Peters v. State

920 So. 2d 1050, 2006 WL 279336
Court of Appeals of Mississippi·Decided February 7, 2006·No. 2004-KA-01169-COA·Published·Cited by 5 cases

Opinion

920 So.2d 1050 (2006)

Donnifer PETERS, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-KA-01169-COA.

Court of Appeals of Mississippi.

February 7, 2006.

*1052 Raymond O. Boutwell, attorney for appellant.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

EN BANC.

BARNES, J., for the Court.

¶ 1. Donnifer Peters was tried and convicted in the Circuit Court of Walthall County on charges of burglary and possession of a burglary tool and was sentenced to consecutive terms of seven years and five years, respectively, in the custody of the Mississippi Department of Corrections. Aggrieved by the judgment, Peters timely appealed to this Court. Finding no error, we affirm.

*1053 SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the morning of July 11, 2003, Walthall County District Five Supervisor Clifton "Pop" Carr arrived at work to find that two buildings on the district's property had been burglarized. Carr testified that the doors to the district's main shop and a smaller tool shed had been pried open, and that several items had been removed from the buildings. Billy Wayne Thornhill, a deputy sheriff with the Walthall County Sheriff's Department, testified that when he arrived at the scene that morning, county employee Brad Dunaway directed him to "two or three shoe prints" in the area near the two buildings. Thornhill testified that upon discovering the shoe prints, he called Investigator Truett Simmons to the scene. When Simmons arrived at the scene, he asked Thornhill to make a plaster cast of a shoe print that appeared in some newly poured asphalt. Simmons testified that the shoe print featured a K-Swiss emblem; furthermore, he testified that none of the county employees were wearing K-Swiss shoes at the time.

¶ 3. Deputy Sheriff Kenny Martin testified that later that day, he received a call reporting that Peters had assaulted his wife, Kimberly Peters. Martin testified that the department had an outstanding warrant on Peters stemming from a charge of simple assault, and that he went to Peters's residence that day to execute the warrant. Martin stated that when he arrived at Peters's residence, Peters was sitting in a car that was parked in the yard. Martin testified that when he told Peters of the warrant for his arrest, Peters said, "Hell no, I ain't going no f where," and started the car. At this point, Martin testified, the officers used pepper spray in an attempt to stop Peters from escaping. After being sprayed, Peters managed to drive a short distance before hitting a pine tree; he was taken into custody shortly thereafter.

¶ 4. Martin testified that after Peters was taken into custody, the sheriff's department received written consent from Kimberly Peters, the owner of the car, to search the automobile. Recovered from the automobile were a small crowbar, wire cutters, vice grips, a yellow-handled screwdriver, a red-handled screwdriver, and a pair of sunglasses. At Peters's trial, Brad Dunaway testified that the sunglasses belonged to him, that he kept them in the glove compartment of a truck kept in the district's main shop, and that the sunglasses were missing after the burglary. Dunaway also identified the wire cutters and the red screwdriver as items that had been kept in the shop. Dunaway stated that he recognized the wire cutters in particular because they possessed a number of distinguishing marks. Lastly, Dunaway testified that he did not recognize the crowbar taken from Peters's car.

¶ 5. Upon Peters's arrival at the Walthall County Jail, Deputy Thornhill noticed that Peters was wearing large K-Swiss shoes. Thornhill testified that he ordered Peters to remove his shoes, and then "took the shoes into evidence so they wouldn't get lost." At trial, footwear impression and examination expert witness Joe Andrews testified that the cast taken by Deputy Thornhill possessed "all the class characteristics" of the right shoe taken from Peters at the jailhouse. However, Andrews testified that due to a lack of detail in the cast, he was unable to make a more conclusive statement.

¶ 6. Taking the stand in his defense, Peters denied that he committed the burglary. He claimed that the tools and sunglasses found in the car belonged to him, and stated that what Brad Dunaway identified as his own sunglasses were actually *1054 safety glasses Peters used when performing welding work. Peters also denied that he had ever owned or worn the pair of K-Swiss shoes introduced by the State.

¶ 7. Peters was convicted of burglary and possession of a burglary tool and was sentenced to consecutive terms of seven years and five years, respectively, in the custody of the Mississippi Department of Corrections. After his conviction, Peters filed a motion for judgment notwithstanding the verdict, or in the alternative, a new trial, which was denied by the circuit court. On appeal, Peters asserts: (1) that the evidence presented at trial was insufficient to convict him on the charge of possession of burglary tools; (2) that the trial court erred in denying his motion to suppress the items taken from the car as well as the K-Swiss shoes; (3) that the trial court erred in failing to grant a continuance in the case; and (4) that the trial judge erred in failing to recuse himself from the case.

ISSUES AND ANALYSIS

I. WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN PETERS'S CONVICTION FOR POSSESSION OF BURGLARY TOOLS.

¶ 8. Motions for directed verdict, peremptory instruction, and judgment notwithstanding the verdict test the legal sufficiency of the State's evidence. Carr v. State, 911 So.2d 589, 590 (¶ 5) (Miss.Ct. App.2005) (citing Hawthorne v. State, 835 So.2d 14, 21 (¶ 31) (Miss.2003)). In considering whether the evidence is legally sufficient to sustain a conviction, we must ascertain whether the evidence shows "beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed." Bush v. State, 895 So.2d 836, 843-44 (¶ 16) (Miss.2005) (internal quotes omitted). Viewing the evidence in the light most favorable to the prosecution, we must determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. In the present case, Peters asserts that the trial court erred in denying his motion for directed verdict as to the charge of possession of burglary tools. He argues that the crowbar was an ordinary tool that any individual is likely to possess and transport in one's automobile, and furthermore, that the State failed to prove that he intended to use the crowbar for an unlawful purpose.

¶ 9. Section 97-17-35 of the Mississippi Code Annotated (Rev.2000) states, in relevant part:

It is unlawful for any person to have in his possession implements, tools, or instruments designed to aid in the commission of burglary, larceny or robbery; and on the conviction of any person thereof, he shall be punished by imprisonment in the penitentiary not exceeding five (5) years, or in the county jail not exceeding one year.

¶ 10. The Mississippi Supreme Court has stated that the elements of the crime of possession of burglary tools are: (1) adaptation and design of the tool for breaking and entering; (2) possession of such tools by one with knowledge of their character; and (3) a general intent to us

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Peters v. State, 920 So. 2d 1050, 2006 WL 279336 (Mich. Ct. App. 2006).

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