Johnny McInnis v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01576-COA
JOHNNY MCINNIS
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
08/25/2008
HON. BILLY JOE LANDRUM
JONES COUNTY CIRCUIT COURT
JUSTIN TAYLOR COOK
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
ANTHONY J. BUCKLEY
CRIMINAL - FELONY
CONVICTED OF BURGLARY OF A
DWELLING HOUSE AND SENTENCED AS
A HABITUAL OFFENDER TO TWENTYFIVE YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED: 02/16/2010
BEFORE KING, C.J., ISHEE AND MAXWELL, JJ.
KING, C.J., FOR THE COURT:
¶1.
Johnny McInnis was convicted in the Circuit Court of Jones County of burglary of a
dwelling and sentenced as a habitual offender to twenty-five years in the custody of the
Mississippi Department of Corrections (MDOC). Aggrieved, McInnis appeals raising the
following assignments of error: (1) the trial court erred in granting jury instruction S-2
because the evidence was insufficient to support the instruction, and (2) the trial court erred
in denying defense counsel’s circumstantial-evidence jury instruction. While we find that
the trial court erred in granting jury instruction S-2, we find that the error was harmless; thus,
reversal or remand is not warranted. Therefore, we affirm the judgment of the trial court.
FACTS
¶2.
On October 8, 2007, between 10:30 and 10:55 p.m., Hilliary Kissenger was at home
asleep when she heard an unfamiliar sound in her home. When Kissenger, who was
positioned in her bed with her back toward her bedroom door, heard the sound, she turned
over to investigate. As Kissenger turned over, she saw a black man with a plain white T-shirt
grab her purse off her dresser and run up the hallway. Instinctly, Kissenger hollered and
jumped out of her bed and ran to get out of the house. When Kissenger saw the burglar run
out the kitchen door, she turned on the kitchen light and called 911. As Kissenger relayed
her account of the event to the 911 dispatcher, she was told by the dispatcher to stay on the
line until a police officer arrived. Officer Shannon Carraway with the Laurel Police
Department, who was two blocks away, responded to the call. Officer Carraway testified that
she was alerted to be on the lookout for a stocky built black male wearing a white T-shirt.
While traveling in the direction of Kissenger’s home, Officer Carraway observed a burgundy
car traveling in the opposite direction of Kissenger’s home, and the driver was a black male
wearing a white T-shirt. Officer Carraway turned around and began to pursue the vehicle,
which she believed to contain the alleged burglar. The vehicle, which was driven by
McInnis, sped up, but after traveling about six blocks from Kissenger’s residence, the vehicle
came to a stop at a residence identified as 24 College Drive in Laurel, Mississippi. The
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residence was neither McInnis’s nor his passenger’s, who was identified as Bonnie Woods
Armstrong residence. During the stop, Officer Michael Thomas with the Laurel Police
Department, who was assisting Officer Carraway at the scene of the stop, alerted Officer
Carraway to three purses that were located on the front seat of the vehicle. Both McInnis and
Armstrong were questioned about the purses. Officer Carraway testified that Armstrong
stated that only one of the purses belonged to her. During their investigation, the officers
also found two wadded up Trustmark bank envelopes in the driveway on the driver’s side of
the vehicle. Kissenger was brought to the scene of the stop and identified one of the purses
and its content as hers and the bank envelopes as ones she had received from the bank earlier
that morning.
¶3.
McInnis was indicted by a Jones County grand jury for burglary of a dwelling house
and receiving stolen property. On August 19, 2008, the State filed a motion to amend the
indictment to reflect McInnis’s habitual-offender status pursuant to Mississippi Code
Annotated section 99-19-81 (Rev. 2007). On August 20, 2008, the State filed motions to
amend the indictment because of a scrivener’s error regarding the date of the incident and
to sever Count II, receiving stolen property, from the indictment. Both motions were
granted. On August 20, 2008, McInnis was tried on the offense of burglary of a dwelling
house. At the conclusion of his trial, McInnis was found guilty of burglary of a dwelling
house and sentenced as a habitual offender to twenty-five years in the custody of the MDOC.
On August 28, 2008, McInnis filed a motion for a judgment notwithstanding the verdict
(JNOV) or, in the alternative, for a new trial. On September 19, 2008, McInnis’s post-trial
motion was denied.
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ANALYSIS
I.
Whether the trial court erred in granting jury instruction S-2
because the evidence was insufficient to support the instruction.
¶4.
The State requested for the trial court to give an accomplice jury instruction, S-2. The
text of the proffered jury instruction reads as follows:
The Court instructs the jury that each person present at the time, and
consenting to and encouraging the commission of a crime, and knowingly,
willfully and feloniously doing any act which is an ingredient to the crime, or
immediately connected with it, or leading to its commission, is as much a
principal as if he had with his own hand committed the whole offense; and if
you believe from the evidence, beyond a reasonable doubt, that the defendant,
Johnny L. McInnis, did willfully, knowingly, unlawfully, and feloniously do
any act which is an ingredient of the crime of burglary of a dwelling or
immediately connected with it, or leading to its commission, then and in that
event, you should find the defendant guilty as charged.
¶5.
McInnis objected to the proffered jury instruction stating:
DEFENSE COUNSEL: I think the jury either believes that Mr. McInnis did
it or Ms. Bonnie Armstrong. I don’t think that they put on any evidence of an
accomplice. Therefore, I’d object to that being submitted.
The trial court granted the instruction and ruled on the objection making the following
statement:
THE COURT: [The State is] not accusing them of having an accomplice.
They’re taking a precautionary instruction here to cover what your evidence
was in that he testified that she did it.
¶6.
McInnis argues that the record is void of any evidence to support the State’s
accomplice jury instruction. McInnis contends that notwithstanding his testimony that
Armstrong committed the crime, his testimony did not provide an evidentiary foundation for
granting an accomplice instruction.
¶7.
The State asserts that McInnis put on evidence indicating Armstrong had committed
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the crime. The State contends that because a reasonable jury may accept in part and reject
in part the evidence presented by the witnesses, it could have been determined that McInnis
and Armstrong acted in concert. Therefore, it suggested that McInnis might be guilty as an
accomplice.
¶8.
“An accomplice may be convicted of accomplice liability only for those crimes as to
which he personally has the requisite mental state.” Welch v. State, 566 So. 2d 680, 684
(Miss. 1990). “He must have a ‘community of intent’ for the commission of the crime.” Id.
According to Crawford v. State, 133 Miss. 147, 97 So. 534 (1923):
In order for one to aid and abet the commission of a crime, he must do
something that will incite, encourage, or assist the actual perpetrator in the
commission of the crime; hence being present, even with the intention of
assisting in the commission, if necessary, does not make one an aider and
abettor thereof, unless his intention to render assistance was known to the
perpetrator of the crime.
¶9.
In this case, the evidence is insufficient to prove that McInnis was an accomplice;
therefore, the evidence does not support granting of an accomplice jury instruction. McInnis
testified that Armstrong called him at approximately 10:00 or 10:30 p.m. to come and get her.
When he arrived at her location approximately 30 or 35 minutes later, he helped Armstrong
put her bags in the car and they left the area. McInnis stated that he was stopped shortly
thereafter by Officer Carraway. After McInnis was stopped, three purses were found on the
front seat of the vehicle. McInnis testified that he recalls Armstrong having two purses and
that a third purse was inside one of the other purses. The State did not present any evidence
that McInnis acted as Armstrong’s accomplice.
¶10.
While there was insufficient evidence for the granting of an accomplice instruction,
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the evidence does not warrant reversal of this case. The record before this Court contains
sufficient evidence upon which a reasonable juror could have properly found McInnis guilty
of burglary of a house. Kissenger identified the burglar as a black male wearing a plain
white T-shirt, and McInnis was identified as the alleged suspect in the vicinity of the
burglarized dwelling house within seconds of the 911 call. After Officer Carraway pulled
McInnis over, she discovered Kissenger’s purse in a car driven by McInnis, and two wadded
up Trustmark envelopes, which Kissenger identified as hers, were found on the ground on
the driver's side of the car driven by McInnis. This evidence was sufficient to sustain a
conviction of burglary of a dwelling house. “A person guilty of aiding and abetting will be
punished as a principal; he is exposed to the same sanctions as if he committed all of the
criminal acts himself.” Hollins v. State, 799 So. 2d 118, 123 (¶13) (Miss. Ct. App. 2001).
¶11.
Although the jury was improperly instructed with the accomplice jury instruction, we
find that the error was harmless.
II.
Whether the trial court erred in denying defense counsel’s
circumstantial-evidence jury instruction.
¶12.
McInnis requested for the trial court to give proffered jury instruction D-3. The jury
instruction was refused by the trial court as being cumulative to the state’s jury instruction
S-1, which was given by the trial court.
¶13.
McInnis contends that the trial court erred in denying his circumstantial-evidence
instruction. McInnis asserts that he neither confessed to the burglary nor was there any
eyewitness testimony indicating that McInnis was in fact the person who had burglarized
Kissenger’s home. McInnis maintains that Kissenger did not identify him at trial as the
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person who was inside her home. McInnis claims that Kissenger’s sole testimony was that
she saw a black man with a white T-shirt steal her purse. McInnis argues that the evidence
identifying the burglar is not sufficient to identify him as the burglar and that such
description is not an eyewitness identification.
¶14.
The State asserts that while Kissenger could not positively identify McInnis as the
burglar, it presented strong corroborating proof of McInnis’s identity as the perpetrator. The
State claims that the presented evidence, that McInnis was apprehended a few minutes later
in the vicinity, matching Kissenger’s description, and in possession of Kissenger’s purse, is
strong and compelling evidence to fill in the gap that McInnis was the burglar. Price v. State,
749 So. 2d 1188, 1197 (¶27) (Miss. Ct. App. 1999).
¶15.
“In determining whether error exists in granting or refusing jury instructions, the
instructions must be read as a whole; if the instructions fairly announce the law and create
no injustice, no reversible error will be found.” Martin v. State, 854 So. 2d 1004, 1009 (¶12)
(Miss. 2003).
¶16.
In criminal cases, where the State’s evidence is entirely circumstantial, the trial court
is required to instruct the jury regarding the use and treatment of circumstantial evidence by
granting a circumstantial-evidence instruction and a two-theory instruction. Brown v. State,
961 So. 2d 720, 728 (¶18) (Miss. Ct. App. 2007). “[T]he court must grant a jury instruction
that every reasonable hypothesis other than that of guilt must be excluded in order to
convict.” Jones v. State, 797 So. 2d 922, 928 (¶26) (Miss. 2001). However, our trial courts
are not required to grant a two-theory instruction when its substance is covered by other
instructions or where there is direct evidence. Brown, 961 So. 2d at 728 (¶18).
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¶17.
McInnis proffered jury instruction D-3, but it was refused by the trial court. The
proffered jury instruction stated the following:
The Court instructs the jury that if the evidence in this case presents two
reasonable theories, one tending to indicate that the Defendant, Johnny
McInnis, is guilty and the other tending to indicate that he is innocent, it is
your duty to accept the theory favorable to Johnny McInnis and to find him not
guilty.
¶18.
We find that the instruction was not required because the evidence was not purely
circumstantial. 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 Carraway 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 Carraway 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 Carraway that he was just on 32nd Street
trying to “hustle” some Mexicans. Officer Carraway 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.
¶19.
In addition, we find that the substance of the two-theory instruction was found within
jury instruction S-1. The jury instruction S-1 reads as follows:
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 8th day of October, 2007, in the
Second Judicial District of Jones County, Mississippi;
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2.
3.
4.
5.
Did break into and enter;
The dwelling house of Hillary D. Kissenger located at 1438 32nd
Street, Laurel, Mississippi;
With the intent to commit a crime of larceny therein;
Once therein, Johnny L. McInnis, did unlawfully take, steal and carry
away the personal property of Hillary D. Kissenger;
Then you shall find the defendant, Johnny L. McInnis, guilty in Count I 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.
In Hill v. State, 17 So. 3d 1092, 1097 (¶17) (Miss. Ct. App. 2009), the trial court denied
Hill’s two-theory instruction because the jury had been properly informed as to the applicable
law through other instructions. In this case, as in Hill, a similar instruction, jury instruction
S-1, was offered by the State and given by the trial court.
¶20.
Therefore, we find that the trial court did not err in denying McInnis’s proffered jury
instruction D-3 as the evidence was not wholly circumstantial, and the instruction was
cumulative to the state’s jury instruction given by the trial court. Thus, this assignment of
error is without merit.
¶21. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY OF
CONVICTION OF BURGLARY OF A DWELLING HOUSE AND SENTENCE AS
A HABITUAL OFFENDER OF TWENTY-FIVE YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, CARLTON
AND MAXWELL, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.
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