IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-00885-COA JIMMY JOE TUTOR A/K/A JIMMY TUTOR A/K/A JIMMY J. TUTOR APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/19/2017 TRIAL JUDGE: HON. JOHN ANDREW GREGORY COURT FROM W HICH APPEALED: CALHOUN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN SUBER GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED: 11/06/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ. BARNES, J., FOR THE COURT: ¶1. Jim m y Joe T utor was convicted of burglary of a d welling and sentenced to twenty -f ive
y ears in the custody of the M ississippi Departm ent of Corrections a s a h a b i tual of f ender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). Appealing his conviction,
Tutor argues that his sentence as a habitual of f e nder was illegal becaus e t h e underly ing of f enses to prove his habitual-of f ender s tatus arose f

rom the s am e i ncident and that the verdict w as against the overwhelm ing weight o f the evidence. W e f ind no error in the trial court’s r uling that his underly ing f e lon i e s w ere separate and distinct crim es, s u pportingTutor’s habitual-of f ender s tatus. W ith regard to the weight-of -the-evidence argum ent, this issue is procedurally barred because Tutor f ailed to f

ile a m otion f

or a new trial. Alternatively , t h i s argum ent is without m e rit. T heref ore, f i nding no error, we af

f irm the judgm ent. FACTS AND PROCEDURAL HISTORY ¶2. On Novem

ber 25, 2013, P reston McGreger returned to his hom e in Calhoun County , Mississippi, to f

ind that it h ad been burglarized. The f ront door f

ram e was busted, and three televisions (two Sany o s a nd one Vizio) and a brief case containing personal docum ents were

m issing. Preston’s wif

e, Candi, reported the burglary to the s herif f ’s departm e nt. L ater that evening, while searching C raigslist, Preston saw a listing f or a package deal with th r ee televisions m atching the description of the ones stolen f

rom his hom e. The phone num ber associated with the li s t i n g w a s f rom W ater Valley , Mississippi. Candi had a f riend call to inquire about the televisions and t o set up a m eeting to buy them at the Dollar General store in Vardam an. Candi also contacted Sherif f ’s Deputy Juston Robertson t o apprise him of the situation. ¶3. W h en the sellers—Tutor and Jessica Leister, Tutor’s girlf riend— arrived at the Dollar General, Deputy Robertson and a nother of f icer approached Leister’ s v e h i c le, a tan Ford Explorer, and inf

orm ed the couple that they were investigating a burglary

. It was determ ined that the television in the vehicle was not one of the televisions stolen f

r om the McGregers, but because the television listed f or sale o n Craigslist was a com pletely dif

f e rent m odel,

2Deputy Robertson becam e susp i c i o u s and took Tutor and Leister in f or questioning. He obtained a search warrant f or Leister’s hom e i n W ater Valley , whe r e l a w enf orcem ent recovered three televisions a nd a b rief case. The McGregers identif ied the recovered item s as the ones stolen f

rom their hom e. ¶4. Tutor and Leister were indicted f or b urglary of a d

welling on April 2 , 2014. Pursuant

to a p lea agreem ent with the State, Leister entered a g uilty plea in exchange f or her testim ony
at Tutor’s trial, which was held on April 18-19, 2017. The McGregers b oth te s t i f i e d a s to the events that transpired as described above. Tanner Bailey , a neighbor of the McGregers, also testif i ed that on the d ay of the burglary , he saw a tan Ford Explorer about 50 y ards f rom the McGregers’ hom e and a wom an standing in f ront of the vehicle. ¶5. Leister testif

ied that i n N o v e mb e r 2 0 1 3 , Tutor had been living with her in W ater Valley f o r approxim ately six m onths. They w e r e visiting his f am ily in Calhoun County that day and went f

or a drive. Tutor told her to stop a t a house, say ing he knew the people would

not be hom e. She said he brought three televisions out of the hom e and p ut them into her car. Regarding the brief

case, s he said Tutor claim ed his f ingerprints were o n it. L ater, when Candi’s f r iend called about the televis i o n s a n d began a sking a lot of questions, Leister becam e nervous; so she suggested to Tutor that they take her t elevision instead of the stolen

ones to m eet the buy er. ¶6. Def

ense counsel m o v ed f

or a directed verdict, which the trial court d enied, and the def ense rested. Af

ter the jury

returned a guilty

verdict, def

e nse counsel m ade an ore tenus

3mo tion f

o r a judgm ent notwithstanding the verdict (JNOV). The court denied the m otio n , and requested that counsel f ile a w ritten m otion f

or the purposes of the tim ing of the appeal. However, no posttrial m o tions were f iled. On June 22, 2017, the trial c ourt entered an order

nunc pro tunc to April 20, 2017, granting Tutor a sixty -day “extension of any deadlines and enlargem e nt o f t im e to f

ile any p o sttrial m otions or notices.” Tutor f iled a notice of appeal

on June 27, 2017. His a rgum ents on appeal are that his sentence a s a h abitual of f ender was illegal and the verdict was against the overwhelm ing weight of the evidence. DISCUSSION I. Whether the sentence as a habitual offender w as illegal. ¶7. On A u g ust 26, 2016, the State m oved to am end the indictm e n t t o charge Tutor as a habitual of

f ender under section 99-19-81, noting he h ad two prior f elonies: b u r g l a r y of a dwelling and uttering a f

orgery . 1 On Decem

ber 2 3, 2007, Tutor had stolen checks f rom the hom e of Bill and Shirley Edm o nson. The f ollowing d ay , he presented one of the f raudulent checks f or pay m ent. At the p retrial hearing on the m otion t o am end, d ef ense c ounsel argued the charges “were not separate incidences, but a p art of the ongoing crim e,” n oting that the victims were the sam e and the incidents occurred within a twenty -f o ur hour p eriod. The State responded that the crim e s were “separate and distinct.” F i n d i n g that the crim es occurred on dif

f erent day s and were, theref ore, “two s eparate and distinct crim es,” the trial court granted the m otion to am end the indictm ent.

1 T u to r en tered a g u ilty

p lea to b o th ch arg es.

4¶8. On appeal, T utor reasse r t s h i s c l a i m t h a t t h e t w o f elonies arose out of the sam e incident; s o they cannot both be u sed to support his habitual-of f ender status under section 99- 19-81. “ T o q u a lif

y as a predicate f

elony f or purposes of section 99-19-81, b oth prior convictions m

ust arise out of s eparate incidents, m eaning they m ust be separate f

rom each other and f

rom the f elony f or which the def

endant is being sentenced.” Burkhalter v. State , 179 So. 3d 67, 71 (¶17) (Miss. Ct. App. 2015) ( quoting Drummer v. State , 167 So. 3d 1180, 1183 (¶7) (Miss. 2015)). The Mississippi Suprem e Court has held: [ T]he events s h ould b e suf f iciently separate that th e o f f e n der’s c rim i nal passions m ay h ave cooled so that he has tim e to ref lect, a n d i f af

ter such an int e r v a l t h e individual f

orm s and actualizes a new crim inal design, and then does so a third tim e, he s h ould be m et with all of the p ower of the public f orce. Pittman v
. State , 570 So. 2 d 1205, 1206 (Miss. 1 990). Tutor robbed the Edm onsons on the 23rd a n d presented the f

raudulent check to a local convenience store the f ollowing day , the 24th. W e f

i nd that suf

f icient tim e had passed between the burglary and the uttered f orgery that Tutor had tim e to ref lect and to f

orm “a new crim i nal design.” ¶9. Furtherm ore, n o evidence was p resented that Tutor com m itted the b urglary to obtain the checks. Cf. Bergeron v. State , 60 So. 3d 212, 216 (¶11) (Miss. C t. App. 2011) (f inding

a def endant’s prior c onvictions did not support habitual-of f ender s tatus because he had only

one intent when he broke into a car deal e r ’ s o f f i c e , stole a k ey , a nd used the key to steal a vehicle). As the trial judge stated, af ter the bu r g l a r y h a d b een com m itted, “ Tutor had the opportunity

to either use that check or not use that check the next day , and h e chose to use it.” W e agree with the trial court that the two crim es w ere “ s eparate and distinct,” and we
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ind no error in court’s ruling t o grant the S tate’s m otion to am end the indictm ent charging Tutor as a habitual of

f ender.
II. Whether the verdict is against t he overw helm ing w e ight of t he evidence. ¶10. Tutor contends that the verdict is against the weight o f the evidence, noting none of the stolen item s w ere f

ound in his p ossession a nd the only evidence of his involvem ent in the burglary “is that of

a disgruntled d

rug-addicted e x -girlf

riend.” The State argues that Tutor is procedurally barred f

rom r aising this claim because he f ailed to assert this claim to the trial

court. “There are certain errors that m ust b e raised i n f

ront of the circuit judge in a m otion f or a new trial, including challenges to the weight of the evidence.” Davis v. State , 75 So. 3d 569, 5 72 (¶14) (Miss. Ct. App. 2011) (citing J ackson v. State , 423 So. 2 d 129, 132 (Miss. 1982)). ¶11. At trial, d ef

ense counsel m oved f

or a J NOV, asserting: “Judgm ent notwithstanding the verdict, we would m ake a m otion f o r the Court t o s e t a s ide the verdict.” However, “a

m otion f or [ a] JNOV challenges the suf f i ciency of the evidence presented to the j ury , not its weight.” Qualls v. State , 947 So. 2d 365, 373 (¶25) (Miss. Ct. App. 2007) (citing McClain

v. State , 6 2 5 So. 2d 774, 778 (Miss. 1993)). As noted, the trial court requested that counsel f ile a written m o tion f

or a JNOV and later granted Tutor leave to f ile any posttrial m otions.
H e f ailed either to reassert his claim challenging the suf f iciency of the evidence wi t h a

m otion f o r a JNOV or to assert a c laim regarding the weight of the e vidence i n a m otion f or

a new trial. “The f

ailure to preserve a m atter by m o tion f or new trial

. . . m a y also serve as 6a procedural bar to its consideration by an appellate court.” Alonso v. State , 838 S o. 2d 309,

313 ( ¶10) (Miss. Ct. App. 2002) (citing Seals v. State , 767 So. 2d 261 (¶6) (Miss. Ct. App. 2000)). As the r ecord contains no m otion f or a new trial, T utor is procedurally barred f rom raising this issue. ¶12. Notwithstanding the procedural bar, we f ind the weight of the evidence supports the verdict. L eister testif

i ed that she and Tutor were in Calhoun County that day visiting Tutor’s f am ily and that Tutor stole the te l e v i s i o n s f r om the McGregers’ hom e . Tutor was f rom Calhoun County and k

new the area. Also, although Tutor claim s that he did not reside where the stolen item s w ere f

ound, Leister testif

ied that Tutor had been living at her hom e in W ater Valley f or several m onths. Tutor was also with L e i s t e r at the Dollar General to sell the television. ¶13. Accordingly , we af f irm the trial court’s judgm ent. ¶14. AFFIRMED. LEE, C.J., IRVING AND GRIFFIS, P.JJ . , CARLTON, F AIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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