281 So.3d 229
Miss. Ct. App.2019Background
- On December 21, 2013, James Foster was arrested after a truck leaving the scene contained a stove and dishwasher taken from an unoccupied rental house; Foster admitted entering the house and taking the appliances to sell as scrap.
- Foster was charged with burglary of a business under Miss. Code Ann. § 97-17-33 and convicted by a Hinds County jury; sentenced as a habitual offender to seven years.
- At trial, the State introduced prior photographs (taken weeks/months before the incident) showing a solid back door open and a storm door closed; no officer inspected the property after the alleged burglary.
- Foster told police he entered because the “back door was open.” No evidence established the door’s condition on the date of the offense or that Foster used force to open any door.
- The trial court denied a lesser-included trespass instruction and denied Foster’s directed verdict/JNOV motion; on appeal the court reviewed sufficiency of evidence, focusing on the statutory “breaking” element.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether evidence proved the statutory element of “breaking” for burglary of a business | State: photographs plus Foster’s admission support finding of breaking | Foster: he entered through an already-open back door; no proof he used force | Reversed and rendered — State failed to prove breaking beyond a reasonable doubt |
| Whether jury should have received a lesser-included trespass instruction | State: convicted of burglary; instruction not necessary | Foster: trespass is a lesser-included offense appropriate if breaking not proved | Court declined to address the instructional error because reversal on breaking benefitted Foster |
Key Cases Cited
- Ladd v. State, 87 So. 3d 1108 (Miss. Ct. App.) (walking through an open garage door does not satisfy breaking for burglary)
- Watson v. State, 123 So. 3d 446 (Miss. 2013) (supreme court agreed that merely walking through an open door does not satisfy breaking)
- Davis v. State, 910 So. 2d 1228 (Miss. Ct. App.) (slight force such as turning a knob or raising a latch can constitute a breaking)
- Christmas v. State, 10 So. 3d 413 (Miss. 2009) (discussing constructive breaking depending on facts)
- Warren v. State, 187 So. 3d 616 (Miss.) (standard for viewing sufficiency of evidence on appeal)
- Edwards v. State, 469 So. 2d 68 (Miss.) (appellate standard requiring reversal where facts and inferences point to defendant on any element)