IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-00786-COA WILLIE SOLOMAN ROBINSON A/K/A WILLIE S. ROBINSON A/K/A WILLIE ROBINSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/17/2017 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W . DANIEL HINCHCLIFF GEORGE T. HOLMES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS DISTRICT ATTORNEY: JOEL SMITH NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 09/25/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. IRVING, P.J., FOR THE COURT: ¶1. W i llie Solom an Robinson was convicted of f irst-degree a rson as a habitual of f ender f ollowing a jury trial in the C ircuit Court of Harriso n C o unty , M ississippi, First Judicial District. H e was sentenced t o f if t een y ears in the custody of the Mississippi Departm ent of Corrections (MDOC). Robinson now appeals, asserting two issues: (1) whether he was wrongly indicted f

o r f i rst-degree arson when the evidence was only suf f icient to support an indictm ent f

or attem p ted arson; and (2) w h e ther the verdict was against the weight of theevidence. For the reasons discussed in this opinion, we reject Robinso n ’ s a rgum ents and

af f irm

. FACTS ¶2. A s o f March 20, 2015, Robinson had been renting, f o r about a m onth, a n e x t r a bed room in Alice Crandle’s house in Gulf port, Mississippi. At som e point that day , Robinson a n d A l i c e g o t into an argum ent, and A lice dem anded that R obinson m ove out. Alice testif

ied at trial that as her two adult sons, Dam ien and Cedric, were helping Robinson

m ove h is things o ut of her house, she heard Robinson say that he was going to burn her house down. Cedric also testif ied that Robinson to l d h i m that he was going to burn the house down. Cedric f

urther testif

ied that Robinson called Robinson’s supervisor and told him that he would not be com ing in the next day because he would be in jail. Robinson then called his uncle, who picked him up f rom the house. Cedric m aintained that a f ter le aving his

m other’s h ouse, he saw Robinson and Robinson’s uncle at a g as s t a t ion. Finally , Cedric testif i ed that about f

o rty -f i ve m inutes a f

t e r h e saw Robinson at the gas station, Cedric’s

m other called him

and told him

that her house w as on f

ire a nd that he “jum

ped in [ his] car and [ ] f lew to her house” and discovered f ire “all along her f

ront porch a nd o n the back door

. . . on the side of the h o use.” H e used a bucket to douse water on the f lam es and extinguish the f ire bef ore going to f

ind help. ¶3. Alice testif

ied that around 2:00 a.m . o n M arch 2 1, 2015, she was in b ed when she heard Robinson’s voice outside h er bedroom window. She got out of bed and looked out the window to see f

lam e s on both the f

ront porch and at the back of the house, blocking the f ront

2and back doors—the only two doors to her hom e. Alice then called Cedric. ¶4. O f f i cer Brantley Cum

berland with the G ulf

port Police Departm e nt testif ied that he

was patrolling the area around Alice’s house at 2:30 a.m . on March 21, 2015, when he was f lagged down by Cedric. Cedric i nf orm ed Of f icer Cum berland that his m other’s house had been set on f

ire and led O f

f icer Cum berland t o the l ocation. Of f icer Cum berl a n d testif

ied that, upon arriving, he “observed t h a t there was sm oke c o m ing f rom the porch where it actually appeared that the porch had been set on f ire.” At this point, the f ire “ w as not actively burning, but there was still [ sic] burnt e m bers still s m oking com ing f rom the porch.” Of f icer Cum berland m ade the f

ollowing observations with respect to the f ront porch: The porch, which has an Astro Turf [ -]ty pe m aterial on it, there were m ultiple spots on the porch to where it was burnt d own to the wood. T h e f r o n t d o or, y ou could see the base o f the door where it l ooked as if a f ire had b een placed a t t he base of the door. There was charring going up the door. You coul d observe the roof a

bove the door w here it had m elted f rom the high heat f

rom where the f

ire appeared to have been placed.

* * * * [ Y]ou c ould clearly see that a f i re had been set on the base due to the b lackness on the baseboard and the blackness going up to the door, and y ou could also see where the paint on the door was also charring as well. Of f icer Cum berland also n oted that the back door “ appeared to have also been burned or appeared as if there was a f ire that had been put in f

ront of that doors [ sic], as well.” ¶5. Cedric testif

i ed that af

ter the authorities lef

t Alice’s house, he stay ed and sat out on the f ront porch to keep an ey e o u t f or Robinson. A t som e point, he saw Robinson “walking up the street towards [ Alice’s] h ouse with a [ gas] can i n his hand.” C edric conf ronted Robinson about starting the f ire, to wh i ch Robinson replied, “that’s what she deserved.”

3Cedric went inside to call the police, at which point Robinson ran of f

. ¶6. Of f icer Landon W illiam s with the Gulf port Police D epartm ent testif i ed that, around 5:20 a.m . on March 21, 2015, he was patrolling the area near Alice’s house when he cam e

across Cedric, who i nf

orm ed him that Robinson had r eturned to Alice’s property

. Cedric led Of f icer W illi a ms to the house, and Of f icer W illiam s testif

ied that upon arriving, he “saw Robinson standing in the m iddle of the road with the gas can in [ his] hand.” At that point, Of f icer W illiam s told Robinson to put the gas can—which was “ a quarter o f the way f illed with [ a ] liquid s ubstance”—on the ground, and Robinso n w as taken into custody

. Additionally , Of

f icer Joey Fore w ith the Gulf p ort Police Departm ent testif ied that he arrived

to the scene as Robinson was being tak e n i n t o c u stody , and that he sm elled gasoline

em anating f

rom the gas can. ¶7. Ti m R e g a n , who was a f ull-tim e f ire i nvestigator/inspector f or the City of Gulf

port at the tim e of

the incident, testif

ied that he was called to Alice’s house on March 21, 2015. He observed that por t i o n s o f t h e house exhibited burning “with irregular s hape that was consistent with a [ n ] ignitable liquid pour.” He m aintained that “som eone intentionally

attem pted to ignite s everal a reas of the structure o n f ire using som e ty

pe of ignitable liquid in [ twelve] dif

f erent locations.” Investigator Regan c ollected sam ples a nd sent them to the Mississippi Crim e L ab f

or identif i cation. Jacob Burchf

ield w ith the Mississippi Crim e Lab testif i ed that an ignit a b l e l i q u i d w as detected on the sam ples and that it was i dentif ied as gasoline. ¶8. Robinson was indicted f or f irst-degree arson a s a habitual of f e nder in violation of

4Mississippi Code Annotated sections 97-17-1 ( Rev. 2014) and 99-19-81 (Rev. 2015). Af ter

a jury trial, Robinson was convicted and sentenced, a s a habitual of f ender, to f

if teen y e ars in the custody of the MDOC. Judgm ent was e ntered o n M ay 1 8, 2017. Robinson f iled a

m otion f o r a new trial o n May 24, 2017, which was d enied, and Robinson tim ely a ppealed. DISCUSSION I. Attempt ¶9. Robinson a rgues on appeal that the State f ailed to p resent evidence s u f f icient to show bey ond a reasonable d o ubt that he com m itted the com pleted act of a r son; rather, according

t o R o binson, the e vidence only supports a n attem pt to com m it arson, and he should h a v e been indicted f

o r such. In response, the State m aintains t h a t t h e r e was legally suf f icient evidence of a ctual burning to prove f i rst-degree arson and that Robinson was properly indicted. ¶10. The subsection o f the statute under which Robinson was i ndicted, Mississippi Code Annotated section 97-17-1(1), reads as f ollows: Any person who willf

ully a nd m aliciously sets f ire to or b urns or causes to be burned or who aids, counsels or procures the burning of any d welling house, whether o ccupied, unoccupied or vacant, or any kitchen, s h op, barn, stable or other outhouse that is p arcel thereof , or belonging to or adjoining thereto, or any s t a te-supported school building in this s tate whether the property of him self or of another, shall be guilty of arson in t h e f i r s t degree, and upon conviction thereof

, be s entenc e d t o t h e penitentiary f o r not less than f

ive (5) nor m ore than twenty (20) y ears and s h a l l pay restitution f or any dam age caused. Robinson’s indictm ent provides, in pertinent part, that h e “d i d u nlawf ully , willf

ully , f eloniously [ ,] and m aliciously cause to be burned, a dwelling house.” Robinson argues that

5the language of section 97-17-1(1) distinguishes “ setting f ire to” f rom “actually burning” a structure because “setting f ire to” connotes a n a ttem pted arson, while “actually burning” connotes the com

pleted act of arson. Robinson asserts that h is indictm e nt, which includes the lan g u a g e “cause t o b e burned,” requires h im to have com m itted the com p leted act of

arson, rather than a m ere attem pt. Robinson m a intains that the State f ailed to prove at trial that his act transcended bey ond a m ere attem pt to com m it arson; thus, he asserts that the State did not prove the elem e nts of arson as laid in the indictm ent. ¶11. W e disagree, as we f ind the evidence suf

f icient to show or prove that Robinson caused Alice’s h ouse to be b u r n e d , which constitutes arson in the f irst degree. Both testim onial evidence and photographic evidence were of f ered to show that Alice’s dwelling was burned and that Robinson was the person who caused h er dwelling to be burned. Alice testif ied that she overheard Robinson threatening to burn her house down. Cedric testif ied that Robinson told him d irectly that he was going to burn Alice’s house d own. Cedric f urther t estif

ied that Robinson actually called Robinson’s work supervisor t o tell h im that h e would not be at work the next day because he wou l d b e i n j a i l. Alice testif i ed that she heard Robinson’s voice outside her window j ust bef ore she got up a nd saw the f lam e s outside. T h e p h o t o g r aphs of f ered into evidence c learly show charring a n d burning, to t h e e x t e n t that portions of a doorm at and an Astro Turf -ty pe m aterial covering the f

ront porch had been burned, revealing the wooden f

loor underneath. The f

ront door was black with soot. A portion of the roof over the f r ont porch appeared to have warped and m elted f r om the f ire’s heat. The back door also indicated charring. The State presented evidence tha t a n accelerant, gasoline, was used to

6start the f

ire. Cedric testif

i ed that he saw Robinson at the gas station bef ore the f ire started. Of f icer W illiam s testif

ied that he observed Robinson som e h ours af ter the f ire was put out, standing i n the m iddle o f the road near A lice’s house holding a gas c an. Of f icer Fore testif i ed that the gas can was f

illed with a liquid that sm elled like gasoline. As s uch, we f ind that Robinson was properly i ndicted f or f irst-degree arson in violation of s ection 9 7-17-1(1), and that his actions and the resulting burning transcended bey ond a m e re attem pt to com m it

arson. II. W

eight of the Evidence ¶12. Robinson argues that the weight of the e vidence does not f avor the State, such that he should be granted a new trial. W h en reviewing whether a conviction in a case is contrary to the overwhelm i n g w e ight of the evidence, we def er t o the discretion o f the trial j udge, and we will not order a new trial u nless c onvinced that the verdict i s so contrary to the o verwhelm ing weight o f the evidence that to allow it to stand would be to sanction an unconscionable injustice. Jackson v. State , 68 So. 3 d 709, 720 (¶37) (Miss. Ct. App. 2011) (internal quotation m arks and citations om itted). Due to the overwhelm ing evidence set f orth above, we f

ind no m erit

to this a rgum ent. For these reasons, the judgm ent of the C ircuit Court of Harrison County , First Judicial District, is A FFIRMED

. LEE, C .J., GRIFFIS, P.J., BARNES, CARLTON, FA I R , WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

7