OF JUDGMENT: 12/02/2015
COURT ATTORNEYS: GREGORY MILES JOHN K. BRAMLETT, JR. L.
ABRAHAM ROWE, JR. HEATHER MARIE ABY WESLEY THOMAS EVANS HON.
JOHN HUEY EMFINGER JUDGE
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
ERIN E. BRIGGS GEORGE T. HOLMES.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL KATY
A Madison County jury convicted Xavier Collins Johnson of (1)
burglary of a dwelling; (2) aggravated assault; and (3)
conspiracy to commit credit-card fraud. The trial judge
sentenced Johnson as a habitual offender under Mississippi
Code Section 99-19-81 (Rev. 2015), and Johnson's
sentences for the burglary and assault counts were enhanced
because the victim was over the age of sixty-five. Johnson
appeals, raising seven issues. We affirm Johnson's
convictions for the reasons provided herein.
Bobby and Ann Hall (Mr. and Mrs. Hall) were an elderly
couple, in their seventies, residing in the city of Canton.
On July 30, 2014, following his daily routine, Mr. Hall awoke
at 5:30 a.m., turned on the coffee pot and went outside to
get the newspaper. Mr. Hall does not remember anything after
he went outside to get the newspaper. Mrs. Hall awoke at 6:15
a.m., and she went to the kitchen. Although she noticed that
the newspaper was still in the driveway, she believed her
husband was in the garden. She then proceeded to get dressed,
and when she returned to the kitchen and picked up her purse,
she noticed it was lighter than usual. Suspecting that
something was wrong, Mrs. Hall began searching for Mr. Hall,
and upon walking outside, she found him lying in the driveway
with a bloody face. Mr. Hall had a pulse but was
unresponsive. Mrs. Hall also saw her credit cards scattered
across the driveway.
After Mrs. Hall called 911, Mr. Hall was airlifted to
University of Mississippi Medical Center where he was
diagnosed with a traumatic brain injury, which was consistent
with an assault. Mr. Hall remained in a coma for five weeks,
and he returned home three months after the incident. He can
no longer drive his truck or RV and is unable to walk without
the assistance of a cane.
The credit-card company notified Mrs. Hall of several
fraudulent charges, and she forwarded this information to
law-enforcement officials. After an investigation, the police
arrested Ashley Williams for the fraudulent use of Mrs.
Hall's credit card. Williams first told police officials that
she had found the card in a crack in her house, but she later
admitted that Xavier Johnson had given her the card.
According to Williams, Johnson had told her that the card had
belonged to his girlfriend and that he wanted to help her
out. Johnson, however, requested half of the cash Williams
could retrieve from the card.
Law-enforcement officials arrested Johnson on August 4, 2014.
Nine months later, on May 6, 2015, Johnson was indicted for:
(1) burglary of a dwelling, in violation of Mississippi Code
Section 97-17-23 (Rev. 2014); (2) aggravated assault, in
violation of Mississippi Code Sections 97-3-7(2)(a)(i) (Supp.
2016) and 97-3-7(14)(c) (Supp. 2016); and (3) conspiracy to
commit credit-card fraud, in violation of Mississippi Code
Sections 97-19-21 (Rev. 2014) and 97-1-1 (Rev. 2014). The
grand jury also indicted Johnson as a habitual offender and
subjected him to enhanced punishments for the burglary and
aggravated-assault counts. Johnson waived arraignment, was
appointed counsel, and pleaded not guilty.
In August 2015, Investigator Robert Winn of the Madison
County District Attorney's Office conducted a search of
Velma Glass's home. Glass is Johnson's grandmother,
and Johnson lived with Glass prior to his arrest. Winn did
not have a warrant to search Glass's house, but,
according to Winn, Glass permitted him to search her home
upon request. During the search, Winn collected numerous
articles of clothing that belonged to Johnson, including a
pair of black Nike shoes. A forensic DNA analyst tested the
items collected and found the presence of human blood on the
right Nike shoe. The analyst also made a DNA comparison of
the blood to a buccal swab taken from Mr. Hall and confirmed
that the blood on the shoe was from Mr. Hall.
On November 30, 2015, Johnson's jury trial commenced. Mr.
Hall testified that Johnson previously had been to his house
on several occasions. One week before the incident, Johnson
had helped Mr. Hall move a freezer and some cabinets out of
his house. On the day before the attack on Mr. Hall, Johnson
washed and waxed half of Mr. Hall's RV. Johnson was
supposed to return the next day to finish the other half.
The State also called Williams to testify. In addition to
testifying about the above- mentioned statements she gave to
the police, Williams stated that Johnson had borrowed her car
the night before the assault on Mr. Hall, and Johnson had
agreed to take Williams's mother to work at 6:00 a.m. the
next morning. When Johnson arrived at Williams's house,
she stated that he "was looking sweaty and nervous and
he [sic] shaking his right hand." Johnson then asked for
baby wipes and used them to wipe blood off his right
knuckles. Williams further testified that Johnson had blood
on his right sock and foot. Williams told the jury that
Johnson took off black Nike shoes, threw his socks away, and
put his shoes back on.  Williams also testified about a
conversation she had with Johnson prior to trial when the two
were in the same police car on the way to court. Williams
asked Johnson why he had placed Mr. and Mrs. Hall's cell
phones under her house, to which Johnson responded: "I
shouldn't have done it." Later when Williams and Johnson were
at the courthouse, Johnson told Williams: "[I]f his wife
would have woke up, [I] would have shot her in the
After closing arguments, Johnson requested a two-theory jury
instruction, which the trial judge refused. The jury
subsequently convicted Johnson on all three counts. Johnson
was sentenced to fifty years for the burglary, forty years
for the aggravated assault, and five years for the conspiracy
to commit credit-card fraud, each sentence to run
consecutively. Johnson filed a motion for a new trial or,
alternatively, for judgment notwithstanding the verdict,
which the trial judge also denied. Johnson appealed.
OF THE ISSUES
Johnson raises seven issues on appeal, two through appointed
counsel from the Indigent Appeal Division of the Office of
the State Public Defender, and five through a pro se
supplemental brief. The issues have been restated for
I. Whether the evidence was sufficient to support the
breaking element of Johnson's burglary conviction.
II. Whether the trial judge abused his discretion by failing
to grant Johnson's requested two-theory jury instruction.
III. Whether Johnson's counsel was ineffective.
IV. Whether the indictment is void due to failure to charge
Johnson with an essential element of the statute and/or
crime, and whether the statutes are vague, ambiguous, or
unconstitutional as applied.
V. Whether Johnson was denied his due-process right to an
initial appearance according to Rule 6.03 of the Uniform
Rules of Circuit and County Court Practice.
VI. Whether Johnson was denied his due-process right to an
arraignment according to Rule 8.01 of the Uniform Rules of
Circuit and County Court Practice.
VII. Whether Johnson's speedy-trial rights were violated.
Whether the evidence was sufficient to support the
breaking element of Johnson's burglary
Johnson, through counsel, first asserts that the State failed
to provide sufficient evidence for the "breaking"
element of his burglary conviction. Johnson argues that there
was no testimony about whether Mr. Hall closed the door on
his way to get the newspaper. If Mr. Hall had left the door
open and Johnson had walked through the open door, Johnson
claims that the breaking element could not be satisfied
absent a finding of "constructive" breaking.
Finally, Johnson asserts there is no evidence of constructive
breaking because "there is no one that Johnson could
have threaten, [sic] deceived, or tricked into allowing him
permission into the home."
The standard of review for a challenge to the sufficiency of
the evidence is de novo. Brooks v. State, 203 So.3d
1134, 1137 (Miss. 2016). In applying de novo review, we
determine "whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime
beyond a reasonable doubt." Id. (quoting
Warren v. State, 187 So.3d 616, 627 (Miss. 2016)).
The State is given the benefit of "all reasonable
inferences that may be drawn" from the evidence.
Warwick v. State, 179 So.3d 1069, 1073 (Miss. 2015).
Mississippi Code Section 97-17-23(1) sets out the elements
the State must prove to convict a defendant of burglary.
Those elements are: (1) the unlawful breaking and
entering of a dwelling and (2) the intent to commit some
crime therein. Miss. Code Ann. § 97-17-23(1) (Rev.
2014). "'[B]reaking' can be actual or
constructive." Templeton v. State, 725 So.2d
764, 766 (Miss. 1998).
This Court has defined actual breaking as "any act or
force, however, slight, 'employed to effect an entrance
through any usual or unusual place of ingress, whether open,
partly open, or closed.'" Id. (quoting
Smith v. State, 499 So.2d 750, 752 (Miss. 1986)).
Constructive breaking occurs when entrance is "obtained
in consequence of violence commenced or threatened by
defendant." Id. (quoting Smith, 499
So.2d at 752-53); see also Ross v. State, 603 So.2d
857, 865 (Miss. 1992) ("Constructive breaking may occur
when a defendant gains entry by becoming violent or
threatening violence."). Additionally, constructive
breaking may be found "where an entry is effected by
fraud or intimidation." Id. (citing
Holderfield v. State, 61 So.2d 385, 386 (Miss.
Johnson points to a Court of Appeals decision for the
proposition that "the mere act of walking through a
raised, open garage door does not constitute an 'act or
force, however slight, employed to effect an entrance'
and is not a 'breaking.'"Ladd v. State, 87
So.3d 1108 (Miss. Ct. App. 2012). He then correlates the
facts at hand to those from Ladd, concluding that