Nicholas Paul Fontenot a/k/a Nicholas Fontenot a/k/a Nicholas Paul Fortenot v. State of Mississippi ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-KA-01489-COA
NICHOLAS PAUL FONTENOT A/K/A APPELLANT
NICHOLAS FONTENOT A/K/A NICHOLAS
PAUL FORTENOT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 10/01/2018
TRIAL JUDGE: HON. LISA P. DODSON
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: HUNTER NOLAN AIKENS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY: JOEL SMITH
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 12/03/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Nicholas P. Fontenot was convicted of one count of burglary of an automobile
pursuant to Mississippi Code Annotated section 97-17-33(1) (Rev. 2014) and sentenced to
serve seven years in the custody of the Mississippi Department of Corrections (MDOC).
Fontenot filed a motion for judgment notwithstanding the verdict (JNOV) or, alternatively,
a new trial, which the circuit court denied. Fontenot now appeals, arguing that the circuit
court erred in denying his motion for a JNOV or a new trial. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. On June 27, 2017, James Smith parked his pickup truck in the parking lot of a Subway
restaurant in Gulfport, Mississippi. Both doors were left unlocked, and the vehicle’s windows
were down. Smith went into the Subway where his then fiancee, Tina Lewis,1 was working
as a sandwich artist. Approximately thirty minutes into his visit, Smith looked outside and
observed a man, later identified as Nicholas Fontenot, in the passenger side of Smith’s truck.
Neither Smith nor Lewis witnessed how Fontenot got into the vehicle. Smith testified that
he walked outside, confronted Fontenot, and asked, “What are you doing in my truck?”
Smith testified that the glove box, which had been closed, was open and that various items
were strewn about the inside of the truck. Fontenot acted confused and responded, “This is
my friend’s truck.” When Lewis later came out and asked Fontenot why he was in the truck,
his response was the same.
¶3. The details are unclear, but it was reported that Smith forcibly pulled Fontenot out of
the truck and may have shoved him. The police were called, and at some point during the
exchange with Smith, Fontenot ran away. Smith ran after Fontenot but was unable to catch
him.
¶4. Officer Luis Garcia of the Gulfport Police Department was the first responder to
arrive and later testified that the suspect was described as a white male with a stitched cut on
the back of his head. Officer Garcia also testified that an unidentified witness observed and
reported the tag number of a brownish-gold F-150 pickup truck that Fontenot was seen riding
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At the time of the incident, Tina Lewis’s name was Tina Sears.
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away in.
¶5. Officer Brad Sumrall arrived next and pursued the truck based on the description and
tag number provided to Officer Garcia. After locating the vehicle about a half a mile away,
Officer Sumrall initiated a traffic stop. The driver, Willie Jackson, testified that Fontenot
flagged him down and approached his vehicle less than a block away from the Subway.
Jackson testified that Fontenot had claimed to have run out of gas and Jackson had agreed
to give him a ride. Jackson indicated that after getting into his truck, Fontenot “looked back
several times,” and it made Jackson curious. Noting that Fontenot matched the description
of the suspect, Officer Sumrall took him into custody and returned to the Subway. Back at
the sandwich shop, Smith and Lewis identified Fontenot as the man with the distinctive scar
on the back of his head that they had observed in Smith’s truck.
¶6. Smith reported that none of his belongings were missing, but Lewis testified that she
had left her grandmother’s blue-stoned ring in the glove box and that the ring was missing
after the incident with Fontenot. The ring was never recovered.
¶7. On December 4, 2017, Fontenot was indicted for automobile burglary in violation of
Mississippi Code Annotated section 97-17-33(1). On September 25, 2018, a trial ensued on
the matter in the Harrison County Circuit Court. At the conclusion of the prosecution’s case
in chief, Fontenot moved for a directed verdict, asserting that the evidence presented was
insufficient to prove that Fontenot “stole out of the truck.” The circuit court denied the
motion, and the trial proceeded. Fontenot renewed his motion for a directed verdict after
resting his case; again, the court denied the motion. At the conclusion of the trial, the jury
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received instructions on the crime of burglary and the lesser-included offense of trespassing.
Fontenot was found guilty of burglary and on October 1, 2018, was sentenced to serve seven
years in MDOC’s custody. On October 2, 2018, Fontenot filed a motion for a JNOV or,
alternatively, a new trial. The circuit court entered an order denying the motion on October
15, 2018. On appeal, Fontenot maintains that the evidence presented by the State was
“insufficient to support the verdict,” which was “against the overwhelming weight of the
evidence.”
STANDARD OF REVIEW
¶8. This Court reviews the grant or denial of a motion for JNOV de novo. Shepherd v.
State, 270 So. 3d 962, 966 (¶8) (Miss. Ct. App. 2018) (citing Estate of Gardner v. Gardner,
228 So. 3d 921 (¶19) (Miss. Ct. App. 2017)). “A motion for a JNOV challenges the legal
sufficiency of the evidence, and where there is substantial evidence to support the verdict,
we will affirm the denial of a JNOV.” Id. (citing InTown Lessee Assocs. LLC v. Howard, 67
So. 3d 711, 718 (¶22) (Miss. 2011)).
¶9. Substantial evidence has been defined as “information of such quality and weight that
reasonable and fair-minded jurors in the exercise of impartial judgment might have reached
different conclusions.” Daniels v. State, 107 So. 3d 961, 963 (¶10) (Miss. 2013). “When
reviewing a motion for a JNOV, the trial judge is required to accept as true all of the
evidence that is favorable to the State, including all reasonable inferences that may be drawn
therefrom, and to disregard evidence favorable to the defendant.” Bryant v. State, 151 So. 3d
1025, 1029 (¶14) (Miss. Ct. App. 2014) (internal quotation mark omitted). “We will reverse
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only where with respect to one or more of the elements of the offense charged, the evidence
so considered is such that reasonable and fair minded jurors could only find the accused not
guilty.” Id. (internal quotation marks omitted).
¶10. With regard to a denial of a motion for new trial, the Mississippi Supreme Court in
Lindsey v. State, 212 So. 3d 44, 45 (¶4) (Miss. 2017), held:
When reviewing a denial of a motion for a new trial based on an objection to
the weight of the evidence, we will only disturb a verdict when it is so contrary
to the overwhelming weight of the evidence that to allow it to stand would
sanction an unconscionable injustice. The evidence must be weighed in the
light most favorable to the jury’s verdict. If the verdict is against the
overwhelming weight of the evidence, the proper remedy is to grant a new
trial, but this remedy should be used only in exceptional cases where the
evidence preponderates heavily against the verdict.
(Citations and internal quotation marks omitted). “This Court will reverse only if the Court
determines that the trial court abused its discretion in denying a motion for a new trial.”
Butler v. State, 102 So. 3d 260, 268 (¶23) (Miss. 2012).
DISCUSSION
I. Was the evidence insufficient to support the verdict?
¶11. Fontenot argues that the evidence presented was insufficient to support his conviction
and that this court should reverse and render judgment of acquittal. A JNOV motion
challenges the “legal sufficiency of the evidence supporting the guilty verdict.” Parker v.
State, 30 So. 3d 1222, 1235 (¶48) (Miss. 2010) (quoting Croft v. State, 992 So. 2d 1151,
1157 (¶24) (Miss. 2008)).
¶12. Fontenot was convicted under Mississippi Code Annotated section 97-17-33(1), which
provides:
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Every person who shall be convicted of breaking and entering, in the day or
night, any . . . 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 . . . shall be
guilty of burglary, and imprisoned in the penitentiary not more than seven (7)
years.
¶13. While Fontenot concedes that he entered Smith’s truck absent permission, he argues
that the evidence at trial was insufficient to prove the two essential elements of burglary
beyond a reasonable doubt—that Fontenot committed a “breaking” or that he entered Smith’s
truck with the requisite “intent to steal or commit a felony.” Freeman v. State, 220 So. 3d
1024, 1027 (¶10) (Miss. Ct. App. 2017) (citing White v. State, 195 So. 3d 765, 768-69 (¶11)
(Miss. 2016)). We disagree.
A. Breaking
¶14. Fontenot maintains that since Smith left his truck unlocked with the windows down,
Fontenot could have entered the vehicle’s cabin through the windows. He maintains that in
this type of “open-window” scenario, no “breaking” of anything is required for entry, and,
therefore, only a trespass could have occurred.
¶15. The Mississippi Supreme Court has defined “[a]ctual breaking” as “any act of force,
however slight, ‘employed to effect an entrance through any usual or unusual place of
ingress, whether open, partly open, or closed.’” Naylor v. State, 248 So. 3d 793, 796 (¶10)
(Miss. 2018) (internal quotation marks omitted) (quoting Johnson v. State, 235 So. 3d 1404,
1410 (¶14) (Miss. 2017)).
¶16. In Naylor, the appellant was convicted of automobile burglary and argued that “it was
just as likely” that the door of the vehicle was already open when Naylor approached,
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rendering his intrusion a potential trespass and not a breaking for the purpose of establishing
burglary. Id. at 769 (¶11). Despite Naylor’s assertion, the Court held that based on the
testimony and evidence presented, the jury, as the “sole judge of the credibility of witnesses
and the weight and worth of their testimony,” might have reached “different conclusions on
every element of the offense, [including breaking],” and as such “the evidence [was]
sufficient” to support the verdict. Id.
¶17. Like Naylor, Fontenot presents a similar, alternative theory of entry and could have
cast reasonable doubt upon the “breaking” element of burglary. However, this Court does not
review the absence or presence of reasonable doubt in a fact-finder’s mind, and as long as
“fair-minded jurors” might have found Fontenot guilty, we must affirm. See id. at (¶¶8, 11).
¶18. Jurors heard Smith’s testimony, during which he said under oath that the windows
were left down, and the doors were left unlocked but closed. Smith also testified that he
witnessed Fontenot in the truck without permission. Photographs of Smith’s truck and the
open windows were published to the jury. “[A]ll the proof need not be direct and the jury
may draw any reasonable inferences from all the evidence in the case.” Campbell v. State,
278 So. 2d 420 (Miss. 1973) (citing Woodward v. State, 180 Miss. 571, 178 So. 469, 471
(1938)). There was no testimony that Fontenot got into the truck through the windows or that
he opened the truck door to gain entry. Instead, the jury was free to infer from the evidence,
or lack thereof, how Fontenot came to be inside of the vehicle. Accordingly, we find the
evidence was sufficient to support the jury’s finding that the State proved the “breaking”
element of burglary.
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B. Intent
¶19. Next, Fontenot argues that evidence was insufficient to prove he possessed the intent
to steal or commit a felony. As support, Fontenot cites Smith’s testimony describing him as
“surprised and caught off-guard” when confronted about his unauthorized presence in the
truck. Smith indicated that when asked what he was doing in the truck, Fontenot responded,
“[T]his is my friend’s truck.” Also, Fontenot notes that he was not found in possession of any
stolen items.
¶20. Again, Fontenot correctly asserts that this testimony could have established reasonable
doubt in the mind of the jurors. The jury could have found that Fontenot was not there to
steal anything from Smith’s truck but instead entered the vehicle under the mistaken belief
that it belonged to a friend. In addition to the testimony cited by Fontenot, the jury heard
Smith’s description of the truck’s interior before and after Fontenot’s intrusion.
State [to Smith]: What did you notice about the truck?
Smith: My glove box was open, everything was just in shambles
in my truck. I had a skim board and a badge in my truck,
and it was just all gone through.
State: You say everything was in shambles. What do you
mean?
Smith: Well, I had paperwork in the glove box. It was just
[thrown] on the floorboard. I had stuff in my ashtray,
little console thing, it was just thrown all over the
floorboard.
State: And you mentioned a bag?
Smith: Yes, sir. I had a little bag that I would take to work with
me. It had been gone through.
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State: And you mentioned the glove box. Was the glove box
open or closed when you–
Smith: The glove box is always closed, sir.
State: When you went out there after you – this guy got out of
your truck and ran off, was the glove box open or closed?
Smith: It was open.
State: And it had been gone through?
Smith: Yes, sir.
The jury also heard testimony about Lewis’s missing ring that she believed was stolen from
the glove box:
State: So is it common for her [Sears] to leave the ring in the
glove box?
Smith: Yes, sir.
State: And had you let anybody else take the ring out of your
truck?
Smith: No, sir. Ain’t nobody else been in that truck.
*****
State: Did you get a look in that truck?
Lewis: I did.
State: What did you notice?
Lewis: I noticed . . . a bag of James’s was messed with, and
the glove box was down, and my grandmother’s ring
was missing.
¶21. “[I]f the intent to burglarize is present, then the act is not a trespass. If there is intent,
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then it is a burglary.” Hall v. State, 760 So. 2d 817, 819 (¶12) (Miss. Ct. App. 2000). Intent
does not require Fontenot be found with stolen goods—only that he intended to steal from
the vehicle. See id. Likewise, the inability to recover the ring does not prove that Fontenot
did not take it. Based on Smith’s and Lewis’s accounts of a rummaged truck interior and
missing ring, the jury was free to infer Fontenot’s intent or the lack thereof. Therefore, we
find the evidence presented was sufficient to support the jury’s finding that the intent element
of burglary was satisfied.
¶22. This Court is “authorized to reverse only where, with respect to one or more of the
elements of the offense charged, the evidence so considered is such that a reasonable and fair
minded juror could only find the accused not guilty.” Id. at (¶7) (emphasis added) (quoting
McClain v. State, 625 So. 2d 774, 778 (Miss. 1993)). “In the case sub judice, there clearly
existed in the record substantial facts from which the jury could, and did, conclude that
[Fontenot] was guilty of auto burglary.” Id.
¶23. This Court has stated that trespass “is a lesser included offense to every burglary.”
Harper v. State, 478 So. 2d 1017, 1021 (Miss. 1985). Indeed, a juror might have reasonably
deduced that Fontenot climbed into Smith’s truck through an open window, under the
mistaken belief that the vehicle belonged to his friend. Acknowledging these possibilities,
the court granted Jury Instruction D-4A, allowing the jury to consider the lesser-included
offense of trespass. Like the question of whether a breaking occurred in Fontenot’s case,
intent is a jury issue.
¶24. The jury deliberated over instructions for burglary and trespass contemporaneously.
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Reviewing the evidence set forth at Fontenot’s trial, a reasonable and fair-minded juror could
have found Fontenot guilty of either offense—the jury chose the former. As such, Fontenot’s
arguments fail. Finding the evidence sufficient to support the jury’s verdict, we affirm the
circuit court’s denial of Fontenot’s post-trial motion for a JNOV.
II. Was the verdict against the overwhelming weight of the
evidence?
¶25. Fontenot’s also asserts that the circuit court erred by denying his motion for a new
trial because the jury’s guilty verdict was against the overwhelming weight of the evidence.
¶26. This Court “accept[s] as true the evidence which supports the verdict and . . . will
reverse only when convinced that the circuit court has abused its discretion in failing to grant
a new trial.” Whitlock v. State, 47 So. 3d 668, 675 (¶20) (Miss. 2010) (quoting Smith v. State,
802 So. 2d 82, 86 (¶11) (Miss. 2001)). “It is a fundamental principle of law that a jury verdict
will not be disturbed except in the most extreme of situations. ‘Only in those cases where the
verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand
would sanction an unconscionable injustice will this Court disturb it on appeal.’” Id. (quoting
Coleman v. State, 926 So. 2d 205, 208-09 (¶14) (Miss. 2006)).
¶27. Here, Fontenot cites the fact that the stolen ring was not recovered and that Lewis had
another ring resembling it as a basis for granting a new trial. Lewis testified that she owned
two similar rings—one was her grandmother’s ring (that was missing after the burglary), and
the other was a similar ring she received from Smith.
¶28. Fontenot also points to the absence of any photographs reflecting the inside of Smith’s
truck, video footage, or fingerprints in the State’s evidence. These are all valid points that
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were raised by defense counsel before the jury but do not nullify the evidence that was
presented.
¶29. It has long been established that “the jury is the sole judge of the credibility of the
witnesses and the weight to be attached to their testimony. We have further said that we will
not set aside a guilty verdict, absent other error, unless it is clearly a result of prejudice, bias
or fraud, or is manifestly against the weight of credible evidence.” Maiben v. State, 405 So.
2d 87, 88 (Miss. 1981) (citing Cromeans v. State, 261 So. 2d 453, 457 (Miss. 1972); Marr
v. State, 248 Miss. 281, 289, 159 So. 2d 167, 169-70 (1963)).
¶30. As discussed in the current and above analysis on the sufficiency of the evidence, the
jury was provided with more than enough testimony and photographical evidence to reach
the verdict, and it was not against the overwhelming weight of the evidence presented. The
record before the Court contains substantial, believable evidence that Fontenot committed
the crime of burglary.
¶31. During his closing arguments, Fontenot’s trial counsel explained to the jurors that it
was their job to determine if the vehicle had been rummaged through and charged them as
the “finders of fact” to make that determination, despite the lack of picture or video evidence.
The fact is that eyewitness testimonies of Smith and Lewis placed Fontenot at the scene and
provided jurors with a detailed description of the tousled truck cab and its missing content.
Based on that testimonial evidence, the jury was permitted to follow the instructions of
Fontenot’s counsel and reach a guilty verdict. In sum, the evidence presented by the State
was sufficient to support the jury’s verdict and the jury’s verdict was not against the
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overwhelming weight of the evidence. Accordingly, we must affirm the circuit court’s
judgment.
¶32. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
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