John Wesley O'Neal v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-KA-01844-COA
JOHN WESLEY O'NEAL, a/k/a JOHNNY O'NEIL
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
10/16/2001
HON. MARGARET CAREY-MCCRAY
SUNFLOWER COUNTY CIRCUIT COURT
W. S. STUCKEY
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
FRANK CARLTON
CRIMINAL - FELONY
BURGLARY OF A DWELLING - SENTENCE OF
8 YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED: 03/18/2003
BEFORE MCMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
John Wesley O’Neal was convicted of burglary of a dwelling and sentenced to eight years in the
custody of the Mississippi Department of Corrections. On appeal, O’Neal asserts that the verdict was
against the overwhelming weight of the evidence. Finding to the contrary, we affirm the final judgment of
the Circuit Court of Sunflower County, Mississippi.
FACTS
¶2.
On July 8, 2000, at approximately 4:00 a.m., James McCartney was on his porch when he
observed a person enter an unoccupied rental home he owned that was located about two hundred feet
from his residence. He also noticed that a window air conditioning unit was missing from the rental house.
Mr. McCartney went inside his home to dress and to obtain a firearm. When he came back outside, he
saw a man on the porch in the alcove of the rental home standing over an air conditioning unit. Mr.
McCartney approached the man, who identified himself as John O'Neal. Mr. McCartney returned to his
home with O'Neal, and his wife called the police.
¶3.
Officer Banks of the Drew Police Department responded to the call. After arriving, Officer Banks
placed O'Neal in his police car. Mr. McCartney and Officer Banks then went to inspect the rental house
for any damage or evidence of stolen property. They discovered that the door to the rental house had been
forced open, that two air conditioning units had been taken, and that the air conditioning unit on the porch
was missing a front panel.
¶4.
While Officer Banks and Mr. McCartney were inspecting the rental house, according to Mrs.
McCartney, O'Neal climbed over the seat of the police car and fled towards a nearby apartment building.
Officer Banks called for assistance and Sergeant Dwight Lucas responded. They found O'Neal in his
apartment and arrested him. O'Neal gave the officers permission to search his vehicle where the officers
found a window air conditioning unit and the front panel of another unit in his trunk. These items were
taken to the police department where the McCartneys identified the items as their missing property.
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¶5.
At trial, Mr. McCartney corroborated these events and identified O'Neal as the person on the
porch of the rental home that night. Mrs. McCartney did the same. Officer Lucas also corroborated the
events and identified O'Neal as the man he found hiding behind a couch in O'Neal's nearby apartment that
night. The State rested and O'Neal moved for a directed verdict, which was denied by the trial court.
¶6.
Subsequently, O'Neal testified and disputed the testimony of the State's witnesses. O'Neal
contended that he was walking his dog at 4:00 a.m. when he noticed a male and a female running from the
house in question and that he was soon after approached by Mr. McCartney in the middle of the street.
He denied ever entering the rental home or taking anything. He testified that he was never placed in the
patrol car and that he was told to go home. Further, O'Neal testified that he opened the door to his
apartment and the officers rushed in and threw him behind the couch. O'Neal also stated that the stolen
items were not found in his trunk and that the car had been broken down for about a week.
¶7.
In rebuttal, the State called Marlene Hamilton, O'Neal’s girlfriend and roommate. Ms. Hamilton
refuted O'Neal's version of the events. She testified that O’Neal’s car was working that night because he
picked her up from work at about 1:00 a.m. Ms. Hamilton testified that after they returned home, he left
the house at about 1:30 a.m that morning and that he never took the dog with him. She also stated that
when O'Neal returned home around 5:00 a.m., the dog was already inside before she let O'Neal in the
apartment. She further stated that when she let the police in, O'Neal was hiding behind the couch. More
importantly, she confirmed seeing the air conditioning unit in his trunk.
¶8.
After the defense rested and instructions were given, the jury found O'Neal guilty. O'Neal filed a
motion for a new trial or, in the alternative, for a judgment notwithstanding the verdict which was denied.
O'Neal timely filed this appeal.
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ANALYSIS
I.
WHETHER THE VERDICT WAS CONTRARY TO THE OVERWHELMING WEIGHT OF
THE EVIDENCE.
¶9.
O’Neal contends that the evidence presented was insufficient to support his conviction. He asserts
that the evidence did not establish that he was seen inside the rental house removing an air conditioning unit
or at any time holding an air conditioning unit. He further denied entering the rental house or taking the
property. Therefore, O’Neal asserts that the verdict of the jury was against the overwhelming weight of
the evidence. The State responds by pointing out that the testimony of the McCartneys, Officer Lucas and
Ms. Hamilton, taken together with all reasonable inferences, was more than sufficient evidence to support
the jury’s verdict.
¶10.
This issue was recently addressed in Ford v. State, 753 So. 2d 489, 490 (¶ 8)(Miss. Ct. App.
1999), where this Court held that:
[i]n determining whether a jury verdict is against the overwhelming weight of the evidence,
this Court must accept as true the evidence presented as supportive of the verdict, and we
will disturb a jury verdict only when convinced that the circuit court has abused its
discretion in failing to grant a new trial or if the final result will result in an unconscionable
injustice.
(citing Danner v. State, 748 So. 2d 844 (Miss. Ct. App. 1999)). Furthermore, the Mississippi
Supreme Court has held that it:
must accept as true the evidence which supports the State's position, together with all
inferences reasonably flowing therefrom in the light most favorable to the State's theory of
the case. If there is sufficient evidence to support a verdict of guilty, this Court will not
reverse.
Meshell v. State, 506 So. 2d 989, 990 (Miss. 1987). The Court further concluded that “the jury is the
judge of the weight and credibility of testimony and is free to accept or reject all or some of the testimony
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given by each witness.” Meshell, 506 So. 2d at 991(citing Arteigapiloto v. State, 496 So. 2d 681, 686
(Miss. 1986)).
¶11.
In addition, the Mississippi Supreme Court in Shields v. State, 702 So. 2d 380, 383 (Miss.
1997), held that the test to be applied in considering the sufficiency of the proof of a jury verdict based on
circumstantial evidence is "whether a rational fact finder might reasonably conclude that the evidence
excludes every reasonable hypothesis inconsistent with guilt of the crime charged."
Shields also
established a checklist of common sense circumstances to be considered:
1.
The temporal proximity of the possession to the crime to be inferred;
2.
The number or percentage of the fruits of the crime possessed;
3.
The nature of the possession in terms of whether there is an attempt at concealment or
any other evidence of guilty knowledge;
4.
Whether an explanation is given and whether that explanation is plausible or demonstrably
false.
Id. (citing Cosby v. Jones, 682 F.2d 1373, 1383 (11th Cir. 1982)). Using the circumstances set forth in
Shields as guidance, this Court will determine whether such inferences in the present case were within the
province of the jury in order to find O'Neal guilty of burglary of a dwelling.
¶12.
Burglary of a dwelling requires two elements: (a) unlawful breaking and entering and (b) intent to
commit a crime once entry has been obtained. Miss. Code Ann. § 97-17-23 (Rev. 2000). The record
revealed that O'Neal was not only found in close proximity to the burglarized home, but was actually found
by Mr. McCartney at the home that was burglarized. In addition, O'Neal was also in close proximity to
the stolen property. He was standing over one removed unit when he was approached by Mr. McCartney
and the other unit and additional front panel were discovered in his car. Furthermore, the items in his car
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provided a reasonable inference that the items were in his possession and evidence of recent possession
is legally sufficient for the jury to infer guilt of burglary. See Shields, 702 So. 2d at 382.
¶13.
Moreover, the evidence that O'Neal was hiding behind a couch when the officer found him is proof
of his guilty knowledge in that, one would assume, he was attempting to hide from the police. Additionally,
O'Neal offered several explanations and versions in addition to his denials of that night, such as that he was
walking the dog, that his car did not work, that he saw others running from the home, and that the officers
threw him behind the couch. Each of these explanations was demonstrated to be false and further indicated
evidence of his attempt to conceal his guilt. Therefore, although O'Neal was never actually seen removing
the air conditioners or holding them, based on Shields and the evidence presented at trial, we find that a
reasonable juror could infer that O’Neal did unlawfully enter McCartney's rental home with the intent to
steal the air conditioners and that he did in fact steal the air conditioner found in his trunk and the front panel
of the other air conditioner.
¶14.
As to the denials and versions presented, the jury resolved the question of conflicting testimony
against O'Neal. “[T]he jury is the judge of the weight and credibility of testimony and is free to accept or
reject all or some of the testimony given by each witness." Meshell, 506 So. 2d at 991. Therefore,
accepting as true all evidence favorable to the State, this Court is compelled to conclude that the evidence
was of such weight and sufficiency to support the jury's findings. Thus, we affirm the judgment of the
Circuit Court of Sunflower County, Mississippi.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY OF
CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF EIGHT YEARS IN
THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED.
COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND CHANDLER, JJ., CONCUR.
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