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Tutor v. State

Court of Appeals of Mississippi

November 6, 2018

JIMMY JOE TUTOR A/K/A JIMMY TUTOR A/K/A JIMMY J. TUTOR APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/19/2017

          CALHOUN COUNTY CIRCUIT COURT TRIAL JUDGE HON. JOHN ANDREW GREGORY

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: BENJAMIN SUBER GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER

          DISTRICT ATTORNEY: BENJAMIN F. CREEKMORE

          BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

          BARNES, JUDGE

         ¶1. Jimmy Joe Tutor was convicted of burglary of a dwelling and sentenced to twenty-five years in the custody of the Mississippi Department of Corrections as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). Appealing his conviction, Tutor argues that his sentence as a habitual offender was illegal because the underlying offenses to prove his habitual-offender status arose from the same incident and that the verdict was against the overwhelming weight of the evidence. We find no error in the trial court's ruling that his underlying felonies were separate and distinct crimes, supporting Tutor's habitual-offender status. With regard to the weight-of-the-evidence argument, this issue is procedurally barred because Tutor failed to file a motion for a new trial. Alternatively, this argument is without merit. Therefore, finding no error, we affirm the judgment.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On November 25, 2013, Preston McGreger returned to his home in Calhoun County, Mississippi, to find that it had been burglarized. The front door frame was busted, and three televisions (two Sanyos and one Vizio) and a briefcase containing personal documents were missing. Preston's wife, Candi, reported the burglary to the sheriff's department. Later that evening, while searching Craigslist, Preston saw a listing for a package deal with three televisions matching the description of the ones stolen from his home. The phone number associated with the listing was from Water Valley, Mississippi. Candi had a friend call to inquire about the televisions and to set up a meeting to buy them at the Dollar General store in Vardaman. Candi also contacted Sheriff's Deputy Juston Robertson to apprise him of the situation.

         ¶3. When the sellers-Tutor and Jessica Leister, Tutor's girlfriend- arrived at the Dollar General, Deputy Robertson and another officer approached Leister's vehicle, a tan Ford Explorer, and informed the couple that they were investigating a burglary. It was determined that the television in the vehicle was not one of the televisions stolen from the McGregers, but because the television listed for sale on Craigslist was a completely different model, Deputy Robertson became suspicious and took Tutor and Leister in for questioning. He obtained a search warrant for Leister's home in Water Valley, where law enforcement recovered three televisions and a briefcase. The McGregers identified the recovered items as the ones stolen from their home.

         ¶4. Tutor and Leister were indicted for burglary of a dwelling on April 2, 2014. Pursuant to a plea agreement with the State, Leister entered a guilty plea in exchange for her testimony at Tutor's trial, which was held on April 18-19, 2017. The McGregers both testified as to the events that transpired as described above. Tanner Bailey, a neighbor of the McGregers, also testified that on the day of the burglary, he saw a tan Ford Explorer about 50 yards from the McGregers' home and a woman standing in front of the vehicle.

         ¶5. Leister testified that in November 2013, Tutor had been living with her in Water Valley for approximately six months. They were visiting his family in Calhoun County that day and went for a drive. Tutor told her to stop at a house, saying he knew the people would not be home. She said he brought three televisions out of the home and put them into her car. Regarding the briefcase, she said Tutor claimed his fingerprints were on it. Later, when Candi's friend called about the televisions and began asking a lot of questions, Leister became nervous; so she suggested to Tutor that they take her television instead of the stolen ones to meet the buyer.

         ¶6. Defense counsel moved for a directed verdict, which the trial court denied, and the defense rested. After the jury returned a guilty verdict, defense counsel made an ore tenus motion for a judgment notwithstanding the verdict (JNOV). The court denied the motion, and requested that counsel file a written motion for the purposes of the timing of the appeal. However, no posttrial motions were filed. On June 22, 2017, the trial court entered an order nunc pro tunc to April 20, 2017, granting Tutor a sixty-day "extension of any deadlines and enlargement of time to file any posttrial motions or notices." Tutor filed a notice of appeal on ...


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