OF JUDGMENT: 01/29/2018
HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON.
CHRISTOPHER LOUIS SCHMIDT JUDGE.
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
HUNTER NOLAN AIKENS.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA McCLINTON.
DISTRICT ATTORNEY: JOEL SMITH.
BARNES, C.J., GREENLEE, TINDELL AND McCARTY, JJ.
After his first trial ended in a mistrial, Melvin Grayer was
convicted of burglary, and ultimately sentenced as a habitual
offender to serve fourteen years in the custody of the
Mississippi Department of Corrections. Because the court
refused to give a jury instruction on the lesser-included
offense of trespass, we reverse and remand for a new trial.
Predawn on a spring day in 2017, Officer Victor Moreno and
Officer Zachary Couey of the Gulfport Police Department
responded to an alarm call at the Tabernacle Faith Ministries
Church in Gulfport. Officer Moreno's body camera recorded
his arrival and what happened afterward. Both officers
noticed a broken window on the south side of the church with
its screen on the ground nearby. They entered the church
through an unlocked door located near the broken window.
Officer Moreno noticed that an alarm panel and a thermostat
had been ripped from the wall.
Entering a kitchen area, Officer Moreno saw a man face down
on the floor. The man's hands were underneath his body,
and a flashlight was resting on the floor beside him. The
officers demanded he identify himself. The man was
unresponsive. The situation quickly escalated with the
officers using a burst of shouted profanity. Still, the man
remained face down. The officers cautiously approached him,
cuffed his hands behind his back, and the man identified
himself as Melvin Grayer. Officer Moreno searched him,
finding an odd assortment of objects-an identification card,
multiple rolls of masking tape, batteries, a jersey, and a
bottle of liquid.
Officer Moreno continued to search the church and noticed a
room that looked as if it had been ransacked-drawers were
pulled out, items were on the floor, and another alarm had
been pulled from the wall. By this time, Pastor Anthony
Thompson had arrived at the church. The pastor testified that
the room with the drawers pulled out was the usher's room
and contained church supplies. The pastor indicated that the
items usually contained in these drawers were not necessarily
missing but just not where they belonged. The pastor
explained that he had closed everything up before securing
the church the night before.
Officer Couey questioned Grayer, who denied that he was
committing a burglary. Instead, Grayer told the officer that
he had seen a man he knew named Larry Smith break the window
of the church and then run away. Grayer admitted that he did
go through the broken window into the church but that he only
did it so he could have a place to sleep. Later, the officer
would come to believe that the "Larry Smith," who
Grayer saw, was actually an alias Grayer used for himself.