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Presley v. State

Court of Appeals of Mississippi

November 14, 2017

SPENCER PRESLEY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/20/2016

         COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT HON. ALBERT B. SMITH III TRIAL JUDGE

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES.

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT.

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, J.

         ¶1. Spencer Presley was convicted of burglary of an automobile in the Tunica County Circuit Court and sentenced, as a nonviolent habitual offender, to seven years in the custody of the Mississippi Department of Corrections (MDOC), without eligibility for parole. The trial court also ordered Spencer to pay a $5, 000 fine. Spencer now appeals his conviction and sentence. Finding no arguable appellate issues in this case, and finding that the trial court's judgment of conviction is supported by the record, we affirm Spencer's conviction and sentence. See Lindsey v. State, 939 So.2d 743, 748 (¶18) (Miss. 2005).

         FACTS

         ¶2. Spencer and Patricia Presley married in 1998 and later separated in 2010. The record reflects that on the morning of May 1, 2016, Patricia awakened to a banging sound outside of her house. Patricia testified that she looked out of a window and saw Spencer standing beside her 2011 Dodge Caliber "knocking" at the driver's side backseat window with a tire iron. After Patricia called the police, she looked out of the window and saw Spencer driving off in his vehicle. When the police arrived, Patricia went outside and observed a broken driver's side backseat window and the driver's door left open. Patricia testified that the glove compartment was open, and the owner's manual and registration documents were missing, along with several CDs and a cup containing loose change. Patricia also testified that she purchased the car in 2011, after she and Spencer separated, and the title to the car is in her name only.

         ¶3. At trial, Spencer admitted being in Tunica on May 1, 2016. He also admitted to driving by Patricia's home early that morning. Spencer stated that he was going by Patricia's house to see her. Spencer testified that as he drove by Patricia's house, he saw the car door open and the car window broken. Spencer stated that he kept driving and called Patricia on his cell phone, but she did not answer. Spencer testified that he called Patricia "because I figured that they probably would accuse me of doing this. So . . . I kept going." Spencer asserted that he never got out of the car. He also testified that he did not break the windows out of Patricia's vehicle or take anything from the vehicle.

         ¶4. During cross-examination, Spencer claimed that Patricia lied about seeing him hit her car with a tire iron. Spencer explained "at the time [she called the police], she felt that I had did it, and then she had a change of heart, as far as me doing it." He also claimed that Patricia was made "by force" to testify against him, and that "she wanted to drop the charges."

         ¶5. After a trial held on October 17, 2016, the jury found Spencer guilty of burglary of an automobile and the trial court sentenced him, as a nonviolent habitual offender, to seven years in the custody of the MDOC, without eligibility for parole. The trial court also ordered Spencer to pay a $5, 000 fine.

         ¶6. Spencer now appeals his conviction and sentence. The Office of State Public Defender, Indigent Appeals Division, represents Spencer, and his attorney filed a Lindsey brief asserting that he found no error in the ...


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