Florence v. State

786 So. 2d 409, 2000 WL 1725475
CourtCourt of Appeals of Mississippi
DecidedNovember 21, 2000
Docket1999-KA-01664-COA
StatusPublished
Cited by3 cases

This text of 786 So. 2d 409 (Florence v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Florence v. State, 786 So. 2d 409, 2000 WL 1725475 (Mich. Ct. App. 2000).

Opinion

786 So.2d 409 (2000)

John FLORENCE, Appellant
v.
STATE of Mississippi, Appellee.

No. 1999-KA-01664-COA.

Court of Appeals of Mississippi.

November 21, 2000.
Rehearing Denied February 6, 2001.
Certiorari Denied May 24, 2001.

*410 Thomas M. Fortner, Andre' De Gruy, Robert M. Ryan, Jackson, Attorneys for Appellant.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., IRVING, AND PAYNE, JJ.

IRVING, J., for the Court:

¶ 1. John Florence was tried and convicted of the felony offense of burglary of building other than a dwelling. He was sentenced, as an habitual offender, to serve a term of seven years in the Mississippi Department of Corrections. Following the denial of his motion for JNOV and new trial, Florence has filed this appeal wherein he contends that the trial court erred (1) in granting certain aiding and abetting instructions for the State and denying certain lesser-included-offense instructions for the defense, (2) in allowing peremptory jury strikes contrary to the spirit of Miss.Code Ann. § 13-5-2 (Supp. 2000) and Batson v. Kentucky and (3) in *411 allowing certain expert testimony by Officer Steven McDonald without prior disclosure and in violation of Rule 702 of the Mississippi Rules of Evidence. Finding no reversible error, we affirm.

FACTS

¶ 2. Jackson Police Officer Steven McDonald testified that at approximately 2:30 a. m. on the date of the break-in, he noticed an individual, later identified as Florence, exiting Foster Automotive carrying an armful of property. He also testified that the business's burglar alarm was sounding and an occupied vehicle parked nearby sped off as he approached in his patrol car. McDonald further testified that Florence claimed to be an employee of the business and claimed to be removing the property with the permission of the business owner.

¶ 3. Over Florence's objection, McDonald was allowed to testify that a white powdery substance on Florence's clothing at the time of his arrest was consistent with sheet rock powder. McDonald said he based this opinion, in part, on the fact that the only evidence of a forced entry found at the scene of the break-in was a hole that had been cut into a sheet rock wall. In addition, McDonald testified that as a child he had spent a great deal of time with his father in his father's cabinet installation business which often involved the use of sheet rock. The wall with the hole cut into it separated the main area of the business from a storeroom. The storeroom was covered with only a tin roof, a corner of which had been forced upward, leaving about a three foot wide opening. It appeared that the intruder had used the opening to enter the storeroom and then made a hole in the sheet rock wall of the storeroom to gain entry into the main area of the business.

¶ 4. The only other witness called by the State was Antonio Foster, Jr., the owner of the burglarized establishment. Foster identified the property, which was removed from the business, as belonging to him and denied that Florence had any lawful right to be in the building or in possession of the property.

¶ 5. Florence was the sole witness in his defense. He testified that he suffers from a physical disability which renders him physically unable to have committed the crime in the manner offered by the State. In support of this claim, Florence offered his social security disability medical records into evidence. Said records contained the opinion of an administrative law judge finding that Florence was not capable of, and never would be capable of, climbing.

¶ 6. Florence testified that he saw the property lying on the sidewalk in the doorway of the building as he was walking to his aunt's residence. He said that he became suspicious because he saw an occupied automobile parked nearby with a garbage bag on it. Florence stated that he picked up the items to secure them for his friend, Foster. It was Florence's testimony that at the very moment he picked up the property, the police arrived and the vehicle left.

Analysis of Issues Presented

1. Aiding and Abetting Instructions

¶ 7. Florence argues that instruction S-2 is essentially verbatim to the instruction granted in Hornburger v. State, 650 So.2d 510 (Miss.1995), and that granting the instruction was unfairly prejudicial to his defense and wholly unsupported by any evidence elicited during the trial. Instruction S-2 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, wilfully and *412 feloniously doing any act which is an element of 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, John Florence, on or about August 14, 1998, was present, consented to and encouraged the commission of the crime of business burglary and did then and there wilfully, unlawfully, knowingly, and feloniously do any act which is an element at the crime of business burglary, or immediately connected with it, or leading to its commission, then in that event, you should find the Defendant, John Florence, guilty as charged (emphasis added).

The instruction in Hornburger 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 element of 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 find from the evidence beyond a reasonable doubt that the defendant, Gregory Hornburger, a/k/a Greg Hornburger, did willfully, knowingly, unlawfully and feloniously do any act which is an element of the crime of burglary of a building, or leading to its commission, then and in that event, you should find the defendant guilty as charged.

Hornburger, 650 So.2d. at 513.

¶ 8. In Hornburger, the Mississippi Supreme Court held that granting the instruction was improper but harmless. Id at 515-516. Florence argues that since the instructions are so similar it was improper for the trial court to grant it in his case. He goes on to argue, however, that his case is readily distinguishable from Hornburger with regard to the harmless error aspect. He bases this argument on the fact that Hornburger was found by substantial evidence to have actively participated with another in the commission of the business burglary. Florence argues that in his case there was no credible evidence adduced at trial to even suggest that he had acted in concert with anyone and that therefore, the only issue to be resolved is whether or not the error was harmless. He concludes that the error was anything but harmless and warrants the reversal of his conviction.

¶ 9. In reference to an almost identical instruction in McClendon v. State, 748 So.2d 814, 816 (Miss.Ct.App.1999), this Court held as follows: "[T]he instruction in Hornburger

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Bluebook (online)
786 So. 2d 409, 2000 WL 1725475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/florence-v-state-missctapp-2000.