Rodney Hill v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-KA-01532-COA
RODNEY HILL
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
6/2/2004
HON. SHARION R. AYCOCK
LEE COUNTY CIRCUIT COURT
JOHN CARL HELMERT, JR.
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
JOHN R. YOUNG
CRIMINAL - FELONY
CONVICTED OF BURGLARY AND LARCENY
OF A BUILDING OTHER THAN A DWELLING.
SENTENCED TO SERVE SEVEN YEARS IN THE
CUSTODY OF MDOC, PAY $1,500 FINE, PAY
$150 RESTITUTION, PAY $360 COURT COSTS,
AND COMPLETE DRUG AND ALCOHOL
TREATMENT PROGRAM. MOTION FOR JNOV
AND NEW TRIAL DENIED.
REVERSED AND REMANDED: 12/06/2005
EN BANC.
GRIFFIS, J., FOR THE COURT:
¶1.
Rodney Hill was convicted of burglary of a building other than a dwelling. Hill was sentenced to
serve seven years in the custody of the Mississippi Department of Corrections, pay a $1,500 fine and pay
$150 restitution, and to complete long term alcohol and drug treatment. Hill moved for a JNOV or a new
trial, which was denied. On appeal, he claims the trial court erred by: (1) not granting a directed verdict
or JNOV, (2) not granting a peremptory instruction or a new trial, (3) allowing an improper jury instruction,
and (4) not striking juror Robert Lee for cause. We reverse the burglary conviction due to insufficient
evidence. We remand for re-sentencing on the lesser-included offense of trespass.
FACTS
¶2.
On June 30, 2003, about 8:30 p.m., Hill arrived at the home of Janet and James Posey. Mrs.
Posey recognized Hill as her husband’s acquaintance, who would often come to the house to borrow
“things” from Mr. Posey. Hill asked Mrs. Posey if he could borrow some gasoline. She told him to come
back when her husband was home. She saw him get into his car and crank it. Hill came back about thirty
minutes later and asked to borrow a wrench. She told him no, then Hill asked to use the phone. Again,
she told him to come back later when her husband was home. She watched as he left in his car.
¶3.
Later, Mrs. Posey observed an individual exit her shed with her husband’s toolbox. The shed was
a three-walled structure, approximately twenty-five feet from her house. There was no door or other
physical obstruction blocking entrance into the shed. Mrs. Posey called the police and identified Hill as the
man who stole the tools from the shed. The toolbox and tools were never recovered.
ANALYSIS
I.
¶4.
Whether there was sufficient evidence to support Hill’s conviction
Requests for a directed verdict and motions JNOV challenge the sufficiency of the evidence. In
reviewing a sufficiency of the evidence claim, the Court considers the evidence in the light most favorable
to the verdict. Bush v. State, 895 So. 2d 836, 844 (¶16) (Miss. 2005). If any reasonable trier of fact
could have found the essential elements of the crime beyond a reasonable doubt, we uphold the verdict.
Id.
2
¶5.
Hill argues there was insufficient evidence to convict him of burglary, because there was no
evidence of a breaking. Burglary of a building other than a dwelling includes, “breaking and entering . . .
any building . . . in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale,
deposit, or transportation, with intent to steal therein, or to commit any felony . . . .” Miss. Code Ann.
§ 97-17-33 (Rev. 2000). “Breaking” is an act of force, however slight, used to gain entrance. Winston
v. State, 479 So. 2d 1093, 1095 (Miss. 1985). However, “the structure must generally be closed.
Otherwise the entry is merely a trespass, not a ‘breaking’ and a burglary.” Goldman v. State, 741 So.
2d 949, 951 (¶8) (Miss. Ct. App. 1999).
¶6.
Here, the shed was a three-walled structure. Therefore, Hill argues there could be no actual
breaking into the shed. The State concedes there was no actual breaking. Instead, it argues that there was
evidence of constructive breaking. Regardless, the jury was only charged on the definition of an actual
breaking. Specifically, the jury instruction stated, “[t]he Court instructs the Jury that breaking [sic] is
defined as 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.” The State never argued constructive breaking to
the jury.
¶7.
In addition, there is simply no evidence of constructive breaking. If a defendant obtains permission
to enter a building by using deceit, this will constitute a constructive breaking. Templeton v. State, 725
So. 2d 764, 767 (¶7) (Miss. 1998). Here, the State would have to prove that Hill gained permission to
enter the shed through an act of deceit. The uncontroverted evidence was that no permission was given
to enter the Poseys’ shed. His entry in the shed, therefore, cannot be the product of any deceit on his part.
¶8.
Additionally, the State does not even accuse Hill of lying to try to gain access to the shed. Rather
it accuses Hill of trying to enter the Posey home by lying about needing gas, a wrench and the phone. The
3
State reasons that Hill must have lied, because he failed to prove he was telling the truth. Besides
misapprehending the burden of proof, the State misunderstands the concept of constructive breaking. The
undisputed evidence was that Hill did not gain entry of the Posey home. Even if he were trying to enter the
Posey home by lying, this cannot be considered as constructive breaking of the shed. Attempted
constructive breaking of one building does not support a burglary conviction for a separate building. Oken
v. State, 612 A.2d 258, 276 (Md. 1992).
¶9.
Breaking is an essential element to the crime of burglary. Miss. Code Ann. § 97-17-33 (Rev.
2000). Considering the evidence in the light most favorable to the verdict, we are unable to identify
evidence of a breaking in this case. Therefore, we find that no rational juror could have found Hill guilty
of the crime of burglary. It was error for the trial court to deny Hill a directed verdict or motion for a
JNOV. Accordingly, we reverse the burglary conviction.
¶10.
However, when a conviction is reversed due to insufficient evidence, “no new trial is required and
the defendant may be remanded for re-sentencing on the lesser included offense where proof establishes
the lesser offense.” Shields v. State, 722 So. 2d 584, 585 (¶7) (Miss. 1998). This is known as the direct
remand rule. Id.
¶11.
Trespass is the lesser-included offense of burglary. Anderson v. State, 290 So. 2d 628, 628-29
(Miss. 1974). It is an implicit finding in every burglary conviction. Id. The elements of trespass include
wilfully and maliciously entering another’s property without permission or remaining on his or her property
after being told to leave. E.g., Miss. Code. Ann. §§ 97-17-85, 97-17-87, 97-17-93, and 97-17-97 (Rev.
2000).
¶12.
The evidence was uncontroverted that Hill did not have permission enter the Poseys’ shed. He was
told approximately three times to leave the premises. Nevertheless, he returned and entered the shed.
4
Pursuant to Anderson and Shields, we affirm Hill’s conviction on the crime of trespass under Mississippi
Code Annotated Section 97-17-87. We remand for re-sentencing consistent with this opinion.
II.
¶13.
Was the verdict against the overwhelming weight of the evidence?
Next, we examine whether the trial court should have granted Hill’s motion for new trial. The only
evidence that placed Hill at the scene was Mrs. Posey’s testimony. Hill maintains that she was already
predisposed to identify him as the culprit, because she had seen him earlier that evening. The State
maintains that Mrs. Posey had ample opportunity to note what Hill looked like so she could positively
identify him as the perpetrator.
¶14.
A motion for a new trial challenges the weight of the evidence. Bush, 895 So. 2d at 844 (¶18).
We review a trial court’s denial of a new trial for an abuse of discretion. Montana v. State, 822 So. 2d
954, 967 (¶61) (Miss. 2002). In reviewing whether a verdict is against the overwhelming weight of the
evidence, this Court must accept as true the evidence which supports the verdict. Id. “Only in those cases
where the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would
sanction an unconscionable injustice will this Court disturb it on appeal.” Id. at 967-68.
¶15.
Mrs. Posey testified that Hill came to her door twice. She knew him, because he was an
acquaintance of her husband’s and had come to the house to borrow things before. At 8:30 p.m., he asked
to borrow some gas. She told him to return when her husband was at home. She saw him get in his car
and crank it. Around ten to fifteen minutes later he returned standing in front of her door. She testified that
she and her young kids were scared and upset at this. Her youngest child was crying, and Hill seemed
nervous. The door was glass, and she spoke to him through it. He asked to borrow a wrench. She told
him no. Then he asked to use the phone. Again she told him to come back when Mr. Posey was at home.
She watched as he left again in his car. She sat back down to watch a movie. At about 9:00 p.m., through
5
her mini blinds, she saw something run through the yard, into the shed. There was a light near the shed.
She went to her window and saw Hill exit the shed with the toolbox and run back to his car. The distance
from the window to where he was running was about twenty-five feet.
¶16.
The jury heard evidence that Mrs. Posey’s account at trial differed from the account she gave
police. She told police that she did let Hill borrow gas that night. At trial, she denied ever letting him
borrow any gas. Mrs. Posey explained the discrepancy from the fact that she was scared and upset when
she gave her statement to the police.
¶17.
The weight of the evidence supports the jury finding that Hill was the one who trespassed into her
shed. Accepting the evidence that supports the verdict at true, we find there was evidence that Mrs. Posey
saw Hill exit her shed with her husband’s tools and leave in his car. Mrs. Posey knew Hill prior to the night
in question and had seen him twice before the theft. Also, she had an opportunity to observe his car several
times that night. Therefore, the jury could give great weight to her testimony when she said it was Hill that
stole the tools. This issue is without merit.
III.
Was the jury properly instructed?
A.
¶18.
Untimely filed jury instruction
Hill challenges the jury instruction which charged the jury on the elements of burglary. First he
objects on the ground that the instruction was not filed before trial. Jury instructions must be filed twentyfour hours before trial. URCCC 3.07. Defendant must show prejudice resulting from an untimely filed jury
instruction. Clair v. State, 845 So. 2d 733, 736 (¶10) (Miss. Ct. App. 2003). Hill does not point out
how he would have defended his case differently had he had this jury instruction any earlier. We hold that
the error was harmless.
B.
Variance from the indictment
6
¶19.
Hill also argues that the jury instruction varied from the indictment. While the indictment alleged
the tools were worth at least $250, the jury instructions did not contain value as an element. The State
argues that Hill waived this objection, because he failed to raise it before the trial court.
¶20.
The Mississippi Rules of Civil Procedure set out the rules for objecting to jury instructions:
No party may assign as error the granting . . . of a jury instruction unless he objects thereto
at any time before the instructions are presented to the jury . . . . All objections shall be
stated into the record and shall state distinctly the matter to which objection is made and
the grounds therefor.
M.R.C.P. 51(b)(3). More specifically, failure to object on the ground that the instructions omit an element
listed in the indictment bars the issue from appellate review. Steen v. State, 873 So. 2d 155, 161 (¶25)
(Miss. Ct. App. 2004). Hill did not preserve this issue for appeal. We hold this issue is waived.
IV.
¶21.
Should the trial court have stricken venireman Robert Lee for cause?
Hill finally argues that he is entitled to a new trial, because the trial court abused its discretion in
denying his for cause challenge against a prospective juror. Prospective juror Robert Lee revealed he was
a victim of several theft crimes, and Hill challenged Lee’s ability to be impartial. The State countered that
Lee stated he could be impartial in this case. Regardless, Lee did not ultimately serve on the jury.
¶22.
Allowing for cause challenges in jury selection is left to the discretion of the trial court. Keys v.
State, 909 So. 2d 757, 760 (¶4) (Miss. Ct. App. 2005). No reversible error can occur when the venire
member in question is ultimately excused by a peremptory challenge. Sewell v. State, 721 So. 2d 129,
135 (¶28) (Miss. 1998). The record reveals that Lee did not serve as a juror or alternate juror. Therefore,
there is no reversible error in the trial judge’s denial of the for cause challenge. This issue is without merit.
CONCLUSION
7
¶23.
We reverse the burglary conviction and remand the case for re-sentencing on the lesser-included
offense of trespass.
¶24. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT ON THE CONVICTION
OF BURGLARY OF A BUILDING OTHER THAN A DWELLING IS REVERSED AND
REMANDED FOR RE-SENTENCING CONSISTENT WITH THIS OPINION. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, BARNES AND
ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
8
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.