Phillip Earl Young v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-KA-00825-COA
PHILLIP EARL YOUNG
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
05/10/2010
HON. WILLIAM E. CHAPMAN III
RANKIN COUNTY CIRCUIT COURT
ERIN ELIZABETH PRIDGEN
MARTIN BRADLEY MILLS
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
MICHAEL GUEST
CRIMINAL - FELONY
CONVICTED OF COUNT I, FELONY
EVASION, AND COUNT V, AUTOMOBILE
BURGLARY, AND SENTENCED TO LIFE
AS A HABITUAL OFFENDER IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
WITHOUT ELIGIBILITY FOR PAROLE OR
PROBATION
AFFIRMED - 08/09/2011
BEFORE LEE, C.J., ISHEE AND ROBERTS, JJ.
ROBERTS, J., FOR THE COURT:
¶1.
A jury sitting before the Rankin County Circuit Court found Phillip Young guilty of
felony evasion and burglary of an automobile. The circuit court found that Young qualified
for enhanced sentencing as a habitual offender pursuant to Mississippi Code Annotated
section 99-19-83 (Rev. 2008) and sentenced Young to life in the custody of the Mississippi
Department of Corrections (MDOC) without eligibility for parole or probation. Following
his unsuccessful post-trial motions, Young appeals. Young argues that there was insufficient
evidence to find him guilty of burglary of an automobile. Additionally, Young claims that
the overwhelming weight of the evidence indicated that he was guilty of misdemeanor
fleeing, instead of felony evasion. Finally, Young contends that the circuit court erred when
it sentenced him as a habitual offender pursuant to section 99-19-83. Finding no error, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
This appeal stems from events that were set into motion when Young decided to
siphon fuel from an eighteen-wheeler that was parked near Roses Discount Store in Pearl,
Mississippi. That eighteen-wheeler belonged to Ricky Sherman. Sherman had left his
eighteen-wheeler in the parking lot while he and his wife, Deborah, took a trip on their
motorcycle. As they were returning home, the Shermans went past Roses Discount Store.
He saw another eighteen-wheeler parked unusually close to his. Sherman pulled into the
parking lot to investigate.
¶3.
Sherman discovered that Young was using an electric pump to siphon the fuel from
Sherman’s eighteen-wheeler. Young fled when Sherman confronted him. The Shermans
called 911 as they followed Young through several neighborhoods and eventually onto I-20,
where several law-enforcement officers began to follow Young. For the next forty minutes,
law-enforcement officers followed Young as he drove his eighteen-wheeler in a counter-
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clockwise loop around Jackson, Mississippi. Young traveled west on I-20, then north on I55, and finally south on I-220. On multiple occasions, law-enforcement officers attempted
to flatten Young’s tires with spike strips, but Young drove around them. However, as Young
approached the Clinton Boulevard exit off of I-220, law-enforcement officers put out a set
of spike strips that Young was not able to avoid. With his tires disabled, Young attempted
to flee on foot. He was quickly detained by law-enforcement officers.
¶4.
Young was later indicted on five counts: felony evasion, two counts of aggravated
assault of a law-enforcement officer, aggravated assault, and automobile burglary. The
prosecution opted to dismiss one of the two counts of aggravated assault of a lawenforcement officer. On March 23, 2010, Young went to trial. The jury found Young not
guilty of aggravated assault of a law-enforcement officer and aggravated assault. However,
the jury found Young guilty of felony evasion and burglary of an automobile. The circuit
court sentenced Young to one sentence of life in the custody of the MDOC without eligibility
for parole or probation. Following his unsuccessful post-trial motions for a judgment
notwithstanding the verdict (JNOV) or a new trial, Young appeals.
ANALYSIS
I.
¶5.
BURGLARY OF AN AUTOMOBILE
Young argues that there is insufficient evidence to find him guilty of automobile
burglary. According to Young, because he did not enter Sherman’s eighteen-wheeler when
he siphoned Sherman’s fuel, the jury could have only found him guilty of larceny. Young
requests that we reverse the judgment of conviction for automobile burglary and render a
judgment of acquittal.
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¶6.
“A motion for a [JNOV] is a challenge to the sufficiency of the evidence.” Gilbert
v. State, 934 So. 2d 330, 335 (¶9) (Miss. Ct. App. 2006). As our Mississippi Supreme Court
has stated:
in considering whether the evidence is sufficient to sustain a conviction in the
face of a motion for . . . [a JNOV], the critical inquiry is whether the evidence
shows beyond a reasonable doubt that accused committed the act charged, and
that he did so under such circumstances that every element of the offense
existed; and where the evidence fails to meet this test it is insufficient to
support a conviction. . . . [T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt. Should the facts and inferences considered in a challenge to the
sufficiency of the evidence point in favor of the defendant on any element of
the offense with sufficient force that reasonable men could not have found
beyond a reasonable doubt that the defendant was guilty, the proper remedy
is for the appellate court to reverse and render.
Bush v. State, 895 So. 2d 836, 843 (¶16) (Miss. 2005) (citations and quotations omitted).
However, this Court will determine that there was sufficient evidence to sustain the jury’s
verdict if the evidence was “of such quality and weight that, having in mind the beyond a
reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of
impartial judgment might reach different conclusions on every element of the offense.” Id.
(internal citations and quotations omitted).
¶7.
Count V of the indictment charged Young with burglary of Sherman’s eighteen-
wheeler. Mississippi Code Annotated section 97-17-33(1) (Rev. 2006) provides as follows:
Every person who shall be convicted of breaking and entering, in the day or
night, any . . . automobile, truck or trailer 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 . . . shall be
guilty of burglary, and imprisoned in the penitentiary not more than seven (7)
years.
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The precise issue is whether siphoning fuel from a vehicle qualifies as burglary of an
automobile. This is a case of first impression in Mississippi. Young claims the circuit court
should have granted his motion for a JNOV because he never “entered” Sherman’s eighteenwheeler when he siphoned Sherman’s fuel from an exterior fuel tank. Young cites Smith v.
State, 881 So. 2d 908, 910-11 (¶11) (Miss. Ct. App. 2004) and draws our attention to the fact
that, in that case, the theft of rims was sufficient to convict a defendant of grand larceny.
Young argues that the theft of fuel from an exterior fuel tank must likewise be grand larceny.
Young finds further support of his position from the fact that one is guilty of petit larceny if
he adds fuel to his vehicle and then drives away from a gas station without paying for that
fuel. Miss. Code Ann. § 97-17-43 (Rev. 2006).
¶8.
Young also cites decisions from other states in which convictions for theft or larceny
were upheld after defendants siphoned fuel from vehicles. See People v. Caraballo, 188
A.D.2d 607 (N.Y. App. Div. 1992); Hensley v. State, 497 N.E.2d 1053 (Ind. 1986);
Stackowitz v. State, 511 A.2d 1105 (Md. App. 1986); State v. Smith, 470 A.2d 793 (Me.
1984); Larson v. State, 613 P.2d 1251 (Ala. 1980). In R.E.S. v. State, 396 So. 2d 1219, 1220
(Fla. Dist. Ct. App. 1981), the Florida Court of Appeals held that, under Florida's burglary
statute, siphoning fuel from the tank of a vehicle did not constitute an entry because Florida's
burglary statute contemplated only vehicle compartments “which can be entered either
wholly or partially by a person; e.g., engine and passenger compartments, trunks, etc.”
¶9.
However, the New Mexico Court of Appeals recently distinguished the decision in
R.E.S. when it held that “it is apparent that burglary in Florida contemplates the entry of a
vehicle compartment large enough to accommodate at least a part of a person and that the
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theft actually occurred within the vehicle. Not so in New Mexico, where a slight entry by
use of an instrument is sufficient.” State v. Muqqddin, 242 P.3d 412, 416 (N.M. Ct. App.
2010) (internal citation omitted). The New Mexico Court of Appeals further elaborated that:
“A fuel tank—attached as it is, to a vehicle—is unquestionably a part of that vehicle and
absolutely necessary for its primary function as a mode of transportation. Any penetration
of a vehicle's perimeter is thus a penetration of the vehicle itself.” Id. at 415.
¶10.
Although the decision in Muqqddin is not controlling in Mississippi, we find the
reasoning in that decision to be persuasive. Particularly in light of our own precedent that
“any effort, however slight, such as the turning of a door knob to enter, constitutes a
breaking.” Templeton v. State, 725 So. 2d 764, 766 (¶5) (Miss. 1998) (quoting Alford v.
State, 656 So. 2d 1186, 1190 (Miss. 1995)). “It does not matter that the opening used is not
intended for human access.” Goldman v. State, 741 So. 2d 949, 952 (¶8) (Miss. Ct. App.
1999). Sherman testified that Young would have had to “push down on [the gas cap] and
click it to open [it].” Sherman also testified that Young “had a pump with a long stem stuck
down into my tank.” Consequently, the jury heard sufficient evidence that Young’s actions
in opening Sherman’s gas cap and inserting a pump into Sherman’s fuel tank qualified as
“breaking and entering.” It follows that there was sufficient evidence to find Young guilty
of burglary of an automobile. We, therefore, find no merit to this issue.
II.
¶11.
FELONY EVASION
In this issue, Young argues that his conviction for felony evasion is contrary to the
overwhelming weight of the evidence. Young claims that the evidence supports a conviction
for misdemeanor fleeing in violation of Mississippi Code Annotated section 97-9-72(1) (Rev.
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2006), instead of felony evasion in violation of Mississippi Code Annotated section 97-972(2) (Rev. 2006). Young requests that we reverse the judgment of the circuit court finding
him guilty of felony evasion and remand this matter for a new trial.
¶12.
We are mindful that, as we review the circuit court’s decision to deny a motion for a
new trial, this Court “will only disturb a verdict when it is so contrary to the overwhelming
weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”
Bush, 895 So. 2d at 844 (¶18). The supreme court has further instructed that, when
reviewing a trial court’s decision to deny a motion for a new trial:
The motion . . . is addressed to the discretion of the court, which should be
exercised with caution, and the power to grant a new trial should be invoked
only in exceptional cases in which the evidence preponderates heavily against
the verdict. However, the evidence should be weighed in the light most
favorable to the verdict. A reversal on the grounds that the verdict was against
the overwhelming weight of the evidence, unlike a reversal based on
insufficient evidence, does not mean that acquittal was the only proper verdict.
Rather, . . . the court simply disagrees with the jury’s resolution of the
conflicting testimony. This difference of opinion does not signify acquittal
any more than a disagreement among the jurors themselves. Instead, the
proper remedy is to grant a new trial.
Id. (footnote and internal citations and quotations omitted).
¶13.
Section 97-9-72(1) sets forth as follows:
The driver of a motor vehicle . . . who willfully fails to obey [a lawenforcement officer’s command to stop a motor vehicle] shall be guilty of a
misdemeanor, and upon conviction shall be punished by a fine not to exceed
One Thousand Dollars ($1, 000.00) or imprisoned in the county jail for a term
not to exceed six (6) months, or both.
Section 97-9-72(2) sets forth as follows:
Any person who is guilty of violating subsection (1) of this section by
operating a motor vehicle in such a manner as to indicate a reckless or willful
disregard for the safety of persons or property, or who so operates a motor
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vehicle in a manner manifesting extreme indifference to the value of human
life, shall be guilty of a felony, and upon conviction thereof, shall be punished
by a fine not to exceed Five Thousand Dollars ($5,000.00), or by commitment
to the custody of the Mississippi Department of Corrections for not more than
five (5) years, or both.
Accordingly, the determinative feature regarding whether Young was guilty of misdemeanor
fleeing or felony evasion is whether the weight of the evidence supports the conclusion that
Young drove either “in such a manner as to indicate a reckless or willful disregard for the
safety of persons or property” or “in a manner manifesting extreme indifference to the value
of human life.”
¶14.
Young notes that Officer Pat Walker testified that Young did not drive faster than
seventy to seventy-five miles per hour during the pursuit. Young also notes Sherman’s
testimony that Young did not drive faster than sixty-five to seventy miles per hour. Young
concludes that he was not involved in a “high-speed” chase. Young also notes that he neither
hit nor attempted to hit any other vehicles. According to Young, “[e]xcept when avoiding
spike strips, . . . Young stayed in his lane of traffic.” Young draws our attention to the fact
that he had been accused of trying to hit a police officer, but the jury found Young not guilty
of aggravated assault of a law-enforcement officer.
¶15.
Next, Young argues that his “last minute decision to take the Interstate 55 exit off of
Interstate 20 does not constitute reckless endangerment.” Young further argues that his lastminute decision to take the I-55 exit “did not result in any accidents and, given . . . Young’s
normal rate of speed, this decision does not amount to a willful disregard for the safety of
others.”
¶16.
Finally, Young discusses the fact that the circuit court noted that Young ran through
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a stop sign as he exited and entered the interstate at the Industrial Drive exit off of I-220.
According to Young, “[g]iven that there was no traffic in the area, this is simply too weak
evidence.” Young concludes that the “police pursuit does not ‘upgrade’ from a misdemeanor
fleeing case to a felony [evasion] case simply because [he] failed to pull over for nearly forty
minutes.”
¶17.
The State’s entire argument under this heading is that: “It is the State’s clear and
concise position that the testimony of Officer [Ernie] Scarber and the video (DVD) of his
pursuit presented an abundance of credible, legally sufficient evidence by which the jury
could find the defendant guilty of felony [evasion].” Notwithstanding the State’s minimal
argument under this issue, the evidence at trial indicated that, at the interchange where I-20
meets I-55, Young suddenly “snapped” his truck north toward I-55. When Young did so,
multiple law-enforcement vehicles were forced to evade Young and each other. Officer
Scarber of the Pearl Police Department testified that he attempted to deploy spike strips, but
Young evaded them. As Officer Scarber attempted to get ahead of Young by passing him
on Young’s left, Young crossed into Officer Scarber’s lane and prevented Officer Scarber
from passing him. Officer Scarber was fifteen to eighteen feet from Young when Young
moved into Officer Scarber’s lane. Officer Scarber testified that Young would have hit his
patrol car if he had not avoided Young.
¶18.
Viewed in the light most favorable to the verdict, the jury could have found that
Young’s driving evidenced a reckless or willful disregard for the safety of others.
Consequently, the jury’s verdict of guilty for felony evasion does not constitute an
unconscionable injustice that would warrant a reversal of the circuit court’s decision to deny
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Young’s motion for a new trial. It follows that we find no merit to this issue.
III.
¶19.
SENTENCE AS A HABITUAL OFFENDER
Young argues that the circuit court erred when it sentenced him to life imprisonment
pursuant to section 99-19-83. According to Young, the circuit court erred when it found that
Young’s previous conviction for carjacking was a crime of violence. Young claims that the
prosecution failed to present any authority that “unarmed carjacking” should be considered
a violent crime for the purposes of enhanced sentencing as a habitual offender as set forth in
section 99-19-83.
¶20.
Section 99-19-83 provides as follows:
Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to and served separate terms of one (1) year or more in
any state and/or federal penal institution, whether in this state or elsewhere,
and where any one (1) of such felonies shall have been a crime of violence
shall be sentenced to life imprisonment, and such sentence shall not be reduced
or suspended nor shall such person be eligible for parole or probation.
Young correctly asserts that Mississippi law distinguishes armed carjacking and what Young
characterizes as “unarmed carjacking.” However, just because a carjacking does not qualify
as “armed carjacking” does not preclude the possibility that violence occurred during the
commission of the offense. Mississippi Code Annotated section 97-3-117(1) (Rev. 2006)
provides as follows:
Whoever shall knowingly or recklessly by force or violence, whether against
resistance or by sudden or stealthy seizure or snatching, or by putting in fear,
or attempting to do so, or by any other means shall take a motor vehicle from
another person's immediate actual possession shall be guilty of carjacking.
(Emphasis added). Accordingly, “unarmed carjacking” may qualify as a “crime of violence”
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for the purposes of enhanced sentencing pursuant to section 99-19-83. One may argue that
an accused may properly be convicted of carjacking under section 97-3-117(1) if he
“knowingly by sudden or stealthy seizure . . . or by any other means” takes a motor vehicle
from another person’s “immediate actual possession” without any requirement that the
prosecution prove that the accused employed violence, force, or the threat of force. Such is
of no consequence to Young, because the prosecution proved that in Young’s prior unarmed
carjacking felony conviction, Young employed violence and force against the victims of that
crime.
¶21.
During the bifurcated sentencing proceeding, the prosecution noted that Young had
appealed his prior conviction for “unarmed carjacking.” The prosecution further noted that
Young’s appeal had been affirmed by this Court in Young v. State, 962 So. 2d 110 (Miss. Ct.
App. 2007). The facts of Young’s previous conviction were discussed at length in that
decision. To be precise, the facts of Young’s prior conviction for carjacking are as follows:
Martha Grant testified that she and Jerry Parker, her boyfriend at the time and
husband at the time of trial, were washing their vehicles at the Double Quick
car wash on Highway 82 in Indianola, Mississippi, on November 9, 2001.
Grant's vehicle, a white Bonneville, was parked in one stall and both Grant and
Parker were washing it and the green Maxima, Parker's vehicle, was parked in
the stall next to them. At the time of the carjacking, Parker had asked Grant
to get some more change from the Maxima so that they could finish washing
the Bonneville. Grant testified that after she retrieved the change from the
Maxima, she was approached by Young from behind and as she turned around
Young shoved her and said “give me those damn keys.” Grant then testified
that Young “snatched them out of her hand” and she ran to tell Parker what
had happened. Grant further testified that the Maxima stalled as Young tried
to drive off and she and Parker had a clear view of Young and he was
“grinning at them.” According to Grant, she and Parker then got in the
Bonneville and pursued the Maxima down Highway 82 toward Greenville and
then onto Road 448 going toward Shaw. At some point on 448, the driver of
the Maxima turned off the road and parked briefly, but then turned around and
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met the Bonneville head on and hit the passenger side of the Bonneville before
continuing toward Shaw. No one involved was injured. Grant testified that
as she and Parker followed the Maxima they shouted to a friend passing,
“Somebody stole Jerry's car. Call the police.” Grant further stated that after
the Maxima had hit them they stopped at a lady's house somewhere on Road
448 and called the police. According to Grant, the police said they had already
received a call about the incident and they were “on their way out there
looking for him.” Grant said next they went to the Indianola Police Station to
give their statements. While at the station, the police brought in Young, in
handcuffs, and Grant testified that she stated, “that's him.” She further stated
that no one at the station specifically pointed Young out to her or asked her to
identify him. Grant further identified Young in court as the man who had
shoved her and driven off in the Maxima from the Double Quick, and as the
same man who ran into her and Parker on the county road while they were in
pursuit of the Maxima.
The State then presented testimony by Parker, who corroborated Grant's
testimony regarding his and Grant's presence at the Double Quick on Highway
82 and that a man drove off in the Maxima while they were there attempting
to wash their cars. Specifically, Parker testified that after Grant told him that
someone had just stolen his car, he ran to the stall where the Maxima was
parked and that the car had stalled as Young was attempting to drive off.
Parker stated, “I was standing in front of the car. I was looking at the guy that
was in the car, and he was looking at me laughing.” He stated that once the car
quit stalling, Young drove right toward him and he had to jump out of the way
to keep from being hit. Parker testified that he was about five feet from the
front of the Maxima when Young drove off and that he got a good look at the
driver for about fifteen seconds. Parker further corroborated Grant's testimony
regarding their pursuit of the Maxima and also testified that Young was the
driver of the Maxima as it side-swiped them on the county road. Parker
testified that after they abandoned their pursuit and called the police, they went
to the Indianola Police Station and that while they were there the police
brought Young in, in handcuffs. Parker testified that upon seeing Young at the
police station, “I told the police officer, the guy that I made the report out to,
I told him ‘that's the guy that stole my car.’” Parker also identified Young in
the courtroom as the man who drove off in his car at the Double Quick and the
same driver as was out on the county road.
Id. at 112-13 (¶¶3-4) (emphasis added).
¶22.
During the bifurcated proceeding, the prosecution informed the circuit court of the
facts discussed in Young. As the circuit court held that Young qualified for enhanced
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sentencing as set forth in section 99-19-83, the circuit court noted that, in Young, Young had
shoved the victim from behind and snatched the keys out of her hand. Consequently, the
circuit court acted appropriately when it held that Young’s previous conviction for “unarmed
carjacking” had been a crime of violence. It follows that we find no merit to this assignment
of error.
¶23. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT OF
CONVICTION OF COUNT I, FELONY EVASION, AND COUNT V, AUTOMOBILE
BURGLARY, AND SENTENCE OF LIFE AS A HABITUAL OFFENDER IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT
ELIGIBILITY FOR PAROLE OR PROBATION IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.
LEE, C.J., GRIFFIS, P.J., MYERS, BARNES, ISHEE, CARLTON,
MAXWELL AND RUSSELL, JJ., CONCUR. IRVING, P.J., NOT PARTICIPATING.
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