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Grayer v. State

Court of Appeals of Mississippi

August 6, 2019

MELVIN GRAYER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE 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.

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

          McCARTY, J.

         ¶1. 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.

         FACTS

         ¶2. 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.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         DISCUSSION

         I.Trespass ...


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