COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Case Number: 2016-KA-00166-COA

Judge: Latrice Westbrooks

Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney:

OFFICE OF THE ATTORNEY GENERAL BY:
SCOTT STUART

Defendant's Attorney:

OFFICE OF STATE PUBLIC DEFENDER BY:
W. DANIEL HINCHCLIFF

Description: In 2014, Charles Flowers resided in a small beach cottage located in Biloxi,
Mississippi. Flowers left the cottage for work on June 10, 2014, and did not return home
until the following day.
¶3. On June 11, 2014, Flowers arrived home and noticed the doors of his home ajar.
Flowers testified that when he tried to gain access to the house, he was unable to enter
through the doors. From a window, Flowers testified he saw blankets and guitar cables tied
together between pieces of furniture. When Flowers finally gained access to his home, he
found half of a sandwich and a half-melted bowl of ice cream. A laundry basket containing
a number of Flowers’s personal items and valuables was found by the front door. There was
also broken glass on the floor, and clothes thrown everywhere in the house.
¶4. Steven Kelly, an investigator with the Biloxi Police Department, testified he went to
Flowers’s home to investigate after he received a call about a burglary. He testified that
when he arrived, he noticed shards of glass by Flowers’s french doors, and that it appeared
the house had been rummaged through. He testified he noticed a half-eaten sandwich and
bowl of ice cream on the table. Moreover, he testified he noticed electronic or musical-type
equipment in a laundry basket close to a door in Flowers’s home. Investigator Kelly also
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stated he did not take photos of the home during that time, because he had just started
working for the police department and had not been issued a camera.
¶5. Flowers testified that he did not stay at his house that night, because he was afraid.
Flowers returned to his house a few days later to retrieve the rest of his items. He testified
he found a casino player’s card with the name “Edward Parker Eldridge” on it, a dirty razor,
and dirty clothes on the floor in his bathroom. Flowers also testified it appeared as if
someone had tried to break in the home again. Flowers later took the items found in his
house to the Biloxi Police Department.
¶6. After Flowers revealed the casino player’s card with Eldridge’s name, an investigator
showed him a picture of a man named Edward Parker Eldridge. Coincidently, on June 11,
2014, Eldridge was questioned by Officer Kevin Kinny of Biloxi Police Department on
another matter. Officer Kinny stopped to visit with Eldridge and took Eldridge’s picture on
June 11, 2014. Flowers testified that he recognized the shirt worn by Eldridge in the picture,
despite the shirt being worn inside out. The shirt had the name “Home Cypress Farms”
embroidered on it. Home Cypress Farms was the name of the Flowers family farm. Flowers
stated that the shirt had been gone since the burglary. Eldridge was arrested and charged
with burglary of a dwelling.
¶7. During the trial, Eldridge did not testify on his own behalf, and the court heard the
evidence listed above. However, Eldridge argued the State failed to prove the elements of
the crime of burglary, and tendered a jury instruction on the lesser included offenses of
criminal trespass and petit larceny. The court refused his jury instructions. Following a jury
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trial on January 20, 2016, Eldridge was sentenced to a term of twenty years, with eight years
to serve and twelve years suspended. Eldridge’s motion for a JNOV or, in the alternative,
a new trial was denied. On appeal, Eldridge asserts the court erred by denying his request
for a lesser-included-offense instruction on trespass.
STANDARD OF REVIEW
¶8. “The standard of review for a claim that a defendant was entitled to a
lesser-included-offense instruction is de novo, as this is a question of law.” Pierce v. State,
107 So. 3d 1011, 1014 (¶11) (Miss. Ct. App. 2012) (citations omitted).
DISCUSSION
Whether the trial court erred when it refused Eldridge’s request for a lesser-included-offense instruction on trespass.
¶9. Eldridge argues that it is fundamentally unfair to prevent a defendant from being
allowed to present his defense and to have the jury instructed thereon. Eldridge is correct in
his assertion that “a defendant is entitled to have every legal defense he asserts to be
submitted as factual issue for determination by the jury under proper instruction of the court.”
Love v. State, 121 So. 3d 952, 955 (¶13) (Miss. Ct. App. 2013). “However, this entitlement
is limited in that the court may refuse an instruction which incorrectly states the law, is
covered fairly elsewhere in the instructions, or is without foundation in the evidence.”
Newell v. State, 49 So. 3d 66, 73-74 (¶¶20-21) (Miss. 2010) (citation omitted). “A
lesser-included-offense instruction should be granted unless the trial court, and ultimately the
appellate court, can say” that “[t]aking the evidence in the light most favorable to the
accused, and considering all reasonable inferences which may be drawn in favor of the
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accused from the evidence, no reasonable jury could find the defendant guilty of the lesser
included offense and conversely not guilty of at least one essential element of the principal
offense.” Pierce, 107 So. 3d at 1014 (¶11) (citations and quotation marks omitted).
¶10. The court in Jackson v. State, 90 So. 3d 597, 607 (¶36) (Miss. 2012), stated that the
inference ordinarily to be drawn from a defendant’s unexpected breaking and entering into
the home of another person unknown to him, followed by his rummaging through the
victim’s effects and fleeing upon discovery, is that the defendant had the intent to commit
larceny. The question in this case is “whether the evidence is so clear that no reasonable
juror could have accepted the defendant’s theory that his intent to commit a crime was
formed after he was in the house.” Id. at 605 (¶34).
¶11. Eldridge rummaged through Flowers’s personal items, then fled before he could
retrieve the items placed at the door. Eldridge is not required to prove any element of the
crime with which he was charged; however, there is no testimony or evidence submitted to
substantiate a claim for the lesser-offense theory. The trial court found that looking at all of
the evidence, a reasonable jury could not have found Eldridge guilty of criminal trespass
only. We agree.

Outcome: