IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CT-01576-SCT
JOHNNY MCINNIS
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 08/25/2008 TRIAL JUDGE: HON. BILLY JOE LANDRUM COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF INDIGENT APPEALS BY: JUSTIN T. COOK LESLIE S. LEE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE McCRORY DISTRICT ATTORNEY: ANTHONY J. BUCKLEY NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 04/07/2011 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
LAMAR, JUSTICE, FOR THE COURT:
¶1. This Court granted Johnny McInnis’s petition for certiorari, in which he appeals the
affirmance of his conviction for burglary of a dwelling. McInnis argues that the trial court
committed reversible error in failing to grant a two-theory instruction when the State
presented no direct evidence that he committed the crime of burglary. We agree and reverse
and remand, as the trial court failed to grant any circumstantial-evidence instruction. FACTS
¶2. On the night of October 8, 2007, eighty-four-year-old Hillary Kissenger awoke to an
unfamiliar noise and discovered a black male in her bedroom. She testified that, while she
did not have her glasses on, she could discern that the intruder had a light complexion with
curly hair and wore a white t-shirt and belt. Kissenger saw the intruder grab her purse and
run out of the house. She immediately called the police.
¶3. At approximately 10:55 p.m., the police received Kissenger’s 911 call. Sergeant
Shannon Caraway was on patrol two blocks from Kissenger’s home on Thirty-second Street
when she received a dispatch call to be on the lookout for a black male wearing a white t-
shirt. Caraway immediately proceeded toward Kissenger’s home and had turned onto Thirty-
third Street when she saw a black male wearing a white t-shirt drive past her. Caraway
turned around and followed the car as it proceeded to travel at a high rate of speed. At 10:56
and 37 seconds, the car stopped approximately six blocks from the site of the burglary, and
Caraway identified the driver as Johnny McInnis. McInnis also had a passenger, Bonnie
Woods Armstrong,1 described as a “black hispanic female.”
¶4. Caraway asked McInnis why he was driving so fast, and Armstrong answered that she
needed to use the rest room. Caraway also told McInnis that his description matched that of
someone who had just committed a burglary. While Caraway did not tell McInnis where the
burglary had occurred, McInnis voluntarily responded that he “was just on Thirty-second
Street trying to hustle some Mexicans.” Caraway then noticed that there were three purses
1 Armstrong did not testify at trial.
2 on the front seat between McInnis and Armstrong. Armstrong identified one purse as hers,
but she did not know who owned the other purses or where they had come from. Caraway
determined that one purse belonged to Kissenger, because it contained several items bearing
Kissenger’s name. Kissenger’s wallet, which contained her driver’s license and social
security card, also was found in the car. Caraway also discovered two, crumpled Tustmark
Bank envelopes approximately eight feet from the driver’s side of McInnis’s car. Kissenger
went to the scene and identified the purse and envelopes as hers.
¶5. McInnis’s mother, Ruthie Mae McInnis, testified that, on the night of October 8, 2007,
she had received a phone call from a female asking to speak to her son. Mrs. McInnis
testified that her son had spoken to the female and then had left the house.
¶6. Johnny McInnis testified that Armstrong had called him around 10:00 p.m. or 10:30
p.m. on October 8, 2007, and had asked him to pick her up at Thirty-second Street. McInnis
stated that he picked up Armstrong approximately thirty or thirty-five minutes later in a
driveway and helped her put her belongings into his car. McInnis testified that Armstrong
had two purses.
¶7. McInnis denied burglarizing Kissenger’s home and telling Sergeant Caraway that he
had tried to hustle Mexicans for money. He also stated that no Trustmark envelopes had
been on the ground near his car at the time of his arrest.
COURT OF APPEALS DECISION
¶8. The Court of Appeals found that the trial court properly had denied McInnis’s two-
theory instruction, as the evidence was not purely circumstantial and the instruction was
3 cumulative with the elements instruction.2 The Court of Appeals found the following facts
to be direct evidence, requiring a denial of McInnis’s two-theory instruction:
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 Caraway 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 Caraway 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 Caraway that he was just on 32 Street trying to “hustle” some Mexicans. Officer Caraway 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.3
The Court of Appeals also found that the proffered two-theory instruction was cumulative
with the following instruction (S-1), which the trial court had granted:
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 8 day of October, 2007, in the Second Judicial District of Jones County, Mississippi;
2. Did break and enter;
3. The dwelling house of Hillary D. Kissenger located at 1438 32 Street, Laurel, Mississippi;
4. With the intent to commit the crime of larceny therein;
5. Once therein, Johnny L. McInnis, did unlawfully take, steal and carry away the personal property of Hillary Kissenger;
2 McInnis v. State, 2010 WL 522692, at *5 (Miss. Ct. App. Feb. 16, 2010). 3 Id. at *4.
4 Then you shall find the defendant, Johnny L. McInnis, guilty in Count 1 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.4
¶9. Instruction S-1 contains no language that is traditionally included in any
circumstantial-evidence instruction. It is a customary elements instruction containing the
reasonable-doubt standard.5 Therefore, we next analyze whether the trial court erred in
failing to grant McInnis’s two-theory instruction, when no other circumstantial-evidence
instruction was granted. DISCUSSION
¶10. This court reviews a grant or denial of a jury instruction under an abuse-of-discretion
standard.6 Jury instructions must be read as a whole to determine if they fairly announce the
law,7 and they must be supported by evidence.8 “[A] court may refuse an instruction which
incorrectly states the law, is covered fairly elsewhere in the instructions, or is without
4 Id. at *5.
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 2008-CT-01576-SCT
JOHNNY MCINNIS
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 08/25/2008 TRIAL JUDGE: HON. BILLY JOE LANDRUM COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF INDIGENT APPEALS BY: JUSTIN T. COOK LESLIE S. LEE ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DEIRDRE McCRORY DISTRICT ATTORNEY: ANTHONY J. BUCKLEY NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 04/07/2011 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
LAMAR, JUSTICE, FOR THE COURT:
¶1. This Court granted Johnny McInnis’s petition for certiorari, in which he appeals the
affirmance of his conviction for burglary of a dwelling. McInnis argues that the trial court
committed reversible error in failing to grant a two-theory instruction when the State
presented no direct evidence that he committed the crime of burglary. We agree and reverse
and remand, as the trial court failed to grant any circumstantial-evidence instruction. FACTS
¶2. On the night of October 8, 2007, eighty-four-year-old Hillary Kissenger awoke to an
unfamiliar noise and discovered a black male in her bedroom. She testified that, while she
did not have her glasses on, she could discern that the intruder had a light complexion with
curly hair and wore a white t-shirt and belt. Kissenger saw the intruder grab her purse and
run out of the house. She immediately called the police.
¶3. At approximately 10:55 p.m., the police received Kissenger’s 911 call. Sergeant
Shannon Caraway was on patrol two blocks from Kissenger’s home on Thirty-second Street
when she received a dispatch call to be on the lookout for a black male wearing a white t-
shirt. Caraway immediately proceeded toward Kissenger’s home and had turned onto Thirty-
third Street when she saw a black male wearing a white t-shirt drive past her. Caraway
turned around and followed the car as it proceeded to travel at a high rate of speed. At 10:56
and 37 seconds, the car stopped approximately six blocks from the site of the burglary, and
Caraway identified the driver as Johnny McInnis. McInnis also had a passenger, Bonnie
Woods Armstrong,1 described as a “black hispanic female.”
¶4. Caraway asked McInnis why he was driving so fast, and Armstrong answered that she
needed to use the rest room. Caraway also told McInnis that his description matched that of
someone who had just committed a burglary. While Caraway did not tell McInnis where the
burglary had occurred, McInnis voluntarily responded that he “was just on Thirty-second
Street trying to hustle some Mexicans.” Caraway then noticed that there were three purses
1 Armstrong did not testify at trial.
2 on the front seat between McInnis and Armstrong. Armstrong identified one purse as hers,
but she did not know who owned the other purses or where they had come from. Caraway
determined that one purse belonged to Kissenger, because it contained several items bearing
Kissenger’s name. Kissenger’s wallet, which contained her driver’s license and social
security card, also was found in the car. Caraway also discovered two, crumpled Tustmark
Bank envelopes approximately eight feet from the driver’s side of McInnis’s car. Kissenger
went to the scene and identified the purse and envelopes as hers.
¶5. McInnis’s mother, Ruthie Mae McInnis, testified that, on the night of October 8, 2007,
she had received a phone call from a female asking to speak to her son. Mrs. McInnis
testified that her son had spoken to the female and then had left the house.
¶6. Johnny McInnis testified that Armstrong had called him around 10:00 p.m. or 10:30
p.m. on October 8, 2007, and had asked him to pick her up at Thirty-second Street. McInnis
stated that he picked up Armstrong approximately thirty or thirty-five minutes later in a
driveway and helped her put her belongings into his car. McInnis testified that Armstrong
had two purses.
¶7. McInnis denied burglarizing Kissenger’s home and telling Sergeant Caraway that he
had tried to hustle Mexicans for money. He also stated that no Trustmark envelopes had
been on the ground near his car at the time of his arrest.
COURT OF APPEALS DECISION
¶8. The Court of Appeals found that the trial court properly had denied McInnis’s two-
theory instruction, as the evidence was not purely circumstantial and the instruction was
3 cumulative with the elements instruction.2 The Court of Appeals found the following facts
to be direct evidence, requiring a denial of McInnis’s two-theory instruction:
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 Caraway 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 Caraway 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 Caraway that he was just on 32 Street trying to “hustle” some Mexicans. Officer Caraway 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.3
The Court of Appeals also found that the proffered two-theory instruction was cumulative
with the following instruction (S-1), which the trial court had granted:
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 8 day of October, 2007, in the Second Judicial District of Jones County, Mississippi;
2. Did break and enter;
3. The dwelling house of Hillary D. Kissenger located at 1438 32 Street, Laurel, Mississippi;
4. With the intent to commit the crime of larceny therein;
5. Once therein, Johnny L. McInnis, did unlawfully take, steal and carry away the personal property of Hillary Kissenger;
2 McInnis v. State, 2010 WL 522692, at *5 (Miss. Ct. App. Feb. 16, 2010). 3 Id. at *4.
4 Then you shall find the defendant, Johnny L. McInnis, guilty in Count 1 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.4
¶9. Instruction S-1 contains no language that is traditionally included in any
circumstantial-evidence instruction. It is a customary elements instruction containing the
reasonable-doubt standard.5 Therefore, we next analyze whether the trial court erred in
failing to grant McInnis’s two-theory instruction, when no other circumstantial-evidence
instruction was granted. DISCUSSION
¶10. This court reviews a grant or denial of a jury instruction under an abuse-of-discretion
standard.6 Jury instructions must be read as a whole to determine if they fairly announce the
law,7 and they must be supported by evidence.8 “[A] court may refuse an instruction which
incorrectly states the law, is covered fairly elsewhere in the instructions, or is without
4 Id. at *5. 5 This flawed reasoning is found in another Court of Appeals’ decision, Moses v. State 30 So. 3d 391, 395 (Miss. Ct. App. 2010). Instructing the jury that it must find the elements of a crime beyond a reasonable doubt does not cure and render harmless the trial court’s refusal of a circumstantial-evidence instruction where such an instruction is warranted. See Stringfellow v. State; 595 So. 2d 1320, 1322 (Miss. 1992); Gilleylen v. State, 255 So. 2d 661, 663 (Miss. 1971); Kendall v. State, 217 So. 2d 35, 36 (Miss. 1968). 6 Davis v. State, 18 So. 3d 842, 847 (Miss. 2009). 7 Id. 8 Jackson v. State, 815 So. 2d 1196, 1200 (Miss. 2002).
5 foundation in the evidence.” 9 Because we find the trial court committed reversible error in
failing to grant a two-theory instruction as requested by McInnis, we decline to address the
second issue raised on appeal: Whether the trial court erred in granting an accomplice
instruction.
¶11. We begin our discussion by defining “circumstantial evidence.” Circumstantial
evidence is “evidence which, without going directly to prove the existence of a fact, gives
rise to a logical inference that such fact does exist.” 10 In this case, McInnis submitted a two-
theory instruction, which is a specific type of circumstantial-evidence instruction. A two-
theory instruction instructs the jury what to do when the “record supports two or more
hypotheses of the crime committed” and all the evidence of the crime is circumstantial.11
This court recently has held that a trial court may refuse a two-theory instruction if it has
granted a (general) circumstantial-evidence instruction.12 A circumstantial-evidence
instruction provides that the State must prove the defendant guilty beyond a reasonable doubt
and to the exclusion of all reasonable hypotheses consistent with innocence.13 In this case,
9 Jones v. State, 797 So. 2d 922, 927 (Miss. 2001). 10 Keys v. State, 478 So. 2d 266, 268 (Miss. 1985). 11 Goff v. State, 14 So. 3d 625, 677-78 (Miss. 2009) (Waller, C.J., dissenting) (The term “‘two-theory’ is a misnomer. A better name would be a ‘two-interpretation’ instruction[.]”) 12 Id. at 625, 662-63 (finding that circumstantial-evidence instruction embodies essentials of a two-theory instruction). 13 State v. Rogers, 847 So. 2d 858, 864 (Miss. 2003).
6 McInnis did not request a circumstantial-evidence instruction, but as previously noted, he did
request a two-theory instruction.
¶12. While a two-theory instruction is different from a circumstantial-evidence instruction,
“the rules for when they are appropriately given apply to both.” 14 But our caselaw has been
less than clear as to the application of these “rules.” 15 As noted by Justice Robertson in his
concurring opinion in Montgomery v. State, this Court has “no less than eighteen
articulations of the test for determining whether and when the circumstantial evidence burden
of proof rule should apply.” 16
¶13. Earlier this year, this Court addressed a similar case, and, speaking for a unanimous
court, Justice Kitchens again articulated a rule for cases in which a circumstantial evidence
instruction is warranted when requested by the defendant: “While evidence does not always
fall neatly into one category, examples of direct evidence include an admission or confession
by the defendant to ‘a significant element of the offense,’ or eyewitness testimony to the
‘gravamen of the offense’ charged.” 17 The term “gravamen” is defined as the “substantial
point or essence of a claim, grievance, or complaint.” 18 Therefore, if any evidence presented
14 Id. at 864. 15 Montgomery v. State, 515 So. 2d 845, 849 (Miss. 1987) (Robertson, J., concurring). 16 Id. 17 Kirkwood v. State, 52 So. 3d 1184, 1187 (Miss. 2011) (quoting Mack v. State, 481 So. 2d 793, 795 (Miss. 1985)). 18 Black’s Law Dictionary 562 (7th ed. 2000).
7 fits the direct-evidence definition from Kirkwood, the trial court may properly refuse a
circumstantial-evidence instruction.
¶14. The gravamen for the offense of burglary of a dwelling are that: (1) McInnis broke
into and entered Kissenger’s home and that (2) McInnis had the intent to commit some crime
therein.19 In this case, the State was required to prove either directly or circumstantially that
McInnis was the man who broke into and entered Kissenger’s home with the intent to commit
larceny. And in fact, the jury was instructed to that effect. But Kissenger did not testify that
she saw McInnis commit any act in her home, nor is there any other direct evidence that
identifies McInnis as the perpetrator. The gravamen for this offense is tied to a specific
defendant. Furthermore, McInnis never confessed or made any admission to a significant
element of the crime. While the Court of Appeals identified various testimony as direct
evidence that a crime was committed, this was not direct evidence that McInnis committed
the crime of burglary. Therefore, the trial court abused its discretion by denying a two-theory
instruction, because it gave no other circumstantial instruction.
CONCLUSION
¶15. The trial court abused its discretion in refusing to grant McInnis a two-theory
instruction, as the State presented no direct evidence that McInnis committed the crime of
burglary. Therefore, we reverse and remand for a new trial consistent with this opinion.
¶16. REVERSED AND REMANDED.
19 Miss. Code Ann. § 97-17-23 (Rev. 2006).
8 WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR. KING, J., NOT PARTICIPATING.