IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-KA-00391-COA MELVIN GRAYER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 01/29/2018 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: REVERSED AND REMANDED - 08/06/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE BARNES, C.J., GREENLEE, TINDELL AND McCARTY, JJ. McCARTY, J., FOR THE COURT: ¶1. Af ter his f irst trial ended in a m istrial, M elvin Gray er was convicted o f burglary , and ultim ately sentenced as a habitual of f ender to serve f

our t e e n y e a r s in t he custody of the Mississippi Departm ent of Corrections. Because the court ref used to g ive a jury i nstruction on the lesser-included of

f ense of trespass, we reverse and rem a nd f or a new trial.
FACTS ¶2. Predawn on a spring day i n 2017, Of f icer Victor Moreno and Of f icer Zachary

Couey of the Gulf

port Police D e p a r t me n t responded to an alarm call a t t he Tabernacle FaithMinistries Church in Gulf port. Of f icer Moreno’s body c am era recorded his a rrival and what happened af

terward. Both of

f i cers noticed a broken window on the s o uth side of the church with i ts screen on t he ground nearby

. They entered the church through an u n l o c k ed door located near the broken window. Of f icer M oren o noticed that an alarm panel and a therm o stat had been ripped f rom the wall. ¶3. Entering a k i t c h e n a r e a, Of f icer Moreno saw a m an f a c e down on the f

loor. The

m an’s hands were underneath his body , and a f lashlight was resting on the f loor beside him

. The of f icers d em anded he i dentif y him self

. T he m a n was u nresponsive. T h e situation quickly e scalated w ith the o f f icers using a burst of s houted prof anity

. Still, the m a n rem ained
f ace down. The of

f icers cautiously a

pproached him , cuf

f e d his hands behind his back, and the m an identif

ied him self as Melvin Gray er. Of f icer Moreno searched him , f i nding an odd

assortm ent of objects—an identif ication card, m

ultiple rolls of m aski n g t a p e , batteries, a jersey , and a bottle of

liquid. ¶4. Of f icer M oreno continued to search the church and noticed a room that looked as if it had been ransacked—drawers were pulled out, item s w ere on the f loor, and another alarm had been pulled f

rom the wall. By this tim e , P astor Anthony Thom pson had a rrived at the church. T he pastor testif

ied that t he room w ith the drawers p ulled out w as the usher’s room and contained church supplies. The pastor indicated that the item s usually c ontained in these drawers were not necessarily m issing but just not where they belonged. The pastor e xplained that he had closed every

thing up bef

ore securing the church the night bef ore. ¶5. Of f icer Couey questioned Gr a y e r , w ho denied that he was com m itting a burglary

.

2Instead, Gray er t old the of f icer that he had s een a m an he knew nam e d Larry S m ith break the window of the church and t hen r un away . Gray er adm i tted that he did g o through the broken window into the church but that he only did it so he could have a place to sleep. Later, the of f icer would com e to believe that the “Larry Sm ith,” w ho Gray er s a w, w as actually an alias Gray er used f

or him self

. DISCUSSION
I. Trespass Instruction ¶6. Gray er argues that the t rial court erred by ref using jury instruction D-8, which was a lesser-included-of

f ense instruction on trespass. W e agree. ¶7. A def

endant is e ntitled t o a l esser-included-of f e n s e i n s t r u c t i o n i f t h e r e i s a n evidentiary basis i n the record “even tho u g h t h e e v idence that supports it is weak, inconsistent, or of doubtf

ul credibility .” Barnes v. State , 158 So. 3d 1 127, 1 136 (¶33) (Miss. 2015). Furtherm o re, the evidence in a particular case generally warrants granting a lesserincluded-of

f ense instruction if a rat i o n a l o r reasonable jury could f ind the def

endant not guilty of at least one e lem ent of the principal of f ense charged in the indictm ent y et guilty of the lesser-included of

f ense. W e view t he evidence in the light m ost f avorable to the def endant and consider all reasonable i nf erences in f

avor of t he def

endant. Pierce v. State , 107 S o. 3d 1011, 1 014 (¶11) (Miss. Ct. App. 2012). Our standard of review “f or a c laim that

a def endant was entitled to a lesser-included-of f ense instruction is de novo, as this is a question of law.” Id. ¶8. Trespass is a l esser-included of f ense to eve r y burglary

. Jackson v
. S tate , 90 So. 3d

35 9 7 , 6 0 6 (¶35) (Miss. 2012); but see Eldridge v
. S tate , 232 So. 3d 767, 769-70 (¶¶9-1 1 ) (Miss. C t. App. 2 017) (explaining the need f or f actual support f

or a trespass jury instruction). Accordingly , if a r ational or reasonable jury could have f ound Gray e r not guilty of burglary

y et guilty of trespass, then the trespass instruction should have been given. Id. ¶9. Considering all reasonable inf erences in Gray er’s f

avor, we f

i nd that he presented a viable alternative explanation of h is presence in the church. Gray er told Of f icer Couey that he w itnessed a nother m an break the window of the church b ef ore f leeing, a f t er which Gray er entered the church to sleep. The f actual and legal i nterrelation between the two crim es was also w ell understood b y the State. During trial, another detective t estif ied that a prior conviction of Gray e r f

or burglary supported the decision to charge G ray er with burglary , rather than the lesser c rim e of trespass. Ultim ately , whether the def endant entered the church

to s leep or to steal is a question only a jury can answer. Gray er is e n t i t l ed to the lesser included instruction. ¶10. The d issent argues that the evidence o f G r a y e r ’ s intent to steal w as clear because “Gray er rum m aged through a nd opened drawers” and “ [ i]tem s discarded by Gray er were thrown about the church.” But even though Gray er had a series of odd item s on his person, there was no evidence t h a t t h e s e i tem s belonged to the church or t hat Gray er him self

rum m aged through the drawers. Furtherm ore, unlike the def endant in Jackson , Gray er’s theory of def

ense was t hat he trespassed on church property in o r d e r to sleep. Gray er
p r e s e n ted a def

e nse that he was not the person w ho broke into the church. Th e j u r y ma y reject Gray er’s theory of def ense and ultim ately decide that he was com m itting burglary , but

4that i s not our concern. Our concern is sim ply that Gray er receive a f air trial, which includes allowing the jury

to be instructed on his theory of def ense. ¶11. The trial c o u r t a l s o r e f u s e d to give the instruction f or another reason—it did not accurately ref

lect the e lem ents of trespassing. But the instruction t r a c k s the language of Mississippi Code Annotated section 99-17-87(1) (Rev. 2014), which states t hat trespass is the “willf ul or m a licious” intrusion “ upon the real property of a nother.” I nstruction D-8

states: The Court inst r u c t s t h e j ury that if y ou f ind f r om the evidence that the State has f ailed to prove bey ond a reasonable doubt any elem ent of the crim e of Burglary then y ou m ay

consider the lesser charge of Trespass. If y ou are convinced f

rom the evidence bey ond a reasonable doubt that: 1) On or about M ay 25, 2017, in the First J udicial District of Harrison County , Mississippi, 2) MELVIN GRAYER unlawf ully and willf ully 3) [ t]respassed on the real or personal property of another, then y ou shall f

ind MELVIN GRAYER “Guilty ” of willf ul Trespass. ¶12. Gray er was entitled to have his theory of the c a se— e v e n i f h i g h l y unlikely —subm itted

to the jury under proper instruction of the court. Denial of this f undam ental right is grounds
f or reversal.
II. Pro Se Issues Raised in Supplem ental Brief ¶13. Gray er raises several issues in a supplem ental brief : (1) the i ndictm ent was def ective; (2) the trial court erred in adm itting the recording f rom Of f icer Moreno’s body cam era; (3) evidence o f his prior conviction f or burglary was inadm issible; (4) his habitual-of f ender

status was not proven; (5) he was e ntitled to a bif urcated sentencing hearing; and ( 6) the trial

court erred in deny ing h is m otions f or a directed verdict and a judgm ent notwithstanding the

5verdict.

¶14. Since we are reversing and rem a nding f or a new trial, m ost of these issues are m o ot. However, we will brief

l y address the issues regarding t h e i n dictm ent, Gray er’s habitualof f ender status, and the adm ission of his prior burglary conviction. ¶15. Gray er argues that his indictm ent was d ef ective because it did not include the length of incarceration f

or each prior conviction. Gray er is m i staken; t he indictm ent does include this inf orm ation. G ray e r a lso argues that his habitual-of f ender status was not proven. Gray er i s a g a i n m istaken; during the sentencing hearing t he State subm itted a “pen pack” int o evidence, and it contained inf o rm ation about his prior convictions. ¶16. Gray er f

u rther contends that the trial c our t e r r e d i n a l l o w i n g D etective Crum p to testif y about his 2012 burglary

conviction. Bef

ore his f irst trial, Gray er had f

iled a m otion in l im i ne to exclude evidence of any prior convictions. Gray e r im plies t h at the trial court granted h is m otion, argui ng that “despite the ruling on t he m otion in lim ine, the State continually elicited i nadm issible testim ony .” But during the second trial, the t r ial court indicated that it had denied the m otion. Ref erencing i ts prior ruling, the trial court stated that Detective Crum

p c ould testif

y about the conviction “ as it related to the issue o f intent and her
f orm ulation in her m ind to charge Gray er with a burglary .” W e do not have the record of the
f irst trial, so we do not know if the trial court conducted t he proper adm issibility tests under Mississippi Rules of Evidence 403 and 404(b). If this issue a rises during retrial, then the trial court should m ake it f

indings clear.
CONCLUSION

6¶17. Because t he def endant should have b een allowed to instruct t he jury o n his theory of the case, which was the lesser-included-of f e nse instruction o f t respass, he is entitled to a new trial. ¶18. REVERSED AND REMANDED. BARNES, C.J., C ARLTON, P.J., GREENLEE, WESTBROOKS, T INDELL AND McDONALD, JJ., CONCUR. LAWRENCE, J ., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY J. WILSON, P.J., AND C. WILSON, J. LAWRENCE, J., DISSENTING: ¶19. I respectf

ully dissent f

rom the reversal of t he jury ’s verdict, which f o und Gray er guilty
f or t he b urglary o f the Tabernacle Faith Ministries Church. Because there w a s am ple evidence o f Gray e r’s intent to steal therein, along with evidence of a breaking and entering,
I would f ind that the trial judge was correct in deny ing a lesser-included trespass i nstruction and would af

f irm the verdict of

the jury

. ¶20. In Jackson v. State , 90 So. 3d 597, 604 (¶30) (Miss. 2012), the Mississippi Suprem e Court af f irm ed a burglary conviction when the trial co u r t i n t h a t case ref u sed a lesserincluded trespass instruction. The f acts in Jackson are very sim ilar to the f acts in this case. In Jackson , a Hinds County S herif f ’s Departm ent Deputy testif ied that he arrived at the location of the alleged burgl a r y and inspected the hom e in question. Id. at 6 00 (¶6). The door to the hom e had been “kicked in,” and the deputy saw a f ootprint on one of

the doors

to the hom e. Id

. Another door had actually been broken o pen. Id

. U pon e n tering t he hom e, the d eputy notice t hat several dra w e r s h a d been pulled out and personal property was scattered around the hom e. I d

. The Mississippi Suprem e C o u r t f o u n d t hat the jury had

7“every right to m ake the logical inf erence that Jackson broke and enter e d t h e [ h om e] and guest house with t he i ntent to com m it burglary .” Id

. at 604 ( ¶30). I m portant t o the issue of af f irm ing the denial o f a lesser-included trespa s s instruction, w as the f act that Jackson did

not know the victim s. Id. at 6 07 (¶38). T he court f ound that “no r easonable j ury w ould have
f ound that Jackson’s sole c rim e was trespass without t h e i n t e n t t o com m it l arceny .” Id

. at 607 (¶40). In Jackson , the com bination of not knowing the victim , c lear evidence of a b r e a k ing and entering, and clear evidence of the intent to steal therein created a u n i q u e situation where the denial of a lesser-included t respass instruction was af f irm ed. 1 Id

. at 608 (¶42). ¶21. The evi d e n c e i n t h i s c ase is rem arkably sim ilar to the evidence in J ackson

. The window to t he church had been broken f rom the outside—evidenced by the glass f

ound on the i nside of the church. Additionally , two alarm panels h ad been ripped f rom the walls and

num erous drawers were open and ransacked. Item s d iscarded b y G ray er were thrown about the church. Gray er w as f

ound by the police inside the church. As in Jackson , t here was clear evidence o f a breaking and entering throug h t h e b roken window, along with discernible evidence o f i ntent to steal the personal property therein. That Gray er did not have perm ission

1 T h is C o u rt h a s af

f irm ed th e lo g ic in Ja ckso n , an d f o u n d th at d etailed ev id en ce o f b reak in g acco m

p an i ed w ith “ ru m m ag i n g th r o u g h th e v ictim ’ s ef f ects,” w as m o re th an en o u g h to q u estio n “w h eth er t h e ev id en ce w as so clear th at n o reaso n a b l e j u r o r c o u ld h av e accep ted t h e d ef

en d an t’s th eo ry [

. . . ] .” E ld rid g e v. S ta te , 2 3 2 S o . 3 d 7 6 7 , 7 7 0 (¶1 0 ) (M iss. C t

. A p p . 2 0 1 7 )

. S p ecif

ically , w e r elied o n th e su p rem e co u rt’s f i n d in g i n Ja ckso n th at, “th e in f eren ce o rd in a rily t o b e d raw n f ro m a d ef en d an t’s u n e x p ected b reak i n g an d en terin g in to th e h o m e o f an o t h er p er s o n u n k n o w n to h im , f o llo w ed b y h is ru m m ag in g th ro u g h th e v ictim ’s ef

f e cts an d f leein g u p o n d isco v ery , is th at th e d ef en d an t h ad th e in ten t to co m m it larcen y .” Ja ckso n , 9 0 S o . 3 d at 6 0 5 (¶3 4 ). In G ray er’s case, th e trial co u rt relied o n th o se w o rd s f ro m th e M ississip p i S u p rem e C o u rt. 8to be in the church, or that he knew no m em bers of the church, was not in dispute. This, coupled with evidence that G ray e r rum m aged thro u g h a n d opened drawers, and displaced personal property of som eone he did not know p roved his intent to steal. If there is evidence of a b reaking and entering and an intent to steal, then, by def inition, it cannot be a trespass. Miss. Code Ann. §97-17-33 (Rev. 2014). ¶22. The trial court f

ound a ll of the e ssential elem ents of burglary of t he church had been
proven, and no set of f

a cts could allow a reasonable j ury to f ind the def

endant not guilty of burglary and guilty of the lesser-included trespass. The evidence of rum m aging through the drawers of the Church proved his intent to s teal—not sleep as he told the of f icers who f

ound him

. In other words, t he e vidence bef o re the jury was that Gray e r ’s intent, once he broke into and entered the c hurch, was to look f or and s t eal the personal property therein and n ot to just

to f ind a place to sleep. I f i t were to sleep, then the drawers o f the church would not have been rum m aged through. ¶23. The t rial court went into detail in its r u l i n g t o ref use the proposed lesser-included trespass instruction: The court is persuaded here th a t s i m i larly to Jackson , there’s been an unexplained breaking a nd entering b y t he accused, w ho is unknown to the victim , f ollowed by a rum m aging through his p ersonal, or business, or c hurch ef f ects, which som e of w hich were f o und at or near the person of the def endant when he was conf

ronted by law enf

orcem ent. The inf

erence t hat M r. Gray er was m e rely a trespasser without other crim i nal i ntent i s not reasonable under these f acts. The cou r t , t a k i n g the e vidence i n the light m ost f avorable to G ray er, determ ined that no reasonable jury

could f ind he was guilty

of only the lesser-included of

f ense of trespass.

9¶24. Further, i n J ackson , th e s u p r e me c o u r t h e l d t h a t a “trial court has considerable discretion w h e n i n s t r ucting the jury .” I d

. 9 0 So. 3d at 606 (¶34) (citing Utz v. Running & Rolling T u c k i n g I nc. , 32 So. 3d 450, 474 (¶78) (Miss. 2 010)). If we give trial courts “considerable discretion” to decide which instructions are warranted by the testim ony which they have heard, those d ecisions should be af f irm ed except w h e n t h e court abused its discretion or m isapplied the law. Here, we have neither. The court articulated exactly why the f acts and the law aligned this case with Jackson in e xplaining the decision t o deny a lesser-included trespass instruction. ¶25. A c c o r d i n gly , I would f ind that the trial judge’s determ i nation to r ef use th e l e s s e r included instruction of t respass was consistent with the Suprem e C ourt’s holding in Jackson , and the evidence in this case. Under t h e se specif ic f a cts, deny ing a lesser-included instruction of

trespass was not an abuse of discretion. Theref ore, I respectf

ully dissent. J. WILSON, P.J., AND C. WILSON, J., JOIN THIS OPINION.

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