IN THE SUPREME COURT OF MISSISSIPPI
NO. 2022-KA-01089-SCT
JOE DAVIS EXSON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 09/21/2022 TRIAL JUDGE: HON. JAMES McCLURE, III TRIAL COURT ATTORNEYS: BRADLEY STUART PEEPLES STEVEN PATRICK JUBERA COURT FROM WHICH APPEALED: YALOBUSHA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ASHLEY LAUREN SULSER DISTRICT ATTORNEY: JAMES STEPHEN HALE, JR. NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/14/2024 MOTION FOR REHEARING FILED:
BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.
KING, PRESIDING JUSTICE, FOR THE COURT:
¶1. Joe Exson was convicted of burglary of a dwelling, grand larceny, and first degree
arson after the jury was shown a video of a man who looked like him and wore the same
hoodie as he had in his possession committing these crimes. Exson appeals, arguing that the
State failed to prove the value element under the larceny statute and that the jury was improperly instructed as to the value element of the larceny statute. Because Exson’s claims
are procedurally barred and without merit, this Court affirms his convictions.
FACTS AND PROCEDURAL HISTORY
¶2. On January 4-5, 2021, Jamie Diltz’s house in Oakland, Mississippi was burglarized.
The person who burglarized the house, later identified as Joe Exson, took several items over
the two days, including a television, several lamps, several clocks, medicine, a mirror, and
paintings. Much of the burglary was caught on video via Arlo cameras inside the house that
uploaded the videos to cloud storage. For much of the video, Exson was wearing a
distinctive grey hoodie with large squares of white on the bottom front. On January 5, Exson
set fire to bedding in the bedroom, which was also caught on video. The house consequently
completely burned down. Exson was indicted and tried for burglary with the intent to
commit larceny, grand larceny, and arson.
¶3. On January 6, 2021, Diltz gave a written statement to the Oakland Police Department
and the fire marshal in which he listed the items that the video showed as being stolen from
the home. Diltz listed the following items and his estimate of their worth:
TV $250 paintings $300 clocks $600 mirrors $200 tools $200 medicine Oxyco, Depression pictures $50 the house Lamp $200
2 The total of the values of stolen items listed is $1800, which does not account for the
medicines to which Diltz assigned no specific value on the form. He also gave law
enforcement his Arlo login information so that they could access the video evidence obtained
through the cameras in the home, which showed the person who took the items and set the
fire, and also captured many or all of the items stolen. At trial, Diltz testified that the total
value of the stolen items as viewed on the video was “I’m thinking by everything of the age,
maybe two or three thousand dollars.” He clarified that the value was “[w]ell over a $1,000.”
The defense did not cross-examine Diltz on the issue of valuation.
¶4. Deputy Wortham with the Yalobusha County Sheriff’s Department was dispatched
to pick up Exson in relation to the burglary and arson. Deputy Wortham testified that when
he went to pick up Exson, Deputy Wortham observed Exson put on a grey and white hoodie.
The hoodie he wore was entered into evidence. Deputy Wortham identified the hoodie as
the same hoodie seen in the videos and the still captures therefrom. Deputy West interviewed
Exson after Deputy Wortham picked him up, and also identified the hoodie that Exson was
wearing in the interview and that was in evidence as the same hoodie seen being worn in the
video during the burglary and arson.
¶5. The Yalobusha County fire investigator also testified at trial regarding the cause and
source of the fire. Multiple witnesses for the State identified the person in the video as
Exson. Exson testified in his own defense, as did a friend of his. Both of their testimony
centered on arguing that the person in the video was not Exson.
3 ¶6. The State proposed a grand larceny instruction that listed the property taken and stated
as an element that the jury must find that “[t]he property was/were valued at more than
$1,000 but less than $5,000 and owned by Jamie Diltz[.]” Exson did not object to this
instruction, and the Court gave it. The jury returned guilty verdicts for all three counts. The
court sentenced Exson to twenty-five years for the burglary conviction, to five years of post-
release supervision consecutive to the burglary sentence for the grand larceny conviction, and
to ten years of post-release supervision for the arson conviction to run concurrent to the
larceny sentence and consecutive to the burglary sentence.
¶7. Exson appeals. The only issues he raises on appeal pertain to the value element of
grand larceny.
ANALYSIS
¶8. Exson was convicted of grand larceny in violation of Mississippi Code Section 97-17-
41(1). That section provides that grand larceny consists of feloniously taking and carrying
away “the personal property of another, of the value of One Thousand Dollars ($1,000.00)
or more, but less than Five Thousand Dollars ($5,000.00)[.]” Miss. Code Ann. 97-17-41(1)
(Rev. 2020).
¶9. First, Exson argues that the State failed to provide sufficient evidence of the fair
market value of the stolen property. He surmises that the approximation of value by Diltz
is not sufficient. Exson failed to raise this argument in his post-trial motions,1 so it is
procedurally barred. Sheffield v. State, 749 So. 2d 123, 126 (Miss. 1999). Exson also fails
1 Exson also failed to raise the issue in his motion for a directed verdict and failed to cross-examine anyone regarding the value of the items.
4 to cite any authority whatsoever for his argument, thus this Court may decline to address it.
Arrington v. State, 267 So. 3d 753, 756 (Miss. 2019). In this specific case, we exercise our
discretion not to the review the issue. No injustice will occur in this case from our discretion
to decline to address the merits—not only is Exson on video committing the crimes, the
reversal of his larceny sentence would effectuate no substantial change to the length of his
sentence, since his arson sentence is longer and is to run concurrently.
¶10. Second, Exson argues that the jury was not properly instructed on value and thus
could not have properly found the element of value. Exson did not object to the jury
instructions at trial, thus this issue is procedurally barred, and this Court reviews the issue
only for plain error. Johnson v. State, 290 So. 3d 1232, 1240 (Miss. 2020). Under plain
error review, a conviction is only reversed if there exists an error “that adversely affected the
defendant’s substantive rights, causing a manifest miscarriage of justice.” Id. (internal
quotation mark omitted) (quoting Rodgers v. State, 166 So. 3d 537, 544 (Miss. Ct. App.
2014)).
¶11. Exson cites Totten v. State for support of his argument that the jury was not properly
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2022-KA-01089-SCT
JOE DAVIS EXSON
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 09/21/2022 TRIAL JUDGE: HON. JAMES McCLURE, III TRIAL COURT ATTORNEYS: BRADLEY STUART PEEPLES STEVEN PATRICK JUBERA COURT FROM WHICH APPEALED: YALOBUSHA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ASHLEY LAUREN SULSER DISTRICT ATTORNEY: JAMES STEPHEN HALE, JR. NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 03/14/2024 MOTION FOR REHEARING FILED:
BEFORE KING, P.J., CHAMBERLIN AND ISHEE, JJ.
KING, PRESIDING JUSTICE, FOR THE COURT:
¶1. Joe Exson was convicted of burglary of a dwelling, grand larceny, and first degree
arson after the jury was shown a video of a man who looked like him and wore the same
hoodie as he had in his possession committing these crimes. Exson appeals, arguing that the
State failed to prove the value element under the larceny statute and that the jury was improperly instructed as to the value element of the larceny statute. Because Exson’s claims
are procedurally barred and without merit, this Court affirms his convictions.
FACTS AND PROCEDURAL HISTORY
¶2. On January 4-5, 2021, Jamie Diltz’s house in Oakland, Mississippi was burglarized.
The person who burglarized the house, later identified as Joe Exson, took several items over
the two days, including a television, several lamps, several clocks, medicine, a mirror, and
paintings. Much of the burglary was caught on video via Arlo cameras inside the house that
uploaded the videos to cloud storage. For much of the video, Exson was wearing a
distinctive grey hoodie with large squares of white on the bottom front. On January 5, Exson
set fire to bedding in the bedroom, which was also caught on video. The house consequently
completely burned down. Exson was indicted and tried for burglary with the intent to
commit larceny, grand larceny, and arson.
¶3. On January 6, 2021, Diltz gave a written statement to the Oakland Police Department
and the fire marshal in which he listed the items that the video showed as being stolen from
the home. Diltz listed the following items and his estimate of their worth:
TV $250 paintings $300 clocks $600 mirrors $200 tools $200 medicine Oxyco, Depression pictures $50 the house Lamp $200
2 The total of the values of stolen items listed is $1800, which does not account for the
medicines to which Diltz assigned no specific value on the form. He also gave law
enforcement his Arlo login information so that they could access the video evidence obtained
through the cameras in the home, which showed the person who took the items and set the
fire, and also captured many or all of the items stolen. At trial, Diltz testified that the total
value of the stolen items as viewed on the video was “I’m thinking by everything of the age,
maybe two or three thousand dollars.” He clarified that the value was “[w]ell over a $1,000.”
The defense did not cross-examine Diltz on the issue of valuation.
¶4. Deputy Wortham with the Yalobusha County Sheriff’s Department was dispatched
to pick up Exson in relation to the burglary and arson. Deputy Wortham testified that when
he went to pick up Exson, Deputy Wortham observed Exson put on a grey and white hoodie.
The hoodie he wore was entered into evidence. Deputy Wortham identified the hoodie as
the same hoodie seen in the videos and the still captures therefrom. Deputy West interviewed
Exson after Deputy Wortham picked him up, and also identified the hoodie that Exson was
wearing in the interview and that was in evidence as the same hoodie seen being worn in the
video during the burglary and arson.
¶5. The Yalobusha County fire investigator also testified at trial regarding the cause and
source of the fire. Multiple witnesses for the State identified the person in the video as
Exson. Exson testified in his own defense, as did a friend of his. Both of their testimony
centered on arguing that the person in the video was not Exson.
3 ¶6. The State proposed a grand larceny instruction that listed the property taken and stated
as an element that the jury must find that “[t]he property was/were valued at more than
$1,000 but less than $5,000 and owned by Jamie Diltz[.]” Exson did not object to this
instruction, and the Court gave it. The jury returned guilty verdicts for all three counts. The
court sentenced Exson to twenty-five years for the burglary conviction, to five years of post-
release supervision consecutive to the burglary sentence for the grand larceny conviction, and
to ten years of post-release supervision for the arson conviction to run concurrent to the
larceny sentence and consecutive to the burglary sentence.
¶7. Exson appeals. The only issues he raises on appeal pertain to the value element of
grand larceny.
ANALYSIS
¶8. Exson was convicted of grand larceny in violation of Mississippi Code Section 97-17-
41(1). That section provides that grand larceny consists of feloniously taking and carrying
away “the personal property of another, of the value of One Thousand Dollars ($1,000.00)
or more, but less than Five Thousand Dollars ($5,000.00)[.]” Miss. Code Ann. 97-17-41(1)
(Rev. 2020).
¶9. First, Exson argues that the State failed to provide sufficient evidence of the fair
market value of the stolen property. He surmises that the approximation of value by Diltz
is not sufficient. Exson failed to raise this argument in his post-trial motions,1 so it is
procedurally barred. Sheffield v. State, 749 So. 2d 123, 126 (Miss. 1999). Exson also fails
1 Exson also failed to raise the issue in his motion for a directed verdict and failed to cross-examine anyone regarding the value of the items.
4 to cite any authority whatsoever for his argument, thus this Court may decline to address it.
Arrington v. State, 267 So. 3d 753, 756 (Miss. 2019). In this specific case, we exercise our
discretion not to the review the issue. No injustice will occur in this case from our discretion
to decline to address the merits—not only is Exson on video committing the crimes, the
reversal of his larceny sentence would effectuate no substantial change to the length of his
sentence, since his arson sentence is longer and is to run concurrently.
¶10. Second, Exson argues that the jury was not properly instructed on value and thus
could not have properly found the element of value. Exson did not object to the jury
instructions at trial, thus this issue is procedurally barred, and this Court reviews the issue
only for plain error. Johnson v. State, 290 So. 3d 1232, 1240 (Miss. 2020). Under plain
error review, a conviction is only reversed if there exists an error “that adversely affected the
defendant’s substantive rights, causing a manifest miscarriage of justice.” Id. (internal
quotation mark omitted) (quoting Rodgers v. State, 166 So. 3d 537, 544 (Miss. Ct. App.
2014)).
¶11. Exson cites Totten v. State for support of his argument that the jury was not properly
instructed, but Totten does not address jury instructions; rather, with regard to a sufficiency
of the evidence issue, the Court noted that “the jury was correctly instructed that, in order to
find Totten guilty, it had to find that the market value of the property at the time of the
larceny equaled or exceeded $500.” Totten v. State, 166 So. 3d 32, 35 (Miss. 2015). The
jury instructions in this case did not specifically define “value.” However, a jury instruction
on grand larceny is not improper when it defines the crime in conformity with the statute.
5 Jones v. State, 223 Miss. 812, 79 So. 2d 273 (1955). And the jury instruction properly
tracked the larceny statute on the value element. Certainly, the better practice would be to
properly define “value” in this statute for the jury. But Exson did not request a definitional
instruction, and trial courts are not required to sua sponte give jury instructions or supplement
the requested instructions. Bernard v. State, 288 So. 3d 301, 312 (Miss. 2019). It is true that
the trial court is ultimately responsible for the jury receiving proper instruction, and it is true
that a court’s failure to instruct the jury on the basic elements that constitute the crime
amount to not only error, but plain error. Harrell v. State, 134 So. 3d 266, 270-73 (Miss.
2014). But in this case, the jury was instructed on the basic elements of the crime of grand
larceny, and definitional instructions are not in the same position as the instructions on the
elements. Bernard, 288 So. 3d at 312 (finding no error when the defendant failed to request
a definitional instruction regarding the definition of the heat of passion element of
manslaughter). Thus, under plain error review, this Court finds no reversible error in a jury
instruction that tracks the language of the grand larceny statute, but fails to further define or
refine the element of value, when the defendant did not object to the instruction nor request
a definitional instruction.
CONCLUSION
¶12. Exson’s arguments are procedurally barred and without merit. Consequently, this
Court affirms his convictions.
¶13. AFFIRMED.
RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ., CONCUR.