Tommy Van Yates, Jr. a/k/a Tommy Yates v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2024-KA-00371-COA

TOMMY VAN YATES, JR. A/K/A TOMMY APPELLANT
YATES

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 02/26/2024
TRIAL JUDGE: HON. JAMES T. KITCHENS JR.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
DISTRICT ATTORNEY: SCOTT WINSTON COLOM
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 11/18/2025
MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., EMFINGER AND LASSITTER ST. PÉ, JJ.

WILSON, P.J., FOR THE COURT:

¶1. Following a jury trial in the Lowndes County Circuit Court, Tommy Van Yates Jr. was

convicted of burglary of a dwelling. On appeal, Yates argues that the trial court erred by

sustaining a hearsay objection to certain testimony by his father and that the evidence is

insufficient to support his conviction. We find no reversible error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In May 2022, Keith and Bonnie Thames hired Tommy Van Yates Jr. to replace the

roof on a small office building at the Thameses’ primary residence in New Hope. The

Thameses had known Yates for more than ten years, and he had completed several other
small projects at various properties they owned. Prior to May 2022, Yates had completed

multiple projects at the Thameses’ “river house,” their vacation home on Riverside Drive on

the Tombigbee River in Lowndes County. However, the Thameses had not contracted with

Yates to do any work at the Riverside house in May 2022. On May 12, 2022, the Thameses

reported a burglary of the Riverside house and informed the Lowndes County Sheriff’s

Department that they believed Yates was responsible.

¶3. The Riverside house was elevated on stilts, with a furnished living area on the upper

level and an enclosed garage with a storage room on the lower level. A stairway on the

garage level led to a keypad-locked door accessing the upper-level interior. Prior to the May

2022 burglary, the code had not been changed since 2017. At trial, the Thameses testified

that they and their guests regularly stayed at the Riverside house for days or weeks at a time.

¶4. On April 27, 2022, Bonnie had texted Yates to ask if he could do some work at the

Thameses’ primary residence in New Hope. On May 3, Yates texted Bonnie to say he would

be over that day to start work. The next text exchange between Yates and the Thameses

occurred on May 18, when Yates requested a check to pay for materials.

¶5. Leading up to the burglary on May 12, Yates, with the help of his father, Tommy Van

Yates Sr. (Yates Sr.), had been replacing the roof on a small office building at the Thameses’

New Hope residence. Bonnie testified that during that time, she had told Yates that she and

Keith would both be out of town at a graduation in Jackson on May 12.

¶6. On May 12, around 7 a.m., Bonnie received a cell phone alert from the Riverside

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house’s upstairs Ring security camera notifying her of movement in the house. The Ring

camera video recordings presented at trial show a man walking through the house in the dark.

He opens and closes the refrigerator and freezer doors and rummages through the kitchen

drawers with a flashlight. He is next seen walking through the living room with a grocery

sack; he then moves out of sight of the camera, and then he walks back through the living

room before exiting the home.

¶7. Bonnie viewed several recordings from the Ring camera and briefly visited the house.

She testified that the house’s electricity was functioning without issue. Upon viewing the

Ring videos, she recognized Yates as the man in the video. When Bonnie returned home, she

recorded a video of Yates at her New Hope residence in the same hat and shirt as in the Ring

videos. The video Bonnie took of Yates at the New Hope residence was also admitted into

evidence and played for the jury at trial.

¶8. Later that day, the Thameses reported the burglary to the Lowndes County Sheriff’s

Department. On May 13, Deputy Richard Brantley responded to the reported burglary,

gathered information from the Thameses, and reviewed the footage from the Ring camera

as well as the video Bonnie had taken of Yates at her New Hope residence. At trial, Deputy

Brantley testified that he recognized Yates as the individual in the videos.

¶9. As part of their investigation, Deputy Brantley and Detective Drew McCain conducted

a walkthrough of the residence with the Thameses, inspecting the areas where Yates had

been seen rummaging in the Ring videos. At trial, Bonnie reported that a set of keys and a

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bottle of Gabapentin pills prescribed to her dog were missing from the kitchen drawers, and

an amethyst crystal was missing from a crystal set displayed on the kitchen bar.

¶10. On May 20, 2022, after Yates finished his work at the Thameses’ primary residence,

Detective McCain arrested Yates for burglary of the Riverside house. Yates waived his

Miranda1 rights and agreed to a recorded interview, which was admitted into evidence and

played for the jury at trial. Yates admitted that he had entered the Riverside house. He

explained that he went there to retrieve leftover plywood from a previous job and stated, “Mr.

Keith told me to get anything I needed.” When asked if he had permission to enter the

Riverside house, Yates said, “I mean, not specifically.” He initially denied using a flashlight,

but after McCain told him there was a recording of him in the house with a cell phone

flashlight on, he stated, “I don’t remember having the light on, but I may have.”

¶11. In the interview, Yates explained that he searched for the keys to the storage room

because he believed it contained the leftover plywood. He said he also retrieved a garbage

bag and used the bathroom. Yates stated, “[Keith] said—same as he always does—you know

where everything is, use anything . . . that you need to.” Yates also said, “Mr. Keith sat there

and told me in front of my dad that day . . . , ‘If there’s anything you need, you know where

everything is at.’”

¶12. At trial, Yates testified that on the morning of May 12, he used the access code to

enter the Riverside house through the stairway door on the garage level. He maintained that

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

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he went to the Riverside house to retrieve leftover plywood for the roofing project at the New

Hope residence, and that he looked through the house and drawers in search of the keys to

the storage room containing the plywood.

¶13. Yates sought to explain his actions in the Ring recordings. He testified that he flipped

the kitchen light switch, but the light did not turn on. He said he then exited the room and

flipped the breakers and, upon returning, opened the refrigerator and freezer doors to check

for electricity and see whether food had defrosted. Yates explained that he used his phone’s

light to look for the keys to the downstairs storage room because the kitchen lights were not

working. He said he placed a couple of keys and three rubber bands on the counter.

¶14. Yates further explained that the videos showed him carrying a Walmart bag with a

black garbage bag inside, which he testified he used—along with the rubber bands—to clean

up trash in the front yard of the Riverside house. He denied that the bag contained keys, a

rock, or Gabapentin, and he testified that he did not enter the house with the intent to steal

anything. Yates testified that he did not find the keys to the storage room, so he left.

¶15. When asked what he meant when he told Detective McCain that Keith had “not

specifically” given him permission to enter the Thameses’ properties, Yates testified that

Keith “gave me the same permission that he always gives me. ‘Van, you know where

everything is at. My house is your house.’” Yates testified that this permission extended to

the Thameses’ property known as “the pits,” their New Hope residence, and any other

properties where he had worked.

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¶16. Yates testified that he had not been given specific permission to enter the Riverside

house because he had “been given free range this entire time.” He stated his permission “was

implied,” and he “didn’t have to” ask for specific permission. When questioned about

whether he had ever asked for permission to go in the Riverside house in the past, Yates

testified that he “always did.” He testified, though, that the Thameses never told him he

could not access the Riverside house.

¶17. Yates admitted he never asked for permission to enter the Riverside house on May 12.

When asked why he did not call or text the Thameses for permission to enter the home, Yates

explained, “It was 6:30 in the morning. I was being polite.” He testified that he had

“periodic[ally]” gotten materials from the storage room at the Riverside house, although

Keith had never “specifically” given him permission to do so. He said that Bonnie had told

him multiple times in the past, “[Y]ou don’t have to call me every time you go down there.”

¶18. The defense called Yates Sr. to testify at trial. On direct examination, he testified that

he had been assisting Yates with the roofing project at the Thameses’ primary residence on

or about May 12 and had communicated with Keith several times during the project. The

following exchanges then occurred:

Q. [D]id [Keith] ever tell you anything about your materials that you could
use on the project?

A. Yes, he did. Do you want me to explain that?

Q. Yes. What did he tell you?

A. I can’t remember word-for-word. But this is how I got it.

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[ASSISTANT DISTRICT ATTORNEY] LANG: Your honor, I’m going to
object. This is hearsay. It’s not reliable.

[The court excused the jury, and the following occurred outside the jury’s
presence:]

THE COURT: Your objection is . . . hearsay?

MR. LANG: Yes, Your Honor.

THE COURT: . . . Mr. Clemons [(defense counsel)], why are you offering
this?

MR. CLEMONS: I’m offering this to show what knowledge my client as well
as his father had about what they could or could not do with respect to going
into the residences to obtain materials.

THE COURT: [I]t seems to me that it’s sort of being offered for some type
of—almost like an impeachment.

MR. CLEMONS: I suppose[], Your Honor, for lack of a better word.

THE COURT: [I]f that’s the case, the foundation has not been laid to ask this
witness hearsay questions or questions that will require a hearsay source at this
point. So, I’m going to sustain[] the objection at this point and time.

¶19. Yates Sr. subsequently testified that most of the materials for the roofing project were

obtained from Hollis Roofing, and lumber may have been obtained from Cash & Carry or

New Home Building. He testified that he never went to any of the Thameses’ houses to get

materials and never observed Yates get material from any of the houses. He said that when

not actively being used, the materials were stored on a trailer at the job site that he and his

son could freely access. He testified that he had not been “told that [he] did not have access

to anywhere else on the job site.”

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¶20. At trial, the Thameses explained that they provided Yates with the access code to the

Riverside house when he had worked there previously. Bonnie testified that they permitted

Yates to access the Riverside house only “when he was doing jobs.” According to Keith,

they never told Yates he was not permitted to enter the property, but they “assumed that when

he finished the job out there, that he would not enter the [Riverside house] again.”

¶21. Bonnie testified that there was no plywood in the storage room of the Riverside house

in May 2022. Keith testified that no materials were stored in the storage room in May 2022,

that the Thameses had not given Yates permission to store anything there, and that the

storage room had always been unlocked. Keith said the storage room contained “garden

tools and two by fours, whatever we needed to do our jobs and things like that but nothing

major,” and Bonnie said it contained “a wooden bench,” “rakes,” some “short little pieces

of wood,” and a gun for shooting snakes.

¶22. At trial, the Thameses explained how the materials for each job were procured. For

each project, Yates would tell them what materials he needed, and they would let him know

whether they already had any of the materials on hand. Bonnie testified that plywood was

stored in a trailer at their residence in New Hope, and additional supplies were kept at their

“Airline Manufacturing” property. If a project required material from the storage trailer, the

Thameses would leave the trailer unlocked for Yates. If Yates needed material from the

Airline Manufacturing property, Bonnie testified that “[i]t could be either transported by

Keith on a trailer or [Yates] would come with a trailer and get it with us.”

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¶23. Bonnie testified that Yates never called or texted her about going to the Riverside

house, looking for plywood or keys, or finding the electricity malfunctioning. According to

Bonnie, in the past, Yates had never obtained materials from any of their properties or used

a code to retrieve materials without texting her or Keith first. Bonnie also testified that Yates

did not threaten or trick her in order to get the code to the Riverside house, and he did not

promise something of value that he did not deliver in order to get the code.

¶24. When asked if he told the Thameses that he had been to the Riverside house or that

the electricity had been out, Yates testified that he called Bonnie and Keith as soon as he

arrived at their New Hope residence after leaving the Riverside house, but neither answered.

Yates ultimately did not tell the Thameses that he had been to the Riverside house or about

any electrical problems. He testified that he did not inform them that he had been to the

Riverside house because it was “not unusual,” and he did not tell them about the alleged

electrical issue because he “didn’t get to talk to them.”

¶25. The jury found Yates guilty of burglary of a dwelling, and the court sentenced him to

fifteen years in the custody of the Department of Corrections, with five years suspended, ten

years to serve, and five years of post-release supervision. Yates filed a motion for judgment

notwithstanding the verdict or a new trial, which was denied, and a notice of appeal.

ANALYSIS

¶26. On appeal, Yates argues (1) that the trial court erred by sustaining the State’s hearsay

objection to Yates Sr.’s testimony, as discussed above, and (2) that the evidence is

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insufficient to support his conviction.

I. Yates Sr.’s Testimony

¶27. Yates argues that the trial court erred by prohibiting Yates Sr. from testifying about

what Keith allegedly told him regarding getting materials for the roofing project. Yates

argues that Yates Sr.’s testimony was not hearsay because it was offered to show its effect

on the listener, was admissible to show both Keith’s and Yates’s states of mind concerning

materials, and was admissible to impeach Keith’s testimony. He argues that exclusion of the

statement “was incredibly prejudicial to the defense.” The State argues that Yates failed to

preserve this issue because he failed to make an offer of proof and because the substance of

the excluded testimony cannot be gleaned from the record.

¶28. “This Court reviews the trial court’s decision to admit or exclude evidence under an

abuse of discretion standard of review.” Deeds v. State, 27 So. 3d 1135, 1140-41 (¶15)

(Miss. 2009) (quoting Smith v. State, 986 So. 2d 290, 295 (¶12) (Miss. 2008)). This Court

“will affirm the trial court’s ruling unless we can safely say that the trial court abused its

judicial discretion in allowing or disallowing evidence so as to prejudice . . . the accused in

a criminal case.” Id. at 1141 (¶15) (quotation marks and brackets omitted).

¶29. “[T]o preserve a claim that the trial court erred by excluding evidence, the proponent

of the evidence must ‘inform[] the court of its substance . . . , unless the substance was

apparent from the context.’” Randall v. State, 395 So. 3d 458, 463 (¶20) (Miss. Ct. App.

2024) (citing MRE 103(a)(2)). This Court has consistently required a proffer of excluded

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evidence, stating:

Generally, when a party seeks to offer evidence which in turn is excluded by
the trial court, before we will consider the matter on appeal the party must
have somehow placed in the record the nature and substance of the proffered
evidence for our consideration. When testimony is excluded at trial, a record
must be made of the proffered testimony in order to preserve the point for
appeal.

Evans v. State, 294 So. 3d 664, 667 (¶12) (Miss. Ct. App. 2020) (quoting Harrell v. State,

179 So. 3d 16, 21 (¶15) (Miss. Ct. App. 2014) (quoting Barron v. State, 130 So. 3d 531,

539-40 (¶32) (Miss. Ct. App. 2013))).

¶30. Here, Yates failed to make a proffer of Yates Sr.’s excluded testimony, and the

substance of his testimony is not apparent from the record. Yates’s counsel did not place in

the record any statement by Yates Sr. regarding anything that Keith allegedly said. In

addition, the record does not tell us what Yates Sr. would have remembered hearing Keith

say. “Without a proffer this Court cannot know what testimony was excluded.” Young v.

State, 194 So. 3d 904, 908 (¶16) (Miss. Ct. App. 2016) (quotation marks omitted). Because

Yates failed to make an adequate proffer to preserve this issue for appeal, his claim of error

is procedurally barred.

II. Sufficiency of the Evidence

¶31. Yates also argues that the evidence presented at trial was insufficient to support his

burglary conviction. Therefore, he argues that we must reverse his conviction and render a

judgment of acquittal. Specifically, Yates argues that no reasonable juror could find beyond

a reasonable doubt that he did not have at least implied permission to enter the Riverside

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house or that he entered the house with the intent to steal.

¶32. We review challenges to the sufficiency of the evidence de novo. Sanford v. State,

247 So. 3d 1242, 1244 (¶10) (Miss. 2018). “We view the evidence in the light most

favorable to the prosecution to determine whether rational, reasonable fair-minded jurors

could have found that the State proved each essential element of the crime.” Poole v. State,

46 So. 3d 290, 293 (¶20) (Miss. 2010) (quotation marks and emphasis omitted). “[A]ll

credible evidence supporting a defendant’s guilt should be accepted as true, and all favorable

inferences drawn from the evidence must be reconciled in the prosecution’s favor.” Johnson

v. State, 904 So. 2d 162, 166 (¶7) (Miss. 2005). “We are not required to decide—and in fact

we must refrain from deciding—whether we think the State proved the elements.” Poole,

46 So. 3d at 293-94 (¶20). “Rather, we must affirm the conviction as long as there is

sufficient evidence for a rational juror to find that the State proved all elements of the

offense.” Williamson v. State, 375 So. 3d 1158, 1167 (¶19) (Miss. Ct. App. 2023) (citing

Poole, 46 So. 3d at 293-94 (¶20)).

¶33. Burglary of a dwelling is the “breaking and entering the dwelling house . . . of another

. . . with intent to commit some crime therein.” Miss. Code Ann. § 97-17-23(1) (Rev. 2020).

As the Mississippi Supreme Court has explained,

the elements of burglary are (1) breaking and entering the dwelling house . . .
of another (2) with the intent to commit some crime therein. The crime of
burglary does not contain two separate and distinct “subcrimes.” Rather, the
intent to commit some crime, be it a felony or misdemeanor, is simply an
element of the crime of burglary. The State is not obligated to prove that the
accused actually committed the underlying offense of burglary. Only the intent

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need be proven to establish the second element of the crime of burglary.

White v. State, 195 So. 3d 765, 768-69 (¶11) (Miss. 2016) (brackets, citations, and quotation

marks omitted).

¶34. As to the first element of the crime of burglary, “there can be no breaking, and

therefore there is no burglary where the occupant of a house, or an agent or servant having

authority, expressly or impliedly invites or consents to the entry.” Bowman v. State, 283 So.

3d 154, 162 (¶24) (Miss. 2019) (quoting Holderfield v. State, 215 Miss. 564, 569, 61 So. 2d

385, 386 (1952)). However, “[t]he State is not required to prove lack of consent as a required

element of burglary.” Body v. State, 318 So. 3d 1104, 1109 (¶18) (Miss. 2021). “Instead,

consent is an affirmative defense to the charge of burglary rather than an essential element

of the offense.” Bowman, 283 So. 3d at 162 (¶25) (brackets and quotation marks omitted).

“[A]n actual breaking [is] any act or force, however slight, employed to effect an entrance

through any usual or unusual place of ingress, whether open, partly open, or closed.” Body,

318 So. 3d at 1110 (¶22) (brackets and quotation marks omitted).

¶35. In this case, the State presented sufficient evidence for a rational jury to find that

Yates broke into and entered the Riverside house. Bonnie, Keith, and Yates testified that

Yates had not been hired to do any work at the Riverside house in May 2022, and the

Thameses testified that Yates had not been given permission to enter the Riverside house

during that time. Yates admitted that he used the door code previously given to him by the

Thameses to gain entry to the home, and the jury evidently accepted the Thameses’ testimony

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that Yates’s permission to use the access code—and to enter the Riverside house—was

limited to times when he was actively working there or when he had received their prior

permission. Yates even testified that in the past, he had “always” asked for permission to

enter the Riverside house. However, Yates did not ask for permission to enter the Riverside

house on May 12, nor did he subsequently inform the Thameses that he had entered the

house. The jury clearly found Yates’s testimony insufficient to support his claim that he had

implied permission to freely enter the Thameses’ property at any time.

¶36. Based on the evidence presented at trial, a reasonable jury also could have found that

Yates broke into and entered the Riverside house with the intent to commit a crime

therein—namely, to steal. On appeal, Yates argues that no reasonable jury could have found

against him on this element because the evidence shows he entered with the intent “to simply

get materials for the roofing project.”

¶37. The jury watched three videos of Yates walking through the Riverside house in the

dark while looking and rummaging through various areas of the house with a flashlight. At

trial, Yates claimed that he was searching for the key to the downstairs storage room, where

he believed plywood was stored, and that he used a flashlight because the electricity in the

house was malfunctioning. But the jury was entitled to reject that explanation and accept the

Thameses’ testimony that the electricity was not malfunctioning at the Riverside house, that

the storage room was always unlocked, and that there was no plywood in the storage room

anyway. The jury could also doubt the explanation Yates gave at trial given its inconsistency

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with his prior statement to law enforcement. When interviewed after his arrest, Yates

initially denied using a flashlight in the house. Only when told that surveillance footage

showed him using a flashlight did he admit that he might have used one. Yet, he still made

no mention of any electrical issue during his interview. The jury could reasonably find it

implausible that Yates would forget such a key detail just days after the incident, only to

recall it years later at trial.

¶38. The videos showed Yates moving through the house in the dark, rummaging through

drawers, and walking out of view with a grocery sack. Bonnie testified that a set of keys, a

bottle of Gabapentin, and an amethyst crystal were missing from the areas where Yates had

been seen rummaging, and she testified that those items still had not been recovered as of

trial. In addition, the Thameses and Yates Sr. testified that the materials Yates needed for

the roofing job were stored in a trailer in New Hope, not at the Riverside house. Based on

all this evidence, the jury could reasonably find that Yates’s stated reason for entering the

house was false and that he instead entered with the intent to steal. Viewing the totality of

the evidence in the light most favorable to the State, there was sufficient evidence for a

rational jury to find beyond a reasonable doubt that Yates entered the Riverside house

without permission and with the intent to commit a theft. Accordingly, there was sufficient

evidence to support Yates’s burglary conviction.

¶39. AFFIRMED.

BARNES, C.J., CARLTON, P.J., McDONALD, LAWRENCE, McCARTY,
EMFINGER, WEDDLE AND LASSITTER ST. PÉ, JJ., CONCUR. WESTBROOKS,

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J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

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