OF JUDGMENT: 05/10/2018
COUNTY CIRCUIT COURT HON. CHRISTOPHER A. COLLINS TRIAL JUDGE
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
JUSTIN TAYLOR COOK PHILLIP W. BROADHEAD
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
MATTHEW W. WALTON
DISTRICT ATTORNEY: STEVEN SIMEON KILGORE
GREENLEE, P.J., WESTBROOKS AND LAWRENCE, JJ.
A Leake County jury found Jacob Johnsey guilty of burglary of
an unoccupied dwelling. As a result of his conviction,
Johnsey was sentenced to serve seven years as a habitual
offender pursuant to Mississippi Code Annotated section
99-19-81 (Rev. 2018). Johnsey now appeals and claims that the
circuit court violated his constitutional right to assert his
own defense theory and to have the jury properly instructed.
We affirm the circuit court's finding that Johnsey was
not entitled to a lesser-included offense instruction on
trespass and affirm.
The facts leading up to Johnsey's conviction are simple.
Danny Freeny owned a home and property located at 4198
Dossville Road in Leake County, Mississippi. The home
previously belonged to Danny's mother-in-law. Danny kept
cows on the property, so he made a point to visit the
property twice a week. On December 20, 2014, Danny went to
check on the property. The home should have been vacant,
because no one lived there. This time, however, instead of
merely finding his cows, Danny also found an unfamiliar black
Cadillac under the carport.
Danny parked his tractor behind the Cadillac to block it in.
He noticed a person named Tasha Vickers "slouched
down" in the front passenger's seat. Danny did not
know Tasha. As Tasha pressed the horn of the Cadillac, Danny
saw Johnsey exit the home's utility room. Danny testified
that Johnsey said he was "looking for so and so"
and that Danny said he was going to call 911. Suddenly,
Tasha's brother Troy ran from the utility room and jumped
into the Cadillac through an open window. Johnsey got into
the vehicle and drove away. Danny gave chase on the tractor
and actually hit the Cadillac with his tractor. Johnsey,
Tasha, and Troy all managed to get away, and Danny called
Deputy Vince Carter with the Leake County Sheriff's
Department arrived shortly thereafter. As he was
investigating, Deputy Carter and Danny both noticed the
doorframe to the home was damaged. Deputy Carter testified
that the damage appeared to be from "some type of object
[used] to pry the utility door open." Marilyn Freeny,
Danny's wife, testified that inside the home she noticed
that the dresser drawers and some of the cabinets were open.
There were also drawers in the kitchen that were open and
appeared to have been "rummaged" through. Both
Marilyn and Danny testified that these drawers and cabinets
were never left open. Deputy Carter testified that the
appearance of the drawers and cabinets made it seem like
someone was "looking for something."
Johnsey was arrested after Danny provided his license plate
number to police. Deputy Carter testified that the license
plate number showed that the Cadillac was registered to
Johnsey. Johnsey admitted being at the home on December 20,
2014, and admitted to trespassing. However, he claimed that
he was never inside the home and had never met Danny.
Johnsey's version of events was that he and Troy were
merely asking for directions because they were not from the
Leake County area. Johnsey testified that the utility-room
door was open but that neither he nor Troy opened the door.
At trial, the defense proposed Jury Instruction D-7, which
was a lesser-included offense instruction on trespass. The
State objected and argued that the jury could not find that
Johnsey was trespassing because "he had no knowledge
that he was not allowed on the property" and that
"[t]here has been no testimony that would support a
finding of trespass under the laws of trespass." The
circuit court refused the instruction because "[t]here
[was] an element that [was] not in ...