IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-KA-00756-COA ANDRE DOSS A/K/A ANDRE L. DOSS A/K/A “DRE” APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/10/2015 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM W HICH APPEALED: JEFFERSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE DISTRICT ATTORNEY: ALEXANDER C. MARTIN NATURE OF THE CASE: CRIMINAL - FELONY TRIAL COURT DISPOSITION: CONVICTED OF ONE COUNT OF BURGLARY OF A DW ELLING AND SENTENCED TO TW ELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS DISPOSITION: AFFIRMED - 08/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., WILSON AND GREENLEE, JJ. LEE, C.J., FOR THE COURT: ¶1. On February 1 0, 2015, Andre Doss was c o nvicted in the C ircuit Court o f Je f f erson County , M ississippi, of b urglary of a d welling with the intent t o com m it sexual battery and

was sentenced to s erve twelve y ears in the custod y o f the Mississippi Departm ent of Corrections. O n F ebruary 13, 2015, Doss f i led a com

bined m otion to set a side the sentence and m otion f

or a judgm ent of acquittal notwithstanding the verdict as well as a m otion f ora new trial. Doss’s posttrial m otions were denied. On a ppeal, Doss claim s: (1) t he evidence

was insuf f icient to support the verdict; (2) the v erdict was against the overwhelm ing weight of the evidence; and ( 3) t he circuit court erred by f a iling to instruct the jury on the elem ents of the intended crim e of sexual battery . Finding no error, we af f irm

. FACTS ¶2. Georgia Ford testif ied that on the evening of July 4, 2014, she worked a concession stand at a rodeo in Natchez, M ississippi. Georgia returned to he r h o u s e in Fay ette, Mississippi, between 3:10 a.m . and 3:20 a.m . on July 5. S he had no t i n v i t e d a n y one over, and w a s n o t e x p ecting any com pany o ther than her son, Victor, who lived w ith her. Af ter unloading her vehicle and changing clothes, Georgia f ell a sleep on the couch. The f ront door to the house was not locked. ¶3. Georgia w oke up to Doss standing over her—naked and rubbing her hips. Georgia asked: “Dre, 1 what [ are] y o u doing in my h o u s e ? ” As Doss was f leeing, Georgia asked again: “Dre, what [ are] y ou doing in m y house? ” Victor testif ied t hat he r an out of his bedroom when he heard Georgia scream . Georgia and Victor went to the door, w here they heard rustling in t he bushes and the neighbor’s dog barking. They d ecided to drive around to look f o r Doss, but they did not f ind him

. ¶4. Georgia t e s t i f

ied that when she initially returned hom e f rom the rodeo, the outside light was on. However, w hen s h e and Victor went t o the f ront d oor af

ter Doss f led, Georgia noticed that the light was no lon g er on. W hen Georgia and Victor returned h om e f rom

1 G eo rg ia stated t h at sh e o n ly k n ew D o s s b y th e n i ck n a m e “D re” an d th at sh e k n ew h im th ro u g h h er sister. 2looking f

or Doss, Victor realized that the lightbulb h ad been unscrewed. Victor screwed the lightbulb back in, and the light cam e back on. ¶5. Wi t h t h e l i ght back o n, G eorgia looked down by the h edges a nd noticed a pair o f men’s u nderwear. She picked them up but threw them back d own b ecause t h e r e w e r e “st a i n s ” o n t h em . 1 It was later determ ined that Doss’s sem en was on the underwear. Sub s e q u e n tly , V ictor called 911. W hile Victor was o n t he phone, som eone b anged on the door and turned the doorknob. However, the identity of the person is unknown. ¶6. Doss testif

ied that he a n d G e o r g i a w ere engaged in a secret relationship. Doss had previously dated Georgia’s sister, a n d s a i d t hat was the reason no one knew about his relationship with Georgia. He stated that Georgia w o uld give him a specif ic tim e, alway s late at night, to com e over, and he would hitchhike or catch rides to Georgia’s house. ¶7. Doss stated that h e visited G eorgia and had sex with her at h er house a f e w day s prior. Theref ore, he acknowledged that it was possible that his pair of underwear was at Georgia’s house, and that m ore clothing could b e f o u n d

. B u t D oss said t hat on July 4, he attended a barbeque until 9 p.m . Then he had a couple of drinks and play ed video gam e s at his m other’s house, where he lived, until he f ell asleep at 6 a.m . o n J u ly 5. D oss’s m other testif ied that when she got h om e f

rom work, a round 4:10 a.m . , D oss was play ing video gam es. However,

on cross-exam ination, s he adm itted that she did not know where Doss had been bef ore she got hom e f

rom work. ¶8. Georgia denied any relationship with Doss and stated t hat Doss had never been in her

1 A t so m e p o in t, th e p air o f u n d erw ear w as m o v ed in to th e h o u se.

3house. Likewise, Victor d id n o t k n o w o f any rom antic involvem ent between Georgia and

Doss. DISCUSSION I. Sufficiency of the Evidence ¶9. W h en determ ining whether the State presented legally suf f icient evidence to support the verdict, “the critical i nquiry is whether the evidence s h o w s b e y o nd a reasonable doubt that [ the] accused com m itted the act charged, and that he did so under such c i r cum stances that every elem ent of t he of f e nse existed[ .]” Bush v. State , 895 S o. 2 d 836, 843 ( ¶16) (Miss. 2005). If , viewing the evidence in the light m o st f a v orable to the State, any rational trier of f ac t c o u ld have f

o und, bey ond a reasonable d oubt, that t he essential elem ents of the crim e existed, this Court will af f irm the conviction. Id. “During the trial, the jury is c h arged with the responsibility of weighing and considering the conf licting evidence of t he witnesses and determ ining whose t estim ony should be believed.” W inters v. State , 814 So. 2d 184, 187 (¶9) (Miss. Ct. App. 2002) (citation om itted). ¶10. Mississippi Code Annotated section 97-17-23(1) (Rev. 2 014) states that burglary of

a dwelling is the “breaking and entering the dwelling house o r inner door of such dwelling house of another, whether arm ed with a deadly weapon or not, and whether t here shall be at the tim e som e hum an being in such dwelling h ouse o r not, with intent to com m it som e crim e therein

. . . .” Doss argues the S tate did not prove he broke and e ntered Georgia’s house or that he intended to com m it sexual battery

. ¶11. Considering the evidence in the light m o st f avorable to the State, we f ind there was

4suf

f i cient evidence t o convict D oss of burglary of a dwelling w ith the intent to com m it sexual battery

. Georgia testif

ied that t he f

ront door was closed but unlocked. “It is well-established in Mississippi that a breaking is c o n d u c t e d by an act o f f orce, regardless of how slight,
necessary to be used in entering a building, such as turning a knob, a slight push t o f urther
open a door, or raising a l atch.” Davis v. State , 910 S o. 2d 1228, 1231 (¶8) (Miss. Ct. App. 2005) ( c i t a t i o n o mi t ted). Georgia also testif ied that she f

ell asleep on the couch and then woke up to Doss standing over her—naked a n d rubbing her hips. W h en s he asked D oss what he was doing, he f

led. A DNA t est c o n f

i r m ed that the sem en f

ound on the underwear in Georgia’s y ard b elonged to Doss. And both Georgia and her son, Victor, testif i ed that the outside light was of

f because the lightbulb had been unscrewed. ¶12. Although Doss testif i ed that he and Georgia were involved in a relationship, no other witnesses or evidence provided additional support f or this claim

. D oss also t estif ied that he would catch rides t o Georgia’s house, but n one of the individuals who ever dropped Doss of f at Georgia’s house testif

ied. Georgia denied the relationship, and Victor stated that he did

not know of a relationship between Georgia and Doss. Georgia also stated t hat this was the f irst tim e Doss had b een in h e r house, which was supported b y Victor’s testim o ny t hat he had never seen Doss inside of the house. ¶13. D o s s a l s o t e s t i f

i e d t hat, on the night of July 4 , he went t o a barbeque, had a f e w d r i nks, and then play ed video gam es until 6 a.m . on July 5. Doss’s m other testif ied in h i s def ense, but she adm i tted that s he did not h ave k nowledge of Doss’s whereabouts bef ore she got hom e f

rom work, which was around 4:10 a.m

.

5¶14. I n l i g h t o f these f acts, we f ind that any rational juror could have f ound b e y o n d a reasonable doubt that all t he elem ents h ad bee n me t b y t h e S tate in proving burglary of a dwelling. Furtherm ore, we f ind the r e w a s suf

f icient evidence that Doss had the intent to

com m it sexual b attery

. “Intent is an em otional o peration of the m ind, a nd is usually shown by acts and declarations of the def endant coupled with f

acts and circum stances surrounding him at the tim e.” Newburn v. S t a t e , 2 0 5 S o . 2d 260, 265 (Miss. 1967). “ [ A d]ef endant’s intention is m anif

ested largely

by the things he does.” Id. This issue is without m erit.
II. Overw helm ing Weight of the Evidence ¶15. “W hen reviewing a denial of a mo t i o n f o r a new trial based on a n objection to the weight of the evidence, w e will only disturb a verdict when it is so contrary t o t he overwhelm ing w eight of the evidence that to allow it to stand would s a n c t i on an unconscionable injustic e . ” B ush , 895 So. 2d at 844 (¶18). The evidence is viewed in the light m ost f

avorable to the verdict. Id. From t he evidence previously described, we cannot f ind that allowing the verdict to stand would sanction an unconscionable injustice.
III. Jury Instruction on Elem ents ¶16. T h e j u r y w as instructed on the essential e lem ents o f the crim e of bur g l a r y

— ( 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 t herein.” Miss. Code Ann. § 9 7-17-23(1). In

a d d i t i o n , t he jury instructions specif ically i dentif

ied sexual b attery as the crim e D os s i n t e n d e d

to c om m it vis-à-vis the b urglary

. See id. Doss argues that the j u r y s h o uld also have been instructed on the elem ents of the intended crim e o f

sexual battery

.

6¶17. W e review Doss’s c laim f or p lain error, 2 which “requires the f inding of not only an
error, but one that resulted in a ‘m iscarriage of justice’ af

f ecting the d ef

endant’s f undam ental rights.” W

indless v. State , 185 So. 3d 956, 961 (¶11) (Miss. 2015). ¶18. In W

indless and Quinn v. State, 191 So. 3 d 1227 ( Miss. 2016), o ur supr e me c ourt addressed argum ents very s im ilar to Doss’s argum ent here. W indless a rgued the trial judge f a i led to instruct the jury on the elem ents of larceny as the “underly ing o f f ense” of the burglary

. W

indless , 18 5 S o. 3d at 960 (¶9). And Quinn argued t he trial judge f ailed to instruct the j ury on the elem ents of assault. Quinn, 1 91 So. 3 d at 1232 ( ¶20). “Our caselaw holds that only the i n t e n t t o c o mm it som e crim e need be proven in order to establish the

s e c o n d e lem ent of burglary —the State need not also prove the elements of that int e n d e d crim e.” I d

. at 1233 (¶24) (em

phasis in original). The suprem e court stated that “larceny ” is

com m only understood t o m ean stealing, a nd “assault” is com m only u nderstood to m ean causing or attem

pting to cause bodily

injury to another. Id. at (¶25). Likewise, we believe “sexual battery ” is com m only understood to m ean s exual penetration with a n o t h e r p erson without his or her consent. ¶19. The State subm i tted suf f icient evidence f

or the j ury to f

ind that Doss b roke into and entered Georgia’s house with t he intent to com m it s exual ba t t e r y . See id. This issue is

2 T h e co u rt rep o r

ter in f o rm ed th is C o u rt th a t th e j u ry - in stru ctio n s c o n f eren ce w as n o t reco rd ed

. T h eref

o re, a tran scrip t is n o t av ailab l e f o r rev iew

. T h e S tate m ak es th e f o llo w i n g ass u m p tio n : “[ S ] i n ce th ere w as n o p ro p o sed j u ry in stru ctio n su b m i tted b y t h e d ef en se co n tain in g th e elem en ts o f [ sex u al b attery ] , th ere w o u ld h av e b een n o o b j e c t i o n to th e in stru ctio n s o n th is p o i n t.” A n d D o ss “su b m its th at th e trial co u rt p la i n ly erred b y f ailin g to i n stru ct th e j u ry o n th e essen tial e l e me n t s o f th e u n d e rly in g crim e o f sex u a l b attery .” (E m p h asis ad d ed ) . F o r th ese reaso n s, w e rev iew th is issu e f o r p lain erro r . 7without m erit.

¶20. T H E J U D G M E N T O F T H E C I RCUIT C OURT OF JEFFERSON CO U N T Y O F CONVICTION OF B URGLARY OF A DWELLING AND SENTENCE OF TWELVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JEFFERSON COUNTY. IRVING AND G RIFFIS, P.JJ., BARNES, I SHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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