibility and resolve conflicts in the evidence.” McLain, 317 So. 3d at 36 (¶13);

Wayne v. State, 337 So. 3d 704, 715 (¶39) (Miss. Ct. App. 2022) (quoting Williams v. State,

285 So. 3d 156, 160 (¶17) (Miss. 2019)). After hearing both Johnson’s version of events and

the testimony provided by the State’s witnesses, the jury could reasonably find the State’s

witnesses more credible and resolve any evidentiary conflicts in the State’s favor. In

addition, the circuit court instructed the jury not only on the elements of burglary of a

dwelling but also on the definition of a “breaking.”

¶19. After viewing the evidence in the light most favorable to the State, we conclude the

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record contains sufficient evidence for a rational juror to find that the State proved the

“breaking” element of burglary of a dwelling beyond a reasonable doubt. We therefore

affirm Johnson’s conviction and sentence as to Count I for burglary of a dwelling.

II. Jury Instruction on Count II

¶20. Without any objection from the defense, the circuit court gave jury instruction S-1,

which provided the elements of the charges against Johnson. For the first time on appeal,

Johnson argues that the portion of jury instruction S-1 regarding automobile theft omitted the

value of Coggins’s 2008 Chevrolet Silverado. Asserting that the omission of the vehicle’s

value constituted an essential element of the automobile-theft charge, Johnson asks this Court

to reverse his conviction as to Count II.

¶21. Relevant to Johnson’s claim on appeal, the given jury instruction stated the following:

As to Count Two, if you find beyond a reasonable doubt from the evidence in
this case that:

1. Between October 1, 2019[,] and October 31, 2019, in
Amite County;

2. Earnest Johnson without authority intentionally and
unlawfully took a motor vehicle, which was owned by
Dennis Coggins, intending to permanently or temporarily
deprive the owner Dennis Coggins from possessing the
motor vehicle, then you shall find Earnest Johnson guilty
as charged of [a]uto [t]heft.

If the State did not prove any one of the above listed elements beyond a
reasonable doubt, then you shall find Earnest Johnson not guilty of Count Two.

¶22. “A defendant must specifically object to the proposed instruction . . . to preserve the

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issue on appeal. However, failure to instruct on the essential elements of the crime is plain

error.” McCool v. State, 328 So. 3d 173, 189 (¶78) (Miss. Ct. App. 2021) (citing Fitzpatrick

v. State, 175 So. 3d 515, 522 (¶31) (Miss. 2015)). “[P]lain error exists ‘only where a

fundamental right of the defendant has been violated.’” Id. at 190 (¶79) (quoting Fitzpatrick,

175 So. 3d at 522 (¶31)). To determine if plain error has occurred, we consider the

following: “(1) whether the trial court deviated from a legal rule; (2) whether the error is

plain, clear, or obvious; and (3) whether the error prejudiced the outcome of the trial. Only

if the error resulted in a manifest miscarriage of justice will reversal occur.” Collins v. State,

305 So. 3d 1262, 1267 (¶19) (Miss. Ct. App. 2020) (quoting Willie v. State, 204 So. 3d 1268,

1279 (¶29) (Miss. 2016)).

¶23. Count II of the indictment charged Johnson with automobile theft under Mississippi

Code Annotated section 97-17-42(1) (Rev. 2020). In 2014, the Mississippi Legislature

amended section 97-17-42 “to base punishment [for automobile theft] on the value of the

vehicle, by reference to the grand larceny and petit larceny statutes, sections 97-17-41 and

-43 [(Rev. 2020)], respectively.” Shell-Blackwell v. State, 305 So. 3d 1211, 1227 (¶55)

(Miss. Ct. App. 2020). Prior to the 2014 amendment, section 97-17-42 “made no reference

to the value of the vehicle and provided a sentence of not more than five years.” Id. (citing

Miss. Code Ann. § 97-17-42(1) (Supp. 2013)).

¶24. In Shell-Blackwell, this Court addressed the defendant’s argument that the failure to

properly instruct the jury on the value element of automobile theft constituted reversible

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error. Id. at (¶53). As we explained in Shell-Blackwell, “[w]hen a finding of fact alters the

legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent

part of a new offense and must be submitted to the jury.” Id. at 1228 (¶58) (quoting

Fogleman v. State, 283 So. 3d 685, 689 (¶13) (Miss. 2019)). Because the 2014 amendment

to section 97-17-42 made the vehicle’s value an essential element of automobile theft—and

a factual finding the jury must make for the statutory sentencing range to be determined—we

reversed and remanded the defendant’s automobile-theft conviction for a new trial. Id. at

(¶59).

¶25. As in Shell-Blackwell, the circuit court here never properly instructed the jury as to

the value of Coggins’s 2008 Chevrolet Silverado. Based upon the foregoing, we find the

omission of the value element from jury instruction S-1 constituted reversible error. We

therefore must reverse Johnson’s conviction and sentence as to Count II and remand for a

new trial on the automobile-theft charge.

CONCLUSION

¶26. Based on our review of the record and relevant caselaw, we affirm Johnson’s

conviction and sentence for burglary of a dwelling. As to his conviction for automobile theft,

however, we reverse the conviction and sentence and remand for a new trial on Count II.

¶27. AFFIRMED IN PART; REVERSED AND REMANDED IN PART.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ.,
CONCUR.

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