Kyle D. Dean v. State of Mississippi;

• Court: Court of Appeals of Mississippi
• Decided: May 5, 2020
• Docket: NO. 2018-KA-01690-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-KA-01690-COA

KYLE D. DEAN APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/25/2018 TRIAL JUDGE: HON. DAL WILLIAMSON COURT FROM WHICH APPEALED: JONES COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD DISTRICT ATTORNEY: ANTHONY J. BUCKLEY NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND RENDERED - 05/05/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE J. WILSON, P.J., McDONALD AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. Kyle Dean appeals his conviction for burglary of a building. Dean asserts that there

was insufficient evidence to support his guilty verdict because the State failed to prove

beyond a reasonable doubt that a breaking occurred (an essential element of burglary of a

building). Upon review, we agree. We therefore reverse and render.

BACKGROUND AND PROCEDURAL HISTORY

¶2. Bobby Stubbs and Lorna Walker owned a house in Laurel, Mississippi. The couple

did not live in the house yet because they were renovating it. While the house was being renovated, Stubbs set up a security camera to monitor the house. The camera detected

motion and audio and alerted the couple’s cell phones when activated.

¶3. On July 18, 2017, a little before 5:00 a.m., Walker awoke to an alert on her cell phone

from the security camera. Walker pulled up the camera footage on her phone and saw that

a man was in her future home. Walker, who was out of town at the time, immediately texted

Stubbs, who was at work, to inform him that a man was in their house. Stubbs, who also saw

the man on the camera footage, called the police. Walker then spoke to the intruder through

the security-camera application on her phone. After she asked the man what he was doing

in her house, the man left.

¶4. Following the incident, a few small appliances, such as a toaster oven and a blender,

were missing from Walker and Stubbs’s future home. Walker provided the police with video

footage from the security camera. The State presented the video as an exhibit at trial. In the

video, a black male with a white hat, a dark color shirt, and a red drawstring backpack is

walking around the house. The video does not show the individual taking any appliances and

does not show how the individual entered or exited the house.

¶5. Investigator Earl Reed was one of the responding officers following the incident.

About a day after the incident, Reed apprehended Dean in the area near Walker and Stubbs’s

house. When Reed apprehended Dean, Dean was wearing a red drawstring backpack.

¶6. At trial, Walker and Stubbs identified Dean as the man that they saw (on camera) in

their future home. Stubbs testified that he had visited the house on July 17, 2017, the day

before the incident, to get some things for his grandchildren and to check on the renovations.

2 But Stubbs did not testify as to whether he made sure that the house’s windows and doors

were secured before he left. Likewise, the State offered no evidence about the condition of

the house’s doors or windows at the actual time of the incident.

¶7. Ultimately, a Jones County Circuit Court jury convicted Dean of one count of burglary

of a building. The circuit court sentenced Dean to serve seven years in the custody of the

Mississippi Department of Corrections. Dean appealed, raising two issues: (1) that “the

evidence was insufficient to prove beyond a reasonable doubt that a breaking occurred” and

(2) that the jury’s guilty verdict was against the overwhelming weight of the evidence.

Because we agree that there was insufficient evidence to support the guilty verdict, we do not

address Dean’s second issue.

DISCUSSION

¶8. In considering whether the evidence is sufficient to sustain a conviction, “the 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.” Williams v. State, 35 So. 3d 480, 485 (¶16) (Miss. 2010). Where the

facts and inferences “point in favor of the defendant on any element of the offense with

sufficient force that reasonable [jurors] could not have found beyond a reasonable doubt that

the defendant was guilty, the proper remedy is . . . to reverse and render.” Id. However, if

“reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different

conclusions on every element of the offense,” the evidence is sufficient, and the conviction

should be sustained. Id.

3 ¶9. It was the State’s duty to “prove beyond a reasonable doubt” that Dean committed all

elements of burglary of a non-dwelling. Ward v. State, 285 So. 3d 136, 140 (¶16) (Miss.

2019). As set forth in Mississippi Code Annotated section 97-17-33(1) (Rev. 2014), the

elements of burglary of a non-dwelling are “(1) breaking and entering a building; (2) where

something of value is kept for use, sale, deposit, or transportation; and (3) the intent to

commit a specific crime therein.” Gales v. State, 131 So. 3d 1238, 1240 (¶9) (Miss. Ct. App.

2013) (citing Miss. Code Ann. § 97-17-33). “[A] breaking is conducted by an act of force,

regardless of how slight, necessary to be used in entering a building, such as turning a knob,

a slight push to further open a door, or raising a latch.” Foster v. State, 281 So. 3d 229, 233

(¶11) (Miss. Ct. App. 2019). In other words, “[t]o constitute burglary, a structure must

generally be closed. Otherwise the entry is merely a trespass, not a breaking and a burglary.”

Id. (internal quotation marks omitted).

¶10. Here, similar to Foster, the State presented “no evidence of the condition of the

[doors] on the date of the incident.” Id. at (¶12). During questioning, the State did not elicit

any testimony regarding the breaking element. Despite Stubbs’s testimony that he had visited

the house the day before the incident, Stubbs did not testify as to whether he checked to

ensure the windows and doors to the house were locked or even shut. Further, the video

introduced by the State does not show the alleged burglar entering or exiting through a closed

door or window, and the State did not offer any photographs of the home’s windows or doors

to show proof of breaking. We thus find that based on the evidence, the State did not prove

the element of “breaking” beyond a reasonable doubt.

4 ¶11. Generally, when a “breaking” cannot be found, a jury can consider the lesser-included

charge of trespass. Id. at (¶13). “The elements of trespass include wilfully and maliciously

entering another’s property without permission or remaining on his or her property after

being told to leave.” Ladd v. State, 87 So. 3d 1108, 1116 (¶23) (Miss. Ct. App. 2012).

However, the State did not request a jury instruction on the lesser-included offense of

trespass at trial. And the State has not argued on appeal that we should remand for

sentencing on the crime of trespass if no “breaking” is found. Accordingly, consistent with

Foster, 281 So. 3d at 233 (¶13), we reverse and render the judgment of the Jones County

Circuit Court.

¶12. REVERSED AND RENDERED.

BARNES, C.J., J. WILSON, P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR. CARLTON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.