IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-01046-COA BRYCE B. HEISSER A/K/A BRYCE BRANDON HEISSER A/K/A BRYCE HEISSER A/K/A BRICE BRANDON HEISSER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/01/2006 TRIAL JUDGE: HON. SAMAC S. RICHARDSON COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART DISTRICT ATTORNEY: MICHAEL GUEST NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF COUNT I, ARMED ROBBERY, AND SENTENCED TO LIFE; COUNT II, AGGRAVATED ASSAULT, AND SENTENCED TO TW ENTY YEARS; AND COUNT III, BURGLARY OF A DW ELLING, AND SENTENCED TO TW ENTY-FIVE YEARS, W ITH THE SENTENCES TO RUN CONSECUTIVELY, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 11/01/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., JAMES AND GREENLEE, JJ. LEE, C.J., FOR THE COURT: ¶1. In this app e a l , w e mu s t d e c i d e w h e t her the jury was properly instructed on theelem ents of the crim e . FACTS AND PROCEDURAL HISTORY ¶2. On the evening of Decem ber 7, 2005, Linda White Brett was alone at her hous e i n Florence, Mississippi. According to Brett, J e n n i f e r D i llon knocked on Brett’s door, and asked if Brett’s grandson w as hom e. Brett told D illon that he was not and closed the door. Dillon knocked again and asked t o use Brett’s telephone. Brett handed Dillon the cordless phone and closed the door again. Dillon knocked a third tim e. W hen Brett opened the door
to retrieve the phone, Dillon, Bry c e Heisser, and Lem artine Tay lor f orced their way inside. Brett testif

ied that she saw another person—Javon Ransburgh—through a window. ¶3. According to Brett, the intruders took a c ell phone, approxim ately six telephones, a TV, a D VD play er, two sets of speakers, jewelry , a p urse, and car key s. 1 Bef ore f leeing, the phone lines were cut, and Heisser used a knif e to cut Brett’s throat a nd stab her repeatedly

. Shortly thereaf ter, Brett’s grandson arrived and called f or help. ¶4. The Florence P olice Departm e nt tracked Brett’s stolen cell p hone to Tay l or. Tay lor
gave the police a c onf

ession and nam ed two others who w ere i nvolved—Dillon and Heisser. ¶5. D i llon pleaded guilty and, in exchange f or a reduced sentence, agreed t o testi f y a t Heisser’s trial. Dillon testif i ed that she, Heisser, Ransbur g h , a n d T ay lor w ent t o purchase speakers f rom Brett’s grandson. S he conf irm ed that she knocked on Brett’s d oor and asked f or Brett’s grandson. She knocked again and asked t o use the telephone. A nd she knocked

a third tim e, which was when the group f orced their way i nside. Dil l o n t e s t if ied that they

1 It is u n clear if

th ey to o k th e car. 2disconnected the telephone lines, and then went in separate room s “looking f o r stuf f to take.” Dillon also testif

i ed that Heisser told them to kill Brett. W hen the others did n ot co mp l y , Heisser g rabbed the knif

e. Dillon went outside, but H eisser later t old her that he killed Brett by stabbing her. ¶6. Ransburgh testif

ied that he entered the house som e t im e af ter the o thers. Ransburgh

saw Heisser take a TV to his car and heard Heisser tell Dillon and Tay l or to kill Brett. W hen Dillon and T ay lor ref

used, H eisser took the k

nif e a nd s t a b bed Brett. Ransburgh did not receive any

thing in exchange f

or his testim ony . ¶7. Ultim ately , Heisser was c onvicted in the C ircuit C ourt of R ankin County of Count I,

arm ed robbery , and sentenced to lif e; Count I I, aggravated assault, and sentenced to twenty
y ears; and Count III, burglary of a dwelling, and sentenced to twenty -f ive y ears, w i t h his
sentences to run consecutively , in the custody of the M ississippi Departm e n t of Corrections. ¶8. Heisser f

iled a m otion f

or a new trial or, in the a l ternative, a j udgm ent notwithstanding the v erdict, w hich was denied. Heisser later f iled a m otion f

o r an o ut-of

-tim e a p peal, which was granted. Heisser appeals. STANDARD OF REVIEW ¶9. “This Court reviews the g i v i n g o r r e f u s a l o f a jury instruction f or an abuse of discretion.” Sheriff v
. S t a t e , 1 5 6 So. 3d 924, 925 ( ¶7) (Miss. Ct. App. 2014) (citation

om itted). Jury

instructions are reviewed as a whole to determ ine i f any error occurred. Id. “If the instructions f

airly state the law o f the case and no i njustice is created, no reversible error will be f

ound.” Id. (citation om itted).

3DISCUSSION

¶10. Jury

Instruction S-5 provided, in pertinent part: If y ou f ind f rom the evidence in this case, bey ond a reasonable doubt, that: 1. on or about the 7th day of De c e m b er, 2005, in Rankin County , Mississippi, 2. the d ef

endant, Bry ce B randon Heisser, did willf ully , unlawf

ully , intenti o nally and burglariously break and enter the dwelling house of Linda W hite Brett . . . , 3. w ith the intent to com mi t t h e crim e of larceny therein , then y ou shall f ind the Def

endant guilty

of burglary of a dwelling house. (Em phasis added). ¶11. Heisser argues that the jury should have been instructed on the elem ents of the crim e of larceny . Instead, he argues, the jury was l ef t to “construct its own m eaning of that legal
term .” ¶12. W h en the circuit court considered jury instruction S-5, def e nse counsel responded, “I believe that’s a proper statem e nt of the law. W e have no objection.” Because Heisser did
not object to jury instruction S-5 at trial, we review Heisser’s claim under plain e rror, which “requires the f

inding of not only an error, but one that resulted in a ‘m iscarriage of justice’ af f ecting the def

endant’s f undam ental r ights.” W

indless v. State , 185 So. 3d 956, 961 (¶11) (Miss. 2015). A n d b e c a u se we f ind that no error o ccurred here, it f ollows that there is no plain error. W e also note that H eisser f ailed t o r aise this issue in his posttrial m otion. See
W atts v
. State , 492 So. 2d 1 281, 1290-91 (Miss. 1986). S till, we brief ly touch on Heisser’s substantive argum ent.

4¶13. In W indless , our suprem e court addressed an a r g u m e n t i d e n tical to Heisser’s argum ent here. W indless argued the trial j udge f ailed t o instruct the jury on the elem e nts of larceny as
t he “underly ing of

f ense” of the burglary

. W indless , 185 So. 3d at 960 (¶9). I n dism i s s i n g that argum ent, the suprem e cour t s t a t ed: “Larceny is com m only understood to connote stealing or thef

t. The State subm i tted suf f icient evidence f

or the jury to f

ind that W indless f elonio u s l y b r o k e into and e ntered the victim ’s house w ith the intent to steal.” Id. at 962 (¶11) ( internal citations om i tted). “Our caselaw holds that only the i ntent to com m it som e crim e need be proven in order to establish the second elem ent of burglary —the State need
not also prove the elements o f that intended crim e.” Quinn v. State , 1 91 S o. 3d 1227, 1233 (¶24) (Miss. 2016). ¶14. Here, the jury was instructed on the e s sential elem ents of the c rim e of b urglary —(1) “breaking and entering the dwelling house or i nner door o f such dwelling house of another”; and ( 2) “with the intent to com m it som e crim e therein.” Miss. C o de Ann. § 9 7

- 1 7

- 23(1) (Rev. 2014). In addition, the jury instructions specif ically identif

i ed l a r c e n y a s the crim e Heisser intended to c omm it with regard to the burglary

. Cf. Daniels v. State, 107 So. 3d 961, 964 (¶17) (Miss. 2013); B olton v. State, 113 So. 3 d 5 42, 544 (¶4) ( Miss. 2013). The State subm itted suf

f icient evidence f

or the jury to f

ind that H eisser broke into and entered Brett’s house with the intent to comm it larceny . Theref ore, Heisser’s appeal is without m erit. ¶15. THE JUDGMENT OF THE CIRCUIT CO U R T O F R A N K I N C OUNTY OF CONVICTION O F COUNT I, AR M E D ROBBERY, AND SENTENCE OF LIFE; COUNT I I, AGGRAVATED ASSAULT, AND S E N T E NCE OF T WENTY YEARS; AND COUNT III, BURGLARY OF A DWELLING, AND SENTENCE OF TWENTYFIVE Y EARS, WITH THE SENTENCES T O RUN CONSECUTIVELY, I N T HE C U S TODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, I S

5AFFIRMED. ALL COSTS OF THIS A P PEAL ARE A SSESSED T O RANKIN

COUNTY. IRVING AND G RIFFIS, P.JJ., BARNES, I SHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

6