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Foster v. State

Court of Appeals of Mississippi

March 26, 2019

JAMES FOSTER A/K/A JAMES H. FOSTER A/K/A JAMES FOSTER JR. A/K/A JAMES HENRY (JIMMY) FOSTER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 10/18/2017

          HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. JEFF WEILL SR.

          ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: JUSTIN TAYLOR COOK GEORGE T. HOLMES

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON

          BEFORE BARNES, C.J., GREENLEE AND TINDELL, JJ.

          BARNES, C.J.

         ¶1. A Hinds County jury found James Foster guilty of burglary of a business. Foster was sentenced to seven years in the custody of the Department of Corrections as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), without eligibility for parole. Foster filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, arguing that the State failed to prove a breaking occurred, which is a required element of business burglary.[1] Foster timely filed a notice of appeal. Foster argues the evidence is insufficient to support a conviction for burglary of a business, and the proposed jury instruction for the lesser-included offense of trespassing should have been given. Because the State presented insufficient evidence for the element of "breaking," we reverse and render Foster's conviction for burglary of a business.

         FACTS

         ¶2. On December 21, 2013, Officer Desmond Barney with the Jackson Police Department (JPD) was dispatched to a house on 1008 Brookley Street in Jackson, Mississippi, due to a suspected burglary. Officer Barney was advised to be on the lookout for two white males and one white female in a blue Ford F-150 pickup truck. En route to the scene, Officer Barney passed a vehicle matching the description traveling away from the scene on nearby McDowell Road. Officer Barney conducted a traffic stop on the vehicle, which was occupied by three individuals matching the suspects' descriptions. A stove and a dishwasher were in the back of the truck. Foster was one of the occupants of the truck. After arresting the suspects, Officer Barney never went to investigate the dwelling.

         ¶3. The three suspects were transported to "city holding" and interviewed by Detective Virgil Jarman with the property-crimes division of JPD. Foster told Detective Jarman that he had previously lived at the house years ago. He was walking around the location when he noticed the back door was open. He walked into the house, took the dishwasher and stove, and called his girlfriend's son to come pick him up. They came to the location, loaded the appliances into the truck, and drove off before they were stopped and arrested by law enforcement. Foster explained that they had been trying to make some money by "scrapping"-picking up items and selling the scrap metal for money. During the interview, Foster admitted to wrongfully taking the items, but he explained that once he got to the dwelling "things kind of got out of control." During his investigation, Detective Jarman never went to the house.

         ¶4. John Ketchum, a self-employed real-estate broker, testified that in December 2013, the property was an unoccupied dwelling owned by his former client, True Wholesale Houses of Mississippi. Ketchum was hired by the company's owner, Mike Hanks, to take over the property's management, evaluate the rental property, and obtain quotes to renovate it. The property would be offered as a rental home "once it was operational." Ketchum testified the building was not "a place of business" but instead a single-family residential dwelling. But Detective Jarman explained that the house was considered a business for purposes of these charges because "any time you have a house for rent, it's listed as a business" since the property makes money for the owner through rent. Ketchum did not know the last time the house had been inhabited. Ultimately, the property was never renovated because Hanks never accepted the quotes to renovate it.

         ¶5. During Ketchum's examination, two photographs of the dwelling's kitchen were entered into evidence. Ketchum testified he had taken these photographs some time between September through November 2013, before the incident. The photograph labeled Exhibit Two shows both a storm door and a solid metal or wooden back door. The storm door is shut, but the solid back door is open. The other photograph depicts the stove and dishwasher in the kitchen. Ketchum did not know if the appliances were operational.

         ¶6. After the State rested, Foster moved for a directed verdict, claiming the State had not proven the residence was a place of business.[2] The court overruled Foster's motion. Jury instructions on the elements of petit larceny and trespass ...


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