Antwoine Esters v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2017-KA-01300-COA
ANTWOINE ESTERS A/K/A ANTWOINE D. APPELLANT
ESTERS
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/20/2017
TRIAL JUDGE: HON. JON MARK WEATHERS
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE MARIE MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA MCCLINTON
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED: 01/08/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
TINDELL, J., FOR THE COURT:
¶1. A Forrest County jury convicted Antwoine Esters of burglary of an automobile. See
Miss. Code Ann. § 97-17-33(1) (Rev. 2014). The Forrest County Circuit Court sentenced
Esters as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015)
to seven years in the custody of the Mississippi Department of Corrections (MDOC) without
eligibility for probation or parole. On appeal, Esters argues that (1) insufficient evidence
supported his conviction, and (2) the circuit court failed to properly instruct the jury on the
essential elements of auto burglary. Finding no error, we affirm.
FACTS
¶2. On May 29, 2016, Melinda Bowens returned to her Hattiesburg apartment after a
beach trip with a friend. Bowens allowed her friend to drive her vehicle back from the trip.
When they arrived at Bowens’s apartment, Bowens failed to check whether her friend locked
the vehicle. The next morning, on May 30, 2016, Bowens got into her vehicle to attend a
Memorial Day picnic. After trying unsuccessfully to start her vehicle, Bowens looked around
and realized that several items were missing. Bowens testified the stolen items included an
expired debit card, an expired driver’s license, a work ID, a set of work keys, paperwork and
personal mail, CDs, about $500, a GPS, and an iPod. Bowens reported the auto burglary to
the police, who found no visible signs of forced entry into Bowens’s vehicle.
¶3. Later that same day, Bowens was napping in her apartment when her doorbell rang.
When Bowens looked outside, she saw a strange man, later identified as Esters, fidgeting
with the deadbolt to her apartment. Bowens also noticed a bag that had been stolen from the
trunk of her vehicle on the ground by Esters’s feet. Bowens’s apartment manager, Maureen
Perry, walked by just as Bowens opened her apartment door and grabbed the bag. Perry
testified that she approached Esters after also observing him fidgeting with the lock to
Bowens’s apartment door. When Perry asked what Esters was doing, Esters claimed to be
Bowens’s boyfriend.
¶4. Despite Esters’s claims that he knew Bowens, Bowens testified she had never before
seen him, and Perry confirmed that Esters did not live in Bowens’s apartment. While
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speaking to Perry, Esters pulled out his wallet, and Perry testified that Bowens’s expired
driver’s license with the end clipped off fell to the ground. Bowens told Perry that she had
called the police. As Perry escorted Esters off the premises, she testified that the police
arrived and arrested Esters.
¶5. Officer Eric Gannon testified he was the first officer to arrive on the scene following
the disturbance call. As he had done when questioned by Perry, Esters told Officer Gannon
he was Bowens’s boyfriend. Upon Esters’s arrest, officers found him to be in possession of
several additional items reported stolen from Bowens’s vehicle. Esters told the officers he
had the items because he was trying to return them to Bowens.
¶6. After considering all the testimony and evidence, the jury found Esters guilty of auto
burglary. The circuit court then sentenced Esters as a habitual offender to seven years in
MDOC’s custody without eligibility for probation or parole. Esters filed an unsuccessful
motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial.
Aggrieved, Esters appeals.1
DISCUSSION
I. Sufficiency of the Evidence
¶7. Esters raises two arguments regarding the sufficiency of the evidence supporting his
auto-burglary conviction. He first argues the State failed to provide any evidence as to the
1
The circuit court granted Esters’s motion for leave to file an out-of-time appeal after
finding that Esters supported his motion with good cause and that the district attorney raised
no objection.
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specific vehicle that was burglarized. Second, he claims the State failed to prove the
“breaking” element of his conviction because it never demonstrated “that an actual breaking
occurred to gain entry into Bowens’s [vehicle].”
¶8. We review Esters’s challenges to the sufficiency of the evidence de novo. See
Johnson v. State, 235 So. 3d 1404, 1410 (¶12) (Miss. 2017). As the Mississippi Supreme
Court recently stated:
When the legal sufficiency of a conviction is challenged, [the appellate
c]ourt must discern 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. In doing so, we must
view all evidence in the light most favorable to the State. Should [the
appellate c]ourt determine that reasonable fair-minded [jurors] in the exercise
of impartial judgment might reach different conclusions on every element of
the offense, the evidence will be deemed legally sufficient.
Hall v. State, 245 So. 3d 396, 401 (¶21) (Miss. 2018) (citations and internal quotation marks
omitted).
¶9. We first address Esters’s argument that insufficient evidence supported his conviction
because the State failed to prove an essential element of the crime charged. As Esters points
out, despite amending his indictment to specifically reflect the correct make, model, and VIN
number of Bowens’s vehicle, the State never actually asked Bowens at trial about the type
of vehicle she owned. Furthermore, neither Bowens nor any of the State’s other witnesses
ever identified the make, model, or VIN number of Bowens’s vehicle. While one would
expect the State to elicit testimony at trial that conforms with the indictment, the mere fact
that an indictment provides the subject vehicle’s make, model, and VIN number does not
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render such information an essential element of auto burglary.2 Neither our statutory law nor
caselaw identifies the legal description of a subject vehicle as an essential element of auto
burglary. As a result, the State’s failure to present proof of this fact at Esters’s trial does not
require reversal of Esters’s conviction or sentence.
¶10. Esters was convicted under section 97-17-33(1), which provides:
Every person who shall be convicted of breaking and entering, in the day or
night, any . . . automobile . . . 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.
(Emphasis added). As discussed, neither the relevant statute nor applicable caselaw requires
the State to identify, let alone prove, the legal description of the automobile burglarized to
establish that a defendant committed auto burglary. Instead, the State must prove (1) the
“unlawful breaking [into] and entering of an automobile” (2) “with the intent to steal[] or
with the intent to commit any felony.” Qualls v. State, 947 So. 2d 365, 374 (¶29) (Miss. Ct.
App. 2007) (emphasis added).3
2
Cf. Musacchio v. United States, 136 S. Ct. 709, 715 (2016) (“[W]hen a jury
instruction sets forth all the elements of the charged crime but incorrectly adds one more
element, a sufficiency challenge should be assessed against the elements of the charged
crime, not against the erroneously heightened command in the jury instruction.”).
3
Similarly, in cases involving the burglary of a nondwelling, the State need not
provide or prove the legal description of the nondwelling for the jury to convict the
defendant. See Stubbs v. State, 220 So. 3d 1014, 1017 (¶13) (Miss. Ct. App. 2017). Instead,
the State must establish “the breaking and entering of a building, in which any goods,
merchandise, equipment, or valuable thing is kept for use, sale, deposit, or transportation,
with the intent to steal therein, or to commit any felony.” Id. (emphasis added).
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¶11. We next consider Esters’s argument that the State failed to sufficiently prove the
“breaking” element of his conviction. Esters asserts the record contains no evidence to
indicate whether the doors and windows of Bowens’s vehicle were closed. According to
Esters, if he “was able to gain entry [into Bowens’s vehicle] by merely reaching into an
already open door, he [did not commit] a burglary.” Our caselaw holds that an actual
breaking occurs when a person uses “any act of force, however slight, . . . 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). In fact, the minimal effort required
by turning a doorknob to gain entry to an unlocked door, raising a latch, or slightly pushing
an already open door suffice for the element of breaking. Harris v. State, 68 So. 3d 754, 757
(¶11) (Miss. Ct. App. 2011); Davis v. State, 910 So. 2d 1228, 1231 (¶23) (Miss. Ct. App.
2005).
¶12. Here, officers found no visible signs of forced entry into Bowens’s vehicle. Bowens
testified at trial that she believed her friend had locked the vehicle when they returned from
the beach trip. In addition, she never indicated that she or her friend had left any windows
or doors open when they exited the vehicle, and she never testified to noticing an open
window or door when she returned to her vehicle the following day. However, after trying
unsuccessfully to start her vehicle, Bowens looked around and realized several items were
missing. Later that day, officers arrested Esters, who had several of Bowens’s stolen items
in his possession.
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¶13. On its own, the mere possession of stolen property is insufficient to convict a
defendant of burglary. Busby v. State, 160 So. 3d 233, 235 (¶7) (Miss. Ct. App. 2014).
However, when certain circumstances are present, the possession of recently stolen property
can support a conviction. Id. To determine whether sufficient evidence supports an
inference of burglary, we consider the following factors:
1. The temporal proximity of the possession to the crime to be inferred;
2. The number or percentage of the fruits of the crime possessed;
3. The nature of the possession in terms of whether there is an attempt at
concealment or any other evidence of guilty knowledge;[ and]
4. Whether an explanation is given and whether that explanation is
plausible or demonstrably false.
Id.
¶14. As to the first factor, temporal proximity, Bowens discovered Esters in possession of
some of her stolen property only hours after she reported the auto burglary. As both Bowens
and Perry testified, Esters was attempting to enter Bowens’s apartment even though he
neither lived there nor knew Bowens. With regard to the second factor, at the time he tried
to enter Bowens’s apartment, Esters had in his possession both Bowens’s expired license and
a bag stolen from her vehicle. When officers arrested Esters just minutes later, they also
found several other items stolen from Bowens’s vehicle in his possession. Finally, as to the
third and fourth factors, these also support the inference of burglary. In response to questions
from both Perry and police officers, Esters offered an explanation that was demonstrably
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false. He claimed to be Bowens’s boyfriend and stated he was trying to return the items to
her. Bowens testified, however, that she had never before seen Esters, and Perry confirmed
that Esters did not live at Bowens’s apartment. Considering together all the indicia of
strength from these inferences, we find that, under the circumstances, a sufficient inference
of burglary supported Esters’s conviction.
¶15. After viewing the evidence in the light most favorable to the verdict, we find a
reasonable and fair-minded jury could have concluded Esters was guilty of auto burglary
beyond a reasonable doubt. We therefore find no merit to Esters’s challenges to the legal
sufficiency of the evidence.
II. Essential-Elements Jury Instruction
¶16. Esters also contends the circuit court erred by not instructing the jury on an essential
element of auto burglary. Because Esters failed to object to the jury instruction at trial, he
is procedurally barred from doing so now unless plain error resulted. See Walters v. State,
206 So. 3d 524, 530 (¶16) (Miss. 2016). The plain-error doctrine requires the existence of
an error that “resulted in a manifest miscarriage of justice.” Id. We will find plain error
where (1) the trial court deviated from a legal rule, and (2) the resulting error, whether “plain,
clear[,] or obvious,” prejudiced the trial’s outcome. Id.
¶17. We review a trial court’s grant or denial of proposed jury instructions for abuse of
discretion. Brown v. State, 222 So. 3d 302, 306 (¶19) (Miss. 2017). “The instructions are
to be read together as a whole, with no one instruction to be read alone or taken out of
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context.” Reith v. State, 135 So. 3d 862, 865 (¶4) (Miss. 2014) (quoting Bailey v. State, 78
So. 3d 308, 315 (¶20) (Miss. 2012)). “[I]f the jury instructions fairly state the law of the case
and create no injustice, then no reversible error will be found.” Id. We must reverse,
however, where the trial court fails to instruct the jury on the essential elements of the crime.
Wordlaw v. State, 218 So. 3d 768, 769 (¶8) (Miss. Ct. App. 2017).
¶18. In the present case, the circuit court gave proposed jury instruction S-1A, which
stated:
The [c]ourt instructs the [j]ury that the Defendant, Antwoine D. Esters,
has been charged with the crime of [b]urglary of an [a]utomobile.
If you find from the evidence in this case beyond a reasonable doubt
that[,] on or between May 29, 2016[,] and May 30, 2016, in Forrest County,
Mississippi:
1. Antwoine D. Esters did break and enter a 2012 Ford
Escape, the property of Melinda . . . Bowens;
2. Antwoine D. Esters did not have permission to enter the
vehicle; and
3. Antwoine D. Esters intended to take, steal, and carry
away the personal property therein;
then you shall find the Defendant, Antwoine D. Esters[, g]uilty of [b]urglary
of a [v]ehicle.
If the State has failed to prove any one or more of these elements
beyond a reasonable doubt, then you shall find the Defendant, Antwoine D.
Esters[, n]ot [g]uilty of [b]urglary of a [v]ehicle.
¶19. Section 97-17-33(1) defines auto burglary as the “breaking and entering . . . [of] any
. . . automobile . . . in which any goods, merchandise, equipment[,] or valuable thing shall
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be kept for use, sale, deposit, or transportation, with intent to steal therein, or to commit any
felony . . . .” As given, jury instruction S-1A did not specifically require the jury to find that
Bowens’s vehicle contained “any goods, merchandise, equipment[,] or valuable thing . . .
kept for use, sale, deposit, or transportation . . . .” Id. However, to convict Esters of auto
burglary, the instruction required the jury to find that he unlawfully broke and entered
Bowens’s vehicle with the intent “to take, steal, and carry away the personal property
therein . . . .” The jury was therefore properly instructed as to the essential elements of auto
burglary: “[the] unlawful breaking and entering of an automobile with the intent to steal[]
or . . . to commit any felony.” Qualls, 947 So. 2d at 374 (¶29). Furthermore, by convicting
Esters, the jury necessarily found that Bowens’s vehicle contained “personal property” Esters
intended to steal. We find no material difference between this finding and a finding that a
vehicle contained “goods” or some “valuable thing.” In fact, “[t]his Court has held that[,]
where a jury can reasonably infer that a vehicle contained ‘at least two seats, a steering
wheel, a gear shift, acceleration and brake pedals, and other items necessary for operation
of the vehicle,’ that such items qualify as ‘equipment, or valuable things kept for use.’”
Johnson v. State, 94 So. 3d 316, 322 (¶13) (Miss. Ct. App. 2011) (quoting Riley v. State, 11
So. 3d 751, 754 (¶12) (Miss. Ct. App. 2008)).
¶20. Although perhaps technically imperfect, we find instruction S-1A nevertheless
covered the substance of the essential elements of auto burglary and properly instructed the
jury on the crime charged. Because there is no evidence that the instruction “resulted in a
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manifest miscarriage of justice” or prejudiced the outcome of Esters’s trial, we decline to
find plain error. Walters, 206 So. 3d at 530 (¶16). We therefore conclude this assignment
of error lacks merit.
CONCLUSION
¶21. Because we find no error in Esters’s conviction and sentence for auto burglary, we
affirm.
¶22. AFFIRMED.
GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., WILSON, GREENLEE AND
WESTBROOKS, JJ., CONCUR. McDONALD, LAWRENCE AND McCARTY, JJ.,
NOT PARTICIPATING.
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