Lead Opinion
for the Court:
¶ 1. A jury sitting before the Quitman County Circuit Court found Richard White guilty of burglary of a dwelling.
FACTS AND PROCEDURAL HISTORY
¶2. For more than thirty-five years, Newell Inman and his wife, Johanna, lived at the same address in Lambert, Mississippi, a small town in Quitman County. On
■ ¶ 8. As they approached their home, Newell and Johanna both noticed that a light was on in one of the two storage rooms connected to their carport. The doors to the storage rooms were shut and unlocked. Newell thought that Johanna had left the light on, and Johanna thought that Newell was responsible for the light. As 'Johanna was exiting the parked car, Newell asked her.to turn off the light in the storage room, which was immediately to her right. Johanna opened the storage-room door just enough to reach the light switch inside. But the light was already off. Johanna turned the light back on.
¶ 4. Johanna was surprised by an intruder in her storage room. His hands were behind his back, as though he was hiding a weapon. ■ According to Johanna, the intruder was standing in ,a .“parade rest” or “at ease” military posture. Johanna screamed for Newell..
¶ 5. As sixty-five-year-old ’’ Newell rushed around the car to help Johanna, the intruder tried to escape. Newell swung at him-and missed. The significantly younger intruder pummeled Newell with something metallic, knocking- Newell to his knees and shattering his glasses. Newell’s head was severely lacerated, and his right arm was broken.
¶ 6. While driving to the emergency room, Johanna called-911. At that time, Johanna did not recognize the intruder. But Newell did from the many times he had seen him around town. However, Newell did not know the intruder’s name.
117. The next day, the Inmans positively identified White as the intruder. They recognized him from a photograph that was presented by law enforcement. Johanna also showed .law-enforcement officers the undisturbed metal file that she had found in the front yard. Newell in- ■ ventoried the storage room and discovered that he was missing a hammer, a pair of Channellock pliers, at least two files, and some of-his screwdrivers. Law-enforcement officers found a fingerprint on a box in the storage room where the intruder had been hiding. A fingerprint examiner from the Mississippi Crime Laboratory later testified that the fingerprint matched the middle finger on White’s left hand. Newell and Johanna both testified during White’s trial. They each identified White as the intruder.
¶ 8. - White was questioned after he was arrested. He denied any involvement in the burglary. At trial, White testified that he was at his home in Lambert with family when the crimes occurred. But he did not call any' witnesses t.o corroborate his claimed alibi.
¶ 9. In rebuttal, the prosecution called Charlie Booker Jr., who lived close to the Inmans’ residence. Booker testified that White had been at his- house late on the afternoon of the burglary. White had stopped by to see Booker’s father. White left on foot after Booker told him that his father was not at home.
ANALYSIS
¶ 11. According to White, he is entitled to a new trial because the circuit court committed plain error in instructing the jury. For the first time on appeal, White argues that the circuit court should have sua sponte instructed the jury on the elements of larceny and/or assault. In other words, White’s claim is based on the concept that the essential elements of dwelling-house burglary must also include the essential elements of the crime that he intended to commit when he broke into'the Inmans’ home.
¶ 12. White is correct that the circuit court is responsible for assuring that the jury is “fully and properly instructed on all issues of law relevant to the case.” Harrell v. State,
¶ 13. A person is guilty of burglary of a dwelling upon proof beyond a reasonable doubt “of breaking and entering the dwelling house or inner door of such dwelling house of another ... with intent to commit some crime therein.... ” Miss. Code Ann. § 97-17-23(1) (Rev.2014) (emphasis added). The prosecution is not obligated to prove that the accused actually committed the underlying offense of the burglary; but it must prove that at the time of the breaking and entry, the accused intended to commit some specific offense. Daniels v. State,
¶ 14. Unless a defendant confesses, it is often extremely difficult to determine exactly what he intended to do when he broke and entered someone else’s home. As the supreme court has recognized:
*805 The State seldom has direct and positive testimony expressly showing the specific intent of an intruder at the time he unlawfully breaks into a dwelling house; however, such testimony is not essential to establish the intent to commit a crime. Intent is an emotional operation of the mind, and is usually shown by acts and declarations of the defendant coupled with facts and circumstances surrounding him at the time. [A defendant's intention is manifested largely by the things he does.
Dixon v. State,
¶ 15. White cites no authority stating that reversible error is the unavoidable result when a circuit court does not unequivocally instruct a jury on the elements of the intended crime in a burglary trial. However, only in capital-murder cases is a circuit court required to instruct a jury on the elements of the legislatively specified underlying felony that elevates the murder to a capital offense. See id. Instead, the supreme court has held that a circuit court “should instruct the jury on the elements of the intended crime.... ” Conner v. State,
¶ 16. In Conner, the supreme court held that although the circuit court did not instruct the jury on the underlying intended crime for the burglary, the jury instructions as a whole adequately instructed the jury that it was required to find that the defendant “broke and entered the victim’s dwelling with the intent to steal.” Id. at 150-51 (¶ 16). Therefore, the supreme court affirmed the burglary conviction. Id. at 151 (¶ 16). During the prosecution’s closing argument in the present case, the prosecution argued that White most likely intended to steal the Inmans’ personal property. The evidence certainly supports that conclusion, since some of Newell’s tools were missing. The circuit court instructed the jury that to find White guilty of burglary, it must find that White “intended to commit larceny and/or assault” when he broke and entered the Inmans’ home. The jury instructions clearly identified the specific underlying crime that White intended to commit.
¶ 17. Additionally, the jury was, in fact, instructed regarding the elements of aggravated assault. The jury could have found that when White saw the Inmans’ vehicle approaching the carport, he went inside the storage room to arm himself to commit an assault in case he was discovered.
¶ 18. The plain-error doctrine requires proof of an error that resulted in a “manifest miscarriage of justice.” Blunt v. State,
burglary, including the specific underlying offenses. Moreover, the jury was instructed on the essential elements of aggravated assault. It was undisputed that the intruder stole the Inmans’ property and assaulted Newell. As stated above, White’s defenses were misidentification and alibi. There is no manifest miscarriage of justice because the circuit -court did not sua sponte instruct the jury regarding the specific elements of larceny. We decline to reverse the trial judge on an issue never presented to him. Based on the facts of this case, we find no plain error.
¶ 19. Additionally, it appears that the supreme court has recently receded from its rather emphatic statement in Bolton,
¶20. However, a majority of the supreme court subsequently found that “there is no need for further review, and that the [w]rit of [c]ertiorari should be dismissed.” Jones v. State, 2012-CT-00374-SCT (Aug. 14, 2014). Presiding Justice Dickinson,'joined by three others, issued a separate written 'statement and included a proposed opinion: Id. The proposed opinion stated that the defendant— through his counsel — had waived his right to havé the jury instructed on the essential element of the difference between his age and the victim’s when the defendant withdrew his correctly worded proposed jury instruction. Id. at (¶ 24). Whether based on harmless error or waiver, the result is the same — Jones’sconvictiori was affirmed. Just as the difference between Jones’s age and the victim’s was patently obvious to the jury, it was obvious to the jury in this case that the intruder intended to either steal something from the Inmans or commit an assault. Assuming for the' sake of discussion that the circuit court erred in this case, that error must likewise be harmless and/or waived. We find no merit to this issue.
¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF QUITMAN COUNTY OF CONVICTION OF BURGLARY OF A DWELLING AND SENTENCE OF TWENTY-FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH THE SENTENCE TO RUN CONSECUTIVELY TO ANY-AND ALL SENTENCES PREVIOUSLY IMPOSED, IS AFFIRMED, ALL COSTS OF THIS APPEAL ARE ASSESSED TO QUIT-MAN COUNTY.
. The jury found that White was not guilty of aggravated assault.
. After an orAopedic physician set the bone, Newell wore a sling for monAs. He later received extensive therapy.
. See Neder v. United States, 527 U.S. 1, 15,
Dissenting Opinion
dissenting:
¶ 22. I must respectfully dissent fr.om the majority, 'due to.our supreme court’s recent ruling in Conner v. State,
Every person who shall be convicted of breaking and entering the dwelling house or inner door of such dwelling house of another, whether armed with a deadly weaport or not, and whether there shall be at the time some human being in such' dwelling house or not, with intent to commit some crime therein, shall be punished....
The jury received the following instruction:
In Count I,.if you believe from the evidence in this .case beyond a reasonable doubt that:
1) On or about January 29, 2012, RICHARD WHITE AKA “TONEY BUCK” did unlawfully, willfully [and] feloniously break and enter the dwelling house of Newell Inman and/or. Johanna Inman[,] and
2) said dwelling-house was located at .., Street in Lambert[,] Mississippi, and •
*808 3) said breaking] and entering] was with the intent to commit the crime of larceny and/or assault there,
then you shall find the defendant guilty of burglary of a dwelling in Count 1. If the State has failed to prove any one of these elements beyond a reasonable doubt, then you shall find the Defendant not guilty in Count 1.
¶23. White argues that the circuit court’s failure to instruct the jury on the elements of larceny and assault is plain error. Neither party requested that the jury be instructed on the elements of larceny or assault. However, that does not render the issue procedurally barred. The circuit court is responsible for assuring that the jury is “fully and properly instructed on all issues of law relevant to the case.” Harrell v. State,
¶24. In Harrell, the supreme court found that, for a capital-murder charge, the circuit court’s failure to instruct the jury as to the elements of the underlying felony of robbery was reversible error. Harrell,
¶ 25. Now, with Conner in mind, we must determine whether the jury was “fully and fairly informed” of the intent requirement for burglary. See id. In this case, the jurors were instructed that they could find White guilty of burglary if they found he unlawfully, willfully, and felo-niously broke and entered the dwelling with the intent to commit larceny and/or assault. Likewise in Conner,
While the trial court should instruct the jury on the elements of the intended crime in a burglary trial, here, the jury instructions correctly instructed the jurors that they could find Conner guilty of burglary if they found he broke and entered the victim’s dwelling with the intent to steal. We find that the jury instructions fairly, although not perfect*809 ly, instructed the jury on the applicable law....
Id. at (¶ 16) (emphasis added),
¶ 26. The Conner decision relied on the fact that, although no instruction listed the elements of larceny, Conner’s jury had received separate instructions on larceny that were sufficient to inform the jury of the applicable law. Id. Unlike the jury in Conner, the jury in this case received no separate instructions on larceny or assault. The majority affirms White’s conviction because there was undisputed evidence of theft and assault. Büt Conner did not draw factual or evidentiary distinctions when concluding that a jury should be instructed on the intent requirement for burglary.
¶27. As stated by the majority, the plain-error doctrine has been construed to include error that “resulted in a manifest miscarriage of justice” or “seriously affects the fairness, integrityt,] or public reputation of judicial proceedings.” Brown v. State,
IRVING, P.J., BARNES AND ISHEE, JJ., JOIN THIS .OPINION.
. Larceny requires the specific intent to steal or "deprive the owner of his property.” Slay v. State,