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Fontenot v. State

Court of Appeals of Mississippi

December 3, 2019

NICHOLAS PAUL FONTENOT A/K/A NICHOLAS FONTENOT A/K/A NICHOLAS PAUL FORTENOT APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE 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

          BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

          WESTBROOKS, J.

         ¶1. 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.

         FACTS AND PROCEDURAL HISTORY

         ¶2. 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, [1] 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 same.

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. 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 recovered.

         ¶7. 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."

         STANDARD OF REVIEW

         ¶8. 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. 2011)).

         ¶9. 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 omitted).

         ¶10. 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.

         (Citations 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. ...


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