NICHOLAS PAUL FONTENOT A/K/A NICHOLAS FONTENOT A/K/A NICHOLAS PAUL FORTENOT APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 10/01/2018
HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, HON.
LISA P. DODSON TRIAL JUDGE
ATTORNEYS FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
HUNTER NOLAN AIKENS
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
BILLY L. GORE
DISTRICT ATTORNEY: JOEL SMITH
J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.
Nicholas P. Fontenot was convicted of one count of burglary
of an automobile pursuant to Mississippi Code Annotated
section 97-17-33(1) (Rev. 2014) and sentenced to serve seven
years in the custody of the Mississippi Department of
Corrections (MDOC). Fontenot filed a motion for judgment
notwithstanding the verdict (JNOV) or, alternatively, a new
trial, which the circuit court denied. Fontenot now appeals,
arguing that the circuit court erred in denying his motion
for a JNOV or a new trial. Finding no error, we affirm.
AND PROCEDURAL HISTORY
On June 27, 2017, James Smith parked his pickup truck in the
parking lot of a Subway restaurant in Gulfport, Mississippi.
Both doors were left unlocked, and the vehicle's windows
were down. Smith went into the Subway where his then fiancee,
Tina Lewis,  was working as a sandwich artist.
Approximately thirty minutes into his visit, Smith looked
outside and observed a man, later identified as Nicholas
Fontenot, in the passenger side of Smith's truck. Neither
Smith nor Lewis witnessed how Fontenot got into the vehicle.
Smith testified that he walked outside, confronted Fontenot,
and asked, "What are you doing in my truck?" Smith
testified that the glove box, which had been closed, was open
and that various items were strewn about the inside of the
truck. Fontenot acted confused and responded, "This is
my friend's truck." When Lewis later came out and
asked Fontenot why he was in the truck, his response was the
The details are unclear, but it was reported that Smith
forcibly pulled Fontenot out of the truck and may have shoved
him. The police were called, and at some point during the
exchange with Smith, Fontenot ran away. Smith ran after
Fontenot but was unable to catch him.
Officer Luis Garcia of the Gulfport Police Department was the
first responder to arrive and later testified that the
suspect was described as a white male with a stitched cut on
the back of his head. Officer Garcia also testified that an
unidentified witness observed and reported the tag number of
a brownish-gold F-150 pickup truck that Fontenot was seen
riding away in.
Officer Brad Sumrall arrived next and pursued the truck based
on the description and tag number provided to Officer Garcia.
After locating the vehicle about a half a mile away, Officer
Sumrall initiated a traffic stop. The driver, Willie Jackson,
testified that Fontenot flagged him down and approached his
vehicle less than a block away from the Subway. Jackson
testified that Fontenot had claimed to have run out of gas
and Jackson had agreed to give him a ride. Jackson indicated
that after getting into his truck, Fontenot "looked back
several times," and it made Jackson curious. Noting that
Fontenot matched the description of the suspect, Officer
Sumrall took him into custody and returned to the Subway.
Back at the sandwich shop, Smith and Lewis identified
Fontenot as the man with the distinctive scar on the back of
his head that they had observed in Smith's truck.
Smith reported that none of his belongings were missing, but
Lewis testified that she had left her grandmother's
blue-stoned ring in the glove box and that the ring was
missing after the incident with Fontenot. The ring was never
On December 4, 2017, Fontenot was indicted for automobile
burglary in violation of Mississippi Code Annotated section
97-17-33(1). On September 25, 2018, a trial ensued on the
matter in the Harrison County Circuit Court. At the
conclusion of the prosecution's case in chief, Fontenot
moved for a directed verdict, asserting that the evidence
presented was insufficient to prove that Fontenot "stole
out of the truck." The circuit court denied the motion,
and the trial proceeded. Fontenot renewed his motion for a
directed verdict after resting his case; again, the court
denied the motion. At the conclusion of the trial, the jury
received instructions on the crime of burglary and the
lesser-included offense of trespassing. Fontenot was found
guilty of burglary and on October 1, 2018, was sentenced to
serve seven years in MDOC's custody. On October 2, 2018,
Fontenot filed a motion for a JNOV or, alternatively, a new
trial. The circuit court entered an order denying the motion
on October 15, 2018. On appeal, Fontenot maintains that the
evidence presented by the State was "insufficient to
support the verdict," which was "against the
overwhelming weight of the evidence."
This Court reviews the grant or denial of a motion for JNOV
de novo. Shepherd v. State, 270 So.3d 962,
966 (¶8) (Miss. Ct. App. 2018) (citing Estate of
Gardner v. Gardner, 228 So.3d 921 (¶19) (Miss. Ct.
App. 2017)). "A motion for a JNOV challenges the legal
sufficiency of the evidence, and where there is substantial
evidence to support the verdict, we will affirm the denial of
a JNOV." Id. (citing In Town Lessee Assocs.
LLC v. Howard, 67 So.3d 711, 718 (¶22) (Miss.
Substantial evidence has been defined as "information of
such quality and weight that reasonable and fair-minded
jurors in the exercise of impartial judgment might have
reached different conclusions." Daniels v.
State, 107 So.3d 961, 963 (¶10) (Miss. 2013).
"When reviewing a motion for a JNOV, the trial judge is
required to accept as true all of the evidence that is
favorable to the State, including all reasonable inferences
that may be drawn therefrom, and to disregard evidence
favorable to the defendant." Bryant v. State,
151 So.3d 1025, 1029 (¶14) (Miss. Ct. App. 2014)
(internal quotation mark omitted). "We will reverse only
where with respect to one or more of the elements of the
offense charged, the evidence so considered is such that
reasonable and fair minded jurors could only find the accused
not guilty." Id. (internal quotation marks
With regard to a denial of a motion for new trial, the
Mississippi Supreme Court in Lindsey v. State, 212
So.3d 44, 45 (¶4) (Miss. 2017), held:
When reviewing a denial of a motion for a new trial based on
an objection to the weight of the evidence, we will only
disturb a verdict when it is so contrary to the overwhelming
weight of the evidence that to allow it to stand would
sanction an unconscionable injustice. The evidence must be
weighed in the light most favorable to the jury's
verdict. If the verdict is against the overwhelming weight of
the evidence, the proper remedy is to grant a new trial, but
this remedy should be used only in exceptional cases where
the evidence preponderates heavily against the verdict.
and internal quotation marks omitted). "This Court will
reverse only if the Court determines that the trial court
abused its discretion in denying a motion for a new
trial." Butler v. ...