Kirkwood v. State, 2011 Miss. LEXIS 36

Kirkwood was convicted in Coahoma County of burglary of a dwelling, grand larceny, felony fleeing, and firearm possession by a felon; judge adjudicated habitual offender and ordered sentences with mixed consecutivity and concurrency.
Court of Appeals affirmed; Mississippi Supreme Court granted certiorari to decide if a circumstantial-evidence instruction was required for the burglary and grand larceny counts.
On October 11, 2007, Banks reported his van stolen; later Kirkwood was seen driving a van matching the description and a high-speed chase ensued.
Police recovered Smith’s missing rifles, briefcase, and a radio scanner inside the van; a deaf/mute female passenger was briefly detained and later disappeared.
Kirkwood testified he did not participate in the thefts and blamed companions; he claimed the group intended to buy drugs and that others acted without his involvement.
Trial court denied a circumstantial instruction for burglary and grand larceny; appellate court had held there was direct evidence sufficient to convict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether circumstantial-evidence instructions were required	Kirkwood	State	Circumstantial instruction required for burglary and grand larceny
Whether the evidence for burglary was direct evidence	Kirkwood	State	No direct evidence; must instruct circumstantially
Whether grand larceny was proven by direct proof	Kirkwood	State	No direct evidence; circumstantial instruction required

Manning v. State, 735 So. 2d 323 (Miss. 1999) (circumstantial evidence instruction when all proof is circumstantial)
Givens v. State, 618 So.2d 1313 (Miss. 1993) (circumstantial evidence principles)
Mack v. State, 481 So.2d 793 (Miss. 1985) (distinguishes direct vs circumstantial evidence)
Parker v. State, 962 So.2d 25 (Miss. 2007) (elements of burglary of a dwelling)
Edwards v. State, 800 So.2d 454 (Miss. 2001) (burglary elements and proof standards)