IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-00837-COA DEVIN SHEPHERD A/K/A DEVIN RAY SHEPHERD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/08/2017 TRIAL JUDGE: HON. GERALD W . CHATHAM SR. COURT FROM W HICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN A. SUBER GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON DISTRICT ATTORNEY: JOHN W . CHAMPION NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/18/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., FAIR AND WILSON, JJ. LEE, C.J., FOR THE COURT: ¶1. Following a jury trial in the Circuit Cour t o f D e S o t o C o u nty , Mississippi, Devin Shepherd was convicted of hom e-invasion b urglary in violation of Mississippi Code Annotated section 97-17-23(1)-(2) ( R e v . 2014) and sentenced to serve seven y ears in the custody of the Mississippi Departm ent of Corrections, with f o u r y e ars s uspended upon

com pletion of a n anger- m a

n a g e m e n t p r o g r a m a

n d a d r u g - a n d

- a l cohol t reatm ent program , and with three y ears of postrelease supervision. Shepherd was credited with tim e served while awaiting t rial. H e was or d e r e d t o pay f ines and court costs and also ordered to have nocontact with the victim or t h e v i c t i m ’ s f am ily

. Shepherd now a p peals his conviction. Finding no error, we af

f irm

. FACTS ¶2. On January 11, 2 0 16, Of f icer Christopher Rainb o l t w i t h t h e S o u t h a v e n P olice Departm ent r esponded t o a dispatc h c all t o 2207 Colonial Hills Drive in Southaven, Mississippi. W h en Of

f icer Rainbolt arrived, he s poke w ith Eva Steverson, the o wner of the residence, who m ade the 911 call. Of f icer Rainbolt i nvestigated the scene and learned that Shepherd had e ntered E va’s hom e and was b eating on the do or threatening Franklin Steverson, Eva’s grandson. Of f i cer Rainbolt no t i c e d a n d took pictures of a busted door f ram e and door to t he Steverson residence, dam age t o t he laundry room -door, and a broken bedroom window. Of

f icer Rainbolt f

ound Shepherd two blocks away f r om the hom e. ¶3. At Shepherd’s t r i a l , E v a t e s t i f i e d that she l ived with her husband and with her grandson, Franklin. On the date of t he burglary , Eva heard her d o or slam and then heard b e a t i ng o n one of the bedroom doors. She went to the bedroom door w here s h e s a w Shepherd beating on the door a nd telling Franklin “com e out of there,” an d t h a t h e was “going to kill him

. ” Eva testif ied that she told Shepherd to leave h er hom e and t hat she was going to call the police. T hen, Shepherd r an d own the hall in f ront of Eva and punched one of her doors, breaking two slated pieces. He also went out t o the den door and “kicked it and punched t he trim a r o u n d i t

. ” E va stated that Shepherd t old her he was going to kill her grandson. Eva also testif ied regarding a n incident with Shepherd two day s p rio r t o t he burglary

. On January 9 , 2016, Shepherd was on her f ront porch, and she told h im to leave.

2She stated that Franklin was drinking a cup of cof f ee on the porch, and S h e p h e r d s tarted beating on him

. Eva t old She p h e r d t o stop, and he pushed her. Franklin then stabbed Shepherd in the leg with a kitchen knif e. Eva testif

ied that she was scared of S hepherd f or Franklin. ¶4. Franklin also t estif ied at Shepherd’s t rial. According t o Franklin, he knew Shepherd only as an acquaintance since eighth grade, but the two were not f riends because Shepherd “was alway s a bully .” Franklin stated that he never invited Shepherd to his house, and that h i s g r a n d p a rents told S hepherd to leave every tim e h e cam e over. F ranklin stated t ha t Shepherd f

orced him self around Franklin and t hat h is grandparents did not a llow Shepherd

o v e r a nd had called the police on him bef ore. Franklin t estif

ied that on the day of th e burglary , Shepherd “jerked o pen t he s creen door” which was “locked, b ut he jerked it out of place.” Franklin was standing in the h allway w hen he saw Shepherd had entered t he house. Franklin stated he ran to his room because Shepherd was “ c o m ing back to r etaliate, to kill

m e.” Franklin put a wooden board under his bedroom -door handle and said that Shepherd “started beating on the door, and he said he was going to kill m e m ultiple t im es.” Because Shepherd could not g e t i n Franklin’s room f rom i nside the house, S hepherd r an outside to the window and kicked the w i n d o w . H e w a s n ot able to knock out the window but b roke the glass. Franklin b elieved that Shepherd was t here to retaliate f or an altercation t hat happened

on January 9, 2016. According to Franklin, two d ay s prior to t he burglary , S hepherd showed
up at the Steverson h ouse uninvited. Franklin told him to leave, b ut Shepher d r e f used. Franklin testif

ied that S hepherd sm irked at him and s tarted punching him in the f ace. Eva

3witnessed the event and becam e very upset, and then Shepherd pushed Eva. Franklin stated

he grabbed a k i tchen k

nif e and stabbed Shepherd in t he leg. Shepherd continued to hit Franklin in t he f

ace and would not leave the house. Franklin threw som e things a t Shepherd. The police were called, but no charges were pressed. Franklin stated he hoped that Shepherd would “leave [ him ] alone a nd not com e back, b ut he did.” Franklin testif ied t hat he believed Shepherd cam e b ack on January 11, 2016, to retaliate f or the incident two day s prior, and that he was af raid Shepherd was going to kill him

. ¶5. Shepherd also testif ied o n h i s own behalf

. H e stated that h e and Franklin had been close f riends f or y ears who sim

ply “got into a n argum ent.” H e said that he spent a lot of t im e

a t t h e Steverson house, that he “h[ u]ng out w ith them quite f requently ,” and that he an d Franklin sm oked weed together. Shepherd adm itted he went to the Steverson house drunk

on the date of the burglary in c i d e n t a n d entered without knocking. He a l so adm itted to breaking the window when he lef t but blam e d it on being d runk. He stated he m ade “a bad decision to go o v er there,” that he “trespassed,” and “m ay b e vandali[ zed],” but he denied that he com m itted burglary

. ¶6. T h e j u ry f

o und Shepherd guilty of hom e-invasion burglary

. He n o w a p p e a l s h i s conviction arguing (1) that t here was insuf f icient evidence to support his conviction and (2) that the verdict was against the overwhelm ing weight of the evidence. DISCUSSION I. Sufficiency of the Evidence ¶7. Shepherd argues t hat there was insuf f icient evidence to s upport the g uilty verdict f or

4burglary , and theref ore, the trial court erred by deny ing h i s mo t ion f or a j udgm ent notwithstanding the verdict (JNOV). ¶8. This Court’s standard of revie w f o r a t r i al court’s grant or denial of a m otion f or a JNOV is de novo. Estate of Gardner v. Gardner , 228 S o. 3 d 9 2 1 ( ¶ 1 9) ( Miss. Ct. App. 2017). A m otion f

o r a JNOV challenges the legal suf f iciency of t h e e v idence, and where there is substantial evidence to support the v erdict, we will a f f irm t he denial of a JNOV.
InTown Lessee Assocs. LLC v. Howard , 67 So. 3d 711, 718 (¶22) (Miss. 2 011). “Substantial evidence is inf

orm ation of s u ch quality and weight that reasonable and f air-m inded jurors in the exercise of im

partial j udgm ent m ight have reached dif f erent conclusions.” Bryant v. State , 151 So. 3 d 1 025, 1029 (¶13) (Miss. Ct. App. 2014) (quoting Daniels v. State , 107 So. 3d 961, 963 (¶10) (Miss. 2013)). “W hen reviewing a m otion f or a JNOV, the trial judge is required to accept a s true all of the evidence t hat is f avorable to the S t a t e , i n c l uding all reasonable inf

e rences that m ay be drawn theref r om , a nd to disregard evidence f avorable to the d ef endant.” Id

. at (¶14) (internal quotation m ark om i tted). “W e will reverse only where with respect to one or m ore of the elem ents of the o f f ense charged, the e vidence so considered is such that reasonable and f air m inded jurors could only f i n d t he accused not guilty .” Id . (internal quotation m a rks om itted). ¶9. Shepherd w as charged a nd convicted of b urglary under Mississippi Code Annotated section 97-17-23(1)-(2). “Section 97-17-23(1) sets o ut the elem e n ts the State m ust prove to convict a def

endant of burglary

. Those elem ents are: (1) the unlawf ul breaking and entering of a d welling a nd (2) the intent t o c o mm it som e crim e therein.” Johnson v. State , 235 So.

53d 1404, 1410 (¶13) (Miss. 2017). Section 9 7-17-23(2) enhances the m inim u m penalty when burglary is com m itted “under circum stances lik e l y t o t errorize any person who is actually
occupy ing the house at the tim e of the crim inal invasion o f the prem ises.” Johnson v. State , 242 So. 3d 145, 165 (¶42) (Miss. Ct. App. 2017). ¶10. Now o n a p p e a l, Shepherd states t hat the evidence was i nsuf f icient to m eet the f

irst elem ent of burglary

—breaking and entering. He argues that b ecause there was evidence that Shepherd had been to the Steverson hom e on n um e r ous occasions, he d i d n o t u n l awf ully

enter the house on the date o f the burglary

. But, b oth Eva and Franklin testif ied that Shepherd was not invited to the house on the d a y o f the burglary

. Franklin stated that Shepherd “jerked open” the screen door—pull i n g i t o u t of place even though it was locked—and e ntered t he hom e. Eva testif ied t hat she heard t he d oor slam and som eone enter the house, indicating f

orce. B y S h e p h e r d’s own adm ission, he entered the house without knocking and without permi s s i o n . T he suprem e court h as def ined b reaking as “any act or f orce, however[ ] slight, em ploy ed to ef

f ect an entrance through any usual or unusual place of ingress, whether open, p artly open, or c l o s e d

. ” J o h nson , 235 So. 3d at 1410 (¶14) (internal quotation m arks om itted). ¶11. Here, having a ccepted as true all the evidence f avorable to the State, the evidence with regard t o the elem ent of breaking and entering is not such that reasonable and f air-m inded jurors could only have f

ound Shepherd not guilty

. R ather, r easonable and f a ir-m inded jurors could have f

ound f r om the evidence t hat Shepherd unlawf ully broke and entered the Steverson hom e.

6¶12. Shepherd a lso argues there was insuf f icient evidence to e stablish that he intended to assault Franklin. T h e indictm ent s pecif ically charged that Shepherd broke and entered with the intent to com m it the crim e of a ttem pted assault. Shepherd a rgues that this elem ent was
not established because he did not possess a weapon and that Franklin adm itted he was not hit or assaulted. ¶13. “An attem

p t to com m it a crim e consists of three elem ents: (1) an intent to com m it a particular crim e, (2) a direct inef f ectual act done t oward its com m ission, and (3) the f ailure

to consum m ate its com m ission.” Craig v. S tate , 201 S o. 3d 1108, 1111 (¶9) ( Miss. Ct. App. 2016) (quoting Brooks v. State , 18 So. 3d 833, 841 (¶33) (Miss. 2009)). ¶14. In the i n s t a n t c a s e , t h e re was testim ony that S hepherd was beating on Franklin’s bedroom door and threatened to kill him

. Shepherd adm i tted he broke Franklin’s bedroom window. Eva testif

ied that Shepherd told her he was going to kill Fr a n k l i n . I n addition, Of f icer Rainbolt’s testim ony and photographic evidence s upp o r t e d Eva a nd F ranklin’s testim o ny . Accepting this evidence as true, along with a ll reasonably -drawn i nf erences, reasonable and f

a ir-m inded jurors could h a v e c o ncluded that Shepherd’s verbal threats coupled w ith the overt act of beating on Franklin’s b edroom door and breaking his window evidenced his intent to assault Franklin. ¶15. The evidence in this c ase was suf f i cient f or the jury to f

i nd the State had proved both elem ents of

burglary bey ond a reasonable doubt. This issue is without m e rit.
II. Weight of the Evidence ¶16. Shepherd also argues t h a t the verdict was a gainst the overwhelm i ng weight of the

7evidence, and theref ore, the trial court erred when it denied his m otion f or a new trial. ¶17. “A ne w t r i a l b a s e d o n t h e w e i g h t o f t he evidence should be granted only in exceptional cases in which the evidence preponderates heavily against the verdict.” W atson

v. State , 205 So. 3d 1094, 1095 (¶5) (Miss. C t

. App. 2016) (internal quotation m ark om itted). “W hen reviewing a denial of a m otion f or a new trial b ased on an o bjection to the weight of the evidence, we will only disturb a verdict when it is so c o n t r a r y t o t h e overwhelm ing weight of the evidence that to allow it to stand would sanction an unconscionable injustice.”
Doss v. State , 2 1 2 So. 3 d 886, 890 (¶13) (Miss. Ct. A pp. 2 016). “The evidence is viewed in the light m ost f

avorable to the verdict.” Id

. “[ R]eversal is warranted only if the trial court abused its discretion in deny ing [ the] m otion f or a new trial.” W

atson , 205 So. 3 d at 1095 (¶6). ¶18. Here, S hepherd argu e s t h at the v erdict is “clearly against the overwhelm ing weight of t h e e v i d e n c e , ” b ecause “at m ost, [ his] case is a trespass.” For support, h e points to the testim o ny that h e and Franklin had k nown e ach other since e ighth grade, that they had

sm oked weed together, and claim s he was “ a constant f ixture at the hom e of Franklin.” But, based on the evidence previously descri b e d a n d v i e w ed in the light m ost f avorable to the verdict, we cannot f

ind that the verdict is contrary to t he overwhe l ming weight of the evidence or that allowing t he verdict to stand would s anction a n unconscion a b l e i n j ustice. This issue is without m erit. ¶19. AFFIRMED. IRVING AND GRIFFIS, P.JJ., B ARNES, C ARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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