Blythe v. State
141 So. 3d 407
Miss. Ct. App.2013Background
- On Oct 23, 2008, Caldwell returns home to Olive Branch and finds a strange truck blocking the garage with doors open and the garage light on.
- Two men exit the Caldwell residence and drive away; Blythe is the passenger later stopped by police.
- A wire coathanger fragment is found in the driver’s pocket and burglary tools, including wire pliers, screwdrivers, gloves, and two flashlights, are located in the truck.
- Nothing is missing from Caldwell’s home after the incident, and Blythe is indicted on conspiracy, burglary, and burglary-tools charges.
- Blythe is convicted of burglary of a dwelling on December 14, 2011 and sentenced to 25 years, to run consecutively with other sentences, with credit for time served.
- Post-trial motions are denied; Blythe files a timely appeal which is later deemed timely by the circuit court, and the appeal proceeds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance of counsel | Blythe argues defense counsel failed to request trespass and circumstantial-evidence instructions. | State contends trial strategy may have rationally foregone those instructions and is not ineffective assistance. | No ineffective assistance; strategy not proven deficient. |
| Jury Instruction S-5 on inference of intent | S-5 improperly instructed the jury on intent to steal and misstate the law. | S-5 correctly stated that intent to steal may be inferred from breaking and entering at night. | Instruction S-5 was proper and not an abuse of discretion. |
| Failure to instruct on underlying larceny elements | Jury instruction omitting larceny elements was reversible error. | State required to prove burglary elements, and lack of specific larceny instruction does not require conviction reversal. | No reversible error; larceny elements not required to be stated as an element of burglary here. |
| Sufficiency and weight of the evidence | Evidence insufficient to sustain conviction or weight warrants new trial. | Evidence supports conviction; weight not so against the overwhelming weight as to negate the verdict. | Evidence sufficient; denial of JNOV affirmed; weight of the evidence denial affirmed. |
Key Cases Cited
- Jefferson v. State, 977 So.2d 431 (Miss.Ct.App.2008) (ineffective assistance standard; Strickland governs)
- Aguilar v. State, 847 So.2d 871 (Miss.Ct.App.2002) (adequacy of record on direct appeal for ineffectiveness)
- Brown v. State, 961 So.2d 720 (Miss.Ct.App.2007) (circumstantial-evidence instruction not required where eyewitness exists)
- Crawford v. State, 839 So.2d 594 (Miss.Ct.App.2003) (inference of intent to steal may arise from breaking and entering)
- Daniels v. State, 107 So.3d 961 (Miss.2013) (failure to include underlying crime in burglary instruction reversible error)
- Bolton v. State, 113 So.3d 542 (Miss.2013) (instruction permitting conviction of any crime inside dwelling is fatally flawed)
- Gillum v. State, 468 So.2d 856 (Miss.1985) (general burglary intent considerations)
- Nichols v. State, 42 So.2d 201 (Miss.1949) (burglary presumptions and nighttime entry considerations)
- Fulgham v. State, 12 So.3d 558 (Miss.Ct.App.2009) (definition of breaking and entry behaviors)
- Genry v. State, 767 So.2d 302 (Miss.Ct.App.2000) (breaking defined for burglary purposes)
- Wright v. State, 9 So.3d 447 (Miss.Ct.App.2009) (evidence inference standards for burglary cases)
- Slay v. State, 241 So.2d 362 (Miss.1970) (larceny intent standards)