Before Bridges, C.j., Herring, And Southwick, JJ.
The opinion of the court was delivered by: Southwick, J., For The Court:
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
DATE OF JUDGMENT: OCTOBER 4, 1996
TRIAL JUDGE: HONORABLE R. I. PRICHARD III
COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT
DISTRICT ATTORNEY: RICHARD DOUGLASS
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: BURGLARY OF A DWELLING; SENTENCED TO 10 YRS; 7 YRS TO SERVE AND 3 YRS SUSPENDED AND PLACED ON POST RELEASE SUPERVISION; SENTENCE CONSECUTIVE TO ANY PREVIOUSLY IMPOSED; PAY COURT COSTS AND RESTITUTION
Christopher Hardin McRee was convicted by a jury in the Circuit Court of Lamar County of burglary of a dwelling. McRee challenges his conviction on the basis of insufficiency of the evidence and on an allegedly erroneous jury instruction regarding the elements of being an accessory before the fact. We disagree and affirm.
On July 16, 1995, Terry and Cathy Shows departed from their residence at approximately 10:30 a.m. to attend church services near Purvis, Mississippi. As the Shows approached an intersection, they noticed a light colored Mercury Cougar traveling slowly down the highway. The Shows yielded to the vehicle. As the vehicle passed, Mr. Shows observed the passenger's covering his face with his hands. He noticed that there were two people in the car and that both were white males. At trial he could not identify the defendant, who is a white male, as the driver. However, because of a distinctive dent he was confident that this was the same Mercury Cougar as the one that the defendant possessed the next day when he was arrested on charges arising from the burglary. The Shows pulled onto the highway and proceeded in the same direction as the other vehicle. While still behind the Cougar, the Shows saw it turn off on a small driveway. After the Shows passed, they saw the Cougar re-enter the highway and go back in the direction that it had just come.
Mrs. Shows also identified the defendant's vehicle as the one seen during this trip to church. She had seen it go by their residence "several times" earlier that morning, the last time being "not long before we went to church." When both of the Shows's later saw the car as they were nearing an intersection, Mrs. Shows told her husband that she had seen the car before. She also thought that two white males were in the car but could identify neither man.
The remaining testimony that will be discussed concerns observations made by, David Lee, who during different times that same morning had the vantage point of being at three separate houses in the area, including the burglarized house. Lee and previous witnesses drew and then referred to maps drawn for the jury's benefit, but the maps have not been provided for our benefit. Thus it was with some difficulty that we received our bearings regarding the scene.
Between 10:00 and 11:00 a.m. that same morning, David Lee and his wife Amy went towards Amy's parents' house that was across but slightly down the street from the Shows's house. While within view of the Shows's residence, David Lee noticed a light colored Mercury Cougar driving through the Shows's driveway. He noticed the same car go through the driveway at least twice, then it drove away. Lee's suspicions were raised. He and his wife went to the Shows's residence, made a brief inspection of the front of the residence and grounds without noticing anything unusual, then went up the hill to their own house. From their house's porch, Lee had a view of the back of the Shows's residence and could also see cars on the Shows's curved driveway. His view was somewhat obstructed by a line of trees, but since Lee's house was on a hill he could see over the trees to the Shows's house below. Somewhat later he saw the same vehicle return, enter the Shows's driveway and pull around on the grass behind the residence. This was his description:
There's no drive area there. It's grass, it's lawn. It's behind his shop [building adjacent to the house]. It's behind his shed. It's an area that nobody ...