Stewart v. State

839 So. 2d 535, 2002 WL 1902899
CourtCourt of Appeals of Mississippi
DecidedAugust 20, 2002
Docket2001-KA-00813-COA
StatusPublished
Cited by4 cases

This text of 839 So. 2d 535 (Stewart 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
Stewart v. State, 839 So. 2d 535, 2002 WL 1902899 (Mich. Ct. App. 2002).

Opinion

839 So.2d 535 (2002)

Stoney Frank STEWART, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-KA-00813-COA.

Court of Appeals of Mississippi.

August 20, 2002.
Rehearing Denied November 19, 2002.
Certiorari Denied March 6, 2003.

*536 James A. Williams, Meridian, attorney for appellant.

Office of the Attorney General by: John R. Henry, Jr., attorney for appellee.

Before SOUTHWICK, P.J., LEE, and MYERS, JJ.

SOUTHWICK, P.J., for the court.

¶ 1. Stoney Frank Stewart was convicted after a jury trial of one count of burglary of a church. On appeal, Stewart alleges that certain instructions were defective, that witnesses were unfairly allowed to imply that he had previously been in trouble with law enforcement authorities, that hearsay about theft of cash at the church should not have been introduced, and that he received ineffective assistance of counsel. We find no error and affirm.

STATEMENT OF FACTS

¶ 2. On the afternoon of August 2, 1999, the Reverend David Chambers arrived at the Briarwood Baptist Church located just outside of Meridian, Mississippi. Chambers made certain that all outside doors except for one were locked. The south door was left closed but unlocked in order that anyone who might want to meet with him could enter. The minister walked through the church and found nothing *537 amiss. He then went to use the restroom. While there he heard a noise coming from the women's restroom. Soon thereafter he heard another noise from the direction of the secretary's office. He then went to investigate.

¶ 3. As he walked down the hall, Chambers noticed that a plexiglass window in the door to the secretary's office had been broken out. The lights in the office were lit. In the office, Chambers discovered a man who identified himself as Stoney Frank Stewart. Stewart was standing between the door and the secretary's desk. The mini-blinds in the office were askew.

¶ 4. Stewart told the minister that it appeared someone had broken into the office. Stewart explained that, while on his way to receive an eye examination in a nearby town, he had gone into the church to use the restroom. Stewart was from Mobile, Alabama. Chambers noted that Stewart was sweating profusely. While continuing to speak with Stewart, Chambers called the Lauderdale County Sheriff's Department.

¶ 5. Stewart then went to his car. Chambers accompanied him. Chambers asked Stewart how he entered the church, and Stewart replied that he had entered through the north door. Stewart's vehicle, a dark green Jeep Cherokee, was parked near the church's north entrance. Before Stewart drove away, the minister noted his vehicle's tag number.

¶ 6. The Reverend Chambers examined the north door of the church, which he was certain had previously been locked. He found that the door jamb was pushed out slightly. The door also had scratches in the wood and latch. Chambers quickly surveyed the secretary's office and did not discover anything missing. The church secretary later reported to Chambers that a twenty dollar bill was missing, but the church secretary did not testify.

¶ 7. The day after the breaking and entering, it was discovered that a set of keys was missing. Included were keys to several offices and the church's drink vending machine. Chambers remembered at one time seeing the keys on the secretary's desk but also remembered that the keys were not on the desk the day after the break-in.

¶ 8. A sheriff's deputy, Kenneth Graham, inspected the church premises. When he examined the north door, he found it to be unlocked and the locking mechanism to have "odd scratches." Graham concluded that the scratches were not consistent with normal opening and closing but were consistent with a door being pried open. No usable fingerprints were found.

¶ 9. Using the tag number recorded by the minister on the day of the incident, Stewart was traced to his home in Mobile. There he was arrested and later extradited to Mississippi. After a two-day trial, Stewart was convicted of burglary of a church. Because he was an habitual offender, Stewart was sentenced to fourteen years with no possibility of early release. Stewart acquired new counsel for the purpose of prosecuting this appeal.

DISCUSSION

1. Indictment and Jury Instruction

¶ 10. Stewart alleges that he was indicted for the crime of burglary of a building other than a dwelling, but that the jury instructions did not conform. The indictment alleged that Stewart

on or about the 2nd day of August, A.D., 1999, did then and there unlawfully, feloniously, and burglariously break into and enter the building of Briarwood Baptist Church, wherein valuable things were kept for sale and use; there situated, with the intent to commit the crime *538 of larceny therein and did unlawfully take, steal and carry away the personal property of another, to wit: twenty dollars ($20.00) in good and lawful currency of the United States, and keys to several offices and coke machines, and, if not this greater crime, then the lesser crime of Grand Larceny, by taking the personal property of another....

The indictment reproduces some of the language of the statute dealing with burglary of structures other than a dwelling. That subsection reads as follows:

Every person who shall be convicted of breaking and entering, in the day or night, any shop, store, booth, tent, warehouse, or other building or private room or office therein, water vessel, commercial or pleasure craft, ship, steamboat, flatboat, railroad car, automobile, truck or trailer in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any felony, or who shall be convicted of breaking and entering in the day or night time, any building within the curtilage of a dwelling house, not joined to, immediately connected with or forming a part thereof, shall be guilty of burglary, and imprisoned in the penitentiary not more than seven (7) years.

Miss.Code Ann. § 97-17-33(1)(Rev.2000). This code section has another subpart:

Any person who shall be convicted of breaking and entering a church, synagogue, temple or other established place of worship with intent to commit some crime therein shall be punished by imprisonment in the penitentiary not more than fourteen (14) years.

Miss.Code Ann. § 97-17-33(2)(Rev.2000).

¶ 11. The indictment specified the statute but not the subsection under which Stewart was charged. Stewart argues that because the indictment replicates some significant language from the first subsection, that he was in fact charged with burglary of a building other than a dwelling and not with burglary of a church. To be guilty of burglarizing a church, one need only break and enter a church with intent to commit some crime. Miss.Code Ann. § 97-17-33(2)(Rev.2000).

¶ 12. The indictment alleges that Stewart broke and entered the church building with the intent to commit and did commit the crime of larceny.

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Cite This Page — Counsel Stack

Bluebook (online)
839 So. 2d 535, 2002 WL 1902899, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stewart-v-state-missctapp-2002.