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Johnson v. State

Supreme Court of Mississippi, En Banc

December 7, 2017

XAVIER COLLINS JOHNSON a/k/a XAVIER JOHNSON
v.
STATE OF MISSISSIPPI

          DATE OF JUDGMENT: 12/02/2015

         TRIAL 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 GERBER.

          CHAMBERLIN, JUSTICE.

         ¶1. 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.

         FACTS AND PROCEDURE

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.[1] 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.

         ¶5. 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.

         ¶6. 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.

         ¶7. 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.

         ¶8. 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. [2] 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."[3] 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 head[.]"

         ¶9. 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.

         STATEMENT OF THE ISSUES

         ¶10. 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 clarity.

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.

         DISCUSSION

         I. Whether the evidence was sufficient to support the breaking element of Johnson's burglary conviction.

         ¶11. 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."

         ¶12. 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).

         ¶13. 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).

         ¶14. 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. 1952)).

         ¶15. 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.'"[4]Ladd v. State, 87 So.3d 1108 (Miss. Ct. App. 2012). He then correlates the facts at hand to those from Ladd, concluding that ...


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