Nelson v. State
| Docket Number: | 2002-KA-00380-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-11-2003 Opinion Author: Lee, J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Burglary & Grand larceny - Sufficiency of evidence - Prejudicial comment - Lesser-included offense instruction Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Irving, Myers, Chandler and Griffis, JJ. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
|
| Trial Court: |
Date of Trial Judgment: 02-08-2002 Appealed from: DeSoto County Circuit Court Judge: George B. Ready Disposition: COUNT I, BURGLARY OF AN AUTOMOBILE, SENTENCE OF THREE YEARS IN THE MDOC. COUNT II, GRAND LARCENY, SENTENCE OF FIVE YEARS' POST-RELEASE SUPERVISION CONSECUTIVE TO COUNT I. PAY $1,000 IN RESTITUTION AND $1,000 FINE. District Attorney: John W. Champion Case Number: CR-2001-619-RD |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Brian Keith Nelson |
WILLIAM F. TRAVIS |
||
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS |
|
|
Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
|
| Topic: | Burglary & Grand larceny - Sufficiency of evidence - Prejudicial comment - Lesser-included offense instruction |
| Summary of the Facts: | Brian Nelson was convicted of one count of burglary of an automobile and one count of grand larceny. He was sentenced to three years for the burglary conviction and five years' post-release supervision for the grand larceny conviction. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Sufficiency of evidence Nelson argues that the evidence was legally insufficient to sustain a guilty verdict. The record contains sufficient evidence to support the conviction. Two witnesses separately confessed to the crimes and each identified Nelson as the one who took the hood off the car, loosened the carburetor with tools, and removed the carburetor from the car. The owner of the carburetor testified that it was worth at least $1000 and that he had to buy a used carburetor for $400 to replace the stolen one. Issue 2: Prejudicial comment Nelson argues that the court should have granted a mistrial after a jury panelist during voir dire indicated that Nelson was a client of ours on probation at Justice Network. However, the court promptly rectified the situation. The judge told the prospective jurors that the panelist was not sure if Nelson was the same person, stressed more than once that Nelson was completely and totally innocent, and immediately dismissed the panelist. Issue 3: Lesser-included offense instruction Nelson argues that the court should have instructed the jury to consider the lesser- included offenses of trespass and petit larceny. A defendant is entitled to a lesser offense instruction only where there is an evidentiary basis in the record. Nelson's own testimony was that he never participated in the burglary and never entered the premises of the body shop. Absent some evidence that he trespassed in the body shop without participating in the burglary, there was no evidentiary basis for granting the instruction. The lesser-included offense of petit larceny was not warranted, since there was evidence from the owner that the carburetor was worth $1000, and the replacement cost $400. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
