CHARLES NAYLOR a/k/a CHARLES EDWARD NAYLOR a/k/a CHARLES E. NAYLOR a/k/a CHARLES ED NAYLOR v. STATE OF MISSISSIPPI
NO. 2017-KA-00604-SCT
IN THE SUPREME COURT OF MISSISSIPPI
04/05/2018
DATE OF JUDGMENT: 03/03/2017; TRIAL JUDGE: HON. JON MARK WEATHERS; TRIAL COURT ATTORNEYS: ZACHARY M. VAUGHN, JAMES LANE, CANDANCE L. RICKMAN, PAUL B. JOHNSON, III, TANGI A. CARTER, ROBERT WHITACRE, T. MICHAEL REED, PATRICIA BURCHELL, JASON DARRELL LITTLE, JR.; COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT; ATTORNEY FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES; ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA McCLINTON; DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL; NATURE OF THE CASE: CRIMINAL - FELONY; DISPOSITION: AFFIRMED - 04/05/2018
BEFORE KITCHENS, P.J., BEAM AND CHAMBERLIN, JJ.
¶1. After discovering an interloper inside a parked, inoperable Volvo vehicle that he knew belonged to Bobby Brewer, Jerry McGill called the police, then pursued the man as he fled on foot. The police identified the man as Charles Naylor. Naylor had in his possession Brewer‘s global positioning system (GPS) and an insurance card that bore Brewer‘s name. He was convicted of burglary of an automobile and was sentenced, as an habitual offender рursuant to
FACTS AND PROCEDURAL HISTORY
¶2. Jerry McGill owns an automobile mechanic shop in Hattiesburg, Mississippi, around the corner from Bobby‘s Muffler and Brake Shop (Bobby‘s Muffler), which is owned by Bobby Brewer. On October 29, 2015, McGill, who does mechanic work at night, was responding to a broken-down vehicle call when he drove by Bobby‘s Muffler. McGill noticed that a door was open on the Volvo parked outside Bobby‘s Muffler. McGill knew the vehicle belonged to Brewer.
¶3. When McGill stopped to close the door, a man raised his head inside the Volvo and got out. The man, whom law enforcemеnt personnel later identified as Charles Naylor, walked over to McGill, who still was in his truck. Naylor informed McGill that the Volvo belonged to him, that he had dropped it off for repairs, and that Brewer was to work on it the next morning. McGill told Naylor that he workеd at Bobby‘s Muffler and asked for Naylor‘s information, whereupon Naylor replied that the shop already had his information. When McGill snapped a photograph1 of Naylor, Naylor walked away. McGill telephoned the police at thаt point. He then got out of his truck, looked in the Volvo, and noticed that papers had been strewn about its interior and that the glove box had been “just tore all open . . . .”
¶4. McGill remained on the line with the police and followed Naylor, who wаs walking ahead, in his truck. McGill did not lose sight of Naylor and followed him until Naylor sat down on the sidewalk outside a McDonald‘s restaurant, located approximately a quarter mile from Bobby‘s Muffler. McGill, who was instructed to wait at a gas station across from the McDonald‘s, saw officers arrest Naylor outside the restaurant.
¶5. Officer Allen Grace of the Hattiesburg Police Department responded to McGill‘s call. Naylor was identified and was detained. In Naylor‘s possession, police found a glоbal positioning system (GPS) unit and an automobile insurance card for a white Volvo which bore Bobby Brewer‘s name. Officer Grace testified that he had lifted some fingerprints from Brewer‘s Volvo but explained that those fingerprints were not Naylor‘s. According to Officer Grace, after apprehending Naylor, he had investigated the scene at Bobby‘s Muffler and found the Volvo unlocked with a door open; the vehicle‘s glove box also was open.
¶6. Bobby Brewer testified at Naylor‘s trial that the Volvo had been inoperable, locked, and parked in front of his shop until the alleged burglary and that “[i]t had been locked for sometime [sic] . . . .” He continued that his insurance card had been in the glove box and that his “GPS was either [lying] on the floorboаrd or somewhere other than the glove box.”
¶7. Naylor was convicted of burglary of an automobile and was sentenced by the Circuit Court of Forrest County, as an habitual offender pursuant to
¶8. “When reviewing a challenge fоr sufficiency of the evidence, this Court must determine whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasоnable doubt.‘” Ambrose v. State, 133 So. 3d 786, 791 (Miss. 2013) (citations omitted). “The prosecution must be given the benefit of all favorable inferences that may be reasonably drawn from the evidence.” McClain v. State, 625 So. 2d 774, 778 (Miss. 1993).
[I]f a review of the evidence reveals that it is of such quality and weight that, “having in mind the beyond a reasonable doubt burden of proof standard, reasonable fair-minded men in the exercise of impartial judgment might reach different conclusions on every element of the offense,” the evidence will be deemed to have been sufficient.
Shelton v. State, 214 So. 3d 250, 256 (Miss. 2017) (citations omitted).
¶9. “When the weight of the evidence is challenged, this Court ‘will reverse only when the verdict [is] so contrary to the weight of the evidence that to allow it to stand would sanction an unconscionable injustice.‘” Christian v. State, 207 So. 3d 1207, 1214 (Miss. 2016) (quoting Wales v. State, 73 So. 3d 1113, 1121 (Miss. 2011)).
ANALYSIS
¶10. “Every person who shall be conviсted of breaking and entering, in the day or night, any . . . automobile . . . with the intent to steal therein . . . shall be guilty of burglary and imprisoned in the penitentiary not more than seven (7) years.”
¶11. Naylor argues that, “with the evidence presented, it is just as likely that Naylor came upon the Volvo with the door already open and Naylor merely trespassed in the Volvo and committed petit larceny.” But under this Court‘s standard for reviewing challenges to the sufficiency of the evidence, even if, “having in mind the beyond a reasonable doubt burden of prоof standard, reasonable fair-minded [jurors] in the exercise of impartial judgment might reach different conclusions on every element of the offense, the evidence is sufficient.” Shelton, 214 So. 3d at 256. Moreover, “‘when the evidence is conflicting, the jury will be the sole judge of the credibility of witnesses and the weight and worth of their testimony.‘” Little v. State, 233 So. 3d 288, 292 (Miss. 2017) (quoting Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980)). Brewer testified that the Volvo was locked outside Bobby‘s Muffler at the time of the crime and that it had been locked for some time. In his closing argument, Naylor contended that he merely had happened upon a Volvo with an open door. Despite Naylor‘s contention to the contrary, the jury was entitled to believe Brewer‘s testimony that his Volvo had been locked until the alleged burglary.
¶12. In 1997, this Court adopted and applied a standard by which a defendant‘s participation in a burglary can be inferred by the defendant‘s possession of recently stolen property. Shields v. State, 702 So. 2d 380, 382 (Miss. 1997). “That is, ‘the inference of participation in the crime drawn from possession of the fruits of thе crime is to be judged like any other inference, that is, on the strength of that inference in
- The temporal proximity of the pоssession to the crime to be inferred;
- The number or percentage of the fruits of the crime possessed;
- The nature of the possession in terms of whether there is an attempt at concealment or any other evidence of guilty knowledge;
- Whether an explanation is given and whether that explanation is plausible or demonstrably false.
¶13. In Shields, the defendant offered to sell three guns at a pawn shop the same day the guns had been stolen and their owner‘s house had been burglarized. Shields, 702 So. 2d at 381. The pawn shop purchased two of the guns. Id. The third gun, which was not purchased by the pawn shop, was recovered at the pawn shop. Id. In affirming Shields‘s conviction, this Court considered the circumstances:
The first factor, the temporal proximity of possession, lends great strength to the inference that Shields committed the burglary. There is evidence that Shields possessed fruits of the burglary on the same day of the burglary. The second factor also lends strength. Three of the four items taken were identified in Shields’ possession. The third factor detracts from the inference. Shields sold these guns, bearing serial numbers, in his own name without any attempt to hide his identity. Finally, the fourth factor lends strength to the inference, since Shields offered no explanation whatever. Although there is evidence that he tоld the pawnbroker that he bought and sold guns all of the time, there is no indication that he bought these guns or acquired them in any other manner.
Id. at 383.
¶14. Naylor claims that “more than proximity is needed” to sustain a burglary conviction. But evidence that Naylor possеssed fruits of the burglary on the same day of the burglary when he was apprehended a quarter mile from the site of the burglary strengthens the inference that Naylor committed the burglary. Moreover, Naylor had not been out of McGill‘s sight from the time he walked аway from the Volvo until he was taken into police custody. The first Shields “common sense circumstance,” the temporal proximity of possession, is satisfied. Both items, the GPS and the insurance card, were found in Naylor‘s possession and, therefore, the second factor also strengthens the inference that Naylor committed the burglary. The third factor neither strengthens nor detracts from the inference that Naylor committed the burglary because the record does not reflect whether hе attempted to conceal the contraband. Officer Grace could not remember whether the items were found in Naylor‘s backpack or in his pocket. The fourth factor strengthens the inference, because, according to Officer Grace‘s testimony, Naylor could not explain his possession of Brewer‘s insurance card.
¶15. Nevertheless, this Court also must consider the “circumstances of possession and the presence or absence of evidence оf participation in the crime other than mere possession . .. .” Shields, 702 So. 2d at 382 (citing Cosby, 682 F. 2d at 1380). Plentiful
¶16. McGill testified that he had seen a man later identified as Naylor in the Volvo, which McGill knew belonged to Brewer, with one of the vehicle‘s doors open. McGill testified that Naylor falsely claimed both that the car belonged to him and that he had dropped the car off to be repaired. McGill continued that, when he photographed the Volvo‘s occupant with his cellular phone, the man walked away. McGill then stated that he had called the police and remained on the line with the police while, in his truck, he followed Naylor, who was walking ahead on foot. McGill never lost sight of Naylor and followed him until Naylor sat down on the sidewalk outside a McDonald‘s, located approximately a quarter mile from Bobby‘s Muffler. McGill then witnessed officers arrest Naylor outside the McDonald‘s. In Naylor‘s possession, police found a global positioning system (GPS) unit and an automobile insurance card for a white Volvo which had Bobby Brewer‘s name on it.
¶17. Naylor references Ladd v. State, in which the Mississippi Court of Appeals held thаt “the mere act of walking through a raised, open garage door does not constitute an ‘act of force, however slight, employed to effect an entrance’ and is not a ‘breaking.‘” Ladd v. State, 87 So. 3d 1108, 1115 (Miss. Ct. App. 2012). And this Court approved the decision of the Court of Appeals in Watson v. State: “We agree with the Court of Appeals in Ladd[] that merely walking through an open door does not satisfy the ‘breaking’ requirement for burglary of a dwelling.” Watson v. State, 123 So. 3d 446, 448 (Miss. 2013). However, in Ladd, the crime victim testified that she had left the garage door open. Ladd, 87 So. 3d at 1114. Here, Brewer testified that his Volvo had been locked at the time Naylor is alleged to have burglarized it. The jury was entitled to believe Brewer‘s testimony.
¶18. While Naylor references an argument that the verdict was contrary to the overwhelming weight of the evidence in his brief‘s argument summary, he presents no further аrgument or authority in support of this claim. This Court “is under no obligation to consider an assigned error without citation to authority.” Brown v. State, 798 So. 2d 481, 497 (Miss. 2001) (citing Brown v. State, 534 So. 2d 1019, 1023 (Miss. 1988)).
CONCLUSION
¶19. Because the evidence was sufficient to support Naylor‘s conviction of burglary of an automobile, we affirm.
¶20. AFFIRMED.
WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.